Guerdon Industries

National Labor Relations Board - Board Decisions

Apr 6, 1981

255 N.L.R.B. 610 (N.L.R.B. 1981)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guerdon Industries and The United Rubber, Cork,
Linoleum, and Plastic Workers of America.
Case 10-CA-15151
April 6, 1981
DECISION AND ORDER
On September 30, 1980, Administrative Law
Judge Howard I. Grossman issued the attached
Decision in this proceeding. Thereafter, the Re-
spondent filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Guerdon In-
dustries, Waycross, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we perceive no evidence that the Administrative Law Judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias against
the Respondent in his analysis or discussion of the evidence.
2 The Respondent has excepted, inter alia, to the Administrative Law
Judge's use of the Wright Line analysis, Wright Line. a Division of Wright
Line. Inc.. 251 NLRB 1083 (1980). in finding that the Respondent violat-
ed the Act in discharging four employees. The Respondent contends that
this case was heard before the Wright Line decision issued and that had it
known that the Administrative Law Judge would apply the analysis con-
tained therein, it would have tried its case differently. The Respondent's
contention is without merit. The Wright Line decision clarified and ar-
ticulated the analysis that should be used in cases turning on employer
motivation. It did not set forth a completely new analysis. Indeed, as was
stated in Wright Line "the two methods of analysis are essentially the
same.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
255 NLRB No. 86
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in
The United Rubber, Cork, Linoleum, and
Plastic Workers of America, or any other
labor organization, by unlawfully discharging
any employees or by discriminating against
them in any other manner with respect to their
hire or tenure of employment.
WE WILL NOT tell employees that we know
the names of union adherents among them.
WE WILL NOT tell employees that we intend
to discharge union supporters.
WE WILL NOT promise employees benefits in
return for their rejection of any union or their
refraining from engaging in union activities.
WE WILL NOT threaten employees with clo-
sure of any of our plants in retaliation for their
union activities.
WE WILL NOT create an impression that our
employee's union activities are futile, by telling
them that they or we do not need a union and
that we will not have a union.
WE WILL NOT tell employees that they are
not to speak to other employees about unions
or show them union literature, at any time or
at any place on company property.
WE WILL NOT offer employees monetary or
other rewards for the names of other employ-
ees engaged in union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of our employees
in the exercise of their rights guaranteed them
under Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Gerald Kirby, Wanda Short,
J. B. Merritt, and Robert Jones reinstatement
to their former jobs or, if any such jobs no
longer exist, to substantially equivalent jobs,
discharging, if necessary, any employee hired
to replace any of the aforesaid employees.
WE WILL restore the seniority of the forego-
ing employees and their other rights and privi-
leges, and WE WILL pay them the backpay
they lost because we discharged them, with in-
terest.
GUERDON INDUSTRIES
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge:
This case was heard at Waycross, Georgia, on June 2
GUERDON INDUSTRIES 611
and 3, 1980.' The charge was filed on November 20 by
the Industrial Union Department, AFL-CIO, 2 "on
behalf of the AFL-CIO and/or its appropriate affiliate,"
which, the evidence shows, is the United Rubber, Cork,
Linoleum and Plastic Workers of America (herein the
Union).3
The complaint was issued on December 7, alleging
that Guerdon Industries (herein the Company) violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (herein the Act) by (1) interrogating employees
concerning their union activities; (2) telling employees
that (a) it would be futile for them to select the Union as
their bargaining representative, (b) the Company was not
going to have a union at its plant, (c) the employees did
not need a union, and (d) it would discharge employees
if they engaged in union activities; (3) promising employ-
ees additional vacation time in return for the employees'
refraining from engaging in union activities; (4) creating
an impression of surveillance of its employees' union ac-
tivities and telling them that it knew which employees
were starting the Union; (5) soliciting employees to
inform on the union activities of other employees in
return for a monetary reward of $100; (6) promising em-
ployees that it would lighten the workload by hiring
other employees if they would refrain from engaging in
union activities; and (7) prohibiting employees from
bringing union literature into the plant and from discuss-
ing union activities at any time on company property.
The complaint also alleges that the Company violated
Section 8(a)(3) and (1) of the Act by discharging and
thereafter failing to reinstate four named employees be-
cause of their activities on behalf of the Union.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs by the General Counsel and the Com-
pany, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company is a Delaware corporation with an
office and three plants located in Waycross, Georgia,
where it is engaged in the manufacture of mobile homes.
During calendar year 1978, which is representative of all
times material herein, the Company sold and shipped fin-
ished products valued in excess of $50,000 from its Way-
cross, Georgia, plants directly to customers located out-
side the State of Georgia. The Company admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer denies that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. Joseph Coffey testified without con-
tradiction that he is an organizer for the United Rubber,
Cork, Linoleum, and Plastic Workers of America, and
that this organization exists for the purpose of dealing
I All dates hereinafter are in 1979 unless otherwise stated
a See sec. II of this Decision.
a See sec. II of this Decision.
with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and condi-
tions of work. Coffey further testified that said organiza-
tion is affiliated with the AFL-CIO, and that one of
such affiliations is the Industrial Union Department (sig-
natory to the charge herein on behalf of the AFL-CIO
and/or its appropriate affiliate). Coffey sought and ob-
tained permission from the United Rubber Workers orga-
nization to work on the campaign at the Company's
plant, and his coworker in this matter was one James
Orange, an employee of the Industrial Union Depart-
ment. As more fully described hereinafter, Coffey actual-
ly met with and distributed union literature to employees
of the Company in their attempt to start a union.
It is clear that the United Rubber Workers organiza-
tion is the appropriate AFL-CIO affiliate on whose
behalf the charge was filed, and that it is therefore a
proper party to this proceeding. It is also clear from Cof-
fey's testimony, and I find, that the United Rubber,
Cork, Linoleum, and Plastic Workers of America is a
labor organization within the meaning of Section 2(5) of
the Act. 4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary and Factual Analysis of the Evidence
1. Employee activity on behalf of the Union
Coffey was conducting a union campaign at Waycross
Molded Products, also known as Macon Molding, in Oc-
tober 1979. This plant is located in about the middle of
Respondent Company's three plants (the Statler, Vaga-
bond, and Diamond Trio plants), and is only a few miles
from each of them. On about October 8, as Coffey was
passing out leaflets at Waycross Molded Products, he
was approached by Gerald Kirby, an employee at the
Company's Statler plant, who asked for assistance in get-
ting a union started at the Company. Coffey was too
busy at the time, but suggested that Kirby meet him the
following night, October 9, at a meeting of Waycross
Molded Products employees. Kirby did so, and Coffey
gave him advice on how to engage in organizational ac-
tivity. Kirby and Coffey met a third time, on or about
October 13, during which meeting Kirby was accompa-
nied by J. B. Merritt, another employee at the Compa-
ny's Statler plant. Coffey further discussed the way to
get a union started at the Company, and gave Kirby
copies of a leaflet describing employee rights under the
Act.
On or about October 15, employee Robert Jones and
two other employees at the Company's Statler plant also
visited the union activity taking place at the Macon
Molding plant. They obtained union literature in the
form of a large poster with the picture of a chicken and
the legend, "The Company's Chickened Out." One of
the other employees with Jones wanted to post it on the
4 In light of my conclusion that the Industrial Union Department,
AFL-CIO, acted in a representative capacity in filing the charge, I con-
sider it unnecessary to determine whether it also is a labor organization,
an agent of a labor organization. or a proper party in this proceeding. Cf.
International Longshoremen s Ar.sociation. AFL-CIO. et al. (Coldwater Sea-
food Corporation), 237 NLRB 528 (1978).
GUERDN INDUSTRES
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulletin board at the Company's Statler plant, but Jones
said that they should first obtain management approval.
Accordingly, the employees approached Eddie Carter,
the Company's foreman at the Statler plant, and a super-
visor within the meaning of the Act. According to Jones,
they showed him a copy of the poster and asked for per-
mission to put it on the bulletin board. Carter refused,
told him to put it in the trash can, and said that the em-
ployees could be fired. Jones testified that he did put the
poster with the trash, and that Carter returned a few
minutes later saying that he did not want Jones and the
others to communicate with other employees about this
matter.
According to Carter, Jones did approach him on Oc-
tober 15 with a request to post something on the bulletin
board, to which Carter replied, "Not without manage-
ment's permission." Carter acknowledged that he was
curious about the material to be posted, but denied that
he ever saw it. I credit Jones' version of this incident,
and conclude that Carter did in fact see the union poster
from the Macon Molding plant, and did make the state-
ments attributed to him by Jones.
Jones further testified credibly that other employees
approached him a few minutes later and asked him what
was going on. He replied that Carter was talking about
firing him and his partner for bringing union literature
into the plant. When Jones said that Carter told him to
put the poster in the trash, the employees said that Jones
was scared, whereupon he retrieved the poster from the
trash and showed it to the other employees. During the
rest of the week, there was talk about the Union among
the employees, according to Jones' credible testimony.
On October 18, Jones had a conversation with the
Company's general superintendent, Johnny Davis, a su-
pervisor within the meaning of the Act. According to
Jones, he was at his work table, where he built roofs,
when Davis asked him to step out in the back. Davis
asked Jones whether he had anything to do with the
Union, and Jones denied it. Davis said that it had "got
around" to all three plants that it was Jones who had
started the union movement, and that the Union was not
actually what Jones thought it was. Jones told Davis
about his prior experience with Carter, concerning the
chicken poster.
Davis agrees that he had a conversation with Jones on
or about October 18, but under different circumstances
and with a different subject matter. Thus, both Davis
and Jones happened to be going into the yard back of
the plant when a casual conversation began. All that
Davis said was that Jones' department was not making
the piece rate. I credit Jones' version of this conversa-
tion. I also credit the testimony of both Jones and Kirby
that, on or about October 18, Kirby showed Jones the
union leaflet which Kirby had previously obtained from
Coffey, and asked Jones to talk to employees about the
Union.
2. General Manager Scott's speech on October 19
On October 19, the Statler plant employees were di-
rected to assemble about 3:30 p.m. and were addressed
by Sam Scott, the Company's general mangager and a
supervisor within the meaning of the Act. According to
various employee estimates, the speech lasted from 1 to 2
hours, although Scott said that it lasted about 15-20 min-
utes. Employee accounts of the speech vary in some de-
tails, as is customary in such matters. According to
Kirby, the most reliable witness, Scott said that he was
not going to have a union at Guerdon, and that the
Company did not need a union. Kirby is corroborated on
this topic of Scott's speech by Merritt, who added that
Scott claimed the employees did not need a union, and
would not gain anything from it. Even Scott agreed that
he said that the Company did not need a union, although
he denied making the other statements. I credit Kirby's
and Merritt's testimony on this subject of the speech.
Kirby also testified that Scott said he knew who the
people were who started the Union, and that by the end
of the meeting he was going to let them go. Employee
Wanda Short testified that Scott said some people would
not be coming to work the following Monday, and they
would know their names before they left (the meeting).
Merritt averred that Scott notified the employees that he
was going to make an example of some people, that they
would not be at work the following Monday, and that
anybody participating in the Union would not be there
very long. Jones stated that Scott told the employees
that some of them would not be working in the plant at
the end of the meeting, and "they know who they are."
Scott denied making these statements. Although there is
some difference in the employee versions of the speech,
there is a general theme that Scott told employees he
knew the identities of the union adherents and intended
to discharge them. The cumulative effect of this substan-
tially consistent employee testimony is more persuasive
than Scott's denial, and I credit the employee version of
Scott's comments on this topic. I also credit Kirby's tes-
timony that Scott said he did not have to keep the plant
open, but could send the orders to another plant in
Georgia.
There is agreement between the testimony of the em-
ployees and Scott that he promised additional benefits at
the meeting. Kirby said that Scott promised additional
vacation benefits in the form of 2-1/2 days off work each
quarter, while Scott stated that it was 1 day each month
for the first year of employment up to 5 days, with more
vacation privileges the second year. Scott's version is
probably more accurate. Scott also promised additional
employees to lessen the workload, persons whom he
called "floaters." Scott testified that he had held prior
employee meetings in which he announced new benefits
as "motivational tools," and was corroborated in this by
Jones. I credit Scott's testimony that he had discussed
employee benefits during prior meetings.
There is also agreement that Scott held up a $100 bill
during his speech, and offered it as a reward to employ-
ees on certain conditions. The difference in the testimony
involves the condition required to earn the money. Ac-
cording to Kirby and Merritt, the money would be paid
in return for the identity of any employee distributing
union literature, or posting union literature on the bath-
room walls or anywhere. Although there had been graf-
fiti on the bathroom walls for several months, Scott com-
plained only about the posting of literature. Merritt in
-- ------- ----
GUERDON INDUSTRIES 613
fact saw union literature on these walls, documents that
had been torn down. Kirby testified that the leaflet he
had obtained from Coffey was posted on the bathroom
walls, while Short testified that Scott told employees
that he had found "some papers" on the bathroom walls,
and that he did not like unions.
Scott averred that his offer was in return for the
names of persons who defaced the bathroom walls with
graffiti, "bawdy" statements. Although the walls were
bad, according to Scott, they were not "filthy," and had
always been in poor condition with respect to this prob-
lem. Crediting Merritt and Kirby, I conclude that union
literature in fact was posted on the bathroom walls. Be-
cause of Scott's concern with the Union, and the fact
that graffiti on bathroom walls was not a new problem, I
find that his $100 offer was in return for the names of
employees seen posting union literature anywhere in the
plant, including bathroom walls. There is inconsistent
employee testimony about whether Scott held something
in his left hand while holding the $100 bill in his right,
and I credit Scott's testimony that it was a statement of
comparative paychecks at the three plants.
Scott said that his speech was caused by the fact that
the Statler plant was not operating as efficiently as the
other two plants. Although it was producing as many
mobile homes, it took more overtime to accomplish this
result. This did not cause the Company any loss of prof-
its, according to Scott, because of the Company's com-
plicated combination of hourly and incentive pay, but it
did operate to the disadvantage of one group of employ-
ees.
Merritt, on the other hand, testified that Scott had pre-
viously sent around a memo saying that Statler was the
best plant of all three, that it had made the most money,
and that he congratulated the employees. I credit Mer-
ritt's testimony.
Scott maintained that the object of his speech was to
get each Statler employee to make a "personal commit-
ment" to more work and less absenteeism. He denied any
knowledge of union activity at Guerdon, although he ad-
mitted knowledge of same at nearby Macon Molding. As
a symbol of each employee's pledge to a personal com-
mitment, Scott asked the employees to show up prompt-
ly at 7 a.m. the following Monday. If they did not do so,
Scott would infer that they did not wish to make a "per-
sonal commitment," and that they intended to terminate
their employment. Kirby and Jones agreed that Scott did
call for a commitment to harder work, and told the em-
ployees to call in the following Monday if they could
not arrive by 7 a.m. I conclude that Scott did in fact
make these statements during his speech.
3. The discharges of Kirby and Short
Gerald Kirby and Wanda Short tried to clock out
after Scott's speech on October 19. They could not find
their timecards, and Larry Youmans, their foreman and
immediate supervisor since January , asked them to
come into the office. According to Kirby, Youmans said
that they were being laid off because of lack of work,
and that he hated to see them go because they were two
of the best workers that he had. Youmans testified that
he told the employees that they were being laid off be-
cause there were too many employees in their depart-
ment, and that their work was not satisfactory. Asked
whether he also said that he hated to see them go, You-
mans replied, "Not that I can remember." Asked again
by company counsel, Youmans made a definite denial.
Wanda Short testified that Youmans said the Company
needed only one employee in her department. She could
not remember whether Youmans said anything "nice" to
the employees.
Kirby and Short worked in the Company's "Yard De-
partment," one of the last stages of the mobile home pro-
duction, where defects ("gigs") in the manufacturing
process were corrected, and the homes were cleaned.
This latter function was performed by Short, who testi-
fied that she was the "principal" employee cleaning the
homes, although she occasionally received help from
other employees.
In addition to working in the same department with
Short, Kirby also drove her to and from work. Kirby
spoke to Short about the Union during these rides, but
there is no evidence that Short spoke with other employ-
ees about the subject, or engaged in other protected ac-
tivity.
Plant Manager Scott testified that there were four em-
ployees in the yard department at the Statler plant,
whereas the other two plants (Vagabond and Diamond
Trio), comparable in size to Statler, had only two em-
ployees in similar departments. This problem of "over-
staffing" was first noticed about 30 days before the Octo-
ber 19 meeting. Scott therefore notified the Statler plant
to reduce its yard complement to two employees by
laying off the two "that were not doing the best work."
Other than this general instruction, Scott had no knowl-
edge of the identity of the employees to be laid off, ac-
cording to his testimony.
General Superintendent Davis testified that the Statler
yard department previously had two employees, but, "a
couple of months" before the October 19 discharges, i.e.,
about the middle of August, the complement was raised
to four employees. About 3 weeks before the discharges,
i.e., about the end of September, Scott told Davis to
reduce the complement to two, according to Davis.
Prior to this testimony, however, Davis denied that any-
body told him that any employees had to be laid off.
Davis further testified that he "passed" the matter on to
Statler Foreman Eddie Carter, and did not participate in
selecting which employees would be discharged.
Carter stated that he had four employees in the yard
department, and that Wanda Short was the "cleanup
girl." He averred that Scott and Davis told him that he
could have only one cleanup girl and one yardman, but
did not tell him who "to set up for layoff." Carter testi-
fied that he received instructions from Scott and Davis
on October 19, although "a couple or 3 days" before
this, Davis told him that he had too many employees in
the yard. Carter discussed with Youmans the employees
actually to be laid off, but was not informed about the
actual date of the discharge until the morning of October
19.
Carter also testified to meetings with Kirby and Short
about 2 weeks before October 19, in which he criticized
GUERDON INDUSTRIES
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their work. About 3-4 days before this, Carter and Davis
had "observed" the work of Kirby and Short because
the department was not running properly. Kirby stated
that Carter had "little meetings" with the group in the
yard, saying that they were not up to standard and that
he, Kirby, had an individual meeting with Carter on this
subject. Short could not remember any such meeting.
Youmans testified that he did not make regular effi-
ciency reports on employees, but that he did make criti-
cal reports to Carter about the work of Kirby and Short
about I month before the layoffs. Youmans further testi-
fied that Carter told him to lay off Kirby and Short, al-
though the date of this instruction is not specified. The
layoffs took place on October 19, and Youmans' testimo-
ny concerning those events has been described above.
I credit Carter's and Youmans' testimony, partially
corroborated by Kirby, that Kirby and Short were criti-
cized by management about their work performance 3-4
weeks before their discharges on October 19. Further, I
accept as true Carter's testimony that Scott and Davis
told him on October 19 to reduce the size of the yard
department, and that Davis had said about the same
thing 2-3 days before that date. I also credit Youmans'
testimony that Carter told him to lay off Kirby and
Short.
Davis' testimony on the chronology of the alleged de-
cision to reduce the yard department, i.e., 3-4 weeks
before the discharges, is inconsistent with Carter's affir-
mation that this took place a few days before October
19. I reject Davis' testimony on this subject, and find
that the earliest mention of the alleged necessity to
reduce the yard department took place a few days before
the October 19 discharges, at a time contemporaneous
with Jones' talk with Carter about the chicken poster, on
October 15.
In summary, the work performance of Kirby and
Short was criticized by management 3-4 weeks before
their discharges, as was the work performance of other
employees, but company discussion about reduction of
the yard department did not take place until the advent
of the employee activity on behalf of the Union.
It is clear that the Company had knowledge of the em-
ployee activity because of Jones' conversations with
Carter on October 15, and with Davis on October 18.
Company knowledge of the identity of the union adher-
ents may be inferred from Scott's speech. Accordingly, I
find that the Company knew of Kirby's activities de-
scribed above, and that he was a supporter of the Union.
Because of the Company's animus against the Union
shown by the record, and because Kirby's discharge
took place within a few days of, or contemporaneously
with, the Company's discovery of his union sympathies
and activities, I infer that this factor, rather than the al-
leged necessity to reduce the employee complement in
the yard department, was the principal reason he was
discharged.
This inference is buttressed by the Company's actions
with regard to the Yard department at the Statler plant.
Asked by company counsel why the Company allowed
the Statler Yard department to go for "so long" with
four employees, General Superintendent Davis replied
that he was trying "to establish a better department . . .
to where we could pick through some people, maybe."
But Davis also testified in effect that the department was
raised from two to four employees in about the middle
of August, prior to any known company dissatisfaction
with the work of Kirby and Short. There is no evidence
in the record to explain the Company's failure to do the
same at its other two plants. Scott described the Statler
yard as "overstaffed," not as an experiment to get better
employees, and claimed that he noted this about 30 days
before the October 19 discharges; i.e., on or about Sep-
tember 19. Considering the testimony of Scott and Davis
together, the Company decided in the middle of August
to double its Statler yard staff in order to find better
people, but about 4 weeks later, prior to observation of
any employee deficiencies, decided to get rid of two of
the employees because the department was overstaffed.
This seemingly erratic corporate behavior supports the
inference that the Company's reason advanced for the
discharge of Kirby (and Short) is a pretext. If their work
performance warranted discharge and the department
was overstaffed, the Company has not adequately ex-
plained why it waited several weeks to discharge them.
When the actual date of discharge-immediately after
the advent of the union campaign-is taken into consid-
eration, the inference is compelling that the discharges
were related to this event rather than to work perform-
ance and departmental overstaffing. Kirby may have had
deficiencies as an employee, but the Company tolerated
them until he became an adherent of the Union. I find
that the actual reason for his discharge was his union ac-
tivity.
Although Kirby was active on behalf of the Union,
Short's participation consisted simply in listening to
Kirby talk about the Union during their rides to and
from work. The General Counsel urges that the Compa-
ny nonetheless discharged Short because of its belief that
she was actively engaged in the union movement. I con-
clude that this argument is meritorious. Short worked in
the same department with Kirby and, more particularly,
associated with him in the automobile rides-an associ-
ation with which the Company must have been familiar.
Under these circumstances, it would have been natural
for the Company to assume that Short shared the union
sympathies of, and joined in the activities of, a known
union supporter. The Company's opposition to the union
movement was strong, and its reasons for Short's dis-
charge, being the same as those given for the termination
of Kirby, are pretextual. Wanda Short, whose actual role
was rather passive, became involved in circumstances
which included an active union movement, and the Com-
pany's intense resistance to it. On similar evidence, the
Board has concluded that an employee "was swept into a
personnel action designed to retaliate against the Union's
display of strength . ." and that the discharge was mo-
tivated by "his assumed participation in unacceptable
group activity."5 A similar inference is warranted on the
facts in this case, and I find that Short's discharge was
motivated by the Company's belief that she was engag-
ing in activities on behalf of the Union. As with Kirby,
' Gulf. Wandes Corporation, 233 NLRB 772, 778 (1977).
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GUERDON INDUSTRIES 615
the Company did not consider any deficiencies she may
have had as sufficient reason to discharge her, and did
not do so until acquisition of its belief that she was a
union supporter.
4. The discharges of Merritt and Jones
Merritt and Jones were discharged on October 22, the
Monday following General Manager Scott's speech on
October 19. Merritt rode to work with two employees
who worked at company plants other than the Statler
plant. The car stalled on Monday morning, and Merritt
testified that both he and one of the other employees at-
tempted to call the Company, but could not get through.
Merritt was late for work, as were the other two em-
ployees according to Merritt.
Merritt and Scott agree that the former arrived at or
about 7:20 or 7:25 a.m. Scott had arrived at the Statler
plant about 7 a.m., and, a minute or so before Merritt's
arrival, "pulled" five or six timecards. Two of these
were Merritt's and Jones', and the others were cards of
employees who had left the Company the prior week,
but whose cards had not yet been removed. Scott was
standing by the timeclock when Merritt arrived, and
asked his name when Merritt began searching for his
card. Scott said that he told Merritt he had asked for a
"commitment" the prior Friday, that he assumed Merritt
did not want his job, and was therefore discharged.
According to Merritt, he told Scott that he tried to
call but could not get through, whereupon Scott told
him that he should have continued to call until he did
reach the plant. "In other words," Merritt replied, "I
should have stayed away from work and called until I
got [through], instead of just coming on to work?" Scott
replied in the affirmative, according to Merritt. Scott tes-
tified that he did not believe that Merritt had tried to
call, because the Company has "the largest switchboard
in Waycross," and Davis reported that he had not re-
ceived any calls. Merritt testified credibly that he had
previously been late, as much as half a day. He usually
called, but merely came in to work when he was just a
few minutes late. He had an "understanding" with the
foreman, who knew he did not have a car. Merritt testi-
fied that he attempted to get Davis and Carter to inter-
cede for him on the grounds that he was not normally
late, without success.
Merritt later went to the Vagabond plant for his
check, and there saw Scott leave a memo on a secre-
tary's desk stating that neither Merritt nor Jones should
be rehired without Scott's permission. Scott's office is at
the Vagabond plant.
Merritt testified that the two other employees with
whom he rode to work were also late that Monday, but
were not discharged. Davis denied that any other em-
ployees were late. I credit Merritt. Since he rode to
work with the other employees and was late himself, the
other employees could not have arrived on time.
The Vagabond plant needed an employee in "Final
Finish" in January 1980. Merritt testified that he applied
for the position with Plant Manager Garland Turner, and
the latter replied that he would let Merritt know through
another employee. According to Merritt, he was then
told to show up for work. Merritt arrived and worked
for a few minutes, but Davis told Turner that the Com-
pany could not hire Merritt because he had previously
been late for work. Turner then told Merritt that he
could not have the job.
Jones was also discharged by Scott a few minutes after
7 a.m. on October 22. According to Jones, he tried to
call to inform the Company that he would be late be-
cause of personal business, but the line was busy until
8:30 a.m., at which time he reached a secretary and left a
message. He later tried to get Carter on the phone, but
did not receive an answer.
According to Jones, he arrived at 12 o'clock noon on
October 22, could not find his timecard, and asked Davis
where it was. Davis replied that Scott had it, whereupon
Jones went to the Vagabond plant. He could not reach
Scott, but received a final paycheck from a secretary.
Seeing Davis again, Jones asked, "Does this mean I'm
fired?" Davis replied, "You called in late, didn't you?"
Jones returned to the Statler plant and appealed for his
job to Plant Foreman Carter. The latter advised Jones to
wait a few days before speaking to Scott, "because he's
kind of upset about the union thing."
Both Carter and Davis deny seeing Jones at all on Oc-
tober 22. According to Carter, Jones came in on October
23, and "didn't have a job." Asked how Jones discov-
ered this fact, Carter replied that "he found out when he
didn't have a time card in the rack." Asked whether
Jones said something to him, Carter initially replied, no,
and again gave a negative answer when asked whether
he had any discussion with Jones. Thereafter, in response
to a leading question, Carter testified that Jones asked
Carter to speak to Scott, and Carter replied that he
could not do that-Scott was firing him because he did
not report for work Monday and did not call in. Carter
denied making the statements attributed to him by Jones,
including the remark that Scott was upset about the
"union thing." Davis' testimony is similar to Carter's-
Jones did not show up or call in on October 22, but
came in on October 23 and asked for his job back.
It is incredible, as Carter initially testified, that Jones
would have found out that he was discharged without
saying anything to anybody about it. The fact that
Carter later corrected his testimony, in response to a
leading question, gives it less probative weight than
Jones' version. Jones' testimony is spontaneous and re-
plete with details which give it the ring of truth, whereas
the testimony of Carter and Davis is contrived. Jones'
testimony about trying to reach the plant by telephone
on October 22, without success, is supported by Merritt's
similar problems on the same day. I therefore credit
Jones' version of his discharge and his conversations
with Carter and Davis on October 22.
Jones had a checkered employment history with the
Company, and had been discharged and rehired at least
three times, because of absenteeism. Jones thought he
had a right to be off work for personal business, because
he "thought a lot" of the Company, "worked harder
than anybody . .. [and] pulled where some of them
wouldn't pull." Davis testified that he rehired Jones four
times because he liked him, and because he was a "real
good worker" when he was there.
GUERDON INDUSTRIES
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As with Kirby and Short, the Company offers employ-
ee deficiencies as the reason for the discharges of Merritt
and Jones. In the latter two cases, it was lateness on Oc-
tober 22, after Scott had asked all employees on October
19 to make a "personal commitment" to work harder
and bring the Statler plant up to the level of efficiency of
the other two plants.
The argument is faulty for several reasons. In the first
place, the evidence is not persuasive that the Statler
plant actually was less efficient than the Vagabond and
Diamond Trio plants. As previously noted, I credit Mer-
ritt's testimony that Scott had previously distributed a
memo congratulating the Statler employees because their
plant was the most profitable of all three of the Compa-
ny's plants. The Company submitted no documentary
evidence to support Scott's October 19 assertion that
Statler was less efficient. The matter thus comes down to
Scott's declaration of this as a fact, as against his own
memo saying the opposite. It is improbable that an em-
ployer would commend employees when commendation
was not due. On the other hand, Scott's statement on
October 19 is suspect because of the advent of the union
movement, Scott's obvious hostility to it, and his knowl-
edge that the union adherents worked at the Statler
plant. I therefore conclude that Scott's memo more prob-
ably reflects the truth, and that Statler was, at least, not
less efficient than the other plants.
This fact removes the Company's justification for
Scott's October 19 speech. If Statler was no worse than
Vagabond and Diamond Trio, then there was no point to
Scott's urging the Statler employees to greater efforts to
match the other plants. Scott testified that he made sub-
stantially the same speech at all three plants. If so, it is
pertinent to inquire why the two employees who were
late at those plants were not discharged. Scott replied to
this question by saying that he "did not commit to any
other plant . . . was not having problems with the other
factories . . . [and] couldn't have been in both places at
the same time." All this is meaningless if, as I conclude,
Statler was not less efficient than the other plants.
Without any rational business reason for the speech,
the only other explanation for it is the Company's animus
against the union movement. I conclude that it was this
fact which caused Scott to make his speech, and that he
decided to disguise his efforts to stop the Union by
making a "motivational appeal" for greater work from
his employees. He was aided in this tactic by the fact
that he had made a few speeches in the past to employ-
ees, and had discussed company problems and employee
benefits. Although his October 19 address to employees
did contain some references to business matters, these
served to cloak his other statements against the Union,
and his threats to employees who supported it.
It is true that both Merritt and Jones were late on the
Monday following Scott's call for a personal commit-
ment. The Company seized upon this as a reason for dis-
charge of both employees. Merritt was only a few min-
utes late, a fact which in the past had not even necessi-
tated a telephone call to his foreman. Scott's statement to
Merritt that he should have continued to call after get-
ting a busy signal, and should have remained away from
work until he did get through, is unreasonable. Scott
knew that Merritt was one of the union adherents, since
he said he knew the identities of the union supporters in
his speech, and his discharge of Merritt is clearly based
on that fact. The Company's continuing animus against
the Union is evidenced by the fact that it stopped the
Vagabond foreman from hiring Merritt in January 1980.
Although Jones was later than Merritt, and did not
arrive until noon, he also tried to call in. Jones had actu-
ally been absent on prior occasions following which he
was discharged. However, he was always rehired be-
cause he was a good worker, according to Davis, and
one who would do work that other people would not
do, according to Jones. The fact that the Company dis-
charged Jones only a few minutes after 7 o'clock on the
morning of October 22, and failed to rehire him despite
his appeals for his job to Carter and Davis, can only be
attributed to the Company's knowledge of his union ac-
tivities, and its aversion to those activities.
B. Legal Analysis and Conclusions of Law
I. Alleged 8(a)(1) violations
The credited evidence shows that the Company en-
gaged in wide-ranging interference with employee rights
in violation of Section 8(a)(1) of the Act. General Man-
ager Scott's speech to employees on October 19 con-
tained a variety of unlawful statements. His declaration
that he knew the identities of the union supporters and
intended to discharge them constituted an unlawful
threat and the creation of an impression of surveillance
of union activities. The offer of a $100 reward for the
names of employees posting union literature on company
walls was blatantly unlawful inducement of employees to
inform on their fellow employees. Scott's statement that
he did not have to keep the plant open, but could divert
orders to another plant, constituted a clearly implied
threat to close the plant in retaliation for the employees'
union activities, and was violative of the Act under well-
established law.6
It is also clear that Scott promised employee benefits
in the form of increased vacation rights and lighter
workloads through the hiring of additional personnel.
Although Scott had discussed employee benefits in prior
speeches, his offers in the October 19 speech were clear-
ly intended to be a reward for employee rejection of the
Union, in light of the timing of the offers immediately
subsequent to the advent of union activity, 7 and the
Company's manifest hostility to that activity. Scott's
combined statements that the Company and the employ-
ees did not need a union and that he was not going to
have one at Guerdon conveyed to his employees the
6 Although the threat of a plant closure was not alleged in the com-
plaint, it was a part of Scott's speech to employees and is "closely relat-
ed" to his other unlawful statements. International Assoetation of Bridge,
Structural and Ornamental Iron Workers, Local No. 433 (The Associated
General Contractors of California, Inc.), 228 NLRB 1420 (1977), enfd. 600
F.2d 770 (9th Cir. 1979).
7 N.L.R.B. v. Styletek. Division of Pandel-Bradford. Inc., 520 F.2d 275
(ist Cir 1975), enfg. 214 NLRB 736 (1974).
GUERDON INDUSTRIES 617
message that their activities on behalf of the Union were
futile. As such, those statements were unlawful.8
In addition, General Superintendent Davis' asking
Jones whether he had anything to do with the Union
constituted unlawful interrogation under well-established
law. Further, Foreman Carter's statement to Jones and
other employees that they could be fired, after they
showed him a union poster, could reasonably be inter-
preted as proscribing mere possession of union literature,
and as such was unlawful. Carter's order to Jones and
other employees not to communicate with fellow em-
ployees about union affairs, and/or not to show them the
chicken poster, was the oral promulgation of a rule for-
bidding all solicitation and/or distribution on behalf of
the Union on company property, without exception. As
such, it was an overly broad rule interfering with the
employees' Section 7 rights. 9
2. Alleged 8(a)(3) violations
Applying the Board's recently enunciated rules for de-
termination of unlawful motivation in 8(a)(3) cases,' it
is clear that the General Counsel has established a prima
facie showing sufficient to support an inference that pro-
tected conduct engaged in by Kirby, Jones, and Merritt,
and the Company's belief in such conduct by Short, was
a motivating factor in the Company's decision to dis-
charge these employees. Although the Board's rule
speaks only of a showing that "protected conduct" was a
factor' an extension of the rule to employer belief in
such conduct is no more than a reiteration of established
Board law that a discharge based on an employer's mis-
taken belief that the employee was engaged in concerted
activity is violative of Section 8(a)(3). 12
Under Wright Line, the General Counsel's establish-
ment of a prima facie case herein shifts the burden to the
Company to demonstrate that all four employees would
have been discharged even if they had not engaged in
protected activity, or, in Short's case, if the Company
had not believed her to be so engaged. The Company
has not sustained that burden. Each employee discharged
had engaged in union activity, or was believed by the
Company to have done so.
Merritt had previously been late a few minutes with-
out calling in, and simply went to work. He had an un-
derstanding with his foreman, who knew that Merritt did
not have his own car. The only thing different that Mer-
ritt did in this case is to engage in union activity. It is
clear that he would not have been discharged if he had
not done so.
Jones had been discharged several times previously,
but for absenteeism rather than lateness. Even without
this distinction, it is clear that the Company rehired him
on each occasion because he was a good worker and was
s Hanover Concrete Co., 241 NLRB 936 (1979)} Hamilton Avnet Elec-
tronics, 240 NLRB 781 (1979); Fern Laboratories. Inc.. 240 NLRB 487
(1979).
P Lance, Inc., 241 NLRB 655 (1979); Roney Plaza Apartments, 232
NLRB 409 (1977). enfd. as modified 597 F.2d 1046 (5th Cir. 1979).
'o Wright Line. a Division of Wright Line. Inc., 251 NLRB 146 (1980).
" Ibid.
'2 Metropolitan Orthopedic Associates. P.C., 237 NLRB 427 (1978): see
also Southern Plasma Corporation, 242 NLRB 1223 (1979); Sevakis Ildus-
tries. Inc., 238 NLRB 309 (1978); Gulf-Wandes Corporation. supra. fn. 5.
liked by management. It has not done so in this case, de-
spite Jones' appeal for his job, and the Company's depar-
ture from prior practice must be attributed to Jones' ac-
tivity on behalf of the Union.
In the cases of Kirby and Short, 3 there is some evi-
dence of company dissatisfaction with their work per-
formance in the yard department. On the other hand,
there is also evidence of company dissatisfaction with the
work of other employees in that department. Whatever
the Company's comparative rating of all such employees,
the credited evidence shows that the Company's decision
to reduce the yard department by discharging the alleg-
edly two worst employees was not made until after the
beginning of the employees' union activities. Moreover,
the Company's decision first to double the employee
complement in the yard department in August, and then
to reduce it a few weeks later by firing two employees,
remains unexplained. The inference is compelling that,
after the advent of the employees' union activities, and
the Company's knowledge of identity of the union adher-
ents (according to Scott's speech), the Company fabricat-
ed a plan to provide an apparent business reason for the
discharges. In the cases of Kirby and Short, it attempted
to predate its allegedly impartial business decision, to
reduce the yard department, to a time prior to the em-
ployees' union activities. The Company has not sustained
its burden of showing that, absent such activity, it would
have discharged Kirby and Short. On the contrary, its
delay in making its claimed business decision and in se-
lecting Kirby and Short as the employees to be dis-
charged, until after the employees' union activities,
strongly suggests that they would still be working absent
such activities.
Inasmuch as the Company has not met its burden as
described above, and the General Counsel has estab-
lished that the employees' protected activities, or the
Company's belief in such activities, is causally related to
their discharges, the latter come within the proscription
of the Act.' 4
The Company argues that it had no knowledge of the
employees' union activities. This contention is clearly
wrong as the credible evidence shows. The Company
also argues that it did not know the name of the union
involved. This contention is irrelevant.
In accordance with my findings above, and upon con-
sideration of the entire record, I make the following:
CONCLUSIONS OF LAW
I. Guerdon Industries is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The United Rubber, Cork, Linoleum, and Plastic
Workers of America is a labor organization within the
meaning of Section 2(5) of the Act.
1a Although a distinction might be raised between the cases of Jones
and Merritt on the one hand, and Kirby and Short on the other, on the
ground that the former are pretext cases and the latter dual motive pro-
ceedings, the Board's Decision advises us that the perceived significance
between such cases will be obviated by its new ruling (supra, fn. 10).
14 Supra. fn. 10
GUERDON INDUSTRIES
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By engaging in the following conduct, the Company
committed unfair labor practices in violation of Section
8(a)(l) of the Act:
(a) Telling employees that the Company knew the
identities of union supporters.
(b) Telling employees that the Company intended to
discharge the union supporters.
(c) Promising its employees benefits such as greater
vacation rights and lightened workloads, in return for
employee rejection of the Union or refusal to engage in
union activities.
(d) Interrogating employees as to their union activities.
(e) Threatening employees with closure of the plant in
retaliation for the employees' union activities.
(f) Creating an impression that the employees' union
activity was futile, by telling them that they and the
Company did not need a union, and that the Company
would not have a union.
(g) Telling employees that possession of union litera-
ture on company property would result in their being
discharged.
(h) Telling employees that they were not to speak to
other employees about the Union or show them union
literature, at any time or at any place on company prop-
erty.
(i) Offering employees a monetary reward for the
names of other employees who posted union literature in
the plant.
4. By discriminatorily discharging the following-named
employees on the dates indicated opposite their names,
and by thereafter failing and refusing to reinstate them,
the Company has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act:
amount he or she would have earned from the date of
his or her unlawful discharge to the date of an offer of
reinstatement, less net earnings during such period, with
interest thereon to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).
Because the Company's widespread unfair labor prac-
tices go to the very heart of the Act, and are sufficiently
egregious in nature so as to demonstrate a disregard for
its employees' fundamental statutory rights, I shall rec-
ommend an order requiring it to cease and desist from in
any other manner infringing upon such rights.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, I recommend the following:
ORDER '5
The Respondent, Guerdon Industries, Waycross,
Georgia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discouraging membership in the United Rubber,
Cork, Linoleum, and Plastic Workers of America, or any
other labor organization, by unlawfully discharging any
of its employees or discriminating against them in any
other manner with respect to their hire or tenure of em-
ployment, in violation of Section 8(a)(3) of the Act.
(b) Telling its employees that it knows the identities of
union supporters among its employees.
(c) Telling its employees that it intends to discharge
union supporters.
(d) Promising its employees benefits in return for their
rejection of a union or their refraining from engaging in
union activities.
(e) Interrogating employees as to their union activities.
(f) Threatening its employees with closure of its plant
in retaliation for their union activities.
(g) Creating an impression that its employees' union
activities are futile, by telling them that they and the
Company do not need a union and that the Company
will not have a union, or in any other manner.
(h) Telling employees that possession of union litera-
ture on company property will result in their being dis-
charged or in any other manner disciplined.
(i) Telling employees that they are not to speak to
other employees about unions or show them union litera-
ture, at any time or at any place on company property.
(j) Offering employees monetary or other rewards for
the names of other employees engaged in union activi-
ties.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
'5 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
Gerald Kirby
Wanda Short
J. B. Merritt
Robert Jones
October 19, 1979
October 19, 1979
October 22, 1979
October 22, 1979
5. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Company has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act. It having been found that the Company unlaw-
fully discharged Gerald Kirby and Wanda Short on Oc-
tober 19, 1979, and J. B. Merritt and Robert Jones on
October 22, 1979, in violation of Section 8(a)(3) and (1)
of the Act, it is recommended that the Company be or-
dered to offer the foregoing employees immediate and
full reinstatement to their former positions or, if such po-
sitions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges, dismissing if necessary any employee
hired on or since October 19, 1979, to fill any of said po-
sitions, and to make said foregoing employees whole for
any loss of earnings any of them may have suffered by
reason of the Company's acts herein described, by pay-
ment to each of them a sum of money equal to the
------- __
GUERDON INDUSTRIES 619
(a) Offer Gerald Kirby, Wanda Short, J. B. Merritt,
and Robert Jones immediate and full reinstatement to
their former positions or, if any such position no longer
exists, to a substantially equivalent position, without prej-
udice to his or her seniority or other rights and privi-
leges, discharging if necessary any employee hired to re-
place any of them, and make them whole for any loss of
pay any of them may have suffered by reason of the
Company's unlawful discharge of him or her, in accord-
ance with the recommendations set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at each of its plants in Waycross, Georgia,
copies of the attached notice marked "Appendix. ""'
16 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by the
Company's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Company has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."