Gulf States Manufacturers, Inc.

National Labor Relations Board - Board Decisions

May 13, 1982

261 N.L.R.B. 852 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf States Manufacturers, Inc. and International
Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers, and Helpers, Local
692. Case 26-CA-8382
May 13, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 30, 1981, Administrative Law Judge
William N. Cates issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,i and conclusions of the Administrative Law
Judge, to the extent consistent herewith, and to
adopt his recommended Order, as modified herein.
1. The circumstances surrounding the meeting at
which employee Vincent Scott was disciplined are
set forth in detail in the Administrative Law
Judge's Decision and need not be fully repeated
herein. On or about February 11, 1980, Scott expe-
rienced back pain, ostensibly as a result of lifting
pallets at Respondent's facility. Scott testified that
Respondent's physician gave him medication which
made him dizzy and unable to perform certain
work assigned to him. On February 13, Scott re-
ceived a written warning from Respondent for fail-
ing to perform assigned work. Thereafter, Scott
left the plant without performing additional as-
signed work and Respondent's Production Man-
ager Schwichtenberg discussed Scott's conduct
with Supervisor Nettie Grayer. Schwichtenberg in-
structed Grayer to write up a warning for Scott,
which she did. On the following morning, Supervi-
sor Wayne Eaves informed Scott that he was
wanted in Schwichtenberg's office. Scott told
Eaves that he wanted Ed Thompson, the union
president, to accompany him to the office. Eaves
told Scott he could not have Thompson with him
I The General Counsel 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 re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces 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 re-
versing his findings
261 NLRB No. 119
"because the company was not bargaining with the
Union." 2
Upon entering the office, Scott was informed
that his failure to remain at the plant and perform
assigned work had cost Respondent money, since
his absence caused three employees to be idle.
Schwichtenberg told Scott that he was, therefore,
being given a written reprimand. Scott responded
that he knew why Schwichtenberg was doing this
and that it was because of recent events at the
plant. Scott was apparently referring to the decerti-
fication election on February 7, which was won by
the Union. 3 Schwichtenberg replied that this was
not the reason. Scott further told Schwichtenberg
that he did not remain at the plant because he had
left his medication at home and that he had so in-
formed three fellow employees. Schwichtenberg
then asked Scott why he had not gone to Hugh
Thaxton, his immediate foreman. Scott replied that
he had already "had some words" with Thaxton
earlier that day and that he did not see Eaves or
Supervisor Grayer at the time so he just told the
three employees.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(l) of the Act
by denying Scott a representative when it met with
him, since the meeting was solely for the purpose
of informing him of and acting upon its previously
made decision to discipline him. We do not agree.
Regardless of Respondent's original purpose for the
meeting, its conduct in discussing Scott's actions
with him and questioning him concerning his rea-
sons for failing to inform Foreman Thaxton of his
departure went "beyond merely informing the em-
ployee of a previously made disciplinary decision"
and thus the protections accorded under Weingar-
ten4 were applicable. 5 Respondent's conduct con-
stituted more than merely a conversation concern-
ing its reasons for the previously determined disci-
pline. Rather, Respondent delved further into the
circumstances surrounding Scott's justification for
his conduct and, in effect, sought further facts in
support of its action against Scott. Thus, Respond-
ent's conduct removed this meeting from the
narrow holding of Baton Rouge Water Works Com-
pany,6 and, accordingly, a right to union represen-
tation attached. 7
2 The Administrative Law Judge correctly found that Scott reasonably
believed that disciplinary action might result from this meeting and that
Scott had requested and been denied a union representative.
3 There is no allegation that Scott was disciplined because of any
union activity.
4 N.L.R.B. v. J Weingarten. Inc, 420 U.S. 251 (1975).
5 Baton Rouge Water Works Company, 246 NLRB 995 (1979).
61d.
7 Although Member Fanning agrees with his colleagues that Respond-
ent's conduct violated Sec 8(aXI), he does so for the reasons set forth in
Continued
852
GULF STATES MANUFACTURERS, INC.
With respect to a remedy for the 8(a)(1) viola-
tion, however, we find nothing in the record to
warrant the conclusion that Respondent's decision
to discipline Scott with a written warning was
based on any information it obtained in the unlaw-
ful interview. The only information obtained by
Respondent from its interview with Scott was
Scott's explanation as to the reasons why he did
not notify any of Respondent's supervisors that he
was leaving the plant. The record reveals that Re-
spondent had already decided to discipline Scott
for failing to perform assigned work and for leav-
ing the plant and there is no indication that Re-
spondent decided to discipline him because it con-
sidered his explanation to be unsatisfactory. 8
Rather, the evidence shows that, in disciplining
Scott, Respondent "relied solely on information ob-
tained prior to the unlawful interview rather than
anything obtained therein."9 Accordingly, we will
not order a "make-whole" remedy,'° but shall pro-
vide our traditional cease-and-desist order to
remedy Respondent's 8(a)(1) violation. 'I
2. The Administrative Law Judge further found,
and we agree, that Respondent violated Section
8(a)(5) and (1) of the Act by failing to bargain with
the Union over its decision to lay off a number of
employees on March 10 and April 8, 1980. Howev-
er, he failed to recommend as part of the remedy
any backpay for those employees affected by the
layoffs. We find merit in the General Counsel's
contention that the Administrative Law Judge
erred in failing to recommend a backpay remedy.
In our view, Respondent's failure to bargain prior
to the layoffs can be fully remedied only by resto-
ration of the status quo ante. Although the layoffs
may have been economically motivated, had Re-
spondent met its statutory responsibility to notify
the Union of the action contemplated and to bar-
gain over the decision, the employees laid off clear-
ly would have been employed until completion of
the bargaining.' 2 Accordingly, we shall order a
his dissenting opinion in Baton Rouge Water Works Company. supra. In
Member Fanning's opinion, a Weingarten right attached when Respond-
ent engaged in a discussion with Scott concerning his conduct and ques-
tioning him, thus converting what may have originally been intended as
an announcement of disciplinary action into an interview. Compare
Texaco, Inc., 251 NLRB 633 (1980) (then-Chairman Fanning and Member
Penello concurring).
s Compare Ohio Masonic Home, 251 NLRB 606 (1980).
9 Coyne Cylinder Company, 251 NLRB 1503 (1980).
'O Since the employee involved herein received only a disciplinary
warning, our finding that a "make-whole" remedy is inappropriate pre-
cludes revocation of the disciplinary warning and expunction of all disci-
plinary records.
11 Kraft Foods, Inc., 251 NLRB 598 (1980). Member Jenkins would
order a "make-whole" remedy in this case for the reasons set forth in his
dissenting opinion in Kraft Foods Inc.
1a Amsterdam Printing and Litho Corp., 223 NLRB 370 (1976), enfd.
559 F.2d 188 (D.C Cir 1977)
backpay remedy for any loss of earnings from the
date of the layoffs until the date the obligation to
bargain is met, in the manner more fully set forth
below.
AMENDED REMEDY
Having found that Respondent violated Section
8(a)(1) of the Act by denying employee Vincent
Scott's request for a union representative at an in-
terview which he reasonably believed might result
in disciplinary action, we shall order that Respond-
ent cease and desist from engaging in such unlaw-
ful conduct.
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by laying off employees
without notice to or bargaining with the Union, we
shall order Respondent upon request to bargain
with the Union concerning the layoffs of employ-
ees on March 10 and April 8, 1980. We shall fur-
ther order that Respondent make whole those em-
ployees laid off on those dates by paying them
their normal wages from the date of their layoff
until the earliest of the following conditions are
met: (1) Mutual agreement is reached with the
Union relating to the subjects about which Re-
spondent is required to bargain; (2) good-faith bar-
gaining results in a bona fide impasse; (3) the fail-
ure of the Union to commence negotiations within
5 days of the receipt of Respondent's notice of its
desire to bargain with the Union; or (4) the subse-
quent failure of the Union to bargain in good
faith. 1 3 Backpay shall be based on the earnings
which these employees normally would have re-
ceived during the applicable period, less any net in-
terim earnings, and shall be computed in the
manner set forth in F. W. Woolworth Company,'4
with interest thereon computed in the manner set
forth in Florida Steel Corporation. 5
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, as modi-
fied below, and hereby orders that the Respondent,
Gulf States Manufacturers, Inc., Starkville, Missis-
sippi, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
is See, e.g., National Family Opinion. Inc., 246 NLRB 521 (1979)
14 90 NLRB 289 (1950).
,5 231 NL.RB 615 (1977) See, generally. Isis Plumbing d Heating Co..
138 NLRB 716 (1962) In accordance with his dissent in Olympic Medical
Corporation, 250 NLRB 146 (1980), Member Jenkins would award inter-
est on the backpay due based on the formula set forth therein
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Insert the following as paragraph l(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Denying to any employee, upon request, the
presence and assistance of his or her union repre-
sentative at an interview which the employee rea-
sonably believes may result in disciplinary action."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Make whole those employees laid off on
March 10 and April 8, 1980, for any loss of pay
suffered as a result of its unlawful conduct in the
manner set forth in that portion of the Board's De-
cision entitled 'Amended Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
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,
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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT deny to any employee, upon
request, the presence and assistance of his or
her union representative at an interview which
the employee reasonably believes may result in
disciplinary action.
WE WILL NOT refuse to bargain in good
faith with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forg-
ers, and Helpers, Local 692, as the exclusive
representative of the employees in the unit de-
scribed below, concerning the rates of pay,
hours of employment, and other terms and
conditions of employment.
WE WILL NOT, without adequate timely
notice to and consultation with the Union, lay
off bargaining unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain in good
faith with International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forg-
ers, and Helpers, Local 692, in the unit de-
scribed below with respect to rates of pay,
wages, hours of employment and other terms
and conditions of employment and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement:
All production and maintenance employees,
plant clerical employees, full-time and regu-
lar part-time truck drivers and leadmen em-
ployed at the Employer's Starksville, Missis-
sippi location, but excluding all office cleri-
cal employees, draftsmen, guards and super-
visors as defined in the Act.
WE WILL make whole those employees laid
off on March 10 and April 8, 1980, for any
loss of pay suffered as a result of our unlawful
conduct in the manner set forth in that part of
the Board's Decision entitled "Amended
Remedy."
GULF STATES MANUFACTURERS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: A
hearing with respect to this matter was held at Stark-
ville, Mississippi, on November 5 and 6, 1980. The
charge herein was filed by International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers,
and Helpers, Local 692, hereinafter called the Union or
the Charging Party, on April 14, 1980. A complaint and
notice of hearing issued on May 30, 1980; an amendment
to the complaint and notice of hearing issued on October
1, 1980; and the complaint was further amended on No-
vember 5, 1980. The complaint and amendments thereto
allege that Gulf States Manufacturers, Inc., hereinafter
called Respondent or Employer, violated Section 8(a)(l)
of the National Labor Relations Act, hereinafter called
the Act, through various acts of interference, restraint,
and coercion of its employees by its supervisors and
agents, and that Respondent violated Section 8(a)(1) of
the Act by denying its employee Vincent Scott the right
to have a union representative present during an inter-
view in which the employee could reasonably have ex-
pected disciplinary action, and that Respondent violated
Section 8(a)(5), (3), and (1) of the Act by discontinuing
without notice to the Union a past practice of granting
wage increases to its employees without having afforded
the Union an opportunity to negotiate and bargain with
respect thereto, and finally that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it laid off certain
employees on March 10 and April 8, 1980, without
854
GULF STATES MANUFACTURERS, INC.
notice to or bargaining with the Union with respect to
the layoffs and/or the effects thereof. Respondent filed
timely answers to the complaint and amendments thereto
in which it denied having violated the Act.
All parties appeared at the hearing and were afforded
full opportunity to present oral and written evidence and
to examine and cross-examine witnesses. Upon the entire
record,' together with careful observation of the demea-
nor of the witnesses, and consideration of briefs filed by
counsel for the General Counsel and counsel for Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation licensed to do business in
the State of Mississippi with an office, plant, and place of
business located in Starkville, Mississippi, where it is en-
gaged in the manufacture of metal buildings. During the
12-month period preceding issuance of the complaint and
notice of hearing herein Respondent sold and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Mississippi. The
complaint alleges, Respondent admits, and I find that it is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALt lEGED UNFAIR I.ABOR PRACTICES
A. Background
On September 12, 1975, a majority of Respondent's
production and maintenance employees2 designated and
selected the Union as their bargaining representative in a
secret-ballot election conducted by Region 26 of the Na-
tional Labor Relations Board, hereinafter the Board. On
November 11, 1975, the Union was certified by the
Board as the exclusive bargaining representative of the
employees in an appropriate bargaining unit.3 On No-
1 Counsel for the General Counsel's unopposed motion to correct the
official transcript is hereby granted.
2 A full description of the bargaining unit is:
All production and maintenance employees, plant clerical employees,
full-time and regular part-time truck drivers, and leadmen employed
at Respondent's Starkville, Mississippi plant. Excluded: All office
clerical employees, draftsmen, guards, and supervisors as defined in
the Act.
a Respondent at the hearing requested and I have taken judicial notice
of the Fifth Circuit Court of Appeals' Decision in Gulf States Manufac-
turers, Inc. v. NL.R.B., 579 F.2d 1298 (5th Cir. 1978), affd. in pertinent
part en banc 101 LRRM 2805 (1979), wherein certain facts of that ca.,e,
by way of background with respect to the case at bar, were as follows:
Negotiations following the Certification of Representative on November
11, 1975, did not result in a contract, but rather culminated in a bargain-
ing impasse. The Union on February 14, 1976, commenced a 6-day strike
that the circuit court of appeals determined swas economic in nature. The
circuit court also determined there was a lack of substantial evidence to
support the Board's findings in Gulf States 5.fanufacturers Inc., 210
NLRB 558 (1977), that Respondent had failed to bargain in good faith in
violation of Sec 8(a}(5) and (I) of the Act Specifically, the circuit court
vember 9, 1978, a petition was filed with the Board's
Memphis Regional Office in Case 26-RD-423. An elec-
tion was conducted by the Board on February 7, 1980.
Following objections being filed to the conduct of the
election by the petitioner and the issuance of a Regional
Director's Report on Objections, the Board issued a De-
cision and Certification of Representative on August 4,
1980, in which the Union was again certified as the rep-
resentative of employees in an appropriate unit of Re-
spondent's employees, being the same unit as previously
described in footnote 2 of this Decision.
B. The Alleged Violations of Section 8(a)(1) of the Act
The General Counsel in his complaint alleges Re-
spondent violated Section 8(a)(1) of the Act in various
respects during the period extending from on or about
January 24, 1980, to on or about May 15, 1980. Unlawful
conduct is attributed to Plant Manager Jim Nixon and
Supervisors Wayne Eaves and Jerry Ellington. Respond-
ent by its answer admitted the supervisory status of each
of the above-listed individuals and accordingly I find
that each of the named individuals was a supervisor
within the meaning of the Act at all times material to the
complaint herein. 4 The specific complaint allegations are
summarized and discussed below.
I. The alleged denial of a union representative to an
employee
Paragraph 7 of the complaint alleges that on or about
February 14, 1980, Respondent denied its employee Vin-
cent Scott the right to have a union representative
present during an interview in which Scott could reason-
ably have expected disciplinary action to result. Para-
graph 7 of the complaint further alleges that Respondent
told employee Scott that he could not have a union rep-
resentative present during an investigatory interview be-
cause Respondent was not bargaining with the Union.
Counsel for the General Counsel relies upon the testi-
mony of employee Scott to establish the violation.
Scott had been a sheet metal department employee of
Respondent under the supervision of Supervisor Eaves
from September 1976 until he was laid off at Respondent
on June 16, 1980. There is no allegation of any unlawful
conduct with respect to Scott's layoff. Scott served as
vice president of the Union from July 1978 until his
layoff in June 1980.
Scott testified that Respondent had a progressive
system of discipline in which an employee who had re-
concluded that the record evidence did not support the Board's conclu-
sions and findings (1) that the strike was an unfair labor practice strike;
(2) that the wage increase by the Company violated Sec 8(a)5) of the
Act; (3) that the failure of the Company to discharge replacement em-
ployees and reinstate strikers was a violation of Sec. 8(a)3) and (1) of the
Act; and (4) that the strkers were entitled to be reinstated to their former
p'siitions without prejudice to their rates of pay, compensation, or other
losses
4 'he parties stipulated at the hearing that Nettie Grayer was a super-
visor within the meaning of the Act There was no issue with respect to
the supervisory status of Production Manager Jerry Schwichtenberg.
Small Parts Supervisor Jerry Ellington, and Director of Employee Rela-
lions loim Zeppelin; accordingly, I conclude and find that at all times
material herein they were supervisors of Respondent within the meaning
of the Act
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived two written warnings was terminated upon re-
ceipt of a third written warning. Scott was given two
written warnings by Respondent over a 2-day period of
time on or about February 13 and 14, 1980. Although
the validity or the sufficiency of the grounds upon which
the written warning notices were founded is not before
me, it is necessary to state the surrounding facts briefly
in order to understand the context in which the alleged
denial of a representative to Scott arises.
On or about February 11, 1980,5 Scott developed back
pains allegedly as a result of lifting pallets from a table at
Respondent. Scott testified that he was told by his imme-
diate foreman, Hugh Thaxton, to consult with Director
of Employee Relations Zeppelin about his injury. Scott
was first directed to see a chiropractor and later directed
to see Respondent's doctor. According to Scott, he was
given medication which made him dizzy. Scott was as-
signed a job which he did not feel he should do because
of his being dizzy. As a result of Scott's not doing the
assigned job, he was given a written warning. Subse-
quent to the first written warning, Scott did not perform
other assigned work.
The following day, February 14, 1980, Supervisor
Eaves told Scott he was wanted in Production Manager
Schwichtenberg's office. Scott testified that on the way
to Schwichtenberg's office with Supervisor Eaves," I
asked Wayne Eaves, my supervisor-my foreman, that I
wanted Ed Thompson with me in the office. " 6 Accord-
ing to Scott, Supervisor Eaves told him, ". . . I could
not have Ed Thompson with me because Ed Thompson
was not recognized as a member of the bargaining com-
mittee because the Company was not bargaining with the
Union." Scott at that time asked Supervisor Eaves if he
was denying him his rights, and Eaves shook his head 7
as the two entered Schwichtenberg's office. According
to Scott, those present in the office in addition to
Schwichtenberg and himself were Irvin Pargon8 and Su-
pervisors Nettie Grayer and Wayne Eaves.
Upon entering the office, Schwichtenberg told Scott
that he had instructed Supervisor Grayer to write Scott
a disciplinary warning because he failed to work for
Grayer the day before. Schwichtenberg told Scott that
his failure to remain present at Respondent's plant and to
perform assigned work had cost the Respondent money
and that Scott's absence caused three employees to be
idle; for these reasons he was being given a written repri-
mand.
Scott testified he responded to Schwichtenberg by
stating he knew why Schwichtenberg was doing this,
that it was because of recent events taking place in the
plant. According to Scott, Schwichtenberg told him it
was not. Scott told Schwichtenberg that Respondent
Scott was never able to be precise as to specific dates; however, I do
not find the minor date discrepancies in Scott's testimony to detract from
his credibility or to affect the issue of a denial of a representative to
Scott.
6 As will be set forth elsewhere in this Decision. Thompson was the
president of Local 692 of the Union
7 The record does not reflect which way Eaves shook his head; how-
ever, it is not essential to know whether Eaves' indication was affirmative
or negative.
s At the time of the Scott interview in Schwichtenberg's office, Irvin
Pargon was a structural superintendent for Respondent.
may as well fire him at that time because he would be
fired anyway in that this was two written reprimands he
had received and that the next one would terminate him.
Scott testified that he then told Schwichtenberg the
reason he did not remain at Respondent's plant or per-
form the work assigned. Scott told Schwichtenberg he
had informed three fellow employees, namely Roy
Brown, Roosevelt Tate, and Lexie Tate, that he would
not be able to work because he had left his medication at
home. Scott also told Schwichtenberg that he was fed up
with Respondent and Respondent's foremen, and that he
was ready to go home at the time of the assigned work
he did not perform. Scott testified Schwichtenberg asked
him at this point, "How come I didn't go to Hugh Thax-
ton?" 9 Scott told Schwichtenberg that he did not go to
Thaxton because he and Thaxton had already had some
words earlier that day, and that he did not see Supervi-
sor Eaves at the time. Scott testified that he told
Schwichtenberg he (Scott) did not say anything to Su-
pervisor Grayer, the supervisor for the work he was to
have performed, because she did not pass through the
department where he was. Scott told Schwichtenberg he
simply informed his three fellow employees he was leav-
ing his assigned work.
Schwichtenberg testified that on February 13, 1980, he
discussed with Supervisor Grayer employee Scott's con-
duct and instructed Supervisor Grayer to write a warn-
ing notice for employee Scott. The actual warning notice
was issued to Scott on February 14, 1980. The February
14 disciplinary warning was received in evidence as Re-
spondent's Exhibit 1. Schwichtenberg testified the notice
was prepared by Grayer and given to him on the morn-
ing of February 14, 1980, prior to his (Schwichtenberg's)
meeting with employee Scott. Schwichtenberg stated
that when Scott came into the room he asked Scott to sit
down across from him with his desk being between
them. According to Schwichtenberg, he offered the pre-
viously prepared employee warning notice to Scott and
Scott refused to sign it. Schwichtenberg testified that at
no time during the meeting with Scott did Scott ask for
Ed Thompson to be present.
According to Schwichtenberg, after employee Scott
refused to sign the warning he (Scott) then commenced
to tell Schwichtenberg why he did not report for his as-
signed work the previous day. Schwichtenberg told
Scott of the consequences of his action which resulted in
the written warning and that Scott's action had caused a
delay in production, had wasted man-hours and cost Re-
spondent money. According to Schwichtenberg, after
Scott refused to accept the warning and following
Schwichtenberg's explanation to Scott about the warn-
ing, Scott told Schwichtenberg, "Well, I was so fed up
yesterday. I told some people to tell Nettie or something
like that or to that effect." Schwichtenberg stated Scott
did most of the talking describing why he did not work.
Schwichtenberg acknowledged that he told Scott at that
time that he had two written warnings and that the ac-
tions that Scott had taken the last couple of days were
just leading to a disciplinary problem, and that Scott was
I Hugh Thaxton was Scott's immediate foreman; Thaxton reported to
Supervisor Eaves.
856
GULF STATES MANUFACTURERS, INC.
getting close to the point of becoming discharged with
one more written warning. According to Schwichten-
berg, Scott stated, "I guess that's it then," and got up
and left. Schwichtenberg specifically denied that he
asked employee Scott why he did not contact Foreman
Thaxton or Supervisors Eaves or Grayer.
Scott appeared to be a credible witness worthy of
belief. Moreover, it seems very probable from the uncon-
troverted and admitted portions of the conversation be-
tween Scott and Schwichtenberg at the interview that
Schwichtenberg did in fact ask employee Scott why he
did not contact his foreman, Thaxton, regarding his ab-
sence. Schwichtenberg had explained to Scott the grav-
ity of the acts that Scott had committed, and Scott had
volunteered his version of the events to Schwichtenberg.
Accordingly, I specifically credit Scott's testimony that
Schwichtenberg asked him why he had not contacted
Thaxton, and I discredit Schwichtenberg's testimony to
the contrary with respect to this specific incident.
I credit the testimony of Scott that he asked Supervi-
sor Eaves to have Ed Thompson present with him at the
meeting. Supervisor Eaves was not called by Respondent
to testify. It is undisputed that at the time Scott asked for
Ed Thompson to be present with him he had received a
disciplinary warning the previous day. I therefore con-
clude and find that Scott in fact believed that disciplin-
ary action would be taken against him at the interview
on February 14, 1980. I further conclude and find that
the request by Scott to have Thompson present with him
was sufficient to invoke if otherwise required the right to
representation as outlined in N.L.R.B. v. J. Weingarten,
Inc., 420 U.S. 251 (1975), in that Ed Thompson was
known both to Respondent and its supervisors as the
president of the Union. The request for Thompson was
equivalent to a request for union representation. See
Southwestern Bell Telephone Company, 227 NLRB 1223
(1977).
The meeting of Respondent with employee Scott on
February 14, 1980, raises a question as to whether Re-
spondent violated the Act by refusing to allow Scott to
have a union representative at the meeting. An employee
has a Section 7 right upon request to have a union repre-
sentative present during an interview that the employee
reasonably believes could result in disciplinary action.
This Section 7 right was enunciated by the Supreme
Court in Weingarten, supra. The United States Supreme
Court in Weingarten addressed itself to whether an em-
ployer may deny a request for union representation in in-
vestigatory interviews. The Supreme Court did not spe-
cifically address itself to the situation where an employer
denies an employee union representation during a disci-
plinary interview. The Board held in Certified Grocers of
California, Ltd., 227 NLRB 1211 (1977), that an employ-
ee had a right to union representation at a meeting where
the employee was notified of disciplinary action taken
against the employee and that the employer could not re-
quire an employee to attend the meeting while at the
same time refusing the employee's request for union rep-
resentation. The Ninth Circuit Court of Appeals denied
enforcement in Certified Grocers of California, Ltd., 587
F.2d 449 (1978).
The Board reviewed its decision in Certified Grocers of
California Ltd., in its decision in Baton Rouge Water
Works Company, 246 NLRB 995 (1979), wherein it held
that Certified Grocers of California, Ltd. had been
wrongly decided on its facts and overruled their decision
therein. In Baton Rouge Water Works Company, supra at
997, the Board held:
In Certified Grocers the Board concluded that the
Supreme Court's decision in Weingarten applied to
any interview, whether labeled investigatory or dis-
ciplinary, which the employee reasonably believes
may result in disciplinary action being taken against
him. The United States Court of Appeals for the
Ninth Circuit denied enforcement of the Board's
Order, as in its opinion Weingarten did not require a
right to representation when the purpose of the in-
terview was merely to inform the employee that he
was being disciplined. We have reexamined our de-
cision in Certified Grocers and now think that the
case was wrongly decided on its facts. To that
extent, it is hereby overruled. We now hold that,
under the Supreme Court's decision in Weingarten,
an employee has no Section 7 right to the presence
of his union representative at a meeting with his
employer held solely for the purpose of, informing
the employee of and acting upon, a previously made
disciplinary decision.
We stress that we are not holding today that
there is no right to the presence of a union repre-
sentative at any "disciplinary" interview. Indeed, if
the employer engages in any conduct beyond
merely informing the employee of a previously
made disciplinary decision, the full panoply of pro-
tections accorded the employee under Weingarten
may be applicable. Thus, for example, were the em-
ployer to inform the employee of a disciplinary
action and then seek facts or evidence in support of
that action, or to attempt to have the employee
admit his alleged wrongdoing or to sign a statement
to that effect, or to sign statements relating to such
matters as workmen's compensation, such conduct
would remove the meeting from the narrow holding
of the instant case, and the employee's right to
union representation would attach. In contrast, the
fact that the employer and employee thereafter en-
gaged in a conversation at the employee's behest or
instigation concerning the reasons for the previously
determined discipline will not, alone, convert the
meeting to an interview at which the Weingarten
protections apply.
In summary, as long as the employer has reached
a final, binding decision to impose certain discipline
on the employee prior to the interview, based on
facts and evidence obtained prior to the interview,
no Section 7 right to union representation exists
under Weingarten when the employer meets with
the employee simply to inform him of, or impose,
that previously determined discipline. To the extent
that the Board has in the past distinguished between
investigatory and disciplinary interviews, in light of
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weingarten in our instant holding, we no longer be-
lieve such a distinction to be workable or desirable.
Applying the Board's reasoning in Baton Rouge Water
Works Company to the facts in the instant case, it appears
to me that the meeting of February 14 constituted noth-
ing more than a meeting wherein Respondent informed
employee Scott of its previously made disciplinary deci-
sion. It is undisputed that the decision to discipline em-
ployee Scott had been formulated and the nature of the
discipline to be imposed upon Scott had been determined
prior to the meeting with employee Scott at which the
discipline was imposed. Further, it is clear that the deci-
sion to discipline Scott was not based on information
which was obtained during the interview of Respondent
with Scott. I conclude and find that the question Produc-
tion Manager Schwichtenberg asked of employee Scott
was innocuous and was made in response to a conversa-
tion instigated by employee Scott. Neither the conversa-
tion between Schwichtenberg and Scott nor the question
asked by Schwichtenberg would constitute an attempt by
Respondent to seek facts or evidence in support of its
action or to have employee Scott admit any wrongdoing.
I therefore conclude and find that Respondent did not
violate the Act by denying Scott a representative when
it met with him solely for the purpose of informing him
of and acting upon its previously made disciplinary deci-
sion. I therefore recommend that paragraph 7 of the
complaint be dismissed in its entirety.
2. Alleged statements by Supervisor Ellington that
wage increases depended upon voting out the
Union
Paragraphs 8(a) and (b) of the complaint allege that on
or about January 31, 1980, Respondent through Supervi-
sor Ellington told employees that a wage adjustment was
due, but that if the Union won the election the amount
would have to be negotiated; and that on or about Feb-
ruary 4, 1980, Respondent through Supervisor Ellington
told employees there would be a wage increase if the
Union were voted out, but if the Union came in the in-
crease would have to be negotiated.
Counsel for the General Counsel relies upon the testi-
mony of employees Willie Campbell and James Rondall
Lewis to establish these violations.
With respect to the January 31, 1980, allegation, the
only record evidence with respect thereto was the testi-
mony of employee Lewis that Supervisor Ellington and
he were present alone at Lewis' work area in the plant
and Lewis stated: "I approached him [Ellington] and
asked him about a rumor that was in the plant concern-
ing a dollar raise. And Mr. Ellington immediately said
that that wasn't the straight of it, that it was a conversa-
tion that he'd had with Mr. Nixon .... tie said that
Mr. Nixon, the general manager of the plant, told him
that it was from the time that the Union was first voted
in five years ago that the plant should have given raises
over that five-year period that would have been equal to
a dollar in raises over the five-year period and that was
about all he said."'°
Supervisor Ellington denied telling employee Lewis
that Plant Manager Nixon had told him (Ellington) that
from the time the Union was voted in at Respondent in
1975 that the employees should have been getting a
dollar an hour more. Ellington testified that in a conver-
sation with Lewis he was asked a question by Lewis re-
garding the wages employees were making at the plant
where Plant Manager Nixon had previously been em-
ployed. Ellington stated he told Lewis he believed that it
was something similar to a dollar an hour. Both Elling-
ton and Nixon testified that Nixon had worked at Pasco,
a competitor of Respondent in the presale metal building
industry, prior to his coming to work for Respondent
and that the wages at Pasco were approximately a dollar
an hour more than they were at Respondent. Nixon
denied ever telling Supervisor Ellington or anyone else
that if the Union had not been at Respondent since 1975
the employees' pay would have been a dollar an hour
more. Nixon also testified that he was unaware of any
such rumor to that effect at Respondent's plant.
After careful observation of their testimony, I have
concluded that both Ellington and Nixon's testimony is
worthy of belief. I therefore credit Ellington's version of
his January 31, 1980, conversation with employee Lewis
to the effect that he explained to employee Lewis at em-
ployee Lewis' request that the wage difference at Re-
spondent's plant and Plant Manager Nixon's previous
employer, Pasco, was approximately one dollar. I specifi-
cally discredit employee Lewis' testimony that Ellington
had stated that, since the Union had been there, the em-
ployees should have received a one dollar pay raise. " I
therefore recommend dismissal of paragraph 8(a) of the
complaint.
With respect to paragraph 8(b) of the complaint, em-
ployee Lewis testified that he and fellow employee
Campbell were discussing the Union when Jerry Elling-
ton walked up to where they were and stated "that we
should give the Company a chance, that the Company
was planning to give a wage adjustment on the 14th, he
said, provided the Union was voted out, but that if the
Union remained in the plant that any adjustment would
be subject to negotiations." According to Lewis, he then
asked Ellington "if he meant that if the employees of the
plant would vote the Union out that the Company would
"' Counsel for the General Counsel contends that employee Willie
Campbell testified in support of this paragraph portion of the complaint.
Counsel foir the General Counsel makes this contention in his brief where
he sets forth the name of each witness he called; the complaint paragraph
number that he contended the witness testified about. a one-word de-
scriptiou of the type of violation alleged in the particular numbered com-
plaint paragraph; and a citation to transcript page numbers, without
elaboration Notwithstanding counsel fir the General Counsel's unex-
plained contention, it is obvious that employee Campbell was testifying
with respect to the February 4, 1980, conversation with Supervisor Ell-
ington in that Campbell stated Lewis and Ellington were both present in
the conversation at which he was present, and about which he testified.
I Assuming, arguendo, that Lewis' version were correct, I still would
not find a violation in that the conversation if credited is ambiguous as to
its meaning and would not in any manner support an allegation as set
forth in the complaint that employees were told that a wage adjustment
was due, bit if the Union won the election the amount would have to be
nelgotiated
858
GULF STATES MANUFACTURERS, INC.
give us a raise. He said no, not exactly. I said do you
mean that if we vote it out you'll give us a cut. He said
no, that he assured me that any adjustment would not be
a cut. Then at that time another employee walked up
and that was the end of the conversation."
Employee Willie Campbell testified he and Lewis
were together when Ellington walked up and, according
to Campbell, Lewis asked "if there would be a raise and
Jerry Ellington, he said that there was going to be a
raise adjustment. And James Lewis, he asked if the
wages was going to be raised, and he [Ellington] said
possibly .. .. James Lewis, he asked if they would go
down and he said possibly but not very likely. And Jerry
Ellington said if the Union went back in there would
have to be a negotiation on any increases on wages.
Then we just got to small talk." According to Campbell,
Ellington did not state when there would be a wage ad-
justment.
Supervisor Ellington testified that employees Campbell
and Lewis approached him around either the first or
middle part of February 1980, and inquired of him if Re-
spondent was going to give a raise around February 13.
Ellington stated he responded to them that he was not
really sure, that it had been customary since he had been
with Respondent to give one around that date.' 2 Elling-
ton stated that either Campbell or Lewis asked him if the
Union was voted in would they get a raise or would
they get a raise on that date. Ellington testified he told
them, if the Union was voted in, it would be subject to
negotiations. Ellington further testified that Campbell
asked him "if a wage adjustment meant going up in
wages or down or staying-" Ellington told Campbell
that "bargaining could mean staying the same, going up
or going down or whatever they settled on."
All three witnesses to the incident were in agreement
that the subject matter of wage adjustments was dis-
cussed and that the subject matter was brought up by the
two employees. Employee Campbell and Supervisor Ell-
ington gave basically the same account of the conversa-
tion. However, employee Lewis testified that Ellington
had stated that the wage adjustment would be granted
"provided the Union was voted out .... " As indicated
supra, Supervisor Ellington impressed me as a credible
witness, and as such I conclude and find that the conver-
sation which took place between him and employees
Campbell and Lewis was as Ellington testified. This con-
clusion is strengthened by the fact that Campbell's testi-
mony essentially corroborated that of Supervisor Elling-
ton. I specifically discredit employee Lewis' comment at-
tributed to Ellington that the wage adjustment was con-
ditioned upon voting out the Union.
I conclude and find that Ellington's comments taken in
the context of the instant case do not violate the Act. I
shall therefore recommend that paragraph 8(b) of the
complaint be dismissed.
3. Alleged 8(a)(1) violations attributed to Plant
Manager Nixon
Paragraph 9(a) of the complaint alleges that on or
about January 24, 1980, the exact date being unknown,
12 Ellington testified that he arrived at Respondent in February 1978
Respondent acting through Plant Manager Nixon told
employees that a wage increase was due on or about
February 14, 1980, but if the Union won the election the
amount would have to be negotiated.
Counsel for the General Counsel relies upon the testi-
mony of employees David E. Wright, Larry Moore, and
Willie C. Campbell to establish the violations alleged.
Larry Moore, a structural department employee from
1977 until his layoff in March 1980, testified that he at-
tended three meetings of employees at which Plant Man-
ager Nixon was present. Moore stated the meetings were
in the latter part of January or the first part of February
1980. According to Moore, all of the night-shift employ-
ees were present at the meeting he attended. Moore re-
called that Nixon said, "Yeah, he mostly talked about
how slow business was, and I, you know, asked him
about a pay raise. Well he said that we were due one but
if the Union won then it makes them be negotiated be-
tween the Union and the plant on how much we would
get." According to Moore, Nixon did not explain what
he meant by one being due.
Small parts department employee Campbell testified
that he attended meetings from January until February 7,
1980. Campbell recalled Nixon having stated, "Well, he
said that if the Union went in that any wage increase
would have to be negotiated. He asked us if we would
take the Union out and that's about all I can remember."
According to Campbell, Nixon further stated that the
reason there would have to be negotiations on any in-
crease was because of a complaint that was filed by the
Union. Campbell testified that Plant Manager Nixon
seemed to be reading his speech from a prepared text as
he stood in front of a podium-type lectern.
A night-shift employee, David E. Wright, who had
worked for Respondent approximately 6 months or less
until he was laid off on March 10, 1980, testified he at-
tended two meetings which were within a month of the
February 7, 1980, decertification election, at which Plant
Manager Nixon and Production Manager Schwichten-
berg were present. Wright testified that he did not recall
anything about the first meeting with Nixon. According
to Wright, a film was shown at the first meeting and that
Nixon made no comment about the film.I' Wright stated
that the second meeting where he was present was in
Nixon's office. In the second meeting Nixon discussed
how the plant was running without a union; that he
thought it was a nice place to work; and that he could
see no reason for a union. Wright testified that employee
Larry Moore raised a question about a raise and Nixon
replied "that we would get a raise-I believe it was a
cost of living raise-around the first part of the year,
January or February; but if the Union was voted in that
say whatever raise that the employees in the Company
had decided on that if the Union didn't agree with it that
particular raise or whatever if the Union was voted in
that it would be negotiated then the raise would be post-
poned."
"3 There are no allegations in the complaint with respect to any mat-
ters that may have been in the film which was shown to employees of
Respondent
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon cross-examination Wright acknowledged that the
word "postponed" was not used, that it was his impres-
sion that Nixon meant to imply that the raise would be
postponed.
Plant Manager Nixon testified he conducted three
meetings with Respondent's employees. At one of the
meetings a film was shown. Nixon testified, and I credit
his testimony, that no questions were taken from those in
attendance either before or after the meeting in which
the film was shown. Employee Wright corroborates the
testimony of Nixon in this respect. Nixon testified that he
read two speeches the text of which are in evidence as
Respondent's Exhibits 7 and 8. The first speech was read
to employees on January 21, 1980, and the second speech
was read to employees during the week immediately pre-
ceding the February 7, 1980, decertification election.
Nixon testified that he delivered the speeches from a lec-
tern or podium at the front of the cafeteria or breakroom
where the employees were assembled. Nixon stated that
as he delivered the speeches he had Director of Employ-
ee Relations Zeppelin follow along on a copy of each
speech. Both Nixon and Zeppelin testified that Nixon did
not deviate from the written text of the speeches. Nixon
and Zeppelin both testified that no questions were asked
by the assembled employees either before or after the
speeches. I credit the testimony of Nixon, Schwichten-
berg, and Zeppelin that Nixon read his speeches, 4 did
not deviate from the written text of the speeches, and
that no questions were taken or answers given either
before, during, or after the meetings with employees as
described above. I therefore recommend that paragraph
9(a) of the complaint be dismissed in its entirety.
Paragraph 9(b) of the complaint alleges that at various
times between February 7 and May 15, 1980, Respondent
acting through Plant Manager Nixon told employees that
Respondent could not grant scheduled pay raises because
its hands were tied because of the Union.
14 I do so based on my observation of their testimony and the other
factors discussed hereinafter in this footnote. Employee Campbell testi-
fied that Nixon appeared to be reading that speech that he gave I con-
clude that employee Wright was somewhat confused with respect to his
testimony in that he placed the location of Nixon's speech as being in
Nixon's office whereas the evidence rather overwhelmingly demonstrated
that the speeches were given in the plant cafeteria. I conclude that
Wright was attempting to testify with respect to the same speech Moore
had in that both insisted that Moore asked a question. I specifically dis-
credit the testimony of Wright and Moore that Moore asked Nixon a
question with respect to raises. A careful review of the speeches given by
Nixon indicates they do not contain the statements attributed to Nixon by
employees Wright, Campbell, and Moore. Additionally, there is some
ambiguity as to when the meetings took place that Wright and Moore
testified about in addition to the conflict as to what was said in the meet-
ings. Nixon testified that, in late November or early December 1979, a
time prior to and outside the context of the campaign in the decertifica-
tion election which was held on February 7, 1980, he held a series of
meetings with groups of employees on various shifts. In these meetings
he discussed how the business at Respondent had been deteriorating caus-
ing a number of layoffs, shutdowns, and a shortening of the work week.
Nixon testified that in those meetings held in November or December
1979 he recalled responding to a question asked by Moore when employ-
ee Wright was present as to when the employees were going to get a pay
raise. Nixon stated he responded to Moore's question at that time that he
did not know and had no way of knowing. I credit this testimony of
Nixon and conclude that it further demonstrates that employees Wright
and Moore were confused as to what was said and when it was said by
Nixon.
Counsel for the General Counsel presented employees
Willie Edmonds and Robert Daniels in support of this
portion of the complaint. Edmonds testified that, ap-
proximately 3 weeks after the February 7, 1980, decerti-
fication election was conducted at Respondent's plant, he
along with three or four other employees were present
with Plant Manager Nixon when he asked Nixon for a
raise. According to Edmonds, Nixon responded that he
could not; his hands were tied. Edmonds stated nothing
else was said nor any other comments made. Edmonds
could not recall who the other three or four employees
were that were present with him. Edmonds specifically
stated that Nixon did not say his hands were tied because
of the Union.
Edmonds' recollection of the events he testified about
did not impress me as being very accurate; he could not,
for example, recall anyone else who was present other
than he and Nixon. However, even crediting Edmonds'
testimony, I find it is too ambiguous to support a finding
of any violation of the Act.
Employee Robert Daniels testified he discussed weld-
ers' wages with Plant Manager Nixon on at least one, or
possibly more, occasion. He stated that the occasion he
could recall happened approximately 5 or 6 weeks before
the February 7, 1980, decertification election. Daniels tes-
tified that he and Edmonds talked to Nixon about the
welders getting into a higher labor scale. Daniels testi-
fied: "Well, like I said, we asked Nixon about getting-
seeing about getting-us in a higher labor scale, you
know. He said he would as soon as he could. He said he
would look into it. Well, I-well, of course, there was
more said but that's all I can recall, I mean mainly."
Daniels stated he did not discuss the welder situation any
further with Nixon nor were there any more meetings
after this one. Counsel for the General Counsel attempt-
ed to have employee Daniels refreshen his recollection
from a pretrial affidavit given to Region 26 of the Board.
Employee Daniels, after having reviewed his affidavit,
again testified essentially the same as set forth above.
Counsel for the General Counsel then stated that he did
not vouch for the credibility of any witness he called
and requested that he be permitted to impeach his own
witness within the meaning of Federal Rule of Evidence
607.'5 Counsel for the General Counsel then questioned
employee Daniels further and directed him to his pretrial
affidavit where it stated: "Nixon said that his hands were
tied and that after the election maybe he could look into
it." Counsel for the General Counsel asked Daniels if he
had said that in his pretrial affidavit and Daniels replied:
"As well as I remember, that's what he said." 6
The testimony given on direct examination by Daniels
does not appear to contain any comments that would at-
tribute unlawful conduct to Plant Manager Nixon or any
supervisor or management official of Respondent. Dan-
iels did acknowledge certain comments were contained
i' Fed. R Evid. 607 states: "The credibility of a witness may be at-
tacked by any party, including the party calling him."
11 Counsel for the General Counsel did not attempt to have read into
the record Daniels' prior statement as recorded recollection within the
meaning of Fed. R. Evid. 803(5), but rather sought permission only to
impeach his own witness' testimony within the meaning of Fed. R Evid.
607
860
GULF STATES MANUFACTURERS, INC.
in his affidavit regarding his conversation with Nixon;
however, it would appear that he was reluctant to reaf-
firm such comments. I conclude that Daniels' testimony
is unworthy of trust in that at the hearing he appears to
have given more than one sworn version to the same set
of facts, and as such I am not inclined to credit any testi-
mony of him that is not otherwise corroborated. I con-
clude and find there is no clear and credible evidence to
support a finding of any violation of the Act by Re-
spondent as alleged in paragraph 9(b) of the complaint,
and as such I shall recommend that portion of the com-
plaint be dismissed in its entirety.
Paragraph 9(c) of the complaint alleges that on or
about January 24, 1980, Respondent through Plant Man-
ager Nixon told employees that wages would be raised if
the Union were voted out.
Counsel for the General Counsel relies on the testimo-
ny of Malone Gillespi in support of this allegation of the
complaint.
Employee Gillespi testified he had worked as a grain
bin painter for Respondent from 1976 until the summer
of 1980. Gillespi testified he attended a meeting with
Plant Manager Nixon and approximately 75 other em-
ployees at some date between January and April 8, 1980.
Gillespi could not be any more specific as to the date of
the meeting. Gillespi stated that Nixon said "if we voted
the Union out we would get a raise . . . if we didn't
vote it out we wouldn't get a raise." Gillespi did not
recall if Nixon was reading from a prepared text; howev-
er, he did recall that Nixon was standing behind a lec-
tern when he gave the speech. Upon cross-examination
Gillespi testified he could not recall if the speech could
have been in 1978 or 1979. 1 find that employee Gille-
spi's memory was so vague that it is too unreliable to
credit. Further, I note that Gillespi, who indicated there
were 75 persons present to hear Nixon speak, was the
only one called by the General Counsel to establish this
violation. Additionally, as set forth elsewhere in this De-
cision, I credit the corroborated testimony of Nixon that
he read his speeches from a prepared written text. An
examination of Nixon's speeches indicates no such com-
ments by Nixon. I therefore recommend that paragraph
9(c) of the complaint be dismissed in its entirety.
The complaint alleges at paragraph 9(d) that on or
about February 21, 1980, Respondent through Plant
Manager Nixon told employees that Respondent would
consider wage increases after it saw how the election
turned out.
Counsel for the General Counsel presented employee
Felix Mobley in support of this allegation of the com-
plaint.
Mobley testified he had worked for Respondent for
approximately 9 months from mid-1979 until March
1980. According to Mobley, he attended two meetings at
which Plant Manager Nixon spoke. Mobley placed the
first meeting with Nixon in February 1980. Mobley re-
called that Nixon spoke in his first speech about the con-
ditions of the plant and business in general. Mobley testi-
fied that Nixon talked about the Union and pay raises at
the second meeting in March 1980. According to
Mobley, Nixon said "well, he was asked about a raise
and he said the raise was past due [pause] that's about all
of it. He said it was past due but we'd get a raise after
the election-and-uh-that's all I remember." Mobley
placed the date of the second speech as having been after
the Board-conducted decertification election. Counsel for
the Respondent on cross-examination asked Mobley the
following questions:
Q: (By Mr. Smith) O.K., did he say that the
Company won the election by five votes?
A: That's what I understood.
Q: Did he say that?
A: That's what I understood.
Even if credited, there is nothing in Mobley's testimo-
ny with respect to the first meeting with Nixon that
would constitute a violation of the Act. I find Mobley's
testimony with respect to the second meeting he claimed
to have attended wherein he heard Nixon say a raise was
past due but that a raise would be forthcoming after the
election to be inconsistent with his testimony that the
second speech took place after the Board-conducted
election had already been held. I find it incredible that
Nixon would have announced to Respondent's employ-
ees that the victor in the election was Respondent when
in fact the Union had won the election which had been
conducted by the Board. Nixon denied, and his testimo-
ny was corroborated by Schwichtenberg, that he made
the statements attributed to him by Mobley. Further,
Nixon denied that he told Mobley or any other employee
that Respondent had won the election by five votes. I
therefore specifically discredit the testimony of employee
Mobley that he was told by Nixon that a pay raise was
past due but they would get one after the election. I
shall therefore recommend that the allegations of para-
graph 9(d) of the complaint be dismissed in their entire-
ty.
C. The Alleged Discontinuance by Respondent of Its
Past Practice of Granting a Wage Increase On or
About February 13, 1980
Paragraphs 13(a) and 14 of the complaint allege that
on or about February 13, 1980, Respondent discontinued
its past practice of granting a wage increase on or about
that date each year, and that Respondent did such acts
without having afforded the Union an opportunity to ne-
gotiate and bargain as the exclusive representative of Re-
spondent's employees with respect to such acts and con-
duct and effects of such acts and conduct.
Counsel for the General Counsel contends that Re-
spondent has since 1976 had an established policy of
granting employees general wage increases on or about
February 13. Counsel for the General Counsel further
contends that in 1980 Respondent withheld such an in-
crease without notice to or consultation with the Union,
and further contends that it was withheld ostensibly be-
cause of the pendency of the decertification petition.
Certain of General Counsel's witnesses testified to
having received general pay increases in February since
1976; however, either they were unable to recall any
such general increases in February prior to 1976 or they
were not employed prior to that date.
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director of Employee Relations Zeppelin testified that
he had determined from an examination of the records
maintained by Respondent that in years 1971, 1972, 1973,
and 1974 general wage increases were granted to Re-
spondent's employees in months other than the month of
February. Zeppelin further testified that in 1975 no wage
increases were granted because all wages were frozen as
a result of the economic status of Respondent. The 1975
wage freeze was discussed in Gulf States Manufacturers.
Inc. v. N.L.R.B.. supra.
The evidence is conclusive that Respondent and the
Union, following the original certification of the Union
and after a substantial number of bargaining sessions,
failed to arrive at a contract. As a result of those negoti-
ations, Respondent made a final wage offer to the Union
on February 6, 1976. The Union conducted an economic
strike at Respondent's location from February 14 to Feb-
ruary 20, 1976. After an impasse in negotiations Re-
spondent implemented in February 1976 its last wage
offer. The wage offer called for an increase in February
1976 and additional annual wage increases for 1977 and
1978. The Fifth Circuit Court of Appeals determined
there had been good-faith bargaining on the part of Re-
spondent and the impasse arrived at was a valid impasse
brought about as a result of hard but good-faith bargain-
ing. Therefore, the month of February was established as
the month for wage increases of a general wage nature in
1976, 1977, and 1978. Local Union President Thompson
testified that prior to the February 1979 raise he under-
stood that International Union Representative Orman
was contacted by Respondent and presented the pro-
posed pay increase for 1979 and that the increase was ne-
gotiated between Orman and Respondent. Thompson
stated that he did not participate in those negotiation dis-
cussions. 7
I therefore conclude and find that Respondent by im-
plementing its last wage offer following good-faith bar-
gaining and a valid impasse' s which resulted in general
wage increases in 1976, 1977, and 1978, and negotiating
with the Union with respect to the 1979 wage increase,
did not establish a past practice of granting general wage
increases in February of each year from which if it devi-
ated it had to do so after bargaining with the Union re-
garding the discontinuance. Simply stated, I find there
was no past practice of granting a wage increase by Re-
spondent such as in the facts of this case would justify a
finding of an unlawful unilateral discontinuance on the
part of Respondent by not granting such a wage in-
crease. Further, the evidence would tend to indicate, as
reflected in Respondent's Exhibit 12, that the economic
conditions of 1980 were very similar to those of 1975.
Therefore, if there were any past practice at all on the
part of Respondent it would appear to be that it did not
grant wage increases when economic conditions were as
indicated in 1975 and 1980. I therefore recommend dis-
17 Counsel for the General Counsel's offer of proof in the form of
questions and answers of witness Orman relating to the 1979 negotiations
between Orman and Respondent's counsel would not provide any evi-
dence that the raise in 1979 was other than negotiated even if the offer of
proof were accepted. I am not accepting the General Counsel's offer of
proof, but am rather continuing to reject it as improper rebuttal
8a Respondent was found to have bargained in good faith to a valid
impasse. Gulf State Manufacturers Inc. v. N.L.R.B., supra.
missal of that portion of the complaint related to the alle-
gation of a discontinuance on or about February 13,
1980, of a past practice of granting a wage increase at
that time. t9
The complaint alleges in paragraphs 13(b) and 14 that
on or about March 10 and April 8, 1980, Respondent laid
off certain specifically named employees, without prior
notice to the Union and without having afforded the
Union an opportunity to negotiate about such acts and
conduct and the effects of such acts and conduct.
It is undisputed that layoffs occurred at Respondent on
March 10 and April 8, 1980. It is further undisputed that
there were 21 individuals laid off on each occasion.20
Respondent Employee/Local Union President Edgar
L. Thompson credibly testified with respect to the two
layoffs. Thompson stated he was notified by Director of
Employee Relations Zeppelin approximately 10 to 15
minutes before employees were actually laid off on
March 10, 1980, that they were going to be laid off.
Upon being informed of the layoffs, Thompson asked
Zeppelin if they were by seniority, and Zeppelin in-
formed him they were. Zeppelin did not have a list of
the names of those to be laid off at the time, but asked
Thompson to check back with him later and he would
provide him with a list. Thompson inquired of Zeppelin
if those being laid off would be reclassified and rehired.
Zeppelin told Thompson they would be, and at the same
time told Thompson the approximate number of individ-
uals involved in the layoff.
Thompson testified that a couple of weeks after the
March 10, 1980, layoff he met with Zeppelin and dis-
cussed specific individuals affected by the layoff.
Thompson stated that he discussed with Zeppelin why
certain individuals with less seniority were retained
while others with more seniority were included in the
layoff. Zeppelin explained to Thompson that certain clas-
sifications were needed while others were not. Thomp-
son and Zeppelin discussed Joyce Gamby, a more senior
helper who was included in the layoff, while an individu-
al with less seniority who was a machine operator was
retained. According to Thompson, Zeppelin told him
that machine operators were more critically needed than
helpers. Thompson stated he then inquired of Zeppelin
why Fred Wooten was laid off while others with less se-
niority were retained in the welding department. Thomp-
son stated that Zeppelin informed him Wooten was a
19 Counsel for the General Counsel contended in brief that Respond-
ent withheld a wage increase that would have been granted but for the
pendency of an election and as such violated the Act, citing The Gates
Rubber Company, 182 NLRB 95 (1970). Counsel for the General Counsel
relies upon evidence developed at the hearing on cross-examination of
Zeppelin wherein he acknowledged that his pretrial affidavit given to the
Board contained the following statement: "Employees did not receive an
across-the-board raise because there was questions regarding representa-
lion and because we had an election coming up on February 7, 1980. No
one at the Company discussed a raise" The Gates, supra, case is distin-
guishable in that there is no showing in the instant case of a past practice
of granting a February across-the-board wage increase and in light of the
no past practice there is no showing that the employees would have
gotten or were informed they would have gotten an across-the-board
wage increase but for the pendency of an election.
z0 GC. Exh. 8(a) is a list of those employees laid off on March 10,
1980; and GC. Exh. 8(b) is a list of those employees laid off on April 8,
1980.
862
GULF STATES MANUFACTURERS, INC.
tacker and that Respondent was cutting back on tackers
and retaining those who were classified as welders. 21
Thompson also inquired why Hazel Ashford, a stock-
room clerk employee, was laid off in the warehouse
while Roger Paragon, a warehouseman hired after Ash-
ford, was retained. According to Thompson, Zeppelin
explained that Respondent was cutting back employees
in Ashford's clerk classification while that of warehouse-
men such as Paragon's classification were being retained.
Thompson testified he learned of the April 8, 1980,
layoff by observing employees being walked to the gate
at Respondent's plant to turn in their hardhats and I.D.
badges approximately 15 to 20 minutes before the end of
their work shift. Thompson testified that at approximate-
ly the same time he was observing the employees leaving
he received a telephone call from Zeppelin's office tell-
ing him that Zeppelin wanted to notify him about the
layoff. Thompson stated he informed Zeppelin that he al-
ready knew about the layoff because he had observed
the employees being walked to the gate at Respondent's
plant. Thompson testified that Zeppelin apologized for
not informing him earlier, that he had meant to, but had
gotten tied up with something else.
Thompson stated he again asked Zeppelin if the layoff
was by seniority and was told it was. Thompson stated
he was further informed by Zeppelin that the employees
would be rehired or recalled if business conditions im-
proved. According to Thompson, both layoffs were by
job classification. Thompson also discussed with Zeppe-
lin certain select individuals who were among those laid
off. Specifically, Thompson inquired about Jessie Harvel
being laid off. Zeppelin informed Thompson that Harvel
was a tacker and Respondent needed less senior welders
rather than more senior helpers.
Respondent contends that it was merely following past
practice with respect to the March and April 1980 lay-
offs. Comptroller Wilfred White and Director of Em-
ployee Relations Zeppelin both testified, and I credit
their unrefuted testimony, that Respondent was unable to
forecast the need for a layoff very far in advance. Sever-
al factors over which Respondent had no control con-
tributed to Respondent being unable to forecast in ad-
vance of a layoff that one would be needed. Some of
those factors were that a customer would place an order
on "hold," that is, keep the order but not process it until
further notice; the weather, i.e., too cold, wet or the like
to pour footing upon which to place the metal building,
or the weather being too adverse to make delivery to the
construction site of the building; financing and/or build-
ing or construction permits. Based on these and other
factors, Zeppelin testified that Respondent only knew 2
days ahead of both the March and April 1980 layoffs as
to who and how many would be laid off.
With respect to past practice regarding layoffs,
Thompson testified that he had notification by way of
observing on March 22, 1979, a notice on the bulletin
board at Respondent's plant that there would be a layoff
21 A "tacker" is an individual, according to Thompson, who spot
welds an item in place pror to a welder actually welding the piece per-
manently.
the next day, March 23, 1979.22 Thompson testified, and
as indicated elsewhere in this Decision I credit his testi-
mony, that he was asked by Ronnie Sorter of Respond-
ent's personnel department on March 23, 1979, if he
(Thompson) was aware of the layoff that was to take
place that day. Thompson told Sorter he had seen the
notice on the bulletin board and asked him how many
employees would be involved. Thompson was informed
by Sorter that approximately 50 employees were in-
volved. Thompson was notified by Zeppelin just prior to
the actual start of the layoff that it was going to take
place on that date. Thompson asked Zeppelin if the em-
ployees would be laid off according to seniority and was
told they were and the employees would be subject to
recall. Zeppelin told Thompson that a letter would be
mailed out to the employees affected explaining to them
their rights with respect to insurance and other matters.
According to Thompson, the March 1979 layoff was
based on departmental seniority whereas the 1980 layoffs
were by classification seniority. Thompson testified that
he did not ask to negotiate about the 1979 layoff nor to
his knowledge did International Union Representative
Orman make such a request.23 Thompson did discuss
with Zeppelin the status of certain employees who were
laid off in the 1979 layoff. Thompson stated he was told
by Zeppelin that the layoff was by seniority, and
Thompson acknowledged that the Respondent did in fact
follow seniority. Thompson testified he did not protest to
or desire that Respondent do the 1979 layoff different in
any way from the way it was done.
Thompson acknowledged that business at Respondent
was slack prior to the 1979 layoff as well as the 1980 lay-
offs.
The Union in the instant case won the Board-conduct-
ed decertification election on February 7, 1980. Follow-
ing objections filed by the petitioner, the Board issued its
Decision and Certification of Representative on August
4, 1980. An employer's obligation to bargain with a
union arises on the date a majority of the appropriate
bargaining unit employees selects the union as their rep-
resentative. Howard Plating Industries, Inc., 230 NLRB
178, 179 (1977). An employer may not unilaterally alter
terms and conditions of employment of unit employees
during the time that objections to an election are pend-
ing. Master Slack and/or Master Trousers Corp., 230
NLRB 1054 (1977). The Board held in Mike O'Connor
Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701, 703
(1974), "absent compelling economic considerations for
doing so, an employer acts at its peril in making changes
in terms and conditions of employment during the period
that objections to an election are pending and the final
determination had not yet been made." Also, the Board
has held that it is no defense that such unilateral actions
22 There are no allegations of any unlawfulness with respect to the
1979 layoffs, and the General Counsel stated none was being sought but
that the evidence was offered as background only.
2a Thompson testified that contract negotiations were called off by
mutual agreement of the parties in 1977 pending a decision by the Fifth
Circuit Court of Appeals in Gulf States Manufacturers Inc. v. N.LR.B.,
and that no further bargaining sessions were held between the parties
from 1977 until 2 weeks prior to the November 1980 hearing of the in-
stant case.
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made pursuant to an established company policy
and without antiunion motivations. See Amsterdam Print-
ing and Litho Corp., 223 NLRB 370 (1976), enfd. 95
LRRM 3010, 81 LC ¶13,305 (D.C. Cir. 1977). Addition-
ally, it is no defense that changes instituted by Respond-
ent were economically expedient. Master Slack and/or
Master Trousers Corp., supra.
In light of the above principles, I conclude that Re-
spondent could not unilaterally lay off bargaining unit
employees without notification to, or bargaining with,
the Union. The Respondent presented the Union a fait
accompli with respect to the March 10 and April 8, 1980,
layoffs. Respondent's defense that its actions were based
on past practice is without merit in that the past prac-
tices of Respondent prior to the latest certification of the
Union did not relieve Respondent of the obligation to
consult with the certified Union regarding implementa-
tion of practices affecting terms and conditions of em-
ployment of unit employees. Respondent attempted at
great length to establish the adverse economic conditions
affecting both the metal building construction industry in
general and Respondent in particular; however, econom-
ic expediency even in good faith does not excuse the
duty to bargain with the Union with respect to the layoff
of unit employees. Although the Board has not articulat-
ed what constitutes the "compelling economic consider-
ations" exception to the "at its peril" principle estab-
lished in Mike O'Connor, supra, I conclude that such a
defense is not available in the instant case in that Re-
spondent knew at least for a limited time prior to either
of the layoffs whom it would lay off and why each indi-
vidual was selected for layoff. Therefore, the Union with
proper notification and an opportunity to bargain might
have altered the result. Finally, Respondent contends
that the procedure utilized to designate employees who
would be subject to layoff was a provision of the existing
seniority provision which Respondent and the Union had
bargained over in 1977. This record does not conclusive-
ly establish that a seniority provision was negotiated
with the Union at any time.
Accordingly, and in light of the above, I find that Re-
spondent violated Section 8(a)(5) and, derivatively, Sec-
tion 8(a)(1) of the Act when it failed to notify and bar-
gain with the Union regarding the decision to lay off em-
ployees on March 10 and April 8, 1980.
Notwithstanding my conclusion that Respondent did
not give notification to the Union or bargain with it with
respect to the March 10 and April 8, 1980, layoffs, I con-
clude that Respondent did in fact bargain with the Union
about the effects of the layoffs to the extent that the
Union sought or requested to. That is, Union President
Thompson requested and was provided listings of those
laid off, and he made inquiry as to why certain selected
employees were chosen while others with possibly less
seniority were retained. Thompson acknowledged Re-
spondent never at any time refused any request of the
Union to discuss the layoffs. I conclude and find that Re-
spondent did bargain about the effects of both the March
10 and April 8, 1980, layoffs. I shall therefore recom-
mend dismissal of that portion of the complaint which al-
leges that Respondent failed to bargain about the effects
of the layoffs.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with its operations de-
scribed in section I above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed
to effectuate the policies of the Act.
Inasmuch as I have concluded that Respondent bar-
gained with the Union regarding the effects of the two
layoffs herein, I shall recommend that Respondent bar-
gain, upon request, with the Union as the exclusive bar-
gaining representative of the employees in the appropri-
ate unit, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, including any
future layoffs at Respondent's plant. Under the circum-
stances of this case and in the absence of evidence show-
ing the Union sought to negotiate over the continuation
or termination of the layoffs, but rather it appears sought
only to negotiate the manner and means of the layoff and
recall, I shall therefore not recommend any backpay as
any part of the remedy.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees, plant
clerical employees, full-time and regular part-time truck-
drivers and leadmen employed at the Respondent's
Starkville, Mississippi, location, excluding all office cleri-
cal employees, craftsmen, guards and supervisors as de-
fined in the Act, constitute an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union is the exclusive representative of the em-
ployees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
5. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act by laying off employees in the above-de-
scribed unit on March 10 and April 8, 1980, without ade-
quate timely notice to the Union and without affording
the Union an opportunity to bargain collectively with re-
spect to the decisions to lay off bargaining unit employ-
ees.
6. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
864
GULF STATES MANUFACTURERS, INC.
7. The General Counsel has not established by a pre-
ponderance of evidence that the Respondent has violated
the Act as alleged in the complaint except to the extent
found above.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER2 4
The Respondent, Gulf States Manufacturers, Inc.,
Starkville, Mississippi, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Union as
the exclusive representative of the employees in the unit
described above concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
(b) Laying off any bargaining unit employees or
making or affecting any change in conditions of employ-
ment of the employees in the collective-bargaining unit
without first giving adequate timely notice to the em-
ployees' collective-bargaining representative and afford-
24 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
ing such representative an opportunity to engage in col-
lective bargaining with respect thereto.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the Union
in the unit described above and, if an understanding is
reached, embody such understanding in a written, signed
contract.
(b) Post at its Starkville, Mississippi, plant copies of
the attached notice marked "Appendix. " 2 5 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERID) that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found.
"2 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
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."
865