Hi-Tech Cable Corp.

National Labor Relations Board - Board Decisions

Aug 10, 1995

318 N.L.R.B. 280 (N.L.R.B. 1995)

280
318 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 27, 1994, Administrative Law Judge Robert C. Batson
issued the attached decision. The Respondent filed a motion to va-
cate the judge’s decision, exceptions, and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent’s motion to vacate the judge’s decision alleges
bias and prejudice in the decision and in the judge’s conduct of the
hearing. We have carefully examined the record and the judge’s de-
cision and find no evidence of bias and prejudice against the Re-
spondent. We specifically find that the judge’s alleged off-the-record
comments about the Respondent’s no-tobacco usage policy, although
unwarranted if actually made, do not require disqualifying the judge
in this proceeding or vacating his decision. We, therefore, deny the
motion to vacate.
In sec. III,B,1 of the judge’s decision, he incorrectly identified the
record exhibit number for the Union’s notes of a February 16 bar-
gaining session. Those notes are Jt. Exh. 18.
3 See also Williams Pipeline Co., 315 NLRB 630 (1994).
4 We find no merit in the Respondent’s argument that it was preju-
diced by the judge’s rejection of a reply brief further addressing
these issues.
Member Cohen finds it unnecessary to pass on whether there is
a procedural barrier to a finding that such conduct was unlawful. He
notes his strong preference for a practice under which the General
Counsel would amend the complaint at trial, so that the Respondent,
at trial, would know the specific conduct that is under attack. In the
instant case, however, there are other findings that the Respondent
promised employees benefits if they ousted the Union. Thus, a find-
ing of additional violations of the same kind would not add sub-
stantively to the remedy.
5 The Respondent also excepts to the judge’s finding that it had
not completely rescinded a prior, unlawfully implemented no-tobacco
use policy. The judge did not make a separate unfair labor practice
Hi-Tech Cable Corporation a Subsidiary of South-
wire Company and International Brotherhood
of Electrical Workers, Local Union No. 1510.
Cases 26–CA–15535, 26–CA–15591, 26–CA–
15644, and 26–CA–15751
August 10, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
In this case,1 the Board must decide whether the
judge correctly found that the Respondent: committed
numerous violations of Section 8(a)(1) of the National
Labor Relations Board (the Act); violated Section
8(a)(3) of the Act by failing to employ applicant
Jimmy Jones and by discharging employee William
Scott because of their union and protected concerted
activities; and violated Section 8(a)(5) of the Act by
failing to bargain in good faith with the Union about
a no-tobacco usage policy, by unilaterally implement-
ing a no-tobacco usage policy, by withdrawing rec-
ognition of the Union, by subsequently refusing to
process grievances, and by unilaterally granting a wage
increase.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, except as modified below, and to adopt the
recommended Order as modified and set forth in full
below.
1. The Respondent excepts to three unfair labor
practice findings in the judge’s decision involving con-
duct that the amended complaint did not specifically
allege to be unlawful. The challenged findings are that:
Department Manager Jim French violated Section
8(a)(1) of the Act when he told employee applicant
Jimmy Jones that unionized employees at the Respond-
ent’s Starkville, Mississippi, facility could get more
without a union; French again violated Section 8(a)(1)
by telling employee George Hart, during a decertifica-
tion campaign, about the ‘‘benefits and stuff’’ employ-
ees would receive if they did not have a union; and
Plant Manager Jimmie Blackmon similarly violated
Section 8(a)(1) by telling Hart that the Union was
keeping employees away from benefits they should be
getting. The General Counsel alleged these additional
violations in a posthearing brief to the judge.
We find no merit in the Respondent’s exceptions to
these findings. ‘‘It is well settled that the Board may
find and remedy a violation even in the absence of a
specified allegation in the complaint if the issue is
closely connected to the subject matter of the com-
plaint and has been fully litigated.’’ Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990).3 Each of the challenged findings meets
this two-part test.
With respect to the first part of the test, the com-
plaint specifically alleged, and the judge found, unlaw-
ful promises of benefits by another managerial official
during the decertification campaign. The complaint
also specifically alleged, and the judge found, unlawful
interrogation of Jones by French in the same conversa-
tion in which he made the statement that employees
could get more without a union. We, therefore, find a
close connection between the additional violations
found and the subject matter of the complaint.
With respect to the second part of the test, the Re-
spondent did not object to the testimony of Jones and
Hart about the conduct at issue. It cross-examined
these witnesses about this conduct. It presented its own
witnesses to testify about this conduct. Finally, it dis-
cussed the legality of this conduct in its posthearing
brief to the judge. We find that the issues were fully
litigated.4 Based on the foregoing, we affirm the
judge’s findings of additional 8(a)(1) violations which
are closely related to the subject matter of the com-
plaint and were fully litigated.5
281HI-TECH CABLE CORP.
finding with respect to this conduct. He found, and we agree, that
evidence of this conduct was relevant to a consideration of the spe-
cific 8(a)(5) allegations in the complaint.
6 See Southwest Merchandising Corp. v. NLRB, 149 LRRM 2257,
2260–2261 (D.C. Cir. 1995); and Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
7 309 NLRB 3. The Board also found unfair labor practices for
conduct unrelated to the no-tobacco usage policy.
8 Unless otherwise stated, all subsequent dates are in 1993.
2. The complaint alleged that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by failing to
hire Jones because of his sympathy for union represen-
tation. The judge found that Department Manager
French elicited prounion comments from Jones during
the unlawful interrogation noted above. He also found
that the Respondent’s proffered reasons for failing to
hire Jones were pretextual. Finally, he found that the
existence of pretextual reasons supported the inference
of an unlawful one.
We agree with the judge’s findings. We note that he
did not, however, conclude his analysis of the motiva-
tional issue. Accordingly, based on proof of the Re-
spondent’s union animus, its knowledge of Jones’
prounion attitude, and the inference of unlawful moti-
vation drawn from the assertion of pretextual reasons,
we find that the General Counsel established that
Jones’ protected conduct was a substantial or motivat-
ing factor in the Respondent’s decision not to hire him.
Furthermore, the finding that all asserted legitimate
reasons for failing to hire Jones were pretexts, a
fortiori, warrants finding that the Respondent has failed
to prove that it would not have hired Jones in the ab-
sence of his protected union activity.6 We, therefore,
find that the failure to hire Jones violated Section
8(a)(3) and (1) of the Act.
3. In its exceptions to the judge’s finding that it vio-
lated Section 8(a)(3) and (1) of the Act by discharging
employee William Scott, the Respondent argues, inter
alia, that there is no evidence that Scott wore the
prounion T-shirt at any time prior to March 30, 1993,
the day after he was informed of his termination. We
disagree with the Respondent. Although Scott’s testi-
mony in this regard is somewhat unclear, we find that
it is clear from the surrounding evidence that Scott
wore the T-shirt on March 29. In this connection, we
rely on Scott’s credited testimony that Building Wire
Department Manager Gerri Tate asked Scott on March
29 who had worn the prounion T-shirt. When Scott ad-
mitted that he had worn the shirt, Tate said that he
‘‘had heard some talk in personnel about it.’’ Scott
then asked, ‘‘[I]f it was going to be a problem,’’ and
Tate said, ‘‘[H]e did not know.’’ We find, contrary to
the Respondent’s argument, that this testimony sup-
ports the judge’s finding that the Respondent’s man-
agement was aware that Scott had worn the T-shirt be-
fore Scott was informed on March 29 of his termi-
nation as of March 30. Accordingly, for these reasons,
as well as those set forth by the judge, we find that
the Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Scott.
4. In April 1991, the Respondent unilaterally pro-
mulgated a no-tobacco usage policy at its Starkville fa-
cility. The policy banned all use of tobacco anytime
and anywhere on the Respondent’s property. The
Union filed unfair labor practice charges against the
promulgation and enforcement of this policy. On Sep-
tember 30, 1992, the Board found that the Respondent
violated Section 8(a)(5) of the Act by unilaterally
adopting and enforcing a no-tobacco rule.7
On January 7, 1993,8 the Respondent posted the
Board’s remedial notice to employees and a compan-
ion notice of its own. Both notices pledged rescission
of the unilaterally implemented rule and a willingness
to bargain with the Union about the subject of tobacco
usage by unit employees. These notices remained post-
ed through March 6. Before, during, and after the re-
medial notice posting period, however, signs remained
posted at entrances to separate parking lots for employ-
ees and nonemployees that declared the Starkville
plant to be a no-tobacco facility. (The Respondent law-
fully continued to maintain a total no-tobacco usage
rule for nonemployees and unrepresented employees at
Starkville and at its 17 other nonunion facilities.)
The Respondent initiated bargaining with the Union
about its proposal to reimplement the no-tobacco usage
policy for employees in the Starkville bargaining unit.
The parties met for negotiations on February 16 and
17, and on March 16. Throughout these negotiations,
the Respondent adhered to its proposal for a total ban
and rejected the Union’s successive counterproposals
for designation of some smoking area or areas on the
Starkville property. The Respondent also rejected the
Union’s repeated requests to remove the no-tobacco
sign from the employees’ entrance to the parking lot.
At the end of the March 16 bargaining session, the Re-
spondent’s officials stated that the parties were at im-
passe. On March 29, the Respondent unilaterally re-
implemented the no-tobacco usage policy.
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing to
bargain with the Union in good faith about its pro-
posed no-tobacco usage policy. We base this finding
on the totality of the circumstances in which the bar-
gaining took place, Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984), including the Respondent’s
behavior at the bargaining table and its conduct away
from the table as bearing on its good faith while en-
gaged in bargaining, Port Plastics, 279 NLRB 362,
382 (1986). Specifically, we find that the following
factors support the judge’s finding of bad-faith bar-
gaining by the Respondent.
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Contrary to argument in the Respondent’s exceptions, the judge’s
finding that the Respondent’s negotiators repeatedly relied on com-
pany policy can be based entirely on the parties’ bargaining notes,
which are part of the record. We note in particular the following ex-
changes between the Union’s negotiator, Joe Davis (JD), and the Re-
spondent’s negotiator, Walter Lambeth (WL):
From the Respondent’s notes of the February 17, 1993 bargaining
session (Jt. Exh. 31):
JD: You said Rudy was referring to company policy.
WL: No tobacco usage is a corporate policy that is in effect
at all Southwire facilities except Starkville.
JD: We represent Starkville, we don’t care about corporate
policy.
WL: We understand we have to bargain about the policy here.
What we’re telling you is if we make an exception here we will
hear from every other plant and they will expect us to make an
exception for them.
From the Respondent’s notes of the March 16, 1993 bargaining
session (Jt. Exh. 31):
JD: Rudy said that corporate policy is no tobacco usage, no
designated smoking areas. Do you have the authority to nego-
tiate here? Can you change corporate policy.
WL: We can change policy at Starkville, we certainly have the
authority to do that. What Rudy is telling you is that if we agree
to an exception here who is to say they will not ask for des-
ignated smoking areas or let them smoke in the parking lot at
other Southwire plants. It’s not fair to make an exception to the
smoking policy here and not elsewhere. We got to think about
the effect on other plants. Whatever is done here will have effect
on all other plants. We have to factor that into our thinking.
10 We agree with the Respondent that its negotiators also asserted
health, cost, and production-related justifications in support of their
bargaining position, but these additional reasons do not diminish the
significance of the company policy justification.
11 Pursuant to a settlement agreement in Case 26–CA–15098, the
Respondent posted a notice from September 16 through November
16, 1992. The notice stated, in relevant part:
WE WILL NOT inform you that it is futile for you to retain the
Union as your bargaining representative because we will not
make changes.
12 As noted, supra, Member Cohen finds a possible procedural bar-
rier to a conclusion that this conduct violated Sec. 8(a)(1). He finds,
however, no such barrier to a consideration of the evidence as bear-
ing on the bona fides of bargaining.
First, the Respondent knowingly refused to remove
the sign, posted at the entrance to the employee park-
ing lot, declaring without exception that the plant was
a no-smoking facility. This sign expressly contradicted
assurances in the posted remedial notices that the Re-
spondent had rescinded the no-tobacco usage ban for
unit employees. The absence of any evidence of con-
tinued enforcement of the unlawful ban does not pre-
clude our finding that unit employees would reason-
ably regard the sign as a threat that the ban could still
be invoked against them. Furthermore, maintenance of
the sign forced the Union to bargain unsuccessfully for
a complete, unequivocal restoration of the status quo.
Compliance with a Board remedy is not a mandatory
subject for bargaining. The Union had a right to insist
on the sign’s removal.
Second, although the Respondent’s insistence on a
proposed reimplementation of a total ban of the use of
tobacco products at the plant was not per se unreason-
able, its repeated reference to companywide policy as
a justification for its bargaining position casts doubt on
its willingness to engage in meaningful negotiations.9
In effect, the Respondent told the Union that it would
not give employees at its one unionized facility some-
thing (i.e., designated smoking areas) that it did not
give nonunion employees at its other facilities.10 Such
statements indicated the futility of union representa-
tion, in derogation of assurances given by the Re-
spondent to employees in a Board notice posted only
a few months earlier in settlement of other unfair labor
practices charges.11
Third, in marked contrast to the foregoing, Depart-
ment Manager French unlawfully suggested to em-
ployee applicant Jimmy Jones on January 26 that the
unionized employees at Starkville could get more with-
out a union. In the 2 months following the termination
of negotiations, other officials of the Respondent made
similar unlawful remarks to employees during a decer-
tification campaign. Collectively, this conduct away
from the bargaining table reinforced the impression
made by references to company policy during bargain-
ing. The Respondent’s officials demonstrated a general
unwillingness to concede anything in bargaining with
the Union and sought to portray continued representa-
tion by the Union as an impediment to the receipt of
better benefits.12
We conclude from the totality of the circumstances
described above that the Respondent did not intend to
engage in meaningful negotiations about a tobacco use
policy with the aim of reaching an agreement with the
Union. Instead, it had predetermined to reimplement
the prior unlawfully implemented policy as soon as
possible and to undermine further the Union’s status as
an exclusive bargaining representative. Accordingly,
we find that the Respondent violated Section 8(a)(5) of
the Act by failing to bargain in good faith with the
Union.
5. On June 1, the Respondent withdrew recognition
from the Union based on individual cards signed by
117 of 203 unit employees stating that they no longer
desired to be represented by the Union. The judge
found that the Respondent violated Section 8(a)(5) by
withdrawing recognition of the Union because the
cards had been signed in the context of prior
unremedied unfair labor practices by the Respondent.
We agree with the judge that the decertification cards
on which the Respondent relied were tainted. The basis
for our agreement, however, requires further expli-
cation of the effects of the Respondent’s unlawful con-
duct.
As previously indicated, the Respondent posted a
Board notice on January 7, as part of the remedy for
its prior unfair labor practices, which included an un-
lawful refusal to bargain with the Union about the no-
tobacco use policy. The notice remained posted for 60
283HI-TECH CABLE CORP.
13 Robertshaw Controls Co., 263 NLRB 958, 959–960 (1982);
Chet Monez Ford, 241 NLRB 349, 351 (1979).
14 Chet Monez Ford, supra at 351.
15 Member Cohen notes the absence of any objective evidence that
conduct other than the unfair labor practices could have resulted in
the decertification effort.
16 In affirming the judge’s conclusion that the Respondent subse-
quently violated Sec. 8(a)(5) by refusing to process employee griev-
ances, we rely solely on our finding that the Respondent’s with-
drawal of recognition was unlawful, so that it had a continuing bar-
gaining duty to process grievances.
17 The judge failed to refer to certain unfair labor practice findings
in his conclusions of law and recommended Order and notice. We
shall make the appropriate additional express conclusion and reme-
dial modifications.
days. During that time, not only did the Respondent
fail and expressly refuse to remove a sign which con-
flicted with the language of the notice, it again vio-
lated Section 8(a)(5) by failing to fulfill its obligation
to bargain in good faith with the Union. In addition,
the Respondent violated Section 8(a)(3) by refusing to
hire Jimmy Jones, and it violated Section 8(a)(1) by
unlawful interrogations and by stating that employees
could get more without a union.
The judge incorrectly stated that the signing of de-
certification cards began a day after the end of the re-
medial notice posting period. In fact, of the 117 cards
submitted, 42 bore dates from February 11 to March
7. The Board has held that expressions of support for
decertification that have been solicited during a reme-
dial notice posting period for an 8(a)(5) violation are
not a reliable indicator of employee sentiment.13
‘‘[T]he 60-day posting requirement is not to be taken
lightly or whittled down as the purpose of the notice
is to provide sufficient time to dispel the harmful ef-
fects’’ of a respondent’s unfair labor practices.14 We
find such precedent controlling here, particularly in
light of conduct inconsistent with the notice and the
commission of additional unfair labor practices. Ac-
cordingly, none of the cards signed prior to the end of
the posting period are a reliable indicator of employee
sentiment.
Less than a majority of unit employees signed decer-
tification cards after the end of the posting period.
Even assuming, arguendo, that they were not tainted
by the Respondent’s prior unremedied unfair labor
practices, they would not, standing alone, provide a
sufficient objective basis for a reasonable doubt of the
Union’s continuing majority status. Moreover, we find
that the Respondent’s repeated refusal to bargain in
good faith with the Union about the no-tobacco usage
policy—an unfair labor practice affecting the entire
unit—coupled with the several 8(a)(1) violations and
the two 8(a)(3) violations committed during or shortly
prior to the decertification effort, would likely have
such a serious collective impact on unit employees as
to encourage their disaffection with the Union. Indeed,
although the Respondent’s motivation is not dispositive
here, several of the unfair labor practices described
above and in the judge’s decision clearly were meant
to undermine the Union. Furthermore, the promises of
benefits and solicitation to support a decertification ef-
fort directly conflicted with disavowals of such unlaw-
ful conduct made in the remedial notice to employees
that the Respondent posted in late 1992 pursuant to the
settlement agreement in Case 26–CA–15098.
Based on the foregoing, we find that the Respond-
ent’s unremedied unfair labor practices removed all of
the decertification cards as a lawful basis for the Re-
spondent’s withdrawal of recognition.15 We, therefore,
affirm the judge’s finding that the Respondent violated
Section 8(a)(5) of the Act by withdrawing recognition
of the Union as the exclusive collective bargaining rep-
resentative.16
AMENDED CONCLUSIONS OF LAW17
Insert the following as paragraphs 5(e) and (f).
‘‘(e) Promising its employees unspecified benefits to
support the decertification effort.
‘‘(f) Promising its employees that they would have
better benefits if they did not have a union and telling
them that the Union was keeping them away from ben-
efits.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Hi-Tech Corporation, a Subsidiary of
Southwire Company, Starkville, Mississippi, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees and applicants for em-
ployment concerning their union activities and sym-
pathies.
(b) Soliciting employees not to wear prounion insig-
nia.
(c) Soliciting employees to support an effort to de-
certify the Union.
(d) Promising employees unspecified benefits to
support the decertification effort.
(e) Promising employees unspecified benefits to stop
wearing a union button.
(f) Promising employees that they would have better
benefits if they did not have a union and telling them
that the Union was keeping them away from benefits.
(g) Discharging or refusing to hire employees be-
cause they engage in protected union and other con-
certed activities.
(h) Refusing to recognize and bargain collectively
with the International Brotherhood of Electrical Work-
ers, Local Union No. 1510 as the exclusive representa-
tive of an appropriate unit of employees, with respect
to rates of pay, hours of employment, and other terms
and conditions of employment.
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(i) Refusing to process grievances filed by or on be-
half of employees in the bargaining unit represented by
the Union.
(j) Unilaterally granting its employees wage in-
creases without negotiating with the Union on request.
(k) Unilaterally implementing a no-tobacco usage
policy at its Starkville, Mississippi facility.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative for all employees in the ap-
propriate unit described below, and, on request, bar-
gain in good faith with the Union about their wages,
hours, and terms and conditions of employment, in-
cluding the usage of tobacco by unit employees, and
embody any understanding reached in a signed agree-
ment. The appropriate unit is:
All hourly rated production and maintenance em-
ployees at Hi-Tech Cable Corporation’s cable and
wire plant in Starkville, Mississppi, excluding of-
fice and clerical employees, technical employees,
professional employees, management, supervisory
employees, and guards as defined in the Act.
(b) On request by the Union, rescind the no-tobacco
usage policy for unit employees that the Respondent
implemented on March 29, 1993.
(c) Resume the processing of the grievances of bar-
gaining unit employees represented by the Union and,
on request, process those grievances that the Respond-
ent unlawfully refused to process since June 4, 1993.
(d) Offer William Scott immediate and full reinstate-
ment to his former job, and offer Jimmy Jones the job
for which he applied or, if those jobs no longer exist,
to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in
the remedy section of the judge’s decision.
(e) Remove from its files any reference to the un-
lawful discharge of Scott and the refusal to hire Jones
and notify these employees in writing that this has
been done and that these unlawful discriminatory ac-
tions will not be used against them in any way.
(f) Preserve and, on 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
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its plant in Starkville, Mississippi, copies
of the attached notice marked ‘‘Appendix.’’18 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 26, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees or appli-
cants for employment concerning their union activities
and sympathies.
WE WILL NOT solicit our employees not to wear
prounion insignia.
WE WILL NOT solicit our employees to support an
effort to decertify the Union.
WE WILL NOT promise our employees unspecified
benefits to support the decertification effort.
WE WILL NOT promise our employees unspecified
benefits to stop wearing a union button.
WE WILL NOT promise our employees that they
would have better benefits if they did not have a union
or tell them that the Union was keeping them away
from benefits.
WE WILL NOT discharge or refuse to hire or other-
wise discriminate against any employees for engaging
285HI-TECH CABLE CORP.
1 All dates are in 1993 unless otherwise indicated.
in protected concerted activities for your mutual aid
and protection or for supporting the International
Brotherhood of Electrical Workers, Local No. 1510 or
any other Union.
WE WILL NOT refuse to recognize and bargain col-
lectively with the International Brotherhood of Elec-
trical Workers, Local No. 1510 as the exclusive rep-
resentative of an appropriate unit of our employees,
with respect to their wages, hours of employment, and
other terms and conditions of employment.
WE WILL NOT refuse to process grievances filed by
or on behalf of employees in the bargaining unit rep-
resented by the Union.
WE WILL NOT unilaterally grant our employees wage
increases without negotiating with the Union on re-
quest.
WE WILL NOT unilaterally implement a no-tobacco
usage policy at our Starkville, Mississippi facility.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive col-
lective-bargaining representative for all employees in
the appropriate unit described below, and, on request,
WE WILL bargain in good faith with the Union about
their wages, hours, and terms and conditions of em-
ployment, including the usage of tobacco by unit em-
ployees, on our property, and embody any understand-
ing reached in a signed agreement. The appropriate
unit is:
All hourly rated production and maintenance em-
ployees at Hi-Tech Cable Corporation’s cable and
wire plant in Starkville, Mississippi, excluding of-
fice and clerical employees, technical employees,
professional employees, management, supervisory
employees, and guards as defined in the Act.
WE WILL, on request by the Union, rescind the no-
tobacco usage policy for unit employees that we imple-
mented on March 29, 1993.
WE WILL resume the processing of the grievances of
bargaining unit employees represented by the Union
and, on request, WE WILL process those grievances that
we have unlawfully refused to process since June 4,
1993.
WE WILL offer William Scott immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify William Scott that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
WE WILL offer Jimmy Jones immediate and full em-
ployment to the job for which he applied or, if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from our refusal to hire him, less any net in-
terim earnings, plus interest.
WE WILL notify Jimmy Jones that we have removed
from our files any reference to our refusal to hire him
and that this refusal will not be used against him in
any way.
HI-TECH CABLE CORPORATION A SUB-
SIDIARY OF SOUTHWIRE COMPANY
Jack Berger, Esq., for the General Counsel.
Walter O. Lambeth, Jr. and Douglas H. Duerr, Esqs.
(Elarbee, Thompson & Trapnell), for the Respondent.
Joe Davis, International Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. This case
was tried before me at Starkville, Mississippi, on October 12,
13, and 14, 1993,1 based on a second order consolidating
cases, amended consolidated complaint and notice of hearing,
the operative complaint here was issued by the Regional Di-
rector for Region 26 (Memphis, Tennessee), of the National
Labor Relations Board (the Board) pursuant to the National
Labor Relations Act (the Act), alleging that Hi-Tech Cable
Corporation a Subsidiary of Southwire Company (Respond-
ent or Company), had violated Section 8(a)(1), (3), and (5)
of the Act in various particulars. All charges here were filed
by the International Brotherhood of Electrical Workers, Local
Union No. 1510 (the Union). The charge in Case 26–CA–
15535 was filed on March 19, Case 26–CA–15591 on April
29, Case 26–CA–15644 on June 7, and Case 26–CA–15751
on September 21. All charges were timely served on Re-
spondent.
The operative complaint alleges that Respondent by its
various supervisors and agents interrogated its employees and
applicants for employment regarding their sympathies and
sentiments toward the Union; solicited its employees not to
wear union insignia or buttons and to support the decertifica-
tion effort; promised its employees unspecified benefits if
they stopped wearing union buttons in violation of Section
8(a)(1) of the Act. It further alleges that Respondent refused
to hire an applicant for employment and discharged one em-
ployee in violation of Section 8(a)(1) and (3) of the Act. Al-
leged also is that Respondent bargained in bad faith with the
Union regarding its ‘‘no-tobacco usage policy’’ and unilater-
ally implemented that policy at its Starkville, Mississippi fa-
cility. Further, it is alleged that Respondent failed and re-
fused to process employee grievances; increased its employ-
ees’ wages, and on June 2, withdrew recognition of the
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent indicated that it would call all of about 117 em-
ployees who had signed cards stating they no longer desired to be
represented by IBEW Local 1510 to elicit testimony relating to their
subjective state of mind at the time of signing as to whether Re-
spondent’s conduct past or present had any impact on their decision
to sign. As discussed more fully infra, I did not permit this but did
allow Respondent to call approximately 25 such signers.
3 Exhibits offered by counsel for the General Counsel and received
into evidence are cited as G.C. Exh., by Respondent as R. Exh., and
Joint Exhibits as Jt. Exh.
4 Briefs were filed by counsel for the General Counsel and the Re-
spondent. On February 8, 1994, Respondent filed with me a response
to brief on behalf of the General Counsel. On February 14, 1994,
the counsel for the General Counsel filed a motion to strike response
to brief on behalf of the General Counsel. On February 22, 1994,
Respondent filed an opposition to the General Counsel’s motion to
strike. § 102.42 of the Board’s Rules and Regulations make no pro-
vision for response or reply briefs to the administrative law judge.
While there are cases where, on proper request, a judge may permit
such reply briefs and even in legally complex cases where the judge
may request them, this is not such a case. Moreover, the Respond-
ent’s response to the General Counsel’s brief merely elaborates on,
and argues, interpretation of testimony which is the province of the
judge and does not, as contented, reply to the General Counsel’s
customary motion made in brief to conform the pleadings to the
proof which does not add any allegations not litigated. Accordingly,
the motion to strike the Respondent’s response to brief on behalf of
the General Counsel is granted.
5 The facts found here are based on the record as a whole and my
observation of the witnesses. The credibility resolutions, here, have
been derived from a review of the entire testimonial record and ex-
hibits with due regard for the logic of probability. The demeanor of
the witnesses and the teachings of NLRB v. Walton Mfg. Co., 369
U.S. 404 (1962). As to those witnesses testifying in a contradiction
to the findings here, their testimony has been discredited, either as
having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredulous and unworthy of belief.
All testimony has been reviewed and weighed in light of the entire
record. No testimony has been pretermitted.
Union as the exclusive collective-bargaining representative of
employees in the appropriate unit, all in violation of Section
8(a)(1) and (5) of the Act. In its duly filed answer to the
complaint Respondent denies that it has violated the Act in
any respect, but admits that it implemented a ‘‘no-tobacco
usage policy’’; granted its employees a wage increase, and
withdrew recognition of the Union as the exclusive collec-
tive-bargaining representative of an appropriate unit of em-
ployees.
All parties have been afforded full opportunity to appear,
introduce evidence, to call witnesses,2 examine and cross-ex-
amine witnesses, to introduce all relevant documentary evi-
dence,3 and to file posttrial briefs.4 Based on the entire
record, including my observation of the demeanor of the wit-
nesses testifying under oath, and due considering of the
posttrial briefs,5 I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent admits, and I find
that at all times material, Respondent was a corporation with
an office and place of business located at Starkville, Mis-
sissippi, where it is engaged in the manufacture and sale of
wire and cable products. During the 12-month period preced-
ing the issuance of the complaint, in the conduct of its busi-
ness sold and shipped goods valued in excess of $50,000 to
points located directly outside the State of Mississippi. Dur-
ing the same period of time it also purchased and received
goods and products valued in excess of $50,000 from points
located directly outside the State of Mississippi. Accordingly,
Respondent at all times material here has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
The Union was certified as the exclusive collective-bar-
gaining representative of all employees in an appropriate unit
in 1983 at a time when Respondent was owned by Phelps
Dodge. The unit is:
Included: All hourly rated production and mainte-
nance employees at Respondent’s cable and wire plant
in Starkville, Mississippi.
Excluded: Office and clerical employees, technical
and engineering employees, professional employees,
management and supervisory employees and guards as
defined in the Act.
At some point after 1983, the facility was acquired by Hi-
Tech Cable Corporation which apparently voluntarily recog-
nized the Union. The record does not disclose whether Hi-
Tech negotiated a new contract. In the fall of 1989, the Com-
pany was acquired by the Southwire Corporation which vol-
untarily recognized the Union as the exclusive collective-bar-
gaining representative of the employees in the unit described
above. The parties commenced bargaining for a collective-
bargaining agreement, about March 22, 1990. On July 11,
1990, after about 22 bargaining sessions, Respondent de-
clared that the parties were at impasse and implemented its
final offer. There was no contention that Respondent had
bargained in bad faith or that the parties were not, in fact,
at impasse.
In December 1990, the Union won a decertification elec-
tion in Case 26–RD–833 by a vote of 128 in favor of and
86 opposed to the Union. Accordingly, the Union was again
certified to be the exclusive representative of the employees
in the appropriate unit.
On June 17, 1991, the Union filed an unfair labor practice
charge against Respondent in Case 26–CA–14536. On July
22, 1991, a complaint issued alleging that Respondent had,
inter alia, violated Section 8(a)(1), (3), and (5) of the Act,
by unilaterally adopting and enforcing a no-tobacco usage
rule; refusing to furnish the Union with necessary informa-
tion, for collective bargaining; and discharging an employee
for engaging in protected concerted activities. Hi-Tech Cable
Corp., 309 NLRB 3 (1992).
In that case the administrative law judge found that Re-
spondent had violated Section 8(a)(1) and (3) of the Act by
discharging an employee for engaging in protected concerted
activities. He also found Respondent had failed to bargain in
287HI-TECH CABLE CORP.
good faith with the Union by refusing to give either the em-
ployee or the Union a copy of any written warning given an
employee necessary to the processing of grievances. The
judge found, however, that Respondent did not violate Sec-
tion 8(a)(5) and (1) by the implementation and enforcement
of its no-tobacco usage rule in view of the management-
rights clause to which the Union had tentatively agreed. the
pertinent clauses are:
Section 1. Make, change, and enforce reasonable
rules for efficiency, cleanliness, safety, attendance, con-
duct and working conditions . . . .
. . . .
Section 3. The Company reserves the right, in its
sole discretion, to make reasonable rules and regula-
tions for the purpose of efficiency, safe operation, and
maintaining order and discipline among the work force.
Article III, Union Rights and Obligations, provides:
The Union understands the Company has the right to
make and enforce reasonable rules and regulations and
agrees to uphold such rules and regulations in regard to
. . . the employees’ conduct on the job, and all other
reasonable rules and regulations established by the
company which are not in conflict with this Agreement.
Similarly, in article XII, Discharge, Discipline, and Com-
pany Rules, the contract states:
The Company alone has the right to make such rea-
sonable rules and regulations, subject to the Union’s
right to grieve the reasonableness, as it may from time
to time deem best for the purposes of maintaining
order, effecting safe operation of the plant, and promot-
ing efficiency. The Company will give the Union a
copy of any new or changed rule prior to putting said
rule into effect. The Union agrees to uphold such rules
and regulations established by the Company.
On review the Board found that the recourse left the
Union to the grievance procedure concerning the reasonable-
ness of the unilaterally implemented rule did not afford full
bargaining rights assured by Section 8(a)(5) of the Act. Cit-
ing Johnson-Bateman Co., 295 NLRB 180 (1989). The
Board found the no-tobacco usage rule to be a mandatory
subject of bargaining and in the absence of a ‘‘clear, un-
equivocal, and unmistakable waiver’’ by the Union the gen-
eral language of the management-rights clause did not allow
the Union to perform its 8(a)(5) statutory obligation. Thus,
Respondent violated Section 8(a)(5) and (1) by their conduct.
This Decision and Order issued September 30, 1992.
The Respondent indicated that it would seek court review
in the United States Court of Appeals for the Fifth Circuit
of the Board’s Order and refused to comply therewith. On
May 18, 1993, the Regional Director for Region 26 advised
Respondent that the Region had decided to recommend en-
forcement of the Board’s Order in this case and had so rec-
ommended. (G.C. Exh. 1, attachment 1.)
In the meanwhile, the Union filed charges in Case 26–
CA–15098 alleging various violations of Section 8(a)(1), (3),
and (5) of the Act. On September 10, 1992, the parties en-
tered into a settlement agreement of these charges which re-
quired the posting of a notice to employees which was post-
ed in four different locations throughout the plant from Sep-
tember 16 through November 16, 1992, the settlement agree-
ment contained a nonadmissions clause. The notice posted
pursuant to the settlement agreement is as follows:
WE WILL NOT enforce our No-Solicitation/No-Dis-
tribution of Literature rule selectively and disparately
by prohibiting union solicitations and distributions
while permitting non-union solicitations and distribu-
tions.
WE WILL NOT promise you improved benefits if you
reject the Union as your collective bargaining represent-
ative.
WE WILL NOT inform you that it is futile for you to
retain the Union as your bargaining representative be-
cause WE WILL NOT make changes.
WE WILL NOT solicit you to sign or support a decer-
tification petition.
WE WILL NOT solicit you to act as our agent in a de-
certification effort.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guar-
anteed you by Section 7 of the Act.
HI-TECH CORPORATION, A SUBSIDIARY OF
SOUTHWIRE COMPANY
DATED: 9/16/92 BY: /S/KATHRINE M. BROWN[,]
Mgr., Personnel
On January 7, 1993, the Respondent advised Region 26 of
the Board that it had withdrawn its petition for review by the
United States Court of Appeals for the Fifth Circuit, and
would comply with the Board’s Order. Accordingly on that
date it posted the following notice in four places in the plant,
drawing/stranding bulletin board, building wire/scale bulletin
board, maintenance/power cable bulletin board, and the bul-
letin board in the main employee entrance. The notice was
signed by Personnel Manager Katherine M. Brown.
WE WILL NOT unilaterally and without consultation
with the International Brotherhood of Electrical Work-
ers, Local Union No. 1510 institute a rule prohibiting
employees from using tobacco on company property.
WE WILL NOT enforce the no-tobacco usage rule by
issuing written warnings to employees who violated the
rule.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities for your mutual aid or protection or for sup-
porting the International Brotherhood of Electrical
Workers, Local Union No. 1510 or any other union.
WE WILL NOT refuse to bargain with the Inter-
national Brotherhood of Electrical Workers, Local
Union No. 1510 by refusing to give either the Union
or the employee to whom a written warning is given a
copy of that written warning before a grievance is filed,
or by refusing to furnish the Union with other informa-
tion it requests which is necessary to the processing of
grievances and to the fulfillment of its responsibilities
as the exclusive representative of the employees in the
appropriate unit.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The full text of the notice, posted pursuant to the settlement
agreement; the Board’s Order, and the Employer’s notice, posted
alongside the Board’s notice, are reproduced here in order to better
assess the full impact they may have had on the bargaining unit em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw, and rescind the no-tobacco
usage program we unlawfully put into effect, and WE
WILL bargain collectively, on request, with the Union
concerning the no-tobacco usage rule as the exclusive
representative of employees in the following appro-
priate unit:
WE WILL remove from employee Lannie Biddle’s
files the written warning resulting from the enforcement
of the no-tobacco usage rule, and WE WILL notify him
in writing that we have done so.
WE WILL offer Mickle Smith immediate and full re-
instatement to his former job, or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him whole
for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus
interest.
WE WILL notify Mickle Smith that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
WE WILL give either the Union or the employee to
whom a written warning is given a copy of that written
warning before a grievance if filed, and WE WILL fur-
nish the Union information it requests which is nec-
essary to the processing of grievances and the fulfill-
ment of its responsibilities as the exclusive representa-
tive of the employees in the appropriate unit.
HI-TECH CORPORATION, A SUBSIDIARY OF
SOUTHWIRE COMPANY
DATED: 9/16/92
Simultaneously, with the posting of the Board’s official
notice to employees, the Respondent elected to post along-
side it its own notice reading:
Southwire has decided to withdraw its appeal of the
ruling of the National Labor Relations Board concern-
ing the no-tobacco usage rule. With business conditions
as they are, the company cannot afford to continue the
expensive litigation in this matter. Although we feel we
would have won the case in the courts, we must put the
matter behind us and end the expense of fighting this
dispute in court. We are therefore rescinding the no-to-
bacco usage rule that went into effect April 1, 1991. Ef-
fective immediately, the rule concerning usage of to-
bacco is the same as that in effect prior to April 1,
1991. If you have any questions about the smoking
rules, please see your supervisor.
Some of you may have seen that the United States
Environmental Protection Agency has now published a
report indicating secondary tobacco smoke can be high-
ly dangerous to non-smokers. We hope that any
Southwire employees who are still smokers will be con-
siderate enough of your co-workers to refrain from
smoking in the plant.
Because we feel very strongly about this smoking
issue, we will propose to the union that Southwire
again become a no-tobacco usage facility and we will
be meeting to discuss that issue with them.
Date: Jan. 7, 1993 By: /s/ Jimmie Blackmon
Jimmie Blackmon
Plant Manager
Jt. Exh. 2.
From September 16 until November 17, 1992, and from Jan-
uary 7 through March 8, 1993, notices to employees were
posted in the plant pursuant to the settlement agreement and
to the Board’s Order.6
Notwithstanding Respondent’s posting of the notice and
asserted compliance with the Board’s Order, in its brief, it
stated that the lawfulness of the Board’s Order is again pend-
ing before the United States Court of Appeals for the Fifth
Circuit. (Tr. 6.) NLRB v. Hi-Tech Cable Corp., a Subsidiary
of Southwire Co., enfd. mem. 25 F.3d 1044 (5th Cir. 1994).
The foregoing background is necessary to evaluate and as-
sess the evidence presented in this case relating to the spe-
cific unfair labor practices alleged there.
B. Negotiations of the No-Tobacco Usage Policy
Paragraph 16 of the operative complaint alleges that since
on or about February 16, 1993, Respondent has bargained in
bad faith with the Union regarding its no-tobacco usage pol-
icy at its Starkville facility. An analysis of the evidence per-
taining to Respondent’s negotiations with the Union must be
considered in light of the fact that from September 16 to No-
vember 17 the notice posted pursuant to the settlement agree-
ment stated, inter alia:
WE WILL NOT promise you improved benefits if you
reject the Union as your collective bargaining represent-
ative.
WE WILL NOT inform you that it is futile for you to
retain the Union as your bargaining representative be-
cause WE WILL NOT make changes.
WE WILL NOT solicit you to sign or support a decer-
tification petition.
WE WILL NOT solicit you to act as our agent in a de-
certification effort.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of rights guaran-
teed you by Section 7 of the Act.
In addition the notice posted from January 7 to March 8,
pursuant to the Board’s Order and the impact that these no-
tices had on the employees.
On January 8, a day after the Respondent posted the
Board’s notice to employees along side its own notice to em-
ployees Respondent’s director of industrial relations, Rudy J.
Pilney, sent a letter to Herman E. Holley, international rep-
resentative of IBEW stating:
289HI-TECH CABLE CORP.
Dear Mr. Holley:
Pursuant to a ruling by the National Labor Relations
Board, of which you are aware, the Company has re-
scinded its no-tobacco usage rule at the Starkville facil-
ity. The Company desires to implement the rule as set
forth in the attached notice. Accordingly will you
please contact me at your earliest convenience to ar-
range for a negotiating meeting to discuss the rule. The
Company is also open to discussion, at this meeting, or
on any other appropriate subject.
Joint Exhibit 5. Attached to this letter was the purposed rule
by the Respondent which was essentially the same as that
which it had previously unlawfully implemented.
Also on January 8, International Vice President Gurly
wrote Pilney stating in substance that he was assigning Inter-
national Representative Joe Davis of his staff to contact
IBEW Local 1510 to arrange a mutually agreeable date for
a meeting to discuss the matter and that Davis would be con-
tacting the Union soon. (Jt. Exh. 5.)
On January 12, Pilney wrote Davis advising him that
Gurly had informed him that Davis would be handling the
negotiations for the Union and stating: ‘‘The Company de-
sires to implement the rule essentially set forth in the at-
tached notice.’’ He asked that Davis contact him immediately
to arrange a negotiating date. (Jt. Exh. 6.) The purposed no-
tobacco usage rule was the same as Respondent had pre-
viously imposed.
Also on January 12, Walter Lambeth, attorney, sent a let-
ter to Joe Davis, stating in effect that he, Lambeth, was
available on any Thursday or Friday during the month of
January along with other dates. (Jt. Exh. 7.)
On January 15, Lambeth again wrote Davis stating:
Since our conversation earlier this week, I have not
heard from you even though I contacted your home
today and left a message with your wife. It was my un-
derstanding that you were going to call either Rudy
Pilney or me to set up a date for a negotiating meeting
in Starkville.’’ [Jt. Exh. 8.]
The paragraph confirming a telephone conversation Lambeth
had with Davis earlier that day, he wrote on January 18, an-
other letter stating, inter alia:
Frankly your refusal to discuss tentative dates for a
meeting makes it appear that the Union is attempting to
interpose delay in this matter. I am asking that you re-
consider your position and call either Rudy Pilney or
me to set up a tentative meeting date.
Lambeth also suggested that they correspond by fax other
than mail. (Jt. Exh. 9.)
On January 20, Davis wrote Pilney requesting certain in-
formation:
(1) Copies of all Company policies regarding to-
bacco use.
(2) A statement of all Company policies regarding
tobacco use.
(3) A list of employees who use tobacco and a list
of non-users and in addition thereto, copies of all chem-
ical compounds used at the plant and other material re-
lated to safety and emergency responses. [Jt. Exh. 10.]
By fax Lambeth wrote Davis on January 22, stating he
was forwarding the information he had requested and asking
Plant Manager Blackmon to forward under separate cover
copies of data relating to safety and chemicals in the plant.
(Jt. Exh. 11.) On January 26, 1993, again by fax Lambeth
wrote Davis confirming a telephone conversation earlier that
date in which he had stated he had been informed that the
Union had received the material requested and had agreed to
a negotiating meeting on Tuesday, February 16, and a half-
day Wednesday, February 17. He further suggested that they
meet at the Starkville Holiday Inn and stated that he would
arrange for facilities there. (Jt. Exh. 13.)
By Fax letter dated February 1, Lambeth again wrote
Davis suggesting that they communicate by facsimile trans-
mission with a hard copy by U.S. mail in order to expedite
their communications. And again confirming February 16
and 17, as dates for a meeting. (Jt. Exh. 15.)
1. The February 16 meeting
The first meeting convened on February 16 at approxi-
mately 10 a.m. Representing the Respondent was Rudy
Pilney, Walter Lambeth, Personnel Director Kathy Brown,
and Janet Tomlinson, note taker. For the Union there were
Joe Davis, Joe Shumaker, and Demsey Blanton. Both parties
made notes of the meeting. The Respondent’s notes are much
more extensive than those taken by the Union, however,
there is little, if any, material conflict in the notes. The Re-
spondent’s notes of this negotiating session is Joint Exhibit
16, the Union notes is General Counsel’s Exhibit 3. Pilney
began the negotiations by stating:
Basically we wanted this meeting for the purpose of
negotiating with you about implementing the no-to-
bacco usage rule at the Starkville facility. The Com-
pany is willing to listen, talk, consider and discuss any-
thing you want to concerning re-implementing the no-
tobacco usage rule.
The Union in essence wanted the Company to maintain the
tobacco usage policy that had been in effect prior to its im-
plementation of the no-tobacco usage rule. During the course
of this meeting the Respondent gave to the Union numerous
articles and graphs, about 800 sheets, concerning the adverse
health effects of smoking. Representative of these are items
from EPA; newspaper articles; infertility; heart disease; peri-
odontal disease; HRM articles; which were articles written
by the Heart Association and numerous others which are
Joint Exhibits 20 through 29 and others.
Among other reasons given by the Respondent for declin-
ing to permit any tobacco usage on its property was that it
was corporate policy. The Respondent stated that it wanted
to discourage its employees from tobacco use and the
Union’s position would encourage it. The Respondent also
alluded to the cost as represented by health associations to
employers caused by the use of tobacco. This meeting con-
vened at 10 a.m. and lasted approximately 1 hour at which
time it adjourned.
The meeting reconvened at 1 p.m. During the afternoon
session the parties discussed, inter alia, the areas in which,
prior to the implementation of its no-tobacco usage policy in
April 1991, employees could smoke. At both the morning
and the afternoon session the Union pointed out that Re-
spondent had not removed the large signs proclaiming
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Southwire to be a no-smoking or no-tobacco usage facility
located at the entrances to the plant, which had been posted
almost 2 years earlier when Respondent implemented the un-
lawful rule and requested that they be removed. Respondent
did not comply with this request.
The Union, at this meeting, also requested and was granted
permission to tour the Respondent’s premises, i.e., the plant
area so it would have a better idea where to propose smoking
and nonsmoking areas. This meeting adjourned about 2:30
p.m., after less than a total of 2 hours bargaining. Union rep-
resentatives were then allowed to tour Respondent’s plant.
No progress was made. At trial, Blackmon testified that he
had not been aware of the signs, however, I find this incred-
ulous since the negotiating committee reported to Blackmon
everything that transpired during the negotiations.
2. The February 17 meeting
The parties met again for negotiations at 9 a.m. on Feb-
ruary 17, the same place and same persons present. The
meeting opened with the Union submitting a proposal to the
Company pertaining to areas in which it felt employees
should smoke. (Jt. Exh. 33.) This proposal was:
Union Proposal to Southwire Company 2–17–93
1. Tobacco usage on employees parking lot.
2. Designated area in plant in front of each depart-
ment restroom. One additional area in the Power Cable
Department in front of the Shield Line area.
3. Up stairs area employees be allowed to go out on
the roof and smoke.
4. Ash trays with sand in each area.
5. Company get at least one cigarette machine in
each break area.
6. Company take no tobacco sign from employees
entrance into parking lot.
The parties caucused at 9:25 a.m. The Company represent-
ative contacted Jimmie Blackmon. They came back at 9:55
a.m. stating no to each of the six proposals the Union made.
Asserting item 1 would create a litter problem and is totally
opposed to the Company’s objective and totally against cor-
porate policy; as to item 2, the ceiling fans were installed to
ensure airflow through and cool and was never intended to
exhaust smoke, and again asserted that it was against cor-
porate policy; item 3 created a litter problem and control of
the employees leaving work stations. To items 4, 5, and 6,
the Respondent said no, they were packaged together, they
were trying to discourage the use of tobacco in the facility
and contended that all other Southwire facilities were smoke
free and it was a corporate policy. They also asserted the
same with respect to the use of smokeless tobacco. Also at
the meeting on February 17, the Union’s second proposal on
tobacco usage was:
Union Proposal to Southwire Company 2–17–93
1. Tobacco usage on employee parking lot.
2. Designated area in the plant in front of each de-
partment restroom.
3. Union will provide all ash trays and signs to ad-
dress littering.
4. Company take the no tobacco sign from employ-
ees entrance to parking lot.
After caucusing Respondent returned with no to each pro-
posal, essentially citing the reasons it had given earlier. The
parties adjourned without agreement.
The parties did not meet again until March 16, during
which time the Respondent charged the Union with engaging
in dilatory tactics and deliberately protracting negotiations on
the subject. The same parties were present as at the February
meeting. The Union attempted to address the Company’s re-
jection of the Union’s proposals. The Union then presented
the Company with a three-point proposal:
Union Proposal to Southwire Co.
March 16, 1993
1. Tobacco usage on employee parking lot.
2. Company take down no tobacco signs from em-
ployee entrance to parking lot.
3. Two designated areas for tobacco use. (1) vacant
office at employee entrance into plant. (2) The vacant
PVC room in back of the plant.
Again after a 15- to 20-minute caucus the Respondent re-
turned and rejected on the same grounds and reasons all
three of the Union’s proposals, the Union then made one
simple proposal that the employees be permitted to smoke
outside the plant in the parking lot. Respondent asserted that
was the worst of all proposals because of the problems it
would create with employees slipping out the various en-
trances into the parking lot to smoke and again asserting the
litter problem that it would create.
Respondent also stated that if it made an exception at the
Starkville plant it would have to make exceptions at its other
17 facilities, none of which were organized. Throughout the
negotiations Respondent asserted the corporate policy of no-
tobacco usage facilities, but insisted it had the authority to
negotiate exceptions at the Starkville facility. It pointed to
the fact that policies concerning vacation plans, holidays, and
et cetera varied at different of the employer’s facilities. At
the beginning of this session they discussed the proposed
shift changes and allegations of solicitation in violation of
the Company’s no-solicitation rule. It should be remembered
here that this is during the period of time commencing
around March 8, that the decertification petition or cards
were circulating through the plant.
Joe Davis then charged the Company was not bargaining
in good faith over its tobacco usage rule and Respondent re-
plied by stating something to the effect that unless the Union
had other proposals to make there was nothing to negotiate
about, at which point Respondent stated they were at im-
passe. The scheduled meeting for March 17 did not take
place.
On March 29 (Jt. Exh. 45), the Respondent posted notices
throughout the plant stating in bold type:
Effective Monday, March 29, 1993, the Southwire
Starkville Plant will become a No-Tobacco Usage
Facility. No-Tobacco usage will be permitted within
the property lines of Southwire Company. The prop-
erty lines include plant, office, company vehicles,
and all parking lots as-well-as ground surrounding
these areas.
291HI-TECH CABLE CORP.
It was signed by Jimmie Blackmon and posted March 18, 2
days after the last negotiating session.
C. Regarding Respondent’s Bargaining Over Its No-
Tobacco Usage Policy
The employer’s concern for the health of its employees
and the adverse affect to health almost universally accepted
to be caused by both first- and second-hand smoke and to-
bacco usage is commendable. The Board and courts have
held that tobacco usage is a mandatory subject of bargaining
under Sections 8(a)(5) and 8(d) of the Act.
Section 8(d) of the Act as follows:
For the purposes of this section, to bargain collectively
is the performance of the mutual obligation of the em-
ployer and the representative of the employees to meet
at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement or
any question arising thereunder, and the execution of a
written contract incorporating any agreement reached if
requested by either party, but such obligation does not
compel either party to agree to a proposal or require the
making of a concession . . . .
The Respondent correctly argues that under Section 8(d)
and numerous Board and court cases, including Atlanta Hil-
ton & Tower, 271 NLRB 1600, 1603 (1984), it does not
have to make any concessions and is entitled to stand firm
on a position as long as he reasonably believes it is fair and
proper and that he has sufficient bargaining strength to force
the other party to agree. As Respondent also points out, its
not the function of the judge or the Board to substitute their
judgment for that of the Respondent with respect to the ac-
ceptability or unacceptability of a proposal from which it will
not even make a token concession.
The General Counsel argues that Respondent has not bar-
gained in good faith over the no-tobacco usage policy in that
its primary ‘‘bottom line’’ response to every union proposal
was against corporate policy and that it did not want to do
anything differently at Starkville than it was doing at its
other 17 nonunion facilities all of which were completely to-
bacco free. The General Counsel cites Overnite Transpor-
tation Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th
Cir. 1991). In enforcing the Board’s Order in Overnite the
court observed:
Overnite’s argument raises a valid point. If the com-
pany’s behavior at the bargaining table were the only
evidence of its state of mind, then it might have been
difficult for the Board to support a finding that
Overnite had no real desire to reach an agreement. See
Kankakee-Iroquois County Employers’ Ass’n., 825 F.2d
at 1092–94 (union’s insistence that employer accept
standardized contract not in bad faith where contract
not unrealistically harsh and union’s behavior suggested
that it maintained open, accessible position); see also
Inland Tugs, 918 F.2d 1299. At the very least, the lack
of external factors would have presented the Board (and
this court) with a more complicated task; when a deter-
mination must be made solely from proposals advanced
and adhered to, the distinctions between lawful ‘‘hard
bargaining’’ and unlawful ‘‘surface bargaining’’ are far
from crystalline. See id. (citing Eltec Corp., 297 NLRB
890 893–97 [127 LRRM 1021] (1987); Kankakee-Iro-
quois County Employers’ Ass’n., 825 F.2d at 1094–94;
Wright Motors, 603 F.2d at 609–10.
Overnite’s argument ignores the facts, however, by
focusing solely on its behavior at the bargaining table.
There is more to this case than bargaining stance; Ed-
wards openly declared the company’s unlawful inten-
tions prior to the commencement of collective bargain-
ing. And when those statements are viewed alongside
Overnite’s behavior at the bargaining table, there arises
a fair inference that Overnite was not honestly and in
good faith attempting to preserve uniformity among its
terminals. In other words, Overnite was not ‘‘per-
suaded’’ because it never had any intention to be
persuaded; the company was making good on a promise
never to cooperate with the Union. [938 F.2d at 822.]
I find this case to be analogous. The bargaining, three ses-
sions, in an atmosphere of other unfair labor practices, in-
cluding the Respondent’s failure to fully comply with the
Board’s Order to ‘‘cancel, withdraw, and rescind the no-to-
bacco usage program we put into effect’’ the Respondent is
required to restore the status quo ante, i.e., remove all signs
it posted both outside and inside the plant advising employ-
ees of the implementation of the no-tobacco usage program
and to replace any notices existing prior to the implementa-
tion which indicated where employees could use tobacco. In
addition do nothing in derogation of the Board’s Order. As
noted above, I find Respondent’s contention that these omis-
sions were inadvertent to be completely ludicrous.
In this case in spite of the apparent compliance with the
discreet physical requirements of bargaining, the evidence
shows that the Respondent is in truth seeking to frustrate
agreement, or to disrupt negotiations, or to oust the other
party in determining wages and working conditions.
Accordingly, I find Respondent engaged in surface bar-
gaining with the Union concerning the reimplementation of
the rule and there was a total lack of good faith on Respond-
ent’s part all in violation of Section 8(a)(5) and (1) of the
Act.
D. Jimmy Jones—Refusal to Hire and Section 8(a)(1)
Evidence in support of paragraph 10 of the complaint for
the General Counsel was by applicants Jimmy Jones and Na-
thaniel Kimbrough, both of whom applied for employment
about January 1993. Prior to reviewing and analyzing the tes-
timony of Jones and Kimbrough. A review of the Employer’s
procedure when hiring new employees will aid in under-
standing the circumstances under which this alleged course
of interrogation occurred.
1. The department manager prepares a requisition for
the number of new employees he needs and presents it
to the plant manager, Jimmy Blackmon. If it is ap-
proved.
2. The job openings are then posted in the plant for
bidding by employees.
3. If no qualified employee bids on the job within
an unspecified period of time.
4. Applicants are sought from the outside through
references by present employees and the Mississippi
Unemployment Service Commission.
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sometimes four or more applications are taken by the per-
sonnel department for each position. The hiring process then
begins.
Personnel screens the applications for such desirable traits
as a minimum high school education, stability of their work
history, and other factors. The applications of the applicants
who remain after personnel screening are sent to the depart-
ment manager. He then tells personnel which, if any, of the
applicants he wishes to personally interview. Personnel Man-
ager Kathy Brown then contacts the applicant and arranges
an interview with the department manager, in this case Jim
French, who then interviews the applicant and if still inter-
ested takes him or her on a tour of the department explaining
the operation. After this tour of the department, if the man-
ager is still interested, the applicant is asked to take a drug
test if the manager was not interested the applicant is es-
corted out. If the applicant passes the drug test he or she is
considered a qualified applicant for the position. The depart-
ment manager makes the decision to hire.
Jones testified about the middle of January he was out of
a job and a friend, Franklin (Fred) Shumaker, a Southwire
employee, told him Southwire was taking employment appli-
cations. Jones filed an employment application bearing the
date of January 7, 1993, with Kathy Brown, personnel man-
ager. (R. Exh. 1.) A few days later Brown called Jones and
asked him to come in for an interview. When Jones arrived
he was introduced to Jim French, power cable department
manager. French, as was his practice according to his testi-
mony, took Jones on a tour of his department which covers
about half the area of the entire plant. During the course of
the tour French showed Jones various equipment and told
him about the shift structure, including the swing shift. Jones
told French he could work any shift.
As they were touring the boundaries of the department
French told Jones, that all of it was unionized, and he said
he didn’t know what they needed with a union, because they
could get more without a union.’’ (Tr. 117.) About this time
Joe Shumaker, a shipper, and president of the Local Union,
drove up on his Hyster and talked for a moment. He told
French he should hire Jones because he knew him and he
was a good guy. French said he was thinking about it.
French then told Jones that he had ‘‘worked in Arkansas
where he was in a union for a lot of years, and he didn’t
find nothing that the Union could do but cost a lot of
money.’’ French then asked Jones how he felt about the
Union. Jones told French, ‘‘If he was working in a company
and not on the clock, I wouldn’t need a union, but if I was
going to be on the clock, I would like to be in the Union.’’
(Tr. 117.) Jones had been a supervisor at his previous em-
ployer which also had a union.
When they got back to the personnel office French asked
Jones if he could wait a few minutes. He did. A lady (Kathy
Brown) came out and asked Jones if he would take a drug
test. He agreed and supplied a specimen. Brown told him
they would get back to him. Jones was away for a couple
of days and when he returned he called Brown who told him
that they had not tried to call him. A few days later Jones
asked Shumaker to ask French about his status. Shumaker re-
ported back that French had told him they were not hiring
at that time. A few days later Jones told Joe Shumaker about
the union statements French had made and said he knew they
were not supposed to do that as he had been a supervisor
before.
Later, Fred Shumaker came by and told Jones not to say
anything about the Union. Jones said it was too late he al-
ready had. Shumaker suggested that Jones call Nathaniel
Kimbrough, who had worked with Jones at his previous em-
ployer, and tell him not to say anything about the Union.
Kimbrough did as advised and was hired.
Kimbrough testified a few weeks later he was called for
an interview which followed the same procedure as Jones.
During the tour of the plant, French asked Kimbrough how
he felt about the Union. Kimbrough replied that he had been
out of work over a year and the Union was the last thing
on his mind. Kimbrough testified further that French told
him that French had been involved in a union in other work
and it might have cost him his job. Kimbrough replied that
the Union might have cost him his job at Bellwood. (His
previous employer.) He was then given a drug test which he
passed and was hired. He was still employed at Southwire
at the time of the trial.
The essential difference in the narrative of French’s inter-
view with Jones and Kimbrough and their own is that French
says that he told Jones there was a union there and he could
join or not join. He testified that if employees or applicants
asked about the Union he would tell them that he had been
in the Union and the Union had never done anything for
him. At the time Jones and Kimbrough applied, French said
he had about six openings and he named seven people he
interviewed including Jones and Kimbrough.
French was not an impressive witness and on cross-exam-
ination was unusually evasive and vague. He did testify,
however, that if an applicant or employee brought up the
Union he would tell them that he had been in one and it had
never done anything for him. On the other hand Jones, on
both direct and cross-examination was fairly concise and re-
sponsive to questions showing no indication of evasion or
deceit. Another factor affecting French’s credibility was the
shifting reasons he gave for not hiring Jones, some of which
were not in accord with Brown’s reason.
French testified one reason for his refusal to hire Jones
was that he had been a supervisor at his previous employer
and that it was his experience that they usually did not work
well in nonsupervisory positions. The fact that Jones was a
supervisor at his previous employer was on the face of his
application and was known to French before the interview.
He still ordered the drug screening, however, which if
passed, usually meant you were hired. Another intervening
factor, however, came into play. At some point the same day
after Jones’ drug screening, Kathy Brown told French that
Jones had made either an ‘‘inappropriate’’ remark or a re-
mark that she ‘‘did not appreciate.’’ Incredibly, French testi-
fied that he made no inquiry of Brown as to precisely what
the remark was or even the nature of it. At trial Brown testi-
fied that she did not remember what the remark was, but it
was one she felt ‘‘inappropriate’’ or ‘‘did not appreciate.’’
French ultimately stated the reason for not hiring Jones
was this remark. In March, however, Jones called Brown and
was told that he did not meet the height and weight chart,
which had gone into effect. (R. Exh. 8.) French knew noth-
ing about a height weight chart and testified that his decision
not to hire Jones had nothing to do with Jones’ size. French
seemed not to be aware of any such chart. It should be noted
293HI-TECH CABLE CORP.
7 Henson testified that he had four full-time cutters on the first
shift and Scott’s only duties were scrapping and cleanup.
that from their appearance at trial, both Jones and
Kimbrough were over the weight chart (R. Exh. 8). Respond-
ent asserted that the height-weight chart went into effect for
applicants in February or March.
Findings
The above events occurred during the period of time Re-
spondent was remedying previous unfair labor practices and
yet another effort to decertify the Union was underway.
Their is no doubt Respondent was well aware of, and ap-
proved, all efforts to rid itself of the Union. French’s testi-
mony that Jones’ previous supervisory position was only one
strike against him and it was the alleged ‘‘inappropriate’’ re-
mark, made to Brown, the nature of which she could not re-
member and French did not inquire about, was the reason he
did not hire Jones. On the other hand, Brown unequivocally
testified that in March ‘‘I personally told Jones that we did
have a height and weight requirement that applicants must
meet at that time, and I advised him that he did not fall with-
in the appropriate ranges, so that we would not be able to
continue the screening process for him.’’ (Tr. 298.)
It is well settled that evidence showing that an employer
gave shifting reasons for action against an alleged dis-
criminatee illustrates that those reasons are pretextual. Zurn
Industries, 255 NLRB 632, 634, 635 (1981). ‘‘A pretextual
reason of course supports an inference of an unlawful one.’’
Keller Mfg. Co., 237 NLRB 712 (1978), cf. Seminole Fire
Protection, 306 NLRB 590, 592, 593 (1992). This principle
of inference is particularly applicable where, as here, an em-
ployer is engaging in other extensive unfair labor practices.
I further find that Jim French violated Section 8(a)(1) by
his interrogation of both Jones and Kimbrough as to how
they felt about the Union and also his statement to Jones that
the employees could get more without a union.
E. William Scott
Rex Henson, shipping manager, testified that about the
middle of January cutting orders had gone up due to several
factors and they were running behind in their cuts. (R. Exh.
4.) There are four cut lines or machines which were then
running two shifts. There is a fifth cutting machine that is
used occasionally. He wanted to start up the third shift tem-
porarily to relieve the backlog and requisitioned four tem-
porary employees. It was not until about the last of January
that the plant manager approved the requisition. He stated
that after approval he hired through the personnel department
four temporary employees: John Haynes on January 25, Mi-
chael Howard and William Scott on January 26, and Greg
Pearson on January 27. Jimmy Livingston was loaned to him
temporarily by power cable to supervise the third shift.
Howard worked 1 day and did not come back. Henson
made John Haynes a permanent employee and transferred
him to the second shift, stating that he was hired a day be-
fore the others. Henson stated that he fired Greg Pearson on
February 8 for excessive absenteeism. (R. Exh. 9.) Shortly
thereafter Scott, being the only one of the four left who were
hired to run the cutting room on the third shift, was trans-
ferred to the first shift as a cutter, scraping, and cleanup
man.7 On this record, it appears that the third shift ran the
four cutting machines only one night since Howard did not
report back the second night and Haynes was transferred to
the second shift as a permanent employee. That left only
Pearson and Scott who could operate only two cutting ma-
chines. On February 8, less than 2 weeks after he was hired
Pearson was terminated for excessive absenteeism. Respond-
ent says that it did not try to hire additional temporary em-
ployees to keep the third shift running because the number
of cuts had rapidly fallen off. It appears that the cutting de-
partment ran the four cutting machines only one shift since
Howard did not report the second day and Haynes was trans-
ferred to the second shift as a permanent employee. That left
Pearson and Scott on the third shift for less than 2 weeks.
Pearson was fired for excessive absenteeism on February 8
and the record does not disclose how many days he was ab-
sent between January 27, the day he was hired and February
8, the day of his discharge for excessive absenteeism. It
would appear that third-shift operation could have done little
to alleviate the backlog of cuts during this brief period.
Scott was hired by Kathy Brown, but was interviewed by
Jimmy French. His supervisors were Mel Jones and Rex
Henderson. Scott says that he was told by Mel Jones, the day
supervisor, and Jimmy, the third-shift supervisor, that he was
doing a good job.
Scott was told by Rex Henson at the end of the shift on
March 29, that he was being laid off due to lack of work,
but that he could work 1 more day, March 30.
The General Counsel contends that Scott’s termination was
prompted by his wearing a union-oriented T-shirt on March
29. The shirt, although not offered into evidence, was identi-
fied by Scott at the trial. The shirt was blue in color and had
emblazoned on the front, ‘‘A GREAT UNION, IUE, FOR A
BETTER TOMORROW. BUY AMERICAN.’’ Running
through the words was something resembling a lightning
bolt. On the back of the shirt was printed, ‘‘RESPECT,
THAT’S WHAT THE UNION MEANS TO ME.’’ That
Scott wore the shirt on the day in question is not in doubt
even though Scott’s testimony concerning how he came to be
wearing the shirt and his knowledge that it ‘‘was a union
shirt’’ (Tr. 154) is less than clear and unambiguous. Scott
testified the shirt did not belong to him and the record does
not reveal clearly how he came to be wearing it or to whom
it belonged. When Scott started work on March 29 he had
a sweatshirt on over the T-shirt. The sweatshirt got too warm
and he removed it exposing the union T-shirt. A few minutes
later some unidentified employee asked Scott what type of
shirt it was and Scott asked what he meant. The employee
told him he was wearing a union shirt. Scott turned the shirt
inside out. Henson gave Scott a specific assignment and an
employee named Reed asked him about the shirt.
Scott talked with Local Union President Joe Shumaker,
who told him that it was not a good idea to wear the shirt.
Scott put a windbreaker over the shirt and worked another
couple of hours when Building Wire Department Manager
Gerri Tate came to Scott at the water fountain and asked him
which one of the guys in shipping was wearing a shirt saying
something about ‘‘respect the Union.’’ Scott admitted that it
was him and ‘‘I told him I was not really aware of what the
shirt was saying.’’ Tate told Scott he had heard some talk
in personnel about it. Scott asked if it was going to be a
problem and Tate said he didn’t know. Tate denies the fore-
going dialogue with Scott. I credit Scott here. Hereafter, I am
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In its brief, Respondent asserted that Scott testified he wore the
shirt the last day worked. He did answer yes to that question on
cross-examination. His testimony as a whole, however, is clear that
he wore the shirt on the day before when Henson told him he was
laid off.
constrained to credit Vernita Robinson over Tate and I be-
lieve Tate denied everything he thought would be detrimental
to the employer’s case.
F. Discussion
In cases such as this, where both legitimate and invidious
motives under the Act are offered to explain an employer’s
actions toward it employees, the Board relies on a two-step
test to determine whether a causal relationship exists between
the alleged discriminatory action and the employees’ con-
certed activities. Wright Line, 251 NLRB 1083 (1980), enfd.
as modified 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). The General Counsel first must make a
prima facie showing sufficient to support an inference that
the protected conduct was a motivating factor in the employ-
er’s decision to impose discipline on an employee. Once this
is established, the burden shifts to the employer to dem-
onstrate by a preponderance of the evidence that its conduct
would have been the same even in the absence of the em-
ployee’s protected activity. Id. at 1089; Roure Bertrand Du-
pont, Inc., 271 NLRB 443 (1984).
The General Counsel argues that the timing of Scott’s lay-
off or termination without any prior indication on the day
that he wore the union shirt shows the true motive behind
the discharge. Citing Limpert Bros., 276 NLRB 364 (1985),
and Aluminum Technical Extrusions, Inc., 274 NLRB 1414
(1985).8
The Respondent argues in the first instance that the Gen-
eral Counsel has failed to make out a prima facie showing
sufficient to support the inference that protected conduct was
a motivating factor in the Employer’s decision to take the ac-
tion it did against Scott under the Wright Line, supra, ration-
ale. It further argues in the alternative that even if the prima
facie burden has been met the action against Scott would
have been taken for legitimate business reasons. Respondent
further points out that many employees were displaying
prounion buttons, badges, and other items indicating their
support for the Union and its knowledge that Scott wore a
prounion T-shirt was of no great moment in view of the fact
that it had not taken retaliatory action against others who
showed support for the Union.
Henson testified that Scott was a marginal employee and
cited an unspecified occasion when he had assigned Scott a
task and he just sort of disappeared for about 1 hour. He did
not indicate in his testimony that he made any comment to
Scott about this. It is not denied that Scott had been told by
his supervisor on both the third and first shift that he was
doing a good job. The record does not indicate that Scott had
even been verbally admonished about any element of his
work and there were no written reprimands concerning his
work.
There is no question that at this time Respondent was well
aware of the fact that at least a third decertification effort
was well underway in about as many years since Southwire
had acquired this facility. The Union survived a decertifica-
tion effort in December 1990, a little more than a year after
Southwire’s acquisition which gave the Union an irrebuttable
1-year period of insulation. It is evident that a second decer-
tification effort was underway in 1992, which resulted in the
settlement agreement in Case 26–CA–15098 on September
10, 1992, wherein Respondent agreed ‘‘that any signature
generated prior to the ending of the posting period will not
be used to support any decertification petition or withdrawal
of recognition.’’ Another such decertification effort was un-
derway in March 1993.
There is no doubt that Scott was more vulnerable than per-
manent employees since he was hired as a temporary. I find
it more than a coincidence that on the day Scott wore the
T-shirt indicating support for the Union that Respondent de-
termined that it no longer needed his services although he
was allowed to work 1 more day. His termination occurring
in midweek, on a Tuesday, instead of the end of a pay period
demonstrates Respondent’s eagerness to rid itself of at least
one union supporter. In view of Respondent’s well-estab-
lished union animus, I find that Respondent has not dem-
onstrated by a preponderance of the evidence that its conduct
would have been the same in the absence of Scott’s protected
activity. Accordingly, I find that Scott’s termination violates
Section 8(a)(3) and (1) of the Act.
Additional 8(a)(1) Allegations
The General Counsel relies on the testimony of Vernita
Robinson to carry the burden of the allegations in paragraphs
12(a), (b), and (c). An employee committee monthly makes
the selection of ‘‘employee of the month.’’ The record does
not reveal what factors are considered in making this selec-
tion. Robinson works the second shift in the building wire
department which is managed by Gerri Tate. Robinson was
awarded the employee of the month award for April.
Robinson testified that a day or two before she received
this award Gerri Tate came to her and told her that he had
something that he wanted to tell her. He then asked if he
could trust her and she replied, ‘‘Yeah.’’ Tate said, ‘‘You
know that little blue button you wear.’’ Robinson asked what
little blue button, ‘‘My union button’’ and Tate said,
‘‘Yeah’’ and asked what about it. Tate said, ‘‘Well some one
here thinks very highly of you and they’d appreciate it if you
didn’t wear the button.’’ Robinson asked who and Tate re-
plied he could not give her a name, but to take his advise
and do not wear the button. Robinson said, ‘‘Okay.’’
The following day Tate called Robinson at home and told
her to come in about 25 minutes early. She inquired why,
if they were going to have a safety meeting and Tate said
no, he just needed her to come in early. Tate says he had
been called by the purchasing agent, ‘‘Rosemary’’ a member
of management and told simply to call Robinson and tell her
to come in early the next day. Rosemary did not say why
and Tate did not inquire. When she arrived, the security
guard held her outside along with some other employees
until about 15 minutes before ‘‘punch in’’ time. Robinson
met Tate in the corridor who talked about women never
being on time. She asked where they were going and he told
her to be patient. He then escorted her into the front lobby
where she was presented with the ‘‘Employee of the Month
Plaque.’’ The Respondent then caused to be published in the
local newspaper a picture and brief writeup of Robinson’s se-
curing the award. (R. Exh. 2.) After the presentation of the
plaque Tate accompanied Robinson out and told her, ‘‘I told
295HI-TECH CABLE CORP.
you that people here think very highly of you, and if you do
the right thing better things could happen for you.’’ Robin-
son replied, ‘‘Okay.’’
Tate denies any conversation with Robinson about the
Union and any union insignia she may have displayed. He
admits that on instruction from Rosemary he called Robinson
and asked her to come in early, although he did not inquire
the reason. After Robinson received the award Tate says he
‘‘told her he thought she really deserved it, because of the
work she had done as a female, being the only female to run
the CU line.’’ He continues that he told her ‘‘that I realized
that she’s like other employee out there and don’t think that
we recognized things that they does [sic], but we really do,
and I told her to keep it up.’’
Prior to resolving the issues raised here with respect to
Tate’s alleged solicitation of Robinson to not wear her union
button and the unspecified promise of benefits to stop doing
so it is helpful to set forth other testimony by Robinson. Ac-
cording to Robinson, during this same period of time em-
ployee Maxine Washington who worked the first shift in
Robinson’s department worked overtime on the day in ques-
tion. During their break, about 6 p.m., they were in the O.A.
room Washington told her she had something she wanted to
tell her. Washington said that she had asked her before and
Robinson turned her down. Washington then told her that
Gerri (Tate) had asked her to try to get Robinson to sign a
card to get the Union out. She said that Gerri had told her
they were going to hire a supervisor whereupon Robinson
stopped her and told her she did not believe what Gerri was
saying and in any event they would not hire her as a super-
visor in view of her being a woman and having only a 12th
grade education. Robinson told Washington Gerri was just
using her to get Robinson to sign a decertification card.
Respondent called Washington, an ardent supporter of the
decertification drive, who admitted that she had solicited
Robinson to sign a card and to talking to her about becoming
a supervisor. She states that she told Vernita that they need
a lady supervisor, and Washington thought Vernita would
make a good one. Washington, however, emphatically denied
that she had been asked by Tate to solicit Robinson to come
over to their side or suggest that Robinson could be made
a supervisor if she did so. Washington says that was entirely
her own idea.
It was well known in the plant that Washington was an
ardent supporter of the drive to get the Union decertified and
that Robinson was just as ardent in her support for the
Union. Washington testified that she went to Plant Manager
Jimmy Blackmon, Tate, and another supervisor, Willie
Neeley, and asked them to stay out of it this time and let
the employees handle it. She was evidently referring to pre-
vious occasions when management had been accused of im-
proper conduct in a decertification effort. Washington also
testified that no one from management ever admonished her
not to solicit employees while either she or the employee
was working. Although Respondent contended that employ-
ees on both sides were constantly reminded of the Employ-
er’s no-solicitation rule and solicited reports of any violations
thereof.
I cannot credit Tate’s testimony that he had never seen
Robinson wearing a blue prounion bottom as he testified. Re-
spondent’s own witness, Washington, testified to her wearing
such a button. I find as alleged that Tate told Robinson that
a lot of people thought very highly of her and would appre-
ciate it if she did not wear it, unequivocally implying some
unspecified benefit would accrue to her if she supported the
decertification effort. This is emphasized in his conversation
with her following her award, ‘‘I told you people here think
very highly of you and if you do the right thing better things
could happen for you.’’ I note that Robinson was currently
employed by Respondent as were most other General Coun-
sel witnesses except Jones and Scott. The Board has long
held that the testimony of a currently employed employee
testifying adverse to their employer should be viewed favor-
able as opposed to the self-interest testimony of a supervisor.
Gold Standard Enterprises, 234 NLRB 618 (1978), and D &
H Mfg. Co., 239 NLRB 393, 396 (1978).
George Hart had worked for Respondent over 7 years as
a repair operator on the first shift under the supervision of
Jim French. Hart had supported the other decertification ef-
forts undertaken at the plant. Hart testified that during the
time of the petition, Jim French talked to him about the ben-
efits and stuff they would receive if they did not have a
Union, but that French never specifically asked him to sign
a ‘‘decert.’’
Hart also testified that during the same period Plant Man-
ager Jimmy Blackmon came to him on the floor and while
not asking him to sign a card started talking ‘‘about the peo-
ple in the Union, hard heads, stuff like that, keeping us away
from the benefits and stuff we should be getting.’’ Blackmon
continued, ‘‘George, now I help you out,’’ now its time to
help him out. Hart told Blackmon he had already signed a
decert card. Hart said that in the past Blackmon had let him
come in on his days off ‘‘to cut the grass’’ and stuff to make
up his time. Respondent argues in brief that Blackmon had
made such comments to Hart on frequent occasions, some-
times to mow the grass and to participate on numerous com-
mittees. On this occasion, however, when Hart told
Blackmon he had already signed a decert card, Blackmon ex-
pressed no other way in which Hart could help him out.
Accordingly, I find that Section 8(a)(1) was violated by
French by promising Hart they would have better benefits if
they did not have the Union. As noted above French testified
that when asked he told employees that the Union had never
done anything for him and told them about the benefits he
had without a union. Similarly, in the context of Blackmon
telling Hart the Union was keeping them away from benefits
they should be getting Section 8(a)(1) was violated.
G. Withdrawal of Recognition
On Friday, May 28, about 4:30 p.m., employee Roy Ben-
nett went to Jimmie Blackmon’s office and handed him a
manila envelope. Bennett had been one of the most active
employees in the decertification effort. The two were alone
and the record does not reveal that any words were ex-
changed between them. Bennett did not testify. The envelope
contained 117 cards about 1 by 2 inches in size on which
was printed, ‘‘We the employees of Hi-Tech Southwire no
longer desire to be represented by IBEW No. 1510’’ and
each bearing the name of an employee and allegedly signed
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 R. Exh. 5 by stipulation the Respondent was permitted to place
photo copies of the front and back of each card into evidence in lieu
of the originals.
10 The letter from Lambeth to Davis and the notice to employees
posted by Blackmon are in evidence as Jt. Exh. 50.
by that employee.9 Blackmon testified that he took the cards
to the personnel department and as best as I could verified
the signatures on the cards with Personnel Manager Kathy
Brown. According to Blackmon, they verified all the signa-
tures from the personnel files and where the names were
printed compared the printout name found in the personnel
files. After this verification which took about 1 hour and 15
minutes he replaced them in the manila envelope and took
them home with him for the weekend.
Monday was a holiday. On Tuesday Blackmon returned to
the plant and placed the cards in a sealed manila envelope
and locked them in a safe. Soon thereafter he gave them to
Attorney Lambeth. On June 1, Lambeth wrote International
Representative Davis a letter withdrawing recognition of the
Union stating the Company was firmly convinced the Union
no longer represented a majority of the employees in the
unit. On June 2, Blackmon posted the following notice in the
plant:10
NOTICE TO EMPLOYEES
June 2, 1993
Our attorney has forwarded a letter to the Union and
I am posting a copy for you to read. We are withdraw-
ing recognition from Local 1510, I.B.E.W., based upon
petitions signed by the substantial majority of
Southwire employees indicating you do not wish con-
tinued representation by that union.
WE WILL NOT recognize the union here at Southwire
and WE WILL NOT deal further with Local 1510. If you
have questions about this matter, please direct them to
Jimmie Blackmon or Kathy Brown.
/s/ Jimmie Blackmon
Southwire Company
On June 4, Respondent announced that it was giving all
hourly paid production and maintenance employees a 60-
cent-per-hour wage increase effective June 6, by the posting
of the following notice in the plant. (Jt. Exh. 51):
NOTICE TO ALL EMPLOYEES
JUNE 4, 1993
I am pleased to announce that effective Sunday, June
6, 1993, a 60 cents per hour wage increase will be im-
plemented for all hourly-paid production and mainte-
nance employees. We are taking this action because we
feel our plant has fallen somewhat behind in wages
over the past year or so. We have not had the oppor-
tunity to do a comprehensive wage study, but we feel
that the 60 cents increase, at least, is justified now. We
will undertake to further evaluate our wage situation
over the coming months, determine whether any addi-
tional increase will be given, and inform you of that de-
cision in January 1994. During the same period we will
also undertake to study all current benefit programs in
effect for hourly production and maintenance employ-
ees, including the retirement plan and group health in-
surance, to determine whether changes might be made
in those areas. We will announce any such changes also
in January, 1994.
/s/ Jimmie Blackmon
Plant Manager
The Respondent admits the withdrawal of recognition and
the granting of the wage increase. Another postwithdrawal
violation, however, the failure to process grievances is de-
nied in Respondent’s answer. Henry McNeese, the chief
steward, testified that after the Company withdrew recogni-
tion he went to Kathy Brown to process two pending griev-
ances at the second step and she told him the Employer no
longer recognized the Union, and refused the grievance. He
had two more grievances going to the third step with Jimmie,
but after Brown’s refusal he did not attempt to process those
further. He also tried to file a first-step grievance with
Donnie Glenn who told him he had ‘‘to wait until we get
this settled first,’’ and refused the grievance. The Respondent
presented no evidence refuting this testimony.
The Respondent may not raise a question concerning rep-
resentation in the atmosphere of unremedied unfair labor
practices as set forth above. Even if it withdrew recognition
of the Union based on a good-faith belief that the Union no
longer enjoyed majority status it had a duty to continue with
the processing of pending grievances.
Analysis and Conclusions
The basic principles are well settled. Absent unusual cir-
cumstances, a union is irrebuttably presumed to enjoy major-
ity status during the first year following its certification. On
expiration of the certification year, the presumption of major-
ity status becomes rebuttable. Parkview Furniture Mfg. Co.,
284 NLRB 947, 967 (1987). That rebuttable presumption
also continues to apply after the expiration of a collective-
bargaining agreement. Guerdon Industries, 218 NLRB 658,
659 (1975). An employer who wishes to withdraw recogni-
tion from a certified union after the first year, or after the
expiration of a collective-bargaining agreement, may rebut
the presumption of majority status in either of two ways: (1)
by showing that on the date recognition was withdrawn the
union did not in fact enjoy majority support, or (2) by pre-
senting evidence of a sufficient objective basis for a reason-
able doubt of the union’s majority status at the time the em-
ployer refused to bargain. Id. Guerdon, Parkview; in the in-
stant case, Respondent contends that it has rebutted the pre-
sumption under both options set out above.
Although a majority of the unit did not support the Union
on the relevant date, the law is equally well settled that an
employer may not avoid its duty to bargain by relying on
any loss of majority status attributable to his own unfair
labor practices. Pittsburgh & New England Trucking, 249
NLRB 833, 836 (1980).
Thus, it is clear that prior unremedied unfair labor prac-
tices remove as a lawful basis for an employer’s with-
drawal of recognition the existence of a decertification
petition or any other evidence of loss of union support
which, in other circumstances, might be considered as
providing objective considerations demonstrating a free
297HI-TECH CABLE CORP.
and voluntary choice on the part of employees to with-
draw their support of the labor organization.
Id. Pittsburgh & New England. The unfair labor practices,
however, must be of a character as to either affect the
Union’s status, cause employee disaffection, or improperly
affect the bargaining relationship itself. Id. Guerdon, supra,
stated differently, the unfair labor practices must have caused
the employee disaffection here or at least had a ‘‘meaningful
impact’’ in bringing about that disaffection. Deblin Mfg.
Corp., 208 NLRB 392 (1974). In short, there must be a caus-
al relationship between the unlawful conduct and the petition
of August–September 1982. Olson Bodies, Inc., 206 NLRB
779 (1973).
The General Counsel contends, in effect, that the causal
relationship is demonstrated as a matter of law by virtue of
the continued impact of the unremedied unfair labor practices
in light of the background of flagrant and serious unfair labor
practices.
Under Olson, supra, several factors are named as criteria
for determining whether a causal relationship has been dem-
onstrated. They include: (1) the length of time between the
unfair labor practices and the withdrawal of recognition; (2)
the nature of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possible
tendency to cause employee disaffection from the union; and
(4) the effect of the unlawful conduct on employee morale,
organizational activities, and membership in the union.
With respect to the first factor there had been no signifi-
cant time lapse of Respondent’s unfair labor practices for at
least 2 years prior to the withdrawal of recognition based on
the cards submitted on May 28. What is more persuasive that
there was nexus between the unfair labor practices and that
those unfair labor practices had a ‘‘meaningful impact’’ in
bringing about employee disaffection is the timing of Re-
spondent’s remedying of same. Moreover, some of the unfair
labor practices found here occurred simultaneously with the
decertification effort the results of which Respondent bases
its withdrawal of recognition. Factors two and three are the
reasons for addressing the settlement agreement and the no-
tice to employees posted pursuant thereto from September 16
to November 17, 1992. The entire notice dealt with employ-
ers alleged participation or interference in another decerti-
fication effort. It advises employees that it will not dispar-
ately enforce its no-solicitation/no-distribution rule by pro-
hibiting union solicitation and distribution while permitting
such nonunion activity; promising improved benefits to reject
the Union; telling its employees it would be futile to retain
the Union as their collective-bargaining representative; solic-
iting its employees to sign the decertification petition; or so-
licit them to act as employer agents in the decertification ef-
fort.
On the heels of this notice followed the notice posted pur-
suant to the Board Order at 309 NLRB 10 (1992), on Janu-
ary 7, 1993, which remained posted until March 7, 1993, just
a day before the first of the decertification cards introduced
here. This notice advised the employees, inter alia, that the
employer would not unilaterally implement or enforce certain
rules; that it would not discharge or otherwise discriminate
against employees for their union activity; that it would not
refuse to bargain in good faith with the Union; that it would
rescind its unlawfully implemented no-tobacco usage policy,
and that it would offer reinstatement to, and make whole an
employee it had discriminatorily discharged.
The time elapsing between the positing of these notices
and the commencement of the decertification drive here was
simply not sufficient to dissipate the impact of the employ-
er’s unfair labor practices. Particularly where during the in-
stant effort the evidence established that the employer contin-
ued to interfere with its employees’ freedom of choice by in-
terrogating them; and soliciting them not to wear prounion
insignia and promising unspecified benefits to support the
decertification effort. In the instant case, this conduct was di-
rected to only a few employees, however, the Board has held
that it is unnecessary, in negating a claim of an uncoerced
majority, to show mathematically that less than a majority
freely signed authorization cards. A pattern of company as-
sistance can be sufficient to invalidate all cards. See NLRB
v. Jan Power, Inc., 421 F.2d 1058, 1061–1062 (9th Cir.
1970).
In view of the foregoing establishing Respondent’s own
misconduct it could not in good faith withdraw recognition
of the Union.
CONCLUSIONS OF LAW
1. Hi-Tech Cable Corporation, a Subsidiary of Southwire
Company is an employer within the meaning of Section 2(2)
of the Act engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
Union No. 1510 is a labor organization within the meaning
of Section 2(5) of the Act.
3. The appropriate unit is:
All hourly rated production and maintenance employees
at the Employer’s cable and wire plant in Starkville,
Mississippi, excluding office and clerical employees,
technical and engineering employees, professional em-
ployees, management and supervisory employees as de-
fined in the Act, and guards.
4. At all times material the Union has been the exclusive
bargaining representative of the employees in the aforesaid
appropriate unit within the meaning of Section 9(a) of the
Act.
5. By engaging in the following conduct, the Company
violated Section 8(a)(1) of the Act.
(a) Interrogating its employees and applicants for employ-
ment concerning their union activities and sympathies.
(b) Soliciting its employees not to wear prounion insignia.
(c) Soliciting its employees to support the decertification
effort.
(d) Promising its employees unspecified benefits to stop
wearing a union button.
6. By engaging in the following conduct, the Company has
violated Section 8(a)(3) and (1) of the Act.
(a) By failing and refusing to employ applicant Jimmy
Jones on or about January 26, 1993, because of his union
and concerted protected activities.
(b) By discharging, failing, and refusing to reinstate its
employee William Scott because of his union and protected
concerted activities.
7. By engaging in the following conduct, the Company has
violated Section 8(a)(5) and (1) of the Act.
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1997 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
(a) Since on or about February 16, 1993, failing and refus-
ing to bargain with the Union in good faith regarding its no-
tobacco usage policy.
(b) By unilaterally implementing a no-tobacco usage pol-
icy at its Starkville, Mississippi facility.
(c) Since on or about June 4, 1993, failing and refusing
to process employee grievances.
(d) By, on about June 2, 1993, withdrawing its recognition
of the Union as the exclusive collective-bargaining represent-
ative of all employees in an appropriate unit.
(e) By, on or about June 6, 1993, unilaterally and without
negotiation with the Union granting its employees a 60-cent-
per-hour wage increase.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in violations
of Section 8(a)(1), (3), and (5) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Having found that the Company unlawfully discharged its
employee William Scott and unlawfully refused to hire for
employment applicant Jimmy Jones, I shall recommend that
it be ordered to offer immediate and full reinstatement to
Scott to his former position of employment and if that posi-
tion is no longer available to a substantially equivalent one
without prejudice to his seniority or any other rights and
privileges previously enjoyed. I further recommend that Re-
spondent be ordered to offer Jimmy Jones the job for which
he applied without loss of any benefits he would have ac-
crued absent Respondent’s refusal to hire him. I recommend
that Respondent be ordered to make William Scott and
Jimmy Jones whole for any loss of earnings and other bene-
fits they may have suffered by reason of Respondent’s dis-
crimination against them. Backpay is to be computed in ac-
cordance with the Board’s decision in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as described in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).11
Recognize the Union as the exclusive collective-bargaining
representative for all the employees in the appropriate unit
and on request bargain with the Union as the exclusive rep-
resentative of the employees and embody any understanding
reached in a signed agreement.
[Recommended Order omitted from publication.]