John W. Hancock, Jr., Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1223 (N.L.R.B. 2002)

JOHN W. HANCOCK JR., INC. 1223
John W. Hancock, Jr., Inc. and United Steelworkers
of America, AFL–CIO. Case 11–CA–18716
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND COWEN
On December 8, 2000, Administrative Law Judge
George Carson II issued the attached decision. The Re­
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Order
and to adopt the recommended Order as modified.2
We affirm the judge’s findings that the Respondent (a)
violated Section 8(a)(1) when it threatened to close part
of its facility, (b) violated Section 8(a)(1) when it threat­
ened to discharge employee Ray Preston Connor for en-
gaging in union activity, and (c) violated Section 8(a)(3)
and (1) when it discharged employees Larry Pugh and
Paul Akers because it believed they were engaging in
union activity.3 However, we reverse the judge’s finding
that Supervisor David Kelly’s interrogation of employee
Connor violated Section 8(a)(1).
The facts relevant to the interrogation finding may be
briefly stated. The Respondent employs approximately
235 employees at its Salem, Virginia facility. The facility
consists of two main structures, the Rack Plant and the
Joist Plant, which are situated across the road from one
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to our
findings, and also in accordance with our recent decision in Ferguson
Electric Co., 335 NLRB 142 (2001). We shall substitute a new notice
in accordance with our recent decision in Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001).
3 In adopting the judge’s findings that the Respondent’s discharge of
employee Paul Akers violated Sec. 8(a)(3) and (1), we find it unneces­
sary to rely on the judge’s statement, in sec. II,D,2 of his decision, that
the absence of discussion among the Respondent’s managers regarding
changing the level of Akers’ discipline showed that the level of disci­
pline did not change.
In adopting the judge’s findings that the Respondent’s discharge of
employees Akers and Larry Pugh violated Sec. 8(a)(3) and (1), Member
Cowen does not rely on the adverse inference drawn by the judge, in sec.
II,D,2 of his decision, from the fact that Human Resources Manager Bill
Reinholtz and Plant Superintendent Paul Wallace did not testify.
another. The Union attempted to organize the Respon­
dent’s employees in 1986 and 1990, and it tried a third
time beginning in March 2000. On May 21, 2000, the
Union held a meeting at the Salem Civic Center. The next
day, Supervisor Kelly was riding in a truck with emp loyee
Connor from the Rack Plant to the Joist Plant during
breaktime. Kelly supervises Connor and one other em­
ployee. During their brief ride together, Kelly asked Con-
nor “how many men were at the meeting last night?”
Connor replied that he did not know, and Kelly dropped
the subject. Connor was not an open supporter of the Un­
ion’s 2000 organizational drive, but he had openly sup-
ported the Union during its 1986 and 1990 drives.
In finding Kelly’s question unlawful, the judge first
observed that Kelly was asking about the union activity
of employees other than Connor, and then stated that
“[a]n inquiry regarding the union sympathies of employ­
ees other than employees who have made their union
sympathies known is coercive and constitutes unlawful
interrogation in violation of Section 8(a)(1) of the Act.”
The judge’s statement announces what amounts to a per
se rule making it unlawful to question an employee about
the union views of other employees who have not dis­
closed their views. We reject the judge’s statement as
inconsistent with the totality-of-the-circumstances test
set forth in Rossmore House.4 In that case, the Board
announced that deciding whether an interrogation is
unlawful requires an evaluation of all of the circum­
stances to determine whether the questioning reasonably
tended to restrain, coerce, or interfere with rights guaran­
teed by the Act. 269 NLRB at 1177. This analysis ap­
plies, for example, even where the questioning seeks to
probe the union views of employees who are not open
and active union supporters, Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), or to discover the union views
of employees other than the employee being questioned,
Gardner Engineering, 313 NLRB 755 (1994), enf. in
relevant part 115 F.3d 636 (9th Cir. 1997). In short, all
allegations of coercive interrogation must be evaluated in
light of the totality of the circumstances, as Rossmore
House holds. In conducting that evaluation, the Board
considers the employer’s background, the nature of the
information sought, the identity of the questioner, and the
place and method of interrogation. Rossmore House, 269
NLRB at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48
4 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). As authority for his statement,
the judge cited Action Auto Stores, 298 NLRB 875, 895 (1990). Al­
though Action Auto states that the employer was “not privileged to ask
[employees] to reveal the sympathies of others,” in finding the interro­
gation violation the Board in that case relied on the totality of the cir­
cumstances, citing Rossmore House. 298 NLRB at 895 fn. 50. Thus,
Action Auto does not support the judge’s statement.
337 NLRB No. 183
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(2d Cir. 1964). Although “strict evaluation of each fac­
tor” is not required, these “useful indicia . . . serve as a
starting point for assessing the totality of the circum­
stance[s].” Perdue Farms, Inc. v. NLRB, 144 F.3d 830,
835 (D.C. Cir. 1998) (internal quotations omitted).
As to the Respondent’s background, we note that the
Respondent’s unfair labor practices all postdated Kelly’s
questioning of Connor and are unrelated to that question-
ing.5 Prior to the questioning at issue here, the Respondent
did voice its opposition to the unionization of its work
force in various ways.6 However, none of these statements
contained any threats or promises, and they are thus pro­
tected free speech under Section 8(c) of the Act.7 In these
circumstances, we do not believe that the factor of “em-
5 We do not hold that after-the-fact unfair labor practices are neces­
sarily irrelevant in any and every evaluation of the totality of the cir­
cumstances surrounding an interrogation, merely that they are so here.
None of the Respondent’s subsequent unfair labor practices is tied to
the question directed to Connor. Thus, even if Connor was aware of
that later unlawful conduct, he would not reasonably relate that conduct
to the single question propounded to him by a low-level supervisor.
6 Sometime in May 2000, the Respondent’s president, John Garlow,
told employees at a plantwide meeting that Hancock would do every-
thing in its power to keep the Union out. At another employee meeting
that same month, Human Resources Director Bill Reinholtz referred to
employees who solicit union authorization cards as “the enemy within.”
The Respondent’s employee handbook also states: “John W. Hancock,
Jr., Inc., is a union-free company. It always has been, and we desire
that it will always remain so. We prefer to deal directly with our em­
ployees instead of through a third party, and we believe that sound
leadership and concern for our employees is the best way of ensuring
the propriety of our company and the welfare of our employees.” None
of these statements has been alleged to violate the Act.
7 Our dissenting colleague finds Reinholtz’ “enemy within” remark
to be an unprotected threat. We disagree. Reinholtz made this state­
ment during a speech devoted to the entirely lawful purpose of commu­
nicating the Respondent’s opposition to the unionization of its work-
force. Heard in that context, the “enemy within” statement would have
been reasonably understood as communicating the earnestness of that
opposition, not as an implicit threat of reprisals. Employers are entitled
to oppose, vigorously and strenuously, union organizational campaigns.
The phrase “enemy within” is entirely consistent with that proposition.
In finding to the contrary, our colleague removes Reinholtz’ remark
from its original context and juxtaposes it alongside another lawful
statement made by somebody else in a different speech on a different
day—Garlow’s statement that the company would do everything in its
power to keep the Union out. Of course, the Garlow statement, by
itself, does not say that the Respondent would resort to unlawful con-
duct. Thus, it cannot render unlawful the Reinholtz statement, and
certainly does not render unlawful Kelly’s question to Connor.
We also recognize that the Respondent committed unfair labor prac­
tices 2 weeks later. But this conduct does not render unlawful the
unrelated question by low-level Supervisor Kelly to Connor, viz, “How
many men were at the meeting last night?”
In sum, we reject our colleague’s effort to string together various
kinds of conduct, some lawful and some unlawful, in order to find that
an unrelated question was unlawful.
ployer background” lends any significant support to the
allegation that the question here was coercive.8
As to the nature of the information sought, the relevant
consideration is whether the questioner appeared to be
seeking information upon which to take action against
individual employees. Bourne, 332 F.2d at 48. The an­
swer here is “no” because Kelly merely asked how many
employees attended the union meeting, and the answer to
that question would not have revealed the union senti­
ments of any one individual. Similar questions gauging
nothing more than numerical support for a union have
been found not to constitute unlawful interrogation. See
Farr Co., 304 NLRB 203, 217 (1991); NLRB v. Cham-
pion Laboratories, Inc., 99 F.3d 223 (7th Cir. 1996),
denying enf. in relevant part to 316 NLRB 1133 (1995);
NLRB v. Okun Bros. Shoe Store, Inc., 825 F.2d 102, 108
(6th Cir. 1987), denying enf. in relevant part to 275
NLRB 1019 (1985).9
8 While agreeing that the “employer background” factor does not
significantly support a finding that Kelly’s question was coercive,
Member Cowen would go further and find that the Respondent’s 8(c)­
protected statements may not be considered as evidence in this case at
all. Under Sec. 8(c), noncoercive statements “shall not constitute or be
evidence of an unfair labor practice” (emphasis added). Thus, Member
Cowen would find that Sec. 8(c) renders inadmissible the Respondent’s
noncoercive statements as evidence of a history of union hostility to
support a finding that Kelly’s questioning of Connor constituted an
unfair labor practice. See, e.g., Overnite Transportation, 335 NLRB
372, 378 fn. 5 (2001) (Hurtgen dissenting); Mediplex of Stamford, 334
NLRB 897, 898 (2001) (Hurtgen concurring); Affiliated Foods, Inc.,
328 NLRB 1107 fn. 3 (1999) (Hurtgen dissenting); Sasol North Amer­
ica Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C. Cir. 2002); Medeco Secu­
rity Locks, Inc. v. NLRB, 142 F.3d 733, 744 (4th Cir. 1998); BE & K
Construction Co. v. NLRB, 133 F.3d 1372, 1375–1377 (11th Cir. 1997)
(per curiam); Holo-Krome Co. v. NLRB, 907 F.2d 1343, 1345–1347 (2d
Cir. 1990). Under extant Board law, however, noncoercive statements
may, in limited circumstances, be used as evidence of an unfair labor
practice. See, e.g., Overnite Transportation, supra, slip op. at 4 fn. 15;
Mediplex of Stamford , supra; Affiliated Foods, Inc., supra at 1107.
Member Cowen would overrule these cases, and others that stand for
the same principle, as contrary to the plain language of Sec. 8(c).
9 In support of her view that the nature of the information Kelly
sought favors a finding of unlawful interrogation, our dissenting col­
league relies on several cases we find distinguishable. In Excel Corp.,
324 NLRB 416, 418 (1997), the Board found coercive an inquiry into
the number of authorization cards the union had received—viewing that
inquiry against a background of repeated prior coercive threats and
interrogations. Here, by contrast, there is no such background. In
Cumberland Farms, Inc., 307 NLRB 1479 (1992), the Board found an
8(a)(1) violation where two supervisors, one of whom was highly
placed, engaged in repeated, probing questioning of two employees
over the course of several days. The dissimilarities from the instant
case are self-evident. Among other questions posed in Cumberland
Farms, one of the supervisors asked how many employees in specific
departments had signed authorization cards. Similarly, a violation was
found in Champion Laboratories, 316 NLRB 1133 (1995), enf. denied
in relevant part 99 F.3d 223 (7th Cir. 1996), where a supervisor asked
an employee how many people from a particular line had attended a
union meeting. Depending upon the totality of the surrounding circum-
JOHN W. HANCOCK JR., INC. 1225
Turning to the identity of the questioner and the place
and method of interrogation, Kelly was a low-level su­
pervisor, and the question was posed while Kelly and
Connor were taking a short ride together during break-
time. There was certainly no atmosphere of “unnatural
formality.” Bourne, 332 F.2d at 48. The question arose
casually as part of an ordinary conversation, nothing in
the record suggests that Kelly’s tone was hostile, and no
threat of reprisal, explicit or implicit, accompanied the
question. Champion Laboratories, 99 F.3d at 227–228.
In conclusion, under the totality of the circumstances
presented here, we find that Kelly’s questioning of Con-
nor did not violate the Act.10
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, John W.
Hancock, Jr., Inc., Salem, Virginia, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified below.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the following for paragraphs 2(d) and (e).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
“(e) Within 14 days after service by the Region, post at
its facilities at Salem, Virginia, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
stances, more narrowly targeted questions such as these might reasona­
bly be viewed as preparatory to some sort of retaliatory action. Here,
however, Kelly asked a general question about the overall level of
union interest in the entire work force as a whole. Under the totality of
the circumstances present here, we find that question noncoercive.
10 Chairman Hurtgen disagrees with the cases that Member Cowen
would overrule. However, he finds it unnecessary to reach out and
overrule them in this case. Chairman Hurtgen finds that, even under
those cases, the questioning was not coercive under the “all the circum­
stances” test of Rossmore House.
that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 23, 2000.”
3. Substitute the attached notice for that of the admin­
istrative law judge.
MEMBER LIEBMAN, dissenting in part.
Contrary to the majority, I would find that Supervisor
David Kelly’s interrogation of employee Ray Preston
Connor violated Section 8(a)(1) of the Act, considering
the totality of the circumstances, consistent with Ross-
more House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985).1 In its broader context, Kelly’s question—
“How many men were at the meeting last night?”—must
be regarded as coercive, despite its seemingly innocuous
nature.
To begin, the majority’s analysis glosses over the
question of Connor’s own status with respect to support
for the Union. That Connor was not an open supporter of
the Union’s 2000 organizational drive, a fact the majority
acknowledges, is significant. See, e.g., Sundance Con­
struction Management, 325 NLRB 1013 (1998). This
fact is not counterbalanced by Connor’s past open sup-
port for union drives in 1986 and 1990—10 years and
more before the interrogation, and surely long enough
ago that Connor’s continuing support could not be pre­
sumed. Under the circumstances, Kelly’s question could
reasonably be understood as inquiring about Connor’s
current sentiments toward the Union, by eliciting infor­
mation that presumed his own attendance at the meeting
or other knowledge related to it.
But even assuming that Connor was an open union
supporter, the fact that he was also asked about the union
activities of other employees weighs in favor of finding
the questioning unlawful, even if it does not establish a
violation per se (as the judge seemed to conclude). See,
e.g., Excel Corp ., 324 NLRB 416, 418 (1997); Cumber-
land Farms, Inc., 307 NLRB 1479, 1479 (1992). Even
an employee who supports the union openly, and so
might be regarded as less susceptible to the potential
coercive effect of an interrogation, may be chilled if he
believes that his union activity could lead to adverse con-
sequences for his fellow employees.
Next is the matter of the Respondent’s background and
whether it shows hostility to the Union. The majority
acknowledges that before the May 22, 2000 interrogation
1 I agree with the majority’s opinion insofar as it affirms the judge’s
findings of violations of Sec. 8(a)(1) and (3).
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Connor, the Respondent “did voice its opposition to
the unionization of its workforce in various ways,” but
finds that none of the statements contained threats or
promises and thus were all protected by Section 8(c) of
the Act. Even accepting the premise that Section 8(c)–
protected statements cannot factor in the analysis here–
contrary to the Board’s case law2—the majority errs in
finding no threat in the May 20, 2000 employee-meeting
statement of Human Resources Director Bill Reinholtz,
who referred to employees who solicit union cards as
“the enemy within.” This statement communicates more
than mere opposition to unionization. It implies a will­
ingness to take reprisals 3—which, in fact, were taken, as
I will explain—particularly given the contemporaneous
statement of the Respondent’s president, John Ga rlow,
who told employees that the Company would do every-
thing in its power to keep the Union out. Accord: Alumi­
num Casting & Engineering Co., 328 NLRB 8, 9 (1999)
(similar handbook statement violated Section 8(a)(1), in
context of actual unlawful conduct), enf. denied in rele­
vant part 230 F.3d 286, 294 (7th Cir. 2000) (citing ab­
sence of evidence that employees would have perceived
handbook statement, drafted before organizing campaign,
as indicating willingness to use unlawful tactics).
Here, the Respondent went on to commit unfair labor
practices within roughly 2 weeks of Kelly’s questioning
of Connor: it discharged two prounion employees and
threatened Connor by telling him that his coworkers had
been fired for their union activity. These later violations
of the Act could reasonably have reinforced the coercive
tendency of Kelly’s question, considered in retrospect,
especially because it involved the union activities of
Connor’s coworkers. See, e.g., Medcare Associates,
Inc., 330 NLRB 935, 940 (2000) (“[A] question that
might seem innocuous in its immediate context may, in
the light of later events, acquire a more ominous tone.”).
The majority rejects the application of this established
principle because it sees no connection between the ques­
tion posed to Connor and the unfair labor practices. Pre­
sumably, the majority would require—without apparent
support in Board precedent—that the information sought
to be elicited from Connor somehow could have facili­
tated the Respondent’s violations. This is the point the
majority makes in rejecting the idea that the question
2 See, e.g., Overnite Transportation, 335 NLRB 372, 375 fn. 15
(2001); Sunrise Health Care, 334 NLRB 897 (2001); Affiliated Foods,
328 NLRB 1107 (1999); American Packaging Corp., 311 NLRB 482
fn. 1 (1993); Gencorp , 294 NLRB 717 fn. 1 (1989); Smith’s Transfer
Corp., 162 NLRB 143, 161–164 (1966).
3 The Board has recognized that the use of the word “enemy” has
coercive tendencies. See, e.g., Omark-CCI, Inc., 208 NLRB 469, 473
(1974) (foreman’s statement that any employee who voted for union
was “his enemy” was implicit threat of reprisal).
here (how many employees attended a union meeting)
could have been coercive, considered on its own terms.
But it seems clear that an employer inclined to commit
unfair labor practices (as the Respondent was) might
want to gauge numerical support for the union in decid­
ing how to respond to union activity. Greater support,
for example, might persuade the employer of the need to
take counter-measures against union supporters.
The majority’s assertion that no harm could come from
the question because it did not seek to uncover the union
sentiments of any particular employee is both short-
sighted and contrary to precedent. The Board, quite cor­
rectly, has recognized that questions about the number of
employees who support the union may be coercive. See,
e.g., Sundance Construction Management, supra, 325
NLRB at 1013 (supervisor asked how many employees
supported union); Champion Laboratories, 316 NLRB
1133, 1136 (1995), enf. denied in relevant part 99 F.3d
223 (7th Cir. 1996) (supervisor asked employee “how
many people from his line” attended union meeting).
In my view, the circumstances here are sufficient to es­
tablish an unlawful interrogation, notwithstanding that
the identity of the questioner (Kelly was a low-level su­
pervisor) and the place and method of interrogation (a
short truck ride during breaktime) arguably weigh
against such a finding. Kelly had no legitimate reason
for his question. Given the broader context of Respon­
dent’s hostility to the Union, manifested in both words
and deeds, the fact that the question was asked casually
and that Kelly himself did not threaten Connor are not
dispositive. Accordingly, I would affirm the judge’s
finding that the Respondent violated Section 8(a)(1).
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten to close any facility if you select
the United Steelworkers of America, AFL–CIO, or any
JOHN W. HANCOCK JR., INC. 1227
other labor organization as your collective-bargaining
representative.
WE WILL NOT threaten you with discharge for engaging
in union activities.
WE WILL NOT discharge you or otherwise discriminate
against you for engaging in union activities.
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, within 14 days from the date of the Board’s
Order, offer Larry Pugh and Paul Akers full reinstate­
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Larry Pugh and Paul Akers whole for
any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw­
ful discharges of Larry Pugh and Paul Akers, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.
JOHN W. HANCOCK JR., INC.
Jasper C. Brown Jr., Esq., for the General Counsel.

James F. Edwards Jr., Esq. and Jack L. Bradshaw, for the Re­

spondent
Frederick W. Stroud, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Roanoke, Virginia, on October 10, 11, and 12,
2000.1 The charge was filed on June 20, and it was amended on
August 29. The complaint issued on August 31. The complaint
alleges four violations of Section 8(a)(1) of the National Labor
Relations Act and the discharges of Larry Pugh and Paul Akers
because of their union activity in violation of Section 8(a)(3) of
the Act. Respondent’s answer denies all of the alleged viola­
tions of the Act. I find, except for one of the 8(a)(1) allegations,
that the Respondent did violate the Act as alleged in the com­
plaint.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, John W. Hancock Jr., Inc. (the Company),
is a Virginia corporation engaged in the construction of steel
1 All dates are in the year 2000 unless otherwise indicated.
joists that are used to support the roofs of large buildings at its
facilities at Salem, Virginia, where it annually purchases and
receives goods valued in excess of $50,000 directly from points
outside the Commonwealth of Virginia. The Respondent ad­
mits, and I find and conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits, and I find and conclude, that United
Steelworkers of America, AFL–CIO (the Union), is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRA CTICES
A. Background
This case arises in the context of an organizational campaign
by the Union at the Company’s Salem, Virginia facilities. Its
operations are carried out in a facility referred to as the Joist
Plant that is 675-feet long and 138-feet wide. A building con­
taining the shop office and a locker room with shower facilities
for employees is about 70 feet from the Joist Plant and is con­
nected to it by an enclosed walkway. A smaller facility, called
the Rack Plant, is separated from the Joist Plant by a public
road. The Company operates two shifts. First shift begins at
6:30 a.m. and ends at 3 p.m.; second shift begins at 3:15 p.m.
and ends at 11:45. Approximately 180 employees work on first
shift and 55 work on second shift. The vast majority of em­
ployees work in the Joist Plant rather than the Rack Plant. Al­
though there is a fence around the Joist Plant, the gate to the
parking lot is not normally locked when the plant is operating.
The Union attempted to organize the Company’s employees
in 1986 and 1990. There was a representation election in 1986
but not in 1990. The Union began its current campaign in
March 2000. Employees Larry Pugh and Paul Akers were in­
volved in the campaign. On May 21, a Sunday, the Union held
a meeting at the Salem Civic Center, a public facility. The
Company became aware of the campaign sometime prior to
May and, in May, the Company’s president, John Garlow, held
a meeting in an area of the Joist Plant called the “bridge” at
which all employees were present. On May 22, the Company
held meetings in the plant cafeteria at which the employees
were divided into smaller groups because of space limitations
in the cafeteria. No statements in violation of the Act are al­
leged to have been made at either of the foregoing meetings.
Employee Pugh testified without contradiction that, at the meet­
ing he attended in the cafeteria, Human Resources Director Bill
Reinholtz read a speech in which he referred to employees who
were soliciting union authorization cards as “the enemy
within.”
B. The 8(a)(1) Allegations
1. Interrogation
The complaint alleges that Supervisor David Kelly interro­
gated employees about their union activities on May 22. Em­
ployee Ray Preston Connor had supported the Union during the
organizational campaigns in 1986 and 1990. Supervisor Kelly
admitted that he suspected that Connor was supporting the Un­
ion in the current campaign. On May 22, the day following the
Sunday meeting at the Salem Civic Center, Kelly and Connor
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were riding together in a truck, going from the Rack Plant
across the public road to the Joist Plant at breaktime. Kelly
testified, “I just asked, I just wondered, how many men were at
the meeting last night.” Connor responded that he had not at-
tended.
Respondent argues that, in view of Connor’s past open sup-
port of the Union, this inquiry was not coercive. I would be
inclined to agree with Respondent if Kelly’s inquiry had been
whether Connor had attended the meeting. Supervisor Kelly did
not, however, inquire about Connor’s union activity. He in­
quired about the union activity of other employees, seeking to
discover whether a significant number of them had attended a
meeting. By “wondering” about the number of employees who
had attended the meeting, Kelly was probing to find out the
level of support for the Union in Respondent’s work force. An
inquiry regarding the union sympathies of employees other than
employees who have made their union sympathies known is
coercive and constitutes unlawful interrogation in violation of
Section 8(a)(1) of the Act. Action Auto Stores, 298 NLRB 875,
895 (1990). Respondent, by asking an employee about the un­
ion activities of his fellow employees, violated Section 8(a)(1)
of the Act.
2. Threat of closure
The complaint alleges a threat of plant closure on May 23.
On that day, immediately after work, employee Larry Pugh
crossed the road from the Joist Plant and solicited a union au­
thorization card from employee David Waller who, at that time,
was a welder at the Rack Plant. Waller had locked his keys in
his truck. After opening the door with a coat hanger, Waller
handed Pugh a pistol that he was going to sell by raffling it off.
While Pugh looked at the pistol, Waller placed the authoriza­
tion card on the seat on the passenger side of his truck, leaned
over, and filled out and signed the card. He then handed it to
Pugh. The foregoing occurred in front of the window of Rack
Plant office.
Pugh looked over the card to assure that Waller had properly
completed it and placed it in his left rear pants pocket. As he
was doing so, he realized that Chris Moore, the general man­
ager of the Rack Division, had joined them. Waller confirms
that, after he handed the card to Pugh, it was “just about a min­
ute” before Moore arrived.
Pugh recalled taking the authorization card while continuing
to hold the pistol, but I find that his recollection was mistaken.
Waller recalls that Pugh handed him the pistol when he handed
Pugh his completed authorization card, and Moore recalled that
Waller handed him the pistol after he arrived. Moore denied
seeing Pugh handle the pistol, but I do not credit this testimony.
On May 24, Pugh was questioned by Vice President of Manu­
facturing Van Johnson regarding the pistol. Johnson stated to
Pugh that “Chris Moore wasn’t sure if it was yours or David
Waller’s gun.” The foregoing statement was not denied by
Johnson and belies Moore’s denial that he had seen Pugh han­
dle the pistol. The only time Pugh held the pistol was when
Waller was filling out the authorization card. Thus, the only
basis for Moore having any question as to whether it was
Pugh’s pistol was that he observed him holding it while Waller
was leaning over and filling out the union authorization card.
When he joined the employees, Moore asked what Waller
and Pugh were doing. Waller told him that he was raffling off a
gun that had bought from another employee, that “I was taking
chances on the pistol.” Waller handed the pistol to Moore and
asked him if he wanted to take a chance on it. Moore replied
that he was not interested. Pugh left at this point. Moore stated
to Waller that there were supposed to be union representatives
passing out literature at the gates the following Monday and
that “we did not need them there,” that “if the Union was to
come in that the shareholders would probably shut our side [the
Rack Plant] down due to the fact that we’ve lost so much
money for the past few years.”
Although Moore denies making any comment regarding the
Union, he did acknowledge discussing the profitability of the
Rack Plant stating that he has “often done than with other peo­
ple.” I find Moore’s demeanor and testimony unconvincing. I
credit Waller. I find that Moore’s raising the matter of the Un­
ion as soon as Pugh left confirms that he had observed Waller
writing at the same time he observed Pugh with the pistol and
suspected that Waller and Pugh had been discussing other mat­
ters in addition to the pistol. Rather than inform Waller that he
suspected that he had been engaging in union activity, Moore
prefaced his comments by referring to union representatives
leafleting. His statement that “if the Union was to come in that
the shareholders would probably shut our side [the Rack Plant]
down,” constituted a threat of plant closure. The reference of
losing money “the past few years” did not alter the threat in any
way. Indeed, it confirmed that the Union, not profitability, is
what would determine whether the plant remained open. The
foregoing threat of plant closure if employees selected the Un­
ion as their collective-bargaining representative violated Sec­
tion 8(a)(1) of the Act.
3. Creation of impression of surveillance
The General Counsel, relying upon Moore’s comment to
Waller that there were supposed to be union representatives pass­
ing out literature at the gates the following Monday, alleges that
Respondent created the impression that employees’ union activi­
ties were under surveillance. Waller testified that he had already
heard a comment similar to that made by Moore in remarks by
Vice President Johnson to employees in the Rack Plant either on
the morning of May 23 or the previous day, May 22. Johnson
acknowledged that he addressed employees in the Rack Plant and
that, in his remarks, he stated that he had “received information
voluntarily that there was going to be representatives of the Un­
ion, United Steelworkers, at our gates that Monday morning. I
asked them just to treat them like they would any other salesman,
roll their windows up and drive on by.” Johnson testified that he
made those remarks on May 19, a Friday.
The General Counsel called employee Ray Preston Connor
in rebuttal and elicited testimony that the Union never publicly
stated that it intended to handbill at the plant. Notwithstanding
this testimony, Connor acknowledged that management thought
there was going to be handbilling, “it was floating around the
plant,” but “it never happened.”
The only allegation in the complaint regarding the creation
of an impression of surveillance is the comment of Moore on
May 23. Thus, it is immaterial whether Johnson’s remarks were
JOHN W. HANCOCK JR., INC. 1229
made on May 19 or May 22 or 23. When Moore spoke with
Waller, the rumor of union handbilling was “floating around
the plant.” Regardless of the source or accuracy of that rumor,
there is no evidence that Respondent “could only have learned
of the rumor though surveillance.” Embassy Suites Resort, 309
NLRB 1313, 1329 (1992); G. C. Murphy Co., 217 NLRB 34,
36 (1975). I shall recommend that this allegation be dismissed.
4. Threat of discharge for engaging in union activity
The complaint alleges that Supervisor Roger Sloan, on June
6, threatened employees with termination for engaging in union
activity. Employees Pugh and Akers were terminated on June 5.
On June 6, employee Ray Preston Connor had a conversation
with fellow employee David Wallace, brother of Plant Superin­
tendent Paul Wallace. Employee David Wallace referred to
Pugh and Akers being terminated and, when Connor asked why
the employees had been terminated, Wallace responded that the
“Company is trying to say trespassing, but . . . everybody in the
shop knows that they fired them for union activity.” Thereafter,
Connor was approached by Loading Supervisor Roger Sloan
who, as was his practice, began the conversation by teasing
Connor about going fishing with David Wallace, whose nick-
name is “Iceman.” Connor responded saying, “ Roger, . . . Ice-
man [David Wallace] came out here and told me they let two
guys go yesterday for trespassing. . . . I’ve been here for
twenty-three (23) years and I ain’t never knowed nobody to be
fired for trespassing.” Sloan answered, “[W]ell, I heard they let
them go for handing out union cards to the nightshift.”
Supervisor Sloan admitted regularly teasing Connor about
fishing, but denied the foregoing conversation. He testified that
he heard only that Pugh and Akers were “let go.” I do not credit
Sloan. In a pretrial affidavit, Sloan acknowledged hearing that
Pugh and Akers were terminated for union activity. In the affi­
davit he states that, if he said anything, “it would only have
been that some of the other employees may have been talking
among themselves that their discharges were related to some
union activities that they might have had.” I credit Connor and
find that Sloan responded to Connor’s comment regarding
never knowing of anyone being fired for trespassing by stating
that he heard that “they let them go for handing out Union cards
to the nightshift.”
Respondent argues that the reference in Sloan’s affidavit is
to “shop talk” and that Sloan was not privy to information relat­
ing to the discharge. The talk among employees referred to in
Sloan’s affidavit was to union activity, but his response to Con-
nor was far more specific, “I heard they let them go for handing
out Union cards to the nightshift.” A statement by a supervisor
to an employee that another employee has been terminated
because of that employee’s union activity violates Section
8(a)(1) of the Act even if the Board ultimately finds that the
termination was not for union activity. Animal Humane Society,
287 NLRB 50 (1987). Supervisor Sloan’s statement threatened
termination in retaliation for employees engaging in union ac­
tivity and violated Section 8(a)(1) of the Act.
C. The No-Access Rule
The Company has an employee handbook containing rules of
employee conduct. Each employee signs a document acknowl­
edging receipt of the handbook upon being employed. The rules
provide for discipline, up to and including discharge, for vari­
ous infractions. Included among the rules is a presumptively
valid no-solicitation and no-distribution rule that includes a
provision prohibiting access that states:
An off-duty employee may enter or remain in plant buildings
or other work areas a reasonable period of time (not to exceed
30 minutes) prior to or after scheduled work, but access to the
interior of company buildings and to other work areas before or
after working hours is not permitted for any reason.
The record is replete with testimony concerning enforcement
and nonenforcement of the no-access rule.
Employee Connor worked on personal items after his shift
had ended without seeking permission on various occasions. In
March 1999, he returned to use the arbor press to place some
bearings on a car axle. On another occasion, he worked on a
trailer. Although not seeking permission to work on the trailer,
Connor did seek permission before using a company forklift to
assist him. Even though Supervisor Kelly testified that Connor
obtained his permission to perform all of the foregoing work, I
credit Connor. In June or July 1998, Connor returned and put a
starter ring gear on a flywheel. He did not seek permission to
do this work, and his supervisor at the time, Douglas Guilliams,
observed him. Guilliams had no recollection of the occasion.
Connor also has observed various employees performing per­
sonal work including employee Mark Phillips working on a
trailer and employees Nally and Martin making chair holders
for the Salem Civic Center. Vice President Johnson testified
that he gave Phillips and Nally permission with regard to those
projects.
Employee Ellis Paris, who has a prounion sign in his front
yard, went to the plant on a Saturday to borrow a water cooler.
He was permitted to do so and was not disciplined for entering
the premises without permission. He recalled that, while work­
ing overtime one Saturday, he observed Mark Phillips welding
a drive shaft on his lawnmower. Supervisor Clifford Pagans
testified that Phillips approached him on a Saturday and stated
that he needed to work on his lawnmower. He gave him per-
mission to do so.
Employee Paul Akers, one of the two alleged discriminatees,
removed a muffler from his girlfriend’s Camero in September
or October 1999 and carried it into the plant where he repaired
it using a welding machine. He did not obtain permission to
perform this personal work. Akers recalled Night Superinten­
dent Jerry Bowles being in the area, but he was unaware
whether Bowles observed him. Shortly before Thanksgiving of
1999, Akers again went to the plant to perform welding on the
exhaust system of his Blazer. Human Resources Manager
Reinholtz asked Akers what he was doing and Akers explained
that his muffler was falling off and that he needed to replace it.
Pagans testified that Akers came to him seeking permission to
work in the garage but that he had no authority to grant such
permission. Akers later reported that he had been unable to find
anyone with a key to the garage and asked permission to work
in the plant. Pagans responded that was “fine with me.” Akers
observed Kevin Morris, who had been moved to first shift,
come into the plant on second shift and talk to his brother Brian
Morris. He also observed employee Tommy Reed building a
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pressure washer. No supervisor acknowledged seeing Kevin
Morris enter the plant and talk to his brother or observing Reed
building a pressure washer.
Employee Larry Pugh, the other alleged discriminatee, re-
turned to the plant about 3:45 p.m. in the summer of 1998 in
order to repair a snow blade that fits on his lawn mower. He did
not receive specific permission to do so, and he testified that
supervisor Guilliams saw him. Guilliams had no recollection of
Pugh ever performing any personal work in the plant.
Pugh, who works first shift, is married to the former wife of
employee Calvin Meyers, who works second shift. Meyers pays
child support to his former wife every 2 weeks. For conven­
ience, he gives the money to Pugh who then delivers it to his
wife. Normally, Meyers gives the money to Pugh in the parking
lot between 3 and 3:15 p.m., after first shift ends and before
second shift begins. If Pugh and Meyer did not meet during this
15 minute period, it was Pugh’s practice to return at mealtime
for second shift, approximately 9 p.m. The mutually corrobora­
tive testimony of Pugh and Meyers confirms the foregoing
arrangement. On three or four occasions, their arrangement did
not work. On those occasions, Pugh entered the plant, went to
where Meyers was working, received the child support payment
and left. Although Pugh testified that he saw and exchanged
greetings with Night Superintendent Jerry Bowles and Supervi­
sor Gayther Cantrell on a couple of these occasions, he admit­
ted that he never encountered a supervisor when he was actu­
ally in the area where Meyers worked.
The no-access rule prohibits the presence of an employee in
a company building more than 30 minutes after the shift. Not-
withstanding this prohibition, Supervisor Guilliams admitted
that employee Eddie Charlton regularly remained for at least 45
minutes after his shift taking a shower. Vice President Van
Johnson knew that “Mr. Charlton takes a pretty lengthy shower,
yes, sir, he does,” and admitted that he had seen him at the
plant at 4 p.m., a full hour after his shift ended. Johnson ac­
knowledged that Charlton has not asked permission to take a
lengthy shower but explained that the Company did not “put a
stopwatch on people.”
Vice President Johnson is responsible for all plant operations
and facilities. Johnson testified specifically that there is no
company rule regarding the presence of employees in the plant
parking lot. He stated that any supervisor can give permission
for an employee to work on a personal item in that supervisor’s
work area. He acknowledged that this effectively changes the
no-access rule which makes no provision for obtaining permis­
sion and, by its terms, prohibits access to plant buildings “for
any reason.”
Night Superintendent Bowles is apparently unaware that
there is no rule relating to employees being in the parking lot
since he initially stated that, if he observed employees in the
parking lot 30 minutes after their shift, he would discipline
them. He later modified this testimony, stating that he would
simply ask them to leave. Contrary to Johnson, Bowles testified
that, if an employee wanted to stay over and work on a personal
item, that employee needed permission from Johnson or him-
self. He recalls being asked and granting permission on one
occasion, when employee Tony Rakes asked to do some weld­
ing on a mower deck.
Supervisor Gayther Cantrell, who works on the second shift, tes­
tified that if he observed a first-shift employee working on a per­
sonal item, “I would probably assume he had permission.” Super-
visor John Webb, another second-shift supervisor, noted that, when
he observed employees working on personal items, “most of the
time they’re already in there before I get in the shop.”
The foregoing testimony reveals that Respondent, without al­
tering its written rule to provide that employees could obtain
permission to enter the facility for personal reasons, permitted
them to do so. Notwithstanding the requirement that they obtain
permission, employees did enter the facility and perform minor
projects without permission. Supervisor Cantrell assumed that
any employee he observed had permission. When off duty em­
ployees sought permission to perform personal work, they often
did so at the time they wanted to perform the work. They came
to the plant, found a supervisor, obtained permission, and did
the work. Respondent’s rule prohibits access to the plant “for
any reason,” which would include entering the plant to seek
permission to perform personal work. There is no evidence that,
prior to June 2, any employee had ever been denied permission
to enter the plant. There is no evidence that, prior to June 5, any
employee had been disciplined for coming to the plant and,
thereafter, seeking permission to enter the facility for a personal
reason.
D. The Discharges of Larry Pugh and Paul Akers
1. Facts
a. Events prior to June 5
Larry Pugh began working for the Company on August 3,
1995. At the time of his termination on June 5, he was a welder
on the first shift. Pugh signed a union authorization card, at-
tended union meetings, and solicited his fellow employees to
sign cards, including employee Waller on May 23. He attended
the meeting at the Salem Civic Center on May 21 where he
handed out literature and solicited employees who attended to
sign union authorization cards. Human Resources Manager Bill
Reinholtz, on May 23, referred to this meeting being held “over
the past weekend” when he stated that anybody asking employ­
ees to sign union authorization cards would be known as “the
enemy within.”
On Friday, June 2, Pugh had not received his wife’s child
support payment from employee Calvin Meyers at the time of
the shift change. He returned to the plant about one half an hour
before the end of the shift, about 11:15 p.m., in order to pay
Meyers $25 that he owed him and to obtain the child support
payment from him. As Pugh entered the plant, he turned left to
go back towards Meyers in the cutting and welding area. He got
about half way to his destination when he saw Supervisor John
Webb who summoned him. Pugh went to him. Webb stated that
he had been told that “no day shift employees were allowed in
the building at night shift to talk to the employees. I’m going to
have to ask you to leave the building.” Pugh responded, “Okay,
you’re doing your job.” He turned around and was making his
way to the exit when he encountered Supervisor Gayther
Cantrell. As Pugh approached Cantrell, he stated that Webb had
already asked him to leave and that he was leaving. Cantrell
said, “Okay.” Pugh left. Thereafter, at 11:45 p.m. he returned to
JOHN W. HANCOCK JR., INC. 1231
the parking lot in his van. He met with Meyers and obtained the
child support payment. He observed Webb and left.
Supervisor Webb’s recollection of this encounter effectively
corroborates Pugh. Webb recalls that he observed Pugh coming
in by the timeclocks. He motioned for him to approach, and
Pugh did so. Webb did not ask Pugh why he was there. He
stated, “I’m going to have to ask you to leave.” Pugh asked
why, and Webb responded, “[T]here’s really no need for you to
be on nightshift at this hour.” Pugh left. After the shift ended,
Webb went to the parking lot. He observed Pugh’s van and
began to walk toward it to “see what he wanted. What was the
problem.” At this point the van departed.
Supervisor Cantrell confirms that he encountered Pugh coming
out of the shop and that Pugh stated, “I already know, John [Webb]
just told me.” Even though Pugh made this statement, Cantrell
claims that the told Pugh to “leave the property and come back
when your shift starts.” I credit Pugh and find that Cantrell said,
“Okay.” Even though saying “okay” to Pugh, Cantrell told Webb
that he had seen Pugh as he was leaving and had told Pugh “to
leave the premises and not return until his shift.”
Respondent, in its brief, argues that Pugh knew he had been
directed to leave the property because, when pursuing an un­
employment insurance claim, he stated that, as he was talking
with Meyers at 11:45 p.m. he saw Webb and told Meyers that
he was going to leave “so there would be no trouble.” Contrary
to this argument, I do not infer that Pugh’s departure establishes
anything other than, as Pugh credibly testified, “I didn’t want
any confrontations with anybody.” In making this finding, I
note that Webb did not testify that he told Pugh to leave the
“property;” he testified simply that he told Pugh “to leave.”
Employee Paul Akers began working for the Company in
September 1995. He was a welder, and worked as a welding
leader on two occasions. He was terminated on June 5. Akers
attended the second union meeting that was held at the local
union hall and, thereafter attended almost every meeting held.
He sought to get his fellow employees to sign union authoriza­
tion cards.
In May, Akers had purchased a house, and during the last
week of May he was working at the house after having com­
pleted his shift. The gas hot water heater at the house was de­
fective. On Tuesday and Wednesday, May 30 and 31, and
Thursday and Friday, June 1 and 2, Akers returned to the plant
after working on his new house and showered in the employee
locker room. About 10 p.m. on June 2, having completed his
shower and dressed, Akers was preparing to get into his truck
and leave when he observed a friend, employee Troy Dennis, in
the shop. Akers entered the shop to speak with him. Dennis was
having difficulty hooking up a barrel full of bridge clips be-
cause the chain was slipping, and Akers helped him by holding
the chain on one side while Dennis hooked it on the other side.
They then engaged in a short conversation. Akers recalled that,
as they were talking, Supervisor Webb approached, took out a
cigarette that he did not light, but said nothing. Shortly thereaf­
ter, Supervisor Cantrell approached. Akers recalls asking
Cantrell how he was and that Cantrell returned the greeting.
Shortly after Webb and Cantrell arrived, Akers told Dennis that
he had to be going and left.
Webb recalled observing Akers and Dennis talking with one
another and approaching them. Contrary to Akers, Webb testi­
fied that he did not observe their conversation for any time at
all. Rather, when he approached them he heard Akers say,
“[W]ell, I guess I’d better go,” and that Akers then left. He
recalls that, at the point that Cantrell arrived, Akers was already
“out the doors.” He did not say anything to Akers, and he did
not try to stop him. When asked whether he had tried to stop
him, Webb testified, “No, sir, no need to stop him, he was leav­
ing and that’s what I wanted.” Cantrell corroborated the testi­
mony of Webb that he had no interaction with Akers. When he
saw Akers, “he was leaving, that’s what I wanted him to do.” I
need not resolve the conflicting testimony regarding whether
Akers and Cantrell spoke since it is undisputed that Akers was
not directed to leave and that when he left he was doing what
Webb and Cantrell wanted him to do.
On Saturday morning, June 3, Cantrell called Vice President
Johnson and informed him of the events of June 2, stating that
“I’d had two visitors on Friday night, . . . one about fifteen
minutes behind the other.” He explained that he made this call
because “I just felt like he needed to know in case something
was damaged or what have you.” Cantrell made no recommen­
dation or request that either employee be disciplined. Cantrell
noted that it was a strange occurrence, “I’ve never had anybody
come back at 10 or 11 o’clock at night.”
Johnson confirmed that Cantrell informed him that “there
were two first shift employees in the plant at 11 p.m. and that
he had asked them to leave.” Upon being asked to elaborate
upon what Cantrell reported, Johnson recalled that Cantrell said
he had observed Akers talking to Dennis, that Webb was ap­
proaching them, and that Akers left before he could get to him.
After this, Cantrell saw Pugh. Cantrell said that he told Pugh to
leave the property and not come back until the start of his shift
Monday morning but that when the shift ended Webb had ob­
served him in the parking lot and that, as Webb approached
him, Pugh “took off and left.”
Supervisor Webb admitted attending meetings regarding the
Union at which supervisors were asked to pay closer attention
to what was going on, “to be a little more vigilant.” Webb ac­
knowledged that Vice President Johnson did not want any un­
ion activity going on during worktime in the workplace. There-
after, counsel for the General Counsel asked:
M R. BROWN: But from the time that you had the meet­
ing with Mr. Van Johnson, regarding being a little more
vigilant, you and Mr. Cantrell were paying a little closer
attention to what was going on there in the plant and in the
parking lot, isn’t that correct?
M R. WEBB: I try to do that all the time, yes.
Q. But especially so during that period?
A. What I can, yes, sir.
b. Events of June 5
On June 5, Akers reported for first shift at 6:30 a.m. Shortly
after arriving he was approached by a welder with whom he
worked. The welder, referring to Pugh by his nickname, “Opie,”
asked Akers, “[W]hat the hell was you and Opie doing in here
Friday passing out union cards?” Akers responded that he did not
know what the employee was talking about, that he just came
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
down to take a shower. The welder replied, “W]ell, it’s all over
the shop that you and Opie was down here passing out union
cards.” Akers repeated that he came to take a shower and that he
had spoken to Troy Dennis. Later, another employee asked Akers
about being in the plant passing out union cards, stating that he
heard about it from employee Kevin Morris.
When Vice President Johnson arrived at the plant, he met with
Human Resources Manager Bill Reinholtz and Plant Superinten­
dent Paul Wallace to talk about the incidents of June 2. They
called Cantrell, but he was out of town. Johnson then called
Webb. Webb told Johnson that he had seen Akers talking to
Dennis, that as he approached them, Akers left. Shortly after this
he observed Pugh. Webb told Johnson that he had informed Pugh
that he was “not supposed to be in here outside of your shift.”
That when Pugh asked why, he had responded, “[W]ell, you’re
just not supposed be here. You’re interrupting people.” Webb
noted that Pugh gave no reason for being there and left. Johnson
testified that, after he talked with Webb, he, Reinholtz, and Wal­
lace “decided to get Mr. Pugh over and let him explain why he
was there and why he came back.” In the meeting with Pugh,
Johnson discharged him. Akers was then called in “to explain
why he had been in the plant talking to Troy Dennis.” Johnson’s
testimony does not reflect that he, Reinholtz, and Wallace dis­
cussed the rumor that Akers and Pugh had been passing out un­
ion cards or that either employee should be disciplined.
Pugh recalls that Superintendent Paul Wallace directed him
to report to Johnson about 8 a.m. The meeting was held in the
office of Human Resources Manager Reinholtz. Johnson, Rein­
holtz, Wallace, and Pugh were present. Pugh recalls that John-
son addressed him stating, “You were here Friday evening and
was asked to leave the premises and you didn’t.” Pugh re­
sponded, “No, that’s wrong, I did. I was asked to leave the
building, I left the building, I went home and I come back at
11:45 p.m. when night shift was over. I parked in the parking
lot and did not go back in the building.” Johnson twice repeated
that Pugh had been asked to leave the premises, and Pugh re­
sponded both times that he had been asked to leave the build­
ing. Johnson stated, “The building and the parking lot are the
premises. You were asked to leave and you didn’t.” Pugh again
stated that he did leave and that he was told “to leave the build­
ing.” Johnson stated, “Well, I’m going to have to let you go.”
Pugh said, “Over something this minor?” Johnson replied, “It’s
a rule.” Pugh requested to see the rule and Johnson told him to
look it up when he got home. Pugh stated, “You mean to tell
me that I’ve been working almost five years and you’re going
to fire me over something this minor.” Johnson repeated, “It’s a
rule.” Pugh then questioned Johnson asking, “All bull crap
aside, what are you firing me for?” Johnson again replied, “It’s
a rule and that’s what I’ve decided to do.”
Johnson testified that he asked Pugh why he was in the plant
without permission and that Pugh responded that he had come
to collect some money from Calvin Myers. He then asked,
“[W]ell, you know you’re supposed to have permission don’t
you, to be inside the buildings?” Pugh responded that he did not
and Johnson told him that it was in his handbook. Pugh stated
that he did not know where his handbook was. Johnson testified
that he asked Pugh whether Cantrell had told him “to leave the
property and not come back till the start of your shift?” Pugh
respond, “[N]o. He told me to leave the building.” Johnson
testified that he then stated that he had had been informed by
two supervisors that “you [Pugh] were told to leave the prem­
ises or the property and not come back until the start of your
shift . . . and then you came back.” Pugh admitted that he came
back, and Johnson says that he asked Pugh if he realized that
was insubordinate. Pugh replied that he did not, and Johnson
stated, “[W]ell, you defied what a supervisor told you, and . . .
I’m going to terminate you for it.”
Contrary to the assertion that he made to Pugh, Johnson had
not been told by two supervisors that Pugh had been directed to
“leave the premises or property.” Johnson’s own testimony re­
veals that Webb reported only that he had told Pugh that he was
“not supposed be here.” Pugh’s testimony reflects a dispute re­
garding whether he was told to leave the building, which is what
he recalls Webb said, and Johnson’s assertion that he was told to
leave the premises or property. Although Johnson testified that
Cantrell reported to him that he told Pugh to leave the property,
when Cantrell spoke with Webb he told Webb that he had told
Pugh “to leave the premises.” Pugh’s separation of employment
document signed by Reinholtz makes no mention of Pugh being
told to leave either the property or premises. It states:
Larry came into the shop on Friday night 6/2 @ approx 11:00
p.m., was asked to leave by John Webb. Larry was observed
leaving but returned at 11:45 p.m. Larry was terminated for
being on company property without permission and insubor­
dination for returning.
Pugh did not testify to Johnson ever using the term “insubor­
dination,” and I am satisfied that, if Johnson had used that term,
Pugh would have recalled it.
Following the termination of Pugh, Akers was taken to
Reinholtz’s office by Plant Superintendent Wallace. Johnson,
Reinholtz, Wallace, and Akers were present. Akers recalled that
there was an informal exchange of greetings and that Johnson
then stated that Akers had been seen at the plant on Friday
night. Akers admitted that he had been at the plant taking a
shower. Johnson then stated that he was seen in the plant, and
Akers confirmed that he had walked into the plant and talked to
Dennis. Johnson told Akers that he was “not allowed on Com­
pany property after your work shift.” Akers replied that he did
not know that. Johnson asked whether Akers had read his em­
ployee handbook. Akers responded that he had, “almost five
years ago.” Johnson stated that the handbook stated that
“you’re not allowed . . . on Company property thirty (30) min­
utes prior to or after your shift.” Akers repeated that he did not
know that. Reinholtz then asked if Akers had gotten permis­
sion, and Akers replied that he did not. Johnson asked how long
he had been taking a shower, and Akers told him almost all
week. Johnson commented, “[Y]ou been coming down here all
week?” Akers repeated that he had. Johnson asked if anyone
had seen him other than on Friday night, and Akers said no,
that he did not care if anyone had seen him, he just came down
to take a shower. Johnson then asked, “[H]ow do we know that
you weren’t stealing?” Akers replied that Johnson had known
him for 5 years and asked if he honestly thought he would try to
steal something. Johnson replied, “No, . . . but we just can’t
have people down here wandering around.” Johnson then
JOHN W. HANCOCK JR., INC. 1233
stated, “[W]ell, I don’t know what to do with you. Whether to
terminate you, or give you a final notice.” Akers responded
saying, “I know what this is about, Van, . . . .this is about me
and Opie supposedly being in here passing out Union cards.”
At this point, Johnson “kind of leaned back a little bit” and
said, “[A]ah, I don’t know nothing about that.” Akers stated
that he should “because it’s all over the shop. . . . [T]hree peo­
ple has done asked me, . . . and one of them was asking me
right at 6:30.” Johnson repeated that he did not know anything
about that and directed Akers to return to his work area.
Shortly thereafter, as the morning break was ending, Wallace
told Akers that Johnson wanted to see him again. Johnson told
Akers, that “due to the information that we have and the cir­
cumstances, . . . I’m going to have to let you go. Akers said,
“Van, . . . you’re losing a good welder over a stupid reason.”
Johnson stated that the rules are the rules. Akers replied, “Van,
if you’re going to enforce the rules once you need to enforce
them all the time.”
Johnson confirms that Akers admitted that he came to the
plant to take a shower and that, as he was leaving to go home,
he saw Troy Dennis and entered the plant to talk to him. He
noted that Akers stated that he was unaware that he needed
permission. Johnson recalled that Akers explained that his hot
water heater was not working that “he had been up there every
night that week taking showers.” Johnson acknowledged that
the possibility of theft was mentioned, that Akers had stated,
“Van, you know I’m not a thief,” and that he took him at his
word. Johnson asserted that it was at this point that he asked
Akers to return to work.
Johnson testified that “we had originally called Akers in to
reprimand him for being up there,” but his testimony does not
reflect that there had been any prior discussion of discipline.
Johnson contends that, after Akers returned to work, he, Rein­
holtz, and Wallace had additional discussion regarding the fact
that an off duty employee had been inside the locker room and
that there had been thefts from the locker room. Johnson testi­
fied that Reinholtz had commented that the Company had a
responsibility to “give the employees, as much as we could, a
safe place to keep their valuables.” Johnson was then asked,
“Were there any other comments made by Mr. Wallace or you
or Mr. Reinholtz?” Johnson answered, “No, sir.”
Akers returned. Johnson stated that he told him that he not
only had broken the rule of no-access for being there one time,
Friday night, but that “in his own admission he had broke it
four to five times that week. That we were going to terminate
him for it.” Johnson testified that, after he told Akers that he
was terminating him, Akers stated that “the only reason you’re
doing this is because of this Union thing.” Johnson testified that
he replied, “Paul, that’s not the case.” The Separation of Em­
ployment document signed by Reinholtz states: “Paul was ter­
minated for using JWH [John W. Hancock] facilities multiple
times in May 2000 without management permission.” The
document does not mention his entry into the plant to speak
with Dennis.
Respondent did not present either Human Resources Director
Reinholtz or Plant Superintendent Wallace both of whom are
currently employed.2 According to Johnson’s uncorroborated
testimony, the only matter of substance that was discussed after
the first meeting with Akers was the concern about security.
His testimony does not reveal that there had been any prior
discussion of discipline. Despite this, he testified that “we
originally called Akers in to reprimand him.” If that indeed was
why “we” called him in, there had obviously been some discus­
sion regarding discipline. When he sent Akers back to work,
Johnson stated to him, “[W]ell, I don’t know what to do with
you. Whether to terminate you, or give you a final notice.”
Despite Johnson’s purported uncertainty regarding whether a
reprimand continued to be appropriate, there was no discussion
whatsoever of altering the level of discipline that had previ­
ously been decided upon. Johnson called Akers back in and
discharged him supposedly for taking what he understood to be
five showers. The absence of corroboration, Johnson’s unim­
pressive demeanor, and the illogic of his testimony belie John-
son’s assertion to Akers that he did not “know anything about”
the rumor that he and Pugh had been passing out union cards
and his testimony that he made the decision to terminate him
after Akers acknowledged taking showers. I do not credit his
testimony.
Johnson stated that it was his practice not to tell anyone other
than a terminated employee’s immediate supervisor that an
employee had been terminated and that he did not give the spe­
cific reason for termination to even the immediate supervisor.
Notwithstanding this testimony, Supervisor Cantrell, who su­
pervised neither Pugh nor Akers, testified that Johnson in-
formed him that Pugh and Akers “were terminated for insubor­
dination.” Employee Connor, who has worked at the Company
for over 23 years, credibly testified that “when somebody is let
go there it flies through the shop like wildfire.”
2. Analysis and concluding findings
In assessing the evidence under the analytical framework of
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981). I find that Akers and Pugh did engage in union ac­
tivity and that Respondent bore animus towards employees who
engaged in union activity.
Respondent argues that there is insufficient direct or circum­
stantial evidence to support a finding that Respondent knew
that Pugh and Akers were engaged in union activity. Although
Pugh and Akers had not been engaged in union [activity] on the
night of June 2, the evidence establishes that Respondent sus­
pected that Pugh and Akers came to the plant to engage in un­
ion activity. Moore’s threat to Waller of plant closure immedi­
ately after observing him in conversation with Pugh suggests
that Respondent suspected Pugh of soliciting on behalf of the
Union at the plant. This suspicion is confirmed by the action of
Webb, who admitted paying closer attention to what employees
were doing. Webb directed Pugh to leave as soon as he saw him
on June 2 without inquiring why he was present. Cantrell char­
acterized the presence of Pugh and Akers in the plant within 15
minutes of one another on June 2 as a “strange occurrence,”
2 Reinholtz conducted the search of Respondent’s files for documents
sought by a subpoena served by the General Counsel in connection with
this hearing. He was unable to find evidence of a termination that “Plant
Superintendent Wallace said [he made] back in the late 80’s.”
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explaining, “I’ve never had anybody come back at 10 or 11
o’clock at night.” Prior to the termination of these employees
there was a plantwide rumor that they had been passing out
union cards. The day following their terminations, Supervisor
Sloan advised Connor, “I heard they let them go for handing
out Union cards to the nightshift.”
Respondent’s belief that these two employees were engaged
in union activity on the evening of June 2 is further confirmed
by the absence of testimony by Reinholtz and Wallace. John-
son’s testimony of his discussions with Reinholtz and Wallace
on the morning of June 5 makes no mention of any speculation
regarding what the employees had been doing. I find it incredi­
ble that Johnson, Reinholtz, and Wallace would not have dis­
cussed the “strange occurrence” of two employees being at the
plant at 11 p.m. I have not credited Johnson’s assertion to
Akers that he did not know about the rumor that was “all over
the shop.” Respondent’s failure to call either Reinholtz or Wal­
lace, neither of whom was shown to be unavailable and both of
whom were present on June 5, supports an inference that sus­
pected union activity by Pugh and Akers was discussed and that
they would have testified adversely to Respondent’s interests.
International Automated Machines, 285 NLRB 1122 [1987].
The probative evidence establishes that Respondent believed
that Pugh and Akers had been engaging in union activity.
“[W]hen an employee is disciplined for concerted or union
activities which his employer mistakenly believes he had par­
ticipated in, the statute affords him relief.” Gulf-Wandes Corp.,
233 NLRB 772 (1977). A respondent’s belief that protected
activity has occurred is controlling. Henning and Cheadle, 212
NLRB 776, 777 (1974).
The probative evidence establishes that Respondent believed
that these employees had come to the plant to engage in union
activity and decided to discharge them. Although Johnson did
not testify discussing discipline with Reinholtz and Wallace
prior to speaking with Pugh, his testimony that “we . . . called
Akers in to reprimand him,” reveals that discipline was dis­
cussed prior to speaking with the employees. The fact that
Johnson summarily discharged Pugh without any consultation
with Reinholtz or Wallace confirms that it had been previously
agreed that Pugh was to be discharged. Likewise, Respondent
had determined to discharge Akers. I have not credited John-
son’s testimony that “we originally called Akers in to repri­
mand him for being up there.” If that testimony were true, there
would have been discussion regarding changing the decision to
reprimand him to a decision to discharge him. Akers’ admis­
sion that he had been taking showers raised an issue that John-
son had not discussed with Reinholtz and Wallace. In order to
provide time to consult with them regarding that issue, he pre-
pared to send Akers back to work stating, “I don’t know what
to do with you. Whether to terminate you, or give you a final
notice.” If, as Johnson told Akers, he did not know what he was
going to do, that indecision would have been a topic of discus­
sion among himself, Reinholtz, and Wallace. According to
Johnson, the only matter discussed after Akers was sent back to
work was security in the locker room. When asked if either he
or Reinholtz or Wallace made any other comments, Johnson
replied, “No.”
Respondent’s predetermination to discharge these employees
is confirmed by Johnson’s interviews with them. Johnson as­
serted that we “decided to get Mr. Pugh over and let him ex-
plain why he was there and why he came back,” but he then
ignored Pugh’s explanation that he had only been told to leave
the building. Pugh’s explanation was consistent with Webb’s
statement to Johnson that he had told Pugh that “he wasn’t
supposed to be there.”
Respondent, in its brief, argues that “Johnson reasonably de­
termined that Pugh had been insubordinate to Cantrell.” Al­
though Cantrell simply said “okay” when Pugh explained that
he had talked to Webb and was leaving, he told Johnson that he
had told Pugh to leave the property. Cantrell was out of town
on June 5. Johnson had not spoken with him since Saturday
morning. Despite Johnson’s purported reliance upon Cantrell’s
report that he told Pugh to leave the property, the Separation of
Employment document signed by Reinholtz does not reflect
such a directive. It states that Pugh “was asked to leave by John
Webb” and was terminated “for being on company property
without permission and insubordination for returning.” Re­
spondent’s no-access rule, by its terms, applies only to build­
ings and work areas. Johnson testified that it did not apply to
the parking lot. Respondent’s employee handbook prohibits
“insubordination or the failure or refusal by any employee to
follow management’s instructions concerning a job related
matter.” Pugh was off duty, thus Webb’s directive that he leave
was not job related. Pugh was not insubordinate. He obeyed the
directive and left the plant. Webb did not believe that he was
insubordinate. When Webb observed Pugh’s van at 11:45 p.m.,
he began to approach the van not because he was concerned
that Pugh had disobeyed his instruction to leave, but to check
and “see what he wanted. What was the problem.”
Assuming that Johnson’s reliance upon Cantrell’s purported
directive that Pugh not enter Respondent’s property, although at
odds with what both Pugh and Webb told him, was reasonable,
the propriety of that purported directive must be examined. As
the General Counsel points out, the applicable test for valid no-
access rules is set forth in Tri-County Medical Center, 222
NLRB 1089 (1976), which explains that a no-access rule con­
cerning off-duty employees is valid only if it (1) limits access
solely with respect to the interior of the plant and other working
areas; (2) is clearly disseminated to all employees; and (3) ap­
plies to off-duty employees seeking access to the plant for any
purpose and not just to those employees engaging in union
activity, and that except where justified by business reasons, a
rule which denies off-duty employees entry to parking lots,
gates, and other outside nonworking areas will be found inva­
lid. If Cantrell did bar Pugh from Respondent’s property, in­
cluding the parking lot, he orally amended Respondent’s valid
no-access rule and created an unlawfully broad no-access rule.
Respondent’s no-access rule is a portion of its no-solicitation
rule. The Board has long held that discipline for violating an
unlawfully broad rule governing solicitation is unlawful. Ches­
terfield Convalescent Home, 287 NLRB 328 (1987); Stoody
Co., 320 NLRB 18, 28 (1995).
The record establishes that Respondent seized upon Pugh’s
alleged disobedience of Cantrell’s purported instruction and,
although not using the term when speaking with Pugh, charac-
JOHN W. HANCOCK JR., INC. 1235
terized the offense as insubordination on the Separation of Em­
ployment document. Respondent’s reliance upon the purported
offense of insubordination, an offense that was not committed,
was pretextual. Limestone Apparel Corp., 255 NLRB 722
(1981). Even if I were to accept Respondent’s argument that
Johnson was justified in relying upon Cantrell’s assertion that
he told Pugh to leave the property, I would find that the termi­
nation of Pugh pursuant to that invalid orally promulgated no-
access rule violated the Act.
Regarding Akers, Respondent’s brief argues, consistent with
Johnson’s testimony, that Respondent had intended only to
reprimand Akers, but that when it learned that he “repeatedly
engaged in conduct that violated the second part or Respon­
dent’s no-access rule, Johnson was no longer confident that the
intended punishment was appropriate.” This argument might
have merit if Johnson’s testimony had been credible. As I have
found, Respondent had determined to discharge Akers prior to
speaking with him. According to Johnson’s own testimony,
there was no discussion of changing the level of discipline to be
imposed upon Akers. The absence of any discussion regarding
changing the level of discipline confirms that the level of disci­
pline did not change. The consultation simply changed the
grounds for the discharge. Although Akers purportedly had
been called in “to explain why he had been in the plant talking
to Troy Dennis,” the Separation of Employment document does
not even mention this incident; it refers, erroneously, to “using
JWH [John W. Hancock] facilities multiple times in May 2000
without management permission.” Akers showered on May 30
and 31 and June 1 and 2.
Respondent’s no-access rule permits employees to remain in
plant buildings or other work areas “a reasonable period of time
(not to exceed 30 minutes) prior to or after scheduled work.”
Employee Eddie Charlton regularly exceeded this 30-minute
limit, and Vice President Johnson admitted that he did not ob­
tain permission to do so. Although Reinholtz raised the issue of
security in the locker room, Johnson had acknowledged that he
took Akers at his word that he was not a thief. There is no evi­
dence establishing that Respondent’s security concerns should
have been any greater with regard to the presence of Akers,
who was not a thief, than with the presence of Charlton, who
was also not suspected of stealing. Charlton regularly violated
Respondent’s rule by remaining in a plant building for more
than 30 minutes taking a shower. Akers violated Respondent’s
rule by entering the building on four occasions to take a
shower. At the time Akers was terminated, he stated, “if you’re
going to enforce the rules once you need to enforce them all the
time.” Respondent arbitrarily and selectively enforced its no-
access rule against Akers. Respondent’s purported reliance
upon that rule was pretextual.
Respondent’s discharge of these employees for conduct that
had previously not even resulted in discipline was unprece­
dented. Prior to June 5, no employee had been disciplined for
entering Respondent’s property without permission. Prior to
June 2, no off duty employee had been denied entry to the plant
to conduct personal business. Neither Webb nor Cantrell men­
tioned discipline to either employee or to Johnson. Employee
Connor, when speaking with Supervisor Sloan stated, “I’ve
been here for twenty-three (23) years and I ain’t never knowed
nobody to be fired for trespassing.” Respondent presented no
evidence contradicting that statement. Neither Human Re-
sources Director Reinholtz nor Plant Superintendent Wallace
were called to testify despite their involvement in the discus­
sions with Johnson on June 5.
I find that the General Counsel has carried his burden of
proof. Respondent suspected that Akers and Pugh had been
“handing out Union cards to the nightshift” and its animus to-
wards that union activity was a substantial and motivating fac­
tor for their discharges. Indeed, it was the motivating factor
behind the discharges. Manno Electric, 321 NLRB 278, 281
(1996). Respondent has not established that it would have taken
the same action against these employees had it not believed that
they had been engaging in union activity. Although Respondent
argues that permitting prounion employee Paris to enter the
property and borrow a water cooler shows that it was not moti­
vated to discriminate against union supporters, Paris was not
suspected of engaging in union activity at the plant. There is no
evidence that any employee had ever been disciplined, and
certainly not discharged, for unauthorized presence on Respon­
dent’s premises. I find that Larry Pugh and Paul Akers were
discharged because Respondent believed that they were engag­
ing in activity on behalf of the Union at its plant on June 2. In
so doing, Respondent violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By interrogating employees concerning the union activi­
ties of their fellow employees, threatening plant closure if em­
ployees selected the United Steelworkers of America, AFL–
CIO as their collective-bargaining representative, and threaten­
ing employees with termination for engaging in union activi­
ties, the Respondent has engaged in unfair labor practices af­
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By discharging employees because of their union activi­
ties, the Respondent has engaged in unfair labor practices af­
fecting commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent having discriminatorily discharged Larry
Pugh and Paul Akers, it must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The Respondent will also be ordered to
post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, John W. Hancock, Inc., Salem, Virginia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning the union activities
of their fellow employees.
(b) Threatening plant closure if employees selected the
United Steelworkers of America, AFL–CIO, as their collective-
bargaining representative.
(c) Threatening employees with termination for engaging in
union activities.
(d) Discharging or otherwise discriminating against any em­
ployee for engaging in union activity.
(e) In any like or related manner interfering with, restraining,
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 effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Larry
Pugh and Paul Akers full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent posi­
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Larry Pugh and Paul Akers whole for any loss of
earnings and other benefits suffered as a result of the discrimi­
nation against them, in the manner set forth in the remedy sec­
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Larry Pugh
and Paul Akers and, within 3 days thereafter, notify them writ-
Board and all objections to them shall be deemed waived for all pur­
poses.
ing that this has been done and that the discharges will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa­
cilities at Salem, Virginia, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 11, after being signed by the Re­
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at any time since May 22, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply
4 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”