KBO, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1994

315 N.L.R.B. 570 (N.L.R.B. 1994)

570
315 NLRB No. 72
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the Judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderence of all relevant evidence convinces us that they are in-
correct. 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.
In adopting the judge’s dismissal of the allegation that Plant Man-
ager Robert Minshall unlawfully interrogated employee Karen
Rankin, we rely solely on the judge’s credibility finding that the al-
leged interrogation did not occur.
2 The judge in his decision incorrectly referred to Barnhart as
‘‘Barnhard.’’
3 The judge in his decision incorrectly stated that this conversation
took place on August 16 rather than September 16.
4 All dates herein are in 1992, unless otherwise specified.
5 The ‘‘round table’’ is a group of employees who serve as a liai-
son to management.
KBO, Inc., a wholly-owned subsidiary of
Klosterman’s Baking Company and Bakery,
Confectionery & Tobacco Workers Inter-
national Union, Local 57, AFL–CIO. Cases 9–
CA–29905 and 9–CA–29992
November 10, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On March 9, 1994, Administrative Law Judge Bruce
C. Nasdor issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge dismissed the complaint allegation that
the Respondent violated Section 8(a)(3) and (1) of the
Act when, in the context of a union organizing cam-
paign, it disciplined employee Rory Barnhart2 for mak-
ing remarks concerning the Respondent’s business
practices to other employees. The General Counsel
excepts, contending that Barnhart’s remarks were pro-
tected by Section 7 of the Act. We find merit in the
General Cousel’s exception.
Early in 1992, Barnhart contacted the Union, which
subsequently began an organizing campaign among the
Respondent’s employees. Barnhart persuaded employ-
ees to sign union cards and attend union meetings and
was open about his support for the Union in discus-
sions with the Respondent’s supervisory staff.
On September 16,3 1992,4 Barnhart had a conversa-
tion with employees Dave Abshear, the employees’
‘‘round table’’ representative,5 and Mark Horton.
Abshear testified that Barnhart told them that Union
representatives had a tape recording in which Mike
Outlaw, the Respondent’s operating manager, stated
that the Respondent was ‘‘taking money out of the em-
ployees’ profit sharing accounts to pay the lawyers to
fight the Union.’’ Abshear asked Barnhart for the tape.
He also reported Barnhart’s remark to Carol Mullin the
Respondent’s vice president for human resources.
On September 17, Barnhart was called to a meeting
with Mullin and Plant Manager Robert Minshall. They
asked Barnhart about his previous day’s conversation
with Abshear and Horton, and Barnhart admitted tell-
ing them about the tape recording of Outlaw’s re-
marks. Mullin told Barnhart that taking money out of
the employees’ profit-sharing accounts ‘‘would be the
same as lying and cheating and it was a real threat to
the whole integrity of the company.’’ Mullin testified
that Barnhart responded that the Company ‘‘had lied
and cheated the people in the past. He felt it was his
role to let everyone know what was going on.’’ Mullin
asked Barnhart if he had the tape or could produce it.
Barnhart initially stated he had it, but then stated he
did not. Minshall suspended Barnhart until he pro-
duced the tape. Three days later, however, Barnhart
was allowed to return to work although he never pro-
duced the tape.
The judge found that Barnhart raised and dissemi-
nated to employees a serious criminal charge against
the Respondent, and that he did not make a serious ef-
fort to ascertain whether the tape substantiating the
charge existed. The judge found that Barnhart’s re-
marks were made ‘‘in a reckless disregard for the
truth’’ and were thus unprotected. We disagree.
It is undisputed that Barnhart’s remark to Abshear
and Horton about the contents of the tape occurred in
the context of a discussion of working conditions and
the Union’s organizing campaign. As such, the remark
occurred within the context of activity clearly pro-
tected by Section 7 of the Act. Under well-settled
Board law, Barnhart’s remark would also be protected
unless it was ‘‘so offensive, defamatory or oppro-
brious’’ as to remove it from the protection of the Act.
Ben Pekin Corp., 181 NLRB 1025 (1970), enfd. 452
F.2d 205 (7th Cir. 1971); Dries & Krump Mfg., 221
NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir.
1976). A statement which is alleged to be libelous or
defamatory will not lose its protection unless it is
made ‘‘with knowlege of its falsity, or with reckless
disregard of whether it was true or false.’’ Linn v.
United Plant Guard Workers, 383 U.S. 53, 61 (1966).
Contrary to the judge we do not find Barnhart’s re-
mark so defamatory or opprobrious as to render it un-
protected.
Employee Trent Wright testified, without contradic-
tion, that he told Union Representative John Price that
he had a tape of Outlaw stating that the Respondent’s
571KBO, INC.
6 Contrary to the judge, we do not find that Barnhart had an inde-
pendent obligation to investigate whether the tape actually existed.
7 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.’’
antiunion campaign was being financed from the em-
ployees’ profit-sharing accounts. Barnhart testified,
without contradiction, that Price told him about the
tape recording and its contents. In this context, it is
readily apparent that Barnhart, in his conversation with
Abshear and Horton, was simply relaying to them in
good faith what he had been told by Price, and that he
reasonably believed the report to be true. Neither the
fact that Barnhart had not himself heard the tape nor
that the information may have been inaccurrate re-
moves Barnhart’s remark from the Act’s protection.6
Ben Pekin, supra; Dries & Krump Mfg., supra; Cement
Transport, 200 NLRB 841, 846 (1972), enfd. 490 F.2d
1024 (6th Cir. 1974), cert. denied 419 U.S. 828 (1974).
American Shuffleboard Co., 92 NLRB 1272, 1274–
1275 (1951), enfd. 190 F.2d 898 (3d Cir. 1951). Ac-
cordingly, we find that the Respondent’s suspension of
Barnhart because of this remark violated Section
8(a)(3) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By suspending its employee, Rory Barnhart, on
October 17, 1992, the Respondent has violated Section
8(a)(3) and (1) of the Act.
4. This unfair labor practice affects commerce with-
in the meaning of Section 2(5) of the Act.
THE REMEDY
Having found that the Respondent violated 8(a)(3)
and (1) of the Act, we shall order it to cease and desist
and to take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found the Respondent discriminatorily sus-
pended Barnhart, we shall order that the Respondent
make Barnhart whole for any losses of wages and ben-
efits he may have suffered from the date of his suspen-
sion to the date he returned to work. Backpay shall be
computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, KBO, Inc., a wholly-owned subsidiary of
Klosterman’s Baking Company, Springfield, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending employees because of their union
support or union activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the excersise 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) Make Rory Barnhart whole for any loss of wages
and benefits he may have suffered due to the discrimi-
nation practiced against him in the manner prescribed
in the remedy section of this decision.
(b) Expunge from its personnel records or other files
any reference to its suspension of Rory Barnhart and
notify him in writing that this action has been taken
and that evidence of the discipline will not be used as
a basis for future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all records necessary to
analyze and determine the amount or amounts due
Rory Barnhart under the terms of this Order.
(d) Post at its facilities at Springfield, Ohio, copies
of the attached notice marked ‘‘Appendix.’’7 Copies of
the notice, on forms provided by the Regional Director
for Region 9, upon receipt shall immediately be signed
and posted by Respondent’s authorized representative
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure the notices are not altered, defaced, or cov-
ered by other material.
(e) 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
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise specified.
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 suspend you because of your union
support or 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 make Rory Barnhart whole for any loss of
wages and benefits he may have suffered due to the
discrimination practised against him, less any interim
earnings, plus interest.
WE WILL expunge from our personnel records or
other files any reference to our suspension of Rory
Barnhart and notify him in writing that this action has
been taken and that evidence of the suspension will not
be used as a basis for future personnel actions against
him.
KBO, INC., A WHOLLY-OWNED SUBSIDI-
ARY OF KLOSTERMAN’S BAKING COM-
PANY
Engrid Emerson Vaughn, Esq., for the General Counsel.
Charles H. Hollis, Esq. and Rebecca G. Moore, Esq., for the
Respondent.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried in Springfield and Dayton, Ohio, on March 2 and
October 13, 1993. The original charge in Case 9–CA–29905
was filed by the Union on September 3, 1992, and the
amended charge in Case 9–CA–29905 was filed on October
19, 1992. The original charge in Case 9–CA–29992 was filed
by the Union on September 28, 1992, and the amended
charge in that case filed by the Union on October 15, 1992.
An order consolidating cases, amended consolidated com-
plaint and notice of hearing issued on February 4, 1993. The
complaint alleges certain independent acts of Section 8(a)(1)
of the Act and that Respondent committed an unfair labor
practice by disciplining Rory Barnhard. It is also alleged that
Respondent committed unfair labor practices by issuing writ-
ten warnings to James Gilbert and Larry Sipe.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, has been en-
gaged in the production and distribution of baking goods out
of its Springfield, Ohio facility.
During the preceding 12 months, Respondent, in conduct-
ing its operations described above, purchased and received at
its Springfield, Ohio facility goods valued in excess of
$50,000 directly from points outside the State of Ohio.
At all times material herein, Respondent has been engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
At all times material herein, Bakery, Confectionery and
Tobacco Workers International Union, Local 57, AFL–CIO–
CLC has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates bakeries at four locations in the
States of Ohio and Indiana including one at Springfield,
Ohio, the facility involved herein.
Early in 1992,1 the Union commenced an organizational
campaign among the Respondent’s employees. Rory
Barnhard initially contacted the Union, persuaded employees
to sign cards and attended union meetings. He did not hide
his prounion sentiments and testified that he even discussed
these sentiments with supervisors.
On September 17, Respondent suspended Barnhard and
then on September 21, issued him a ‘‘final warning notice,’’
allegedly arising out of an incident that occurred on Septem-
ber 16.
The evidence firmly establishes that on August 16,
Barnhard engaged in a discussion with two coworkers, Dave
Abshear and Mark Horton. Barnhard initiated the conversa-
tion and Abshear also testified that he, Abshear, was the em-
ployees’ ‘‘round table’’ representative. The round table is a
group of employees who act as a liaison with management.
During the conversation, Barnhard told these two employees
that union representatives had a tape recording of Respond-
ent’s operational manager, Mike Outlaw, stating that the
company was using employee profit-sharing money to pay
for the antiunion campaign and the antiunion lawyers. This
is established in Barnhard’s testimony as well as the testi-
mony of employees Abshear, Horton, and Carol Mullin, vice
president of human resources, and Robert Minshall, plant
manager. Barnhard contends that he advised the employees
that the money was being taken out of the Company’s profits
rather than out of profit-sharing money, that had already
been put in the employees’ profit-sharing accounts.
Barnhard acknowledged that the day after his conversation
with Abshear and Horton he met with Carol Mullin, vice
president of human resources, and Bob Minshall, plant man-
ager. During this meeting, he admitted to them that he told
Abshear and Horton about the tape recording of Mike Out-
law’s voice. Barnhard testified that Mullin informed him that
he was raising a serious criminal charge against Respondent,
because it is illegal for the Company to take money out of
employees’ profit-sharing accounts. Barnhard advised Mullin
and Minshall that he learned of the tape recording from John
Price, a union representative. According to Barnhard, he re-
ceived this information at a union meeting. Over a period of
5 months, Barnhard avers that he repeatedly asked Price to
produce the tape, but Price did not do so. Barnhard testified
he told Mullin and Minshall that he did not have the tape.
Accordingly, Respondent, because of Barnhard’s admitted
573KBO, INC.
misconduct, decided to suspend him until he produced a
tape, and it was verified that Outlaw’s voice appeared on the
tape. Although Barnhard didn’t produce the tape he was al-
lowed to return to work after his 3-day suspension.
When he returned to work he was asked to sign a written
warning which in essence is a final warning, stating that if
any further conduct in which he blatantly lied about his em-
ployer and any other gross misrepresentation of facts about
the Company would result in his termination.
Barnhard refused to sign the final notice as well as the
suspension notice given him on September 17.
In his testimony, Barnhard admitted that during his meet-
ing with Mullin on September 17, he told her that the Com-
pany had lied and cheated the employees. He also testified
that he believed Price, the union representative, because the
Union had never lied to him.
The testimony of Abshear, an employee of 6 years, con-
tradicts that of Barnhard. Abshear testified that on September
16, Barnhard approached him in the parking lot and told him
he possessed a taped recording of Mike Outlaw’s voice say-
ing that the money was being taken out of the profit-sharing
accounts to pay the lawyers to fight the Union. Abshear did
not believe Barnhard and asked him to produce the tape.
Abshear, fearing that Barnhard was misleading employees re-
ported this conversation to Mullin who assured him she
would investigate. She also put Abshear’s statement in writ-
ing.
Horton also recalled Barnhard saying he had a tape record-
ing containing statements that the Company was taking
money out of employees’ profit-sharing accounts. Barnhard
promised he would produce the tape but never did. Horton
also met with Mullin and signed a statement recounting his
recollection of the conversation with Barnhard.
Mullin testified that she assured Abshear and Horton that
the Company’s attorneys were paid out of profits but not out
of money already placed in employees’ profit-sharing ac-
counts.
Mullin testified about the meeting with Minshall,
Barnhard, and herself. According to her testimony, she and
Minshall asked Barnhard a couple of times and he said it
was money allocated to the people which was now being
taken out. Furthermore, she testified that they told Barnhard
that this would be the same as lying and cheating and it was
a threat to the integrity of the Company. Barnhard responded
that the Company had lied and cheated the people in the
past, and he felt it was his role to let everyone know what
was going on.
Minshall’s testimony corroborates Mullin’s account of the
meeting. Minshall testified, ‘‘He (Barnhard) stated that
money had been taken out. He stated that Mike says the
money was taken out of the profit sharing accounts. He has
the tape and we had lied and cheated people for years, that
he was going to let them know.’’
Counsel for the General Counsel’s witness, Trent Wright,
testified that Outlaw had said in a speech to employees dur-
ing a union campaign at a bakery in Morristown, Indiana,
that the Company was taking money from the profit-sharing
accounts of employees to pay the Company’s lawyers.
Counsel for the General Counsel then called Darlene
Thompson to testify on direct examination that Outlaw had
stated to the same assemblage at Morristown, Indiana, that
the expenses for the Company’s campaign to frustrate the
Union’s efforts to get into the plant would come ‘‘out of the
company’s profits.’’
Disciplinary Warnings to Gilbert and Sipe
On August 18, Respondent issued disciplinary reports to
Larry Sipe and James Gilbert allegedly for being in the pro-
duction area of the bakery under the influence of alcohol,
disrupting the work of other employees, such conduct being
a direct violation of written company policy. Both employees
refused to sign the disciplinary reports.
Both Gilbert and Sipe contend that they stopped by the
bakery on the evening of Wednesday, August 17, in order to
check Sipe’s uniforms for the next day.
On August 17, Gilbert and Sipe met at Wayside Tavern
where they shared five or six pitchers of beer. Gilbert testi-
fied that he drank approximately one pitcher of beer himself.
Sipe admitted he had a ‘‘buzz’’ when he left the tavern.
After leaving the tavern, they made several stops including
one at a shopping mall, where they each had another ‘‘keg’’
cup of beer. Within approximately an hour of drinking their
last beer they arrived at the company plant. Upon their arriv-
al at the plant both Gilbert and Sipe admit in their testimony
that they ‘‘had a buzz’’ from drinking numerous beers during
the day.
Sipe and Gilbert testified that no production was going on
at the time they arrived at the plant. The evidence discloses
that regularly scheduled sanitation maintenance was occur-
ring during the entire time they were in the plant.
Before entering the plant, they spoke with two mainte-
nance employees Kleismit and Cautrell. Kleismit had been a
leadman for 3-1/2 years. They then entered the plant passing
through the production area of the plant, walking through the
center of the plant under the bread cooler. Gilbert testified
that they stopped and spoke with employees who were work-
ing on the overhead bread line. He testified that he spent 5
minutes talking with employee Robinson inside the plant.
Then, according to Gilbert, he went outside and spoke with
employees who were on their break time. His testimony is
that they were at the plant for a total of 35 to 40 minutes,
5 to 10 minutes inside and 30 minutes outside the plant.
Sipe testified that he does not recall whether he spoke with
employees Robinson and Frock inside the plant. He specifi-
cally recalled speaking to Robinson and Frock outside the
plant. Sipe admitted he may have told Frock that he had
been drinking. According to Sipe they spent a total of 15 to
20 minutes inside the plant talking to people. Sipe testified
that their total time spent was approximately 30 minutes.
Sipe also readily acknowledged that he was unsure whether
the alcohol he had consumed may have affected his ability
to recall.
Gilbert testified he was called into Minshall’s office and
admitted that he had gone into the bakery after having a few
beers. He was issued a written warning by Minshall but he
did not read it. Sipe also was issued a written warning. He
testified that Minshall told him that the reason for the warn-
ing was to prevent any future similar incidents. Sipe testified
that Minshall did not say anything to him to make him be-
lieve that he was disciplined because of his union activities.
Kleismit testified he noticed Gilbert and Sipe in the bakery
for approximately 30 to 35 minutes. He stated that they were
walking throughout the plant talking to sanitation and main-
tenance workers who were on duty. Later, while Kleismit
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was on break outside the plant, Gilbert approached him and
other maintenance employees and talked to them about sign-
ing union cards. Kleismit testified he could smell alcohol on
Gilbert’s breath and he noticed Sipe’s speech was slurred.
The next day he reported the incident to his supervisor.
Frock, a sanitation employee for 8-1/2 years, also testified
that he was in the middle of the plant working when Sipe
and Gilbert approached him. He testified that the two ap-
peared to be drunk. He stated he spoke to Gilbert for ap-
proximately 20 minutes inside the plant, and he asked Sipe
and Gilbert if they had been drinking. According to Frock
they responded that they had been drinking but they weren’t
drunk.
Robinson, a lead person in sanitation for approximately 2
years, testified that while he was doing his job picking up
bread crumbs, Sipe and Gilbert walked in and started talking
to him about the Union. According to him they spoke with
him for approximately 20 to 25 minutes before asking him
and other employees if they would like to go outside and
continue the conversation. Robinson testified, ‘‘They were
just mainly, you know, more or less just coming in and bug-
ging us is more or less what happen.’’ According to Robin-
son he and the other employees all stopped working to talk
to Gilbert and Sipe. He said he knew they had been drinking
from the alcohol smell on their breath, red eyes, and the way
they talked.
Minshall interviewed Robinson and Kleismit as to what
they observed on August 17. According to Minshall, Robin-
son and Kleismit told him that when Gilbert and Sipe came
into the plant they could smell alcohol on their breath, they
were loud, their eyes were bloodshot and their speech was
slurred. They were loud and they were going from place to
place in the plant. Based on these accounts and Gilbert’s and
Sipe’s admissions, Minshall issued the written warnings to
them that any repeat violation of the Company’s alcohol pol-
icy would result in their dismissal.
Documentary evidence and the testimony of Minshall es-
tablished that it is against company policy for any one to be
in a workplace while under the influence of alcohol. During
the 2-1/2 years he has been plant manager, Minshall testified
he has not had to discipline anyone for being under the influ-
ence of alcohol except Gilbert and Sipe.
Mullen testified that at least two other employees had been
terminated for being under the influence of alcohol at the
workplace, prior to Minshall being appointed to plant or op-
erations manager. Respondent’s written policy on illegal
drugs and alcohol in the workplace prohibits the use or pos-
session of alcohol ‘‘on company premises.’’ The policy also
provides that no employees shall report to work while under
the influence of alcohol. Minshall testified the primary rea-
son for the Company’s policy was to promote the safety of
the employees. Accordingly, Respondent contends that with
the many pieces of machinery in the bakery, employees who
are under the influence of alcohol or drugs, either on or off
duty, pose a threat to their safety and the safety of their co-
workers.
Sipe and Gilbert admit that they were aware of the Com-
pany’s drug and alcohol policy. Gilbert testified he did not
believe it was a violation of the Company’s policy to be in
a production area of the plant while under the influence of
alcohol as long as he was off duty. Sipe conceded that it
was, ‘‘bad judgment’’ to be in a production area of the plant
under the influence of alcohol.
The Independent 8(a)(1) Allegations
Karen Rankin was an employee of Respondent who was
discharged in September 1992, allegedly for harassing other
employees. Unfair labor practice charges were filed and sub-
sequently dismissed. Rankin testified that during April,
Minshall approached her and asked her if she was going to
the beer party. When she asked what beer party he allegedly
responded, the one that the Union was going to give. It was
generally known that the Union held meetings at a local Pon-
derosa Steak House in Springfield, Ohio. Rankin testified
that the conversation with Minshall took place in the em-
ployee breakroom in the presence of other employees, and
she did not feel threatened or intimidated by Minshall’s
question. Minshall testified he never asked whether an em-
ployee planned to attend any union functions. Rankin testi-
fied further that during late June or July, Supervisor Tim
Hook approached her while she was talking to Barnhard, and
asked her was Rory trying to gear her up for a steak dinner.
Barnhard corroborated Rankin’s testimony in this regard. As
stated earlier, union meetings were often conducted at the
Ponderosa Steak House. Rankin acknowledged that Hook
never mentioned the Union to her and she did not feel threat-
ened or intimidated by Hook’s comment. Hook did not tes-
tify.
No evidence was adduced to support the allegation that
Carol Mullen interrogated an employee in violation of Sec-
tion 8(a)(1) of the Act.
Conclusion and Analysis
In my view, unquestionably, Barnhard raised and dissemi-
nated to at least two coworkers a serious criminal charge
against Respondent. He had 5 months to produce the tape,
but failed to do so. He was suspended for 3 days but allowed
to return to work, although he failed to produce any tapes.
In my opinion, Respondent’s actions were mild and more
than justified, considering the seriousness of Barnhard’s of-
fense.
I discredit Barnhard and his attempt to alter profit-sharing
accounts to ‘‘profit sharing money.’’ Barnhard, based on my
observations, exuded irresponsibility and a proclivity to ob-
fuscate.
By contrast, Abshear, Horton, Mullen, and Minshall were
candid and exacting in their testimony. They made sincere
efforts to recount incidents accurately and forthrightly.
Therefore, I credit them.
Barnhard did not, in my opinion, even make a serious ef-
fort to ascertain the truth, i.e., did such a tape exist? It is
clear to me that Barnhard told his coworkers that the Re-
spondent was taking money out of employees’ profit-sharing
accounts. His statements were made in a reckless disregard
for the truth and Respondent’s reputation.
The Act does not protect such conduct.
Respondent’s discipline of Barnhard occurred after making
a thorough investigation.
I am convinced by the preponderance of the evidence that
Respondent has met the Wright Line burden (251 NLRB
1083 (1980)) standards, although it is clear to me that
Barnhard’s conduct was unprotected from the beginning.
575KBO, INC.
2 Policy provides for suspension or dismissal.
Accordingly, I recommend that the allegation that Re-
spondent disciplined Barnhard because of his union and/or
concerted activity, in violation of Section 8(a)(1) and (3) of
the Act be dismissed.
Respondent, by clear evidence, established that Mullen and
Minshall investigated and substantiated employee reports that
Gilbert and Sipe, although off-duty, were in the production
areas of the bakery under the influence of alcohol, disrupting
the work of other employees. Their actions violated written
company policy.2 Moreover, they were aware of this policy.
Respondent therefore issued written warnings to them for
their conduct on August 17. Gilbert and Sipe both admitted
drinking numerous beers during the day, to the point where
they ‘‘had a buzz’’ when they reached the bakery. Sipe testi-
fied he was ‘‘dazed.’’ Sipe and Gilbert contended that no
production was occurring while they were present. The over-
all evidence reflects that regularly scheduled maintenance
and sanitation were being performed, while they were
present.
Sipe and Gilbert spoke to employees on break outside the
bakery and they spent 15, 20, or 30 minutes inside the bak-
ery talking to employees who were working.
Employee Kliesmit testified that they were in the bakery
30 to 35 minutes talking to employees about signing union
cards, and that Sipe’s speech was slurred, and Kliesmit
smelled alcohol on his breath.
Employee Frock testified that both Sipe and Gilbert ap-
peared to be drunk. Employee Robinson testified that they
were ‘‘bugging’’ the employees.
These employees were credible and did not evidence a
negative attitude toward Sipe or Gilbert.
It is clear that employees ceased work to talk to Sipe and
Gilbert.
Minshall interviewed Robinson and Kliesmit as to their
observations. Based on this, he issued written warnings to
them that any repeat violations of Respondent’s policy would
result in their dismissal.
Minshall’s unrefuted testimony is that during his 2-1/2
years as plant manager, he had not had to discipline anyone,
other than Gilbert and Sipe, for being under the influence of
alcohol. Mullen was aware of two employees terminated for
being under the influence of alcohol ‘‘on company prem-
ises.’’
Minshall testified that safety of employees was the main
reason for the policy.
Suffice it to say there are various types of machinery in
the bakery posing a real threat to employee safety.
There is no evidence of disparate treatment. Indeed, the
warnings to Sipe and Gilbert were more lenient than the pol-
icy calls for, and they were treated more leniently than other
employees under similar circumstances.
Where there is any conflict in the testimony of Gilbert,
Sipe, and Respondent’s witnesses, I resolve the conflict in
favor of Respondent’s witnesses. Sipe and Gilbert impressed
me as witnesses who disregarded the truth, in a joint effort
to fabricate violations.
Sipe and Gilbert averred that they stopped at the bakery
to check on Sipe’s uniform for the next day. Their conduct
at the bakery belies this contention. Assuming arguendo, that
this was true, it does not excuse their blatant disregard for
company policy.
I conclude that Respondent has met its Wright Line bur-
den. Accordingly, I recommend that the allegations that Re-
spondent disciplined Sipe and Gilbert because of their union
and/or concerted activities, in violation of Section 8(a)(1) and
(3) of the Act be dismissed.
Karen Rankin testified that in the employee breakroom,
with other employees present, Minshall asked her if she was
going to the Union’s beer party. She testified she did not feel
threatened or intimidated in any way by Minshall’s question.
Minshall testified he never asked any employees whether
they planned to attend a union function.
I have concluded that Minshall is an employee to be cred-
ited. Conversely, Rankin, an employee who had filed an un-
fair labor practice charge against Respondent, which was
subsequently dismissed by the Regional Director, impressed
me as an employee with an ax to grind and perhaps moti-
vated by a sense of revenge. I discredit her.
Moreover, even assuming arguendo that Rankin’s testi-
mony is true, I conclude that this does not rise to the level
of illegal interrogation. I consider it a mere isolated incident,
if true. Accordingly, I recommend that this 8(a)(1) allegation
be dismissed.
Rankin testified that while she was talking to Barnhard,
Supervisor Hook asked her if Barnhard was ‘‘gearing her up
for a steak dinner’’ at the Ponderosa Steak House, where the
Union usually held its meetings. She testified that she asked
Hook to explain his comment and he responded by telling
her not to worry about it. She also testified that Hook never
mentioned the Union to her and she didn’t feel threatened or
intimidated by the comment. Hook did not testify. I consider
Hook’s comment innocuous at best. Moreover, I also do not
view this as rising to the level of illegal interrogation. Ac-
cordingly, I recommend that this 8(a)(1) allegation be dis-
missed.
Paragraph 5(c) of the complaint alleges that Mullen vio-
lated Section 8(a)(1) of the Act by interrogating an employee
on or about September 11. No evidence was presented to
support this allegation and accordingly I recommend that it
be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint, that the Respondent
has engaged in conduct violative of Section 8(a)(1) and (3)
of the Act, have not been supported by substantial evidence.
[Recommended Order for dismissal omitted from publica-
tion.]