Kendall Company, The

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 963 (N.L.R.B. 1983)

THE KENDALL COMPANY
The Kendall Company and United Paperworkers
International Union, AFL-CIO and Gary B.
Chalker. Cases 10-CA-16802 and 10-CA-
17396
26 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
On 9 August 1982 Administrative Law Judge
Lawrence W. Cullen issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge except as modified herein.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(3)
and (1) of the Act by issuing a verbal warning to
Gary B. Chalker on 17 January 1981,1 for exces-
sive telephone usage; issuing an unsatisfactory per-
formance evaluation of Chalker on 7 February; is-
suing a written warning to Chalker on 10 Febru-
ary; and issuing a warning letter and 3-day suspen-
sion to Chalker on 11 March; 2 refusing to transfer
Chalker from the second to the third shift on 17
August; and issuing a written warning and 10-day
suspension to Chalker on 27 August.3 However,
contrary to the Administrative Law Judge, we
cannot find that Respondent violated Section
8(a)(1) of the Act by "indirect interrogation" of
employee Tanya Hickson by Supervisor Guest, or
by refusing to allow Chalker to wear a union key-
chain.4 Nor can we agree with the Administrative
I All dates hereinafter refer to 1981, unless otherwise indicated.
2 We note that, shortly before the II March suspension, Chalker
passed out handbills to employees and supervisors at the plant entrance.
According to Chalker's uncontroverted testimony, on 5 March he gave
union literature to Supervisors Don Montgomery, Terri Marshall, Wade
Walker, and Curtis Williams; and on 11 March he passed out union litera-
ture to Williams and Walker. According to testimony of Respondent's su-
pervisor, Terri Boyduy, Chalker's handbilling activities were discussed at
supervisory meetings.
3 Although the complaint did not allege the 27 August written warn-
ing to be a violation of Sec. 8(aX3) and (1) of the Act. the Administrative
Law Judge so found in his Conclusions of Law. We find that this viola-
tion was fully litigated, as the same document contained both the suspen-
sion and written warning of 27 August and, accordingly, we adopt the
Administrative Law Judge's conclusion as to the 27 August written
warning.
4 Inasmuch as we find both that Respondent did not violate Sec.
8(aHI) of the Act by its alleged interrogation of Hickson by Guest or by
its refusal to allow Chalker to wear a union keychain, we do not rely
267 NLRB No. 154
Law Judge that the verbal warning issued to
Chalker for leaving the work area early for break
on 29 July was not a violation of Section 8(a)(3)
and (1) of the Act. 5
1. The complaint alleges that Respondent twice
unlawfully interrogated employee Tanya Hickson,
an orbitseal packer and an informally designated
leadperson in department 37. The first interrogation
was allegedly conducted by Terri Marshall (Mont-
gomery), who was then the production supervisor
of department 37, and the second, by George
Guest, Respondent's department supervisor. The
Administrative Law Judge dismissed the first alle-
gation of interrogation, 6 but found that Respondent
violated Section 8(a)(l) of the Act by the second
interrogation.
In January, according to the credited testimony,
Hickson, while standing near her machine, initiated
a conversation with Montgomery concerning pro-
duction. Upon Montgomery's suggestion, they
went into an office where, during the discussion,
Hickson said she thought that part of the produc-
tion problems was caused by dissension among the
employees concerning the Union. Hickson volun-
teered that she had signed a union card and stated,
"I will tell you this, I did sign a card and I wish I
hadn't done it." Montgomery then told Hickson
that Guest had some information which Hickson
could read, and encouraged her to go to the union
meetings to find out more about the Union.
Shortly thereafter, Hickson was called into
Guest's office and was asked why production was
not "being met." Again, in the course of conversa-
tion, Hickson admitted signing a union card and
stating she wished she had not done so. Guest told
her she was signing her rights away, but that the
signing of the card did not matter, since the elec-
tion had not yet taken place.
The Administrative Law Judge found that fur-
ther interrogation of Hickson by Guest was calcu-
lated to lead Hickson into a discussion of Respond-
ent's employees' union activities. The Administra-
tive Law Judge reasoned that, in the absence of
any evidence presented by Respondent justifying
the further interrogation, Respondent's "indirect in-
terrogation" constituted a violation of Section
8(a)(1).
We reverse.
upon the Administrative Law Judge's finding in sec. 11B, par. 13, of his
Decision that these acts constituted evidence of union animus on the part
of Respondent.
5 In light of our finding of an additional 8(a(3) and (I) violation and
our dismissal of two 8(a)(I) violations found by the Administrative Law
Judge, we shall issue new Conclusions of Law.
6 No exception was taken to the finding that this alleged interrogation
did not constitute a violation of Sec. 8(a)XI) of the Act
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[I]n order to evaluate fully an interrogation's
tendency to coerce, it is necessary to examine
all of the surrounding circumstances. Actual
coercion is not necessary but, rather, the true
test is whether the questioning tends to be co-
ercive.... The Board has held that, where
the interrogation is isolated and occurs in an
atmosphere free of coercive conduct, the ques-
tioning is not per se unlawful. 7
It was Hickson who began the conversation about
production with Montgomery, and Hickson who
raised the subject of the Union by suggesting to
Montgomery that dissension among the employees
might have been the reason that production was
not being met. We find that Guest, acting for Re-
spondent, was entitled to inquire further of Hick-
son as to whether union activity was actually inter-
fering with production. s Guest did respond to
Hickson's statement that she had signed a card by
saying that she was signing her rights away. Such a
personal opinion in response to Hickson's admitted
regret over having signed a card does not consti-
tute a threat or imply coercion. Further, it was im-
mediately qualified when Guest stated that it did
not matter since the election had not yet taken
place. We emphasize that, during their brief con-
versation, Guest never questioned Hickson about
her union sentiments and activities or those of
other employees; nor did Hickson volunteer infor-
mation about other employees. Taking all this into
account, we find the circumstances surrounding the
Guest-Hickson conversation to be free from coer-
cion and, accordingly, we shall dismiss the Admin-
istrative Law Judge's finding that Respondent
thereby violated the Act.
2. The Adminstrative Law Judge found that Re-
spondent violated Section 8(a)(l) of the Act when
it required Chalker to remove union insignia while
on the premises. Chalker was employed as a ma-
chine adjustor in Respondent's department 37.
Shortly after the union campaign had commenced
in early January, he wore a union keychain on his
buttoned shirt pocket. He was told by his supervi-
sor, Montgomery, to remove it "because it was not
part of the uniform"; i.e., a dress code violation.9
On that same day, Chalker asked Montgomery
whether the stickpin he noticed another employee
7 Mark I Tune-Up Centers, 256 NLRB 898, 905 (1981).
s Cf Custom Recovery, 230 NLRB 247 (1977). An employer may pro-
hibit solicitation which interferes with production.
I Respondent's dress code provides for hair coverings and the wearing
of uniforms and limits the wearing of jewelry to a single ring or a wed-
ding-engagement ring set, a wristwatch fit snugly to the wrist, and a
single necklace which does not extend over the uniform when the em-
ployee stands or bends. It is undisputed that Respondent established the
dress code in October 1980, and made it effective in November 1980,
well in advance of the union campaign.
wearing on her collar was part of the uniform.
Montgomery replied that it was not and asked the
employee to remove it. Chalker testified that he
had observed the employee wearing the stickpin
for 6 days and that he had observed other employ-
ees wearing keychains with a plastic disk bearing
the name "Kendall" attached directly to a metal
keyring. Machine adjustors Meeks and Oglesby tes-
tified that they both wore personal items with their
uniform (Meeks had worn a National Rifle Asso-
ciation belt buckle for the past 3 years, and Og-
lesby, personal keys on a keychain holding work-
related keys). All three testified that they and other
employees wore various work-related items on
their person such as pens, rulers, tool pouches, and
tools. Chalker testified that the keychain dangling
from his shirt pocket could "probably" get caught
in one of the pieces of machinery.
Supervisor Montgomery testified that, since the
promulgation of the dress code in November and
continuing through February, Respondent had re-
quested employees to remove, inter alia, United
Way pins, Christmas decoration pins, and religious
pins. Respondent maintained that the wearing of
nonwork-related items is an unacceptable safety
risk, whereas wearing work-related items such as
pens, rulers, and keychains or work-related keys is
a risk inherent in factory work.1 0 Respondent's
employees work around machinery that have a
series of cams, levers, and gears in which objects
can become entangled, possibly drawing the em-
ployee, as well, into the machine's moving parts.
Respondent's production supervisor, Lougene Wil-
liams, testified that there were two amputation ac-
cidents in 1980. Respondent, a manufacturer of sur-
gical sponges used primarily in hospital operating
rooms, further maintained that the dress code is
necessary to insure noncontamination of its prod-
ucts and to comply with standards (called Good
Manufacturing Practices or GMPs) set up by the
United States Food and Drug Administration.
The Administrative Law Judge did not find, but
suggested, that "there may well have been justifica-
tion" for requiring removal of union insignia be-
cause of the presence of special circumstances
based on safety grounds and product integrity, re-
ferring to Republic Aviation Corp. v. NLRB, 324
U.S. 793, 801-803 (1945); he did find that Respond-
ent failed to demonstrate that its action was based
on the FDA's GMP requirements or on the mainte-
nance of production and discipline in its operations.
Citing the alleged wearing of nonwork-related
"' Respondent argued that keys are necessary to lock and unlock
doors and equipment: leather pouches are used to shield and make safe
the carrying of work knives; and pens are used to make Federally re-
quired entries in GMP logs. explained injia.
964
THE KENDALL COMPANY
items by employees such as the stickpin and the
keychains issued by Respondent, referred to above,
the Administrative Law Judge stated that there
was substantial evidence that the dress code policy
was not routinely enforced. This alleged disparate
enforcement, coupled with the finding that Re-
spondent failed to mention the element of safety
when it instructed employees Chalker, Oglesby,
and Meeks to remove the union insignia, led the
Administrative Law Judge to find that the enforce-
ment of the dress code was not related to safety or
product integrity. Consequently, he concluded that
Respondent violated Section 8(a)(l) of the Act by
prohibiting its employees from wearing union insig-
nia while on the premises.
We cannot agree. While employees have the
right to wear union insignia at work, employers
have the right to take reasonable steps to ensure
full and safe production of their product or to
maintain discipline. Therefore, the Board holds that
a rule which curtails that employee right is pre-
sumptively invalid unless special circumstances
exist which make the rule necessary to maintain
production or discipline, or to ensure safety.'
Here there is ample record evidence to support a
finding of special circumstances, based on safety
considerations, to justify Respondent's dress code
policy.
As a machine adjustor, Chalker often leans over
the machine's moving parts during the repair and
he, himself, admitted that the keychain dangling
from this shirt pocket might have been drawn into
the machine. Further, in finding disparate enforce-
ment of the dress code policy, the Administrative
Law Judge relied on evidence of isolated instances
where employees wore nonwork-related items
(such as a stickpin worn by an employee for sever-
al days previous to the Chalker-keychain incident),
but ignored evidence that Respondent, between
November 1980 and February 1981, required em-
ployees to remove such items as religious buttons,
Christmas pins, and United Way buttons (as well as
the above-referred-to stickpin after it was brought
to Respondent's attention) as they were dress code
violations. After finding special circumstances to
exist and that "[Respondent] acted accordingly, it
is immaterial that he failed to so act on all occa-
sions .... Respondent's inefficiency on some oc-
casions does not warrant a finding that occasions of
efficiency amount to unfair labor practices even if
some restriction of employee rights to propagan-
dize is involved." Hanes Hosiery, 219 NLRB 338,
347 (1975).12
1 Mayrath Co.. 132 NLRB 1628. 1629-30 (1961); Andrews Wire Corp..,
189 NLRB 108, 109 (1971)
12 Having found that there existed the special circumstance of safety
justifying Respondent's dress code, we find it unnecessary to pass on Re-
The Administrative Law Judge found that the
failure by Respondent's management representa-
tives to mention the element of safety when they
told employees to remove the union insignia gave
rise to an inference that the actual motivation for
the request was not a safety concern. The dress
code, as the record establishes, was promulgated
for safety considerations. The reference to
Chalker's keychain as a "dress code violation" was,
therefore, synonymous with having said it posed a
safety problem. Accordingly, we reverse the Ad-
ministrative Law Judge's finding of this violation.
3. As stated previously, the Administrative Law
Judge found that Respondent violated Section
8(a)(3) and (1) of the Act by Respondent's numer-
ous warnings issued to Chalker (17 January, 10
February, 11 March, and 27 August), its unsatisfac-
tory performance evaluation of Chalker (7 Febru-
ary), its refusal to transfer Chalker to the third shift
(17 August), and its suspensions of Chalker (11
March and 27 August). The Administrative Law
Judge found that Chalker was identified as a union
supporter in about the third week of January; and
thereafter, given Chalker's relatively unblemished
6-year work record and past satisfactory job rat-
ings, Respondent's evaluation of Chalker changed
abruptly and Chalker was monitored and disci-
plined in a disparate manner. The Administrative
Law Judge found the 17 August transfer refusal
and 27 August suspension and warning to be un-
lawful inasmuch as they were based on Respond-
ent's unlawful actions taken in the period January
through March. However, the Administrative Law
Judge found that a verbal warning issued to Chalk-
er for leaving the break area early on 29 July was
not unlawful. According to the Administrative
Law Judge, there was no corroboration for
Chalker's contention that he left early because he
had observed other employees doing the same.
Chalker testified that he was complying with
Montgomery's directive that he stay in his work
area until 3 or 4 months after his March suspen-
sion. He admitted having left his department on 29
July for his break, a "minute and a half" early, but
stated that he did so in order to help another
person change a heavy roll of paper. He testified
that he had been observing other employees leav-
ing their areas early as well as making calls and
talking to other employees.
There was corroboration that such activities
were occurring. For example, machine adjustor
Rudolph Meeks testified that he left his department
during worktime for various reasons prior to Janu-
spondent's contention that the dress code is necessary to ensure noncon-
tamination of its products and to comply with GMPs.
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary, during the period January through March, and
since March, without being disciplined; employee
Debra Thomas testified that since March, as well
as before, she left early for her official breaktime
without being disciplined. This evidence of the dis-
parate treatment of Chalker and the Administrative
Law Judge's finding that Respondent committed
three 8(a)(3) and (1) violations against Chalker
after 29 July compel us to find, contrary to the Ad-
ministrative Law Judge, that Respondent violated
Section 8(a)(3) and (1) of the Act when it issued a
verbal warning to Chalker on 29 July.
CONCLUSIONS OF LAW
1. Respondent The Kendall Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the unsatisfactory performance evaluation
issued to Gary B. Chalker on 7 February 1981; the
verbal warning issued to Chalker on 17 January
1981; the written warning issued to Chalker on 10
February 1981; the written warning and 3-day sus-
pension issued to Chalker on 11 March 1981; the
verbal warning issued to Chalker on 29 July 1981;
the transfer refusal issued to Chalker on 17 August
1981; and the written warning and 10-day suspen-
sion issued to Chalker on 27 August 1981, Re-
spondent has, in each instance, violated Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
5. Respondent did not violate Section 8(a)(1) of
the Act by the alleged interrogations of employee
Tanya Hickson, one by Supervisor Terri Mont-
gomery, and one by Supervisor George Guest.
6. Respondent did not violate Section 8(a)(1) of
the Act by requiring Chalker, for safety reasons, to
remove union insignia.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Kendall Company, Augusta, Georgia, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Paper-
workers International Union, AFL-CIO, or any
other labor organization, by discriminatorily issuing
verbal or written warnings, unsatisfactory perform-
ance evaluations or suspensions, or discriminatorily
refusing job transfers to employees, or otherwise
discriminating against employees in any manner
with regard to their hire or tenure of employment
or any other term or condition of employment.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them under Section 7 of
the Act.
2. Take the following affirmative action designed
to effectuate the policies and purposes of the Act:
(a) Offer Gary B. Chalker a transfer, from the
second-shift to the third-shift position on which he
bid on 17 August 1981, without prejudice to his se-
niority or any other rights or privileges previously
enjoyed.
(b) Make Gary B. Chalker whole for any loss of
earnings he may have suffered due to the discrimi-
nation practiced against him by paying him a sum
equal to what he would have earned absent such
discrimination, less any net interim earnings, plus
interest.
(c) Expunge from its files any reference to the
unsatisfactory performance evaluation issued to
Gary B. Chalker on 7 February 1981; the verbal
warning issued to Chalker on 17 January 1981; the
written warning issued to Chalker on 10 February
1981; the written warning and 3-day suspension
issued to Chalker on 11 March 1981; the verbal
warning issued to Chalker on 29 July 1981; the
transfer refusal issued to Chalker on 17 August
1981; and the written warning and 10-day suspen-
sion issued to Chalker on 27 August 1981; and
notify him in writing that this has been done and
that evidence of the above will not be used as a
basis for future personnel actions against him.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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) Post at its Augusta, Georgia, facility copies
of the attached notice marked "Appendix." 13
Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
966
THE KENDALL COMPANY
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
United Paperworkers International Union,
AFL-CIO, or any other labor organization, by
discriminatorily issuing verbal or written
warnings, unsatisfactory performance evalua-
tions or suspensions, or discriminatorily refus-
ing job transfers to employees, or otherwise
discriminating against employees in any
manner with regard to their hire or tenure of
employment or any other term or condition of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Gary B. Chalker a transfer
to the third-shift position on which he bid on
17 August 1981, without prejudice to his se-
niority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Gary B. Chalker whole for
any loss of earnings he may have suffered due
to the discrimination practiced against him by
paying him a sum equal to what he would
have earned, less any net interim earnings, plus
interest.
WE WILL expunge from our files any refer-
ence to the unsatisfactory performance evalua-
tion issued to Gary B. Chalker on 7 February
1981; the verbal warning issued to Chalker on
17 January 1981; the written warning issued to
Chalker on 10 February 1981; the written
warning and 3-day suspension issued to Chalk-
er on 11 March 1981; the verbal warning
issued to Chalker on 29 July 1981; the transfer
refusal issued to Chalker on 17 August 1981;
and the written warning and 10-day suspension
issued to Chalker on 27 August 1981; and
notify him in writing that this has been done
and that evidence of the above will not be
used as a basis for future personnel actions
against him.
THE KENDALL COMPANY
Decision
STATEMENT OF THE CASE
LAWRENCE W. CULLEN,' Administrative Law Judge:
These consolidated cases were heard by me on March 1
and 2, 1982, at Augusta, Georgia. The hearing was held
pursuant to complaints consolidated by the Acting Re-
gional Director for Region 10 of the National Labor Re-
lations Board on October 15, 1981.2 The complaint as
amended in Case 10-CA-16802 is based on a charge filed
by United Paperworkers International Union, AFL-CIO
(hereinafter referred to as the Union) on March 20, 1981.
The complaint in Case 10-CA-17396 is based on a
charge filed by Gary B. Chalker, a individual, on behalf
of himself on September 3, 1981. The complaint as
amended in Case 10-CA-16802 alleges violations of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act
(hereinafter referred to as the Act) by The Kendall Com-
pany (hereinafter referred to as the Respondent). The
complaint in Case 10-CA-17396 also alleges violations of
Section 8(a)(1) and (3) of the Act by Respondent. Both
complaints are joined by the separate answers of Re-
spondent wherein it denied the commission of the alleged
unfair labor practices.
Upon the entire record in this proceeding, including
my observations of the witnesses who testified herein,
and after due consideration of the briefs filed by the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT AND ANALYSIS3
1. JURISDICTION
The complaint alleges, Respondent admits, and I find
that it is a Massachusetts corporation, with an office and
place of business located in Augusta, Georgia, where it is
engaged in the manufacture of health care products and
that during the past calendar year, which period is repre-
sentative of all times material herein, it sold and shipped
from its Augusta, Georgia, facility finished products
valued in excess of $50,000 directly to customers located
outside the State of Georgia. The complaint alleges, Re-
spondent admits, and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is, and has been at all times material
I The transcript is hereby corrected throughout to reflect that these
cases were heard by me Lawrence W. Cullen, incorrectly designated by
the reporter as Lawrence W. Cohen.
2 All dates are in 1981 unless otherwise stated.
3 The following includes a composite of the testimony of the witnesses
at the hearing which testimony is credited, except insofar as specific
credibility resolutions are made.
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Violations
I. The alleged interrogation of Hickson by
Montgomery
Tanya Hickson, employed by Respondent as an orbit-
seal packer in department 37 on the second shift, testified
that she signed a union card on approximately January
11. She was subsequently called into the conference
room by Terri Marshall (Montgomery), who was then
production supervisor of department 37, and that Mont-
gomery inquired of Hickson regarding the reason for
production in the packing department not "being met."
Montgomery placed this conversation in January. Hick-
son was one of several packers in the same category but
generally labeled the products that had been packed, an
informally designated leadperson position which has
since been reclassified to a higher position. Hickson testi-
fied that she told Montgomery that there was dissension
between the packers concerning the Union and that
during the course of this conversation she was asked by
Montgomery whether she had signed a union card and
she replied that she had done so. Hickson subsequently
qualified this statement in her testimony and testified,
"And then, it came into the conversation. It wasn't like
she asked me, did I sign the card. It just came into it
somehow. I don't even remember at what point. I can't
say specifically, but in the conversation, it was asked, did
I sign a card and I said, yes I did."
Montgomery testified that the conversation concerning
production was initiated by Hickson near Hickson's ma-
chine and that she (Montgomery) suggested they go into
an office, which they did. Montgomery testified that,
during the course of the conversation concerning pro-
duction, Hickson said that she thought that part of the
production problems was caused by dissension among
the employees concerning the Union. She testified that
Hickson volunteered that she had signed a union card
and stated, "I will tell you this, I did sign a card and I
wish I hadn't done it." Montgomery testified she then
told Hickson that the Respondent had some information
which Hickson could read and that she encouraged
Hickson to go to the union meetings to find out what it
was all about.
Analysis
In view of the above conflicting testimony by Hickson
concerning whether or not Montgomery asked her
whether she had signed a union card and Montgomery's
affirmative denial that she had done so and her specific
recall of the statement of Hickson volunteering the infor-
mation, I find Montgomery's version of this conversation
the more reliable and I credit her testimony. According-
ly, I find that Montgomery did not engage in unlawful
interrogation of Hickson and I will recommend dismissal
of his allegation of the complaint.
2. The alleged interrogation of Hickson by Guest
Hickson testified that, shortly following her conversa-
tion with Montgomery, she was called into the office of
George Guest (Respondent's department supervisor) to
discuss production, that Guest asked her why production
was not "being met," and that she told him she had
signed a union card and wished she had not done so and
that Guest then told her that she was signing her rights
away, but that the signing of the card did not matter,
since the election had not yet taken place. 4 Guest did
not testify and Hickson's testimony concerning this con-
versation thus stands unrebutted. I credit Hickson's testi-
mony.
Analysis
Although Hickson did not specify the exact words
which were spoken by Guest during this meeting, I find
that Guest was engaged in interrogation of Hickson con-
cerning her union activities and those of her fellow em-
ployees. After Hickson volunteered to Montgomery her
opinion that production in the packing department was
being adversely affected as a result of dissension among
the employees concerning the union campaign, and that
she (Hickson) had signed a union card, Respondent
became aware of Hickson's opinion concerning produc-
tion in the packing department. I find that further inter-
rogation of Hickson by Guest was calculated to lead
Hickson into the area of discussion concerning the union
activities of its employees. Accordingly, in the absence
of any evidence presented by Respondent concerning the
reason for further interrogation of Hickson by Guest
concerning production problems, I find that, by its inter-
rogation of Hickson by Guest, Respondent violated Sec-
tion 8(a)(1) of the Act. See Pope Maintenance Corp., 228
NLRB 326, 332 (1977), wherein the Administrative Law
Judge found a violation of Sec. 8(a)(1) in instances of in-
direct interrogation. See also Complas Industries, 255
NLRB 1416 (1981).
3. The refusal of Respondent to allow its employees
to wear the union keychain
The complaint further alleges that Respondent violat-
ed Section 8(a)(1) of the Act by prohibiting its employ-
ees from wearing union insignia on its premises. The in-
signia involved was a plastic disc button attached by a
metal leader to a ring keychain. The button proclaims,
"I'm for UPIU" (United Paperworkers International
Union), on one side and has the union emblem imprinted
on the reverse side (G.C. Exh. 2). Gary B. Chalker, who
was employed as a machine adjustor in Respondent's de-
partment 37, testified that he wore the union keychain on
his buttoned shirt pocket during the third week of Janu-
ary. The union campaign had commenced in early Janu-
ary. Chalker was told by his supervisor, Montgomery, to
remove the keychain "because it was not part of the uni-
form." Chalker testified he asked Montgomery whether
there was a written policy concerning this and was told
It was admitted by Respondent and I find that Montgomery and
Guest were supervisors within the meaning of Sec. 2(11) of the Act at all
relevant times herein.
968
THE KENDALL COMPANY
by her that she did not need to show it to him. Chalker
removed the keychain. Shortly thereafter, on the same
day, he noticed another employee with a stickpin on her
collar and inquired of Montgomery whether this was
part of the uniform and Montgomery replied that it was
not and asked the employee to remove it. Chalker testi-
fied he had observed the employee wearing the stickpin
for 6 days.
Chalker also testified that he had observed other em-
ployees wearing keychains with a plastic disc bearing the
name "Kendall" and the message "Take care of yourself
you are important to us." These keychains consist of a
plastic disc attached directly to a metal keyring (G.C.
Exh. 3). Machine adjustors Richard Oglesby and Ru-
dolph Meeks also testified that they were required to
remove the union insignia (G.C. Exh. 2) in March by
management officials. Meeks testified that he was called
into the office on the second day he wore the union key-
chain and was told by management official Juan Lopez
"that I couldn't wear it because it was considered solici-
tation." Lopez did not testify, and the testimony of
Meeks thus stands unrebutted. Chalker, Meeks, and Og-
lesby also testified that they and other employees wore
various work-related items on their person such as pens,
rulers, tool pouches, and tools, as well as work related
keys on keychains. Oglesby testified that he carried per-
sonal as well as work-related keys on a keychain worn
on his belt. Meeks also testified that he had for the past 3
years worn a belt buckle bearing the letters "NRA" des-
ignating the National Rifle Association.
Respondent contends, and its production manager,
Lougene Williams, testified, that its actions in requiring
the removal of union insignia in early 1981 were in ac-
cordance with its dress code policy established in Octo-
ber 1980 and made effective in November 1980 which
limits the wearing of jewelry to a single ring or a wed-
ding-engagement ring set, a wristwatch fit snugly to the
wrist, and a single necklace which does not extend over
the uniform when the employee stands or bends. The
dress code also provides for hair coverings and the wear-
ing of uniforms. Respondent contends that the wearing
of nonwork-related items such as the dangling plastic
disc on the keychain worn by Chalker are unacceptable
safety risks as they may become caught in the moving
parts of the machinery in the production departments as
the employee works on the machinery, whereas certain
work-related items such as pens, rulers, and keychains
for work-related keys are dangers inherent in the nature
of the job. Respondent contends further that the dress
code, with its limitations on the wearing of personal
items, is necessary to ensure noncontamination of the
hospital and surgical products it manufactures and to
comply with GMP's (Good Manufacturing Practices) to
meet standards set by the United States Food and Drug
Administration which audits Respondent's operations.
Williams testified it is also necessary to promote a hospi-
tal image in the manufacture of its products. Respondent
offered evidence through the testimony of Williams and
Montgomery that between November 1980 and February
1981 employees had been required to remove such items
as religious buttons, Christmas pins, and United Way but-
tons as they were dress code violations. On cross-exami-
nation Chalker acknowledged that the union insignia
keychain dangling from his shirt might well have been
caught in the moving parts of a machine on which he
had been working. Montgomery testified that she had ad-
vised Chalker to remove the union insignia and had in-
formed him that it was a dress code violation.
Analysis
It has long been recognized that the right of employ-
ees to wear union insignia is guaranteed by Section 7 of
the Act and that rules which prohibit the wearing of
union insignia by employees in the workplace, in the ab-
sence of "special circumstances" that they are essential
to the maintenance of discipline and production, are vio-
lative of Section 8(aX)(1) of the Act. See Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 801-803; Honda of Amer-
ica, 260 NLRB 725 (1982). In assessing the special cir-
cumstances cited by an employer for a prohibition
against the wearing of union insignia, the Board also
considers whether there has been disparate enforcement
of the rule (i.e. allowing the wearing of other items
while prohibiting the wearing of union insignia). See
Honda of America, supra.
In the instant case, it is undisputed that the dress code
was promulgated in November 1980 well in advance of
the union campaign in January 1981. Respondent con-
tends that the wearing of jewelry should be limited in ac-
cordance with Good Manufacturing Practices to ensure
the integrity of its hospital and surgical products and to
meet safety standards and that there is evidence of spe-
cial circumstances in this case which met the established
criteria of special circumstances to maintain production.
The evidence relating to safety of employees in their
work with moving machinery appears particularly strong
in the case involving Chalker wherein the union key-
chain was dangling from his pocket, which Chalker him-
self admitted could become entangled in the machinery.
Moreover, there may be a logical rationale for eliminat-
ing safety hazards by prohibiting the wearing of non-
work-essential items while permitting the wearing of
work-related items essential to the performance of the
job. However, I find that, notwithstanding the testimony
of Montgomery that she required employees to remove
nonwork-related items other than union insignia, there
was also substantial evidence that this policy was not
routinely enforced but rather employees were permitted
to wear a number of nonwork-related items such as the
stickpin worn by an employee for several days and the
keychains issued by Respondent. Moreover, the failure of
Respondent's management representatives Montgomery,
Lovell, and Lopez to mention the element of safety
when they instructed employees Chalker, Oglesby, and
Meeks to remove the union insignia gives rise to an infer-
ence that safety was not the true reason for Respondent's
requirement that the employees remove the union insig-
nia. Accordingly, while there may well have been justifi-
cation for special circumstances on safety grounds for
the removal of union insignia and/or to maintain the in-
tegrity of the products, the disparate enforcement of the
dress code rule and the circumstances surrounding the
requirement of its employees to remove union insignia
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give rise to an inference, and I so find, that the true
reason for the enforcement of the dress code rule with
respect to the wearing of union insignia was not related
to safety or integrity of the product. I also find that Re-
spondent has failed to demonstrate that the prohibition of
the wearing of union insignia was based on requirements
of Good Manufacturing Practices set by the United
States Food and Drug Administration or that it was
based on the maintenance of production and discipline in
its operations. This is particularly so insofar as some lim-
ited nonwork-related jewelry is permitted under Re-
spondent's rule while union insignia was not. According-
ly, I find that Respondent violated Section 8(a)(1) of the
Act by requiring its employees to remove union insignia
in January and March 1981 by the maintenance of its
overly broad rule which prohibits by its terms all items
not specifically allowed, thus prohibiting the wearing of
union insignia while permitting the wearing of nonwork-
related jewelry and by its disparate enforcement of such
rule.
B. The Alleged 8(a)(3) Violations
The complaint in Case 10-CA-16802 alleges that em-
ployee Gary Chalker was reprimanded by Respondent
on January 16, February 10, and March 11, 1981, and
suspended by Respondent for a period of 3 days on
March 11, 1981. The complaint in Case 10-CA-17396 al-
leges that Chalker was denied a transfer from the second
shift to the third shift by Respondent on August 17,
1981, was issued a verbal warning by Respondent on
July 29, 1981, and was suspended by Respondent for a
period of 10 days on August 27, 1981. Both complaints
allege that all such actions were taken by Respondent be-
cause Chalker engaged in concerted activities and that
Respondent thereby violated Section 8(a)(3) and (1) of
the Act.
At the hearing, Chalker testified he had been em-
ployed by Respondent for a period of 6 years, and had
been a machine adjustor for 4 years. Chalker testified
that he initially became involved in the union campaign
during the second week of January. 5 Chalker signed a
union card and wore a union keychain on his shirt
pocket in January. On January 28 he, among several
other employees, signed a "request to be a Voluntary
Organizer for the United Paperworkers International
Union" and authorized the disclosure of his name to Re-
spondent as such. Respondent received a copy of this au-
thorization bearing Chalker's signature on February 3.
On March 5 and 11 he distributed union literature at the
entrance to the plant to employees and supervisors.
There was also evidence through the testimony of Re-
spondent's supervisor, Terri Boyduy, that Chalker's
union activities, particularly his handbilling activities,
were discussed at supervisory meetings.
Chalker's duties as a machine adjustor involved the
repair of machinery which had malfunctioned. Prior to
January 1981 he was assigned to department 36 which
was realigned and he became part of department 37 in
December 1981. The departments consist of machines
which in some cases are separated by aisles. In other
I The election was held on March 26.
cases they are not. Department 37 was supervised by
Montgomery. Chalker's assignment to department 37 was
made by an announcement on the bulletin board. Ma-
chine adjustor Meeks was assigned to department 36 and
machine adjustor Oglesby was assigned to both depart-
ments but spent the greater percentage of his time in de-
partment 36 which was supervised by Supervisor Fred
Lovell.
Prior to his identification as a union adherent as a
result of the union keychain incident in January, Chalker
had never been suspended, had received one written
communication from Respondent concerning his conduct
on a loading dock, and had received warnings for absen-
teeism, but had not been otherwise disciplined. He had
been receiving satisfactory employee performance ratings
in the past.
Chalker and other employees (machine adjustors
Meeks and Oglesby) and production employees Debra
Thomas and Karen L. (Dunn) Parker testified that em-
ployees regularly made personal telephone calls during
working time. Chalker and other employees testified that
employees took informal breaks and congregated in the
restroom area which also contained a locker room
during working time and left their work areas prior to
breaktime in order to shut down the machines and clean
Lp. Chalker testified that, prior to his identification as a
union adherent in January, he utilized the telephone, vis-
ited other departments, particularly department 36 and
discussed work matters with fellow adjusters Meeks and
Oglesby and utilized the restroom without incident or
any restraints by Respondent's management.
Chalker testified that on the same day he was told to
remove the union keychain by Montgomery, he proceed-
ed to utilize one of two telephones in the hallway and
was told by Department Supervisor George Guest that
he could not use the telephone all night, whereas he had
utilized the telephone in the past without incident.
Chalker also testified that Meeks was using the second
phone at this time in Guest's presence. Guest did not
comment concerning Meek's usage of the telephone.
Since Guest did not testify, Chalker's testimony in this
regard stands unrebutted. On February 10 Chalker was
given a written reprimand signed by Supervisor Mont-
gomery (Marshall) for his "overall poor and negligent
job performance," which reprimand cited his alleged ex-
cessive time spent on the telephone on January 17 when
he was "counseled by the Department Supervisor"
(Guest), his alleged failure to complete a changeover on
a job, his failure to make an entry in the adjuster's log,
his absence in the work area and his presence in the rest-
room at the time of a need for repair, his failure to
follow an established procedure of turning in his time-
card and the "low rating" with "below average ratings"
in "job knowledge, following company and department
rules, dependability, adaptability, cooperation with peers,
attitude and attendance" (G.C. Exh. 4). This refers to his
February 7, annual appraisal by Montgomery (Resp.
Exh. 12). Montgomery had supervised Chalker since Oc-
tober 1980. On March II, Chalker was given a 3-day
suspension by Montgomery which cited the February 10
reprimand and Chalker's alleged excessive time spent on
970
THE KENDALL COMPANY
the telephone on March 2, his having been out of his de-
partment on March 9 talking to other adjustors, and his
refusal to stay in his department. Chalker testified he had
never previously been disciplined for using the telephone
during working time, had previously put a late entry in
the logbook the following day without being disciplined,
had been in the restroom only 3 or 4 minutes on Febru-
ary 5 when Montgomery was unable to find him to
repair a machine, and had never been disciplined for
being in the restroom before, had previously, on several
occasions, turned his timecard into the office rather than
his supervisor and had received no discipline therefor,
and had never received a below-average appraisal prior
to the February 7, 1981, appraisal by Montgomery. The
appraisal of Chalker by Montgomery listed his perform-
ance as below average overall as a result of a below-av-
erage appraisal in the categories of job knowledge, fol-
lowing company and department rules, dependability,
adaptability, cooperation with peers, attitude, and attend-
ance (Resp. Exh. 12).
The March 11 suspension of Chalker for a period of 3
days was effective March 12. The suspension letter from
Montgomery to Chalker (G.C. Exh. 5) cited the previous
written reprimand and an instance of alleged excessive
time spent by Chalker on the telephone on March 2 and
an instance on March 9 when Chalker was observed by
Montgomery and another supervisor (Mike Bresnahan)
talking to machine adjustors in another work area at
which time Chalker allegedly threatened to take Mont-
gomery to court and told her he would be in department
36 (outside his work area) if Montgomery needed him.
Chalker generally acknowledged that the incidents had
occurred but testified that he was discussing a machine
in department 36 with the other adjustors as had been his
previous practice in the past and that he had only been
in the department approximately 4 minutes. Chalker testi-
fied that he had previously normally gone to another de-
partment two or three times a shift without receiving
comments or discipline from any supervisor. He denied
having told Montgomery that she could find him in de-
partment 36.
Chalker testified that, after his suspension in March, he
adhered to the restrictions imposed on him by Montgom-
ery. Montgomery was transferred to another department
and was replaced by Supervisor Terri Boyduy.6 Chalker
testified that Boyduy advised him she had reviewed his
file and informed him that he "had a pretty bad record."
On August 17 Chalker signed a bid sheet which was
posted on the bulletin board but was informed by De-
partmental Supervisor Guest and by Supervisor Boyduy
that he was ineligible as a result of his suspension within
the preceding 6-month period in accordance with Re-
spondent's advancement opportunity procedure which
prohibits transfers of employees who have received a
written warning or greater discipline during the preced-
ing 6 month period. As Guest did not testify this testimo-
ny stands unrebutted. Boyduy who testified for Respond-
ent acknowledged that she had so informed Chalker.
Williams testified that Chalker would have also been in-
6 I find on the basis of the undisputed credible evidence of her author-
ity and the exercise thereof that Boyduy was a supervisor within the
meaning of Sec 2(11) of the Act at all relevant times herein.
eligible as a result of his unsatisfactory performance
rating in February. On August 27 Chalker was suspend-
ed by Boyduy for a period of 10 days commencing on
August 28 by a written suspension letter outlining several
alleged instances of unsatisfactory performance by
Chalker as well as his prior suspension in March as the
basis therefor. The suspension letter (G.C. Exh. 6) fur-
ther provided that in the event Chalker failed "to correct
your actions and continued to be out of work area an ex-
cessive amount of time, your employment with the com-
pany will be terminated." The letter cited an instance on
July 29, wherein Boyduy issued a verbal warning to
Chalker for leaving the job early for a dinner break
when "your assistance was needed," a 5-minute tele-
phone call made by Chalker on August 6, Chalker's use
of the restroom on August 7, his leaving early for a
break on August 10 "when a machine was down," his
use of the telephone on two occasions on August 11, his
leaving early for dinner on August 13, and his presence
in another department talking to an adjustor, and his use
of the restroom on two occasions within a half-hour
period on August 14. Chalker acknowledged having left
early for a break on July 27 and contended that he had
left a minute and a half early as he required the help of
another person to change a heavy roll of paper on the
machine and was then called into the office by Boyduy
and given a warning for leaving prior to the start of the
breaktime. Chalker testified he and other employees had
previously left early for breaks in the presence of super-
visors without the incurrence of discipline. Chalker ac-
knowledged that he had been out of the department on
the various dates cited by Boyduy in her letter of August
27 and testified that he had resumed his prior practice of
leaving his department 3 or 4 months after his suspension
in March as a result of his observation of "other employ-
ees doing the same thing." Chalker's observations of
other employees leaving the workplace to take breaks
early, make telephone calls, and talk to other employees
were corroborated by the testimony of employees Og-
lesby, Meeks, Thomas, and Parker although Meeks testi-
fied that this was subsequently "tightened up" by Re-
spondent.
Respondent contends that its discipline of Chalker was
a legitimate response on the part of management, in ac-
cordance with its system of progressive discipline, to
Chalker's failure or refusal to perform his job in a satis-
factory manner, his failure or refusal to be available in
his department in case of machinery breakdowns, and his
failure or refusal to otherwise comply with the reasona-
ble directions of its supervisors. Respondent, in its brief,
contends that Chalker "was guilty on numerous occa-
sions of inattendance to his job duties," "became belliger-
ant, indeed defiant, in his refusal to stay in his assigned
work area," "was treated fairly and in the same fashion
as other similarly situated employees," "was only moder-
ately active on behalf of the Union," and "no antiunion
animus was shown." Respondent called Supervisor
Boyduy as a witness, who acknowledged that some ma-
chine operators had shut down their machines early in
July when she assumed supervision of the department
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but contended she discussed the matter with them and
they ceased to do so.
Respondent Supervisor Montgomery testified that she
had supervised Chalker since October 1980 but had not
previously observed any unusual problem with Chalker's
work performance or inattendance to duties, or excessive
use of the telephone prior to January. She testified, with
respect to her appraisal of Chalker's knowledge of the
job, she is unable to repair the machines but evaluated
Chalker's performance as unsatisfactory as a result of
repeat problems with machine breakdowns following
their repair by Chalker. Supervisor Boyduy testified that,
in the first 2 weeks following her assumption of the su-
pervision of Chalker, in July, she observed him leaving
early for breaks and leaving unfinished work and issued
him a verbal warning on July 29, and that, between July
29 until Chalker's suspension of August 27, Chalker con-
tinued to leave early for breaks, stay in the restroom for
lengthy periods, and use the telephone two or three
times a night, that Chalker was not in the department
when he was required to repair the machines, that she
recommended his discharge but that he was suspended
for a period of 10 days. Additionally, Fred Lovell, the
supervisor of department 36, testified that adjustor
Meeks utilized the telephone with his permission several
times a night in order to contact his children at home as
Meek's wife also worked at night. Lovell testified he did
not observe Oglesby use the telephone as frequently as
Meeks. Meeks testified he did not have special permis-
sion to do so. Montgomery testified she did not observe
employees other than Chalker use the telephone exces-
sively or any other problem with them leaving early for
breaks. Lovell also testified that Chalker "was a capable
adjustor in the Webcol area" and that he (Lovell) some-
times requested Chalker's supervisor to have Chalker
assist when there were multiple problems in his depart-
ment.
Analysis
I find that the General Counsel has made a prima facie
case of violations of Section 8(a)(3) and (1) of the Act by
Respondent's issuance of a reprimand to Chalker on Jan-
uary 17 for excessive telephone usage, its below-average
appraisals of Chalker on February 7, its written warning
to Chalker on February 10, and its issuance of the warn-
ing letter and 3-day suspension to Chalker on March 11,
and by Respondent's refusal to transfer Chalker from the
second to the third shift on August 17, and by its issu-
ance of the verbal warning to Chalker on July 29, and
by its issuance of a 10-day suspension to Chalker on
August 27. I find that the evidence presented by the
General Counsel supports a finding that Chalker, who
had a relatively unblemished work record in 6 years of
employment and whose job performance in the past had
been rated satisfactorily by Respondent, was identified in
the third week of January as a union supporter, was
closely monitored thereafter and was issued a multitude
of disciplinary warnings and an unsatisfactory perform-
ance appraisal, that the monitoring of Chalker continued
and that he was marched down the path of Respondent's
progressive disciplinary system with his discharge immi-
nent as threatened by Respondent in the letter of August
27 suspending him for a period of 10 days. I find that the
General Counsel has made a prima facie case showing
disparate treatment of Chalker as compared to other em-
ployees in the regulation and monitoring of his work ac-
tivities. The record amply demonstrates that other em-
ployees, particularly machine adjustors, were allowed to
leave their work stations during working time, discuss
work matters with other employees, leave work early for
breaks, and engage in personal telephone calls condoned
by management. Further, I find that union animus of Re-
spondent was demonstrated by the unrebutted testimony
of employee Hickson that Department Supervisor Guest
informed her during his unlawful interrogation of Hick-
son that she could be signing her rights away by signing
a union card. As found supra herein there were inde-
pendent violations of the Act committed by Respondent
by its interrogation of Hickson by Guest and by the
maintenance and the disparate enforcement of its broad
dress code rules prohibiting the wearing of union insignia
by employees. Moreover, the abrupt change in Respond-
ent's assessment of Chalker from an apparently compe-
tent and satisfactory employee prior to his display of his
union sympathies in January 1981 to its almost incessant
and close monitoring of every aspect of his movements,
personal telephone calls, time spent in the restroom, and
other activities in the absence of any evidence of such
close monitoring of other employees gives rise to an in-
ference that Respondent's motives at the outset in moni-
toring Chalker's activities were to curb his union activi-
ties and to closely scrutinize a known union adherent.
The timing of this change is particularly supportive of
this inference.
Respondent presented evidence principally through
the testimony of Department Supervisors Montgomery
and Boyduy that Chalker's work performance was inad-
equate and his inattention to duty was so flagrant as to
stand out from all other employees and require the
verbal and written warnings and suspension imposed on
him. Montgomery had been Chalker's supervisor since
October 1980. Yet the yearly appraisal of February 7
was apparently made by her on the basis of her own ob-
servations during this period. I do not credit Montgom-
ery's testimony that Chalker's job performance was un-
satisfactory as indicated on the appraisal, the basis of
which with respect to his job knowledge was the occur-
rence of recurring breakdowns of the machines shortly
after Chalker had repaired them although no supporting
data was presented to substantiate this testimony and
Montgomery admitted she herself was not knowledgea-
ble concerning the repair of the machines. Moreover, Su-
pervisor Lovell testified that Chalker was a capable ad-
justor in the Webcol area. I also do not credit Montgom-
ery's testimony that she noticed problems with Chalker's
inattendance to his duties in January although she ac-
knowledged she had not noticed such problems between
October and January. Rather, it appears that Chalker's
difficulties stem from his identification as a union adher-
ent.
Consequently, I find that the below-average appraisal
issued to Chalker and the warnings and suspension issued
to Chalker in the January through March period were
972
THE KENDALL COMPANY
imposed by Respondent on Chalker to discourage the
participation of a known union adherent in the Union's
campaign, and were thus violative of Section 8(a)(3) and
(1) of the Act. Inasmuch as the suspension of August 29
and the refusal to transfer Chalker on August 17 were
based on Respondent's unlawful actions taken against
Chalker in January, February, and March, the said
August suspension and the refusal to transfer Chalker
were unlawful. I find that the Respondent has failed to
rebut the prima facie case established by the General
Counsel of violations of the Act in each instance. See
Wright Line, 251 NLRB 1083 (1980). See also Kevah
Konner, Inc., 256 NLRB 61 (1981), with respect to the
restriction of the use of the telephone imposed on a
union adherent; Woonsocket Health Centre, 245 NLRB
652 (1979), with respect to restrictions on breaks and the
issuance of move written warnings in order to discourage
union activity; S. S. Kresge Co., 229 NLRB 10 (1977),
with respect to restriction of movements in the work-
place of a union adherent; Cone Mills Corp., 245 NLRB
159 (1979), with respect to disparate enforcement of
work rules, and Claxton Mfg Co., 235 NLRB 261 (1978),
where the Administrative Law Judge considered the em-
ployer's knowledge of the union campaign, its animus to
the union, the disparity of the disciplinary action. and the
timing thereof in finding the discipline of a union adher-
ent violative of the Act. I find, however, that the verbal
warning issued to Chalker for leaving the break area
early on July 29 was not unlawful. This occurred at a
time when there was no ongoing union activity, substan-
tially after the March suspension and following a period
when Chalker testified he was adhering to the directions
of Montgomery to stay in the department. Chalker testi-
fied that he commenced to undertake a more liberalized
attitude toward his work activities when he observed
other employees doing so. However, there was no cor-
roboration by other witnesses that such activities were in
fact occurring. Boyduy testified she spoke with certain
employees who left early in July and this ended the
problem. It appears that Chalker was testing manage-
ment's right to require his presence in the department.
Under these circumstances, I do not find Boyduy's warn-
ing issued to Chalker for leaving early on a break to be
violative of the Act.
IV. THE EFFECT OF THE UNFAIR L ABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent as found in
section III, in connection with Respondent's operations
as found in section I, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among
the several States and tend to lead to disputes burdening
and obstructing the flow of commerce.
CONCLUSIONS OF LAW
I. Respondent, The Kendall Company, is an employer
engaged in commerce withinl the meaning of Section 2(6)
and (7) of the Act.
2. United Paperworkers International Union, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By interrogation of its employee. Tanya Hickson,
concerning her union sympathies and those of her fellow
employees, engaged in by its departmental supervisor.
George Guest, Respondent has violated Section 8(a)(l)
of the Act.
4. By the maintenance and enforcement of a broad
dress code rule, refusing to permit its employees to wear
union insignia on the premises while tolerating the use of
other insignia and jewelry worn by its employees, Re-
spondent has violated Section 8(a)(l) of the Act.
5. By the unsatisfactory performance evaluation of
Gary B. Chalker on February 7, 1981, and by the issu-
ance of a reprimand to its employee Gary B. Chalker on
January 17, 1981; a subsequent written warning to Chalk-
er on February 10, 1981; its issuance of a written warn-
ing and a 3-day suspension to Chalker on March II1,
1981; its refusal to transfer Chalker from the second to
the third shift on August 17, 1981; and by its issuance of
a written warning and a 10-day suspension to Chalker on
August 27, 1981, Respondent has, in each instance, vio-
lated Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act by the alleged
interrogation of employee Tanya Hickson by Supervisor
Terri Montgomery.
8. Respondent did not violate the Act by the issuance
of the verbal warning by Supervisor Terri Boyduy to
employee Gary B. Chalker on July 29, 1981.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (3) of the Act, it shall be ordered to cease
and desist therefrom and from any other unlawful activi-
ty and to take certain affirmative actions designed to ef-
fectuate the policies of the Act. Accordingly, I recom-
mend that Respondent be required to post the appropri-
ate informational notice to employees in appropriate
places at its Augusta, Georgia, facility, and I recommend
that Respondent rescind the unsatisfactory performance
evaluation, the warnings, and the suspensions issued to
Gary B. Chalker, expunge his personnel record of all ref-
erences to the aforesaid unsatisfactory performance eval-
uation and unlawful disciplinary action taken against him
and permit him to transfer from the second to the third
shift with such transfer to be retroactive to August 17,
1981, with respect to all seniority and loss of earnings
and benefits occurring from that date and that Respond-
ent make Gary B. Chalker whole for all losses due to
discrimination against him and cease and desist from any
other unfair labor practices. All loss of earnings and
other benefits shall be computed with interest in the
manner prescribed in F W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See, generally, Isis Plumbing Co., 138 NLRB 716
(1962).
[Recommended Order omitted from publication.]
973