Kentucky Tennessee Clay Co.

National Labor Relations Board - Board Decisions

Dec 8, 2004

343 N.L.R.B. 931 (N.L.R.B. 2004)

KENTUCKY TENNESSEE CLAY CO.
343 NLRB No. 102
931
Kentucky Tennessee Clay Company and Interna-
tional Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers.
Cases 11–CA–18925 and 11–CA–18968
December 8, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, WALSH, AND MEISBURG
On December 28, 2001, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent and the General Counsel both filed excep-
tions and supporting briefs. The Charging Party filed a
brief in response to the Respondent’s exceptions.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth below in full.2
I.
The Respondent, located in Langley, South Carolina,
is engaged in the business of mining and processing kao-
lin clay. In late 1999, the Union commenced an organiz-
ing campaign among the Respondent’s maintenance and
production employees. The Union won the representa-
tion election, which was held in March 2000. The fol-
lowing November, the Board overruled the Respondent’s
election objections and certified the Union as the collec-
tive-bargaining representative of the unit employees. In
a related proceeding, the Board found that the Respon-
dent violated Section 8(a)(5) and (1) by refusing to bar-
gain with or to supply requested information to the Un-
ion after it had been certified as the collective-bargaining
representative. 334 NLRB No. 33 (2001) (not reported
in Board volumes). The United States Court of Appeals
for the Fourth Circuit, however, found on review that the
Respondent’s election objections were meritorious and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the judge’s findings.
2 We shall modify the judge’s recommended Order to conform to the
requirements of Indian Hills Care Center, 321 NLRB 144 (1996), as
revised in Excel Container, Inc., 325 NLRB 17 (1997), and we shall
substitute a new notice in accordance with Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). We
shall also modify the judge’s recommended Order and notice to more
closely conform to the judge’s findings that the Respondent threatened
employees with futility in selecting union representation and created
the impression of surveillance among its employees.
that the Union should not have been certified as the bar-
gaining representative. The court accordingly denied
enforcement of the Board’s Order. NLRB v. Kentucky
Tennessee Clay Co., 295 F.3d 436 (4th Cir. 2002).
On May 23, 2001, the Acting General Counsel issued a
consolidated complaint in the present case, based on un-
fair labor practice charges the Union had filed the pre-
ceding January and March, alleging violations of Section
8(a)(1), (3), and (5). The Respondent filed an answer
denying any wrongdoing and asserting as an affirmative
defense that some of the allegations contained in the
complaint should be dismissed pursuant to Section 10(b)
of the Act.
II.
For the reasons stated by the judge, we conclude that,
following the representation election, the Respondent
committed numerous 8(a)(1) violations, as alleged in this
proceeding. Thus, we affirm the judge’s findings that the
Respondent, through Supervisor Murray Penner and
Plant Manager David Forrester, violated Section 8(a)(1)
by: (1) threatening Adelbert Quackenbush and three
truckdrivers with discharge in December 2000 if they
went on strike; (2) creating the impression of surveil-
lance among its employees in December 2000; (3)
threatening employee Patrick Scott on January 15, 2001,
with futility in selecting union representation;3 and (4)
threatening employee Renew with discipline for engag-
ing in union and/or protected concerted activity on Janu-
ary 16, 2001.
We further find, like the judge, that the Respondent
violated Section 8(a)(3) by reducing employee Scott’s
work hours in August 2000 and then discharging him in
January 2001.
Finally, because the Fourth Circuit has ruled that the
underlying representation election was invalid, we re-
verse the judge’s findings that the Respondent violated
Section 8(a)(5) by refusing to recognize and bargain with
the Union in December 2000 and by unilaterally chang-

3 Given this finding, we need not pass on the judge’s finding that
Supervisor Penner’s March 16, 2000 threatening of employee Myron
Renew with futility constitutes a violation of Sec. 8(a)(1) because such
a violation would be cumulative and would not affect the remedy. We
do, however, affirm the judge’s finding that this incident is further
evidence of the Respondent’s antiunion animus.
We also find it unnecessary to pass on whether Supervisor Penner
likewise threatened employee Scott with futility in December 2000, as
the General Counsel and the Charging Party did not except to the
judge’s failure to address this complaint allegation.
Finally, we find it unnecessary to pass on whether Supervisor Penner
threatened employee Scott in August 2000 for engaging in union and/or
protected concerted activity, as the Respondent’s other 8(a)(1) miscon-
duct would make this finding cumulative and would not affect the
remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD932
ing certain terms and conditions of employment in late
2000 and early 2001.
III.
The Respondent argues that certain of the unfair labor
practice allegations are barred by the 6-month limitations
period of Section 10(b), a defense it first raised in its
answer to the complaint, but which was not addressed by
the judge. The Respondent contends that Section 10(b)
bars two aspects of the complaint: (1) various 8(a)(1)
threats made by Supervisor Penner and Plant Manager
Forrester and (2) the 8(a)(3) reduction in overtime hours
to employee Scott in August 2000.4
First, we reject the Respondent’s contention that the
8(a)(1) misconduct alleged in the amended charge in
Case 11–CA–18925 is barred by Section 10(b) because
the charge assertedly was not amended until August 22,
2001. The complaint alleged that the unlawful conduct,
which included threats of discharge and discipline for
engaging in union activity, creation of the impression of
surveillance, and threats that choosing union representa-
tion would be futile, occurred in December 2000 and
mid-January 2001. The record shows that the Respon-
dent is simply mistaken about the date of the amended
charge: the original charge in Case 11–CA–18925 was
filed on January 20, 2001, and was amended on March
22, 2001 (not August 22, as the Respondent maintains).
Thus, contrary to the Respondent, the 8(a)(1) threat vio-
lations that we have affirmed are timely in relation to the
amendment to the charge.5 See generally NLRB v. Fant
Milling Co., 360 U.S. 301, 309 (1959).
Second, we reject the Respondent’s contention that the
amended charge alleging the 8(a)(3) reduction of em-
ployee Scott’s work hours in August 2000 is also barred
by Section 10(b). The Respondent’s argument hinges on
the claim that Scott’s reduction in hours occurred in June
2000, not August 2000. Based on Scott’s testimony,
however, the judge found that Supervisor Penner had
informed Scott in August 2000 that he “was going to cut
my hours back to forty hours.” It is clear from the
judge’s reliance on Scott’s testimony in this regard, that

4 Because we have dismissed all the 8(a)(5) complaint allegations,
we find it unnecessary to consider the Respondent’s contention that
certain 8(a)(5) allegations, which were first raised during the hearing,
are barred by Sec. 10(b).
5 The only 8(a)(1) violations apparently found by the judge that oc-
curred more than 6 months prior to the Union’s amended unfair labor
practice charge were the March 2000 threat of futility and the August
2000 threat of discharge and reprisal made to employee Scott. Having
found, as stated above, that the judge’s findings as to these allegations
are cumulative of the Respondent’s other 8(a)(1) violations, we find it
unnecessary to address whether Sec. 10(b) bars consideration of these
allegations.
the judge did not credit the Respondent’s claim that this
reduction in hours occurred in June 2000.
Further, this allegation, based on the credited evidence
that it occurred in August 2000, is “closely related” to
the otherwise timely filed charge of January 30, 2001,
which alleged that the Respondent disciplined and dis-
charged Scott in violation of Section 8(a)(3). See Nickles
Bakery, 296 NLRB 927, 928 (1989); Redd-I, Inc., 290
NLRB 1115, 1118 (1988) (setting out test of related-
ness). Thus, the allegations share a common legal the-
ory, i.e., that both actions (the reduction in hours and the
discharge) were motivated by the Respondent’s antiunion
animus. Next, both allegations arise from the same se-
quence of events. The Respondent followed through on
Penner’s remarks about ruining Scott’s lifestyle, first by
reducing his work hours and then by terminating him in
retaliation for his union and/or protected concerted ac-
tivities. Finally, the allegations involve similar defenses,
i.e., whether there was a legitimate, nondiscriminatory
reason for the Respondent’s treatment of Scott. Accord-
ingly, we affirm the judge’s consideration of the allega-
tion that the Respondent violated Section 8(a)(3) by re-
ducing Scott’s hours in August 2000.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Kentucky Ten-
nessee Clay Company, Langley, South Carolina, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as set forth in full below.
1. Cease and desist from
(a) Threatening employees with discipline and dis-
charge for engaging in union activities.
(b) Threatening employees with the futility of their se-
lection and support of the Union as their collective-
bargaining agent.
(c) Creating the impression of surveillance of the un-
ion activities of its employees.
(d) Reducing the work hours of its employees and dis-
charging them because of their engagement in union ac-
tivities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the purposes of the Act
(a) Within 14 days from the date of this Order, offer
Patrick Scott immediate and full reinstatement to his
former position, or if his former position no longer ex-
ists, to a substantially equivalent one, without prejudice
to his seniority or other rights or privileges previously
enjoyed.
KENTUCKY TENNESSEE CLAY CO. 933
(b) Make Patrick Scott whole for any loss of wages or
benefits he may have suffered as a result of his unlawful
reduction in hours and his unlawful discharge, with in-
terest.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful reduction in
hours and discharge of Patrick Scott, and within 3 days
thereafter notify him in writing that the unlawful reduc-
tion in hours and discharge will not be used against him
in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all social security pay-
ment records, timecards, personnel records and reports,
and all other records, including an electronic copy of the
records if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by Region 11, post at
its mines in its Langley, South Carolina facility copies of
the attached notice to employees marked “Appendix.”6
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained by it for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since August 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unlawfully threaten our employees with
discipline or discharge for engaging in union activities.
WE WILL NOT unlawfully threaten our employees with
the futility of their selection and support of the Union as
their collective-bargaining agent.
WE WILL NOT unlawfully create the impression of sur-
veillance of our employees’ union activities.
WE WILL NOT unlawfully reduce the work hours or dis-
charge our employees for engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
offer Patrick Scott immediate and full reinstatement to
his former position, or if his former position no longer
exists, to a substantially equivalent one, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Patrick Scott whole for any loss of
wages or benefits he may have suffered as a result of his
unlawful reduction in hours and his unlawful discharge,
with interest.
WE WILL within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
duction in hours and discharge of employee Patrick Scott
and WE WILL, within 3 days thereafter, notify him in writ-
ing that the unlawful reduction in hours and discharge
will not be used against him in any way.
KENTUCKY TENNESSEE CLAY COMPANY
Donald Gattalaro, Esq., for the General Counsel.
Walter O. Lambeth Jr., Esq., for the Respondent.
Michael J. Stapp, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on October 17, 2001, in
Aiken, South Carolina. The complaint as amended at the hear-
ing was issued by the Regional Director for Region 11 of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD934
National Labor Relations Board based on charges filed by In-
ternational Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers (the Charging Party or the
Union). An amended charge in Case 11–CA–18925 was filed
on March 22, 2001. The charge in Case 11–CA–18968 was
filed by the Union on March 22, 2001. The complaint alleges
that Kentucky Tennessee Clay Company (the Respondent or
the Company) violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. The complaint is joined by the an-
swer filed by Respondent where it asserts as an affirmative
defense that certain of the allegations in the complaint are time
barred as having occurred prior to the applicable statute of limi-
tations contained in Section 10(b) of the Act. In its answer
Respondent also denies the commission of any violations of the
Act.
On the entire record, including the testimony of the wit-
nesses and the exhibits received in evidence and after review of
the briefs filed by the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that at
all times material during the 12 months preceding the filing of
the complaint, Respondent has been a Delaware corporation
with a facility located at Langley, South Carolina, where it is
engaged in the business of mining and processing of kaolin and
purchased and received at this facility goods and materials val-
ued in excess of $50,000 directly from points outside the State
of South Carolina and sold and shipped from its facility, prod-
ucts valued in excess of $50,000 directly to points outside the
State of South Carolina and Respondent is now, and has been at
all times material an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE APPROPRIATE UNIT
The complaint alleges, Respondent admits, and I find that the
following employees of Respondent constitute a unit appropri-
ate for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
All full-time and regular part-time production and mainte-
nance employees, including mining and processing employ-
ees and leadmen employed by the Respondent at its Langley,
South Carolina facility: excluding lab technicians, office
clerical employees, guards, professional employees and su-
pervisors as defined in the Act.
A. Background
The Union commenced an organizational campaign of the
unit employees at Respondent’s facilities in Langley, South
Carolina, in late 1999. An election was held on March 15,
2000, which was won by the Union. The Respondent filed
objections to the election which were overruled by the Board.
Kentucky Tennessee Clay Co., 334 NLRB No. 33 (2001) (not
reported in Board volumes) certifying the Union on November
2, 2000, as the collective-bargaining representative of the unit
employees. The Respondent has filed an appeal to the United
States Court of Appeals, which is currently pending. This case
involves the alleged commission of 8(a)(1) and (3) violations as
hereinafter set out and of alleged 8(a)(5) violations relating to
the Respondent’s refusal to recognize the Union and to its insti-
tution of unilateral changes, failure to notify the Union and to
bargain concerning changes in the terms and conditions of em-
ployment of its unit employees.
B. The 8(a)(1) and (3) Allegations
Patrick Scott testified he was employed by Respondent in
December 1997, as a maintenance mechanic and welder. He
rebuilt and repaired mobile equipment which moved on tires,
wheels, or tracks. This work included the changing of tires,
hoses, and bushings. He and fellow mechanic Coley Lamar
Wilson worked in the maintenance shop. Scott did most of the
welding required. Wilson and Scott generally worked on sepa-
rate projects but would work together on projects when one of
them required assistance. Mobile mechanic Wilson testified he
has been employed by Respondent for 34 years. He is in
charge of the maintenance shop. Wilson does no welding and
testified that Scott did all the welding on the equipment. When
the repair jobs called for two men, he would request Scott to
help him. Murray Penner became the operations manager for
Respondent 3-1/2 weeks prior to the hearing in this case. Prior
to this he was the mining, striping, and mobile maintenance
supervisor. Scott and Wilson reported to Penner. Prior to Re-
spondent taking over the facility Wilson had held the same
position as Penner with six maintenance employees reporting to
him in the maintenance shop. Wilson evaluated employees in
this position. When Scott was hired, Wilson was directed by
Penner to train Scott. Wilson trained Scott to perform the rou-
tine maintenance program. He testified as did Scott that Scott
was a proficient welder. Wilson who had worked with Scott a
little over 3 years testified that Scott was a good worker and
would help him as required. Wilson testified he never had any
problem with Scott.
Both Scott and Wilson testified they wore prounion buttons
about a month prior to the election which was held on March
15, 2000. The buttons said “Vote Yes.” Wilson testified that
he and Scott met with Penner two or three times a day and that
Scott was wearing his prounion button at all times during these
meetings. He testified there was no way that Penner could have
avoided seeing the button. Scott testified that he started wear-
ing the “vote yes” button a couple of months prior to the elec-
tion. He wore the button on his jacket and pinned it on his shirt
when he removed his jacket. Scott also discussed the Union
with other employees and solicited authorization cards for the
Union. Employee Myron Renew who holds the union office of
President testified that Scott attended and participated in all
union meetings held prior to the election and wore a union
“vote yes” button. Renew observed Scott wearing the button
every day at work. He recalled one occasion when Scott was
“tightening down a pipe as part of the environmental commit-
tee, where there was a fuel leak” and Murray Penner walked up
and Scott had the button on at that time. Penner was within 2 to
KENTUCKY TENNESSEE CLAY CO. 935
3 feet of Scott and was in a position where he could see the
button. Renew also testified that Scott was a trustee of the
Union’s Board and that he sent a document dated January 5,
2001, about that date listing the officers of the Union including
Scott as trustee to the Respondent and caused a copy to be
placed on the company bulletin board. Penner testified that
Scott and Wilson never wore a union “Vote Yes” button but
conceded he met with them almost every day. I credit the fore-
going testimony of Scott, Wilson, and Renew over the denial of
knowledge by Penner and find that Respondent had knowledge
of Scott’s engagement in protected concerted activities on be-
half of the Union as set out above.
The evidence discloses that Respondent committed several
violations of Section 8(a)(1) as alleged in the complaint.
Myron Renew testified that on March 16, 2000, the day after
the election Supervisor Penner approached him and “told me
there would be no union. That he would do everything possible
to decertify the union, and that there would be an appeal for an
election next March.” Respondent filed objections to the elec-
tion which were overruled by the Board in Kentucky Tennessee
Clay Co., supra. I credit Renew’s testimony. The foregoing
clearly demonstrates Respondent’s animus against the Union
and is supportive of a finding that Respondent was threatening
Renew, a known union supporter, with the futility of the em-
ployees’ support for the Union.
Wilson testified that in late March or early April 2001, Pen-
ner called him over to a truck outside the maintenance shop and
asked him “how did I think that the Union would help me.” I
credit Wilson’s testimony. I find that Penner was aware that
Wilson wore a prounion button. I find this inquiry of Wilson
by Penner is further evidence of Respondent’s animus against
the Union.
Scott testified that in August 2000, Penner brought him into
his office and told him that he (Penner) “was going to cut my
hours back to 40 hours. I was not working fast enough for him,
and that he was going to ruin my lifestyle. And if I didn’t like
what he was doing, I could find someplace else to go.” Scott
testified that he had previously been working 50 to 55 hours a
week. The employees had been working five 10-hour days and
on occasion they would work five 11-hour days. Scott testified
that Penner specifically mentioned his work on the scraper, an
earth-moving machine. He testified his work on the scraper
took about 1-1/2 months because it was a complex job and
bushings were replaced, cut out and repaired and during this
period Penner prolonged the job by requesting several addi-
tional modifications. Scott also testified that during this time
he had also rebuilt a dump truck and assisted Wilson as neces-
sary. Scott also testified that prior to the union campaign he
had performed his work in the same manner as later prior to the
reduction in his hours and that he had never been criticized by
Penner for helping Wilson. Penner for his part testified that he
had hired Scott based on a successful interview in which he was
favorably impressed by what Scott said he could do. He testi-
fied that he believed Scott had the ability but that Scott consis-
tently failed to finish projects in a reasonable time and that
Scott would go from one project to another without finishing
either one. He testified he spoke to Scott about this problem on
a number of occasions and that Scott would normally agree
with him and say he would take care of the particular project in
question. Penner testified that Scott had worked on the scraper
project for 3 months. It is undisputed that Penner did not
document Scott’s alleged failure to finish the scraper project
within a reasonable time. I credit Scott’s testimony over that of
Penner. I did not find Penner to be a credible witness particu-
larly in view of my finding that he was not truthful in his denial
of having seen Scott wearing a union button. It appeared to me
that Penner was reaching in attempting to portray Scott as a
poor employee. I have little doubt but that the two men had
verbally clashed on occasions. However I find Respondent
violated Section 8(a)(1) and (3) of the Act when Penner re-
duced Scott’s hours for allegedly working too slow and threat-
ened Scott that he was going to ruin his lifestyle by reducing
his work hours and that Scott could go elsewhere if he did not
like it here. The threat to Scott was a threat of termination and
was violative of Section 8(a)(1) of the Act. I find that Respon-
dent violated Section 8(a)(3) of the Act by the reduction of
Scott’s hours which I find was motivated in part by Respon-
dent’s animus against the Union and its knowledge that Scott
was a union supporter. I find that Respondent has failed to
demonstrate by the preponderance of the evidence that it would
have reduced Scott’s hours in the absence of his engagement in
protected concerted activities on behalf of the Union. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981). There was union activity, employer knowledge, animus
and adverse action taken against Scott for his involvement.
Farmer Bros. Co., 303 NLRB 638, 649 (1991).
Adelbert Quackenbush, who was employed by Respondent
as an operator on April 4, 2000, testified that he was inter-
viewed by Penner on April 3, 2000, who informed him that the
Union “had been voted in, and that he didn’t know how I felt
about the Union.” Quackenbush indicated he might not join the
Union. Penner told him he “hoped I wouldn’t join the Union.”
In December 2000, Quackenbush and Wilson were in the
breakroom discussing changes they thought the Union would
bring to the plant and were overheard by a truckdriver whom
Quackenbush testified he believed was against the Union based
on prior conversations he had heard expressing antiunion sen-
timents by the truckdrivers. Shortly thereafter he was ap-
proached by Penner who told him he had heard that Quacken-
bush was trying to change the way Penner was doing things in
the plant and that he did not appreciate this. Quackenbush
denied trying to change the way Penner was running the mine
but conceded he and Wilson were discussing the Union.
Quackenbush told Penner he knew where Penner had obtained
this information, referring to the truckdriver who had overheard
his conversation with Wilson in the breakroom. Penner did not
confirm the source of his information.
Quackenbush also testified concerning a meeting held by
Penner in the bottom of the mine with him and three truckdriv-
ers. Prior to that time Quackenbush had gone to a union meet-
ing and joined the Union. He testified that the three truckdriv-
ers were against the Union. Penner got up on a tractor with
Quackenbush and was looking and talking directly to him
rather than to the truckdrivers. He told Quackenbush a story
about a place in Georgia where the employees had voted for the
Union and after negotiations the employees only netted an 8-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD936
cents increase. Penner also said that if the employees went on
strike, he “would fire all the strikers and just rehire.” Penner
testified concerning a different meeting in December 2000,
with several employees in the shop. He testified that in re-
sponse to a question regarding what would happen if there was
a strike, that he replied, “that the company [has] an obligation
to our customers to meet their needs and if it actually came
down to that, that we would be obligated to replace workers if
needed.” I credit Quackenbush’s testimony over that of Penner.
I find that Penner did threaten to fire the employees if they
went on strike in violation of Section 8(a)(1) of the Act.
Scott was not scheduled to work on Friday, January 12,
2001, as his hours had been reduced by Penner in August of
2000. Scott had been assigned on Thursday, January 11, 2001,
by Penner to assist an outside contractor to examine, pressurize,
and relabel all of its fire extinguishers. Scott was to remove the
fire extinguishers from the mobile equipment serviced by the
maintenance shop, bring them to the contractor and place them
back on the mobile equipment from which they had been taken
after they were serviced. Penner told Scott to complete the
project and report to him after doing so. Although Scott was
not scheduled to work on Friday, January 12, 2001, he nonethe-
less reported for work on that date at 7 a.m. to continue to assist
the outside contractor to complete his assignment to assist the
outside contractor which assignment he had been given by Pen-
ner. At 8 a.m. Wilson told Scott that Penner was looking for
him and Scott went to Penner’s office. Penner asked Scott why
he was at work as he was not scheduled to work that day. Scott
told Penner he was there working on the fire extinguishers.
Penner said he was “just a phone call away.” Scott offered to
go home. Penner told him to finish what he was doing and go
home. Scott did so. He had several others which had not been
started but testified that Penner wanted him just to do the ones
he had started which were three to four. He spoke to Myron
Renew about this incident and informed Renew that Penner was
sending him home and did not want Scott to do the remaining
fire extinguishers. On the following Monday, January 15,
2001, Scott came in at his normal time and worked all day.
About a quarter until 5 p.m. Penner approached and asked to
see the checklist on his truck. Scott asked what he meant and
offered to show Penner what he had done and said he had fin-
ished it. Penner said, okay and then asked Scott why he had
left the fire extinguisher man hanging without telling him he
was leaving. Scott replied that the man was a contractor and
that it was Penner’s responsibility. Penner said you should
have had the common courtesy to tell the man you were leav-
ing. They then began to discuss the Union. Scott told Penner
that the Union was there now and that Penner would have to do
what the Union says. Penner told Scott that you do not have a
union. You don’t have a contract and you have no rights. At
this time Scott called Quackenbush over and asked him if he
had heard the comment by Penner and Quackenbush said he
had. At the hearing both Quackenbush and Wilson who had
also overheard the conversation corroborated Scott’s testimony
concerning Penner’s comments about the Union.
Penner then told Scott to come to his office. Quackenbush
said he had to leave and Scott asked Wilson to come to the
office with him which Wilson did. In the office Penner told
Scott to clock out and go home. Penner testified he told Scott
he did not know what he was going to do. After arriving home
Scot called Union President Renew and told him that something
was going on and he needed help and asked him to help him
and meet him at the shop the next day. On that day, January
16, 2001, Renew and P. C. Carroll, the Union’s treasurer met
him at the shop. When Forester arrived he told Renew he
could be in trouble for having spent work time waiting for For-
ester in the mine shop. Scott went to work and was later called
to the office. He was permitted only one witness and he chose
Renew. They met with Plant Manager David Forrester and
Penner. Forrester asked Scott what he was doing there. Scott
replied, “I work here.” Scott was told to go home and return at
1 p.m. that day which he did and met in Penner’s office with
Forrester and Penner with Renew present on his behalf. Forres-
ter spoke during the meeting and said they had tried to work
with Scott but were unable to do so and would have to termi-
nate him. Forrester read from a typed written piece of paper a
list of alleged offenses committed by Scott in the past but ac-
cording to Scott and Renew did not give them a copy or permit
them to see it. Renew testified he requested a copy but that
management refused. Forrester testified that no request was
made for a copy of the paper from which he read. The paper
had been prepared by the human resources director in Respon-
dent’s home office. I credit Renew, a current employee of Re-
spondent. Scott was escorted off the property by Forrester.
C. The 8(a)(5) Allegations
It was stipulated by the parties at the hearing that on Novem-
ber 20, 2000, the Union requested that Respondent bargain with
it as the exclusive collective-bargaining representative of the
bargaining unit that the Union has never withdrawn this request
and the Respondent has never acceded to the request. Union
President Renew testified that he had on numerous occasions
requested that Respondent bargain with the Union and that
Respondent has never agreed to bargain and has made no re-
sponse to the requests. Renew testified that Respondent has
failed to notify the Union prior to making changes in the terms
and conditions of employment of the bargaining unit employ-
ees. Renew’s testimony as set out above was not rebutted by
Respondent. Rather Plant Manager Forrester testified that Re-
spondent’s position has been consistent that Respondent has no
obligation to bargain with the Union. Forrester also admitted
that Respondent has not provided the Union with advance no-
tice of any changes in the terms and conditions of employment
of the unit employees. Thus it provided the Union with no
advance notice prior to changing its vacation policy, eliminat-
ing overtime for unit employees during December 2000, laying
off five employees on February 19, 2001, and changing the
employees’ health insurance plan, all of which changes Re-
spondent conceded at the hearing that it had implemented.
Forrester further conceded at the hearing that Respondent
would not have bargained with the Union if it had demanded to
bargain concerning these changes.
KENTUCKY TENNESSEE CLAY CO. 937
Analysis
A. The 8(a)(1) Allegations
I find that Respondent violated Section 8(a)(1) of the Act by
the threat issued by Penner to Scott while reducing Scott’s
work hours in August 2000. The threat that he was going to
ruin Scott’s lifestyle in connection with the reduction of Scott’s
work hours and that if Scott did not like this treatment he could
go elsewhere was clearly coercive. I find the evidence of anti-
union animus by Penner and the obvious reason for such a
threat support a finding that this threat was issued to Scott in
retaliation for his support of the Union. Fontaine Body & Hoist
Co., 302 NLRB 863, 866 (1991).
I find that Respondent violated Section 8(a)(1) of the Act by
the threat issued by Penner to Quackenbush and the three
truckdrivers at the December 11, 2000 meeting that if employ-
ees went on strike, he would fire them and hire new employees.
Baddour, Inc., 303 NLRB 275, 279–280 (1991).
I find the Respondent violated Section 8(a)(1) of the Act by
Penner’s threat to Scott on January 15, 2001, in the presence of
Quackenbush and Wilson that the employees had no union, no
contract and no rights. This was a threat of the futility of the
employees’ support of the Union which had won the election.
Sea Ray Boats, Inc., 336 NLRB 779 (2001).
I find that Respondent violated Section 8(a)(1) of the Act by
creating the impression of surveillance in the December 2000
incident when Penner accused Quackenbush of trying to un-
dermine his authority following a discussion with Wilson con-
cerning the Union which was overheard by a truckdriver. This
gave rise to the implication that Respondent was monitoring the
conversations of its employees, thus giving rise to the inference
that the employees’ union activities were under surveillance.
Williamson Piggly Wiggly, 280 NLRB 1160, 1162 (1986), cit-
ing McLean Roofing Co., 276 NLRB 830 (1985).
On January 16, 2001, Renew was told by Forrester that he
could be in trouble for having spent time waiting in the mine
shop for Forrester to arrive. At this time Renew told him that
he and Carroll were there in their capacity as grievance repre-
sentatives on behalf of Scott. I find that this was clearly a
threat of discipline for engagement in union activities. As the
Respondent had not bargained with the Union and there was no
grievance procedure in force, Forrester’s threat was violative of
Section 8(a)(1) of the Act. Fleming Cos., 336 NLRB 192
(2001).
B. The 8(a)(3) Violations
I find that the General Counsel has established a prima facie
case of violations of Section 8(a)(3) of the Act having been
committed by Respondent by its reduction in the work hours of
Scott and by its termination of Scott. There is substantial evi-
dence in this case of Respondent’s knowledge of Scott’s sup-
port of the Union as found above. There is substantial evidence
of antiunion animus by Respondent against the Union and its
supporters in view of its continuing refusal to recognize the
Union and to bargain with the Union and the 8(a)(1) violations
found in this case. I do not credit Penner’s testimony concern-
ing Scott’s alleged deficiencies as an employee. I find Penner’s
hostility toward Scott appeared to stem primarily from Scott’s
support of the Union. The reduction in work hours and the
statement that he was going to ruin Scott’s lifestyle by reducing
his hours are consistent with a broader agenda than merely
correcting an employee for working too slow. I credit former
Supervisor Wilson’s testimony that Scott was a good worker. I
credit Scott’s testimony that he had not been disciplined in the
past for poor work performance and note the absence of docu-
mentation of the many job performance deficiencies attributed
to Scott by Penner.
With respect to the termination of Scott I find that the termi-
nation of Scott was motivated in part by his support of the Un-
ion and Penner’s hostility to the Union as shown by the 8(a)(1)
violations. The particular confrontation that led to the termina-
tion was heated and became intertwined with the discussion of
the Union and the effects this would have on the operation of
the plant. The 8(a)(1) violations committed by Penner clearly
demonstrate that he was unhappy with his perceived challenge
by the Union as noted in Quackenbush’s testimony that Penner
stated on two occasions in reference to the Union that what he
(Penner) says, goes.
I find that the General Counsel has established that the Re-
spondent had knowledge of Scott’s support of the Union, had
animus against the Union, took adverse actions against Scott by
reducing his work hours and by terminating him and that the
antiunion animus of Respondent was a substantial motivating
factor in the imposition of the adverse actions taken against
Scott by Respondent. I find that Respondent has failed to rebut
the prima facie cases by the preponderance of the evidence.
Wright Line, supra; Manno Electric, 321 NLRB 278, 280 fn. 12
(1996).
C. The 8(a)(5) Violations
I find the undisputed evidence clearly establishes the 8(a)(5)
violations in this case. Since March 15, 2000, the Union has
been the collective-bargaining representative of its employees
and was certified by the Board on November 2, 2000. The
Respondent has refused to recognize and bargain with the Un-
ion and has unilaterally and without notifying the Union
changed the work hours of its employees, reduced employee
overtime hours, changed its vacation policy, laid off bargaining
unit employees, and changed its health insurance. I find the
amendments by the General Counsel adding the vacation policy
and health insurance were closely related to the timely filed
charges and were within 6 months of the timely filed charges.
Redd-I, Inc., 290 NLRB 1115 (1988); Citywide Service Corp.,
317 NLRB 861, 862 (1995).
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. Respondent violated Section 8(a)(1) of the Act by threat-
ening its employees with termination and discipline for engag-
ing in union activities, by threatening its employees with the
futility of the selection of the Union as their collective-
bargaining representative and by creating the impression of
surveillance of the employees’ union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD938
4. Respondent violated Section 8(a)(3) of the Act by reduc-
ing the work hours of its employee Patrick Scott and by termi-
nating Scott.
5. Respondent violated Section 8(a)(5) of the Act by refusing
to recognize and bargain with the Union and by instituting uni-
lateral changes by changing the work hours of its employees,
laying off employees, and by changing the vacation policy and
the health insurance plan without notifying the Union and af-
fording the Union an opportunity to request bargaining prior to
the institution of these unilateral changes.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in several viola-
tions of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative actions de-
signed to effectuate the purposes and policies of the Act.
It is recommended that upon demand of the Union the Re-
spondent immediately rescind the unlawful unilateral changes
initiated by Respondent, restore the status quo ante and upon
request by the Union, within 10 days, engage in bargaining
with the Union concerning any proposed changes thereto. It is
recommended that Respondent offer Patrick Scott full rein-
statement to his former position or to a substantially equivalent
position if his former position no longer exists without preju-
dice to his seniority or other rights or privileges previously
enjoyed or to which he would have been entitled in the absence
of the discrimination against him from the date of his discharge
and expunge from its records any references to the unlawful
reduction in his hours and his discharge. It is recommended
that Respondent make Scott whole for the unlawful reduction in
his hours and for his unlawful discharge and make whole those
employees whose working hours were reduced in December
2000, and those employees it laid off on February 19, 2001,
without prior negotiation with the Union and make whole the
employees for any loss suffered by the unilateral change in the
vacation and health insurance plans. These amounts shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), at the “short term
Federal rate” for the underpayment of taxes as set out in the
1986 amendment to 26 USC Section 6621.
[Recommended Order omitted from publication.]