Kime Plus, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 127 (N.L.R.B. 1989)

KIME PLUS, INC. 127
Kime Plus, Inc . and Ola Mae Rand. Cases 26-CA-
12039 and 26-CA-12122
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On February 1, 1988, Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions and a
brief in support of its cross-exceptions and in re-
sponse to the Respondent 's exceptions , and the Re-
spondent filed a brief in response to the General
Counsel 's cross-exceptions.
The National Labor Relations Board has delegat-
ed 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 had
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
1. The judge found that the Respondent unlaw-
fully demoted Ola Mae Rand from cashier to mess
attendant on January 30, 1987,2 reduced her work
hours, dicharged her on February 19, issued her
written reprimands on January 30, April 17, 23,
and 24, and imposed on her burdens that resulted
in her constructive discharge on April 30. We
agree.
Under Wright Line3 the General Counsel must
make a prima facie showing that the employer's
protected conduct was a motivating factor in the
employer 's decision to discharge the employee.
Once this is established, the burden shifts to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct.
We find that the General Counsel made the req-
uisite prima facie showing as to each violation. As
the General Counsel has established a prima facie
case of unlawful motivation, the burden shifted to
the Respondent to demonstrate that it would have
taken the same course of action in the absence of
Rand's protected activities . In each instance the
' The Respondent has excepted to some of the judge 's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
° Unless otherwise stated all dates are in 1987.
Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir
1981), cert denied 455 U.S. 989 (1982), approved in NLRB Y. Transporta-
tion Management Corp., 462 U.S. 393 (1983).
Respondent failed to meet its burden to establish
that it would have treated Rand the same even in
the absence of her independence as union steward.
Accordingly, we agree with the judge's findings
that the Respondent 's treatment of Rand was dis-
criminatory and violated Section 8(a)(3) and (1) of
the Act.
2. The judge finds that Rand's independence as
the Union's steward was a motivating factor in is-
suing her a warning on February 2. He neverthe-
less concludes that there was no violation because
the warning would have been issued in any event
for one of the three reasons cited by Respondent.
We agree with the judge that there was no viola-
tion in issuing the warning for Rand 's conduct on
the serving line. However, the judge finds, and we
agree, that except for Rand's protected activities
she would not have been warned for her failure to
wear a name tag or her attempt to confer with Ser-
geant Bartley. We find that to the extent the warn-
ing was for these two items it violated Section
8(a)(3) and (1).
3. The General Counsel excepts to the judge's
finding that Respondent did not unlawfully reduce
Rand's hours following her reinstatement on March
1, 1987. The judge finds that the reduction resulted
from the problems associated with working Rand
into the schedule. We agree with the judge that a
separate violation finding is not necessary . Howev-
er, the need to reinstate Rand with all of the sched-
uling problems connected thereto was the direct
result of Respondent's unlawful conduct. Accord-
ingly, we find that Rand is entitled to be made
whole for any earnings she would have received in
the absence of Respondent 's unlawful conduct.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Kime Plus,
Inc., Junction City, Kansas, its officers , agents, suc-
cessors, and assigns , shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 2(c).
"(c) Expunge from its files the written repri-
mands to Ola Mae Rand of January 30 and April
17, 23, and 24, 1987, those portions of the February
2, 1987 reprimand pertaining to her failure to wear
a name tag and her attempt to seek a meeting with
a member of the military, and any reference to
them or to the Respondent 's transfer (demotion) of
Rand effective February 2, 1987, or to its construc-
tive discharge of her on April 30, 1987, and notify
Rand in writing that this has been done and that
these disciplinary actions will not be used as a basis
295 NLRB No. 22
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for future personnel action against her in any these disciplinary actions will not be used against
way."
2. Substitute the attached notice for that of the
administrative law judge.
her in any way.
KIME PLUS, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT issue written reprimands to you,
transfer or demote you, reduce your hours of
work, assign you to undesirable work schedules,
discharge you or constructively discharge you, or
otherwise discriminate against any of you for sup-
porting Industrial , Technical and Professional Em-
ployees, a Division of National Maritime Union,
AFL-CIO, or any other union.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Ola Mae Rand immediate and
full reinstatement to her former job of cashier or, if
that job no longer exists , to a substantially equiva-
lent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed
and WE WILL make her whole for any loss of earn-
ings and other benefits resulting from her demo-
tion, reduction of hours, her termination on Febru-
ary 19 , 1987 , and her constructive discharge on
April 30, 1987, less any net interim earnings plus
interest.
WE WILL notify Ola Mae Rand in writing that
we have removed from our files any reference to
her demotion effective February 2, 1987, to the
written reprimands we issued her on January 30
and February 2, with respect to her failure to wear
a 'name tag and her attempt to seek a meeting with
a member of the military, and April 17, 23, and 24,
1987, to her discharge on February 19, and to her
constructive discharge on April 30, 1987, and that
Melvin L . Ford, Esq., for the General Counsel.
Stephen S. Frocks, Esq., of Prospect, Kentucky, for the
Respondent.
Ola Mae Rand , of Blytheville , Arkansas , for herself.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
is a constructive discharge case . Agreeing with the Gen-
eral Counsel , I find that Respondent constuctively dis-
charged Ola Mae Rand on 30 April 1987 in violation of
Section 8(a)(3) of the Act. I order Respondent to offer
her reinstatement and to pay her backpay, with interest.
This case was tried before me in Blytheville , Arkansas,
on 14-16 July 1987' pursuant to the 5 June complaint
issued by the General Counsel of the National Labor Re-
lations Board through the Regional Director for Region
26 of the Board . The complaint is based on charges filed
by Ola Mae Rand (Rand or Charging Party) on 18
March in Case 26-CA-12039, and on 8 May in Case 26-
CA-12122, against Kime Plus, Inc. (Respondent, Kime,
or KP).2
In the complaint the General Counsel alleges that the
Respondent violated Section 8(a)(1) of the Act by inter-
rogating an employee on 15 April, Section 8(a)(3) of the
Act (1) by issuing written reprimands to Kathy Pollard
on 3 February and to Josefina Smith on 24 April, (2) by
discriminating against Rand in various respects between
29 January and 30 April when it constructively dis-
charged her, and Section 8(a)(4) of the Act by its 30
April constructive discharge of Rand. By posthearing
motion dated 3 August, the General Counsel moves to
add the names of Milicent Carter and Joanna Coss to the
paragraph naming Pollard and Smith . The motion alleges
written reprimands to Carter on 2 and 9 February and to
Coss on 1 and 2 June . The General Counsel does not ex-
pressly assert that the warnings to Carter and Coss were
fully litigated. By opposition dated 7 August Respondent
argues the motion to amend as to Carter and Coss should
be denied. I rule later on the motion to amend.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
Following the close of the hearing, the parties and I
held two conference calls to discuss procedure respect-
ing certain exhibits . The principal discussion centered on
the transcription of two of three tape recordings. The
three tapes were received in evidence , but transcriptions
for two of the tapes had not been prepared. Exhibit num-
bers were reserved for the transcriptions , and the tran-
scriptions were furnished after the close of the hearing.
' This manner of setting forth dates complies with the wishes of the
Board . All dates are for 1987 unless otherwise indicated.
2 Because Rand includes her middle name as part of her signature, and
so signed the charges herein , I have modified the style of the case to in-
clude her middle name.
KIME PLUS, INC.
These and other matters are discussed in several items of
posthearing correspondence, and I issued two posthear-
ing orders concerning these matters. To the extent the
details are relevant, I summarize them later. I mark and
receive these documents in evidence as ALJ exhibits. By
letter to counsel, I notified them of the ALJ exhibit
number designations.
Respondent's Exhibit 1 is a 9 July 1987 motion by Re-
spondent to quash a subpoena duces tecum served on
Kime. The motion was discussed at the hearing and ap-
parently offered in evidence. I reserved ruling (1:34-40).
Subsequently the motion was mooted when the parties
resolved their differences over the subpena, and I ob-
served that the exhibit (R. Exh. 1) would not be included
in the exhibit folder (2:277-280).3 Through apparent in-
advertence the court reporter included Respondent's Ex-
hibit 1 in the exhibit folder. By motion dated 10 Decem-
ber the General Counsel, citing Section 102.31(b) of the
Board's Rules, moves to expunge Respondent's Exhibit 1
from the exhibit folder. Respondent opposes by reply
dated 16 December and, without specifying a relevant
need or purpose, impliedly suggests that Respondent's
Exhibit 1 could be placed in a rejected exhibits folder. I
grant the General Counsel's motion to expunge. No rele-
vant purpose appearing for placing the exhibit in a re-
jected exhibits folder, I deny Respondent's suggestion, or
motion, that I do so. I shall return Respondent's Exhibit
1 to Respondent's counsel.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel4 and the Re-
spondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
A corporation with an office and place of business in
Junction City, Kansas, Respondent provides food and re-
lated services to branches of the United States military at
various bases in the United States, including the Blythe-
ville Air Force Base , Blytheville, Arkansas, through con-
tracts with the Defense Department. During the past 12
months Respondent provided services valued in excess of
$50,000 to the United States Air Force at the Blytheville
Air Force Base.
The parties stipulated that during the past 12 months
Respondent purchased and received at Blytheville, Ar-
kansas, goods and materials valued in excess of $5000
direct from points outside Arkansas (1:40-41).
Respondent admits, and I find, that it is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
0 References to the three -volume transcript of testimony are by volume
and page.
4 The General Counsel has submitted a posthearing motion , dated 10
December 1987 , to strike portions of Respondent's brief Respondent op-
poses by reply dated 16 December and contends , in part, that the Gener-
al Counsel's motion to strike is in the nature of a reply brief , not author-
ized by the Board 's Rules . The proper procedure for submitting a reply
brief is described in Fruehauf Corp., 274 NLRB 403 in 2 (1985) Al-
though the General Counsel 's document (motion to strike or reply brief)
has no covering motion requesting leave to file , I nevertheless have con-
sidered the document and Respondent 's reply.
II. LABOR ORGANIZATION INVOLVED
129
Respondent admits, and I find , that Industrial , Techni-
cal and Professional Employees , a Division of National
Maritime Union , AFL-CIO (the Union) is a labor orga-
nization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Kime's business
Kime performs its food service business at four or five
military bases (Air Force and Army) from Colorado to
Georgia (3:760). Edward W. Mitura is Kime's president
(1:49) and chief operating officer (3:845). Frederick E.
Anderson serves as Respondent's general manager
(3:759). All locations are unionized, with all but one lo-
cation being under contract with the Union. The Hotel
and Restaurant Employees has the contract at Peterson
Air Force Base in Colorado (3:761). Anderson is presi-
dent of KCA Corporation. KCA is in the same business
as Kime. The relationship between Kime and KCA is
not clarified in the record, but it apparently is a close
one. KCA apparently has the service contract at Peter-
son Air Force Base and also, Anderson testified, took
over the service at Fort Campbell, Kentucky, after Kime
(3:759, 768, 772).
Kime's predecessor at Blytheville was Harris Systems
(2:404; 3:761). For the service to begin 1 October 1985,
Kime apparently submitted the low bid and captured the
food service contract at Blytheville (2:761). Anderson
prepared Respondent's bid. In doing so he based it on
Kime's earning a profit of about $3000 per month. That
profit was after allowing for direct costs plus overhead
(indirect expenses), but not contingent costs. Thus, any
legal expenses or additional supplies, for example, reduce
the $3000 monthly profit (3:763-765, 849).
When a contractor succeeds to the food service oper-
ation at a military base, Anderson testified, the contrac-
tor is under no obligation to hire the previous contrac-
tor's employees. If it does hire them, the employees
retain the seniority dates they held with the predecessor
(3:767-768). Charging Party Ola Mae Rand was hired by
Harris Systems in October 1982. For her first 6 months
with Harris Systems Rand worked as a mess attendant.
Thereafter Rand served as a cashier, the job she was
holding when Kime hired her effective 1 October 1985
(2:403-405, 510).
Rand had served as the elected union steward for
about the last year Harris Systems held the food service
contract, and Rand continued in that capacity after Kime
took over (2:408, 510). The Blytheville operation is
Kime's smallest (2:760). As of April 1987 Respondent
employed some 30 to 35 employees at Blytheville (1:52,
245-246). Mae Harris had been the contract manager at
Blytheville with Harris Systems and Kime retained her
in that capacity. When the military complained about
contract performance, Kime replaced Mae Harris with a
second manager who lasted only a short time.
Transferred from the Fort Campbell operation to
Blytheville on 1 November 1986 (2:281, 314, 393),
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bonnie Sutton became Respondent 's third manager at
Blytheville (3:781). Although Sutton has worked for
Kime some 13 or 14 years, and had gained some supervi-
sory experience at the Fort Campbell operation , Blythe-
ville is her first occasion to be in charge of an entire base
(2:281-282, 287-288, 393). Reporting to Sutton are shift
leaders who appear to function in a foreman -like capac-
ity. They are not alleged to be statutory supervisors, and
apparently are members of the recognized bargaining
unit ( 1:57-58, 106).
As the record reflects, certain failures in performance
by Kime can result in the military withholding funds
from Kime as a contractual penalty . The particular pen-
alty we are concerned with can result from daily cash
variances between the cash register tapes and the money
turned in by Respondent 's employees . A daily variance
of $1.75 is allowed by the service contract. Any overage
or shortage exceeding that $1 . 75 tolerance results in an
"unsatisfactory" rating (1:62-63, 159, 271; 2:310, 372).
Three "unsats" in a month result in a Contract Discrep-
ancy Report (CDR). A CDR causes the military to
impose a penalty on Kime by withholding 4 percent of
the monthly gross payment due from the Air Force to
Kime (1:160; 3:700-701 , 854). With an estimated monthly
payment due Kime of $33,000 (1:160), a 4-percent penal-
ty is $ 1320! Another penalty results if the meals served
(the "head count") falls more than 15-percent short of
the estimate . Mitura testified Respondent had been
paying a penalty on this for virtually every quarter. The
penalty was costing Kime as much as $300 a month
(3:846-849).
Kime based its bid for the Blytheville food service
contract on an estimated 120 hours per day average
(3:765 , 851). According to Mitura , in early January 1987
the number of hours worked at Blytheville, in his opin-
ion, was running too high (3:852). About mid-January
Mitura hired Morris D. Cotton . Although his actual title
is regional manager, Cotton describes his function as that
of a troubleshooter whom Respondent sends to its vari-
ous locations to clear up problems (1:48-49, 59). Cotton's
first assignment , Anderson (3:781-782) and Mitura
(3:852-853) agree, was to straighten out the Blytheville
operation . Apparently just about everything was off
track there, from the number of daily hours worked to
the amount of supplies used (3:782). As we have seen,
Mitura described the head count penalty as an expense
which had become almost a routine deduction from
Kime's profits.
Cotton arrived in Blytheville about 17 January, and on
this first visit he remained through February, or about 6
weeks ( 1:50, 124 , 175). Only days earlier Cotton had re-
tired from the military , having served 27 years in the
U.S. Army. Cotton' s military experience was as a food
service master sergeant , and his last assignment was at
Fort Polk, Louisiana, overseeing the multiple dining fa-
cilities ("mess halls") there ( 1:124-125). Technical Ser-
geant Dennis R. Bartley performs that function for the
Air Force at Blytheville (1:125-129 ; 3:687-68, 723).
According to Cotton , inefficiencies abounded at
Blytheville . He not only succeeded in reducing the daily
average hours from about 121 to 109, but he also discov-
ered the military had been shifting noncontractual work
to Kime . Cotton stopped the latter practice and filed [re-
imbursement] claims for prior abuses (1:171, 174-175,
235). Cotton testified he told Sutton he wanted no more
errors by the cashiers (1:235). Contract Manager Bonnie
Sutton testified that even though she had considered the
Blytheville operation as reasonably efficient , Cotton con-
vinced her it was inefficient . In the process , Sutton testi-
fied, Cotton got tough with all employees and cracked
down on everyone, including her (1:383, 393). Although
Kime had warned and terminated employees in the past,
discipline intensified after Cotton arrived (2:383-389).
As a result of Cotton' s many changes , and because of
the pressure exerted by the difficulty in complying with
Cotton's new demands , even one shift leader, Elizabeth
S. Parramore , quit in mid-May (2:583-584, 589-592).
The military manner by which Cotton communicated
with employees generated strong feelings among at least
some members of the bargaining unit . Charging Party
Ola Mae Rand, who was the Union's shop steward,
agrees Cotton was rough and tough , but describes him as
unfair, prejudiced against black employees , and as one
who uses terrible language (2:541-543). Rand is black.
Cotton is white as is Sutton.
By coincidence , shortly before Respondent sent
Cotton to "straighten out" Blytheville, the Air Force as-
signed Technical Sergeant Dennis R. Bartley to the
Blytheville Air Force Base . Bartley arrived at the base at
the end of November 1986, began observing the food
service operation in mid -December , and on 1 January
1987 Bartley officially took charge of the dining room
facility (3:687-689, 696). Bartley testified that when he
arrived there was no teamwork between the military's
personnel and Kime's employees . Bartley, it appears, has
acted to improve the efficiency of the military personnel,
and he credits the professional expertise of Cotton for
improving the efficiency of Kime's employees (3:696-
698).
2. The collective-bargaining agreement
The collective-bargaining agreement (CBA) between
the parties is effective , by its terms , from 1 October 1985
to 30 September 1988 (R . Exh. 2 at 20). By memoran-
dum signed 20 March 1986 the parties modified the CBA
in several respects . The effective date for the modifica-
tion was set at 1 October 1986 (R . Exh. 3). Among the
several changes in wages and benefits is one relating to
overtime. In the original CBA Kime agreed to pay daily
overtime at the rate of 1.5 times the hourly rate when
daily work exceeded 8 hours and double time for daily
hours exceeding 12. After 40 hours in a week , the over-
time rate was 1.5 times the hourly rate for the first 8
hours, and twice the hourly rate for all hours over 48 (R.
Exh. 2 at 13). The 1986 amendments eliminate pay for
daily overtime (R. Exh . 3 at 4).
Article VII of the original CBA, among other matters,
provided that reprimands shall be in writing and effec-
tive for 1 year (R. Exh . 2 at 7). The amendments re-
duced the effective life of warnings to 6 months (R. Exh.
3 at 3-4). As modified , article VII reads:
KIME PLUS, INC.
ARTICLE VII-DISCHARGE
No employee shall be discharged without just
cause, and all dismissals will be subject to the griev-
ance procedure and arbitration clause . All repri-
mands and discharge notices shall be in writing and
shall be signed by the Project Manager . Copies of
the reprimand or discharge notice shall be given to
the employee reprimanded and to the shop steward.
Each reprimand shall be cancelled after six months.
Three (3) reprimands may result in immediate dis-
missal . Theft, intoxication on the job, failure to per-
form work as directed , illegal use of drugs and
showing disrespect to military personnel may result
in immediate dismissal regardless of the number of
prior reprimands.
The amendments apparently changed the job classifi-
cation titles . Although the copy of the CBA in evidence
does not contain the list of job classifications , the 1986
amendments suggest they included: mess attendant
leader, mess attendant , and start mess attendant . Presum-
ably there was a classification for "cashier ." Effective 1
October 1986 the classification titles and "minimum"
hourly pay rates paid to "each classification employed on
this contract" are shown as (R. Exh . 3 at 2):
Mess attendant leader $6.75
Cashier 5.75
Mess attendant 5.50
Craig W. Foster is the representative the Union has as-
signed to administer the CBAs at both Blytheville and
Fort Campbell . Foster's office is in Granite City, Illinois.
George J. Matz is the agent in charge of that office
(2:410; 3:776-777, 825, 830). Rand was the elected shop
steward at Blytheville . She gained experience as a stew-
ard earlier by serving as a union steward for Retail
Clerks Local 876 when she worked as a cashier for a su-
permarket in her home State of Michigan . Rand never
attended a union school for stewards while in Michigan,
and there is no evidence she has done so while in Blythe-
ville (2:501-503).
There is a dispute concerning whether Rand discussed
grievances of other employees with Sutton or submitted
any written grievances on their behalf to Craig Foster
for processing in late 1986 and early 1987. I need not re-
solve the dispute , and I do not discuss the evidence, be-
cause I consider the issue immaterial . There is no evi-
dence Foster (who did not testify) presented the griev-
ances to Respondent , and the discussions Rand held with
Sutton on the matters sparked no controversy. In my
opinion , the key to the case lies in the conversations
Rand had with Cotton after his arrival-especially their
conversation of 29 January.
Although Sutton had introduced Cotton to Rand and
the other employees when Cotton arrived around 17 Jan-
uary (1:52; 2:352), the first real exchange between Cotton
and Rand occurred about 27 January . Motioning with his
head for Rand to step over to him away from the other
employees, Cotton said , "Hey, you , I want to talk to
you." Cotton told Rand she was 5 cents short the day
before and that her error had thrown the whole system
131
off.5 Rand admittedly replied , "Wow, a whole 5 cents."
Nothing else was said (2:458-459, 540).
Cotton testified Rand laughed when she gave her
answer (1:53), but Rand denies it. She testified she made
her comment because as a cashier she did not have ex-
clusive access to the cash register , that a 5-cent error
was not unusual, and she was not aware of anyone else
having been confronted about such a small error (2:459).
I need not resolve the minor dispute about a "laugh."
3. The union meeting of 28 January 1987
A union meeting was held in the dining hall the
evening of 28 January . Union Representative Craig
Foster was accompanied by a man who spoke about in-
surance . The purpose of the meeting was to discuss new
insurance . At least 20 employees attended (2:414-415,
561).
Although the meeting was called to discuss new insur-
ance, Rand , during the meeting, informed Foster that
Kime was forcing employees to work "off the clock"
(that is, without pay), that shift leaders (members of the
bargaining unit) were encouraging employees to do this,
and if the employees refused they would receive written
reprimands . Rand also reported that time allowed for
cleaning had been reduced and if the employees did not
finish their cleaning within the allowed time they re-
ceived reprimand letters . Other employees registered
similar complaints , including Linda Clark who protested
that senior employees such as herself were having their
hours cut with those hours of work being assigned to
employees with less seniority . Foster said he would talk
to Project Manager Bonnie Sutton about the problems
(2:414-420).
Because Foster does not have a pass to drive on the
base, Sutton picked him up at his motel , drove him to
the Union's meeting , and drove him back to his motel
after the meeting . According to Sutton , as she and
Foster drove they mainly discussed a prospective pay
raise. Sutton denies Foster mentioned anything about em-
ployees complaining at the meeting about having their
hours reduced or having to work after they had signed
off duty (2:350-351). Cotton likewise denies that Sutton
said anything to him that Foster had reported employee
complaints to her (1:203).
The next day, 29 January, Cotton and Sutton ap-
proached Rand as she was working . Sutton said there
were employees at the union meeting the night before
who were supposed to be working on the clock, and that
any future repetition of that would result in their pay
being docked. Sutton refused to give Rand any names,
but suggested Rand post a notice on the bulletin board to
that effect. Rand said she would . Cotton then added,
"Tell the slow workers their hours will be cut." Re-
sponding that such was not her job, Rand told Cotton to
"tell them yourself." (2:420-421, Rand.) Neither Cotton
nor Sutton addressed this conversation in their own testi-
mony . As we shall see, General Manager Anderson testi-
6 Air Force documents reflect that a 5-cent overage in cash register re-
ceipts occurred on 26 January (G.C. Exhs. 32, 32g). The previous nickel
error, a shortage, occurred on 14 January-before Cotton arrived (G.C.
Exhs 32, 32e).
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
feed Cotton reported to him the exchange between
Cotton and Rand essentially as Rand testimonially de-
scribed (3:819-820).
4. Kime's called meeting of 4 February 1987
Sutton 's testimonial denial that Foster asked her about
employee complaints the evening of Wednesday , 28 Jan-
uary, is contradicted by her admission of that fact at a
meeting Kime held with employees the evening of
Wednesday, 4 February. Rand secretly tape recorded the
meeting . The tape (G.C. Exh. 23a) is in evidence, as is
the transcript (G.C. Exh. 23c). Sutton opened the meet-
ing by saying Cotton had many years of experience and
had some matters to discuss with them . Cotton then
made a brief presentation of policies and procedures he
wanted employees to follow, such as clean uniforms,
name tags worn, hairnets worn, courtesy to all military
personnel , cashiers to be more careful , loyalty of em-
ployees to management , discussion of any job problems
with management and not with military personnel, punc-
tuality, productivity , the need for teamwork , and some
specific job, equipment , and supply matters.
When the topics reached the job specifics of equip-
ment and supplies, employees began participating and the
meeting became a lengthy discussion of such matters.
Several employees , including Rand , asked questions or
freely expressed complaints . One unidentified woman
complained her hours had been cut while people she
trained were getting more hours to work than she was
(G.C. Exh. 23(c) at 16-17). Toward the end of the meet-
ing Sutton made the remark which ties back to Foster's
visit a week earlier (G.C. Exh. 23c at 42):
Sutton : But I not asking no one, I have never ask
no one to work and not get paid for it, and I know
there was a lot of that said to that Foster at that
Union meeting cause he asked me about it. . . . I
have never told the supervisors .. .
Rand : Not you, but our supervisor , our shift lead-
ers Bonnie
Sutton : I have never told the supervisors ... .
And I have never and never will tell nobody to
work and not get paid for it.
Sutton : I have never told the supervisors to tell
noKPto,...
And I have never and never will tell nobody to
work and not get paid for it.
B. The Alleged Discrimination Against Ola Mae Rand
1. Introduction
The General Counsel 's allegations of discrimination by
Respondent against Ola Mae Rand fall into two time pe-
riods . The first group of allegations begins with an al-
leged transfer to a less desirable position on 29 January,
includes her 19 February discharge , and concludes with
the alleged reduction of her hours at the time she was
returned to work on 27 February . As we shall see,
Mitura directed that Rand be returned to work following
Union Representative Craig Foster 's request he do so as
a "favor."
Following her 27 February return to work, Rand, as
we shall see, filed her charge on 18 March in Case 26-
CA-12039 alleging Respondent violated Section 8(a)(3)
of the Act by reducing her hours . Following conversa-
tions between the parties and investigating Board agent
William R . Yarbrough, and between General Manager
Anderson and Rand on 15 April, Respondent submitted a
request to withdraw her charge in Case 26-CA-12039.
By letter dated 21 April the Regional Director approved
that request.
On 16 April Rand was transferred back to the cash
register on a triple split-shift which Anderson confirmed
with Rand the day before. On 8 May Rand filed her
charge in Case 26-CA-12122 alleging Respondent had
violated Section 8(a)(1), (3), and (4) of the Act beginning
16 April by issuing warnings to her and concluding with
her constructive discharge on 30 April. The second
group of allegations in the complaint begins with the 15
April "undesirable" shift assignment (complaint par. 12),
covers certain warnings in April (and in January and
February as well), and concludes with the alleged con-
structive discharge of Rand on 30 April (par. 16 and 17).
Complaint paragraph 18(a) describes the Regional Di-
rector's 21 April approval of the request to withdraw the
charge in Case 26-CA-12039 after "consideration of the
terms of a non-Board settlement which provided, inter
alia, for the reinstatement of employee Ola Rand."
Complaint paragraph 18(b) alleges:
(b) In view of Respondent's conduct described
above in paragraphs 12, 13, 14, 15, 16', and 17, the
undersigned revokes his approval of the request to
withdraw the charge in Case 26-CA-12039 and di-
rects that the charge filed in Case 26-CA-12039 be,
and it hereby is , reinstated.
In its 16 June answer , Respondent admits the allega-
tions of complaint paragraph 18(a), but "objects" to the
Regional Director's revocation and reinstatement actions
as described in complaint paragraph 18(b). Further, Re-
spondent moves for dismissal of Case 26-CA-12039.
Citing and relying on Norris Concrete Materials, 282
NLRB 289 (1986), the General Counsel filed an opposi-
tion dated 2 July. At the opening of the hearing the par-
ties reexpressed their positions (1:5-28). At the hearing
(1:11) and in its brief (Br. at 29 , 40) Respondent ac-
knowledges that the presettlement events may be consid-
ered at least for background purposes.
As part of its contentions at the hearing on this topic,
the Respondent raised a question concerning the specifics
of the settlement agreement . At the hearing counsel for
the General Counsel represented that to his knowledge
no document existed spelling out the details of the pri-
vate adjustment between Respondent and Rand (1:9).
Later I describe the testimony Anderson gives on the
subject, and the limited testimony of Rand on the matter.
Union Representative Foster did not testify , and neither
did Board agent Yarbrough. Of course, under the
Board's Rules, Section 102 .118(a)(1), Yarbrough could
not have testified without the General Counsel's written
consent.
KIME PLUS, INC. 133
2. Cotton demotes Rand 30 January 1987 from
cashier to mess attendent
a. Facts
On Friday, 30 January, Sutton gave Rand a written
reprimand for being 95 cents short in her cash receipts
the day before (R. Exh . 8). Rand was removed from her
position as cashier and returned to that of mess attendant
effective Monday, 2 February . There is no dispute the
decision to issue the reprimand and to demote Rand
came from Cotton ( 1:54-55, 58-59). Sutton told Rand
she had nothing to do with the decision . Rand became
upset, developed a headache , and asked to be relieved so
she could leave . She was relieved in about 15 to 20 min-
utes (1:54-55; 2:426-428, 535).
As Rand was about to depart, Cotton approached her
with two copies of the reprimand -removal . Rand asked
permission to add a written comment . They went to the
office . While Rand read the reprimand , Cotton tele-
phoned someone and told the person he had "taken care
of the problem ." Sutton came in and informed Cotton
that Rand was not feeling well and needed to go home.
Rand asked if she could add her comments later since
she did not feel well , but Cotton said no. Rand proceed-
ed to add some comments to the reprimand (2:429-430).
In her written comments , Rand accuses Cotton of being
prejudiced against blacks . She also states that every cash-
ier is short on occasion , and she inquires , at the end, why
Cotton dictated this for Sutton to sign and her assistant,
Ramona Britman , to write (R. Exh. 8).
Rand testified her hours were changed (reduced) by
the demotion . As a cashier Rand was scheduled to work
5 days a week from 11 a.m. to 7 p.m., Monday through
Friday. After Rand 's demotion effective 2 February,
until her discharge on 19 February , Respondent sched-
uled Rand to work mornings , begining about 6:15 a.m.
From working 35 hours or more a week , Rand was
scheduled for about 5 hours a day on 3 to 4 days a week.
The effect was to reduce Rand's hours by almost one-
half (2 :407, 431-432 ; R. Exh. 15).
Complaint paragraph 8 alleges Respondent, on 29 Jan-
uary, transferred Rand to a less desirable position of em-
ployment and assigned her to less desirable duties. Com-
mencing about 29 January , complaint paragraph 9 al-
leges, Respondent reduced the number of hours it sched-
uled Rand for work.
Cotton testified he decided Rand should be reprimand-
ed and removed (demoted) from her cashier 's position
because she had made two errors in a short period of
time . According to Cotton , there was no other reason
(1:53-54). Curiously , the 30 January reprimand mentions
only the 95-cent shortage and not the 5-cent error (R.
Exh. 8). Sutton asserts she had orally counseled Rand
and others on prior occasions about cash register errors,
but that before Cotton came she never issued any written
reprimands for such errors (2:311, 314). Cotton admits
Rand is the only cashier he has removed for mistakes in
cash register receipts (1:74).
At the general meeting of 4 February, Rand asked
Cotton about her removal and, in effect , why she was
the only cashier who had been demoted when others
also made errors . Cotton replied that counseling state-
ments had issued to others and, in any event, "It's my6
prerogative to remove anybody I want to ." (G.C. Exh.
.23(c) at 44-45.)
Cotton testified he generally would know when a
cashier made an error ( 1:59-60). According to Cotton, he
was aware of only one or two employees who made
errors on their cash register totals after 30 January. He
instructed Sutton to issue a written warning to Kathy
Pollard because Pollard had an error on cash receipts
(1:60; 2:317). The warning to Pollard does not specify
the amount of her 2 February shortage , and states that
Pollard is being warned (rather than a more severe disci-
pline) because she had just started the cashier job that
week (R. Exh . 6). Pollard did not testify . Air Force doc-
uments reflect a $1.95 shortage in the cash receipts on 2
February (G.C. Exhs . 33 and 33a).
Milicent Carter was given a written warning on 2 Feb-
ruary for being 1.5 hours tardy to work that day and for
being short 40 cents in cashier duties at the fire station
on Sunday , 1 February (2:346-347). The notice records
Carter's regular position as that of mess attendant . Sutton
testified Carter served as a weekend cashier (2:350). The
notice states it is the "last warning," and that a recur-
rence of such mistakes "will cause termination of your
job." (G . C. Exh . 16.) Collecting receipts at the fire sta-
tion involves a cash box rather than a cash register. The
fire station is called the "Crash" location (1:72; 2:293-
295).
b. Discussion
The General Counsel 's argument of a violation relies
to some extent on evidence pertaining to subsequent
months, particularly documentary evidence . The General
Counsel observes (Br. at 9-10) that between 2 February
and 16 April when Rand did not work as a cashier, the
Air Force charged Respondent with 9 errors in cash re-
ceipts and two unsatisfactory ratings in February, 10
errors and one unsatisfactory rating in March, and 2
errors and one unsatisfactory rating in April before 16
April. For these 21 errors, resulting in four unsatisfac-
tory ratings, "no employee was removed from the cash-
ier position and, except for Pollard and Carter, no em-
ployees received written warnings for these errors." (Br.
at 9-10.)
Continuing, the General Counsel argues that Respond-
ent's position , that the action resulted from a "new and
more aggressive manager" and not from any intent to
discriminate against Rand for unlawful reasons, might
have some appeal if Respondent had acted consistently.
"Yet, the only written warnings given to employees oc-
curred only when some action was taken against Rand."
"It is submitted , particularly in view of the large number
of errors that occurred for the months January through
June, and in view of the timing, the warnings issued to
[Pollard , Carter, Josefina Smith , and Joanna Coss] were
issued to `cover up ' Respondent's conduct toward Rand
and are unlawful ." (Br. at 21-22.)
6 Although the transcript does not include "my," the taped voice of
Cotton reflects that he said the word.
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent counters by arguing , in part, that it does
not dispute it did not issue written warnings for every
error a cashier made, but that warnings of some nature,
either oral or written , were given for the errors and the
General Counsel did not prove otherwise . By not pro-
ducing "even a single witness to testify that he or she
made a cashier error and failed to receive a written or
oral warning," the General Counsel , Respondent argues,
failed to meet the necessary burden of proof. (Br. at 22;
3:881).
As some of these facts occur later in the sequence of
events, I shall postpone discussion of the demotion alle-
gation . I subsequently conclude that Rand 's transfer (de-
motion) to mess attendant , effective 2 February, was un-
lawful , as alleged.
3. Kime discharges Ola Mae Rand on 19 February
1987
a. Rand reprimanded 2 February 1987
Monday, 2 February, was Rand 's first day as a mess
attendant following her demotion . She received a written
reprimand that day for (1) failure to wear her name tag,
(2) seeking to confer with Air Force Sergeant Bartley,
and (3) discourtesy on the serving line (G.C. Exh. 3).
The reprimand concludes by warning Rand that the next
time she reports to work out of uniform , or being unpro-
fessional in her duties, or calls for a meeting with the
military, or is not being loyal to Kime Plus, she will be
suspended or terminated . Cotton testified he instructed
Ramona Britman to prepare the warning , and that he did
so for the reasons set forth on the warning and no other
reason (1:76-78). Sutton signed the reprimand . She testi-
fied she reads them even though Britman may prepare
some of them (2:345).
Rand testified she had her name tag in her pocket. She
had intended to inquire whether she was to wear that
one or a new one as a mess attendant . No one asked her
where her name tag was even though she worked all day
(2:433-434). Cotton testified it was probably that morn-
ing when he observed Rand without her name tag. He
thinks, but is unsure, he asked Rand where her name tag
was, but he does not recall what she said . ( 1:100-102). I
do not credit Cotton's version that he asked Rand about
her name tag.
Rand concedes she asked Sergeant Bartley if she could
talk to him that day at the end of her shift . He asked if it
had anything to do with her being removed from the
register , and she said no, that it was about "some things
in general ." He nodded his head yes. Around 9 a.m.
Sutton came to Rand and informed her that if she went
to the military about company business she would be ter-
minated . Rand abandoned her idea of speaking with
Bartley after work. Rand testified she had planned to dis-
cuss with Bartley that the cooks and other military kitch-
en personnel were distracting her and other employees
by too much talking to them and "horseplaying" with
them (2:434-440).
Cotton testified someone told him of Rand's request.
He then went to Bartley who purportedly confirmed that
Rand had asked to speak to him on something about
Kime's operations , or the contract, and he told her he
did not want to discuss anything with her (1:84-86, 99).
Called as a witness by Respondent , Bartley was not
asked about this matter . Cotton concedes he did not
obtain Rand 's version before giving her a warning for
this incident (1:87-88).
Although Cotton testified there is a rule against em-
ployees talking to the military "about the contract," he
concedes he does not know of anything in writing on the
subject (1:88-89). His description appears to be his un-
derstanding of a general custom on the military bases
where he has served rather than any specific preexisting
rule of Kime ( 1:168-169 ). In any event, Respondent pro-
duced no written rule or policy on the subject that exist-
ed as of 2 February . Similarly, Respondent offered no
evidence that employees , prior to 2 February , had ever
been told they should not discuss job-related matters
with military personnel.
Two days later, on the evening of Wednesday, 4 Feb-
ruary, Cotton and Sutton conducted their group meeting
with employees . When Cotton began his comments, he
had before him a 2 -page list (R. Exh . 4) of 13 points he
wanted to make ( 1:138). As the transcript of Rand's
secret tape recording of the meeting reflects, Cotton
made his points . As to uniforms , Cotton , using the mili-
tary manner of instruction, told employees "you will
have your name tags." (G.C. Exh. 23(c) at 1.)
Cotton merged two of his points , 'loyalty and policies.
In Cotton 's opening comments , and in the discussion
which followed , Cotton and Sutton emphasized to em-
ployees they were to be loyal to Kime . The concept of
loyalty, they explained , meant that if they had any prob-
lems with the military they were to complain to manage-
ment or to their union steward, not to the military, and
that management would confer with the military (G.C.
Exh. 23(c) at 1-2, 9-10). As Cotton phrased it at one
point (G.C. Exh. 23(c) at 2):
Policy, okay , you will not discuss anything to do
with job relation to the military, okay . You have
problems, you will come to your management or to
your shop stewardess . If you hold a meeting , trying
to talk to the military about Kime Plus's business,
you will be terminated on the spot, okay.
The General Counsel observes that these admonitions
to all employees were made 2-days after Cotton had
issued the written reprimand to Rand when she had
merely requested to meet with Sergeant Bartley (Br. at
12, 23). I credit Rand and find that Sergeant Bartley did
agree to meet with her after her shift ended. Cotton testi-
fied with an unpersuasive demeanor, and I do not credit
his testimony Bartley told him he had rejected Rand's re-
quest or that he said Rand wanted to discuss Kime's op-
erations or the contract . I find Bartley said Rand simply
wanted to discuss some matters "in general." Rather than
going to Rand and obtaining her version , and informing
her Kime 's policy prohibits job-related discussion with
the military, or being content with Sutton 's oral warning
to Rand , Cotton included the incident in a written repri-
mand.
Treating the third incident (serving line) as the most
significant, the parties introduced substantial evidence
KIME PLUS, INC.
concerning it. In addition to the testimony of Cotton and
Rand about the serving line matter, Air Force Sergeant
Bartley also testified regarding it. The portion of the
warning relating to this reads (G.C. Exh. 3):
At 12:05 p.m. serving the main line she [Rand] was
told by TSgt Wiggins to wipe the serving line be-
cause it was extremely dirty. TSgt Bartley thought
it would take too long, so he told her to serve and
he would wipe the line down. Her comment was,
..one person tells me to wipe and the other tells me
to serve, what am I supposed to do?" She said this
very loud. There were several people in the line in-
cluding Col. Smith , that heard the comment.
Testimony of Cotton and Bartley identifies Colonel
Smith as the officer who assumed command of the base
on 1 January (1:83; 3:690-691, 713, 725 ). Rand testified
she did not know Smith and did not see an Air Force
Colonel in the line at the time of the incident. She con-
cedes there were a few military personnel in the line at
the time (3:654-655). Irritated over Rand's conduct, Bart-
ley that day wrote a one-paragraph description of the in-
cident and gave a copy to his supervisor (Senior Master
Sergeant Bagby) and the the original to Cotton (3:720-
722; R. Exh. 5). Although some of the details are in dis-
pute, and Bartley's testimony initially describes a se-
quence different from his written statement of 2 Febru-
ary, there really are just four main points and only one
of them is disputed.
First, there is no dispute that on this occasion a Ser-
geant Wiggins, as he was leaving the area, told Rand to
stop serving the customers and wipe the counter. As
Wiggins was walking away Bartley, countermanding
Wiggins' order , instructed Rand to serve the customers.
The second point, also undisputed, is that Rand respond-
ed with, essentially , "I wish you guys would make up
your minds [or `get it together '], with one telling me to
wipe the line , and one telling me to serve. What am I
supposed to do?" (2:441; 3:652.) Bartley concedes he nor-
mally does not give instructions to employees of the con-
tractor, but that he did so on this occasion as a split-
second decision (3:712-713).
The third point is disputed: Did Rand reply in a loud
voice? Bartley testified Rand was loud and rude (3:692),
and in his typed statement he described Rand as "very
loud" (R . Exh. 5). Rand denies she spoke in a loud voice
(2:441; 3:654). In her comments on the warning she
wrote that she spoke in a "friendly" manner, joking with
him as she usually did (G.C. Exh. 3). I credit Bartley
who testified on this point with a persuasive demeanor. I
therefore find that objectively Rand 's voice would be
heard as loud and rude by the military personnel waiting
in the serving line only 2 to 3 feet from Rand.
The fourth point is anticlimatic . Rand concedes (3:655)
there were military personnel (customers) waiting in her
serving line . Whether they were airmen , officers, or in-
cluded Base Commander Colonel Smith , is immaterial.
(If it were necessary to resolve the matter, I would find
that Colonel Smith was standing in the line only 2 to 3
feet from Rand.)
135
Cotton testified that he went to Rand and asked her
about the incident but her only response was to smile.
That is when he decided to give her a reprimand ( 1:84).
Initially Cotton testified *he went to Rand after he re-
ceived Bartley's statement ( 1:82), but later , in confusing
testimony , he reversed the sequence (1:239-240). Al-
though Rand denies Cotton checked with her before the
warning issued , it is unclear from her testimony whether
she was referring to this warning or to a subsequent one
(2:446). Rand testified Sutton gave her this warning after
the shift ended (2:449). Cotton testified with an unpresua-
sive demeanor and I do not credit him. I find he did not
question Rand about the serving line incident before he
directed that a reprimand issue to Rand.
b. Rand discharged 19 February 1987
From 2 February through 19 February Rand's normal
shift was a 5 -hour schedule from 6 to 9 a .m., a lunch-
break from 9 to 11 a .m. followed by a 2-hour work
period from 11 a.m. to 1 p.m. These hours are described
by Shift Leader Virginia 0. Statler (3:741). Rand's de-
scription is essentially the same even though she asserts
the hours varied (2:431). During this period of about 2
weeks Rand had been working on the "clipper ," a term
applied to the rather large dishwashing equipment
(2:452-453). Although Rand did not list the function at
the hearing, Statler testified that Rand also worked at
cleaning the grills which , there seems no dispute, would
be hot (3:745-746). The transcript of the general meeting
on 4 February shows Rand contending to Cotton and
Sutton that Kime should furnish her and the other em-
ployees rubber gloves to protect their hands from the
harsh chemical cleaner the employees used to clean the
grease from the grills . Cotton and Sutton, and especially
Sutton, responded that Kime did not furnish gloves and
that employees would have to supply their own gloves
(G.C. Exh. 23(c) at 39-42).
According to Statler, Rand's shift leader at the time,
Rand started slow on 2 February in her duties and, al-
though she improved , it was not enough (3:741-742).
Rand even would slow down when Statler asked her to
speed up (3:747). Statler testified Respondent 's procedure
is to give employees a week to learn the job. During that
first 5 days Statler works with them to show them how
to perform the job in the allotted time. Statler does not
"counsel" them during this initial week. If they are not
completing the job on time by the sixth day, Statler
begins orally warning them . After two or three oral
warnings (counselings) Statler prepares a written state-
ment on the matter and confers with either Sutton or
Cotton (3:736-737, 752-753).
Statler testified Rand was late in finishing just about
every day (3 :743). As Statler explains , the time in ques-
tion is the 45-minute period from 8:15 to 9 a.m. The line
closes at 8:15 a .m. and the mess attendant employees
have the next 45 minutes to clean the dishes , equipment,
and the floor before their lunch period begins at 9 a.m.
"Most of the time ," Statler testified , Rand would not
finish until 9:30 a.m. By 19 February , however, Rand
had improved such that she was finishing about 9 : 15 a.m.
(3:734-735, 742-743).
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the evidence fails to state it explicitly, the
implied reason Respondent wanted the workers to finish
by 9 a .m. is that such time is Kime's target cutoff point
for further wage payments. Cotton did testify that em-
ployees' taking too long in their work was costing Kime
money (1:118). Cotton 's reason for coming to Blytheville
in the first place was to reduce costs, maximize efficien-
cy, and earn a profit. When Rand worked beyond 9 a.m.
she therefore was working inefficiently (by Kime's stand-
ard) and , consequently , was reducing the profit Cotton
wanted to achieve . Of course , if one employee were per-
mitted to do this then all could do so , and there would
go Cotton 's profit program.
Statler testified she reported to Cotton three or four
times between 2 February and 18 February about Rand's
slowness . The last occasion was the morning of Wednes-
day 18 February when she reported that something
would have to be done about Rand because Rand was
slow, that when Statler talked to her Rand said she was
doing her best but that she was not going to burn her
hands on the hot grills and that she needed some rubber
gloves (2:745-746). According to Statler, she (orally)
warned Rand on more than one occasion after her first 5
days on the job (3:735-736, 737, 753). As earlier men-
tioned , Statler testified that when she urged Rand to
speed up , Rand would slow down (3:747). Statler testi-
fied that although most employees finish on time, she
had had to warn others and that such warnings let to the
discharge of Lou Corrick during this same time frame
(3:737-739, 747). I should note Statler testified Kime usu-
ally allows the employees a 5-minute grace period
beyond the formal 9 a.m. closing of the initial work
period (3:734, 743). Statler appears to say she granted
Rand an additional 5-minutes grace period in that when
Rand finished at 9:30 a . m. Statler considered her as
working over only 20 minutes (3:743). Statler's testimony
is slightly confusing concerning Rand 's improvement, at
one point saying Rand had cut her extra time by 10 min-
utes by 19 February (3:743). Her clearest testimony,
however , pegs Rand 's finishing time by 19 February at
9:15 a.m., or an improvement of 15 minutes (3:742). Stat-
ler's reference to 10 minutes of extra time apparently
allows for the 5-minute grace period and means , there-
fore, working 10 minutes beyond 9:05 a.m.
As mentioned earlier, Rand 's improved time was not
enough for Statler . After the oral warnings to Rand, and
Statler's 18 February conference with Cotton , Statler, on
Thursday, 19 February, wrote a six-line statement which
she gave to Sutton . She did not show it to Rand, give
her a copy, or, apparently , inform Rand of her action
(3:734, 736). In her statement Statler reports she has
"warned" Rand she was to finish her assigned duties at
the appointed time, and that even though Rand has been
so told "several times this month ," Rand continues "to
be late completing her assigned duties ." (G.C. Exh. 6.)
Rand testified that as she signed out in Sutton 's office
for the lunch period (9 to 11 a.m.) on Thursday, 19 Feb-
ruary, Cotton , saying he noticed Rand had used only
1.75 hours for lunch the day before, asked her what had
happened . ? Rand replied that it was her first time to
work alone on the clipper and it simply took her an extra
15 minutes to do the work . Cotton responded that the
new work schedule would be coming out and the hours
would be cut even more . Rand stated , "Mr. Cotton, do
whatever you have to do, because I did the best that I
could." (2:451-452.) When repeating her testimony on
cross-examination , Rand said she was standing , preparing
to leave for home at the time, that Cotton said nothing in
reply, and that she went home (2:536-537). I find her
first description gives the correct time sequence.
Cotton 's purported statement about cutting hours pre-
sumnably meant that Rand 's scheduled hours or days to
work would be reduced as a penalty for her slowness.
This is consistent with Cotton's rebuffed attempt on 29
January to have Rand tell the slow workers their hours
would be cut (2:420-421), his prepared notes for the gen-
eral meeting of 4 February ," and his recorded remarks at
the meeting of 4 February. The latter include statements
that some of the employees are not working fast enough,
that the schedule would be changed to help solve the
problem , and if the slower employees cannot speed up
Kime would be looking for some new employees. "It's
that simple . Now we've got to cut hours, we [are] going
to do it, and get this place runing like its gotta be run."
(G.C. Exh. 23(c) at 2-3.) Cotton confirms in his testimo-
ny that he advised the employees on 4 February that the
slower employees would be scheduled for fewer hours
and the faster employees more hours (1:236).
Cotton testified that 2 or 3 days before he terminated
Rand he told her she was not finishing her work during
her allotted time. He thinks she replied that she was new
to the work. He considered it an informal counseling,
and he testified Rand , to his best recall , was the only
person during the 2 February to 19 February time frame
who was working beyond her allotted time ( 1:116-119).
Two days before 19 February was Tuesday, 17 Febru-
ary, when Rand worked 15 minutes too long . Her previ-
ous workday was Friday, 13 February, when she worked
exactly 5 hours (R. Exh. 15). Persumably, therefore, Cot-
ton's informal counseling of Rand occurred on Tuesday,
17 February.
On the occasion of the 9 a.m. conversation on Thurs-
day, 19 February, Cotton , as he describes the conversa-
tion , asked Rand to step into the office. This possibly is a
reference to some inner office Sutton has, with the time
sheets left in a reception area for signing in and out.
Cotton testified he intended to issue Rand a written
warning . When he told Rand she was still working over
7 Sutton testified employees do not punch timeclocks but sign time
sheets instead (2:359). Respondent apparently prepares a daily timecard
based on the time sheets The latter reflect the times in and out (3.753-
756), but the timecards show only the total hours worked by date . Rand's
1987 timecard (R Exh. 15; 3.642) is in evidence On a decimal basis (the
card shows fractions) Rand is shown as working 5 25 hours on Tuesday,
17 February , 4.75 hours on Wednesday 18, February , and 5 hours on
Thursday, 19 February. For those days , therefore, it was Tuesday and
not Wednesday when Rand worked to 9.15 a.m. Referring to Rand's time
sheet , Statler confirms that Rand worked to 9.15 a .m. on Tuesday, 17
February (3:753-755).
8 "We expect you to work and get the job done within the time limit.
The slower people are going to have to speed up or be looking for an-
other job . We're in business to make money ." (R. Exh. 4 at 1 )
KIME PLUS, INC.
her allotted time she replied , "Well, 5 minutes late?" Just
go ahead and do whatever you want to. Fire me if you
want to." At that point Rand turned and left the office.
Viewing Rand 's words as a "dare" (in effect , a chal-
lenge), Cotton commenced the "write-up," but he now
drafted it as a discharge rather than a reprimand because
of Rand 's "attitude" and the way she had spoken to him.
Sutton was present , Cotton testified (1:104, 191-195).
Sutton was not asked about this conversation when she
testified.
At the end of the lunch period Rand heard from other
employees that she was going to be fired. Rand worked
until the 1 p .m. conclusion of her shift. Toward the end
of Rand 's shift, Ramona Britman informed Rand Cotton
wanted to see her before she went home (2:454-455).
Cotton ( 1:55) and Sutton (2:304, 345, 390) described Brit-
man as Sutton's assistant (2:304, 345, 390). Cotton also
referred to Britman as the supervisor of the main dining
facility, but testified she had no authority to discipline
anyone ( 1:55). Complaint paragraph 6 alleges a "Romana
Brittman" to be a statutory supervisor . Respondent
denied the allegation in its answer . The supervisory
status of Britman, Brittman , or the shift leaders was not
litigated.
At the end of her shift Rand went to the office to sign
out and to see Cotton . In Sutton 's presence Cotton gave
Rand a termination notice (G.C. Exh. 4). As Rand read
it, Cotton telephoned someone and told the person he
had "gotten rid of the problem." Rand told Sutton she
regretted not being able to work with her anymore.
After apparently signing the one-page notice (her pur-
ported signature appears on the exhibit), Rand departed
(2:454-457).
In the termination notice Cotton recites that Rand has
failed to complete her assigned duties timely , that she
had been orally counseled by the shift leader for this fail-
ure,9 and that when he tried to talk with Rand that
morning on the subject Rand replied she was new on the
job, that she was 5 minutes late that day, and for Cotton
to do what he wanted to do because she could not get
the "hang" of the job.
Although, as described , Cotton testified Rand told him
to "fire me if you want to ," no such statement is includ-
ed in the foregoing description by Cotton. And as the
General Counsel observes , the foregoing was prepared
by Cotton immediately after Rand supposedly made the
statement (Br. at 15). The General Counsel 's implied ar-
gument is that Rand did not say it or Cotton surely
would have included it with what, by the hearing, had
become only the first half of Rand's supposed remark.
For her part Rand emphatically denies telling Cotton he
could fire her (2:454).
9 Cotton's limited testimony about the authority of shift leaders to dis-
cipline or counsel employees is confusing. Initially he testified shift lead-
ers can discipline employees (1:106). Moments later he said counseling is
a part of Respondent's progressive discipline system (1:111). However,
Cotton said, counseling is not done by shift leaders (1:112) Respondent
objected to this, and to questions about Bntman's authority, on the basis
Britman's status is irrelevant (1.56). Moreover, Respondent argued, Brit-
man and the shift leaders are included in the bargaining unit and the cur-
rent union steward, Geralding Byrd, is a shift leader (1:57, 106-108) The
matter was not litigated
137
Continuing in the notice, Cotton wrote that Kime had
counseling statements on file from October 1985 through
February 1987 reflecting that Rand had "failed to
comply with some of her assigned duties ." Pointing to
the CBA which, as earlier quoted, cancels reprimands
after 6 months (R. Exh. 3 at 3-4), the General Counsel
objected at the hearing (3:620), and argues (Br. at 15)
that warnings over 6 months old do not exist . I over-
ruled the General Counsel's objection at the hearing.
From the motivation standpoint , for which Respondent
apparently offered the evidence of old warnings, the old
warnings cut two ways . First, they do tend to show that
warnings were part of Respondent 's past practice, and
that Rand had received some before Cotton's arrival.
That is, their effect tends to diminish the contention that
Cotton initiated a series of warnings against Rand in
order to get rid of the Union's shop steward . (For the
moment I pass over the key question of what evidence
suggests Cotton felt a need to do so .) On the other hand,
Cotton's padding the notice with a reference to stale
warnings tends to reflect a desire to overreach in an
effort to get rid of Rand . Overreaching suggests another,
and unlawful , motive . After all, it is not as if Cotton was
unaware of the contractual provision , for he testified one
of his first acts on arrival was to read the CBA (1:131-
132). Even so , the counter argument is that Cotton's ref-
erence to the canceled warnings , warnings which Kime
could not have relied on in a grievance -arbitration pro-
ceeding, was merely a method of using background evi-
dence to give context and meaning to current events.
The next line in Cotton's termination notice to Rand
asserts that Rand began "K.P. duties Oct. 16, 1982 [with
Harris Systems]. She should be well aware of all of her
assigned duties . And the importance of finishing the job
on time." This, of course , disregards Rand's work histo-
ry. It was only for the first 6 months of her employment
with Harris Systems that Rand worked as a mess attend-
ant. From about April 1983 to 2 February 1987, nearly 4
years , Rand worked as a cashier , first under Harris Sys-
tems and then with Kime (2:403-405). Not only was her
mess attendant experience stale, but it did not include
any changes in techniques or time requirements that had
been instituted since April 1983. Statler acknowledged
that Rand was "new" at the work and had to learn how
to do it (3:742). Acquiring speed in the operation comes
with experience . Cotton makes no mention whatever of
the fact, as Statler described (3:742), that Rand had cut
her deficiency time in half so that she was finishing by
9:15 a.m.
Respecting Rand's time and hours, it is pertinent to ex-
amine the hours Respondent has recorded on the time-
card it maintained on her 1987 hours (R. Exh . 15). For
February 1987 the timecard shows the following hours
(in decimals, not the fractions shown on the card):
M Tu W Th F
2 3 4 5 6
5.2 - .75 5 5.50
9 10 11 12 13
5.25 - 4.75 5
138
M Tu W
16 17 18
- 5.25 4.75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Th F therefore find Cotton did not personally counsel Rand
on 17 February, or on any date in this time frame. I fur-
ther find that Cotton and Statler, rather than focusing
the light of truth on the issues, deliberately tailored their
testimony to support Kime's position in this litigation. I
have not overlooked the fact Rand was not called in re-
buttal to contradict Statler's assertions. That failure does
not compel me to accept testimony from witnesses
whose demeanor was unfavorable and whose evidence
was either inconsistent with other credited evidence or
self-contradictory.
That brings us to the last portion of Cotton's termina-
tion notice to Rand: "Miss Rand's attitude and loyalty to
Kime Plus has been very poor since she has been re-
moved from cashier duties. Therefore I have no choice
but to terminate you on 19 February 1987." We know
that by "attitude" Cotton ostensibly was referring to
Rand's "dare" that he fire her if he desired (1:194).
Cotton testified with an unfavorable demeanor, and I do
not credit him. In denying she told Cotton he could fire
her if he wished (2:454), Rand testified with a favorable
demeanor. Crediting Rand, I find she did not use those
words, nor any words expressing a challenge. Instead, I
find Rand, as she described, told Cotton she was doing
the best she could. The conversation went no.further and
she went on her lunch break. Thus, I find Cotton falsely
loaded the termination notice by referring to a poor "at-
titude."
Cotton did not testify his reference to "attitude" was
based in part on Rand's "unprofessional" response to Air
Force Sergeant Bartly on 2 February. Because Cotton
asserts in the termination notice that Rand's attitude "has
been" very poor, I shall treat the reference as including
the serving line incident of 2 February. Even though I
credit Sergeant Bartley, it is clear Kime would not have
terminated Rand on 19 February over the serving line in-
cident some 2 weeks earlier when it only warned her at
the time of the incident.
Then what does "attitude" refer to? And why would
Cotton prepare a false termination notice, and testify
falsely, in order to get rid of Rand? If not for work
shortcomings, then what? I find it was because Rand, as
the Union's steward, demonstrated to Cotton on 29 Janu-
ary she would not be a submissive union steward. Appar-
ently because of his military background, Cotton was un-
accustomed to such independence. As an independent
steward, Rand represented an impediment to Cotton's
program to cut the number of hours worked.
As I have found, Representative Foster asked Sutton
the evening of 28 January about employee reports Kime
was forcing or encouraging employees to work "off the
clock," and Rand also reported that cleaning time had
been reduced. Clearly Sutton reported this to Cotton, al-
though Cotton testified he has no recall of such a report
(1:203). There is no evidence Foster mentioned Rand's
name to Sutton as the primary source of the report. Nev-
ertheless, the following day Cotton told Rand to tell the
"slow workers" their hours would be cut. Saying it was
not her (the steward's) job to convey such a message,
Rand advised Cotton to "tell them yourself." As earlier
mentioned , General Manager Anderson admits that
19
5
The timecard, of course, shows only total daily hours,
and not times in and times out. It appears from the testi-
mony that Rand's difficulty lay in finishing her initial
morning period (6 to 9 a.m.), and not her second period
(11 a.m. to 1 p.m.). The one reference to Rand's actual
sign-in and sign-out times is by Statler when describing
the 5.25 hours on Tuesday, 17 February, as involving 15
minutes worked into Rand's lunch period (3:753-755).
That is, she worked until 9:15 a.m. that day. Based on
the foregoing, I find that the timecard tells us which
days Rand worked over, and for how long. They were
the dates exceeding 5 hours, and the extra time is for the
period after 9 a.m. Thus, on 2 February Rand worked 15
minutes too long (exceeding her 5-minute grace period
by 10 minutes). On Friday, 6 February, she worked 30
miniutes over, to 9:30 a.m. Finally, Rand worked to 9:15
a.m. on both 9 February and 17 February. In other
words, Rand worked over on only 4 days, with three in-
volving 15 minutes and only one, in her first week at the
job, being for 30 minutes.
If we skip 4 February, when Rand worked only 45
minutes total , we see that her 5-day training period ex-
pired on 12 February.' 0 On only a single day thereafter
was Rand tardy in her performance-Tuesday, 17 Febru-
ary, when she worked to 9:15 a.m. Recall that Statler
testified she had orally warned Rand on more than one
day beginning her sixth day (3:737, 753), and that Rand
was late just about every day (3:743). Cotton echoed
Statler's reports (1:105-106), which adds no independent
verification except for his testimony that he, too, orally
counseled Rand on, as I found earlier, Tuesday, 17 Feb-
ruary (1:116-117). That date was, as I find, Rand's first
occasion to be late after her 5-day training period. Rand
was 15 minutes late that day (10 minutes beyond her 5-
minutes grace period). Thus, when Statler supposedly
conferred with Cotton on Wednesday, 18 February,
Rand had been late only once after her 5-day training
period. And the day Statler saw fit to confer with
Cotton, Rand was not late at all. Indeed, on Thursday,
19 February, the date Statler prepared the written state-
ment (G.C. Exh. 6) which she gave to Sutton, and the
date Cotton fired Rand, Rand was not late.
I credit neither Statler nor Cotton. Each testified with
an unfavorable demeanor. As I have described, the time-
card does not support Statler's testimony. Cotton' s testi-
mony about counseling Rand on 17 February, as I have
found, conflicts with Rand's description of their first
conversation on 19 February. Rand tells us Cotton asked
her on that occasion about her extra work the previous
day (17 February, actually). If Cotton had orally coun-
seled Rand on 17 February he clearly would not have
asked her on 19 February about the same incident. Rand
testified with a convincing demeanor, and I credit her. I
10 Even if 4 February is counted it is immaterial since Rand did not
work past 9 a.m on 12 February, her sixth day.
KIME PLUS, INC.
Cotton told him of Rand's response (3:819). Although
Cotton held his temper in check on 29 January, he ap-
parently was incensed at Rand 's response for he thought
enough of the incident to report it to Anderson.
From the momement of Rand 's response on 29 Janu-
ary, Cotton, I find, viewed Rand as a problem. More
specifically , he viewed Rand 's union steward status as a
problem in view of her nonsubmissive "attitude." Indeed,
as Rand was reading her termination notice on 19 Febru-
ary, it was Anderson, I find, whom Cotton telephoned
and to whom Cotton reported that he had "gotten rid of
the problem."
Cotton's inclusion of "loyalty" in the conclusion of the
termination notice is an apparent reference to Rand's re-
quest on 2 Febraury to confer with Air Force Sergeant
Bartley . I find Cotton simply seized that occasion to ini-
tiate the warning procedure under the CBA as a prelude
for his getting rid of a nonsubmissive union steward.
Sutton earlier that day had warned Rand that if she met
with Bartley about company business she would be ter-
minated . Heeding Sutton's advice , Rand abandoned her
plan to confer with Bartley . Cotton's warning was over-
kill, and it simply illustrates the intensity of his desire to
elminate Rand as the Union 's steward.
The name tag incident is of a similar character. It was
Rand's first day to work as a mess attendant in nearly 4
years . Rather than simply asking her about her name tag,
Cotton jumped at the chance to include that as a basis
for the warning issued to her . Absent Rand 's show of in-
dependence as a union steward , I find , Cotton would not
have included the name tag incident in the 2 February
warning.
Was Rand 's show of independence as the Union's
steward a motivating reason for Cotton 's issuing her the
warning of 2 February? The answer is yes. The evidence
as to the name tag and overkill on Rand 's request to
confer with Air Force Sergeant Bartley so indicate. Did
Respondent demonstrate the warning would have issued
over the serving line incident notwithstanding Rand's
status as union steward? Although Cotton did not specifi-
cally so testify, I note the complaint originated from Ser-
geant Bartley-Kime's customer. I find Respondent
would have issued the 2 February warning over the
serving line incident alone, and would have done so even
if Rand had not shown independence as union steward.
Accordingly , I shall dismiss complaint paragraph 13 to
the extent it alleges Respondent violated the Act by issu-
ing the warning of 2 February.
Respecting Rand 's termination of 19 February, I find
Rand's show of independence as union steward was a
motivating reason for Respondent's discharging her. I
further find Respondent failed to carry its burden of
demonstrating , by a preponderance of the evidence, that
it would have fired Rand absent her style of independ-
ence from Respondent in fulfiling her role as union stew-
ard. Before concluding Respondent violated Section
8(a)(3) of the Act by this conduct, as alleged, I first must
discuss the settlement and the reinstatement of Rand's
charge in Case 26-CA-12039. I address that subject
later.
4. Rand reinstated 27 February 1987
a. Facts
139
As we see in a moment, Rand was returned to work
effective 27 February. Respondent allegedly violated
Section 8(a)(3) of the Act by reducing Rand's hours be-
ginning 27 February (complaint par. 11).
Following her 19 February termination , Rand submit-
ted a grievance to the Union. Anderson testified that
Foster telephoned him in this time frame requesting
Rand 's rehire , a request Anderson declined . Anderson
testified he was under the impression Rand did not want
to work for Kime because she had told Cotton to fire
her (3:784-785). Mitura testified Foster telephoned him
and requested that Kime rehire Rand as a "favor."
Foster, Mitura testified , said Anderson had declined but
had said he would yield if Mitura wanted Rand rehired.
Mitura granted Foster's request , saying Rand woud be
returned with no loss of seniority . Mitura alerted Foster
it could take a couple of weeks to fit Rand back into the
schedule (3:856-858).
Anderson testified Mitura called him and said he felt
like giving Rand another chance . Anderson instructed
Sutton to utilize Rand as a call -in until she could be
worked into the schedule . Anderson so informed Foster
who expressed no complaint . Thereafter a hitch arose
over a prior commitment of Rand (3:785-786).
Rand testified that on 25 February Representative
Craig Foster telephoned her, informed her he had gotten
her job back, and told her to go get her schedule. Rand
telephoned Sutton who said the schedule would be avail-
able 2 days hence. After checking the schedule on 27
February and observing it called for her to work 5:30 to
7:30 a.m. that weekend (28 February-1 March) and the
next, Rand went to Sutton and informed her she had a
prior commitment for that Saturday but would be able to
work Sunday morning, 1 March . When Sutton said Rand
would be terminated again if she did not come in Satur-
day, Rand replied she would try to get out of the com-
mitment. Later that day, after trying unsuccessfully to
obtain someone else to meet her personal commitment,
Rand telephoned Sutton and so informed her. Sutton said
she would have to talk with Cotton. Rand then spoke
with Cotton who also said she would be terminated.
Rand then telephoned Foster and the reinstatement proc-
ess began anew (2:460-465).
There is a dispute about the nature of the commitment.
Rand testified it was to attend to the young (ages 2 and
4) children of her sister who had to attend a funeral out
of town (2:463-464). Anderson testified Sutton informed
him Rand planned to go to a dance Friday night and
wanted to avoid having to report for work early Satur-
day morning , 28 February (3:787). After apparently more
telephone calls by Foster with the parties Rand eventual-
ly returned to work on Sunday , 1 March . Rand's time-
card reflects she worked 2 hours that day, 2 hours each
day the following weekend , and 2 hours on Saturday, 14
March. Beginning Tuesday, 17 March , Rand's hours re-
turned to something akin to her 5 hours a day, for on 17
March, as Rand acknowledges , she worked 4.50 hours
(R. Exh. 15; 2:640). This fits with Sutton's testimony that
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the next schedule was prepared around 14 or 15 March
(2:368).
b. Discussion
I find the evidence insufficient to support complaint
paragraph 11. Respondent sought to work Rand into the
schedule as quickly as it could . The General Counsel
does not point to any evidence indicating Respondent
could have scheduled Rand for more than 2 hours' work
sooner than it did . I shall dismiss the complaint to the
extent it alleges an unlawful reduction of hours on and
after 27 February.
5. Case 26-CA-12039 settled ; undesirable schedule
assigned to Rand
a. Facts
Signed on 11 March , Rand 's charge in Case 26-CA-
12039 was filed (docketed) on 18 March. Rand alleges
Respondent violated Section 8(a)(3) by reducing her
hours since 1 February. The service letter sent by certi-
fied mail the same date to Respondent reflects the case
was assigned to Board agent William R . Yarbrough for
investigation . The green return receipt card reflects a de-
livery date to Respondent on 23 March.
Anderson testified he communicated by telephone
with Board agent Yarbrough concerning Rand's charge
and permitted him to take affidavits of (unidentified)
management personnel . Thereafter Anderson had two or
three discussions with Yarbrough. According to Ander-
son, Yarbrough said if Rand could return to the cash
register she probably would be willing to drop her
charge, and Foster told Anderson Rand was interested in
just working the cash register . Anderson told Yarbrough
Kime would return Rand to cashier (3:787-790). The
parties stipulated that on 15 April Rand signed a form re-
questing to withdraw the charge and that on 21 April
the Regional Director approved Rand 's request to with-
draw (1:28, 43-44). On Thursday, 16 April Rand re-
turned to the cash register (2:471). As her timecard re-
flects, Rand worked 8 hours that day, the first time since
January she worked 7 or more hours in 1 day (R. Exh.
15).
Much of Rand 's testimony is confusing concerning
whether she spoke to Yarbrough or Sutton first about re-
turning to the cash register (2:468-472, 550), and of Fos-
ter's role in the process of her return to the register
(2:551-552). She is clear , however, that it was Monday,
13 April when Sutton informed her she would be return-
ing to the register . Sutton described Rand's hours as 11
a.m. to 1:15 p.m., 3 to 6:15 p.m., and 10 p.m. to 12:30
a.m. for a total of 8 hours a day. When Rand asked why
she had to work such odd shifts in order to get 8 hours
Sutton said she was told Rand was to do cashier's work
only (2:472). Complaint paragraph 12, in conjunction
with conclusionary paragraphs 15 and 20, alleges Kime
violated Section 8(a)(1) and (3) of the Act beginning
about 15 April by assigning Rand "an undesirable work
schedule."
There is no dispute Anderson was in Blytheville on
Wednesday , 15 April and interviewed Rand in Sutton's
office (2:472-473, Rand ; 3:795, Anderson). Complaint
paragraph 7 alleges Respondent violated Section 8(a)(1)
of the Act when Anderson, about 15 April, "interrogated
an employee [Rand] regarding the employee 's union
membership , activities , and sympathies ." Rand secretly
tape recorded her conversation with Anderson (2:562).
The parties stipulated that a typed transcript (G.C. Exh.
24b) is correct except for minor and insignificant discrep-
ancies (3:811-814). After an opening greeting , the tran-
script of the brief conversation reads (with "R" for Rand
and "A" for Anderson):
A. The reason I asked you out here, since I was
here, I want to talk to you . Ms. Sutton gave you a
schedule, 1lam-1:15pm, 3pm-6:15pm, 10pm-
12:30am . Do you have a problem with that sched-
ule?
R. I don't like it.
A. I didn 't ask you if you like it , I'm saying do
you have a problem with that.
R. No.
A. Then you are going to accept that schedule?
R. Yeah.
A. Then you will be at work Thursday?
R. Yeah.
A. Okay. [Anderson then told Ms . Sutton she
could leave, and she did.] You will be doing strictly
cashier. You will work Monday through Friday.
Do you have any problem with that?
R. No.
A. I take it that you have no other problem now
with the company.
A. I don't have any problems.
A. How long have you worked here?
R. Five years in October.
A. Five . Have you talked to Mr . Foster lately?
R. No.
A. So you will be here Thursday?
R. Yes.
A. And you don't have anything else to say?
R. No.
A. This schedule that you have is [a] better
schedule than you had before , correct?
R. More hours, not better schedule.
A. Okay, then I will pay you for this time that
you came out . 30 minutes or so.
R. May I get my check now?
A. Oh I'm sorry . Are you still the union shop
steward?
R. Um hum.
A. Oh, you said Mr. Cotton talked to you once
and said that three of the people were slow and that
they had to speed up?
R. No he didn't say three, he said : Tell the slow
workers their hours will be cut.
A. And you felt that wasn 't right?
R. I didn't feel that it was my job . I didn't feel it
was right for him to tell me.
A. But you are the union shop steward.
R. Yes I am. I don 't know who he was talking
about . As far as I am concerned he could have been
talking about me.
KIME PLUS, INC.
A. One other thing . In case any of the other em-
ployees come to you, ask you since you are the
union steward . All of them that misses work be-
cause of [being] sick , we will put out a letter stating
it is required to bring in a doctor excuse.
R. It is?
A. Yes. Thank you for coming in.
Anderson testified that the reasons he interviewed
Rand were to confirm she had been returned to the
schedule, to ascertain whether she had any problems
with it, any problems generally , to determine whether
Foster had informed her that Kime would begin requir-
ing a doctor 's excuse whenever employees are out sick,
and to verify that she was still the union steward because
Foster had informed him the Union was considering
holding another election for the steward position (3:795-
796, 816-817, 826). The CBA calls for the Union to
notify Kime of the name of the duly designated shop
stewards (R. Exh . 2 at 12). Anderson testified he routine-
ly discusses problems with the stewards at other bases
such as Fort Campbell , Kentucky, and he therefore has a
need to know the identities of the stewards (3:818).
The General Counsel does not explain in what way
the conversation constitutes an unlawful interrogation.
Finding the questions of Anderson were not illegal under
the Act, I shall dismiss complaint paragraph 7. Although
Anderson hardly conveys any genuine interest (either in
the recorded interview or in his testimonial description)
in Rand 's satisfaction with the new schedule, or with
Kime generally , that deficiency goes more to the topic of
credibility as to motivation on other issues than it does to
the lawfulness of the stipulated conversation.
Rand credibly testified she signed the request to with-
draw the charge in Case 26 -CA-12039 following her
conversation with Anderson (2:550). She testified her un-
derstanding (of all the discussions) was that, in exchange
for her withdrawing her charge , she would be returned
to her cashier 's position and a full schedule (2:549-550).
As earlier mentioned , before her 30 January (2 February)
removal from the cash register, Rand worked 11 a.m. to
7 p.m. Monday through Friday. She would help clean
the line between meals (2:407). Counting her 1-hour
lunch period , Rand was on the premises 8 hours and paid
for 7 . Thus, she was paid for 35 hours a week (2:417;
3:615, 648).
The alleged undersirable nature of the work schedule
apparently refers to the fact the 8-hour shift covers three
meals" t and is arranged as a triple split-shift stretched
across a 13-hour time frame . As noted , when Rand asked
Sutton why the odd hours were scheduled , Sutton said
she had been told Rand was to do cashier 's work only.
Normally, a cashier not only cleans up around her area
at slack points during the meal period , but after the meal,
and after she turns over the money collected , she assists
with the mess attendant duties of cleaning the line,
sweeping , mopping, and putting up and labeling the
salads, for example (2:376-378, 380, Sutton). Cashier Jo-
" Lunch, dinner, and the midnight "brunch" as cashier only, Sutton
testified (2.293, 295, 381)
141
sefina C. Smith confirms this (3:669, 672-674), and An-
derson also so testified (3:791-792).
Sutton testified , however, that beginning 16 April she
restricted Rand to the basic duties of a cashier while the
line was open , and excluded her from the mess attendant
duties after the meal line closed (2:379). Sutton stretched
the schedule over three meals in order to achieve a
weekly total for Rand of 40 hours with no mess attend-
ant duties (2:382). She did so because that was her under-
standing of Anderson's instructions (2:341, 383, 394).
Cotton also confirms such was his understanding, and
that Rand wanted 8 hours a day but no mess attendant
duties (1:222, 188-189). Cotton testified no other employ-
ee was working a full 8 hours a day (1:188).
Anderson concedes he so instructed Cotton and Sutton
(3:790, 826, 839). According to Anderson, Foster had
mentined on a few (undated) occasions that Rand was in-
terested in working only as a cashier. Anderson thinks
Rand even mentioned that to him once, but he does not
recall the time frame (3:789). Sutton testified that in a
couple of casual conversations , apparently in January
before Rand was removed from her cashier's position ef-
fective 2 February, Rand had mentioned she thought the
cashier's position should not include the mess attendant
duties (2:379-380, 394).
Rand was not called in rebuttal to address this testimo-
ny. Even so, I find the statements of Rand on this sub-
ject were made before the 30 January notice she would
be removed as cashier , and that they expressed her
thoughts as to what duties the cashier 's position should
entail . Anderson testified with an unfavorable demeanor.
I find he was hostile toward Rand . His sharp and intimi-
dating remark to Rand on 15 April ("I didn 't ask you if
you like it, I'm saying do you have a problem with
that?") reflects that hostility. For reasons I will discuss in
a moment, Anderson 's hostility is based on Rand 's status
as union steward , and his animus extends back to Octo-
ber 1985, shortly before Kime succeeded to the service
contract at Blytheville. On the point at hand , I find An-
derson seized on Rand 's prior casual expressions as a
lame pretext for imposing an undesirable work schedule
on Rand in order to make life difficult for her so she
would quit.
In late September 1985 Anderson came to Blytheville.
As Rand credibly testified, Anderson interviewed her
and asked for her opinion as to the good employees and
bad (unproductive) employees . When he told Rand he
was hiring one shift leader from "off the street," Rand
protested , saying such was a promotion job under the
CBA, and that such hiring would not accord with the
union contract . Anderson replied it was his "goddamn
job," that he would do "what the hell" he wanted, and
would run the Company the way he wanted . Later that
week they had another conflict over the CBA's applica-
tion , the specifics of which Rand cannot recall, and An-
derson replied with similarly crude language as before
(3:630-632). She declined subsequent meetings with him
in order to avoid being cursed again (3:633). Conceding
he and Rand had conversations in September 1985, An-
derson testified that they discussed only the application
forms and hiring procedure (3:778-779). I credit Rand's
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more specific and definite testimony. Unlike Rand, An-
derson testified with an unpersuasive demeanor.
Beginning in October 1985 Rand was given a series of
warnings , including one suspension which the Union suc-
ceeded in having partially rescinded . After two warnings
in January 1986, Rand received no more reprimands
until after Cotton's arrival (1:221; 3:619-627, 634-636).
These early warnings were not fully litigated , and evi-
dence as to them was offered for a limited purpose. They
constitute background evidence only.
b. Discussion
I find Respondent was motivated by Rand's independ-
ence as union steward in returning her to the cashier's
position on a triple split-shift rather than returning her to
her prior shift of 11 a.m. to 7 p.m. Respondent did not, I
find, demonstrate it would have assigned her the triple
split-shift in the absence of her independent style of
union stewardship. Indeed, I find that 'Respondent's
whole object in scheduling Rand as it did was to make
conditions undesirable for her with the goal of forcing
her to quit. Accordingly, I find, as alleged, that Re-
spondent violated Section 8(a)(1) and (3) by its action.
6. The warnings and the 2 February 1987 demotion
to mess attendant
Earlier I mentioned that written reprimands issued in
1987 to Rand and to some other employees. I postponed
discussion on most of these until more events could be
described. The complaint alleges Respondent violated
Section 8(a)(3) of the Act by issuing written reprimands
to Rand (par. 13) and to Kathy Pollard and Josefina
Smith (par. 14). As to Rand the dates (the January and
February dates are supplied by the evidence rather than
in the complaint) are as follows:
30 January 23 April
2 February 24 April
17 April
The 24 April date was added to the complaint at the
hearing without objection (1:33). The 30 January warn-
ing (R. Exh. 8) was for Rand's 95-cent error which re-
sulted in her demotion from cashier to mess attendant ef-
fective 2 February. There is no contention Rand did not
make the error. The 2 February warning (G.C. Exh. 3)
covered three items (no name tag, request to meet with
military, and serving line incident), and I discussed these
items earlier. The other three I have not discussed. The
17 April warning (R. Exh. 11) was for being short 5
cents at lunch and 10 cents at dinner the day before. The
warning of 23 April (R. Exh. 12) was for being $2.20
over the day before. The 24 April warning was for being
short 10 cents the day before (R. Exh. 13).
Respecting the 17 April warning, Rand testified with-
out contradiction that when she questioned Sutton as to
why she was being warned over such minor errors,
Sutton replied that she (Sutton) had been told to give
Rand a warning for errors of any amount (2:478). Warn-
ings to employees for errors of any amount are consist-
ent with the evidence showing that Cotton did not want
the cashier's to make any errors. However, if Sutton's
comment is to be interpreted as meaning Sutton was to
focus on Rand , the Union 's steward , while ignoring
errors by other cashiers, then the comment reflects
animus.
There is no dispute Respondent erred in part on the 23
April warning. The $2.20 consists of two overage errors,
one for 90 cents and one for $ 1.30. Sutton conceded at
the hearing that the $1 . 30 error belonged to another
cashier, not to Rand (2:332-333). Of course, that still
leaves Rand with the 90 -cent error, an error she does not
dispute.
On 23 April (the 24 April warning) two errors were
made . Rand was short 10 cents and Josefina Smith was
over 85 cents . The result was a 75-cent overage error
shown on the Air Force records (G.C. Exhs. 14, 35,
35e). The General Counsel points to Rand 's testimony
she told Sutton on 25 April that shift leaders Elizabeth S.
Parramore and Geraldine Byrd said Rand's money count
matched the tape for the dinner meal. When Rand re-
quested Sutton to ask the military to verify its total,
Sutton refused, saying her practice was to accept what-
ever figures the military gave her (2:480-481).
Although Parramore confirms Rand 's testimony about
the figures being correct for the dinner meal , she con-
cedes she does not know whether Rand 's money count
for lunch on 23 April matched the cash register tape
(2:585-589). It was the lunch count , not the dinner
count, on which Rand was 10 cents short . Josefina Smith
was off (over) 85 cents at breakfast that 23 April, and
Smith received a warning (R. Exh. 7) on 24 April as did
Rand (1:153).
Sutton 's refusal to ask the military to verify its figures
is of questionable significance. First of all , the evidence is
confusing . Was Rand simply confused at the hearing by
referring to the dinner meal? Apparently not, for Parra-
more gave supporting testimony . Are we to assume
Rand also referred to the dinner meal when speaking to
Sutton on 25 April? No error is shown for the dinner
meal. As for simply considering Sutton 's response, the
record should tell us, but does not, whether the military
had any method of verifying cash amounts a day later.
By that time the cash perhaps had been deposited in a
bank or, if the military handles its own cash, commingled
with other funds . In short, Sutton's response does not
necessarily reflect an unreasonable position , particularly
in the absence of evidence showing that on other occa-
sions she has asked the military to recount the cash from
a meal . That brings us to the warnings issued-or not
issued-to the other employees.
By posthearing motion dated 3 August, the General
Counsel seeks to add the names of Milicent Carter and
Joanna Coss to complaint paragraph 14 which, as I men-
tioned earlier, already names Kathy Pollard and Josefina
Smith as having been issued unlawful reprimands. Re-
spondent objects by its 4-page opposition dated 7 August
on the basis the General Counsel (1) could have made
known the Government 's intention before the hearing
closed and (2) with the hearing closed Respondent is
unable to adduce rebuttal evidence . Because the warn-
ings to Carter and Coss were not fully litigated, I deny
KIME PLUS, INC. 143
the General Counsel 's 3 August motion to amend com-
plaint 14 by adding the names of Carter and Coss.
Although I have denied the General Counsel's motion
to amend , the warnings to Carter and Coss relate to the
General Counsel's contentions as to Rand . In view of
that , and because Carter, Coss, Pollard, and Smith are
the employees specifically referred to in the General
Counsel's brief, I shall list them and the dates of their
written reprimands:
Milicent Carter 2 and 9 February 1987
Kathy Pollard 3 February 1987
Josefina Smith 24 April 1987
Joanna Coss 1 and 2 June 1987
Carter's warning of 2 February (G.C. Exh. 16) reflects
that it was for tardiness and being 40 cents short. It
states, "This is your last warning." The 9 February repri-
mand (G.C. Exh. 15) states on its face it is for a cash
register overage, recites she has made "quite a few mis-
takes on the register," and informs Carter she is suspend-
ed for 3 days. Cotton, Sutton testified, dictated the warn-
ing (2:346). Sutton testified Carter subsequently was ter-
minated for not showing up for work (2:389). In fact,
Sutton named a total of six employees , including Carter,
who were terminated for various reasons during the first
quarter of 1987 after Cotton arrived , while no one was
terminated between her 1 November 1986 arrival and
that of Cotton 2-1/2 months later (2:384-393).
Pollard 's 3 February warning for being short on the
register (R. Exh. 6), and the fact she was a new employ-
ee, were covered earlier . Cotton testified he instructed
Sutton to issue the warning to Pollard ( 1:60), testimony
which Sutton confirms (2:317). Josefina Smith's 24 April
warning (R. Exh . 7) for being 85 cents over has been de-
scribed . Sutton testified Cotton instructed her to issue
this warning to Smith (2:319).
The only other warnings in the record, besides those
to Rand, are to Joanna Coss. The first one (G.C. Exh.
17) was for being $2.45 short. The second warning (G.C.
Exh. 18) issued the next day to Coss for being $9 over.
The first warning referred to Coss as a new employee.
Sutton confirms this, specifying the hiring date as 20
May (2:317). That brings us to the General Counsel's
contention.
As explained in the posthearing brief, the General
Counsel's theory is that Respondent issued the (written)
warnings to Carter, Pollard , Smith, and Coss as a cover-
up of its actions against Rand. Articulating further, the
General Counsel asserts the warnings to these others
issued only around the time some action was taken
against Rand (Carter, Pollard , and Smith) or (as to Coss)
during the investigation of Rand's second charge. In
light of this, and the numerous other cash register errors
from January to June for which no (written ) warnings
issued , the General Counsel argues that these few other
(written) warnings were issued merely to legitimize the
unlawful action taken against Rand (Br. at 21-22).
Countering , Respondent concedes there were errors
for which no written warnings issued . The important
factor to keep in mind , Respondent asserts, is that a
warning of some kind , oral or written , issued on all
errors . And the critical factor, Respondent continues, is
the failure of the General Counsel to adduce testimony
by a single witness that Respondent failed to warn the
employee on any of these numerous errors (3:381; Br. at
22). Respondent 's position is generalized to some extent
since the General Counsel did not introduce many of the
business records until the close of the hearing . Thus, no
witness was asked about each of the errors . Sutton testi-
fied she only issues written reprimands when she has to,
and then only after orally counseling the employee sev-
eral times (2:313). She further testified she "tells" (coun-
sels) the cashiers as to each error that is made (2:316).
Cashier Josefina Smith testified that each time she is over
or short she is told to be more careful (3:669, 674). The
General Counsel questions whether such "telling" consti-
tutes an oral warning as Respondent contends (posthear-
ing motion to strike at 1-2). As earlier noted, to consti-
tute a reprimand under the contractual discipline proce-
dure, a warning must be in writing.
Written reprimands did issue to a handful of employ-
ees after Cotton 's first arrival in Blytheville, but there
were numerous errors for which no written reprimands
issued. Although that discrepancy alone would not estab-
lish animus , the unrebutted testimony of Rand is that
Sutton was instructed (by Cotton, I find) to issue a writ-
ten reprimand to Rand for any error Rand made. Thus,
Respondent singled out Rand for strict enforcement of
Cotton's "get tough" (2:383, Sutton) policy while allow-
ing most everyone else to get by with an unrecorded
oral counseling . That disparity in treatment reflects
animus against Rand because she had demonstrated to
Cotton she would guard the independence of her posi-
tion as union steward.
Finally, the demeanor of Anderson, Cotton, and
Sutton throughout the testimony of each convinces me
Kime wanted to get rid of Rand because of her attitude
of independence in the performance of her steward's po-
sition . Although this desire originated, I find, with An-
derson in October 1985, it was not until Rand's "tell
them yourself" response to Cotton on 29 January that
Kime formed the determination to use Cotton's presence
and mission as the opportunity to eliminate Rand, the
union thorn, from Respondent's side . Respondent seized
on Rand's first mistake thereafter, the 95-cent error of
the same day, to punish her (transferring her to mess at-
tendant) and to begin building a record of written repri-
mands to support a later discharge.
For these reasons I find the 30 January warning to
Rand, with her associated transfer (demotion), and the
three warnings issued to Rand in April 1987 were moti-
vated by her union activities . I further find Respondent
has failed to show that it would have issued the warnings
to Rand or demoted her, absent her union activities. As
alleged in complaint paragraph 13, I find that Respond-
ent violated Section 8(a)(3) of the Act by issuing to
Rand the written reprimands of 30 January and 17, 23,
and 24 April . I shall order Respondent to expunge these
warnings from its files . As I found earlier, I shall dismiss
paragraph 13 as to the warning of 2 February . I further
find Respondent , as alleged in complaint paragraph 8,
violated Section 8(a)(3) of the Act by transferring Rand
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from her position of cashier to the job of mess attendant
effective 2 February.
Respecting the warnings to Pollard and Smith, the
General Counsel 's theory is insufficiently supported by
evidence showing the timing as more than coincidence. I
therefore shall dismiss complaint paragraph 14.
7. The alleged constructive discharge of Ola Mae
Rand on 30 April 1987
a. Facts
Recall that Rand returned to the cash register on
Thursday, 16 April, or a work schedule of 8 hours a day
spread over a triple split -shift of 11 a.m. to 1:15 p.m., 3
to 6:15 p .m., and 10 p.m. to 12:30 a .m. In a week of 5
days, the schedule would total 40 hours . Recall further
that Kime's winning bid on the service contract did not
allow for any overtime payments , and that effective 1
October 1986 the amended CBA deleted daily overtime
although, consistent with federal law, it required premi-
um pay of time and one-half for the first 8 hours after 40.
(Unlike Federal overtime law, after 48 hours the premi-
um pay increased to twice the regular hourly rate.)
As is reflected on Rand 's 1987 timecard (R. Exh. 15),
her time worked began increasing beyond 8 hours on
Tuesday, 21 April. On that day she worked an extra 15
minutes, and she did likewise on 23 and 24 April. For
some reason not explained in the record , Rand worked
only 5.50 hours on Monday, 27 April. The next day, 28
April, she worked 8.75 hours, and on Wednesday, 29
April Rand worked 8.50 hours. The longer overtime pe-
riods, Rand explains , resulted when the military called
for a "line extension ," meaning, apparently , an extension
of the meal period (3:616).
As Rand testified , on 29 April Sutton informed Rand
that Kime was removing her from the midnight meal for
Fridays because Rand was exceeding 40 hours a week
(2:481). The record does not clearly reflect it , but Rand
apparently was not opposed to that modification. How-
ever, when Rand reported for work at 11 a.m . the next
morning , 30 April , Ramona Britman 12 informed Rand
she (Rand) no longer would work the morning shift (11
a.m. to 1:15 p.m .) and would work only the evening
shifts of 3 to 6 : 15 p.m. and 10 p.m. to 12 : 30 a.m. (2:482).
Not only was Rand remaining on the midnight "brunch"
shift , but she was losing the 2 .25-hour morning shift.
Over 5 days Rand would lose 11.25 hours. Her daily
hours were being cut to 5.75 and her weekly hours to
28.75 . Rand went to the office and confronted Sutton
and Cotton.
Before summarizing the office conversation , I should
note Cotton 's testimony . Cotton testified he decided to
change Rand's hours because she was exceeding 40 hours
a week ( 1:121). (In fact, Rand had not done so.) Accord-
ing to Cotton , Sutton informed him Rand did not want
to work the midnight shift. He testified he changed
Rand's hours to two meals a day for 6 days a week to
yield 40 hours a week (1:122). Indeed, Cotton testified it
was Rand who initiated the change in her hours by in-
forming Sutton she could not work the triple split-shift
12 Rand describes Britman as her supervisor (2:482).
and requesting a change . Rand may well have told
Sutton she did not like the triple split-shift and the mid-
night hours . But it was not, I find , to satisfy Rand that
prompted Cotton to eliminate her lunch shift . Cotton's
testimony about Sutton 's report of Rand 's purported re-
quest was received on the limited basis of showing why
Cotton took the action he did ( 1:186-188).
Cotton testified the new schedule was posted before
Rand (on 30 April) quit ( 1:190). Rand also testified the
schedule was posted before she left, but she describes it
as showing the hours Britman had stated : 3 p.m. to 6:15
p.m. and 10 p.m. to 12 : 30 a.m . (2:483). Aside from the
fact I do not believe Cotton because of his unfavorable
demeanor , his description of the new schedule makes no
sense, and Respondent did not identify or offer the
posted schedule in evidence . Cotton implied the mid-
night shift (2.25 hours) was eliminated and Rand assigned
to 6 days rather than 5. The two meals , whether lunch
(2.25 hours) and dinner (3.25 hours) or dinner and mid-
night (2.25 hours), would total 5.50 hours per day. In 6
days that yields a total of only 33 hours , not 40 hours.
Sutton did not corroborate Cotton.
In the meantime , on Thursday , 30 April Cotton decid-
ed to discharge Rand because , if Cotton is to be be-
lieved , she again had a shortage error in her cash re-
ceipts the previous day (1:123, 177). The military record,
form 3125, shows no errors for the $475. 70 received on
29 April (G.C. Exh. 35). According to Cotton no error is
reflected because he found out about it before Sutton
took the money to the military office . Cotton's story is as
follows.
That 30 April, as Cotton sat in Sergeant Bartley's
office, Cotton just "happened to glance" at the cover
sheet Bartley prepares from the cash register tapes. (As
Sutton later testified , Bartley, using a grease pencil,
records the tape totals of each meal on a pad . Sutton
checks her money count against the figures Bartley
writes on the pad. 2 :299.) Presumably memorizing the
figures, Cotton went to Sutton and discovered that the
tally of money she had entered for each meal on DD
Form 1131 had a shortage . Cotton cannot recall the
amount of the shortage . Sutton advised Cotton the short-
age was from Rand 's cash register . Sutton made up the
shortage from Kime 's petty cash (1:177-180). Sutton pre-
sumably prepared a new form 1131 which she then car-
ried, with the money , to the military for checking against
the figures the military takes from the cash register tapes
(2:298-301 , 320). Recall that the military removes the
tapes from the cash registers after each meal (1:251;
2:295). Because the error was caught before Sutton car-
ried the cash and form 1131 to Sergeant Bartley's office,
the corrected form 1131 reflects no error, Cotton testi-
fied (1:179). The record does not contain a copy of form
1131 showing the meal totals for 29 April, but the mili-
tary's cover page (form 3125)13 for April 1987 lists a
zero in the error column for that date (G.C. Exh. 35).
According to Cotton , the reason he was in Bartley's
office on 30 April was to snoop. He was snooping be-
'a Form 3125 is not the "cover sheet" Cotton referred to which Bart-
ley prepares.
KIME PLUS, INC.
cause, as he explains , Kime already had received two
"unsats" that month and he wanted to avoid the third
one that would result in a costly penalty ( 1:179, 184).
Cotton testified he was there to make sure Kime cleared
the "last day" of the month without the third "unsat"
mark for a third error . But, Cotton testified , the "last
day" was not correct because of the error he detected
when he returned to Sutton and compared figures
(1:180).
Cotton 's testimony is rather suspect even discounting
the demeanor factor. First, the figures Cotton observed
in Sergeant Bartley's office were those for 29 April, not
the "last day" of April. The figures for 30 April would
not have been available until the following day. Second,
unless Bartley permitted Cotton to sit there and copy the
numbers, Cotton had to memorize the figures for seven
separate meals' 4 plus the total . In light of Cotton's in-
ability to recall other details throughout his testimony,
plus the amount of the shortage he discovered on return-
ing to Sutton on this occasion , I have no confidence he
would memorize the four or five digit numbers (dollars
and cents) which would be shown for each of the meals,
plus the five-digit grand total of $475.70.
Cotton testified he looked at Rand's record, observed
the three reprimands already issued to Rand that month,
and instructed Sutton to fire Rand at the end of her
(lunch) shift ( 1:123, 181). Actually , as Cotton concedes,
he had seen the three warnings earlier, when he returned
to Blytheville about the first of April and Sutton told
him about the three warnings ( 1:51-52, 183 ). According
to Cotton , later on 30 April Sutton informed him she had
gone to Rand and informed her she would receive a
"write-up" for being short the day before. The implica-
tion is that Sutton said nothing about a discharge, but
mentioned only a reprimand for another shortage. I re-
ceived the testimony on the limited basis of a report
made to Cotton ( 1:180-181). As it now appears the
report is not relevant to any decision made by Cotton, I
normally would disregard the report . However, I consid-
er it on the question of Cotton 's credibility . For that pur-
pose one might ask why Sutton would notify Rand about
a reprimand only, when Cotton , as he testified, told
Sutton to fire Rand at the end of her lunch shift.
Cotton was not a credible witness, and I find that the
only notification Rand received was Britman 's message
that Rand was losing her lunch shift, thereby reducing
her weekly hours from 40 to 28.75 . That brings us to the
confrontation in Sutton 's office . According to Cotton,
Rand came into Sutton's office about 3 : 15 p.m. and, in
the presence of Cotton and Sutton , threw down her
(base) pass and key to the "restroom ," said she was tired
of this shit , quit, and left . Neither Cotton nor Sutton said
anything (1:123, 176-177).
When Rand went to the office, Sutton and Cotton
were present . Cotton 's version of the conversation is lim-
ited, and to the extent it differs from Rand 's, I do not
credit Cotton . As Rand testified , she entered and told
Sutton , "You cut my hours." Sutton laughed and replied,
"Yeah, I cut your hours. Check the schedule." Rand
14 In the order they are listed on the 131 forms : midnight, breakfast,
lunch, dinner, carryout, and crash.
145
walked to the bulletin board just outside Sutton's office,
observed that her new hours were just as Ramona Brit-
man had described , returned inside and said she wished
she had time to call the Union . Sutton said she did. No,
Rand replied, Sutton's clock was 5 minutes slower than
the one they went by and she therefore had to go to
work. Rand worked for a few minutes, turned off her
register, went to Sutton's office and laid her base pass
and register key on Sutton's desk .' 5 "What are you
doing, are you quitting?" Sutton asked. Yes, replied
Rand , because every time she turned around some "bull
stuff" was going on . Rand asked if Sutton was aware the
union steward was to work 8 hours a day. Sutton replied
to the effect Rand was abusing her schedule . Rand left
and sent a grievance to the Union but has heard nothing
on it from the Union (2:482-486, 499-500).
Rand 's final contact with Kime was on 15 May when
she went to Sutton's office to pick up a check (2:494).
On that occasion Rand and Sutton talked in Sutton's
office for about 10 minutes . Rand testified she (secretly)
tape-recorded some 5 minutes of the conversation
(3:600). Although a transcript of the recording is in evi-
dence (G.C. Exh. 25c), I attach little weight to most of
it. A week earlier Rand had filed her charge in Case 26-
CA-12122 alleging Kime had constructively discharged
her. As the transcript reflects , Rand and Sutton disputed
various events on and before Rand's last day after Sutton
asked why Rand had named Sutton in the charge as ter-
minating Rand when Rand had quit. (On the charge in
Case 26-CA- 12122 Sutton is named as the employer rep-
resentative to contact .) Rand explained the termination
was the result of "the hassle that I was going through."
The General Counsel cites (Br. at 19) the transcript for
an admission by Sutton that Rand , on 30 April,
"handed" Sutton her pass, name tag, and register key,
saying "I quit" and "I can't take it any more . I can't
stand the pressure." (G.C. Exh. 25(c) at 2.) The General
Counsel apparently cites Sutton's words there because
Rand, at the hearing, failed to include them in her own
description of her 30 April departure scene in Sutton's
office . That is, the General Counsel relies on Sutton's ad-
mission to reinforce the constructive discharge theory.
b. Discussion
Did Respondent constructively discharge Rand on 30
April? There are two elements in the Board 's definition
of a constructive discharge . First, the burdens imposed
on the employee must cause, and be intended to cause, a
change in the employee 's working conditions so difficult
or unpleasant as to force the employee to resign . Second,
it must be shown that those burdens were imposed be-
cause of the employee's protected activities . Crystal
Princeton Refining, 222 NLRB 1068 (1976).
What were the changes in Rand 's working conditions?
First, the mid-April schedule of a triple split-shift was
different from her previous shift of a straight 8 hours.
15 Rand testified working until 4 p.m. (2 .484). Cotton places the time
about 3 : 15 p.m. when Rand quit ( 1:176). Rand 's timecard reflects credit
that day for 2.25 hours (R Exh . 15)-that is, her lunch shift of l i a.m to
1.15 p.m. Thus, however long Rand worked after the 3 p.m start of her
dinner shift , it was not recorded on her timesheet
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
True, it would provide Rand with 8 hours' work a day 5
days a week for 40 hours a week, whereas her prior shift
of a straight 8 hours gave her 7 paid hours a day or 35
paid hours a week . However, Rand did not like the new
schedule because of the triple split-shifts, with the third
shift being the midnight shift . Rand previously did not
have to work midnights . Moreover , previously her
workday was completed in 8 straight hours . Although
the record is not clear whether Rand had to leave the
base between her shifts, or simply had the option of leav-
ing, it is clear even an option to do so would generally
be an imposition because she had only a limited time
(less than 2 hours) before her 3 p .m. second shift, and the
longer break (nearly 4 hours) before her third shift
would serve merely to lengthen her workday and pre-
vent her from getting to bed at night until 1 a.m or later.
It cannot be said Rand agreed with Anderson on 15
April to the triple split -shift . In effect , Anderson imposed
it on Rand . The non-Board settlement was to restore
Rand to her former position of cashier . Anderson disre-
garded that settlement.
The second changed condition was the issuance of un-
lawful written reprimands to Rand in April. The vice of
these reprimands lies in the fact Kime singled out Rand
for written warnings for any mistake while allowing
others who made errors to escape with unrecorded oral
counselings.
Third, when Rand began working over 8 hours a day,
generally at the military 's direction to extend the meal
period , Respondent chose to change Rand's schedule,
again in derogation of the non-Board settlement of Case
26-CA-12039. This time, on 30 April, Cotton simply
eliminated Rand 's lunch shift at a cost to her of 11.25
hours per week-a loss of over 28 percent of her work.
At the CBA rate of $5.75 that would amount to nearly
$65 a week . A 28-percent reduction in an employee's pay
must be viewed as a shock condition for anyone , but par-
ticularly for someone earning less than $6 an hour. Al-
though not quite as severe a "starving out" as that in
Norris Concrete Materials, 282 NLRB 289 (1986), it was a
starving nonetheless.
The new schedule of 28.75 is 6.25 hours (about 17.86
percent) short of Rand 's old schedule of 35 paid hours
per week . Even if the matter is considered from that
view it still, I find, represents an intolerable change. A
reduction of nearly 18 percent is 10 percent better than a
28-percent reduction , but it still is a severe reduction. I
find these actions by Respondent to meet the Board's
standard of making working conditions so difficult or un-
pleasant as to force Rand to resign , as she did on 30
April.
Now for the second element . Were these conditions
imposed because of Rand's union activities ? The answer
sounds forth from the record with a ringing yes. First, as
I have found , Anderson assigned the undesirable work
schedule in mid-April to penalize Rand for being an in-
dependent spirit as a union steward. He so scheduled
her, as I have - found , with the express goal of forcing
Rand to quit. Thus, from the outset Anderson had no in-
tention of complying with the non -Board settlement. The
April warnings were added for the purpose of laying the
necessary foundation for discharging Rand should she
persist in working despite the imposition of the onerous
and undesirable work schedule.
In a final , and successful , effort to force Rand to quit,
Cotton severly reduced her hours. The fear Rand would
work more than 40 hours a week was easily resolved by
the solution Sutton conveyed to Rand on 29 April-no
more Friday midnight shifts . What happened , I find, is
that Cotton , either alone or after consultation with An-
derson later that day or early on 30 April, seized on the
potential overtime as a pretext for severely reducing her
hours by eliminating Rand 's lunch shift . What adds insult
as well as injury to the story is the fact Cotton admits
(1:122) he knew Rand did not want to work midnights,
yet in reducing her hours he eliminated her lunch shift
while leaving her on the midnight shift. The net effect
was to achieve Kime's goal of forcing Rand to quit. By
so doing, Respondent , I find , constructively discharged
Rand in violation of Section 8(a)(3) of the Act.
C. The Reinstatement of Case 26-CA-12039
Complaint paragraph 18(b) alleges that in view of cer-
tain conduct by Kime the Regional Director was rein-
stating the charge in Case 26-CA-12039. Objecting to
that reinstatement , Respondent argues (Br. at 39) the
mere occurrence of new unfair labor practices (which
Respondent denies) should not be the basis of revoking
settlements and reinstating charges except in the most ag-
gravated of circumstances . The General Counsel does
not address this subject in the Government 's brief, al-
though in the 2 July opposition to Respondent's objec-
tion and at the opening of the hearing, the General
Counsel cited and relies on Norris Concrete Materials, 282
NLRB 289 (1986). Coming before the evidence was ad-
duced, those expressions by the General Counsel do not
discuss whether the evidence here supports the Regional
Director's reinstatement of Case 26-CA-12039.
First, what postsettlement acts of Respondent have I
found unlawful? Passing, for the moment, the mid-April
assignment of Rand to the triple split-shift, Respondent
issued Rand three written reprimands in April (which
reprimands I have to be unlawful) and followed that by
constructively discharging Rand on 30 April.
If Respondent had properly reinstated Rand in mid-
April, it might be a close question whether the postsettle-
ment conduct justified reinstating the charge in Case 26-
CA-12039. The issue, however, is not close. As I have
found , General Manager Anderson, deliberately distort-
ing Rand 's casual expressions that she thought the cash-
ier should not have to perform mess attendant duties, de-
vised a triple split-shift for Rand, with no mess attendant
duties, for the express purpose of punishing her for her
nonsubmissive approach to her function as union stew-
ard. As I further found, Kime never intended to comply
with the settlement. As I have found, Anderson and
Cotton conspired in late January to eliminate the "prob-
lem" which Rand presented. Indeed , when Cotton fired
Rand the first time, on 19 February, Cotton reported to
(as I have found) Anderson that he had "gotten rid of
the problem ." But Mitura spoiled that episode of the
conspiracy when he granted the Union 's request to recall
Rand as a "favor." Rand , who had been removed from
KIME PLUS, INC.
her cashier 's position on 30 January (effective 2 Febru-
ary), and never restored to that position , filed her charge
in Case 26-CA-12039-on 18 March.
I find that Kime (particularly Anderson and Cotton)
intended from the beginning to undermine any settlement
of Case 26-CA-12039. Such conclusion is based on my
findings that the triple split -shfit was designed to make
life so difficult for Rand she would quit, that the April
warnings were issued to lay the necessary groundwork
to discharge Rand under the CBA in the event she failed
to quit soon enough , and that the reduction of her hours
on 30 April was implemented as a "tightening of the
screw" in the conspiracy by Anderson and Cotton to
starve Rand into quiting, which she did as a constuctive
discharge . Thus, I find the evidence overwhelmingly
supports the action of the Regional Director in reinstat-
ing the charge in Case 26-CA-12039.
In effect , Kime, through General Manager Anderson
and Regional Manager Cotton, perpertrated a fraud
against both Charging Party Rand and the Board by en-
tering into a settlement agreement with which it had no
intent to comply . As the Board observed in Norris Con-
crete, settlements play an integral role in resolving unfair
labor practice complaint allegations , and have an indis-
pensable role in implementing national labor policy.
Non-Board settlements , as the Board noted , are often the
only means available to avoid time -consuming and ex-
pensive litigation of unfair labor practice cases . "Their
viability must not be endangered by allowing respond-
ents who fraudulently enter into such agreements to ben-
efit from their misconduct ." Norris Concrete, supra at
291.
D. The 8(a)(4) Allegation
By complaint paragraphs 17 and 21 the General Coun-
sel alleges Respondent violated Section 8(a)(4) of the Act
by constructively discharging Rand on 30 April. Re-
spondent cites cases on this subject (Br. at 41-43), but
the General Counsel does not pause to brief the allega-
tion.
None of Respondent 's managers said anything to indi-
cate Anderson , Cotton , or Sutton was incensed over
Rand 's charge in the first case . Quite possibly they were.
However , there is nothing indicating Respondent con-
structively discharged Rand for the additional reason she
filed the charge in Case 26-CA-12039. I therefore shall
dismiss the complaint to the extent it alleges Respondent
violated Section 8(a)(4) of the Act.
CONCLUSIONS OF LAW
1. Kime Plus, Inc . is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Industrial , Technical and Professional Employees, a
Division of National Maritime Union, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by the following conduct:
(a) Transferring (demoting) Ola Mae Rand from cash-
ier to mess attendant effective 2 February 1987.
(b) Reducing the number of hours of work for Ola
Mae Rand from 2 February to 19 February 1987.
147
(c) Discharging Ola Mae Rand on 19 February 1987.
(d) Assigning Ola Mae Rand to an undesirable work
schedule (triple split-shift) effective 16 April 1987.
(e) Issuing written reprimands to Ola Mae Rand on 30
January and 17, 23, and 24 April 1987.
(f) Constructively discharging Ola Mae Rand on 30
April 1987.
4. Respondent did not violate Section 8 (a)(1) of the
Act by issuing a written reprimand to Ola Mae Rand on
2 February 1987, to Kathy Pollard on 3 February 1957,
or to Josefina Smith on 24 April 1987, or by interrogat-
ing Ola Mae Rand on 15 April 1987, nor Section 8(a)(3)
of the Act by reducing the hours of Ola Mae Rand from
1 March through 15 April 1987, nor Section 8(a)(4) of
the Act by constructively discharging Ola Mae Rand on
30 April 1987.
5. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent must:
(1) Offer Ola Mae Rand immediate and full reinstate-
ment to her former position of cashier or, if that position
no longer exists , to a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(2) Make whole, with interest , Ola Mae Rand for any
loss of earnings and other benefits Rand may have suf-
fered as a result of the discrimination against her. Back-
pay shall be calculated in the manner established in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed as described in New Horizons for the Retard-
ed.1e
(3) Remove from its files the written reprimands of 30
January and 17, 23, and 24 April 1987, and any reference
to them or to Respondent 's transfer (demotion) of Rand
effective 2 February 1987, its constructive discharge of
her on 30 April 1987, and notify Rand in writing that
this has been done and that such disciplinary actions will
not be used as a basis for futher personnel action against
her.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed17
" Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621. Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)
17 If no exceptions are filed as provided by Sec. 102 .46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 .48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent , Kime Plus, Inc ., its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Issuing written reprimands to employees , demoting
them , reducing their hours of work, assigning them to
undesirable work schedules , discharging them or con-
structively discharging them , or otherwise discriminating
against employees because of their activity on behalf of
Industrial , Technical and Professional Employees, a Di-
vision of National Maritime Union, AFL-CIO or any
other labor organization.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Ola Mae Rand immediate and full reinstate-
ment to her former position of cashier or, if that position
no longer exists , to a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make whole, with interest , Ola Mae Rand for any
loss of earnings and other benefits Rand may have suf-
fered as a result of the discrimination against her.
(c) Expunge from its files the written reprimands to
Ola Mae Rand of 30 January and 17, 23, and 24 April
1987, and any reference to them or to Respondent's
transfer (demotion) of Rand effective 2 February 1987,
or to its constructive discharge of her on 30 April 1987,
and notify Rand in writing that this has been done and
that such disciplinary actions will not be used as a basis
for futher personnel action against her in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Blytheville , Arkansas facility copies of
the attached notice marked "Appendix ." "' Copies of the
notice, on forms provided by the Regional Director for
Region 26 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
18 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."