Kmart Corp.

National Labor Relations Board - Board Decisions

Apr 12, 1995

316 N.L.R.B. 1175 (N.L.R.B. 1995)

1175
316 NLRB No. 179
KMART CORP.
1 On January 23, 1995, Administrative Law Judge Howard I.
Grossman issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The Respondent has excepted to the judge’s failure to consider R.
Exh. 386, a summary of reports on employee Bailey’s productivity,
which was missing from the exhibit file reviewed by the judge. We
have examined this exhibit and find no basis there for reversing the
judge’s conclusion that the Respondent’s discipline of Bailey for low
productivity violated Sec. 8(a)(3). We also note that there are no ex-
ceptions to the judge’s finding that a notice of correction issued to
Bailey on November 5, 1993, did not violate Sec. 8(a)(3).
3 We shall modify certain provisions of the judge’s recommended
Order and notice to accord with the Board’s standard remedial lan-
guage.
Kmart Corporation and International Brotherhood
of Teamsters Local 528, AFL–CIO. Cases 10–
CA–27290–2 and 10–CA–27371
April 12, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
The issues presented in this case1 are whether the
judge correctly found that the Respondent: violated
Section 8(a)(1) of the Act during the Union‘s organiza-
tional campaign by soliciting and promising to remedy
employee grievances and by threatening plant closure,
futility, and loss of benefits in the event of a union
victory; and violated Section 8(a)(3) and (1) of the Act
by disciplining and discharging employees Matthew
Bailey Jr. and Timothy Clyde Johnson.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kmart
Corporation, Newnan, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Offer Matthew Bailey Jr. and Timothy Clyde
Johnson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any rights or privileges previously en-
joyed, and make them whole, with interest, in the man-
ner set forth in the remedy section of the judge’s deci-
sion, for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them.’’
‘‘(b) Remove from its records any references to the
notices of correction issued to Matthew Bailey Jr. on
December 3, 1993, and February 15, 1994, and to the
discharges of Bailey and Timothy Clyde Johnson, and
notify both of them in writing that this has been done
and that these incidents of discipline will not be used
against them in any way.’’
2. Substitute the following for paragraph 2(e).
‘‘(e) Notify the Regional Director in writing within
20 days from the date of this Order what steps Re-
spondent has taken to comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT institute a new policy of soliciting
and promising to remedy employee grievances during
an organizational campaign.
WE WILL NOT tell employees that we might close
the plant if our operation costs go up if the employees
select the International Brotherhood of Teamsters,
Local 528, AFL–CIO, or any other labor organization,
as their collective-bargaining representative.
WE WILL NOT tell employees that they will never
get a contract if they select the Union.
WE WILL NOT threaten employees that their partici-
pation in union activities might cause them to lose
their benefits.
WE WILL NOT discourage membership in the Inter-
national Brotherhood of Teamsters, Local 528, AFL–
CIO, or any other labor organization, by discharging or
disciplining employees because of their union activities
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Case 10–RC–14423 was originally consolidated for hearing with
the unfair labor practice cases. The RC case involved the Union’s
objections to a Board election. The Union withdrew its objections
at the hearing, and the General Counsel moved to sever the RC case
from the unfair labor practice cases. I granted the motion.
2 Respondent’s name appears as stipulated at the hearing.
3 All dates are in 1993 unless otherwise specified.
4 The pleadings establish that White was an agent of the Company,
and a supervisor within the meaning of the Act.
5 G.C. Exh. 19.
or by otherwise discriminating against them with re-
spect to their hire, tenure of employment, or terms and
conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Matthew Bailey Jr. and Timothy
Clyde Johnson immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus in-
terest.
WE WILL remove from our records any references to
the unlawful notices of correction issued to Matthew
Bailey Jr. on December 3, 1993, and February 15,
1994, and to the unlawful discharges of Bailey and
Timothy Clyde Johnson and WE WILL notify them in
writing that this has been done and that these incidents
of discipline will not be used against them in any way.
KMART CORPORATION
Lesley A. Troope, Esq., for the General Counsel.
Robert O. Sands, Esq. and Gregory J. Hare, Esq. (Ogletree,
Deakins, Nash, & Stewart), of Atlanta, Georgia, for the
Respondent.
Keith Maddox, of Atlanta, Georgia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge in Case 10–CA–27290–2 was filed on January 14,
1994, and the charge in Case 10–CA–273711 on February
18, 1994, by International Brotherhood of Teamsters Local
528, AFL–CIO (the Union). A consolidated complaint issued
on June 17, 1994. It alleged that Kmart Corporation2 (Re-
spondent or the Company) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) on September 9,
1993,3 by soliciting and promising to remedy employee
grievances for the purpose of causing the employees to reject
the Union as their collective-bargaining representative. Re-
spondent also violated the same section of the Act on Octo-
ber 15 by threatening its employees with plant closure if they
joined the Union. It also violated the Act on December 1 by
telling employees that they would never get a contract if they
selected the Union; and on December 2 by threatening its
employees with loss of benefits if they joined the Union or
engaged in activities on its behalf.
The complaint also alleges that Respondent violated Sec-
tion 8(a)(3) of the Act by issuing written warnings to Mat-
thew Bailey Jr. (Bailey) on about November 19, December
3, and February 15, 1994, because of his union activities and
by discharging Timothy Clyde Johnson (Johnson) on Decem-
ber 29, and Bailey on February 15, 1994, for the same rea-
son.
A hearing was held before me on these matters on October
3–6, 1994, in Atlanta, Georgia. The General Counsel and the
Respondent thereafter submitted briefs. On the basis of the
entire record, the briefs, and my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND THE UNION’S STATUS
Respondent is a Michigan corporation, with an office and
place of business in Newnan, Georgia, where it operates a
distribution center. During the calendar year preceding
issuance of the complaint, a representative period, Respond-
ent received goods valued in excess of $500,000 from cus-
tomers located outside the State of Georgia. Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES—THE ALLEGED
VIOLATIONS OF SECTION 8(A)(1)
A. The Union Campaign, the Board Hearing, and
the Election
The union campaign to organize Respondent’s employees
began in June or July. On September 8, the Union filed a
petition to represent Respondent’s warehouse and distribution
employees, and a hearing was held on the petition on Octo-
ber 13 and 14. The election was held on December 21, and
the Company prevailed by a vote of 329 to 201. Thereafter,
the Union filed timely objections to the election which, as
noted, were withdrawn during the hearing.
B. The Alleged Solicitation of and Promises to Remedy
Employee Grievances
1. Summary of the evidence
Clinton White, the Company’s general manager of its
Newnan Distribution Center,4 testified that he became aware
of the union campaign in August. The Company’s employee
handbook states that it does not believe that union represen-
tation is in the best interest of the employees or the Com-
pany.5 Bailey testified that White held several meetings with
employees after the union campaign started. The first meet-
ing at which Bailey was present was attended by 120 to 150
employees. White stated that the Teamsters were a truck-
drivers’ union, and that the Company did not need ‘‘out-
siders’’ trying to run its business.
Thereafter, according to Bailey, further meetings of small-
er numbers of employees were held. Bailey attended one
1177KMART CORP.
6 The pleadings establish that Krajovic was an agent of Respondent
and a supervisor.
7 Bailey testified that White and other company officials were
present at the meeting addressed by Krajovic.
8 The Company also cites Cafe La Salle, 280 NLRB 379 (1986).
9 R. Br. at 19. The Company cites University of Richmond, 274
NLRB 1204 (1985); Mariposa Press, 273 NLRB 528 (1984); and
Ace Hardware Corp., 271 NLRB 1174 (1984).
10 The pleadings establish that Brockman was an agent of Re-
spondent and a supervisor.
such meeting in a conference room, at which Operations
Manager Frank Krajovic spoke to employees.6 He told them
that the purpose of the meeting was to discuss problems and
ways to solve them. Krajovic also asked employees to voice
any concerns they had about their working environment. Bai-
ley and another employee presented a list of 10 items, in-
cluding management’s attitude toward employees, and declin-
ing employee benefits.
About 2 or 3 weeks later, Assistant Manager of Repack
Gene Johnson came onto the floor, and asked for volunteers
to become part of a ‘‘problem solving committee.’’ Bailey
volunteered, and a meeting of the committee was held by
Krajovic. The meeting lasted for 5 hours. Krajovic presented
a list of problems which had arisen in meetings ‘‘we had
been having.’’ Bailey and other employees recommended
that the Company hire its own temporary employees instead
of using an employment service, so that it could raise the
benefits of regular employees. They also recommended a
‘‘middle man’’ between the employees and management.
Krajovic thanked the employees and said he hoped the Com-
pany had the solution to the problems. On cross-examination,
Bailey testified that the Company routinely held departmental
meetings on Fridays, at which it notified employees of
changes that were going on, and also listened to any ‘‘prob-
lems going on in the department.’’
Krajovic did not appear at the hearing. General Manager
White testified that Respondent had long had a ‘‘steering
committee’’ of which employees were members, and that its
purpose was to solve ‘‘operational problems’’ such as con-
veyors breaking down, the cutting of boxes, ‘‘that type of
issue.’’ The objective of these meetings was to ‘‘unload the
cartons and get the merchandise to the stores.’’ Asked
whether Krajovic had solicited any additional employee con-
cerns at the meeting he conducted, White asserted that he
was not aware of any such solicitation, because he was not
present at the meeting.7
2. Factual and legal conclusions
Respondent argues that its conduct was not unlawful be-
cause it was merely a continuation of an established practice
of soliciting employee grievances. The Company asserts that
the facts in this case are ‘‘virtually identical’’ to those in
Butler Shoes New York, 263 NLRB 1031 (1982). In that case
the employer’s representative made a speech to employees
reminding them of the employer’s ‘‘existing open door pol-
icy whereby the employees are encouraged to take up any
problem that they may have relating to their employment
with their supervisor.’’ The Board concluded that this was
not unlawful because the employer did not announce any
new policy, and did not state that its policy would change
(id. at 1063–1064).8 Respondent also argues that there is no
evidence of actual conduct for the purpose of encouraging
employees to vote against the Union.9
The record does not support the factual premise of this ar-
gument. Although there is evidence that the Company had a
practice of holding employee meetings, there is no evidence
that they concerned the employees’ working conditions or
complaints. Rather, they concerned operational problems.
Bailey testified that the meetings concerned ‘‘problems going
on in the department.’’ General Manager White made it more
specific—the meetings concerned operational problems such
as equipment failures, and the objective was to get the mer-
chandise out to the stores.
Respondent’s new policy was evidenced by Bailey’s
uncontradicted testimony that Krajovic listed problems that
had arisen in meetings with employees, and listened to sug-
gestions on how to solve these problems. The suggestions in-
cluded a change in the manner in which the Company uti-
lized temporary employees, and even included a rec-
ommended ‘‘middle man’’ between the Company and its em-
ployees. There is no evidence that the Company had pre-
viously engaged in such discussions with its employees. I
conclude that Respondent, during an organizational cam-
paign, instituted a new policy of soliciting employee griev-
ances concerning their working conditions.
It is well established that where an employer institutes a
new policy of soliciting employee grievance during an orga-
nizational campaign, ‘‘there is a compelling inference that he
is implicitly promising to correct those inequities he discov-
ers as a result of his inquiries and likewise urging on his em-
ployees that the combined program of inquiry and correction
will make union representation unnecessary.’’ Reliance Elec-
tric Co., 191 NLRB 44, 46 (1971). This principle has re-
cently been reaffirmed by the Board in a case where, as here,
the employer urged ‘‘problem solving’’ by his employees.
Embassy Suites Resort, 309 NLRB 1313 (1992).
For these reasons, I conclude that Respondent, by the ac-
tions described above, violated Section 8(a)(1) of the Act.
C. The Alleged Threat of Plant Closure
1. Summary of the evidence
As set forth above, a Board hearing on the Union’s rep-
resentation petition was held on October 13 and 14. Bailey
testified extensively on behalf of the Union during this hear-
ing. On the following day, October 15, Bailey was ques-
tioned about his testimony by General Manager White and
Personnel Manager Ken Brockman.10 The discussion, started
on the plant floor, became very heated and the parties went
to one of the offices. Bailey was accompanied by employee
Michael Payton, whose presence he had requested.
Payton testified that after the discussion of Bailey’s testi-
mony the Union was discussed, and the employees said that
they wanted one in order to improve their benefits and work-
ing conditions.
Payton affirmed that Personnel Manager Brockman said
that the warehouse was not making money, that it cost ‘‘16
million’’ to run it, and if this went up to ‘‘25 million’’ after
the Union came in, that somebody would ‘‘have to take a
long hard look at its costing more to run it.’’ Payton then
asked whether that meant that the Company was going to
‘‘close the warehouse down if the Union came in.’’ Accord-
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 R. Br. at 7.
12 Soltech, Inc., 306 NLRB 269, 271 (1992).
13 The pleadings establish that Kitchens was an agent of Respond-
ent and a supervisor.
14 The memo, from White to Johnson, is dated December 2, and
reads:
It is my understanding that you have said that you will vote
for the Company in the Union election if I assure you that you
will not be replaced by a temporary.
This memorandum will confirm that you have my assurance
that you will not be replaced by a temporary.
ing to Payton, Brockman’s answer was: ‘‘That it could—that
somebody was going to take a long hard look at the figures
if it cost us more.’’
Bailey corroborated Payton. Thus, Brockman said that if
the Company spends more money after the Union comes in,
somebody would have ‘‘think about it.’’ Payton then asked:
‘‘Are you saying that the Company is going to close down
if we get a Union?’’ Brockman’s answer: ‘‘Well, that’s
something that’ll be thought about.’’
Brockman testified that Payton asked whether the distribu-
tion center would close if the Union was selected by the em-
ployees. His answer, according to Brockman, was that a fa-
cility could not close because a union was voted in, but that
it could close because of economic conditions. White testi-
fied that Brockman said, ‘‘No, not that the Union would
close the building, economic conditions could close the
building.’’
2. Factual and legal conclusions
Respondent argues: ‘‘First, under all versions of the con-
versation, it is undisputed that Brockman did not state that
the facility would be closed in the event of unionization. In-
deed, there is no evidence that any of Respondent’s agents
ever raised the possibility of the facility closing.’’11
The latter assertion is contrary to Brockman’s and White’s
admissions that Brockman said the facility might close be-
cause of economic conditions. This is the only reasonable
meaning of their versions of his answer. Accordingly, the
only factual issue is whether Brockman acknowledged that
plant closure might take place because of the Union, or
whether he denied Payton’s question and asserted that eco-
nomic conditions might require closure.
The Company’s witnesses do not deny that Brockman said
the warehouse was not making money, and that if the cost
of operating went up after the Union came in, somebody
would have to take a ‘‘hard look at it.’’ They did not deny
that Payton asked whether the Company would close the
warehouse if the Union came in. The increased operating ex-
penses hypothecated by Brockman were attributed to a union
victory.
Payton was a current employee at the time of his testi-
mony, a factor which adds credibility to his testimony.12 Fur-
ther, he was corroborated by Bailey. I credit their account of
the conversation. In summary, a company agent told employ-
ees that if company expenses went up because of a union
victory, the Company would have to think about closing the
warehouse.
The Supreme Court in NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969), has stated:
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a ‘‘threat’’ of reprisal
or force or promise of benefit. He may even make a
prediction as to the precise effect he believes unioniza-
tion will have on his company. In such a case, how-
ever, the prediction must be carefully phrased on the
basis of objective fact to convey an employer’s belief
as to the demonstrably probable consequences beyond
his control or to convey a management decision already
arrived at to close the plant in case of unionization [au-
thority cited]. If there is any implication that an em-
ployer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment.
In this case, Respondent linked the increased costs, which
might cause it to close the plant, to a union victory. There
are no ‘‘objective facts’’ in Brockman’s statement on which
a reasonable belief of economic necessity might be based—
other than a union victory. This amounts to saying that a
union victory might cause Respondent to close the plant.
This statement was coercive, despite the fact that Brockman
phrased his statement as a possibility. NLRB v. Creative
Food Design, 852 F.2d 1295 (D.C. Cir. 1988), enfg. 283
NLRB 999 (1987).
Accordingly, I conclude that Respondent, by Brockman’s
statement described above, violated Section 8(a)(1) of the
Act.
D. The Alleged Threat that the Employees Would Never
Get a Contract if They Selected the Union
1. Summary of the evidence
Timothy Johnson, an alleged discriminatee, was a freight
handler who loaded trucks for shipment to the stores. His su-
pervisor was Danny Kitchens.13 On or about December 1,
Kitchens and Johnson engaged in a conversation. Johnson
discussed the Company’s use of a temporary service com-
pany for temporary employees. This was a subject the em-
ployees had discussed with management in the employee
meetings, and Johnson had raised the issue. According to
Johnson, Kitchens told him that the Company was not going
to replace existing employees with temporary help. Johnson
asked Kitchens to give him a writing to that effect, and
Kitchens refused.
Conversation about the Union continued, and Kitchens
said that if the Union came in, ‘‘they’re never going to get
a contract.’’ Kitchens had made a similar statement on other
occasions, according to Johnson.
Johnson testified that ‘‘the day after’’ he and Kitchens had
this discussion, General Manager White came to Johnson’s
worksite. He was angry, and handed Johnson a memo. ‘‘I’m
tired of everything that’s coming off the floor. Now, here’s
what you said you would do.’’14
1179KMART CORP.
Despite my assurance that I am giving you, you should vote
in the election based on what you feel will be in the best interest
of you and your family. [G.C. Exh. 14.]
15 Johnson preceded this quotation with the statement that White
didn’t specifically say that ‘‘I’ [Johnson] was going to lose every-
thing,’’ but then followed with the statement quoted above.
16 R. Exh. 366.
17 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
18 The infractions were skipping orders, a verbal confrontation
with another employee, 5 percent of errors in selecting 341 items on
one order, 2.2 percent of errors on picking 941 items on another
order, and failure to follow procedures in checking repack orders.
(R. Exhs. 52–56.)
Kitchens denied that he ever told Johnson that the Union
would not get a contract if the employees selected it as their
representative. However, Kitchens agreed that he discussed
with Johnson the subject of another union’s unsuccessful at-
tempt to get a contract with one of the Company’s plants in
Lawrence, Kansas. Kitchens said, ‘‘And I told him [Johnson]
that it could very well happen in Georgia. That the same
thing could happen in Georgia that did in Lawrence.’’
2. Factual and legal conclusions
White’s memo to Johnson corroborates that part of John-
son’s testimony pertaining to temporary employees. Kitch-
ens’ version denies an outright statement of futility, but his
admitted description of events in Lawrence where a union
failed to get a contract and his admission that he told John-
son that the ‘‘same thing could happen in Georgia’’ come
close to corroboration of Johnson’s testimony. Accordingly,
I credit Johnson’s version of this conversation.
I conclude that by telling employees that they would never
get a contract if they selected the Union Respondent thereby
violated Section 8(a)(1). Cannon Industries, 291 NLRB 632,
637 (1988).
E. The Alleged Threat that the Employees Would Lose
Benefits if They Selected the Union
1. Summary of the evidence
As set forth above, on December 2, General Manager
White delivered to Timothy Johnson the memo quoted
above. Johnson testified that the letter was a surprise to him,
and that he wanted the ‘‘guarantee’’ (against replacement by
temporaries) for all the employees.
Johnson sought and obtained an appointment with White
in the latter’s office on the afternoon of December 2. He told
White that he was not going to change his vote, and that it
was his right. They then discussed retirement benefits, and
White said that he did not want the employees ‘‘to lose ev-
erything they’ve already got.’’15
Respondent cross-examined Johnson with the aid of an un-
signed printed document which contains the date December
1 at the top. Johnson identified this document as having been
printed by him in connection with an unemployment com-
pensation hearing. The document relates events that assert-
edly took place on ‘‘Dec. 1st & Dec. 2.’’ The document ap-
pears to aver that the discussion with Kitchens and the later
meeting with White in his office took place on December 2.
It recites that, in White’s office, Johnson told the general
manager that he was in favor of the Union and had a right
to support it.16 Asked on cross-examination whether this doc-
ument accurately described the meeting in White’s office,
Johnson replied: ‘‘No, I don’t think so. I give an affidavit
for that, put all of the details in. This don’t have all of the
details.’’
White admitted having a meeting with Johnson. He denied
saying that he did not want the employees to lose ‘‘every-
thing they’ve already got,’’ but added ‘‘I would quote the
Lawrence situation.’’
2. Factual and legal conclusions
The printed date on White’s memo to Johnson (December
2), and Johnson’s testimony that he saw White the day after
his discussion with Kitchens establish that these events took
place on different days; the meeting with White was on De-
cember 2. The date of December 1 on the printed document
is inconsistent with the date of the meeting with White. Fur-
ther, Johnson affirmed that the document did not relate all
that took place in White’s office, and that this was contained
in his affidavit—which is not in evidence. Finally, the asser-
tion in the document that Johnson told White he favored the
Union and had a right to do so is consistent with his testi-
mony.
White obviously initiated a discourse with Johnson by his
December 2 memo. His denial that he made the statement at-
tributed to him by Johnson is weakened by his admission
that he may have ‘‘quoted the Lawrence situation’’—where
the employees failed to get a contract. White thus discussed
employee benefits after unionization, and I credit Johnson’s
testimony that he said that he did not want the employees
to lose everything that they had. This was an obvious ref-
erence to the employees’ union activities, and constituted a
threat that participation in such activities might cause them
to lose their benefits. This statement was coercive and viola-
tive of Section 8(a)(1). Intermedics, Inc., 262 NLRB 1407,
1415 (1982), enfd. 715 F.2d 1022, 1026 (5th Cir. 1983).
III. THE ALLEGED VIOLATIONS OF SECTION 8(A)(3)
A. Applicable Principles
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support the inference
that protected conduct was a motivating factor in an employ-
er’s decision to discipline an employee. Once this is estab-
lished, the burden shifts to the respondent to demonstrate that
the discipline would have been administered even in the ab-
sence of the protected conduct.17
B. The Discharge of Timothy Clyde Johnson
1. Summary of the evidence
a. Johnson’s employment history and union activities
Johnson was employed as a freight handler in April 1988,
and was discharged on December 29, 1993. Up until August
1992, he received five ‘‘counselings’’ for various infrac-
tions.18 A ‘‘counseling’’ is not a formal disciplinary proce-
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 One individual, apparently a union organizer, approached
Addison as he was removing the union sign, and touched his arm.
The exact details are not relevant.
20 R. Exhs. 57–59.
21 In a pretrial affidavit executed about 4 months later, Johnson re-
fers to the banner as the ‘‘Company’s Vote No’’ banner. (G.C. Exh.
22.)
22 R. Exh. 60.
23 G.C. Exh. 15.
24 G.C. Exh. 35.
dure. On the other hand, Johnson was commended with the
following statement placed in his personnel file:
Case Pack management wishes to express our appre-
ciation for the continued outstanding performance of
Clyde Johnson. Clyde’s productivity, quality of work
and attention to cleanliness are second to none. We
want to thank Clyde for his efforts thus far and encour-
age him to continue the fine work. [G.C. Exh. 50.]
Johnson did not receive any formal discipline or suspension
prior to his discharge.
Johnson engaged in handbilling on behalf of the Union,
and wore union insignia and a T-shirt. On December 1 and
2, company supervisors made the unlawful statements to him
outlined above.
b. The banner incident
An incident took place on December 20, the day before
the election, and it is on this incident that Johnson’s dis-
charge was predicated. A chain link fence surrounded the
plant, and a heavy vinyl banner saying ‘‘Vote No’’ was
placed on it near the guard shack and fastened to the fence.
The banner was about 6 by 8 feet in size, and was valued
at $135. Placed over it was a ‘‘Vote Yes’’ poster the size
of a bedsheet, which obscured the ‘‘Vote No’’ banner.
Union supporters were handbilling outside the fence. Prior
to the 7 a.m. shift, Company Representatives Randy Addison
and Gary McElroy noticed the ‘‘Vote Yes’’ sign and in-
formed General Manager White, who instructed them to re-
move it. They did so, placed it in their vehicle, and de-
parted.19 This action revealed the ‘‘Vote No’’ banner.
Johnson was handbilling at the time. He testified that he
approached the ‘‘Vote No’’ banner, and attempted to flip it
over the fence so that it could not be seen. However, it was
fastened to the fence at all four corners. Johnson testified
that he accidentally caused a rip about 4 to 5 inches in it,
and then desisted from attempting to flip it over the fence.
The tear did not interfere with the legibility of the language
on the banner.20 Johnson was carrying a cutting tool which
he used in his work.
Maintenance Manager McElroy testified that he observed
this, and that Johnson grabbed the right side of the banner
‘‘like he was trying to rip it off the fence.’’ It slipped out
of his hand, and he grasped it a second time and made the
tear, about 12–14 inches in length. Addison denied that John-
son attempted to flip the banner over. He merely ‘‘jerked’’
on it and did not attempt to grasp it from the bottom.
Johnson testified that, at the time he touched the sign, he
did not know that it was the Company’s property. It may
have been, Johnson surmised, the property of an employee
‘‘Vote No’’ committee. Later that morning, supervisors told
him that the sign belonged to the Company.21 Company
managers testified that similar banners were hung up inside
the plant, and that employees should thereby have known
that the banner on the fence was a company banner. How-
ever, Safety Manager Addison testified that he did not know
it was company property until December 20, when he in-
formed General Manager White about the ‘‘Vote Yes’’ ban-
ner, and that White then told him that it was covering a com-
pany banner.
c. The investigatory interview
Later that morning, Johnson was called to a meeting at-
tended by Company Managers Brockman, McElroy, and
Kitchens. Johnson testified that Brockman asked him why he
tore the sign. According to Johnson, he replied that he was
trying to flip it over, and that tearing it was an accident. If
he had wanted to, he could have torn it down.
Brockman testified that Johnson denied tearing the banner,
and that he asserted that it was somebody else. Brockman
executed a ‘‘record of verbal discussion’’ in which he re-
corded the foregoing as Johnson’s position.22 Brockman af-
firmed that, subsequent to his discharge, Johnson for the first
time admitted at an unemployment compensation hearing that
he had ripped the banner. McElroy and Kitchens corrobo-
rated Brockman.
d. Johnson’s discharge
The election was held the following day, December 21,
and, as indicated, the Company won the election. There was
an intervening holiday, and the Union filed timely objections
on December 28. General Manager White testified that he re-
ceived legal advice to get a written statement from Johnson.
On December 28, Johnson was called to the office of Person-
nel Manager Donna Carnes, and asked to give a written ac-
count of the incident. He refused, saying that he had already
provided the Company with his version of the incident. The
next day, Carnes discharged him. The separation report states
that the reasons were ‘‘gross misconduct and destruction of
Company property.’’23
2. Evidence of disparate discipline of other employees
a. Doug McElroy
Respondent’s records show that employee Doug McElroy
had an ‘‘altercation’’ with Safety Manager Addison in June
1994. McElory ‘‘reacted by using abusive language and
raised his arm in a quick motion.’’ When he did so, a bulb
he was carrying came out of his hand, and broke on the
floor. The employee’s position was that the damage was ac-
cidental. McElroy was issued a ‘‘Notice of Correction.’’24
b. Danny Ogletree
Respondent’s records show that employee Danny Ogletree
was involved in an incident in July 1994 ‘‘that started out
as horseplay and resulted in a fellow associate getting seri-
ously injured.’’ The Company’s position was that horse play-
ing, practical jokes, and ‘‘picking an employee’’ were inap-
propriate and ‘‘could lead to immediate termination.’’ The
employee’s position was that he felt bad at the way things
1181KMART CORP.
25 G.C. Exh. 38.
26 G.C. Exhs. 60–66. Johnson testified to the same effect. Re-
spondent objected to his testimony on the ground it was hearsay. I
overrule the objection in light of the corroboration in Respondent’s
records.
27 G.C. Exhs. 41–49.
28 R. Exh. 403.
29 R. Exh. 406.
30 R. Exh. 407.
31 G.C. Exh. 51.
32 R. Br. 35, fn. 17.
33 NLRB v. Western Meat Packers, 368 F.2d 65 (10th Cir. 1966);
Tennessee Packers, Inc., 339 F.2d 203 (6th Cir. 1964); and NLRB
v. Pacific Intermountain Express Co., 228 F.2d 170 (8th Cir. 1955).
turned out. The Company issued Ogletree a ‘‘Notice of Cor-
rection.’’25
The Company took numerous statements from employees
that show that the other employee was Tony Thompson, and
that Ogletree touched or jabbed him in the side as he went
by. Thompson called out to Ogletree that he had previously
told him not to do this, and chased after Ogletree. As he did
so, his head ran into a glass door and was cut, as were his
arms.26
c. Damage to company property
There are numerous examples of damage to company
equipment such as forklifts as the result of careless oper-
ation. The only results from these incidents were ‘‘records of
verbal discussion.’’27
General Manager White could not name any employee
other than Johnson who had been discharged for damaging
company property between January 1992 and December
1993. In all such instances, the employee received either a
verbal discussion or a notice of correction. The only em-
ployee discharged for ‘‘gross misconduct’’ was one who
threatened employees with physical violence. White initially
equated such conduct with Johnson’s ‘‘lying and blaming it
(the banner incident) on someone else,’’ but then agreed that
Johnson was not disciplined for blaming the incident on
someone else.
d. Employee theft
Company records show that employee Billy Fouts was dis-
charged for ‘‘misappropriation of Company property,’’ i.e.,
theft.28
e. The state unemployment compensation hearings
There were two state unemployment compensation hear-
ings in this matter. In the first one, in February 1994, both
Johnson and Respondent participated and were represented
by counsel. The administrative hearing officer found that
Johnson ‘‘tried to flip the sign over and when he did this the
employer’s sign tore.’’ Contrary to the employer’s conten-
tion, the hearing officer further found that Johnson had not
violated any written policy. Nonetheless, the hearing officer
concluded, Johnson ‘‘deliberately defaced the employer’s
property in an effort to turn the sign over to cause it not to
be visible.’’ Accordingly, benefits were not awarded.29
The state agency later issued a notice to the parties that
there had been a defective recording of the hearing, and or-
dered a new hearing and decision thereon.30
A second hearing was held before another hearing officer
in April 1994. Johnson again appeared with a representative,
but Respondent did not participate. The decision of the sec-
ond hearing officer issued thereafter, and states in part that
Johnson ‘‘was discharged for gross misconduct and destruc-
tion of company property. The claimant did not understand
the charge of misconduct but stated he accidentally tore a
company sign. The claimant is not aware of a rule which he
violated to cause immediate termination.’’ The hearing offi-
cer further stated that the employer had the burden of proof
that the employee was at fault by ‘‘a deliberate, willing, and
knowing action on his part.’’ Finding that the employer had
not met this burden, the hearing officer set aside the prior
decision and ordered payment of benefits.31
3. Factual and legal conclusions
a. The state agency decisions
Respondent argues that the first state agency decision has
more probative weight than the second, because ‘‘after full
hearing,’’ the first hearing officer found that Johnson ‘‘delib-
erately destroyed the Company’s banner.’’32 This argument
has no merit. The first decision is internally inconsistent. Re-
spondent’s decision not to participate in the second hearing
was its own, and the decision in that hearing stands as the
state agency’s final action in the matter. It is well estab-
lished, of course, that state unemployment compensation
findings as to the reasons employees were discharged have
probative value but are not controlling.33
b. The banner incident and the investigatory interview
There is no question that Johnson tore the banner. The
only issue is whether he tore it deliberately or accidentally.
For Johnson to have torn the sign intentionally would have
been an act without purpose or meaning. The legend on the
sign was not defaced, and the sign remained where it was
with its message entirely visible. If Johnson had intended to
remove the sign, he could have continued tearing it, or could
have cut it off with the tool which he was carrying. As it
was, the sign remained intact, with its message in place. The
speculations of Respondent’s witnesses about the position of
the tear, and Johnson’s arms, are not persuasive. He simply
tried to pull a heavy vinyl banner over the fence, without
success. My conclusion is consistent with the second unem-
ployment compensation decision. On these facts Respondent
could not have had a reasonable belief that Johnson inten-
tionally damaged the banner.
I have carefully considered the contested evidence as to
what took place during the investigatory interview on De-
cember 20. On the basis of the mutually corroborative and
detailed nature of the testimony of Respondent’s witnesses,
I conclude that Johnson did not then admit that he had torn
the banner, and, instead, attributed it to another employee.
Johnson was next asked, on December 28, to submit a
written statement, and declined to do so. On the next day,
he was discharged for gross misconduct and destruction of
company property.
The company records and White’s admission establish that
no other employee was discharged as a result of the incidents
described above: Nobody had ever been discharged for de-
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 R. Br. 39.
35 The General Counsel’s witnesses contended that White brought
the group to the front office by an indirect route, thus ‘‘parading’’
them in front of other employees. Respondent’s witnesses denied
this.
36 It was at the end of this discussion that Supervisor Brockman
made the unlawful threat of plant closure discussed above.
37 G.C. Exh. 7.
38 G.C. Exh. 25.
39 R. Exhs. 91–175.
struction of company property—despite evidence of damage
to company equipment such as forklifts.
What was Johnson’s ‘‘gross misconduct?’’ The term is not
defined anywhere, and the separation report does not specify
the nature of the alleged gross misconduct. At the hearing,
White first attempted to liken Johnson’s denial of respon-
sibility for the banner to another employee who threatened
physical violence. However, White admitted that Johnson’s
blaming another employee was not the reason he was dis-
charged. In sum, there is no evidence of ‘‘gross mis-
conduct,’’ whatever that is, and no other employee had been
discharged for destruction of company property.
Respondent acknowledges that Johnson was a union sup-
porter, that it knew this, and that Johnson voiced to manage-
ment his concerns about being replaced by a temporary em-
ployee.34
The Company first cites various authorities which hold
that an employer may discharge an employee for inten-
tionally damaging company property. As I have concluded
that Johnson’s destruction of the banner was accidental rather
than intentional, these authorities are inapposite.
The Company next argues that Johnson’s ‘‘alleged lack of
intent is not really germane,’’ since the Company could dis-
charge him based on ‘‘reasonable belief.’’ Belief of what?
Respondent cites Overnite Transportation Co., 245 NLRB
423 (1979), and recites the judge’s statement that the ques-
tion was whether the employer reasonably believed that the
employee committed the damage. Of course, in this case
there is no question that Johnson damaged the sign—the
issue is whether he did so intentionally. In Overnight, the
judge recommended dismissal on the ground there was no
proof of antiunion animus, and no evidence that the em-
ployee was a union protagonist. This case is inapposite.
Respondent also cites Woodruff & Sons, Inc., 265 NLRB
345 (1982), where the Board sustained an employer’s dis-
charge of an employee ‘‘because of repeated costly damage
to the truck he operated,’’ and ‘‘the opprobrious manner in
which he pressed the complaint.’’ The only damage in the
case at bar was an accidental tear in a $135 vinyl banner,
which remained legible. Woodruff is also inapposite.
Respondent’s violations of Section 8(a)(1) establish its
antiunion animus, and, as it has admitted, it knew that John-
son was a union protagonist. He had an excellent work
record. Accordingly, the General Counsel has established a
prima facie case that Johnson’s union activities were a factor
in his discharge. The Company has not sustained its burden
of proof that he would have been discharged in any event.
Accordingly, I conclude, by discharging him on December
29, the Company violated Section 8(a)(3) and (1) of the Act.
C. The Alleged Discrimination Against Matthew
Bailey Jr.
1. Summary of the evidence
a. Bailey’s work history and union activities
Bailey was hired in June 1989, and worked in the repack
area, packing orders. His pay rate was at the highest scale
for warehouse employees. Bailey joined the union campaign,
solicited card signatures, passed cut fliers, and wore union
insignia.
As indicated above, the Union filed its representation peti-
tion on September 8. Soon thereafter, Respondent abolished
individual production goals for employees which it had
maintained. As further set forth above, a hearing on the
Union’s petition was held on October 13 and 14. Bailey tes-
tified at the hearing on behalf of the Union for about 6
hours, longer than any other witness. At the unfair labor
practice hearing, he affirmed that at the representation hear-
ing he stated that he did not have to work as hard because
of the abolition of production goals.
The day after the hearing, on October 15, General Man-
ager White came to Bailey’s work station, together with Su-
pervisor Gene Johnson. White asserted that Bailey had stated
at the hearing that he only had to work 2 hours a day. Bailey
denied this, and was corroborated by employee Michael
Payton. According to White, he simply wanted to know
whether Bailey would work 8 hours a day for a full day’s
pay. Bailey’s version was that these inquiries were tied to
White’s assertion as to what Bailey had stated at the hearing.
The discussion became heated, and then moved to a front of-
fice.35
The dispute continued in the office, and Bailey suggested
that they wait until the transcripts of the hearing were avail-
able. Some of the company managers recommended that Bai-
ley be suspended. However, White did not do so. Bailey fi-
nally answered satisfactorily White’s question about working
8 hours, and the discussion ended.36
b. Bailey’s November 5 notice of correction
Respondent’s rules call for a verbal discussion after three
instances of tardiness within a calendar year, a written notice
of correction after six such instances, and, ultimately, dis-
charge for further tardiness.37
On November 5, Personnel Manager Donna Carnes called
Bailey into her office. According to Bailey, she said that the
Company had been looking over his file, and noted six in-
stances of tardiness. Accordingly, Carnes issued Bailey a no-
tice of correction listing the six infractions, the first on May
3 and the sixth on October 25. The notice states that Bailey
had received a verbal discussion after the first three in-
stances.38
Personnel Manager Carnes denied that she told Bailey she
was reviewing his file. Carnes affirmed that Respondent has
a clerical with the specific function of recording absences
and tardies. Respondent introduced numerous copies of no-
tices of correction of employees for tardiness before and after
the union campaign.39
1183KMART CORP.
40 The document, which Addison asserted was implemented in
April, states various purchasing hours for different shifts. Par. 4
reads: ‘‘No merchandise can be pre-boxed or left in a holding area.
All purchases must be paid for and taken out immediately.’’ R. Exh.
28. Tommie Lee Hall apparently paid for the merchandise and took
it out immediately.
41 The notice of correction reads:
Mr. Bailey attempted to leave the D.C. (Distribution Center)
without displaying for inspection a receipt for merchandise pur-
chased at the Company store by hiding one bag of merchandise
inside another large bag. When confronted and questioned, Mr.
Bailey admitted that the hidden bag of merchandise had been
purchased prior to the conclusion of his shift in violation of
D.C. policy. Mr. Bailey also hindered the ability of management
to complete their investigation of this incident by leaving the
D.C. with the receipt for the hidden bag of merchandise without
permitting management to copy it as requested. Mr. Bailey’s
conduct demonstrated a complete lack of cooperation with man-
agement and could be viewed as insubordinaton. Mr. Bailey is
placed on notice that any further similar acts on his part will
not be tolerated and may result in immediate dismissal.
Bailey’s written comment was: ‘‘This is very unfair.’’ (G.C. Exh.
24.)
42 G.C. Exh. 26.
43 R. Exh. 371.
c. Bailey’s December 3 notice of correction
The Company maintained a store where employees could
purchase, at a discount, items unfit for distribution. Bailey
asked another employee who worked on a prior shift,
Tommie Lee Hall, to purchase some mouthwash for him.
Hall did so, paid for the mouthwash and obtained a receipt.
She left the mouthwash and the receipt in a bag in the Com-
pany’s lobby, with Bailey’s name on it. A security guard no-
ticed this and watched the bag for several hours.
At the end of Bailey’s shift, he made some additional pur-
chases at the store, and placed them in another larger bag.
He then picked up the bag in the lobby, and placed it in the
larger bag. Bailey testified that he did this because he had
no other way to carry the smaller bag. There was a receipt
for the mouthwash in the smaller bag.
Security Official Leno Blandenburg gives a description of
what happened at the security desk. The security guard
(Jerry) asked Bailey for a receipt, and Bailey gave him the
receipt for the contents of the larger bag. The guard then
asked whether Bailey had another bag, and Bailey replied af-
firmatively, saying that it was inside the larger bag. Accord-
ing to Blandenburg, Bailey ‘‘took the (smaller) bag out.’’
The guard asked where the receipt was, and Bailey replied
that it was inside the smaller bag. At that point, Security
Manager Addison said that they had to go to a private office.
Bailey asked the reason, but complied with the request. Bai-
ley’s testimony is consistent with Blandenburg’s.
Inside the office, Bailey found the receipt for the mouth-
wash, and showed it to Blandenburg. Bailey testified that he
held it up in front of Blandenburg’s face, so that the latter
could read it. Blanderburg agreed that Bailey showed him the
receipt. He asked Bailey to give it to him, so that he could
make a copy. Addison, on the other hand, asserted that Bai-
ley kept the receipt in his hand and that Addison did not see
it. Addison contended that he first asked Bailey’s permission
to make a copy of the receipt, and then asked him to make
a copy himself. Blandenburg, however, testified that he asked
Bailey to give him the receipt. Bailey refused, said that he
felt he was going to be charged with theft, and insisted on
holding onto the only evidence of his innocence. Addison
and Blandenburg denied that Bailey was ever under sus-
picion of theft.
Addison asked Bailey how he obtained the mouthwash.
Bailey replied that Tommie Lee Hall purchased it for him.
Addison stated that ‘‘pre-purchasing’’ was against company
rules. Bailey replied that there was no such rule in the hand-
book, and Addison replied that it was common knowledge.
Respondent introduced a document which pertains to this
subject.40 Addison agreed that there is nothing in the docu-
ment prohibiting one employee from purchasing merchandise
for an employee on a different shift. Blandenburg testified
that prepurchases were common, and that Bailey’s case was
the first ‘‘pre-purchasing’’ matter he had ever been called
upon to investigate.
Bailey then told Addison: ‘‘Well, I have the receipt for it
. . . I’ll take it back there into the store and get my money
back.’’ Blandenburg said he could not do this.
Bailey had clocked out at 2:30 p.m., and it was by then
after 3 p.m. He said he was ‘‘off the clock,’’ had a doctor’s
appointment and was going to leave. Addison said that this
was insubordination. He also testified that no employee had
been detained more than 10 minutes for an investigation.
Bailey testified that Brockman agreed that it was not insub-
ordination in these circumstances. Although Brockman stated
that he did not give Bailey permission to leave, he did not
deny Bailey’s testimony.
Bailey asked the company managers: ‘‘Well, what are you
going to do about it?—it’s my merchandise bought with my
money.’’ The company managers then left, apparently to dis-
cuss the matter, leaving Bailey with Blandenburg. Bailey told
him: ‘‘You guys have me in here to write me up for theft
by stealing. I’m taking my merchandise and my receipt and
I’m going.’’
There is no evidence that the Company conducted any fur-
ther investigation. It did not discipline Tommie Lee Hall.
The following day, Respondent issued Bailey a notice of cor-
rection.41
d. Bailey’s February 15, 1994 notice of correction
(1) Allegations in the notice of correction
Respondent issued a notice of correction to Bailey on Feb-
ruary 15, 1994. It was this discipline, added to the prior no-
tices of correction, which precipitated Bailey’s discharge.
The notice of correction lists four alleged infractions: (1)
excessive amount of time in the bathroom, from 15 to 30
minutes; (2) excessive talking with other employees on Feb-
ruary 2, 3, and 4, 1994; (3) operation of a tram without au-
thorization; and (4) low productivity for February 1, 2, and
4.42
(2) Alleged frequent use of the bathroom
Bailey had been a diabetic for about 10 years at the time
of the hearing. A medical questionnaire which he filled out
in 1989 lists that and other impairments.43 Bailey testified
that he had been hospitalized twice for diabetes, and that his
file contained insurance forms documenting the insurance
company’s refusal to pay for it. The evidence includes a re-
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 G.C. Exh. 28.
45 R. Exh. 33.
46 G.C. Exh. 26.
47 R. Br. 66.
48 Other estimates list 52 acres.
49 R. Exh. 43.
50 R. Exh. 44.
51 R. Exh. 32.
52 R. Exh. 36.
53 R. Exh. 37.
quest for a payroll adjustment on behalf of Bailey, signed by
General Manager White in June 1992, with the notations
‘‘Diabetes, 6/23/92–7/1/92.’’44 White testified that this au-
thorized Bailey to take medical leave for the indicated pe-
riod.
Bailey testified that his diabetic condition required him to
urinate frequently. He further testified that the frequency of
his bathroom visits did not vary before and after the union
campaign and election.
Bailey was given a ‘‘verbal discussion’’ on January 7,
1994, by Supervisor Fuller for making trips to the bathroom
too frequently.45 Bailey testified that he told Fuller he was
a diabetic, and that these trips were the result of the medical
condition. According to Bailey, Fuller told him that he had
talked to Personnel Manager Brockman about the matter, and
that the company nurse had also talked to Brockman. Ac-
cordingly, the matter was ‘‘understood.’’ Fuller testified that
no more verbal discussions were issued to Bailey for this
reason, and that this had been the first one.
Personnel Manager Brockman, on the other hand, con-
tended that Bailey protested the verbal discussion and that
Brockman examined the file. Although there was a reference
to Bailey’s diabetic condition, there was no reference to con-
tinuing symptomatology. Brockman said he told Bailey he
needed another doctor’s report. Bailey testified that there was
a delay in his seeing his doctor because the latter’s wife had
passed away. Bailey obtained a new report on February 9,
but was fired before he could submit it.
The February 15, 1994 notice of correction states that Bai-
ley made an excessive number of visits to the bathroom, and
that their time span was 15 to 30 minutes.46 Bailey denied
this, and testified that he spent this amount of time on only
one occasion.
Respondent argues that Bailey’s bathroom visits were co-
ordinated with the visits of other employees.47 Group Leader
Lonnie Hill testified that Bailey and three other employees
appeared to be ‘‘wandering off to the bathroom together
more than once.’’ Hill further testified that the repack area,
where the employees worked, comprised one-ninth of 47
acres of the plant,48 in 4 ‘‘modules’’ on two different floors.
Hill did not know of any way by which the employees could
have communicated with one another to arrange coordinated
bathroom visits. He further agreed that one of the four em-
ployees alleged to have wandered off to the bathroom to-
gether was a female.
(3) Excessive talking
As noted, the February 15 notice of correction cites Bai-
ley’s alleged excessive talking on February 2, 3, and 4, 1994.
On February 4, Department Manager Fuller issued a report
of a verbal discussion with Bailey, citing reports from other
employees that Bailey was away from his job and ‘‘talking’’
for 18 minutes. The name of the other employee and the date
of the ‘‘talking’’ are not stated. Bailey’s recorded response
was a question to Fuller whether the employee he was talk-
ing to would also receive a verbal discussion, and the as-
serted answer was affirmative. Bailey also claimed that he
was being ‘‘watched’’ by management and some other em-
ployees.49
On the same day, Fuller issued another record of verbal
discussion, although it is unclear whether this was the same
or a different one for the same day. In this memo, Fuller as-
serts that some employees complained to him about Bailey’s
talking and alleged interference with work. Neither the
names of the employees nor the dates are stated.50
As to the first verbal discussion, Bailey testified that Fuller
told him he had wasted 18 minutes by talking to Sandra
Odum for 7 minutes before his break, and to Lendell Spears
for 3 minutes, plus another 8 minutes when Fuller did not
know where he was. Bailey testified that employees picked
up their orders from Sandra Odum, and discussed problems
with her, while Spears’ responsibility was to fill in merchan-
dise slots on the shelves. Bailey affirmed that it was nec-
essary to talk with these employees in the performance of his
job. The foregoing is the only verbal discussion listed in the
notice of correction pertaining to excessive talking on the
listed dates.
On January 4, 1994, Department Manager Fuller gave Bai-
ley a verbal discussion for talking with James Gordon on De-
cember 29, 1993, and January 3, 1994. As to the former
date, the memo alleges that while Bailey was on break, Gor-
don was not.51 Bailey testified that he was on a break. Fuller
testified that he did not know which employee initiated the
conversation and did not know of any discipline administered
to Gordon.
On January 24, 1994, Fuller had a verbal discussion with
Bailey on the ground that employee Joe Bowen had com-
plained that the employees could have had ‘‘a code,’’ i.e.,
could have gone home early, if Bailey ‘‘had cut out some
of his talking.’’52
Bowen testified at length about Bailey. He asserted that
Bailey talked a lot, sang while working, and quoted the
scriptures. Other employees ‘‘wouldn’t actually gather
around him,’’ but would ‘‘stop to listen, but not for too
long.’’ Bowen asserted that he himself was able to pick
items for his orders from the shelves and simultaneously ob-
serve Bailey. Bowen contended that Bailey was away from
his work station frequently, from 20 to 30 minutes at a
time.53 Bowen wore a ‘‘Vote-No’’ T-shirt and hat during the
union campaign.
Bailey had not received any discipline for talking prior to
the union election on December 21, 1993.
(4) Alleged unauthorized use of a tram
Respondent’s practice was to transport employees from
work areas to break areas by means of a tram pulled by fork-
lifts. The latter were customarily operated by employees. Au-
thorization to do so is set forth in a company handbook as
follows:
The rules below apply to all powered vehicles unless
otherwise stated.
1185KMART CORP.
54 G.C. Exh. 30.
55 G.C. Exh. 36.
56 R. Exhs. 39–41.
57 R. Exhs. 40, 41.
58 R. Exh. 348.
59 Respondent submitted voluminous data of the ‘‘picks’’ of other
order fillers. (R. Exhs. 78–89 and a ‘‘Summary’’ thereof (R. Exh.
386) which, according to Respondent, showed that Bailey’s ‘‘aver-
age’’ was considerably below the average, or ‘‘arithmetric mean.’’)
Respondent argues that the summary shows that Bailey’s production
was far below average. R. Br. 74. The problem is that the summary,
R. Exh. 386, which I received over the General Counsel’s objection,
is not in the exhibit file. I do not consider this absence to be signifi-
cant, because the underlying data was admitted, and because of the
other factors affecting this issue.
60 R. Br. 74.
61 R. Exh. 72, p. 10. Respondent issued a record of verbal discus-
sion to Bailey on December 3, 1993, for using ‘‘obscene and abu-
sive’’ language toward a security guard who was checking in a truck
when Bailey was trying to exit the gate. R. Ex. 19. Bailey denied
using profanity, and testified that it was the guard who had done so.
I consider it unnecessary to make credibility resolutions on this
issue, because this incident was not alleged in the complaint nor
cited by Respondent as a reason for Bailey’s termination.
62 G.C. Br. 22–23.
1. Only trained and licensed operators per authoriza-
tion by the DC Loss and Prevention and Safety Man-
ager will operate motive equipment.54
The handbook further provides that ‘‘only trained and au-
thorized personnel are permitted to operate such vehicles.’’55
Department Manager Fuller testified that Bailey was au-
thorized and licensed by the loss prevention & safety man-
ager to operate the forklift in question. However, Fuller ar-
gued, an employee must also get departmental permission to
operate a powered vehicle. Fuller agreed that this is not stat-
ed in Respondent’s written rules.
On February 4, 1994, Cassandra Mitchell was driving the
tram. She recently had foot surgery, and told fellow employ-
ees that it hurt her foot to operate the forklift. Bailey, Arthur
Hussie, and Kenneth Bailey drove the tram for her.
Mitchell, Hussie, and Kenneth Bailey received verbal dis-
cussions for unauthorized use of equipment.56 The record of
these discussions states that, in addition to being trained and
licensed, the employee needed permission of his supervisor.
Hussie and Kenneth Bailey are quoted in the reports as say-
ing that they had no knowledge of this requirement.57 Re-
spondent introduced a record of another, similar verbal dis-
cussion after the events litigated herein. That employee also
said he did not know that he needed departmental permis-
sion.58
Fuller contended that Matthew Bailey also received a
verbal notice. Asked why this alleged infraction was included
in the February 15 notice of correction, Fuller replied that it
was a ‘‘compiled situation that just kept growing.’’ Fuller
admitted that Bailey had previously operated the forklift
without permission. Fuller did not discipline him on this oc-
casion, he said, because Bailey was transporting Christmas
presents.
(5) Alleged low productivity
As indicated, Respondent had abolished individual produc-
tion standards in 1993. Nonetheless, according to Respond-
ent’s witnesses, employees were still evaluated to see which
were working to the best of their ability. Department Man-
ager Fuller testified that, because of Bailey’s alleged wasting
time, he decided to check Bailey’s production compared to
that of about seven other employees. There were about 15
employees in module 11, where Bailey worked, and about 50
in the repack department. Fuller agreed that Bailey some-
times worked in other modules.
Fuller concluded that Bailey had the lowest production of
those he examined. He reported his findings to Personnel
Manager Brockman, who conducted a more extensive inves-
tigation of 45 to 50 order pickers. Brockman concluded that
Bailey’s productivity was below the average.59
Brockman did not respond to a question as to Bailey’s
ranking among the 45 to 50 order fillers, and conceded that
it was possible that there were others with lower productivity
records. Respondent’s rationale for disciplining Bailey is that
the Company did not receive reports about other employees
‘‘wasting time, engaging in excessive conversation, and mak-
ing excessive trips to the bathroom.’’60
Department Manager Fuller testified that Bailey did not re-
ceive any verbal warnings for low production. Bailey was
not shown his statistics as compared to others. Group Leader
Lonnie Hill did not know of any employee (other than Bai-
ley) who had been disciplined for low production since the
abolition of individual production goals in mid-1993.
(6) Bailey’s termination
Respondent discharged Bailey on February 15, 1994, be-
cause he had received three notices of correction within a 12-
month period. Such discipline was set forth in Respondent’s
handbook.61
2. Factual and legal conclusions
(a) The November 5 notice of correction—tardiness
As noted, Bailey affirmed and Donna Carnes denied that
she told Bailey she had been reviewing his file. The General
Counsel argues that Respondent has not provided any reason
for a review of the file, that there were no more evaluations
of employees, and that the timing of the notice of correc-
tion—soon after Bailey’s testimony at the representation
hearing—establishes Respondent’s discriminatory motiva-
tion.62
Assuming arguendo that Bailey rather than Carnes is cred-
ited, the issue is whether the Company would nonetheless
have issued a notice of correction to Bailey for tardiness at
this time. Carnes’ testimony that the Company has a clerical
who routinely examines tardiness records is unrebutted, while
the Company has submitted documentary evidence of similar
discipline to other employees for the same offense.
I conclude that the Company’s violations of Section
8(a)(1) and Bailey’s prominence in the union campaign es-
tablish the General Counsel’s prima facie case. However, Re-
spondent’s evidence shows that it would have taken the same
action even in the absence of Bailey’s union activities. Ac-
cordingly, I shall recommend that this allegation be dis-
missed.
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) The December 3 notice of correction—the pre-
purchased mouthwash
The Company had a legitimate right to deter employee
theft, although Security Manager Addison denied that Bailey
was under suspicion of theft. The Company’s actions in this
instance went beyond any legitimate concerns. For several
hours, a guard watched a bag in the lobby with Bailey’s
name on it, without investigation. According to Respondent’s
witness Blandenburg, when Bailey talked with the security
guard, he took the smaller bag out of the larger bag and said
that the receipt was inside it. Instead of allowing Bailey to
produce it, Security Manager Addison insisted that they go
to a private office. Although Bailey asked the reason, he
complied with this request. The allegation in the notice of
correction that Bailey attempted to leave without displaying
the receipt is false.
Inside the office, Bailey took the mouthwash receipt out
of the bag, and allowed Blandenburg to read it. Once this
took place, the Company knew that the mouthwash had been
purchased. Its demand that Bailey release the receipt to the
Company for copying purposes—as stated by Bailey and cor-
roborated by Blandenburg—was unjustified. The Company
knew that the mouthwash had been purchased. Bailey’s fear
that he was being set up for a charge of theft, and his reluc-
tance to release the receipt were not unreasonable.
The evidence is insufficient to establish that the Company
had any rule prohibiting one employee from purchasing
items for another employee on a different shift. Yet the no-
tice of correction falsely asserts that this was a violation of
company policy.
Since there was no issue of theft, and no company rule
being violated, what was the need for further investigation?
Indeed, there was none, and Tommie Lee Hall, who pur-
chased the mouthwash was not disciplined.
The notice of correction states that Bailey’s conduct could
be ‘‘viewed’’ as insubordination. There is no merit to this
accusation. Bailey had given the Company all the informa-
tion it needed. No employee had previously been detained
more than 10 minutes. Bailey’s shift had ended over 30 min-
utes before the events in the office.
I conclude that this incident amounts to company harass-
ment of Bailey because of his union activities. Accordingly,
the discipline was violative of Section 8(a)(3) and (1).
(c) The February 15 notice of correction
(1) Bailey’s visits to the bathroom
It is undisputed that Bailey had diabetes, and that the
Company knew it and had authorized medical leave for this
purpose. I credit Bailey’s uncontradicted testimony that this
condition required him to visit the bathroom more than
would have been customary, and that the frequency of his
visits did not change before and after the union campaign
and election.
Personnel Manager Brockman claimed that the file did not
reflect Bailey’s need for frequent bathroom visits. If so, there
is no explanation for the Company’s toleration of Bailey’s
trips to the bathroom before the union campaign. Further,
Bailey testified that Supervisor Fuller told him that
Brockman had talked with the nurse, and that the matter was
understood. I credit Bailey’s testimony. An inference that the
Company accepted Bailey’s continuing symptomatology is
warranted based on the fact that Fuller issued no further
verbal discussions about the matter between January 7, and
February 15, 1994—when, presumably, Bailey continued to
use the bathroom with the same frequency.
Lonnie Hill’s testimony about coordinated visits to the
bathroom is in part improbable—there was no way the em-
ployees could have communicated with one another—and in
part absurd.
Despite the fact that Bailey had a medical condition which
created symptoms of which the Company had knowledge and
had tolerated, the notice of correction lists the frequency of
the bathroom visits as evidence of poor performance. I con-
clude that the real reason for this listing was Bailey’s union
activities.
(2) Excessive talking
The only charge for excessive talking on one of the dates
cited in the notice was Bailey’s alleged wasting 18 minutes
on February 4, 1994—in part for talking with Sandra Odom
and Lendell Spears. Bailey’s description of their duties and
the necessity for order pickers to talk with them is unrebutted
and credited.
Bailey’s talking with James Gordon on January 4, 1994,
is not listed in the notice of correction. It is undisputed that
Bailey was then on a break. Although Supervisor Fuller stat-
ed that Gordon was not on a break, he did not know who
initiated the conversation, nor of any discipline administered
to Gordon.
Joe Bowen’s testimony is not persuasive. Although he ini-
tially contended that other employees listened to Bailey sing-
ing and quoting the scriptures, he tempered this by adding
that it was ‘‘not too long.’’ Bowen’s testimony that he could
pick orders accurately and simultaneously watch Bailey is
implausible. His assertion that Bailey was frequently away
from his work station for 20 to 30 minutes is not supported
by any credible evidence. I consider Bowen to have been a
biased witness.
There is no evidence that Bailey’s talking at work was any
different after the union campaign and election that it was
before that time. He had not previously received any dis-
cipline for this reason. And yet, after the campaign and elec-
tion, the Company started issuing memos on this subject to
him. They were unwarranted in the case of the conversations
with Odom and Spears, and unlisted in the conversation with
Gordon—plus the fact that Gordon received no discipline for
the same conversation.
For these reasons, I conclude that the ‘‘excessive talking’’
citation in the notice of correction was discriminatorily moti-
vated.
(3) Bailey’s driving the tram
It is undisputed that Bailey had a license to drive powered
vehicles from the Company’s loss prevention and safety
manager, as required by the Company’s rules. It is also un-
disputed that he and two other employees drove the tram for
an employee who had undergone foot surgery. These em-
ployees did not get departmental approval to drive the tram
on that day, and the only factual issue is whether there was
a company rule requiring them to do so.
The Company was unable to point to any clearcut docu-
mentary evidence of such a rule. Although it issued verbal
1187KMART CORP.
memos to the other two employees who helped Cassandra
Mitchell, both stated that they had no knowledge of any such
rule. Seeking to buttress its position, the Company intro-
duced a similar discipline of another employee—yet he also
professed lack of knowledge that there was a rule requiring
department permission before operating the tram. Supervisor
Fuller had previously seen Bailey driving the tram without
departmental permission, but did not give him a verbal dis-
cussion.
I conclude that either that there was no such rule, or that
it was not enforced.
The other employees received verbal discussions for this
alleged infraction. However, in Bailey’s case, it was listed on
a notice of correction which led to his termination. I con-
clude that this listing was discriminatorily motivated.
(4) The alleged low productivity
Company Managers Fuller and Brockman engaged in ex-
haustive analysis of company records in order to compare
Bailey’s production to that of other order pickers. They con-
cluded that he was below average. Personnel Manager
Brockman did not know Bailey’s ranking among the 45 to
50 order pickers, and conceded that other employees may
have had lower productivity. Bailey was not given any warn-
ing about his productivity. He was not allowed to compare
his productivity with that of other employees, nor to rebut
the Company’s charge. It simply appeared in the notice of
correction.
The Company concedes that it did not pay attention to
other employees who may have had productivity records
lower than Bailey’s. The Company’s reason for this disparate
treatment—that the other employees did not commit the
same infractions as did Bailey—is not supported by examina-
tion of those alleged infractions as set forth above. No other
employees received a warning for low productivity, and Bai-
ley’s discipline for this reason was the only one issued by
the Company since it abolished individual production goals
in mid-1993.
I conclude that this discipline was discriminatorily moti-
vated.
(d) Summary of the February 15 notice of correction,
the other notices, and Bailey’s discharge
With the exception of the notice of correction for tardi-
ness, none of the other notices was supported by credible
evidence. Accordingly, the December 2, 1993 and February
15, 1994 notices of correction were violative of Section
8(a)(3) and (1). Bailey therefore did not have three justifiable
notices of correction within a 12-month period, and termi-
nation for this reason was not warranted. Indeed, the entirety
of the evidence shows that after the union campaign and
election, Respondent engaged in numerous efforts to fab-
ricate evidence against Bailey, the leading union supporter.
I conclude that his discharge on February 15, 1994, was also
violative of Section 8(a)(3) and (1).
In accordance with my findings above, I make the follow-
ing
CONCLUSIONS OF LAW
1. Kmart Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters Local 528,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Instituting a new policy of soliciting employee griev-
ances and promising to remedy them during an organiza-
tional campaign.
(b) Telling its employees that Respondent might close the
plant if operating costs went up after the employees selected
the above-named Union as their bargaining representative.
(c) Telling employees that they would never get a contract
if they selected the above-named Union as their bargaining
representative.
(d) Threatening employees that their participation in union
activities might cause them to lose their benefits.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by:
(a) Discharging Timothy Clyde Johnson on December 29,
1993, because of his union activities.
(b) Issuing a notice of correction to Matthew Bailey Jr.,
on December 3, 1993, concerning certain alleged trans-
gressions with respect to Bailey’s purchase of a company
product, where the real reason was Bailey’s participation in
union activities.
(c) Issuing a notice of correction to Bailey on February 15,
1994, for alleged excessive amount of time spent in the bath-
room, excessive talking, operation of a tram with authoriza-
tion, and low productivity, where the real reason was Bai-
ley’s participation in union activities.
(d) Discharging Bailey on February 15, 1994, assertedly
for having three notices of correction within a 12-month pe-
riod, where two of the notices were themselves unlawful, and
where the reason for Bailey’s discharge was his union activ-
ity.
5. The foregoing unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act except as here
specified.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it be or-
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
It having been found that Respondent unlawfully issued
notices of correction to employee Matthew Bailey Jr., on De-
cember 3, 1993, and February 15, 1994, and discharged him
on February 15, 1994; and unlawfully discharged employee
Timothy Clyde Johnson on December 29, 1993, it is rec-
ommended that Respondent be ordered to offer them rein-
statement to their former positions, without prejudice to their
seniority or other rights and privileges, or, if any such posi-
tion does not exist, to a substantially equivalent position, dis-
missing if necessary any employee hired to fill the position,
and to make them whole for any loss of earnings they may
have suffered by reason of Respondent’s unlawful conduct
by paying each of them a sum of money equal to the amount
he would have earned from the date of his unlawful dis-
charge to the date of an offer of reinstatement, less net earn-
ings during such period, to be computed in the manner estab-
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 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 January 1,
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 281 NLRB 651 (1977).
64 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
65 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).63
I shall also recommend that Respondent be ordered to ex-
punge from its records all references to the unlawful notices
of correction which it issued to Matthew Bailey Jr., and no-
tify him in writing that this has been done, and that Re-
spondent will not rely on either of the notices as a basis for
future discipline of him.
I shall also recommend the posting of notices.
On these findings of fact and conclusions of law and on
the entire record, I recommend the following64
ORDER
The Respondent, Kmart Corporation, Newnan, Georgia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instituting a new policy of soliciting employee griev-
ances and promising to remedy them during an organiza-
tional campaign.
(b) Telling employees that Respondent might close the
plant if operating costs went up after the employees selected
the Union as their bargaining representative.
(c) Telling employees that they would never get a contract
if they selected the Union as their bargaining representative.
(d) Threatening employees that participation in union ac-
tivities might cause them to lose their benefits.
(e) Discouraging membership in International Brotherhood
of Teamsters Local 528, AFL–CIO, or any other labor orga-
nization by discharging or otherwise disciplining employees
because of their union activities, or by discriminating against
them in any other manner with respect to their hire, tenure
of employment, or terms and conditions of employment.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Timothy Clyde Johnson and Matthew Bailey Jr.
reinstatement to their former positions or, if any such posi-
tions no longer exist, to substantially equivalent positions,
dismissing if necessary any employee hired to fill that posi-
tion, and make each of them whole for any loss of earnings
either may have suffered by reason of Respondent’s unlawful
discharges of them, in the manner described in the remedy
section of this decision.
(b) Expunge from its records all references to its notices
of correction issued to Matthew Bailey Jr. on December 3,
1993, and February 15, 1994, and notify Bailey in writing
that this has been done and that Respondent will not rely on
either notice as a basis for future discipline of him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its facility at Newnan, Georgia, copies of the
attached notice marked ‘‘Appendix.’’65 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.