Lance, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1979

241 N.L.R.B. 655 (N.L.R.B. 1979)

LANCE, INC.
Lance, Inc. and Bakery, Confectionery and Tobacco
Workers International Union, AFL-CIO, Local,
111.1 Cases 16 CA-7491, 16 CA-7741, and 16
CA-7911
April 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEILO
AND TRUESDALE
On December 20, 1978, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
We agree with the Administrative Law Judge, es-
sentially for the reasons given in his Decision, that
Respondent orally promulgated an unlawfully broad
no-solicitation/no-distribution rule of September 8,
19774 and that Respondent posted a facially valid no-
solicitation/no-distribution rule on September 20, but
that Respondent permitted employees to solicit for
charitable organizations and for commercial concerns
on company premises while taking action against cer-
tain employees for similarly soliciting on behalf of the
Union.5 In this regard, we concur in the Administra-
'The name of the Charging Party appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dr' Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
At various places in his opinion, the Administrative Law Judge refers to
employees Randy Hadlock as the recipient of an unlawful oral reprimand.
The record shows the name of the employee in question to be Randy Tad-
lock. We hereby correct this error.
We shall modify the recommended Order by including a paragraph re-
quiring Respondent to cease and desist from orally reprimanding employees
for soliciting on behalf of the Union in violation of an unlawful no-solicita-
tion rule and by altenng par. 2(a) to require Respondent to take appropriate
affirmative action to remedy only the discharge of employee Richard Saye,
inasmuch as we find herein that Respondent lawfully terminated employee
David Dodson.
'All dates herein are in 1977, unless otherwise indicated.
Employee Stuart testified that commercial products of Avon. Home Inte-
nor, and Stanley were sold in the plant and that charitable solicitation on
behalf of the Girls Scouts, the United Way, and the blood bank was likewise
allowed. She also stated that a blood bank solicitation had occurred as re-
cently as a few days before the hearing. Stuart further asserted that she
herself, as well as one of Respondent's supervisors, Ann Tate, had sold wom-
en's lingerie at the facility and that she had not been required to obtain
tive Law Judge's findings that Respondent violated
Section 8(a)(1) of the Act by orally reprimanding em-
ployees Steve Thomas and Randy Tadlock and by
threatening employee Virginia Stuart with discharge
and Section 8(a)(3) and (1) by discharging employee
Richard Saye because they had engaged in solicita-
tion in support of the Union.6 We find further, in
agreement with the Administrative Law Judge, that
Respondent unlawfully promised employee Stuart
guaranteed employment with the Company in ex-
change for her withdrawal of support for the Union.
We conclude, however, that the record fails to sup-
port the Administrative Law Judge's finding that Re-
spondent discharged employee David Dodson in vio-
lation of Section 8(a)(3) of the Act. We find instead
that Respondent dismissed Dodson for just cause.
Respondent is engaged in manufacturing food
products at its plant in Greenville, Texas. Dodson
was first employed by Respondent in January 1976.
From August 1977 Dodson worked as one of three
"mixers" on the third, or late night, shift. In essence,
the responsibility of the mixers was to mix batches of
dough for subsequent processing. Dodson was termi-
nated on February 5, 1978, according to Respondent
for unsatisfactory work, according to the General
Counsel because of his union activities.
First, concerning whether Respondent possessed
knowledge of Dodson's support of the Union, the rec-
ord discloses some evidence tending to indicate that it
knew that Dodson was a union adherent, although
not that he was a particularly active or enthusiastic
one.7 Thus. Dodson testified that he spoke to Supervi-
sor Chuck Sickles about the Union in August,8 that
he discussed with Jesse Brooks in September how the
Union "will really help" people,9 that he had Brooks
attended the same union meeting on September 6,
and that he favorably mentioned the Union to an-
other employee, in the presence of Supervisor Don
Denton, in November. There is, however, no evidence
that Respondent was aware that Dodson had signed
an authorization card at the September 6 union meet-
ing, that Dodson solicited authorization cards on be-
advance permission from management to do this. Employees Thomas and
Dodson confirmed that Respondent allowed both commercial and charitable
solicitation at the plant. Finally Supervisor Chuck Sickles stated that Tup-
perware had been sold at the plant only 2 weeks before the hearing.
I In issuing oral reprimands to employees Thomas and Tadlock, and in
threatening employee Stuart with discharge. for soliciting support for the
Union, Respondent indicated that they had solicited in "non-prescribed
areas" of the plant. We note that an employer's prohibition of solicitation in
some physical areas of a facility as opposed to others is presumptively in-
valid. Generally, the only valid rule which may be made and enforced con-
cerning oral solicitation is one which forbids such solicitation during working
time. See Sloddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
Contrary to the statement of the Administrative Law Judge, Respondent
apparently does deny that it had knowledge of Dodson's union activity.
Dodson did not testify regarding the substance of this conversation.
At the time, Brooks was a rank-and-file employee. However, he became
a supersisor trainee in December and a supervisor in July 1978.
241 NLRB No. 97
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
half of the Union in January 1978, or that he distin-
guished himself in any way from numerous other
supporters of the Union.
Yet, whatever the degree of company knowledge of
Dodson's support for the Union, a review of pertinent
record testimony shows that the reason Dodson was
discharged was that he did not do his job properly.
Indeed, the Administrative Law Judge found that
"Dodson may have given the Respondent ample rea-
son to discharge him."
Jim Eason, the head of Respondent's bakery de-
partment, testified concerning the events which led to
Dodson's dismissal. According to Eason, the Com-
pany was experiencing considerable difficulty in pro-
cessing dough mixed at the facility. Specifically, the
quality of the dough mixed was inconsistent, at times
being good, at other times not. The problem appar-
ently centered around dough mixed on the third shift,
consisting of Dodson and two other mixers, Danny
Sickles and Dale Gibson.'0 Like all Respondent's
mixers, they had been instructed to mix dough pre-
cisely according to company formulas, which were
written on 8- by 10-inch cards and placed directly in
front of them for convenient reference. Mixers also
were required to maintain written records revealing
the times that they performed various steps of the
mixing process, as well as other information, such as
the pH figure of batches of dough.'
In investigating the problem, Eason examined the
mixing records kept by the third shift and found that
they indicated that proper procedures were being fol-
lowed. Eason also checked the temperature of the
mixing room, but discovered no difficulty there. He
checked and rechecked the formulas being used as
well as the raw materials, but found them to be cor-
rect. Eason even assigned first-shift supervisors to
work on the third shift on several occasions, but they
reported that the mixers were doing their jobs prop-
erly. Nonetheless, Eason talked to the mixers and em-
phasized to them the importance of observing proper
procedures in mixing dough and intimated to them
that he did not believe they were actually following
the procedures.
At last, on January 9, 1978, the cause of the prob-
lem was uncovered when employees Sickles and Gib-
son came to Eason's office and asked to see him. Ac-
cording to Eason, they told him that they knew there
were problems with the dough made on the third
shift, that Respondent was investigating the matter,
that the situation was placing everyone in a bad light,
and that Respondent would not tolerate continued
production of bad dough. They told Eason that the
'0 There was no supervisor on the third shift.
H The mixers were supposed to test the dough to determine the pH. which
indicates whether dough is alkaline or acidic. A too high or too low pH
figure apparently adversely affects the taste of the dough.
reason for the inconsistent quality of the dough was
that mixing procedures were being deliberated vio-
lated on the third shift and that Dodson was respon-
sible. In particular, they related that Dodson insisted
on mixing dough as much as 2 hours ahead of sched-
ule, apparently so that longer breaks could be taken.
Sickles and Gibson indicated that they wanted to mix
the dough on time, but Dodson refused to do so. Fi-
nally, they stated they had not reported Dodson's
misconduct earlier because they were physically
afraid of himl2 and that they wanted Eason to correct
the situation without disclosing that they had in-
formed against Dodson.
As a result, Eason testified, he called each of the
third-shift mixers to his office. During his interview
with Dodson, he told him that the quality of the
dough indicated that proper mixing procedures were
not being followed and that, if such was the case, it
had to stop,' Even so, on or about January 27, 1978,
Eason discovered that 18 batches of bad dough had
been produced, each batch weighing about 1,000
pounds. Approximately five doughs were mixed on
the third shift, the rest on the first shift. But Eason
traced the problem with all 18 doughs back to the fact
that the pH of the buffer-the underlying mix that
formed the base of the completed mixes-was bad.
This was confirmed the next day, when Dale Gibson
went to Eason's office and told him that Dodson had
not taken the pH of the buffer, as he was supposed to
have done, and that a false pH figure had been en-
tered on the mixing records.' 4 Eason stated that if the
pH of the buffer had been properly taken on the third
shift, formula changes could have been made immedi-
ately to insure that the doughs produced would have
been satisfactory. In these circumstances, Eason said,
management considered all the facts for several days
and then decided to discharge Dodson for unsatisfac-
tory job performance.' 5 As already noted, Dodson
was terminated on February 5, 1978.
The testimony of Sickles and Gibson essentially
confirms the picture drawn by Eason of the events
which culminated in Respondent's discharge of Dod-
son. Sickles stated that Dodson habitually ran ahead
of the baking schedule--as much as 2 hours ahead-
and thus bad batches of dough were produced.' 6 He
said that, like Dodson, he had been involved in union
2 Dodson was described at the heanng as an imposing ex-manne, stand-
ing 6 feet 2 inches tall and weighing 265 pounds.
1
3
It is not entirely clear from Eason's testimony whether he counseled
each of the three in separate interviews or whether he called Sickles and
Gibson to his office individually merely so that Dodson would not think he
was being singled out because of information they had provided.
14 Eason was also persuaded that a high pH in the buffer mixed on the
third shift was at fault because the problem disappeared when buffers were
changed.
is Eason testified that, after Dodson's discharge, Respondent had no prob-
lems with bad dough on the scale previously encountered.
16 Sickles further testified that Dodson sometimes did not follow Respon-
dent's baking recipes and at times falsified mixing records.
656
nally, on January 9, mixers Sickles and Gibson volun-
tarily informed Respondent that the third mixer,
Dodson, was purposefully violating mixing proce-
dures. Sickles and Gibson apparently were motivated
to inform Respondent of this fact out of fear of loss of
their jobs if bad dough continued to be produced.
Respondent warned Dodson to observe the correct
procedures at an interview the next day. Even so,
within little more than 2 weeks, Respondent discov-
ered that 18 batches of dough had been spoiled be-
cause Dodson had failed to take the pH of the buffer
used in making the doughs. Respondent thereupon
discharged Dodson. To us, the sequence of events
here belies any contention that the discharge was pre-
textual, inasmuch as Dodson's job performance was
identified as the cause of a problem which Respon-
dent had already been investigating, through infor-
mation voluntarily provided by two of Dodson's co-
workers, and as Dodson was terminated only when he
ruined a large amount of dough after having been
warned to follow proper mixing procedures.
Next we turn to consideration of the Administra-
tive Law Judge's reasons for finding that Dodson was
actually dismissed because of his union activity, not-
withstanding his poor performance on the job. First,
the Administrative Law Judge regarded as suspicious
the fact that Dodson was discharged "within 2 weeks
after the first authorization cards were signed by em-
ployees." This is not strictly true. Although authori-
zation cards were first passed out for employees to
sign at the plant on January 23, 1978, some employ-
ees, including Dodson, had signed cards as early as
September 6, away from company premises. Further,
although Dodson testified that he solicited employees
to sign authorization cards in January, the record is
devoid of any evidence showing that Respondent
knew of Dodson's activity in this connection.
Second, the Administrative Law Judge stated that
the third shift did not have a supervisor and con-
cluded that, "[h]ad the Respondent really been hav-
ing the trouble testified to by Eason, reason suggests
that the Respondent would have put a supervisor in
charge of the third shift...." This fails to take into
account Eason's testimony that first-shift supervisors
several times were assigned to the third shift to un-
cover the source of the problem resulting in poor
dough." Also, this represents a substitution of the
Administrative Law Judge's business judgment for
that of the Company. Certainly, Respondent was not
required to hire a full-time supervisor for the third
shift when, if properly done, the job could be per-
formed by three rank-and-file employees.
i Apparently Dodson was careful to follow correct procedures when
working under the watchful eye of one of these temporarily assigned super-
visors.
activity and had signed an authorization card, and for
this reason, Hank Caltabiano, a union representative,
had told them they needed to do the best job possible.
Sickles sought to persuade Dodson to improve his
performance, but Dodson indicated he was indiffer-
ent to the job. So Sickles telephoned Caltabiano and
informed him that "David was screwing up and it got
to a point where they were getting on me and they
were getting on Dale and, you know, getting on all
three of us." Sickles added that he told Caltabiano
that David "was messing up and that I was afraid
they were going to get rid of all of us."' 7 Thus, from
fear of losing his job, Sickles, along with Gibson, de-
cided to report Dodson's improper work to Eason.
Gibson, who had also signed an authorization card,
testified similarly.'8 He stated at the hearing that
Dodson often did not follow company recipes, that he
liked to get as much as 2 hours ahead of the correct
baking schedule, and that mixing records were falsi-
fied to conceal this. Dodson told Gibson that it did
not matter if they got ahead of schedule in the mixing
process and that he did not care about his job. Fi-
nally, Gibson explained,
Well, it just got to the point where . . . all the
crackers, nearly everything we run was bad and
because we were getting so far ahead and not
mixing them right. So they were ... getting on all
of us about it and we just thought that . . . it
wouldn't be right for us-all of us to get in trou-
ble over it and we thought that maybe if David
knew that it was making a lot of difference that
maybe he would decide to change it ... run it the
right way it was supposed to be run.
However, Dodson did not change his ways, thus caus-
ing Gibson and Sickles to inform Eason about the
situation.
The sum and substance of the evidence recited
above, which is consistent with, although more com-
plete than, the Administrative Law Judge's discussion
of the facts, is as follows. Respondent became aware
at least in early December that large quantities of bad
dough were being produced on the third shift. Re-
spondent commenced a thorough investigation to de-
termine the causes of the problem, checking raw ma-
terials, mixing formulas, room temperature, and,
through use of temporary supervisors on the third
shift, whether the three third-shift mixers were follow-
ing proper procedures. Respondent counseled the
three mixers regarding proper mixing procedures in
December. Nevertheless, the problem remained. Fi-
l" Although Caltabiano testified at the hearing, he did not deny Sickles'
testimony so far as it involved him.
'' It is noted that at the time he testified Gibson was not employed by
Respondent and that he appeared at the hearing onlN under threat of sub-
pena.
657LANCE. INC.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Third, the Administrative Law Judge found that
Sickles and Gibson, as well as Dodson, should have
been held responsible for the 18 bad doughs produced
in January. lie also stated that both Gibson and Sick-
les had brothers who were supervisors and that nei-
ther was involved in union activity. On the night in
question, it was evidently Dodson's duty to take the
pH reading of the buffer, whether or not Sickles and
Gibson might also have done it. Further, Respondent
had been informed voluntarily by Sickles and Gibson
earlier that Dodson was the individual violating mix-
ing procedures and had no reason not to believe this,
especially since Sickles' and Gibson's motivation in
reporting Dodson was to preserve their own jobs.2 0
Contrary to the statement of the Administrative Law
Judge, and as noted previously, Sickles testified that
he was active on behalf of the Union, and both Gib-
son and Sickles stated that they had executed authori-
zation cards. Sickles stated that he and his brother,
Supervisor Chuck Sickles, "were on different sides"
concerning the Union and "did not agree on what
was going on at the plant."
Fourth, the Administrative Law Judge refers to tes-
timony of employee Bobby Whitehead, who said that
he came to work as a mixer on the first shift the day
the 18 bad batches of dough were made and that he
discovered that the scale indicator showed far too
much buffer had been put in the dough. Thus, he
concluded that the problem with the buffer lay with
the scale rather than the pH. However, instead of tell-
ing management immediately, he waited several days,
until Dodson had been discharged. At such time, of
course, Whitehead's observation concerning the scale
indicator could no longer be checked. From this, the
Administrative Law Judge concluded, "The fact that
the Company took no further action with regard to
Dodson following Whitehead's disclosure further in-
dicates that the problem with the 18 doughs was a
pretext to cover [the] real reason for discharging Dod-
son." We do not agree. At the time, Respondent had
already discharged Dodson on the basis of firsthand
information freely supplied by Gibson that Dodson
had not taken the pH of the buffer and was not com-
pelled to accept Whitehead's unverifiable assertion
that the fault lay elsewhere and to reinstate Dodson.
Fifth, and last, the Administrative Law Judge dis-
credits certain statements made by Sickles and Gib-
son to the effect that they did not inform Respondent
sooner of Dodson's improper mixing activities be-
cause they were afraid of him. We do not find it nec-
essary to overturn these credibility resolutions in or-
der to find that Dodson was discharged for just cause.
20 Significantly, Dodson admitted in his interview with Eason on January
10 that he was getting somewhat ahead on the mixing process, but asserted
that he did not get too far ahead and that Supervisor Chuck Sickles knew
this.
As previously indicated, Sickles and Gibson appar-
ently wanted to follow proper mixing procedures, but
Dodson did not. When Dodson could not be per-
suaded to mend his ways, Sickles and Gibson in-
formed Respondent to avoid being unjustly blamed
for the bad dough being produced during their shift.
These facts alone quite plausibly explain Sickles' and
Gibson's conduct.
For the reasons we have given, we shall dismiss the
complaint insofar as it alleges that Respondent un-
lawfully discharged David Dodson.
AMENDED REMEDY
Having found that Respondent has violated the
Act in certain respects, we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion necessary to effectuate the policies of the Act.
We shall order that it offer reinstatement to Richard
Saye, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of his un-
lawful discharge by Respondent. Backpay is to be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).2 '
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below,
and hereby orders that Respondent, Lance, Inc.,
Greenville, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Insert the following as paragraph l(b) and re-
letter the remaining paragraphs accordingly:
"(b) Orally reprimanding employees for soliciting
on behalf of the Union in violation of an unlawful no-
solicitation rule."
2. Substitute the following as paragraph 2(a):
"(a) Offer Richard Saye immediate and full rein-
statement to his former job or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights
and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suffered
by reason of his unlawful discharge by Respondent in
the manner set forth in the section hereinabove enti-
tled 'Amended Remedy.'"
3. Substitute the attached notice for that of the
Administrative Law Judge.
"2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
658
LANCE, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or enforce any rule
prohibiting solicitation at any time on our prem-
ises on behalf of Bakery, Confectionery and To-
bacco Workers International Union, AFL-CIO,
Local 11l, or any other labor organization.
WE WILL NOT orally reprimand employees for
soliciting on behalf of the Union in violation of a
rule prohibiting solicitation at any time on our
premises.
WE WILL NOT threaten employees for soliciting
on behalf of the Union in violation of a rule pro-
hibiting solicitation at any time on our premises.
WE WILL NOT promise employees benefits to
induce them to renounce their interest in the
Union.
WE WILL NOT discharge, or otherwise discrimi-
nate against, employees because of their interest
in, or activity on behalf of, the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer Richard Saye immediate and
full reinstatement to his former job or, if that
position no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or any other rights and privileges previ-
ously enjoyed, and WE WILL make him whole for
any loss of earnings he may have suffered by rea-
son of our unlawful discharge of him, with inter-
est.
LANCE, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge; This matter
was heard before me on August 31 and September I and 7,
1978,' at Greenville, Texas, upon the General Counsel's
complaint which alleges, in general terms, that Respondent,
Lance, Inc., discharged two employees in violation of Sec-
tion 8(a)3) of the National Labor Relations Act, as
amended, 29 IU.S.C. §151, e seq., and engaged in certain
activity violative of Section 8(a)(1) of the Act.
Respondent generally denied that it engaged in any ac-
tivity violative of the Act and specifically contends that the
discharge of the two individuals in question was for cause.
I All dates are in 1978 unless otherwise indicated.
Upon the record as a whole, including my observation of
the witnesses, arguments of counsel, and a brief received
from the Charging Party, Bakery. Confectionery and To-
bacco Workers International Union, AFL-CIO, Local I 1,2
I hereby make the following:
FINDINGS OF FA(T AND CONCLUSIONS OF LAVW
I. JI;RISDICTION
Respondent is a North Carolina corporation which oper-
ates a plant in Greenville, Texas, where it manufactures
food products. In the course and conduct of this operation
Respondent annually ships goods, products, and materials
valued in excess of $50,00 directly to customers located
outside the State of Texas. Respondent admits, and I find,
that at all material times it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVEI
Bakery, Confectionery and Tobacco Workers Interna-
tional Union. AFL CIO, Local III (herein the Union), is
admitted to be, and I find is. a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALL..EGED UNFAIR LABOR PRACTICES
A. Background Facts
At its Greenville facility Respondent employs about 395
production employees, who work on one of three shifts.
In September 1977 the Union commenced a campaign to
organize Respondent's production employees. Meetings
were held with employees, and on January 22 the first au-
thorization cards were distributed for the purpose of having
employees sign them. There followed a petition for an elec-
tion, with the election being held on May 19. A majority of
the employees voting voted in favor of the Union. Respon-
dent filed timely objections which at the time of the hearing
of this matter were still pending before the Board. the Re-
gional Director having recommended that the objections be
overruled.3
During the course of this campaign, and in the week fol-
lowing the election, the Respondent engaged in certain con-
duct which is alleged to be violative of the Act, including
the discharges of David O. Dodson on February 5 and
Richard Saye on May 30.
B. Analysis and Concluding Findings
I. The no-solicitation/no-distribution allegations
It is alleged that on September 8, 1977, the assistant vice
president of manufacturing, William Webb, orally promul-
gated an unlawfully broad rule prohibiting solicitation for
the Union and on September 20 posted a written clarifica-
tion of the rule, likewise alleged to be unlawfully broad. It
2The name of the charging Party appears as amended at the hearing.
'Case 16 RC 7670.
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is further alleged that on May 4 two employees were unlaw-
fully reprimanded by Webb for having solicited on behalf
of the Union during nonworking time and in nonworking
areas, that on May 5 another employee was told not to talk
about the Union, and, finally, that on May 30 Richard Saye
was discharged because of his union activity, i.e., soliciting
an employee on behalf of the Union during his breaktime.
According to the generally credible and uncontradicted
testimony of Virginia Stuart, on about September 8 or 9,
1977. a meeting of all first-shift employees (about 150) was
called at which Pete Slone, the Company's president, and
Webb spoke. During this meeting Slone made a general
comment to the effect that the Company had always been
run without a "third-party." and that the Company felt
such was best. He told employees that, if they had any
questions concerning the Union, they should talk to their
supervisor and, if they were not satisfied, to their depart-
ment head or finally to Webb or Slone himself.
Webb then made a speech in which "he told us that we
were not to solicit on Lance's working hours. We were not
to pass out cards. We were not to talk about the Union.
And he said that if we were caught passing out union cards
or union literature or talking about the union it was
grounds for immediate discharge."
Steve Thomas' version, again undenied, is that Webb
stated that "there would be no signing of cards and-the
union cards and soliciting for a union on ance's property
or any type of solicitation. And it would result in termina-
tion."
Similarly, Dodson testified that he attended a meeting of
third-shift employees (about 25 or 30 present) during which
Webb stated that "there wouldn't be any solicitation on
Lance property. If there was it would be grounds for imme-
diate termination."
These statements of Webb in early September are alleged
to be the promulgation of a rule totally prohibiting solicita-
tion on behalf of the Union, including nonworking time or
when such solicitation would not interfere with the work of
employees. Inasmuch as the testimony of Stuart, Dobson,
and Thomas stands undenied on the record, Respondent
not having called as witnesses either Slone or Webb or in-
terrogating any of the employee witnesses whom it called
concerning these events, I find that Webb made, in sub-
stance, the statements attributed to him. And I conclude
that he thereby did orally promulgate a rule forbidding all
solicitation on behalf of the Union on company property
without exception. Such necessarily was violative of Section
8(aXl) in that it interferes with the rights guaranteed to the
employees by Section 7 of the Act. Stoddard-Quirk Manu-
facturing Co., 138 NLRB 615 (1962).
On or about September 20, Webb posted the following
notice:
TO ALL EMPLOYEES
THERE APPEAR TO BE SOME QUESTIONS AND MISUN-
DERSTANDINGS WITH REGARD TO A STATEMENT RE-
CENTLY MADE BY OUR MANAGEMENT ON THE SUBJECT OF
SOLICITINGS AND DISTRIBUTtNGS.
WE WOULI) LIKE TO CLEAR UP THIS SUBJECT AS DEFI-
NITELY AS POSSIBLE FOR ALL CONCERNED. THE BASIC
RULE AND PRINCIPLE WHICH WE FOL.L.O' ON THIS MAT-
TER IS AS FOLLOWS:
EXCEPT BY EXPRESS PERMISSION OF MANA(;EMENT,
FIERE SHAI.L BE NO SOLI(CIAlIONS AND NO DISIRI-
BUIIONS OF L.TERAIURE UNDER ANY CIR(CUMSTAN(CES
INVOL.VING NEGLECT OF WORK OR INTERFERENCE
WITH THE WORK Ol1 OTHERS.
/S/ Bill Webb
BILL W'EBB
Although the General Counsel apparently argues that
this is an ambiguous notice, from which the employees
could reasonably conclude that they were prohibited from
soliciting on behalf of the Union during their breaktime
and before and after work, I find it is not. The rule stated in
this notice is reasonably definitive, prohibiting solicitation
only where to do so woulc involve neglect of work or inter-
ference with the work of others. It could not reasonably be
interpreted by employees to prohibit solicitation on break-
time or before or after work.'
However, the presumptive validity of the rule promul-
gated on September 20 is overcome by the total factual
situation here. The rule was promulgated shortly after the
beginning of the union activity and has been applied only
to solicitation on behalf of the Union, as will be discussed
infra. Both before and after promulgation of the rule on
September 20, the Company permitted solicitation during
working time for a variety of activities, including charitable
contributions and the selling of commercial products.'
On May 4, shortly before the election, Thomas was called
into Webb's office and was reprimanded by Webb for hav-
ing solicited on behalf of the Union in what Webb referred
to as nonprescribed areas, noting that the next time
Thomas engaged in such activity he would be terminated.
On the same day, Randy Hadlock was similarly called into
Webb's office, where Webb stated that:
lilt had come to Lance's attention that I was continu-
ing to solicit and harass employees on company time in
nonprescribed areas, using threats of bodily harm. And
I put up my hands and asked for a witness. He contin-
ued. He didn't even hesitate. He said that this was a
warning being issued to me, that if I did not stop all
activities at once I would be immediately terminated.
And then Webb told Hadlock's supervisor to "remove
this man from my office and return him to his work area."
Inasmuch as none of the participants in this meeting was
called other than Hadlock. his version of what had occurred
stands undenied on the record. The event of Thomas' repri-
mand is similarly undenied. I conclude, therefore, that on
or about May 4 Webb did in fact reprimand both Thomas
and Hadlock for their having engaged in solicitation on
behalf of the Union. Given that the rule under which, it
appears, Webb was reprimanding these employees was pro-
' The General Counsel also offered into evidence for background purposes
only the Respondent's employee handbook. Iit is noted in the handbook that
there is a rule banning all distribution of literature of any nature in the plant.
Such would appear to be unlawfully broad; however, this rule was not al-
leged to be a violation of the Act, and its legality was not fully litigated.
Therefore, I decline to make any finding concerning this no-distribution rule.
5 That solicitation for matters cther than the Union has been permitted I
find from the testimony of the employees who testified on behalf of the
General Counsel. t is noted that Respondent called no witness, management
or rank-and-file, to rebut this, from which I conclude that such rebuttal
evidence was not available.
660
LAN('E, INC.
mulgated shortly after union activity began and that onl'
employees who solicited on behalf of the Union were repri-
manded, while those who solicited for other matters were
not, I conclude that the rule is unlawful and that Webb
thereby interfered with employees' rights in violation of
Section 8(a)(1) of the Act. Ward lanufacturing. Inc., 152
NLRB 1270 (1965).
On May 5, Stuart's supervisor, Jesse Brooks. told her that
Jim Eason, the bakery department head, wanted to see her
in Webb's office. She went with him to Webb's office, and at
that time Eason told her that he had something to read to
her. In substance, she was told that it had been reported she
had been soliciting on Lance's property and harassing peo-
ple in her working area and the halls and that he wanted
this stopped. He then told Brooks to take her back to her
department. She asked who had reported these events to
management, but he would not tell her.,
Eason testified concerning this event, stating that he read
to her the following:
Virginia, it has come to the attention of Lance, that
you are making false and abusive statements against
other employees and you continue to Solicit for the
Union on the job not, in prescribed areas: thus, inter-
fering with the work of other employees. Any continu-
ance of these actions will lead to your termination.
The parties thus are in general agreement concerning the
matter alleged and the substance of Eason's statement to
Stuart. This was, in effect, enforcement of the unlawful rule
prohibiting solicitation on behalf of the Union. Thus I con-
clude that Eason's statement to Stuart on or about May 5.
again about 2 weeks before the election, tended to interfere
with her rights protected by Section 7 and was violative of
Section 8(a)( 1 ) of the Act.
2. The other alleged 8(a)(l) violations
It is alleged that, on or about February 5, Supervisor
Chuck Sickles orally threatened an employee with dis-
charge because of that employee's union activity. The event
apparently referred to in the complaint concerns an occur-
rence on February 5 when, shortly after David Dodson's
discharge, Virginia Stuart met Sickles, who at the time was
not her supervisor, as he was walking to the mixing room.
She asked him why Dodson had been discharged. Accord-
ing to her testimony, Sickles said Dodson had been dis-
charged "because he had messed up six doughs and had
been heard cussing on the telephone." Sickles went on to
tell her that she "would be the next to go."
Sickles generally corroborated Stuart's testimony con-
cerning this conversation, but denied having told her any-
thing to the effect that she would be the "next to go" or
otherwise that she might be terminated.
Apparently the General Counsel contends that inasmuch
as Dodson was discharged for union activity, which I con-
clude, infra, the comment by Sickles about Stuart being the
next to go implicitly meant that she would also be dis-
charged for her union activity.
Stuart reacted by putting a piece of masking tape across her mouth.
which she wore for the rest of the day, on which she had written, "I have no
nghts."
While I found Stuart to be a generally credible witness
and that Sickles said something to her along the line that
she testified, on the record before me I cannot conclude that
Sickles threatened her with discharge for her known union
activity. I note that the discussion was initiated by Stuart. It
was a brief question-and-answer conversation which oc-
curred as Sickles was passing through her department. He
was not her supervisor and had no apparent control over
whether she would be discharged or not. In any event, the
reason that he gave her for Dodson's discharge and thus the
reason which Stuart might be discharged, accepting her ver-
sion, did not relate to union activity. Again, while I found
Stuart to be a generally credible witness. there is no indica-
tion from the record why Sickles might have made the
statement he is alleged to have made. Therefore, in view of
his credible denial that he made the precise statement at-
tributed to him and in vievw of the facts that the statement
at best is ambiguous in this situation and that Sickles was
not even her supervisor at the time. I find and conclude that
the Respondent did not threaten Stuart as alleged in para-
graph 7(c) of the complaint. I recommand that this allega-
tion be dismissed.
It is further alleged that. on or about April 25, Sickles
tried to induce Stuart to renounce the Union by promising
her a job as long as she wanted it. According to Stuart,
during a conversation with Sickles on April 25, when he
was talking to her about the new plant rules, he tried to get
her to change her mind about the Union. She said she
would not, and he said, '"I can guarantee you a job." She
laughed at him, "'a]nd h said 'Virginia, I'm serious,' [sic]
said, "If you will change your mind about the union, all you
have to do is just name ,,our price and we can guarantee
you a job for as long as you want.' "
He went on to tell her during this conversation that he
felt she had some influence on others in the bakery, and he
said that "all I had to do was to go down and tell these
people that I had found out that the union had been lying
to me and that I had changed my mind about the union."
Again he told her that he would guarantee her her job, and
she said she would not change her mind.
According to Sickles, she stopped him as he was going
through the ingredient room and asked him if she was going
to get fired because she was in the Union. He told her, "No.
Virginia. as long as you went by the Company's rules, Com-
pany policy, done your work, you could probably work for
Lance as long as you wanted to."
Sickles denied that he asked her to tell other people that
she had changed her mind about the Union or anything to
that effect.
Based on the relative demeanors of Stuart and Sickles,
and the inherent probabilities with regard to the conversa-
tion having taken place generally along the lines testified to
by Stuart, noting that this event occurred just 2 or 3 weeks
prior to the election, I conclude that the event generally
occurred as testified to b Stuart. I discredit Sickles' testi-
mony that he did not discuss with Stuart her changing her
mind about the Union and trying to influence others to do
so. Rather, I believe that Stuart initiated the discussion,
questioning whether, as the election approached, she would
be fired. From this opening Sickles tried to persuade her to
change her mind, and, as she was a principal leader in the
661
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational campaign. he tried to persuade her to get
other employees to change their minds.
The precise language used by Sickles with regard to her
job tenure is not substantially different in either of their
respective versions. The difference is in the context, and I
credit the context testified to b' Stuart. that Sickles at-
tempted to persuade her to change her mind about the
Union and persuade others to do so. Thus words to the
effect that she could work for Lance for as long as she
wanted impliedly promised a benefit or, in the reverse. indi-
cated a threat that unless she did his bidding, she would not
have a job for as long as she wanted. Whether he uttered
the precise words testified to by Stuart or those testified to
by him makes little difference. Sickles did discuss with Stu-
art her job tenure at the time of trying to persuade her to
change her union sympathy. I conclude that Sickles thereby
violated Section 8(a)( I ) of the Act.
3. The discharges
David 0. Dodson started to work for Respondent in
January 1976 and was discharged on February 6, 1978.
During the time of his employment, he was a full-time col-
lege student: thus in mid-1977 he requested, and was
granted, a transfer to the third (I I p.m. to 7 a.m.) shift and
from shipping to the dough mixing department. He was a
mixer on the third shift when the union activity commenced
in September and through the time of his discharge.
Working with Dodson as mixers on the third shift were
Danny Sickles and Dale Gibson, both of whom had broth-
ers who were supervisors. Although Sickles was rated as a
class C mixer, a pay grade lower than Dodson's classifica-
tion as a class B mixer, according to the Respondent, Sick-
les had more experience as a mixer and thus was, in effect,
the leadman of the three. Sickles testified that they were
more or less equal. In any event, there was no third-shift
supervisor, although the Respondent contends that from
time to time Jesse Brooks, the first-shift supervisor in the
mixing department. would work the third shift.
Briefly, the events leading to the discharge of Dodson,
according to the Respondent, through the testimony of
Eason, are: They were having some difficulty running the
dough that had been mixed on the third shift, even though
the records kept by the third-shift mixers indicated that the
appropriate procedures were being followed. This had been
a problem, from Eason's rather vague testimony, for a sub-
stantial period of time. But he was unable to find the source
of the trouble. Then, according to Eason, sometime in
January Danny Sickles and Dale Gibson came to him, stat-
ing that the reason that they were having problems was
Dodson. According to Eason. they told him that Dodson
would mix dough 2 hours ahead (though the tolerance was
about 15 minutes either side of the schedule time) which
gave a 2 hour overproofing time." Such would result in
very bad dough. Eason said they also told him that they
had not come to management before because they were
afraid of Dodson.
Eason then determined to counsel with Dodson; but, to
hide that Sickles and Gibson had reported on Dodson, on
January 10 he separately called to his office each of the
three third-shift mixers. Eason counseled them concerning
the appropriate procedures to follow in mixing the dough.
Then on or about January 27 it was discovered that the
18 batches7 mixed on the third shift had a "high pH"
(which affects, apparently, the taste and shelf life of the
finished products). Though the dough had a high pH, nev-
ertheless Respondent was able to remix the dough, and
from the totality of the record I conclude that all or sub-
stantially all of the dough was in fact used.
The next day, according to Eason, Dale Gibson told him
that there had been no check of the pH in the buffer and
that Dodson was supposed to have done this. Eason further
testified that after reflecting on this matter a few days, it
was determined by management to discharge Dodson be-
cause of his poor performance. This Eason did on the eve-
ning of February 5.
Although Dodson had an apparently poor attendance
record, Respondent does not contend that this played any
part in his discharge. Indeed, Respondent specifically dis-
claimed that his attendance was the cause for his discharge,
relying instead upon his work performance and inattention
to duty. Respondent does contend, however, that Dodson
had used profanity in talking to other employees, particu-
larly Danny Sickles, and this was a contributing factor to
his discharge. As part of this, Respondent further contends
that a contributing factor to his discharge was the way that
Dodson related to fellow employees, that his talk about
Hitler and other subjects during the course of his employ-
ment caused fellow employees to be afraid of him; also his
6-foot-2-inch, 275-pound size.
It is fundamental that a company may discharge an em-
ployee for any reason or no reason at all except where mo-
tivated by the individual's union or other protected con-
certed activity. Since motive is crucial to this inquiry, but
since direct evidence of motive one way or the other is rare,
one can and may look to all the attending circumstances to
determine whether Respondent had acted improperly or
not. In short, while the General Counsel has the burden of
proving motive, as well as the other elements, by a prepon-
derance of the credible evidence, this burden may be met
by circumstantial evidence, and inferences, particularly of a
discriminatory motive, are permitted. Shattuck Denn Min-
ing Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d
466 (9th Cir. 1966).
From the totality of the facts here, I conclude that Re-
spondent was in fact motivated by Dodson's union activity
in effecting his discharge on February 5 and that his alleged
poor performance was a pretext to obscure the true reason
for the discharge.
First, Dodson was a known union activist. Jesse Brooks,
now but not then a supervisor, attended the first union
meeting, at which Dodson and other interested employees
were present. Nor does the Company deny it had knowl-
edge of Dodson's union activity.
Second is the union animus. As as been discussed above,
shortly after the advent of the union activity, the Company
undertook to interfere with employees' right to self-organi-
zation, among other things by promulgating an unlawful
rule prohibiting solicitation on behalf of the Union and lat-
er disciplining employees for violating it.
Third, that Dodson's dscharge occurred within 2 weeks
' Probabl) five or six were mixed on the third shift and the rest mixed on
the first shift.
662
I.ANCE. INC.
after the first authorization cards were signed by employees
is evidence that Respondent was motivated by this fact
rather than his alleged poor performance.
But, finally, the Company's contention that it was Dod-
son's work performance and not his union activity that pre-
cipitated his discharge is not persuasive. Eason contends
that the Company had been having periodic trouble with
the dough mixed on the third shift. yet the Company did
not have a third-shift supervisor. While Brooks testified, in
somewhat vague terms, that he occasionally worked on the
third shift. there is no definitive evidence in the record, even
from Respondent's two employee witnesses, that the mixers
on the third shift were given any direct supervision. Had
Respondent really been having the trouble testified to by
Eason, reason suggests that Respondent would have put a
supervisor in charge of the third shift, particularly after
Sickles and Gibson talked to Eason on January 10. There is
no indication that after this alleged conversation between
Gibson and Sickles with Eason, Eason took any steps other
than talking to Dodson to solve what he considered to be a
serious problem.
With regard to the event which allegedly triggered Dod-
son's discharge-the 18 bad doughs-it is noted that Dod-
son was blamed for not having taking the pH reading thus
causing the problem. Both Sickles and Gibson were on the
third shift and were equally responsible with Dodson for
this dough. They were in a position to take the pH readings
and did not. Yet neither Sickles nor Gibson. both of whom,
as noted above, have brothers who are supervisors and nei-
ther of whom was active on behalf of the Union, was in any
way disciplined because of the 18 bad doughs.
Further, Bobby Whitehead, a mixer on the first shift at
the time of the 18-dough event, credibly and undeniably
testified that he came to work at 6 o'clock on the morning
in question, taking over the mixing of the dough from Dod-
son, who had done the first five sponges, as was customary.
Whitehead testified that when he got to the 18th sponge he
noticed that a drastic mistake had been made-that the
scale indicator was off by 50 pounds. This had the effect of
putting too much buffer into the dough. He hesitated in
telling management about this error and did not do so after
determining that all the dough in fact had been used.
Only after Dodson's discharge did he go to Eason.
Whitehead told Eason that the problem was too much buf-
fer and had nothing to do with the pH, that somehow the
scale had gotten unadjusted. Eason said only that the Com-
pany had come to the conclusion that the problem was the
pH.
The fact that the Company took no further action with
regard to Dodson following Whitehead's disclosure further
indicates that the problem with the 18 doughs was a pretext
to cover real reason for discharging Dodson.
Also, Respondent's profession that Dodson's profane lan-
guage and frightening statements to Gibson and Sickles
were contributing factors to his discharge simply is not
credible. The language used by Dodson. while vulgar, is
certainly not anything worse than might be expected in a
plant situation. That Gibson and Sickles were afraid of
I While the record states that Whitehead was on the third shift, he was at
the time apparently on the first shift from his testimony concerning the hours
that he worked The record is therefore corrected accordingly
Dodson did not apparently stop them from being social
friends of his, indeed coming into Dodson's apartment and
drinking with him even after his discharge. I therefore dis-
count these protestations of Respondent. and the testimony
of Sickles and Gibson is in this respect discredited. It may
well be that they were to some extent afraid of Dodson
because of his size, but clearly they willingly followed his
lead with regard to leaving the plant premises for long peri-
ods of time and in mixing the dough.
From the totality of the record, therefore, I find that,
while Dobson may have given Respondent ample reason to
discharge him, he was not discharged because of his poor
performance. Rather he was discharged because of his ac-
tivity on behalf of the Union and to discourage the employ-
ees from supporting the Union. I therefore conclude that
Respondent's discharge of Dodson, on February 5, was in
violation of Section 8(a)(3) of the Act, and an appropriate
remedy will be recommended.
Richard Saye was hired on May 28, 1977, and dis-
charged, according to the Company's records, either on
May 30 or on June 2, as a result of an incident which oc-
curred on May 26. In brief, Respondent contends that, as
employee Tim Allen was driving his forklift into the plant
on May 26, Saye stopped him and asked if he had signed a
union card. Allen apparently said he had not, and Save
asked if he was scared. There was a short discussion: then
Allen left. Supervisor John Morris observed this and called
the new plant manager, Bill Meachum. who in turn had
Jesse Brooks call Saye into Meachum's office.
According to Meachum, he told Saye that he was being
disciplined because he had solicited Allen while Allen was
working, in violation of the Company rule. Meachum testi-
fied he told Save that he was being sent home and that the
Company would later advise him what they intended to do
with regard to his future employment. Meachum then told
Brooks to escort Saye from the plant. Respondent contends
that at this time Saye had not been discharged. He had only
been given a suspension of an undetermined length.
The reason for the discharge. according to Respondent,
was that Saye then became loud and abusive, knocked over
an ashtray near the dressing room, threw his clothes on the
floor, threw a screwdriver against a wall, and. when he left
the plant, sped off at 50 miles an hour, not stopping at the
security gate. Also. according to Meachum. during his week
at the Greenville plant he observed that Saye had a bad
attitude.
From the total record, however. I conclude that Respon-
dent determined to discharge, and in act did discharge,
Saye when Meachum talked to him at about 10:40 on the
morning of' May 26. Certainly, from Saye's testimonS con-
cerning this meeting, which I credit over Meachum's to the
extent that they are inconsistent, Save had every reason to
believe that he was being discharged at that time. Thus
after Saye dressed and was on his %kay out, he told a fellow
employee that he had been fired. Meachum even wrote a
note to the effect that he overheard this statement by Saye.
yet he did not tell anything to Save to indicate the contrary.
In fact, he simply told Saye to leave the plant premises. At
a minimum. Meachum adopted Saye's interpretation of the
interview. Thus I reject Respondent's contention that he
was fired later. Respondent contends that soliciting Tim
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen. engaging in the postinterview activity described
briefly above. Saye's overall attitude observed by Meachum
for I week, and the fact that Saye had thrown a roll of tapes
at employee Larry Bost sometime previously were all con-
tributing factors to his discharge.
The evidence, however, preponderates to the contrary. I
conclude that Meachum determined to discharge Saye in
order to rid the Company of a union supporter upon learn-
ing that Saye had "solicited" a fellow employee while one
or both of them were on worktime. It is noted in this respect
that Meachum was assigned to his job at the plant I week
following the election which the Union won and had been
there only I week before discharging Saye. Even though the
Union had prevailed in the election, Respondent had filed
objections, which were then pending. Thus the organiza-
tional campaign was still very much alive.
Having concluded, supra, that the rule prohibiting solici-
tation on behalf of the Union was unlawful in its promulga-
tion and implication, I conclude that the discharge of Saye
for having solicited an employee was necessarily unlawful.
DaYlin Inc., Discount Division d/h/a Miller's Discount Dept.
Stores, 198 NLRB 281 (1972): Fremont Manufacturing
Company, Inc., 224 NLRB 597 (1976).
Of course, even though the Respondent had an unlawful
no-solicitation rule, it could in a specific incidence disci-
pline an employee for disrupting his work or the work of
others. There is no showing in this case, however, that
Saye's comments to Allen and the brief exchange they had
in any way impaired the work of Saye or Allen, nor can
such reasonably be inferred. By discharging Saye because
of his activity on behalf of the Union, without submitting
evidence that discipline of an employee for talking about
the Union in this circumstance was necessary, I conclude
that Respondent violated Section 8(a)(3) of the Act.
The other factors which the Company contends contrib-
uted to Saye's discharge I conclude are minimal and pre-
textual. The fact that Saye may have called another em-
ployee a name and may have picked up tapes and thrown
them at the other employee are events which I discount as
minimal. Events of this nature occur commonly in the in-
dustrial setting and certainly, absent the union activity
here, it is unlikely they would have been considered signif-
icant. The same is true with regard to Meachum's professed
determination that in I week he observed that Saye (I out
of 395 employees) had a "bad attitude." This is incredible.
For ail of these reasons, I reject Respondent's defenses
and find that Saye was in fact discharged in violation of the
Act.
IV. IHE FFEI(S OF IHE UNFAIR LABOR PRA(I'I('ES UPON
COMMER('E
The activities of Respondent set forth above, occurring in
connection with its operations described in section III,
above. have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
I laving concluded that Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it cease
and desist therefrom and take certain affirmative action,
including offering David 0. Dodson and Richard Saye rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions of employment,
without prejudice to their seniority or other rights and
privileges, and make them whole for any losses they may
have suffered as a result of the discrimination against them
in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).9
Upon the foregoing findings of fact and conclusions of
law and the entire record in this matter and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'0
Respondent, Lance, Inc., Greenville, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining or enforcing any rule prohibiting solici-
tation for union purposes at any time on Respondent's
premises.
(b) Threatening employees because of their solicitation
on behalf of the Union in violation of an unlawful rule
prohibiting such.
(c) Attempting through promises of benefits to induce
employees to renounce their interest in the Union.
(d) Discharging or otherwise discriminating against em-
ployees because of their interest in or activity on behalf of
the Union.
(e) In any other manner interfering with, restraining, 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 ef-
fectuate the policies of th: Act:
(a) Offer David O. Dodson and Richard Saye immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to other :substantially equivalent positions
of employment and make them whole for any losses they
may have suffered pursuant to the provisions set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon. 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 records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Greenville. Texas, facility copies of the
attached notice marked "Appendix."" Copies of' said no-
9 See. generally Isis Plumbing at Heating Co., 138 NLRB 716 (1962).
'0 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Oder herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
664
LANCE, INC.
tice. on forms provided by the Regional Director for Re-
gion 16. after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
665
sure that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations in the
complaint not specifically found herein be dismissed.