L.W.D., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 241 (N.L.R.B. 2001)

L.W.D., INC. 241
L.W.D., Inc., L.W.D. Sanitary Landfill, Inc., L.W.D.
Trucking, Inc., L.W.D. Field Services, Inc., and
Robert Terry, Inc., a Single Integrated Enter-
prise and Oil, Chemical and Atomic Workers
International Union, AFL–CIO. Cases 26-CA-
18390, 26-CA-18420, 26-CA-18538, 26-CA-
18573, 26-CA-18625
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On December 23, 1998, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and a
supporting brief. The General Counsel filed an answer-
ing brief, and the Respondent filed a brief in opposition
to the General Counsel’s cross-exceptions and a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
except as discussed below, to modify his remedy, and to
adopt the recommended Order as modified and set forth
in full below.2

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent unlawfully solic-
ited grievances through Harland Timmons, we note that the Respondent
has not excepted to the judge’s finding that Timmons was a supervisor
under Sec. 2(11) of the Act.
2 We have modified the judge’s recommended Order to conform
more closely to his findings. We have corrected his failure to order the
Respondent to cease and desist from calling employees back to general
labor pool positions without bargaining (par. 1(l)), and his failure to
order the Respondent to take the following affirmative action necessary
to effectuate the policies of the Act: bargain with the Union, on re-
quest, about calling employees back to general labor pool positions, and
about the use of a “forced ranking” system (pars. 2(g) and (f)).
Further, under Lapeer Foundry & Machine, 289 NLRB 952, 955—
956 (1988), “the traditional and appropriate Board remedy for an
unlawful unilateral layoff based on legitimate economic concerns in-
cludes ordering the employer to bargain over the layoff decision and
the effects of that decision, reinstating the laid-off employees, and
requiring the payment to the laid-off employees of full backpay, plus
interest, for the duration of the layoff.” Ebenezer Rail Car Services,
Inc., 333 NLRB 167 (2001). Thus, we have also corrected the judge’s
failure to order the Respondent to bargain with the Union, on request,
about the layoff decisions and their effects (par.2(e)).
The General Counsel has excepted, inter alia, to the
judge’s recommended dismissal of the allegation that the
Respondent violated Section 8(a)(1) of the Act by threat-
ening employees, in an October 2, 1997 letter,* with the
loss of their jobs if they selected the Union as their bar-
gaining representative. We find merit to the General
Counsel’s exception, and we reverse the judge’s recom-
mendation to dismiss this allegation.3
The letter, signed by LWD Inc.’s President William
O’Brien and the Respondent’s owner, Amos Shelton, and
sent to employees, stated:
Some of our employees have been working to bring a
union into our company. Many of you will recall that
unions have tried to organize our employees four times
in the past. LWD employees have said “NO” to union
promises and have turned them down in every election.
Let me clearly state LWD’s position in this important
matter:
WE DO NOT WANT A UNION!
WE DO NOT FEEL THAT A UNION WOULD
BENEFIT OUR EMPLOYEES!

We note that the following employees who were unlawfully laid off
on December 12, 1997, and were recalled on February 24, 1998, were
unlawfully laid off again on March 12, 1998: Charles Amato, Tray
Bobo, Joe Canup, Malcolm Couch, Shane Emmons, David Meredith,
Joseph Riley, Paul Roberson, and Robert Stack. Renee Sims was
unlawfully laid off on December 12, 1997, recalled on February 25,
1998, and unlawfully laid off on March 12, 1998. Perry Moxley was
unlawfully laid off on December 12, 1997, recalled on March 6, 1998,
and unlawfully laid off on March 12, 1998. Rocky Hill was unlawfully
laid off on December 12, 1997, but had not returned to work for the
Respondent. We have corrected the judge’s inadvertent omission of
Rocky Hill from the list of employees unlawfully laid off on December
12, 1997 (par. 2(d)).
We have corrected the judge’s failure to include an expunction rem-
edy regarding Wall’s discharge (par. 2(c)), and we have modified the
judge’s make whole remedies regarding the layoffs to reflect more
accurately the computation of earnings and other benefits and interest
pursuant to F. W. Woolworth Co., 90 NLRB 289 (1950) and New Hori-
zons for the Retarded, 283 NLRB 1173 (1989) (pars. 2(b) and (d)). We
have also modified the judge’s recommended order in accordance with
Indian Hills Care Center, 321 NLRB 144 (1996) as modified in Excel
Container, Inc., 325 NLRB 17 (1997) (par. 2(i)), and in accordance
with our recent decision in Ferguson Electric Co., 333 NLRB 142
(2001) (par. 2(h)).
Finally, we have also modified the Order to reflect our finding, con-
trary to the judge, that the Respondent violated Sec. 8(a)(1) of the Act
by making a threat of job loss to employees (par. 1(f)).
* The judge inadvertently refers to the date of the letter as October 2,
1998.
3 We find it unnecessary to pass on the General Counsel’s further
exception concerning the judge’s failure to discuss and find that the
Respondent, through Operations Supervisor Burnett, violated
Sec.8(a)(1) by telling employee Davenport that it would be futile to
select a union. The finding of this additional violation would be cumu-
lative and would not affect the remedy.
335 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
WE WILL OPPOSE THE UNION BY EVERY
LEGAL AND PROPER MEANS!
During the next several weeks, you will probably hear
all kinds of promises from the union organizers. Re-
member, union promises are worth exactly what they
cost – NOTHING!
We intend to give you many facts and opinions about
unions during the next several weeks. This is a very se-
rious matter for you and your families, so please think
about it carefully. Then, on the day of the election,
vote as if your job depends on it.
We will be glad to answer any questions you have at
any time.
The judge found, and we agree, that President
O’Brien’s statement to recently laid off employee James
Malone that the employees had been told “to vote as if
their jobs depended on it” constituted an unlawful threat
linking the election outcome with job security.4 The
judge, however, did not find the very same statement in
the above-quoted letter to be an unlawful threat. He
bases this conclusion on his interpretation of the phrase
“as if.” This phrase, he suggests, “conveys the sense of
something untrue or not likely to be true,” and thus
brings a “cargo of doubt to the sentence tying an em-
ployee’s vote to his job security.”
The judge concludes that the statement to Malone did
not carry the same “cargo of doubt” because it was made
to him as he was being laid off. The judge does not ex-
plain, however, how the circumstances surrounding the
sending of the Respondent’s October 2 letter would have
caused the employees to understand the “as if” phrase
differently than Malone understood it. In any event, we
reject the judge’s interpretation of the phrase “as if” be-
cause it simply makes no sense in this context. It is true,
as the judge notes, that the phrase “as if” is not limited to
the meaning “as it would be if,”5 but can also be used
colloquially as a mocking expression. For example, the
statement “as if you were the world’s greatest athlete” is
meant to mock the athletic ability of the person to whom
it is addressed. By suggesting that the “as if” phrase in
the Respondent’s letter “conveys the sense of something
untrue or something not likely to be true,” the judge sug-
gests that the Respondent’s letter used the “as if” phrase
in this second way. However, it simply makes no sense

4 See Dutch Boy, Inc., 262 NLRB 4, 41 (1982), enfd. sub nom. Artra
Group, Inc. v. NLRB, 703 F.2d 586 (10th Cir. 1984) (statement “vote as
if your job depended upon it,” made during organizing campaign, found
to be unlawful threat).
5 Webster’s Ninth New Collegiate Dictionary contains the following
definitions for the term “as if”: “as it would be if; as one would do if;
that”. Webster’s Ninth New Collegiate Dictionary 107 (9th ed. 1990).
that the Respondent would have meant to use it in such a
way. This is because the Respondent would have then
intended to mock whether the employees’ jobs were at
stake in saying “vote as if your job depends on it.” This
strains any reasonable interpretation of the statement
beyond the breaking point.
Thus, in this context, the words “as if” simply mean
what they usually do, i.e., “as one would do if.” The
Respondent was not using the phrase “as if” in a figura-
tive or metaphorical sense. To the contrary, the Respon-
dent was using the phrase in a literal sense. Accordingly,
employees would reasonably have interpreted the Re-
spondent’s letter to mean exactly what it said, i.e., “[t]his
is a very serious matter for you and your families, so
please think about it carefully. Then, on the day of the
election, vote as if your job depends on it.” In other
words, they should understand that their very job secu-
rity, and their families’ financial future, depended on
how they voted in the election. It is hard to imagine a
statement that would more clearly express to the employ-
ees the possibility that they would lose their jobs unless
they voted against the Union. And, in fact, as discussed
above, on December 12, 1 week after the Union won the
election, O’Brien confirmed the threatening intent of the
above-quoted letter by reminding employee Malone, who
had been laid off that day, that employees had been told
to vote as if their jobs depended on it. Our dissenting
colleague concedes that, in the context of O’Brien’s re-
mark to Malone, “there was a direct and immediate
nexus between voting for representation and employee
job loss.” However, our colleague contends that, be-
cause “no unlawful layoffs preceded the issuance of
O’Brien’s letter,” O’Brien’s letter cannot be compared to
his subsequent statement to Malone. Contrary to our
colleague, there is a clear connection between O’Brien’s
letter and his subsequent statement to Malone. The very
nature of a threat of job loss (as contained in the October
2 letter) is that it foreshadows something that may occur.
Thus, the fact that no layoffs preceded O’Brien’s letter is
irrelevant.6
6 In parsing the Respondent’s phrase “vote as if your job depends on
it” our dissenting colleague has overlooked the rest of the letter, most
significantly, the language regarding employees’ families. However, as
famously stated by Judge Learned Hand (in a case predating Sec. 8(c)),
words must be analyzed in terms of the context in which they appear,
for
Words are not pebbles in alien juxtaposition; they have only a com-
munal existence; and not only does the meaning of each interpenetrate
the other, but all in their aggregate take their purport from the setting
in which they are used, of which the relation between the speaker and
the hearer is perhaps the most important part. What to an outsider will
be no more than the vigorous presentation of a conviction, to an em-
ployee may be the manifestation of a determination which it is not
safe to thwart… .
L.W.D., INC. 243
The well-established test for determining whether an
employer’s conduct violates Section 8(a)(1) is “whether
the employer engaged in conduct which, it may reasona-
bly be said, tends to interfere with the free exercise of
employee rights under the Act.” American Freightways
Co., 124 NLRB 146, 147 (1959). Contrary to the judge,
we find that the Respondent’s letter threatened that
unless the employees voted against the Union their job
security would be in peril.7 Accordingly, we reverse the
judge and find that the Respondent’s letter violated Sec-
tion 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, L.W.D., Inc.,
L.W.D. Sanitary Landfill, Inc., L.W.D. Trucking, Inc.,
L.W.D. Field Services, Inc., and Robert Terry, Inc., a
single integrated enterprise, its officers, agents, succes-
sors and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union mem-
bership, activities or sympathies, or about the union
membership, activities or sympathies of other employees.
(b) Informing employees that collective bargaining
would be futile, that the employees would not gain any-
thing from it and that the Respondent would not sign a
collective-bargaining agreement.
(c) Making threats of unspecified reprisal against em-
ployees who engage in handbilling on behalf of the Union
or other union or concerted activities protected by the Act.
(d) Promulgating or maintaining any rule prohibiting
employees from discussing the Union, characterizing
such discussion as a strike, or threatening employees
who discuss the Union with discharge or other adverse
employment action.
(e) Implying to any employee that he or she had been
laid off because employees selected the Union as their
collective-bargaining representative.

NLRB v. Federbrush Co., 121 F.2d 954, 957 (2d Cir. 1941).
7 Leyendecker Paving, Inc., 247 NLRB 28 (1980), which is cited by
the Respondent, is distinguishable from the instant case. In Leyen-
decker Paving, the General Counsel relied, inter alia, on unspecified
threats of layoff to establish antiunion animus, but did not identify what
alleged threats he was referring to or specifically allege that the phrase
“be sure and vote and vote as if your job depended upon it,” which was
included in an employer’s campaign leaflet, constituted an unlawful
threat of layoff. The judge found that the “be sure and vote and vote as
if your job depended upon it” statement was protected by Sec. 8(c)
because, when read in context with the rest of the leaflet, it essentially
amounted to a prediction that layoffs might result from increased costs
and changes in the employer’s operation. Leyendecker Paving, Inc.,
supra, at 36. Unlike the leaflet in that case, O’Brien’s letter cannot be
characterized as a benign prediction of economic costs brought on by
unionization.
(f) Making threats of job loss to employees by telling
employees to vote as if their jobs depended on it.
(g) Telling employees that a scheduled wage increase
has been cancelled because of the Union or the employ-
ees’ union organizing campaign.
(h) Soliciting grievances from employees and promis-
ing, either directly or by implication, to remedy them if
the employees did not select a union to represent them.
(i) Discharging any employee because the employee
joined or supported the Union or engaged in other activi-
ties protected by the National Labor Relations Act.
(j) Implementing a “forced ranking” system or other
procedure for selection of bargaining unit employees for
any adverse employment action without first notifying
and bargaining with the Union in accordance with the
Respondent’s duty to bargain in good faith under the Act.
(k) Laying off employees without first notifying and
bargaining with the Union in accordance with the Re-
spondent’s duty to bargain in good faith under the Act.
(l) Recalling laid off employees to general labor pool
positions without first notifying and bargaining with the
Union in accordance with the Respondent’s duty to bar-
gain in good faith under the Act.
(m) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the polices of the Act.
(a) Within 14 days from the date of this Order, offer
William Jeffery Wells full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make William Jeffrey Walls whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, computed on a quarterly ba-
sis, less any net interim earnings, as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
William Jeffrey Walls, and within 3 days thereafter no-
tify this employee in writing that this has been done and
that the unlawful discharge will not be used against him
in any way.
(d) Make whole employee Shawn Baze, laid off effec-
tive December 8, 1997, and make whole the employees
named below, laid off effective December 12, 1997, for
any loss of earnings and other benefits, computed on a
quarterly basis, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987):

Charles Amato Mike Lech
Chris Bell Ron Mackezie
Donnie Blair James Malone
Tray Bobo Kenneth May
Joe Canup David Meredith
Mike Clark Perry Moxley
Malcolm Couch Scottie Norman
Daniel Crass Derrick Raye
Roger Davenport Merlin Reed
James Dodson Joseph Riley
Shane Emmons Paul Roberson
Benny Garland Renee Sims
Lee Hansen Robert Stack
Rocky Hill Dean Tolbert
Michael Hunt Joe Wright
Brian Hurley

Respondent shall similarly make whole, in the manner de-
scribed above, the employees named below, laid off effec-
tive March 12, 1998:

Charles Amato David Meredith
Tray Bobo Perry Moxley
Joe Canup Joe Riley
Malcolm Couch Renee Sims
Shane Emmons Paul Roberson
Curtis Mayberry Robert Stack

Additionally, in the event that the Respondent has
failed to offer recall to any of these named employees, it
shall offer the employees named above 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 previously
enjoyed.
(e) On request, bargain with the Union concerning the
decisions to lay off bargaining unit employees effective
December 8, 1997, December 12, 1997, and March 12,
1998, and the effects of those decisions.
(f) On request, bargain with the Union concerning the
decision to institute a “forced ranking” system or other
procedure for selection of bargaining unit employees for
any adverse employment action.
(g) On request, bargain with the Union concerning the
decision to recall laid off employees to general labor
pool positions.
(h) Preserve and, within 14 days of request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Calvert City, Kentucky, and at all other
places where notices customarily are posted, copies of
the attached notice marked “Appendix.”8 Copies of this
notice, on forms provided by the Regional Director for
Region 26, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees customarily are posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 22, 1997.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I conclude that the October
2, 1997 letter from the Respondent’s president, William
O’Brien, to employees is free speech protected by Sec-
tion 8(c). The letter, which is quoted in the majority
opinion, is campaign propaganda that expresses the Re-
spondent’s dislike of unions and desire to remain nonun-
ion. Despite this, my colleagues condemn a single
phrase in the letter, i.e., O’Brien’s urging of employees
in the letter to “vote as if your job depends on it.”
My colleagues concede, as they must, that the phrase
“as if” is defined in Webster’s Dictionary to mean “as it
would be if” or “as one would do if.” Thus, the phrase
means that something is not true in fact, but that a person
should act as if it were true. Accordingly, Respondent
was saying to employees that their jobs were in fact not
dependent on their vote, but they should act “as if” their
jobs were so dependent. My colleagues have trans-

8 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
L.W.D., INC. 245
formed the phrase to mean that the jobs were in fact de-
pendent on the vote. As discussed, this is precisely the
opposite of what the phrase means.
In any event, I do not think that this issue can be re-
solved solely by a dry “dictionary” parsing of the words
“as if.” Rather, I believe that, as in 8(a)(1) cases gener-
ally, the issue is to be resolved by the context in which
the words appear. The entire tenor of the instant letter is
to persuade employees that their terms and conditions of
employment would not necessarily be better with a un-
ion. That is, union promises were not to be believed. In
context, the phrase “your job depends on it” is a refer-
ence to the terms and conditions of the job, not a refer-
ence to a loss of job. Thus, in my view, the letter as a
whole cannot reasonably be read to say that the selection
of the Union would result in discharge. The letter’s ref-
erence to “families” does not support the position of my
colleagues. Obviously, the terms and conditions of em-
ployment are as important to employee families as they
are to employees.
My colleagues also miss the mark by suggesting that
this campaign literature is the same as O’Brien’s state-
ment to employee James Malone over 2 months later. As
discussed above, such statements must be viewed in con-
text. The O’Brien-Malone conversation occurred a week
after the Union had been certified, and the Respondent
had unlawfully refused to bargain over layoffs, including
Malone’s. Immediately after being told that he was on
layoff, and as he was being escorted out of the plant,
Malone was reminded by O’Brien that employees had
been told to vote as though their jobs depended on it. In
this context, there was a direct and immediate nexus be-
tween voting for representation and employee job loss.
The same is true in the precedent relied on by the major-
ity. In Dutch Boy, Inc., 262 NLRB 4 (1982), enfd. sub
nom. Artra Group, Inc. v. NLRB, 703 F.2d 586 (10th Cir.
1984), employees were reminded to “vote as if your job
depended on it” on the heels of the unlawful layoff of
approximately a quarter of the work force.
My colleagues insist on evaluating the October 2 letter
in the context of what happened 2 months later, i.e., at
the time of the O’Brien-Malone conversation. I disagree.
The statement in the October 2 letter is to be assessed as
of the time that employees read it. At that time, there
had been no layoffs or job losses. Thus, employees
would not read into it a threat of job loss. I recognize
that, 2 months later, there was a reference to the state-
ment in the context of a job loss. However, that does not
render unlawful the earlier statement.
In sum, the O’Brien statement to Malone was unlawful
in context, but that does not mean that a statement made
2 months earlier in a different context is unlawful. In
this latter regard, and in contrast to the circumstances in
Dutch Boy, no unlawful layoffs preceded the issuance of
O’Brien’s letter. Accordingly, I would dismiss that
8(a)(1) allegation.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees about their
union membership, activities, or sympathies, or about the
union membership, activities, or sympathies of other
employees.
WE WILL NOT inform employees that collective-
bargaining would be futile, that the employees would not
gain anything from it and that we would not sign a col-
lective-bargaining agreement.
WE WILL NOT make threats of unspecified reprisal
against employees who engage in handbilling on behalf
of the Union or other union or concerted activities pro-
tected by the Act.
WE WILL NOT promulgate or maintain any rule pro-
hibiting employees from discussing the Union, character-
ize such discussion as a strike, or threaten employees
who discuss the Union with discharge or other adverse
employment action.
WE WILL NOT imply to any employee that he or she
had been laid off because employees selected the Union
as their collective-bargaining representative.
WE WILL NOT make threats of job loss to employees
by telling employees to vote as if their job depended on
it.
WE WILL NOT tell employees a scheduled wage in-
crease has been cancelled because of the Union or be-
cause of the employees’ union organizing campaign.
WE WILL NOT solicit grievances from employees and
promise either directly or by implication, to remedy them
if the employees do not select a union to represent them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
WE WILL NOT discharge any employee because that
employee joined or supported the Union or engaged in
other activities protected by the National Labor Relations
Act.
WE WILL NOT implement a “forced ranking” system
or other procedure for selection of bargaining unit em-
ployees for any adverse employment action without first
notifying and bargaining with the Union in accordance
with our duty to bargain in good faith under the National
Labor Relations Act.
WE WILL NOT lay off employees without first notify-
ing and bargaining with the Union in accordance with
our duty to bargain in good faith under the National La-
bor Relations Act.
WE WILL NOT recall laid off employees to general
labor pool position without first notifying and bargaining
with the Union in accordance with our duty to bargain in
good faith under the National Labor Relations Act.
WE WILL NOT discharge or take any adverse em-
ployment action against an employee because the em-
ployee joined or supported the Union, engaged in Union
or protected, concerted activities or to discourage other
employees from joining or supporting the Union or en-
gaging in such activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer full reinstatement to employee William Jef-
frey Walls to his former job or, if his former job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make William Jeffrey Walls whole for any
loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of William Jeffrey Walls, and WE WILL , within
3 days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL, on request, bargain with the Union con-
cerning the decisions to lay off bargaining unit employ-
ees effective December 8, 1997, December 12, 1997, and
March 12, 1998, and the effects of those decisions.
WE WILL, within 14 days from the date of the Board’s
Order, reinstate any of the following employees who
have not been recalled from layoffs which violated the
National Labor Relations Act to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions, and WE WILL make all of the following em-
ployees whole, with interest, for all losses they suffered
because we laid them off without first notifying and bar-
gaining with the Union in accordance with our obliga-
tions under the Act:

Charles Amato Mike Lech
Shawn Baze Ron Mackezie
Chris Bell James Malone
Donnie Blair Kenneth May
Tray Bobo Curtis Mayberry
Joe Canup David Meredith
Mike Clark Perry Moxley
Daniel Crass Scottie Norman
Malcolm Crouch Derick Raye
Roger Davenport Merlin Reed
James Dodson Joseph Riley
Shane Emmons Paul Roberson
Benny Garland Renee Sims
Lee Hansen Robert Stack
Rocky Hill Dean Tolbert
Michael Hunt Joe Wright
Brian Hurley

WE WILL, on request, bargain with the Union con-
cerning the decision to institute a “forced ranking” sys-
tem or other procedure for the selection of bargaining
unit employees for any adverse employment action.
WE WILL, on request, bargain with the Union con-
cerning the decision to recall laid off employees to gen-
eral labor pool positions.

L.W.D., INC., L.W.D. SANITARY
LANDFILL, INC., L.W.D. TRUCKING, INC.,
L.W.D. FIELD SERVICES, INC., AND
ROBERT TERRY, INC., A SINGLE
INTEGRATED ENTERPRISE

Bruce Buchanan, Esq., for the General Counsel.
Edwin S. Hopson, Esq. and George Seay, Esq. (Wyatt, Tarrant
& Combs) of Louisville, Kentucky, for the Respondent.
Judith Wilson, for the Charging Party
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge: I heard
this case on June 15–18, July 6–9, August 27–28 and 31, 1998,
in Calvert City, Kentucky. After the parties rested, I heard oral
argument, and on October 5, 1998, issued a Bench Decision
pursuant to Section 102.35(a)(1) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of
law. In accordance with Section 102.45 of the Rules and Regu-
L.W.D., INC. 247
lations, I certify the accuracy of, and attach hereto as “Appen-
dix A,” the portion of the transcript containing this decision.1
General Counsel’s Motion For Reconsideration
Following my oral delivery of the Bench Decision while on
the record on October 5, 1998, counsel for the General Counsel
filed a Motion for Reconsideration. It states, in pertinent part,
as follows:

In his Bench Decision, [the judge] credited the testi-
mony of employee Robert Palmer that discriminatee Greg
Cummins cursed Palmer and fellow employee, Chris Bell,
for “an hour.” Therefore, Judge Locke found the exam-
ples of disparate treatment presented by the Counsel for
the General Counsel were in opposite. But, the record re-
flects Palmer testified to the following:

That’s what he (Cummins) asked us where the fuck
we’d been and he said he’d—he called us motherfuck-
ers. And he said he’d been looking for—he said, I’ve
been looking for you son of a bitches for over an hour.
I think that’s what he pretty much said. He was pretty
mad. (Tr. 2320, lines 10–14)
Thus, Cummins did not curse Palmer and Bell for
an hour, rather, he said he had been looking for them
an hour. The cursing only took a matter of seconds.
Based upon the credited testimony of Palmer, Coun-
sel for the General Counsel asserts its evidence of other
cursing incidents are examples of Respondent’s dispa-
rate treatment. The cursing incidents are supervisor
Harland Timmons to employee Robert Palmer; em-
ployee Roger Davenport to employee Merlin Reed, and
reported to supervisor Nathan Salyers; acting supervisor
Mike Simmons to employees Frankie Elkins, Mitch
Heath, and Reed; Simmons to employee Ron
MacKenzie and reported to supervisor Joe Payne; su-
pervisor Payne to employee Kevin Morris; and supervi-
sor Payne to employee James Smith. Furthermore, these
incidents when coupled with Respondent’s admitted
failure to investigate Cummins’ examples of profanity
and Cummins’ high–profile role in the union campaign
demonstrate Respondent failed to rebut Counsel for the
General Counsel’s prima facie case.

Therefore, the General Counsel urged that I reconsider my
determination that the Respondent’s suspension and discharge
of Cummins did not violate the Act, and my recommendation
that complaint paragraphs 15(a) and 15(b) be dismissed. How-
ever, the Respondent disagrees. In a Response opposing the
General Counsel’s Motion for Reconsideration, the Respondent
stated, in pertinent part, as follows:

Counsel for the General Counsel takes great liberty
with the record when he states that Cummins’ abuse of
Palmer and Bell “only took a matter of seconds.” Insofar
as Respondent can determine, the record does not reveal
exactly how long Cummins’ tirade against Palmer and

1The decision appears in the uncorrected transcript at pages 2625
through 2668. As the Bench Decision appears in Appendix A, hereto,
oral and transcriptional errors have been corrected.
Bell lasted. However, the written statement which Bell
gave to LWD management during its investigation of the
incident reveals that it lasted more than a few seconds.
Bell stated:

When we passed the Unit 3 Control room, I saw
Greg Cummins sitting in the Control Room and he
waved at us. Then he came running up to us and
started to curse at us, saying he had been looking for
us for over an hour and asked us where we had been.
He was cursing me directly and calling me filthy
names; he acted angry.
Bobby and I told him where we had been and then
we turned and returned toward the Prep Area, Greg
came up to us again and cursed us. We then returned
to Prep without talking to Greg any further [Resp. Exh.
DD (emphasis added)].
Thus, Cummins gave Palmer and Bell not one but
two tongue lashings, interspersed by their explanation
of where they had been. Based upon this and the other
evidence of the incident, we may reasonably infer that
it lasted more than a few seconds.
LWD submits that it was the nature of Cummins’
abuse of Palmer and Bell, not its length, which most
concerned LWD at the time. The significant facts,
which Judge Locke correctly found and relied upon,
were, first, that Cummins’ abuse of Palmer and Bell
was so serious and extreme that both men stated un-
equivocally that they would no longer work for Cum-
mins [Palmer, Tr. 2322; Dunnigan, Tr. 1715; Slaugh-
ter, Tr. 1777; Resp. Exh. DD, EE].

As noted by the General Counsel, the Bench Decision incor-
rectly stated that Cummins upbraided the two other workers for
an hour. The record does not establish how long Cummins’
oral chastisement of Palmer and Bell lasted. Therefore, I will
not consider the duration of the invective in deciding whether
or not the Respondent would have discharged Cummins in any
event, regardless of his union activities.
The General Counsel also correctly points to instances in
which other persons employed by the Respondent, including at
least one supervisor, engaged in conduct arguably as serious as
Cummins’ actions, and yet were not discharged for it. For ex-
ample, employee M. Robert Palmer III testified that a supervi-
sor, Harland Timmons, “bent me over, double, at the waist and
run my head into the wall, spun me around and run my head
into the door. Opened the door and said, get out.” Palmer fur-
ther testified that Timmons used an expletive between “get”
and “out” but could not recall with certainty which expletive
Timmons invoked.
Palmer reported this incident to a supervisor2 but the record
does not reflect what discipline, if any, Timmons received. He
was still working for the Respondent as a maintenance supervi-
sor at the time of hearing.
2The supervisor was James Chris Dunnigan. Although he testified,
Dunnigan was not asked about the incident between Timmons and
Palmer, and did not mention it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
Timmons testified before Palmer took the stand. He did not
mention such an incident with Palmer, but no one asked him
about it. Therefore, the seriousness of this alleged altercation
must be assessed based on Palmer’s testimony alone. It does
not appear that Palmer considered what Timmons did to be as
troubling as the cursing he received from Cummins.
In fact, it appears from his testimony that Palmer considered
himself somewhat responsible for Timmons’ reaction. That
testimony indicates that Palmer provoked Timmons’ response
by trying to grab his ear. Thus, Palmer stated, “I went to grab
his ear, and I didn’t know his back was hurt at the time. I was
the person—wrong person at the wrong place at the wrong
time.”
The General Counsel had raised this matter while cross–
examining Palmer, and suggested to the witness that Timmons
had been “pretty mad.” However, Palmer’s response did not
suggest that amount of anger: “Yes, he was a little upset,”
Palmer testified, “I mean, they had been messing with him and,
like I say, I walked in at the wrong time.”
To determine whether Respondent treated Cummins differ-
ently from Timmons requires looking at the facts that were
known to management at the time it made the decision in each
instance. Palmer’s testimony does not indicate that he was
nearly as concerned about Timmons’ conduct as he was about
Cummins. To the contrary, Palmer appeared to regard
Timmons’ action as an isolated incident which occurred when
Timmons was suffering back pain and Palmer, unaware of the
pain, pulled Timmons’ ear.
The record does not establish that Palmer ever told manage-
ment that he could not work with Timmons, or ever asked to be
separated from Timmons while at work. However, Palmer
repeatedly stated to management that although he did not want
Cummins to lose his job, he could not work with Cummins and
one of them should be moved to work elsewhere. Therefore,
management was aware that some action had to be taken with
respect to Cummins. However, there is no evidence that man-
agement was aware of, or believed there to be, any comparable
problem regarding Timmons.
As the General Counsel notes, the record documents other
instances in which an employee or supervisor cursed another
person while on the job. However, the evidence does not es-
tablish that Respondent claimed that it based its decision to
discharge Cummins on his use of profanity. Rather, I find that
Respondent felt the need to take action against Cummins be-
cause his conduct, including the profanity, made other employ-
ees unwilling to work with him.
In explaining why management decided to terminate Cum-
mins’ employment, Respondent’s president, William O’Brien,
referred both to the language Cummins had directed at the other
workers and to the question of whether he could be trusted:
“You know he had made comments that he had gone to the
guard, gone to the radio. The things that he said just weren’t
credible and you know the evidence that I saw from the two
employees was credible.”
In sum, I find that Respondent decided to discharge Cum-
mins because his actions made others unwilling to work with
him, and because management did not consider him to be
trustworthy. These factors distinguish the Cummins situation
from the instances, cited by General Counsel, in which other
workers used profanity. Although I have reconsidered my de-
cision to recommend dismissal of complaint paragraphs 15(a)
and 15(b), as requested by the General Counsel, I have reached
the same conclusion stated in the Bench Decision: Respondent
would have suspended and discharged Cummins regardless of
his protected activities. Therefore, I recommend that complaint
paragraphs 15(a) and 15(b) be dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as “Appendix B.”
Respondent unlawfully discharged its employee, William
Jeffery Walls, on or about November 1, 1997. It shall be or-
dered to reinstate Walls, and to make him whole, with interest,
for any losses he suffered because of the unlawful discrimina-
tion against him.
Additionally, Respondent must make whole, with interest,
the employees whom it laid off in violation of Section 8(a)(5)
and (1) of the Act. My specific findings with respect to those
layoffs are described below.
I have found that Respondent laid off employee Shawn Baze
on December 8, 1997 and laid off employee James Malone on
December 12, 1997, as alleged in complaint paragraph 17(a)3,
in violation of Section 8(a)(5) and (1) of the Act.4 Further, I
have found that, as alleged in complaint paragraph 17(b), on
about December 12, 1997, Respondent laid off the following
employees, who were recalled on February 24, 1998: employ-
ees Charles Amato, Chris Bell, Tray Bobo, Joe Canup, Mike
Clark, Malcolm Couch, David Meredith, Derick Raye, Joseph
Riley, Robert Stack, Joe Wright, Shane Emmons, Benny Gar-
land, Lee Hansen, Michael Hunt, Brian Hurley, Kenneth May,
Scottie Norman, Merlin Reed, Paul Roberson, and Dean
Tolbert; these layoffs also violated Section 8(a)(5) and (1) of
the Act.
Further, I have found that, as alleged in complaint paragraph
17(c), about December 12, 1997, the Respondent laid off the
following employees, who were recalled on about February 17,
1998: Donnie Blair, Daniel Crass, Roger Davenport, James
Dodson, Mike Lech, and Ron Mackezie. These layoffs also
violated Section 8(a)(5) and (1).
Additionally, I have found, as alleged in complaint para-
graph 17(d), that about December 12, 1997, Respondent laid
off the following employees: Renee Sims, who was recalled on
February 25, 1998; Perry Moxley, who was recalled on March

3 Although par. 17(a) of the complaint alleges that Respondent laid
Malone off on December 8, 1997, the evidence establishes that the
layoff took place 4 days later. Thus, Malone testified that he was ter-
minated on December 12, 1997, rather than laid off on December 8,
1997. He further testified that Respondent returned him to employment
5 days later. I find that Respondent laid Malone off on December 12,
1997 and recalled him on December 17, 1998. The minor discrepancy
between the pleadings and the proof does not affect my finding that the
layoff violated Sec. 8(a)(5) and (1) of the Act.
4 I find that Baze was recalled to work on about December 26, 1997.
L.W.D., INC. 249
6, 1998, and Rocky Hill, who has not returned. These layoffs
also violated Section 8(a)(5) and (1).
Moreover, I have found, as alleged in complaint paragraph
20(a), that about March 12, 1998, Respondent laid off the fol-
lowing employees: David Meridith, Joe Canup, Joe Riley,
Shane Emmons, Malcolm Couch, Tray Bobo, Robert Stack,
Renee Sims, Charles Amato, Paul Roberson, Curtis Mayberry,
Perry Moxley. These layoffs violated Section 8(a)(5) and (1).5
Respondent laid off all of the employees named above at a
time when it had a duty to notify and bargain with the Union
before doing so. It must offer immediate and full reinstatement
to all of the name employees who have not been recalled from
layoff. Additionally, it must make all of the named employees
whole, with interest, for all losses suffered because of Respon-
dent’s unlawful action.6
[Recommended Order omitted from publication.]
APPENDIX A
2634
P R O C E E D I N G S
9:30 A.M.
OCTOBER 05, 1998
JUDGE LOCKE: On the record. I assume the Court Re-
porter is there.
COURT REPORTER: You got it.
JUDGE LOCKE: This is a Bench Decision in the case of
L.W.D. Inc., L.W.D. Sanitary Landfill Inc., L.W.D. Trucking
Inc., L.W.D. Field Services Inc. and Robert Terry Inc., a single
integrated enterprise which I shall call the Respondent, and Oil,
Chemical and Atomic Workers International Union, AFL-CIO,
which I will call the Charging Party or the Union. The case
numbers are 26-CA-18390, 26-CA-18420, 26-CA-18538,
26-CA-18573 and 26-CA-18625.
This decision is issued pursuant to Section 102.35(a)(10) of
the Board’s Rules and Regulations.
Based upon the allegations raised by the General Counsel of
the National Labor Relations Board, Respondent’s Answers to
those allegations, and the record as a whole, I find the follow-
ing undisputed facts to be true.
On about November 20, 1997 the Oil, Chemical and Atomic
Workers International Union, AFL–CIO, which I will call the
Union or Charging Party, filed a charge against L.W.D. Incor-
porated in Case 26-CA-18390. The Union amended this charge
on about March 5, 1998. On about December 15, 1997, the
Union filed a charge against L.W.D. Incorporated in Case
26-CA-18420. The Union amended this charge on about

5 The record does not reflect when certain of these individuals were
recalled. If necessary, the determination of the backpay periods for
such individuals must be left to the compliance stage.
6 Respondent made certain of these unilateral changes immediately
before the Board issued its Certification of Representative, and made
the remainder of the unilateral changes during the first year after certi-
fication. However, the record does not establish that these unlawful
actions affected negotiations for a collective-bargaining agreement.
Therefore, I do not recommend that the certification year be extended.
See Visiting Nurse Services of Western Massachusetts, 325 NLRB
(1998).
March 6, 1998. The amendment added the name of a second
party, L.W.D. Sanitary Landfill Inc., as an employer, along
with L.W.D. Inc. On March 16, 1998 the Regional Director of
Region 26 of the National Labor Relations Board, acting on
behalf of the General Counsel of the Board, issued an Order
Consolidating Cases, Consolidated Complaint and Notice of
Hearing, which brought together Cases 26-CA-18390 and
26-CA-18420 for trial. This consolidated complaint alleged in
part that L.W.D. Inc. and L.W.D. Sanitary Landfill Inc. consti-
tuted a single integrated business enterprise and a single em-
ployer within the meaning of the National Labor Relations Act.
This complaint further alleged that L.W.D. Inc. and L.W.D.
Sanitary Landfill Inc. had engaged in unfair labor practices in
violation of Section 8(a)(1), (3) and (5) of the Act and that such
unfair labor practices affected commerce within the meaning of
Section 2(6) and (7) of the Act. On
2635
about February 27, 1998, the same Union filed an unfair labor
practice charge against L.W.D., Inc. in Case 26-CA-18538.
The Union amended this charge on about April 17, 1998 and
again on about April 20, 1998. More specifically, on about
April 17, 1998, the Union amended this charge, in part, by
naming L.W.D. Inc., L.W.D. Sanitary Landfill Inc., L.W.D.
Trucking Inc., and Robert Terry, Inc., as the charged party and
alleging that these four corporations constituted a single inte-
grated enterprise. This amended charge only alleged violations
of Section 8(a)(1) and (3) of the Act. However, on about April
20, 1998, the Union filed a second amended charge in Case
26-CA- 18572. The second amended charge alleged that the
single integrated enterprise had violated Sections 8(a)(1), (3)
and (5) of the Act. On April 22, 1998, the Regional Director of
Region 26 of the Board, acting on behalf of the Board’s Gen-
eral Counsel, issued a second Order Consolidating Cases, Con-
solidated Complaint and Notice of Hearing. This Order
brought together Cases 26-CA-18390 and 26-CA-18420, which
previously had been consolidated for hearing with Cases
26-CA-18538 and 26-CA-18573. On April 28, 1998, the Union
filed a charge in 26-CA-18625. This charge named L.W.D.
Inc., L.W.D. Sanitary Landfill Inc., L.W.D. Trucking, Inc., and
Robert Terry, Inc. as the employer. It alleged violations of
Sections 8(a)(1), (3) and (5) of the Act.
On May 15th, 1998, the Union amended the charges it had
filed in Case 26-CA-18625. The amendment added the name
of another entity, L.W.D. Field Services, Inc., to the other four
the original charge had listed as names of the employer. The
amended charge also alleged that all five of these entities,
L.W.D. Inc., L.W.D. Sanitary Landfill Inc., L.W.D. Trucking
Inc., L.W.D. Field Services, Inc., and Robert Terry, Inc., con-
stituted a single integrated enterprise.
The amended charge in Case 26-CA-18625 added the allega-
tion that commencing on about December 8th, 1997, the Re-
spondent unlawfully refused to grant a 50-cents-per-hour across
the board wage increase to employees represented by the Union
granting such a pay raise to Non-Union employees. It also
raised the allegation that commencing on or about December 8,
1997, and continuously thereafter, the Respondent refused to
notify and bargain with the Union over the alleged refusal to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
grant such a 50–cents–per–hour across the board wage increase
to Union employees. On May 8, 1998, the Regional Director
issued a third Order Consolidating Cases, Consolidated Com-
plaint and Notice of Hearing in this matter, naming all five
entities as a single integrated enterprise.
On June 8, 1998, the General Counsel, by the Regional Di-
rector of Region 26, issued an amendment to the Third Con-
solidated Complaint. Additionally, Counsel for the General
Counsel further amended the Third Consolidated Complaint
orally at trial. I will refer to the Third Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing, as
amended, simply as the Complaint. Also for simplicity, I will
use the term Respondent to refer collectively to the five em-
ployers which constitute the single integrated enterprise.
2636
The hearing in this case opened before me on June 15, 1998.
It continued on the following dates in 1998: June 16 through
18, July 6 through 9, August 27, 28, and 31. On September 30
and October 2, 1998, I heard oral argument and now, pursuant
to Section 102.35(a)(10) of the Boards Rules and Regulations,
issue this Bench Decision.
The Respondent’s Answer admits a number of allegations
raised by the Complaint. Based upon those admissions and the
record as a whole, I find that the General Counsel has proven
all allegations in Complaint paragraph 1, regarding filing and
service of the unfair labor practice charges and amended
charges in this case.
With respect to complaint paragraph 2, the Respondent’s an-
swer admitted the allegations in Paragraphs 2(a), (b), (c), (d)
and (e) of the Complaint except that Respondent denies, and
here I quote the Answer, “The allegations concerning the nature
of their businesses.” I understand the Respondent’s answer to
mean that Respondent admits that L.W.D., Inc., L.W.D. Sani-
tary Landfill, Inc., L.W.D. Trucking, Inc., Robert Terry, Inc.,
and L.W.D. Field Services, Inc. are all corporations with of-
fices in places of business in Calvert City, Kentucky. However,
it appears that Respondent does not admit that the Complaint
accurately describes the type of work performed by each of
these entities.
Paragraph 2(f) of the Complaint alleges that these five corpo-
rations have been affiliated business enterprises with common
officers, ownership, directors, management and supervision,
that they have formulated and administered a common labor
policy, have shared common premises and facilities, have pro-
vided services for and made sales to each other, have inter-
changed personnel with each other, and have held themselves
out to the public as a single integrated business enterprise.
Paragraph 2(g) of the Complaint alleges that these entities
constitute a single integrated business enterprise and a single
employer within the meaning of the Act. The Respondent’s
Answer admits that these five entities are affiliated corporations
with common ownership and directors, that they have some
common management, have shared administrative offices, have
provided services to and made sales to each other, and have
held themselves out as a single integrated enterprise. Respon-
dent’s Answer further admits that these entities constitute a
single employer within the meaning of the Act. Based upon
Respondent’s admissions and the record as a whole, I find that
the five corporations named in the complaint constitute a single
integrated enterprise and a single employer within the meaning
of the Act.
Complaint paragraph 3 alleges that the Respondent’s reve-
nues derived from sales and shipments to points outside the
State of Kentucky exceeded fifty thousand dollars during the
12-month period ending April 30, 1998. It also alleges that
during this same period, the
2637
Respondent purchased and received at its facility goods valued
in excess of fifty thousand dollars directly from points outside
the State of Kentucky.
Complaint paragraph 4 alleges that at all material times, the
Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
Respondent has admitted the allegations in Complaint para-
graphs 3 and 4. Based upon these admissions and the record as
a whole, I find that Respondent meets the Board’s standards for
the assertion of jurisdiction and 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.
Further, based upon Respondent’s admission of the facts al-
leged in paragraph 5 of the complaint, I find that the Oil,
Chemical and Atomic Workers International Union, AFL–CIO,
which I will call the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
Paragraph 6 of the Complaint alleges that certain individuals
are supervisors of the Respondent and its agents within the
meaning of Sections 2(11) and 2(13) of the Act, respectively.
Except for one of the persons named, Don Shaun, the Respon-
dent’s Answer admits such supervisory status. Based upon the
admissions in Respondent’s Answer and the entire record, I
find that at all material times, the following individuals are
supervisors of Respondent within the meaning of Section 2(11)
of the Act, its agents within the meaning of Section 2(13) of the
Act, and that each individual occupied the position stated after
his or her name: Amos Shelton, Chairman of the Board of
Directors; William O’Brien, President; Sidney Slaughter, Op-
erations Manager; Timothy G. Scheer, Controller; Margie
Louise Shelby, Vice President of Development; Danny Bur-
nett, Senior Operations Supervisor; Chris Dunnigan, Prep Area
Supervisor; Mark Borden, Supervisor; Steve Mathis, Trucking
Foreman; David Brown, Human Resources Manager.
Paragraph 7 of the Complaint has alleged, and the Respon-
dent’s Answer had admitted, that the following employees of
L.W.D., Inc. and L.W.D. Sanitary Landfill, Inc., constitute a
unit appropriate for purposes of collective–bargaining within
the meaning of Section 9(b) of the Act: Included: all produc-
tion and maintenance employees, plant clericals, plant truck
drivers, prep material handlers, solidification employees, stabi-
lization employees, sanitary landfill employees, and shift lead-
ers employed by L.W.D. Inc., and L.W.D. Sanitary Landfill,
Inc. Excluded: all employees employed by L.W.D. Trucking,
Inc. and L.W.D. Field Services, Inc., contract employees of
Robert Terry, Inc., office clerical employees, professional em-
L.W.D., INC. 251
ployees, technical employees, watchmen, guards and supervi-
sors, as defined in the Act.
2638
Based upon the admission in Respondent’s Answer, I find
that this unit, which I will call the Unit, is an appropriate unit
for collective bargaining within the meaning of Section 9(b) of
the Act.
Paragraph 8 of the Complaint alleges, and the Respondent’s
Answer admits, that on December 15, 1997, based on an elec-
tion conducted by the Board on December 5, 1997, the Union
was certified as the exclusive collective bargaining representa-
tive of the Unit. I so find. Although Respondent admitted the
appropriateness of the Unit and also admitted that the Board
certified the Union as the exclusive bargaining representative of
the Unit on December 15, 1997, based upon the election which
the Board conducted on December 5, 1997, the Respondent
denied the allegation raised in Complaint paragraph 9. That
paragraph stated as follows: “At all times since December 5,
1997, the Union, by virtue of Section 9(a) of the Act, has been
and is the exclusive representative of the Unit for the purposes
of collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment.”
Because Respondent admitted that the Board certified the
Union as the exclusive representative of the Unit, I find that the
General Counsel has proven the allegations in paragraph 9 of
the Complaint. During the first year after it is certified, the
Board presumes conclusively that a Union is the exclusive col-
lective-bargaining representative. Clearly, this certification
year has not ended and the Union’s status as collective-
bargaining representative cannot be called into dispute. I find
that at all times since December 12, 1997, the Union has been,
and is, the exclusive representative of the employees in the
Unit, by virtue of Section 9(a) of the Act.
However, Complaint paragraph 9 alleges that the Union’s
status as exclusive representative of the Unit began on Decem-
ber 5, 1997, the date when the election took place. The record
contains no evidence to indicate that any employee who voted
for the Union on December 5, abruptly had a change of heart or
mind during the following ten days. In other respects, the evi-
dence does not provide any basis for a finding that the Union
lacked majority support during the ten days following its vic-
tory in the election. Therefore, I find in accordance, with
Complaint paragraph 9, that at all times since December 5,
1997, the Union, by virtue of section 9(a) of the Act, has been
and is now the exclusive representative of the Unit for purposes
of collective bargaining.
Respondent’s Answer admitted certain other allegations
raised in the Complaint. However, I will discuss these admis-
sions later in connection with an evaluation of each individual
unfair labor practice allegation.
2639
We will first take up Complaint paragraph 10. The first of
the unfair labor practice allegations are found in Complaint
paragraph 10, which alleges that Respondent, by it’s senior
operations supervisor, Danny Burnett, made unlawful state-
ments to employees on about December 3 and 4, 1997. Be-
cause the amended version of Complaint paragraph 10 differs
significantly from earlier ones, it may be helpful to describe the
allegations in detail as they are now constituted.
Paragraph 10(a)(1) alleges that on about December 3, 1997,
Burnett interrogated an employee about the employees Union
membership activities and sympathies of other employees.
Paragraph 10(a)(2), as it now exists, alleges that on about
December 3, 1997, Burnett informed employees that it would
be futile for them to select the Union as bargaining representa-
tive by telling an employee that Respondent would not sign a
contract and that its employees were not going to gain anything.
Paragraph 10(b)(1) alleges that on about December 3 and 4,
1997, Respondent, acting through Burnett, interrogated em-
ployees about their Union membership, activities and sympa-
thies.
Paragraph 10(b)(2) alleges that during the same period, Bur-
nett solicited employees’ complaints and grievances and prom-
ised the employees improved terms and conditions of employ-
ment if they voted against the Union.
Paragraph 10(c)(1) alleges that on about December 3, 1997,
Burnett interrogated an employee concerning the employee’s
Union membership, activities and sympathies.
Paragraph 10(c)(2) alleges that on the same date, Burnett
told an employee that Respondent could not afford a union,
which indicated that it was futile for the employees to select the
Union as their collective-bargaining representative.
The Respondent has denied all these allegations. Employee
Kevin Morris testified that on about December 3, 1997, his
immediate supervisor sent him to the office of Senior Opera-
tions Supervisor Burnett and that no one else was present when
he spoke with Burnett. According to Morris, Burnett asked him
what he thought about the Union. Morris testified that he told
Burnett that there were problems in the plant and that it would
not be an overnight fix. Morris quoted Burnett as responding
that Amos Shelton would not stand for any Union at L.W.D.
and would not sign a contract.
2640
Employee Tray Neil Bobo testified that about two days be-
fore the election, he was called to Burnett’s office. Bobo was
an open supporter of the Union who wore Union insignia on his
clothing. In Bobo’s words, which I quote, “Burnett pretty
much asked me how I felt about the Union and he asked me,
told me, the purpose was, he was going to try to talk me, per-
suade me that the Union wasn’t the right idea for L.W.D. at this
time.”
According to Bobo, Burnett asked him what he, Bobo,
thought the Union could do for the company. After Bobo re-
sponded that it would be nice to have a contract, as Bobo put it,
so “everything would be pretty much in stone,” Burnett re-
sponded that he did not think Amos Shelton would “take it very
good.” Bobo further testified that Burnett said that the new
plant manager was going to bring a lot of changes and was
going to try to give the employees a pretty good deal.
Another employee who was an open Union adherent, Mike
Leech, testified that about two days before the election, Burnett
was calling each person on their shift into his office for a one–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
on–one talk. According to Leech, when Burnett saw the stick-
ers on Leech’s hat, he said it was obvious how Leech felt about
the Union. To quote Leech’s testimony, “Basically, he wanted
me to think about my decision. He wanted me to give Bill
O’Brien a chance.” Leech further testified that when he left,
Burnett told Leech that he needed to vote like his job depended
on it. Based upon my observations of the witnesses, I credit
Leech’s testimony.
Another employee, Scott Norman, also displayed his open
support for the Union on his hard hat. After he was called into
Burnett’s office on December 3rd, Norman testified, Burnett
just looked at the stickers on Norman’s hard hat and began
shaking his head. According to Norman, Burnett then asked
why Norman believed the employees needed a Union. After
Norman responded, Burnett said he wished that Norman would
give the new management a chance before they voted the Un-
ion in, that Burnett believed that the new company president,
William O’Brien, and the new operations manager, Sid Slaugh-
ter, would make the changes that needed to be made.
The testimony of still another employee, Lee Hansen, further
suggests that Burnett’s efforts to persuade employees went
beyond ordinary expressions of opinion and extended to unlaw-
ful questions about the Union sympathies of the employees.
Hansen credibly testified that about two days before the elec-
tion, he was told to go to Burnett’s office, where Burnett ex-
plained that their meeting related to the upcoming Union vote.
Hansen testified that Burnett asked him, “what I was going to
vote—what I was going to do come the day of the vote.”
When Burnett testified, he admitted asking supervisors to
send employees up to his office and said that he spoke with at
least fourteen employees for sure, although he did not recall
any of their names. Burnett denied interrogating any employ-
ees about their Union
2641
activities or the Union activities of other workers. He also
denied telling an employee that the company would never sign
a contract with the Union. Similarly, he denied ever telling
employees that they were not going to gain anything and that it
would be futile for them to select the Union. However, Burnett
did admit asking employees what their complaints or griev-
ances were, although he did deny promising to remedy such
problems.
To the extent that Burnett’s testimony contradicts that of
Morris, Bobo, Leech, Hansen, and Norman, I do not credit it.
The testimony of the employee witnesses forms a consistent
picture, that, two days before the election, Burnett embarked
upon a campaign to sway employees to vote against the Union.
Additionally, I base this credibility determination upon my
observations of the witnesses. In particular, Bobo’s demeanor
when testifying impressed me as being truthful and his testi-
mony is consistent with that of the other employee witnesses.
In reaching the decision to credit Morris rather than Burnett,
I note that both of them testified that the meeting in question
took place after the time when Burnett usually would leave
work for the day. In fact, Burnett’s testimony establishes that
he met with at least fourteen people after his normal quitting
time. Clearly, these meetings were out of the ordinary and had
only one obvious purpose, discussion of the Union with em-
ployees.
It seems unlikely that Burnett would go to the trouble of hav-
ing supervisors send employees to his office but then only ask
them one question. Moreover, although Burnett denied interro-
gating any employee about Union activities, he admittedly did
solicit information from them about their grievances. Burnett
testified, and I quote, “I did ask them somewhat some of their
complaints, but no, I did not promise them anything.”
Some of the employees summonsed to Burnett’s office were
open Union supporters. The facts therefore, must be examined
closely to determine, using the analytical principles expressed
by the Board in Rossmore House, 269 NLRB 1176 (1984),
whether Burnett’s asking them about their Union sympathies
violated Section 8(a)(1) of the Act.
In Smith and Johnson Construction Co., 324 NLRB No. 153,
decided October 31, 1997, the Board affirmed the administra-
tive law judge’s analysis of certain statements alleged to violate
Section 8(a)(1) of the Act. The judge had described that analy-
sis in these terms which I quote verbatim from his decision: “In
deciding whether interrogation is unlawful, I am governed by
the Board’s decision in Rossmore House, 269 NLRB 1176
(1984). In that case, the Board held that the lawfulness of ques-
tioning by employer agents about Union sympathies and activi-
ties turned on the question of whether, ‘under all the circum-
stances, the interrogation reasonably tends to restrain or inter-
fere with the employees in the exercise of rights guaranteed by
the Act.’ The Board, in Rossmore House, noted the [test set
forth in Bourne Co. v. NLRB,
2642
332 F.2d 47 (2d Cir. 1964)] was helpful in making such an
analysis. The Bourne test factors are as follows: 1. The back-
ground, i.e., is there a history of employer hostility and dis-
crimination? 2. The nature of the information sought, for ex-
ample, did the interrogator appear to be seeking information on
which to base taking action against individual employees? 3.
The identity of the questioner. That is, how high was the ques-
tioner in the Company hierarchy? 4. The place and method of
interrogation, for example, was the employee called from work
to the boss’s office? Was there an atmosphere of ‘unnatural
formality’? and 5. The truthfulness of the reply.”
I will apply the same analytical framework here, which the
Board approved in Smith and Johnson Construction Co., which
I have just quoted.
Burnett is not a first time supervisor but rather is the Re-
spondent’s senior operations supervisor. He had his subordi-
nate supervisor call the employees into his office, a locus of
authority, and he spoke with them one on one. Moreover, Bur-
nett spoke with Morris and other employees only two days
before the representation election. In these circumstances, it
appears clear that Burnett’s statements reasonably would tend
to interfere with, restrain and coerce employees in the exercise
of their Section 7 rights. I find that these statements constitute
unlawful interrogation and solicitation of grievances. Addi-
tionally, it is clear that statements which constitute threats rea-
sonably would tend to coerce employees, regardless of their
Union sympathies. Statements that bargaining would be futile
L.W.D., INC. 253
would have similar coercive effects, without regard to the Un-
ion sympathies of the employees who heard them.
Complaint subparagraphs 10(a)(2) and 10(c)(2) allege that
about December 3, 1997, Respondent, by Danny Burnett, made
statements conveying to employees the message that collective
bargaining would be futile and unproductive. The testimony of
Morris and other employee witnesses, which I have already
discussed and which I do credit, establishes these allegations. I
find that Burnett did tell employees that Respondent’s chair-
man, Amos Shelton, would not stand for any Union at L.W.D.
and would not sign a contract. Applying an objective standard,
I conclude that these statements reasonably would coerce an
employee in the exercise of Section 7 rights. I find that Burnett
made the statements attributed to him in paragraph 10 of the
Complaint and that these statements interfered with, restrained,
and coerce employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act.
We turn now to complaint paragraph 11. Originally, com-
plaint paragraph 11 alleged that three different supervisors
interrogated employees about their Union membership, activi-
ties and sympathies. In the June 1998 amendment to the Third
Consolidated Complaint, the General Counsel, in effect, dis-
claimed attempting to prove that Don Shaun, on December 4,
1997, interrogated any employees. Later, during the course of
the hearing, the General
2643
Counsel effectively disclaimed that Chris Dunnigan, on De-
cember 5, 1997, interrogated employees. Therefore, I recom-
mend that these allegations in Complaint paragraph 11 be dis-
missed.
However, that paragraph also alleges that in mid–November
1997 the Respondent’s foreman, Steve Mathis interrogated
employees about their Union membership, activities, and sym-
pathies. Employee Walls testified that about two weeks before
the election, supervisor Mathis spoke with him in the Respon-
dent’s truck shop. According to Walls, Mathis asked “Why are
you supporting the Union?” and Walls replied “Well, I think we
need a contract saying what we have and what we don’t have.”
According to Walls, Mathis responded, “Well, I respect your
opinion on that” and that was the end of the conversation. The
version given by Mathis is rather different, but if credited, it
would also establish a Section 8(a)(1) violation. The difference
is that the testimony given by Walls establishes interrogation in
violation of Section 8(a)(1), while the version given by Mathis
proves an unlawful threat. Based upon my observation of the
witnesses, I credit Mathis’s version.
He testified that after seeing some employees passing out
Union leaflets near the facility, he came into the shop and said,
“I’m afraid them guys are messing up.”
According to Mathis, his comment made Walls angry. Walls
said he had belonged to a Union before. Mathis replied “I be-
longed to one, too, and they really messed me up in the past.”
Mathis later apologized to Walls for offending him and told
Walls that he respected Walls opinion.
Mathis impressed me as being a sincere witness and it ap-
pears clear that when he told employees that the Union hand-
billers were messing up, he was only expressing an opinion
based upon his personal experience.
However, intent is not an element of a Section 8(a)(1) viola-
tion. As the Board stated in Waco, Inc. 273 NLRB 746, 748,
(1984), “It is too well settled to brook dispute that the test of
interference, restraint and coercion under Section 8(a)(1) of the
Act does not depend on an employer’s motive nor on the suc-
cessful effect of the coercion. Rather, the illegality of an em-
ployer’s conduct is determined by whether the conduct may
reasonably be said to have a tendency to interfere with the free
exercise of employee rights under the Act.”
Applying an objective standard, I find that Mattis’s statement
that the employees who handbilled were “messing up” reasona-
bly would be understood as a threat of unspecified
2644
reprisal which would chill the exercise of Section 7 rights.
Further, I find that this matter has been fully litigated at the
hearing. Therefore, I recommend that the Board find that Re-
spondent violated Section 8(a)(1) by this comment. However, I
conclude that the evidence is insufficient to establish that
Mathis interrogated an employee as alleged in paragraph 11 of
the complaint and recommend that such allegation be dis-
missed.
Turning to Complaint paragraph 12.
Paragraph 12 of the Complaint alleges that about December
17, 1998, Respondent by Mark Borden, by oral announcement,
promulgated and since then has maintained the following rule.
“Any group of more than two employees caught talking Union
would be considered as a strike in place and the employees
would be terminated.”
Employee Frank Holloway testified that supervisor Borden
told him, “that for my information, if more than two employees
were caught talking about the Union, it would be considered a
strike in place and they would be terminated.”
Borden testified, “What I told Frank was that if they had a
group together and then that would consist of more than two
people during work hours, that that could be construed as a
strike in place, if they were – had jobs to do, had work to do
and they were not doing that, they were doing other business.
However, I never implied termination in that at all.”
Borden could not recall whether this conversation took place
before or after the December 5, 1997 election. Holloway’s
testimony indicates it took place after employees were laid off
or terminated around December 7, 1998. I find that Borden
made the statement to Holloway sometime between December
7 and December 17, 1998.
Based upon my observations of the witnesses, I credit Bor-
den’s testimony to the extent it conflicts with Holloway’s.
However, I find that the statement constitutes an unlawful re-
striction on employees’ Section 7 rights to discuss the Union,
regardless of which version is credited.
It appears that Mr. Borden’s motive was innocent of any
anti-Union animus. However, as already noted, intent is not an
element of a Section 8(a)(1) violation. I recommend that the
Board find that Respondent violated Section 8(a)(1) as alleged
in paragraph 12 of the Complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
As amended, paragraph 13(a) of the Complaint alleges that
about December 12, 1997, Respondent, by William O’Brien, by
telling an employee who had been Laid off that its
2645
employees had been told to vote as if their jobs depended on it,
implied that its employees had been laid off because the Union
was selected as their collective bargaining representative.
Paragraph 13(b) alleges that on October 2, 1998, Respondent
by William O’Brien, in a letter, threatened its employees with
job losses if the employees selected the Union as their bargain-
ing representative.
With respect to the allegation in Complaint paragraph 13(a),
employee James Malone received a layoff notice on December
12, 1997. As he was escorted out of the plant, he noticed that
the Respondent’s president, William O’Brien, was in the guard
house. Malone went in and shook O’Brien’s hand. They dis-
cussed Malone’s prospects for being recalled. Malone testified
that he recalled O’Brien saying that the employees had been
told to vote as if their jobs depended on it.
Although O’Brien testified, he did not deny making the
statement which Malone attributed to him; therefore, I find that
O’Brien did remind Malone that the Respondent had informed
employees to vote as if their jobs depended on it. In the context
of the conversation that Malone just having been notified that
he was out of work, the link between the outcome of the repre-
sentation election and the employees loss of work, is obvious. I
find that O’Brien’s comment violated Section 8(a)(1) of the act
as alleged in Complaint paragraph 13(a).
However, I do not find that the letter described in complaint
paragraph 13(b) violates the Act, although the question is very
close. The letter varies to some extent from the description in
the amendment to the Complaint, but it clearly expresses the
Respondent’s dislike of unions and desire to remain non-union.
However, such expressions do not contain a threat of reprisal or
a force or promise of benefit and thus, under Section 8(c) of the
Act, do not constitute unfair labor practices. The statement in
the letter urging employees to think about it carefully and “on
the day of the election, vote as if your job depends on it,”
comes quite close to the line.
The term “as if” grammatically insulates the sentence from
being an outright threat. If the words “as if” were removed, the
sentence would read, “Vote, your job depends on it,” which
might easily constitute a threat. However, the plain meaning of
the phrase “as if” conveys the sense of something untrue or not
likely to be true. Indeed, the phrase seems to have currency
among teenagers who can express, with practiced inflection, a
multitude of doubt with those two two–letter words. The words
bring the same cargo of doubt to the sentence tying an em-
ployee’s vote to his job security. I conclude that the sentence
does not constitute a threat or reprisal and therefore, is pro-
tected by Section 8(c). Therefore, I recommend that this
allegation be dismissed.
2646
However, in the case of the statement alleged in paragraph
13(a) of the Complaint, the context of the statement, coupled
with the actual existence of a layoff, transforms the statement
from being merely conditional or subjunctive into a statement
which equates the way the employees voted with the outcome
of employees being discharged or laid off. Therefore I find that
paragraph 13(a), does allege and that the General Counsel has
proven that violation.
Turning now to Complaint paragraph 14. Various amend-
ments have increased the number of allegations in Complaint
paragraph 14. For clarity, I will describe each allegation before
discussing the evidence relevant to it. Paragraph 24 of the
Complaint alleges in part that the conduct described in para-
graph 14 violates Section 8(a)(1) of the Act. However, the
Complaint does not allege that the conduct described in para-
graph 14 violates other sections of the Act.
Turning to paragraph 14(a). Complaint paragraph 14(a) al-
leges that on about April 6, 1998, Respondent, by David
Brown, at Respondent’s facility, told its employees that a
scheduled wage increase had been cancelled because of the
Union campaign.
Employee Frank Holloway is a member of the Union’s bar-
gaining committee. He testified that at a negotiating session on
April 6, 1998, Human Resources Manager David Brown, and
the Union’s international representative, Judith Wilson, became
involved in a discussion about wage increases. Holloway
stated in part as follows, “Ms. Wilson, at one point, asked Mr.
Brown if he would take a two dollar. . .an hour wage cut. Mr.
Brown replied that he hadn’t had a raise in several years. He
mentioned that they had had one scheduled for September but
due to the Union campaign couldn’t give it to us.”
According to Holloway, Ms. Wilson replied that if a wage
increase had been scheduled in September, Respondent should
give it to the employees right then.
Ms. Wilson’s testimony corroborates Mr. Holloway’s. She
testified that during this discussion with Human Resources
Manager Brown, he told her that he had not had a wage in-
crease in four years, to which she responded, “well, neither
have these men.”
Brown disagreed, stating that the employees got a wage in-
crease every year across the board, and (quoting here from
Wilson’s testimony) “As a matter of fact, they were going to
get one in September and we couldn’t give it to them because
of the Union campaign.”
At that point, according to Wilson, Holloway protested that
he had not received wage increases across the board in the pre-
vious four years but Brown disagreed.
2647
Another member of the Union’s negotiating committee, em-
ployee Paul Roberson, corroborated the testimony given by
Holloway and Wilson. Describing the April 6, 1998 bargaining
session, Roberson quoted Human Resources Manager Brown as
saying that the employees had a yearly scheduled pay raise
scheduled for September but they could not implement it be-
cause of the Union campaign going on at that time.
Local Union President Jeffrey Remage, who was also em-
ployed by Respondent, attended the April 6, 1998 bargaining
session. His testimony corroborated that Roberson, Wilson and
Holloway.
L.W.D., INC. 255
Additionally, International Representative Ray West at-
tended the April 6, 1998 bargaining session. West testified that
at one point, Human Resources Manager Brown told the Union
negotiators that, to quote Mr. West, “There was a great pay
increase scheduled for the workers at L.W.D. in September but
since this Union thing came along, we couldn’t do it.”
Although Human Resources Manager Brown took the wit-
ness stand four times during the hearing, he did not specifically
deny the statements attributed to him by the members of the
Union’s bargaining committee. In light of this uncontradicted
testimony, I find that Brown did tell the Union negotiators that
unit employees had been scheduled to receive a raise in Sep-
tember but that the Respondent could not give it because of the
Union organizing campaign.
Because paragraph 14 of the Complaint only describes con-
duct alleged to violate Section 8(a)(1), but not other sections of
the Act, the question presented is solely whether Brown’s
statement interfered with, restrained or coerced employees in
the exercise of Section 7 rights. I find that it did.
It might be argued that Brown’s statement reflected an as-
sumption that it would be unlawful for the Respondent to grant
a wage increase at a time the Union was organizing the facility
because announcement of a wage increase might constitute an
unlawful promise of benefits which itself might interfere with
the employees’ exercise of Section 7 rights. However, that is
not what Brown said.
Brown’s words—that employees were scheduled to get a
wage increase but did not receive it because of the Union—
convey a message that Respondent was retaliating because
employees selected a union to represent them. Such a state-
ment clearly interferes with Section 7 rights and I find, violates
Section 8(a)(1) of the Act.
Paragraph 14(b).
2648
Complaint paragraph 14(b) alleges that on about December
3, 1997, Respondent, by Human Resources Manager David
Brown, interrogated an employee about his Union sympathies
and informed an employee that a scheduled wage increase had
been cancelled because of the Union campaign. The govern-
ment elicited testimony from employee Daniel Crass concern-
ing a conversation with Brown on December 3, 1997. How-
ever, Crass’s testimony was confusing.
At one point, Mr. Crass testified that Brown, “said we was
going to get fifty cent raise and if the Union already started,
then we probably wouldn’t get it anyway.” Mr. Crass then
testified, and again I quote, “I asked him if the Union lost,
would we still get the fifty cents. He said, no, probably not.”
When asked if those were Brown’s exact words or Mr. Crass’s
impression of what Mr. Brown said, Crass responded, “No
that’s his exact words.”
Were I to credit Mr. Crass’s testimony, I would have to con-
clude that Mr. Brown had made a statement likely to get more
employees to vote for the Union, namely, that if the Union lost,
they would not get a raise. Such a statement would be inconsis-
tent with the record as a whole.
It is possible that the witness simply became flustered on
cross examination and misspoke. However, Mr. Crass made a
similar statement on direct examination, when he testified that
he asked Brown, “If the Union doesn’t pass, would we still get
a fifty cent raise and he said, no, probably not.”
During oral argument, the General Counsel, in essence,
withdrew the allegation in Complaint paragraph 14(b)(1).
Therefore, I recommend that this allegation be dismissed.
However, I believe that the difficulties apparent with Mr.
Crass’s testimony regarding the allegations in paragraph
14(b(1) also call into question the reliability of his recollection
on other matters as well. I am reluctant to trust his memory
with respect to the other allegation in Complaint paragraph
14(b) concerning an interrogation of an employee about the
employee’s Union sympathies.
In sum, I find that the Government has not proven the allega-
tions in Complaint paragraph 14(b), and recommend that they
be dismissed.
* * *
Complaint paragraph 14(c) alleges that in early November
1997, Respondent by Nathan Salyers, promulgated a rule which
prevented the distribution of Union literature in the employee
breakroom. To prove this allegation, the Government elicited
testimony from
2649
former employee Paul Roberson, who testified that he had a
conversation with Salyers in the break room when no one else
was present. Mr. Roberson testified and I quote, “Nathan Sal-
yers informed me that if there was any Union material left out
that he was suppose to pick it up and destroy it.”
On cross examination, Mr. Roberson admitted that Mr. Sal-
yers never told him he could not distribute Union literature in
the break room and Mr. Roberson also admitted that he was
able to do so. Therefore, it appears clear that there is no rule
which prohibits distribution of Union literature. In fact, the
evidences does not establish that there is any rule prohibiting an
employee from leaving Union literature lying around the break
room. If there is a rule at all, it is simply that if someone leaves
Union pamphlets around the break room then they will be
thrown away.
The record is insufficient to establish any sort of discrimina-
tion by management in deciding what literature will stay on the
break room tables and which will wind up in the recycle bin. I
conclude that the government has not proven the allegations in
Complaint paragraph 14(c). For that reason, I do not reach the
further question of whether Nathan Salyers is a supervisor or
agent to the Respondent in recommending that paragraph 14(c)
be dismissed.
Complaint paragraph 14(d)(1) alleges that in late November
to early December 1997, Respondent, by Joe Payne, solicited
employees complaints and grievances.
Complaint paragraph 14(d)(2) alleges that Payne threatened
an employee with loss of unspecified wages or benefits if the
employees selected the Union as their bargaining representa-
tive. However, in oral argument, Counsel for the General
Counsel indicated an intention to delete paragraph 14(d)(2).
Therefore, and in the absence of evidence to establish the viola-
tion alleged, I recommend that complaint paragraph 14(d)(2) be
dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
Regarding the allegation in paragraph 14(d)(1), the govern-
ment offered testimony from employee Merlin Reed who had
been highly active on behalf of the Union. In fact, Reed testi-
fied that he made the initial contact with the Union. Later in
the campaign, Reed wore the Union emblem and distributed
Union leaflets at the gate to the Respondent’s facility. In sum,
Reed’s Union activities were not only obvious but rather ines-
capable.
Reed testified that Payne was his supervisor and that a week
or so before the December 5th election, he went to Payne to
make some photocopies. According to Reed, Payne said that
he wanted to ask Reed a hypothetical question. Reed testified
that Payne asked, “Just what is it you all expecting to gain from
this?”
2650
Reed said the employees wanted a “word in the workplace.”
Payne asked, “just what is one thing that has got you guys, you
know, what is the Union going to do for you?” Reed replied
that the employees’ insurance had changed. When Payne re-
sponded that insurance had changed at a lot of plants, another
employee came along and the conversation ceased. Consider-
ing that this conversation did not occur in a locus of authority,
that it did not seek information which could be used for retalia-
tion against Union adherents, that it did not involve any official
of higher management, and that the employee questioned was
an open supporter of the Union, I conclude that Payne’s state-
ments and questions reasonably would not tend to interfere
with, restrain or coerce employees in the exercise of Section 7
rights. See Rossmore House, 269 NLRB 1176 (1984); Smith
and Johnson Construction Co., 324 NLRB No. 153 (October
31, 1997).
Additionally, I note that Section 8(c) of the Act states that
“The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic or
visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if such
expression contains no treat [sic] of reprisal or force or promise
of benefit.” Payne’s statements to Reed did not contain any
threat of reprisal or force or promise of benefits. In these cir-
cumstances, I need not reach the question of whether Payne
was then a supervisor of the Respondent or its agent. I recom-
mend that the allegations in Complaint paragraph 14(d)(1) be
dismissed.
During the hearing, the General Counsel amended the Com-
plaint to add a paragraph 14(e) which alleged that on a date
between October 30, 1997 and December 5, 1997, Respondent,
by Nathan Salyers, at Respondent’s facility, interrogated em-
ployees concerning their Union sympathies. The government
added this allegation after Salyers testified on cross examina-
tion that every night, he would tidy up the break room by
throwing away paper lying around on the tables. When em-
ployees began leaving Union leaflets on the tables, Salyers
testified, before he threw them in the trash, he would hold them
up and would ask if anyone wanted to read them. It is clear
from Salyers testimony that he regarded it as a courtesy to do
so, and I did not gather any indication that Salyers was trying to
trick anyone into revealing that he was a reader, overt or covert,
of such Union material.
It is clear that Salyers had been tidying up the break room for
a long period of time and that this practice of asking if anyone
wanted something before it was thrown out did not begin when
the Union literature began appearing on the tables. Although
Salyers’ intent in asking the question is irrelevant to establish-
ing any 8(a)(1) violation, it remains relevant to understanding
how employees would interpret Salyers’ question. The fact that
Salyers had a longstanding habit of throwing away items which
cluttered the table certainly would affect how employees rea-
sonably would understand his question. Moreover, they were
under no compulsion to answer or else forfeit something of
monetary value.
2651
Therefore, I cannot conclude that asking the question, “Does
anyone want this?” constituted an interrogation which inter-
fered with, restrained or coerced employees in the exercise of
protected rights.
Even though another employee testified that Salyers was not,
in his opinion, a “neat freak,” I believe that is somewhat beside
the point. Salyers seemed motivated by attention to courtesy as
much as by attention to neatness.
In any event, because I do not find the casual questions to be
coercive, I need not decide whether or not Salyers is a supervi-
sor or agent of the Respondent. I recommend that complaint
paragraph 14(e) be dismissed.
Paragraph 14(f). Also of the hearing as General Counsel
amended the Complaint to allege a paragraph 14(f), which
stated “From September 22, 1997 through December 5, 1997,
Respondent, by Harland Timmons, at Respondent’s facility,
solicited employee complaints and grievances and implicitly
promised to resolve their complaints and grievances.”
Timmons has held the title of Maintenance Supervisor for
fifteen years and has a crew of fifteen employees. He testified
that after the Union campaign began, he spoke with these em-
ployees. He told them, and I am quoting Timmons directly,
“That the company couldn’t stand the Union right now. The
finances would not allow it and there was really no need for a
Union.”
Timmons also testified that he asked the employees what
they were looking for and told them, “The company has no
money. You can’t get any more money. You’ve got a real
good benefit package now. The Union cannot guarantee you a
job. If the company cannot afford to have you, then you still
don’t have a job, with or without the Union.”
Timmons also admitted in his testimony that he told employ-
ees he would check into their problems and do what he could. I
find that these comments, if made by a statutory supervisor,
would constitute an unlawful solicitation of grievances. The
question then arises as to whether Timmons is a statutory su-
pervisor.
Although the record does not squarely address what indicia
of supervisory status Timmons possesses, I find that it is suffi-
cient to establish that he was a supervisor within the meaning of
Section 2(11) of the Act at the time he made the statements in
question. Thus, I note that Timmons evaluated employees un-
L.W.D., INC. 257
der the “forced ranking” program instituted by the new man-
agement, and that these evaluations determined which employ-
ees were laid off. Since I conclude that Timmons is a supervi-
sor, I further conclude that the statements he made are
2652
attributable to the Respondent and that Respondent thereby
interfered with, restrained and coerced employees in the exer-
cise of Section 7 rights in violation of Section 8(a)(1) of the
Act.
Complaint paragraph 15. Complaint paragraph 15(a) and b
allege that Respondent suspended its employee, Gregory A.
Cummins, on about November 11, 1997 and discharged him on
about November 21, 1997.
Complaint paragraph 15(c) as amended, alleges that about
December 12, 1997, the Respondent terminated the employ-
ment of William Jeffrey Walls. The Respondent admits these
allegations but it denies the conclusions alleged later in the
complaint that these actions violated Sections 8(a)(1) and (3) of
the Act.
Cummins made his support for the Union known to man-
agement during an employee meeting sometime in late October
1997. According to Cummins, when the Respondent’s new
President, William O’Brien, expressed an opinion that the Un-
ion was undemocratic, Cummins replied and I quote, “Well, I
didn’t think the company was very democratic because I had a
3 out of a 4 on an attitude and then they tried to fire me a week
later.”
Cummins testified that he also said he did not think the Re-
spondent’s employee handbook was worth the paper it was
written on, and that he was going to vote for the Union. Cum-
mins was the first to speak out on behalf of the Union at the
meeting but others followed.
Also in late October 1997, Cummins used vulgar language
when asking another employee where he had been and what he
had been doing. When management found out, they called
Cummins in for a meeting with President O’Brien and Opera-
tions Manager Slaughter. They told Cummins they had re-
ceived some complaints that he had verbally abused two
co-workers.
Cummins defended himself by arguing that the offense had
been trivial. Specifically, he testified that he told the manager
that, “All I said to them was that I asked them where the fuck
they had been and that I got tired of looking for them every
damn time I turned my back.” Cummins added, “It ain’t noth-
ing that hadn’t been used before.”
President O’Brien told Cummins that management would
look into the matter further. Subsequently, the Respondent
suspended and then discharged Cummins as alleged in the
complaint.
The testimony of Robert Palmer, one of the two employees
whom Cummins cursed, paints a more serious picture regarding
the duration of the tongue-lashing Cummins gave them.
Palmer testified that he told management that although he did
not want Cummins to lose his
2653
job, he, Palmer, could not work with him. He asked manage-
ment either to reassign Cummins or to reassign him, so that
they would not have to work together. Significantly, Palmer
informed management that Cummins had cursed them for an
hour. Based upon my observations of the witnesses, I credit
Palmer. The General Counsel adduced evidence to support the
government’s theory that other persons employed by the Com-
pany had also used foul language at other workers but had not
been discharged. Thus, the General Counsel argues, the evi-
dence establishes that Respondent treated Cummins differently
because of his Union activities.
However, I believe that other aspects of the situation besides
the swearing itself, distinguish it and make it more serious than
the instances which the Government holds up as comparable in
severity. The duration of Cummins’ tirade, an hour, certainly
concerned management. Cummins also had a history of prob-
lems working with others.
Besides the questions of foul language and self control, man-
agement was also concerned about the issues of honesty and
trust. Other witnesses do not support Cummins’ explanation
that he had spent an hour looking for the two other employees.
Considering all of these factors and considering that one em-
ployee was so upset by the instance he requested a transfer, I
cannot conclude that the Respondent treated Cummins dispar-
ately.
Discussing the issue in the frame work of Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 US 989 (1982), it is clear that the General Counsel
has established a prima facie case. Cummins engaged in union
activities in front of management. Thus, the elements of pro-
tected activity and employer knowledge have been established.
The Respondent suspended and discharged Cummins, which
certainly constitute adverse employment actions. The timing of
these actions, in the context of the Union’s organizing cam-
paign and the 8(a)(1) violations which I have found in this case,
provide a nexus sufficient to establish the fourth element.
However, I find that Cummins’ behavior, and its impact on
other employees, was so extreme that the Respondent would
have discharged him regardless of protected activities. There-
fore, the Respondent has rebutted the General Counsel’s prima
facie case. I recommend that Complaint paragraph 15(b) be
dismissed.
Complaint paragraph 15(c). It is undisputed that Respondent
terminated employee William Jeffrey Walls as alleged in the
Complaint, as amended. However, Respondent contends that it
was not motivated by anti-Union animus and instead, laid off
Walls for economic reasons.
2654
Walls supported the Union and was listed on Union fliers as
a supporter. Thus, his open advocacy of the Union, satisfies the
first two Wright Line elements. His discharge certainly satisfies
the requirement of an adverse employment action, and based
upon its timing, three days before the Board certified the Un-
ion, and a week after the Union election, I find that the neces-
sary link has been established. Therefore, the Government has
proven it’s prima facie case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
In this instance, Respondent defends by claiming that Walls
did not have enough work to do, since a tool, called the Maxi-
grinder, no longer was used. However, as the General Counsel
has pointed out, the Respondent stopped using the Maxigrinder
on a regular basis some months previously. Based upon this
fact and the record as a whole, I conclude that Respondent has
failed to rebut the General Counsel’s prima facie case. I rec-
ommend that the Board find that Walls’ discharge violated
Sections 8(a)(1) and 3 of the Act.
Complaint paragraph 16. Paragraph 16 of the Complaint al-
leges that about December 8, 1997 and continuing thereafter,
Respondent failed and refused to grant a 50–cent–per–hour
across–the–board wage increase to unit employees, while grant-
ing said wage increases to non-union employees. The compli-
ant alleges these actions to constitute discrimination in viola-
tion of Section 8(a)(3) of the Act and also an unlawful unilat-
eral change in violation of Section 8(a)(1) and (5) of the Act.
For the alleged action to constitute discrimination in viola-
tion of Section 8(a)(3), there must be a showing that Respon-
dent had committed itself to providing such a wage increase to
Union employees and then rescinded this action as a means of
discouraging Union activities or otherwise to chill the exercise
of Section 7 rights. The record does not establish that Respon-
dent had made such a firm decision to grant such wage in-
creases.
The evidence certainly indicates that management officials
were considering this action but I find that they had made no
final decision about it. In this regard, I particularly credit the
testimony of Linda Tutor, the Respondent’s collection agent.
Her demeanor as a witness, and especially her resolve during
cross–examination, greatly impressed me.
I conclude that Respondent did not discriminate against the
Union employees by withdrawing a raise because the Respon-
dent had not decided to grant a raise. It was only thinking
about it.
Although I have found that Respondent violated Section
8(a)(1) when it’s human resources manager said that employees
would have gotten a raise but did not because of the Union
campaign. I do not find that the human resources manager was
telling the truth in making such statement at the bargaining
table. Sometimes negotiators do not tell the truth.
2655
To establish that failing to grant a wage increase violates
Section 8(a)(5) of the Act, the government must show that the
Respondent has granted such raises in the past with such pre-
dictability that a wage increase at a particular time has become
a term and condition of employment. Only if giving a raise is a
term and condition of employment can withholding the raise be
considered a unilateral change in the terms and conditions of
employment. Here, the record does not establish that Respon-
dent had established such a practice.
By amendment, the General Counsel is alleging, alterna-
tively, that Respondent violated Section 8(a)(3) of the Act by
failing to grant a wage increase in September 1997. For the
same reasons stated above, I find that the evidence does not
support finding such a violation.
The remainder of the Complaint concerns the selection of
employees for layoffs and the treatment they received when
called from layoffs. On December 12, 1997, at a time Respon-
dent laid off his employees named in complaint paragraph 17,
the Union was about to be certified as the exclusive collective
bargaining representative and the employees had just chosen it
in the Board–conducted election. The Respondent selected the
employees named in Complaint paragraph 17 for layoff based
upon a “forced ranked system” which its new President
O’Brien had pushed. This system involved supervisors rating
employees, and then management using the ratings to rank the
employees most useful to retain and those most helpful to be
laid off.
Respondent implemented this system without notice to and
bargaining with the Union about it. It is well established that
an employer acts at its peril when making any change in man-
datory terms and conditions of employment after employees
have selected a union in a Board–conducted election leading to
a certification. Here, a week before the layoffs, the employees
had chosen the Union which was clearly their exclusive collect-
ing bargaining representative. At this point, the Respondent
had a duty to notify and bargain with the Union before making
any change in the way it selected employees for layoffs.
Use of a forced ranking system scheme clearly was such a
change. It was a new way brought to the Company by it’s new
president, and it clearly involved a mandatory subject of bar-
gaining. Respondent had a duty to notify and bargain with the
Union before implementing it. Therefore, I find that the Re-
spondent’s layoff of the named employees on December 12,
1998 was an unlawful unilateral change in violation of Section
8(a)(1) and 5 of the Act. I recommend that the Board find this
violation and that the Respondent be ordered to make whole the
Affected employees for losses they suffered because of the
unfair labor practices.
Respondent’s continued use of the forced ranking system
and its subsequent layoff of employees selected by that process
on March 12, 1998, also transgressed its duty to bargain
2656
with the Union. No valid impasse may be reached in the pres-
ence of the unremedied unfair labor practices that I have found
in this case.
On the other hand, I do not conclude that the evidence sup-
ports a finding that Respondent discriminated against the
named employees in violation of Section 8(a)(3). Respondent
has provided substantial evidence of economic problems which
provide a compelling, nondiscriminatory reason for the layoffs.
I do not find sufficient evidence of animus in the record to
conclude that the layoffs constituted an effort to retaliate
against the employees because of the Union organizing drive.
Additionally, there does not appear to be a clearcut pattern of
selecting Union adherents for layoff while retaining those op-
posed to the Union and using the forced ranking system to con-
ceal it.
In sum, I do not conclude that the evidence supports finding
that the General Counsel has made a prima facie case of dis-
crimination. Therefore, I will recommend that the Section
L.W.D., INC. 259
8(a)(3) allegations be dismissed with respect to the employees
selected for layoff.
For reasons similar to those just discussed, I conclude that
Respondent did not discriminate against laid off employees by
recalling them to general labor pool positions, as alleged in
paragraph 18 of the Complaint. However, I do find that this
action constitutes an unlawful unilateral change in violation of
Section 8(a)(5).
When the transcript of this proceeding has been received at
the Division of Judges, I will prepare a Certification of Bench
Decision which will attach the transcript portions containing
this Bench Decision. The Certification will also contain spe-
cific Remedy, Order and Notice provisions which will embody
my recommended findings and conclusions. It will be served
upon the parties and at that point, the time period for filing an
appeal of my decision will begin to run.
During this proceeding, all counsel and representatives have
displayed an outstanding ability to work with each other in a
productive and professional manner. I clearly appreciate the
civility and courtesy you have shown to each other and to me
throughout this proceeding. Thank you.
The hearing is closed.