Maremont Corp.

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 11 (N.L.R.B. 1989)

MAREMONT CORP 11
Maremont Corporation and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America , UAW. Cases
26-CA-11807 and 26-RC-6869
May 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On 'August 9, 1988, Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party/Petitioner filed briefs in reply to the Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions3 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Maremont
Corporation, Pulaski, Tennessee, its officers,
' The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In addition, some of the Respondent's exceptions imply that the judge's
rulings, findings, and conclusions demonstrate bias and prejudice On
careful examination of the judge's decision and the entire record, we are
satisfied that such contentions are without merit
9 We find it unnecessary to consider the judge's findings of unfair labor
practices committed by the Respondent's supervisor James Brewer with
regard to employee Cliff Brown, by Supervisor Bud Howell with regard
to employee Roger Shaw, and by Supervisor Walter Pruitt on May 8,
1986, with regard to employee Gary Gardner These violations found by
the judge would be cumulative of other unfair labor practices that we are
affirming, and would not affect the Remedy and Order in this case With
regard to the cumulative nature of the above findings, we note, in adopt-
ing the finding that the Respondent violated Sec 8(a)(3) and (1) by its
disciplinary action against employee Gardner on June 6, 1986, that this
incident in itself had an effect of restricting Gardner's movement within
the plant
in affirming that the Respondent's disciplinary action against Gardner
on August 20, 1986, violated Sec 8(a)(3) and (1), we note that even as-
suming that Gardner was in the cafeteria after his work shift began, as
the Respondent asserts, we would find that the discipline imposed on him
represented a disparate application of the Respondent's loitering rule,
which was not consistently enforced at the plant We hote also that
Gardner was the target of other discriminatory actions and that a refer-
ence to his possible discharge had been made in the context of an unlaw-
ful threat to his wife in connection with the union election
agents, successors, and assigns, shall take the action
set forth in the Order
Jane Vandeventer, Esq., for the General Counsel
Arnold Perl, Jay W. Kiesewetter, Martin F. Thompson, and
Phyllis Mays, Esgs. (Young & Perl), of Memphis, Ten-
nessee, for the Respondent
Samuel K. Morris, Esq (Gerber, Gerber, and Agee), of
Memphis, Tennessee, for the Charging Party
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge
The International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
(herein Petitioner, Charging Party, or the Union) filed a
petition in Case 26-RC-6869 on 15 July 1986' seeking
representation of certain employees of Maremont Corpo-
ration (herein the Employer, Respondent, or the Compa-
ny) at its Pulaski, Tennessee plant Pursuant to a Stipula-
tion for Certification upon Consent Election, approved
on 4 August, an election by secret ballot was conducted
on 29 August. The results of the election as disclosed by
the tally of ballots showed that, of approximately 849 eli-
gible voters, 359 cast valid votes for the Petitioner, and
474 cast valid votes against the Petitioner Thereafter,
the Petitioner filed timely objections to the election
The Union filed the original charge in Case 26-CA-
11807 on 19 September, a first amended charge on 26
September, and a second amended charge on 27 October
Complaint issued on 28 October. It alleges that Respond-
ent violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by conferring various benefits on its
employees, to wit, by granting an unscheduled bonus of
$175 on about 1 August, by permitting second shift em-
ployees to work on the first shift during the week of 4
August through 8 August; and, on 23 August for the first
time, by scheduling first and second shift employees to
work 6 hours instead of 8 hours so that they 'could
attend a county fair-all for the purpose of discouraging
membership in and support for the Union
The complaint alleges additional violations of Section
8(a)(1), to wit, (a) threatening employees with loss of
work, discharge, plant closure, and unspecified reprisals
because of their union activities; (b) telling employees
that a bonus would be reduced because of their union ac-
tivities, and that it did not know how they could recoup
said reductions, and (c) interrogating employees about
their union sentiments and activities.
Finally, the complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by issuing a verbal
warning and two written warnings to employee Gary
Gardner, by restricting his movement within the plant,
and by discharging him on 24 September, because of his
assistance to the Union and other protected concerted
activities Further, the complaint alleges that the same
sectioris of the Act were violated by Respondent's dis-
charges of employees Betty Jean Hayes and Margaret
i All dates are in 1986 unless otherwise specified
294 NLRB No. 2
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sanderson, on about 16 September, for the same reason
On 3 December, the Regional Director for Region 26
issued an order consolidating the representation and
unfair labor practice cases for hearing
A hearing was held before me on these matters in Pu-
laski, Tennessee, on 20 hearing days beginning 26 Janu-
ary 1987 and ending 16 October 1987 The General
Counsel, the Employer/Respondent, and the Petitioner/-
Union thereafter submitted briefs
On the entire record, and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with headquarters in Chi-
cago, Illinois and with offices and places of business
throughout the country, including an office and place of
business in Pulaski, Tennessee, where it is engaged in the
manufacture and sale of shock absorbers During the 12-
month period ending 30 September, Respondent sold and
shipped from its Pulaski, Tennessee facility goods and
materials valued in excess of $50,000 d;;rectly to points
outside the State of Tennessee, and purchased and re-
ceived at said facility goods and materials similarly
valued directly from points outside the State of Tennes-
see Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
A Board election was held in April 1985, which the
Union lost It began campaigning again in April 1986 and
started handbilling at about that time or in the following
month 2 As indicated, the Union filed its current petition
on 15 July.
B The Alleged Unlawful Grants of Benefits
1. The alleged $175 bonus
a Summary of the evidence
It is undisputed that the Company made a lump-sum
payment to its employees of $175 on about 1 August
The General Counsel contends that this was a bonus in-
tended to influence voters in , the forthcoming election
while the Company argues that it was merely following
its normal compensation policies
The employees were compensated by wages based on
an hourly rate and by an annual bonus based on perform-
ance or productivity designated a "pay-for -performance"
bonus For the 4 years preceding 1987, the performance
2 Testimony of Tim Pierce
bonus was paid in December of each year and was part
of an incentive program which was in place earlier in the
year 3
In addition to the performance bonus paid in Decem-
ber, the Company had given hourly rate increases in the
4 or 5 years prior to 1985 effective in January of the fol-
lowing year 4 In November 1985, Respondent's vice
president of human resources, Ray Mack, recommended
hourly rate increases for various of Respondent's plants,
including a 25-cent raise for the Pulaski plant, to be ef-
fective 1 January 1986 The recommendation was made
to the Company's president, Byron O. Pond It also rec-
ommends no further benefit adjustments at that time, but
"a further review of the hourly wage and benefit pro-
grams on August 1, 1986 and every August 1st
thereafter " Approval of the recommendation is indicated
by the signatures of Company President Pond and an-
other officer.5 Company official Viars testified that the
import of this document was to change the "review
date" for hourly wages from 1 January to 1 August. Pat
Fleming, Respondent's personnel director at its Pulaski
plant, testified that area wage surveys-on which raises
for the subsequent year would be based-were normally
conducted in about October with a 2-month lag before
implementation Fleming was unaware of the change in
review date suggested by Mack's recommendation
Company official Viars testified that he saw the ap-
proval of a wage increase about 2 weeks later. At em-
ployee meetings in various plants in December 1985,
Viars announced the forthcoming hourly increase of 25
cents effective in January and stated that there might be
a further increment on about 1 August According to
Viars and some employees, he classified this possible
future action as an "adjustment " There is no credible
evidence that Viars made a flat promise of another in-
crease in August
Company official Fleming testified that he was a
member of the "corporate cost reduction committee,"
and that he attended a meeting of this committee in Chi-
cago on 4 March The senior official present at that
meeting appears to have been Ray Mack, according to
Fleming This committee assertedly "decided that if
there was to be any wage adjustment in August, it would
take a lump-sum form "s
a Stipulation of the parties The performance bonus was $347 in 1983,
$114 in 1984, $570 in 1985, and $1000 in 1986 All payments were made
in December of the applicable year
4 Testimony of Earl Viars, Respondent's vice president of operations of
domestic automotive
5 R Exh 76
6 Fleming testified about a document which he characterized as "min-
utes" of this meeting He stated that Ray Mack instructed employee
Chris Berner to take "minutes ," and that he observed this employee
taking the "minutes " Berner was sitting across a table from Fleming and
was facing him as she was writing Fleming later received an alleged
copy of this document but could not "swear" that it was a copy of the
document on which Berner wrote Fleming brought this asserted copy
back to his Pulaski office and placed it in his desk Someone supposedly
made a copy of this document, and Respondent sought to introduce it
Fleming did not know the identity of this person The document itself is
a terse unsigned one-page handwritten outline of topics dated "3/4," and
includes the phrase "one-time payment of increases (lump sum ) " I sus-
tained the Charging Party's objection to receipt of the document on the
Continued
MAREMONT CORP 13
On 23 April, Mary Brooks, an official in the Compa-
ny's Chicago headquarters, sent the following memoran-
dum to various plants including Pulaski.
Subject Hourly Wage & Benefit Improvements-
1987
The enclosed format should be followed to col-
lect data and develop your 1987 Hourly Wage and
Benefit Improvement package
We do not want you to submit your recommenda-
tions at this time unless you feel August 1 increases
are absolutely necessary Otherwise, we plan to stay
with the January 1 schedule. You need to formulate
your 1/1/87 recommendation now, but don't submit
them until you hear from us
The entire package should be submitted to me.by
July 1, with the exception of your recommendation
[G.C Exh 16]
Personnel Director Fleming testified that he was "puz-
zled" by this memorandum and viewed it as "pressure
put on the personnel managers" not to grant a 1 August
wage increase Nonetheless, his understanding was that
despite the memorandum, the plants could implement a 1
August increase if the plant managers considered it "ap-
propriate."' Accordingly, Fleming testified that in May
and June he conducted area wage and benefit surveys
Based on the results of the survey and on other data,
Fleming testified he submitted on 1 July a written rec-
ommendation to higher authority that the employees be
given a lump-sum wage and benefit adjustment on 1
August in the amount of $177 60 Fleming asserted that
Company Vice President Mack reduced the amount to
$175, and, as so modified, verbally approved the increase
on 21 July There is no documentary evidence of such
approval.8 In June or July, Company official Viars told
ground that it was hearsay, had never been read in the original by Flem-
ing, and the asserted copies had not been authenticated R Exh 86
In its posthearmg brief, the Respondent urges me to reconsider this
ruling on the ground that the document is a business record (R Br 9, fn
14) In order to determine whether it is a business record, it must first be
adequately authenticated, and the submitted authentication is insufficient
for the reasons given above Even if authenticated, e g , by Berner as a
document which she wrote, and assuming that the committee meeting
constituted a "business activity," the document would still be inadmissible
hearsay because the evidence is insufficient to establish that such meet-
ings were "regularly" conducted or that it was "the regular practice of
that business activity to make" such notes Fed R Evid 803(6) Accord-
ingly, I reaffirm my rejection of the document
7 Respondent sought to elicit testimony from Fleming as to what Ray
Mack and Mary Brooks said to Fleming about the meaning of the memo-
randum I sustained the objections based on hearsay Neither Mack nor
Brooks testified at the hearing Respondent contends in its brief that
Fleming learned from Mack "that it was still the Company's intent to go
forward with the August i lump sum wage adjustment, but that the
Company was considering going back to January 1 as the date for imple-
menting any increases to the wage rates" ( R Br at 10) There is no
record evidence of this assertion
6 Respondent sought to introduce a 4-page document (R Exh 87) pur-
porting to be a copy of a memorandum from Fleming to Company Vice
president Mack dated 1 July The document assertedly recommends a 20-
cent "per hour wage increase (to be paid in lump sum)" to approximately
852 employees at a cost to the Company of over $151,000 Fleming testi-
fied that the words "(to be paid in lump sum)" were added by him be-
cause "this wasn't actually a wage increase " The submitted copy of the
first page of the document, referring to the cost, is incomplete, and, after
the cost states that the increase is "per ye pro-rated Aug - " Page 3
employees at the plant that there would be some kind of
"adjustment" or "bonus" in August Although the ac-
counts vary somewhat, the most credible reports show
that Viars then 'said that the matter would be evaluated
in August and that the issue of additional compensation
would be based on Company profits 9 Following the as-
serted approval from Chicago, Respondent distributed
$175 checks to all employees at its Pulaski plant for the
pay period ending 27 July Other plants also had in-
creases, but the one at Pulaski was the largest Company
Vice President Viars testified that the reason for the
lump sum form of the increase was to prevent addition
to the basic wage rate, and thus to save costs Personnel
Director Fleming agreed, and added that "it would be a
popular thing for employees because of the fact that it
was coinciding so close with the vacation "
Company Vice President Viars held meetings with em-
ployees in August, in which he opposed the Union, and,
in a meeting on 1 August announced the $175 increment.
Asked whether he told employees that there was going
to be a "wage increase," Viars denied it and testified that
he announced "a bonus " In a meeting with employees in
December, Company representatives stated that there
would be no raise in January 1987 because of low sales
and prices. 10 In recapitulating employee benefits in 1986
at the December meeting, Viars called the $175 incre-
ment a "wage increase," but Plant Manager Jared, refer-
ring to a chart in front of the employees, called it "a
bonus."11
Personnel Director Fleming testified that the $175 in-
crement in August was the first time that the Company
had ever given a wage increase in lump-sum form In
November 1986, Fleming began planning data for a
wage increase in January 1987. He did this on an hourly
states that the adjustment covers the period from I August to 31 Decem-
ber, and Fleming testified to the same effect However, Company Vice
President Viars testified that the adjustment covered a 12-month period
The copy of page 2 of the submitted document contains the purported
signatures of Fleming, Plant Manager Jared, and Plant Controller Sikes
There are spaces for the signatures of Company President Pond and
three vice presidents including Mack and Viars , but no signatures in
those spaces Fleming asserted that prior recommendations for pay in-
creases were approved verbally, with modifications, and had no knowl-
edge of receipt at the plant level of signed approvals for such increases
Fleming testified that there was a 4- to 5-page wage survey attached to
the document containing, among other matters, the average wages and
description of the other companies surveyed These pages are not at-
tached to the proffered exhibit
The General Counsel objected to receipt of the exhibit on the ground
that it did not contain the wage surveys purportedly attached to it The
Charging Party requested copies of blank forms for such recommenda-
tions, since Fleming admitted that he added certain words to the form,
and also objected on the ground that the copy of the first page did not
contain all the printed material on the original
I deferred ruling on Respondent's motion, pending receipt of original
or corrected documents None was received Accordingly, I reject R
Exh 87
With'respect to Respondent's contention that the 1 August increment
was merely routine implementation of its compensation policies, not influ-
enced by its employees union activities, I note that Fleming's testimony
suggests he began the area wage surveys at about the same time that the
Union began handbilling The actual surveys themselves would throw
more light on this issue However, Respondent has not submitted them
9 Testimonies of Roger Shaw, Tim Pierce
10 As indicated, the Company granted a $1000 productivity bonus in
December, the highest in the history of the Pulaski plant
i i Testimony of Sadie Hobbs
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rather than a lump-sum basis Fleming was asked why
the cost factors which militated against an hourly rate in-
crease only a few months before in August would not
also have suggested a lump-sum raise in January rather
than a rate increase Fleming replied that the employees
had received only a 25-cent raise in January 1986, and
that the Company should return to the "hourly wage
route" even though it would increase both the wage base
and benefits. Although Fleming recommended an hourly
increase in January 1987, the Company did not institute
one until August of that year
Company Vice President Viars, in explaining the asser-
tedly low 25-cent raise in January 1986, stated that 1985
was "the worst year in the history of the Company," but
that 1986 was a good year and thus justified the $175 in-
crement in August 1986 On the other hand, Plant Man-
ager Jared stated that 1985 was the "only good year out
of the last five "
b Factual analysis
Respondent's attempt to picture the $175 lump-sum in-
crement as a routine and previously planned implementa-
tion of compensation policies is not persuasive Although
the November 1985 memorandum from Company Vice
President Mack to Company President Pond spoke of a 1
August review, it is not entirely clear that a wage in-
crease on that date was contemplated, and Fleming testi-
fied that about 2 months are needed between review and
an actual raise. In any event, Brooks' April 1986 memo-
randum shows that the Company had then backed away
from an August increase, and intended to stay with the
"January 1 schedule Recommendations for an August
increase were not wanted unless an August raise was
"absolutely necessary " Respondent has submitted no
evidence to show that an increase was absolutely neces-
sary at Pulaski or that any such recommendation was
made to Chicago-indeed, it refrained from submitting
into evidence the comparative wage surveys which
Fleming claimed he 'conducted in the spring of 1986
Fleming's asserted actions to implement the August pay-
ment must therefore be deemed to be in contravention of
Brooks' April memorandum Respondent argues that the
Brooks memorandum makes a distinction between a wage
increase-deferred to January-and a lump-sum payment
in August 12 This argument distorts the language of the
memorandum, and is without evidentiary support. Nei-
ther Brooks nor Mack, who might have clarified the
matter, was called as a witness for Respondent
Nonetheless, it is highly improbable that the managers
of the Pulaski plant would have distributed over
$151,000 of the Company's money to employees in the
form of additional compensation without higher approv-
al The issues are the dates that (1) the lump-sum form
was agreed upon, (2) Fleming first began collecting the
data, and (3) the increase was approved As to the latter,
taking Respondent's evidence at face value for the
moment, it is undisputed that Chicago's approval of the
$175 increment was not given until 21 July, 6 days after
the filing of the representation petition on 15 July
The date that Fleming first began collecting compara-
tive data is inconclusive, because Respondent has not
submitted that data, and the available evidence suggests
that it was gathered at about the same time that the
Union began handbilling
I do not accept Fleming's testimony that the decision
to make an August wage increase in lump-sum form was
made in March. There is no credible evidence of such a
decision at that time In light of the fact that the January
1986 wage increase was authorized by a Company docu-
ment signed by its president and three vice presidents, it
is unlikely that a change of this nature could have been
authorized at an asserted committee meeting' in March
without any formal documentation. The supposed "min-
utes" of this meeting, which I have rejected, do not
clearly indicate that a lump-sum payment was approved,
but suggest at most that it was discussed. 13 In Viars'
speech to employees in December 1985, he said only that
there was the possibility of an adjustment the following
August However, Brooks' April memorandum shows
that the Company no longer planned an August increase
unless absolutely necessary Although Viars again dis-
cussed the possibility of additional compensation with
employees in June or July, it was still only a possibility,
and was dependent on company profits. Respondent has
not shown how 30 to 60 days of operations-from Viars'
June remarks to the lump sum payment in August-
could have been determinative in causing the Company
to reach a decision Moreover, Viars' remarks in June
took place subsequent to the time that the Union, which
had lost a campaign in 1985, again resumed organization-
al activity in April or May 1986 There is no credible
evidence that there was any determination to grant a
wage increase in August, much less in lump-sum form,
until 6 days after the representation petition was filed
These considerations are buttressed by the fact that the
asserted reasons for a lump-sum wage increase in August
were discarded by Fleming only a few months later
when a 1987 increase was planned; by the inability of the
Company's witnesses to agree on whether 1986 was a
bad or a good year justifying an August increase, by the
references of the Company's managers to the August in-
crement as a "bonus" rather than a "raise," and by the
fact that the Company promptly returned to an hourly
increase formula the next year-August 1986 was the
only time it gave a lump-sum wage increase
Although this hearing took an unusually long time,
and Respondent called a plethora of witnesses, several
key witnesses were not called-Chris Berner, who might
have authenticated the asserted "minute" of the March
meeting, Company Vice President Ray Mack, who sup-
posedly presided at that meeting and later approved of a
$151,000 increase in employee wages in a brand new
lump-sum form with no more than a phone call, or Mary
Brooks, whose April memorandum cancelling the
August increase was distorted by Respondent None of
these witnesses was shown to be unavailable, and Re-
spondent's attempt to portray their actions through ques-
tionable documents and hearsay testimony, rather than
12 R Br at 10 11 R Exh 86
MAREMONT CORP 15
the testimonies of these individuals, reduces the credibil-
ity of the Company's case
I find that Respondent's lump-sum payment of $175 to
employees at its Pulaski plant was decided on after the
Union had filed its representation petition, that this was
the only lump-sum payment of wages at that facility
which it had ever given, the only wage increase granted
in August up to that date, and that as such it constituted
a departure from former practice.
2 The alleged change of schedule permitting
second shift employees to work on the first shift
a. Summary of the evidence
Prior to 1986, the Company had normally shut down
all production shifts during the same week for the
summer vacation In early 1986, the Company decided
that the first shift would take its vacation in the first full
week of August, and the second and third shifts the fol-
lowing week Company witnesses testified that this deci-
sion was made for business reasons The decision was an-
nounced to employees in a memorandum dated 6 Febru-
ary and by dates imprinted in red on a calendar distribut-
ed in March.14
Personnel Director Fleming testified that during a
spring break early in the year, some second shift employ-
ees were permitted to work during the first period on ex-
pressing a preference therefor. Employees who wished
to continue working on the second shift were allowed to
do so
At an employee meeting in mid-June, one employee
asked Plant Manager Jared whether second-shift employ-
ees working when the first shift was on vacation could
work during the first instead of the second shift. Jared
replied that he did not think it would be possible because
of hardship caused by babysitting problems, but that he
would look into it. 15
Nonetheless, Plant Manager Jared asserted that he had
made the decision "in his [own] mind" in April, but that
he did not inform employees in June that he had made a
firm decision because he did not want to "steamroll" em-
ployees who objected In a meeting with supervisors on
the Monday following the June meeting with employees,
Jared instructed the supervisors to poll employees to de-
termine how many would have a problem working on
the first shift 16
Personnel Director Fleming testified that at the time
of supervisory meeting in June, management had made a
tentative decision to allow the change in scheduling, but
first had to determine whether it would create hardship
and would be well received by employees Accordingly,
the Company polled its employees on this subject during
June and the first week of July. According to Fleming,
the results showed that a large majority wished to work
the first shift, but that about 35 employees had expressed
a desire to continue working on the second shift Flem-
14 R Exhs 9, 80
15 Testimonies of Verna Owens (the employee who asked the ques-
tion), Tim Pierce , and Betty Jean Hayes, corroborated by Plant Manager
Jared
16 Respondent submitted evidence of its polling of employees at other
times in order to determine their preferences on various matters
mg directed a supervisor to determine whether the pro-
posed schedule change would cause any significant hard-
ship, and 34 of the 35 employees who originally opted
for the second shift changed their minds According to
Fleming, the polling was completed "by the end of the
week of July 3rd," and the "final decision" was not
made until the polling was completed Fleming testified
that he was aware of union handbilling at that time
Fleming also stated that it would be more efficient to
have production employees working during the first shift
when office personnel and management officials were at
work However, the asserted increase in productivity in
August was not as great as an asserted increase during
the spring break schedule change-Fleming contended
that the reason for this was the fact that salaried employ-
ees worked on the production line during the spring
break. He agreed that the Company would not have
changed the schedule in August unless it had been ap-
proved by the great majority of employees
Fleming contended that the decision was announced to
supervisors in mid-July However, employees were not
informed until 28 July On that date, Fleming sent a
memorandum to employees stating that during the fol-
lowing week when first-shift employees were, on vaca-
tion, second-shift employees would work during the first
shift However, third-shift employees would continue to
work their "normal schedule," i e , the third shift 17
The Company elicited evidence that when Saturday
overtime was being scheduled, second-shift employees
would occasionally work on the first shift The primary
reason for this was to make certain that overtime was
equally assigned to employees on both shifts, and a sec-
ondary reason was to accommodate employee desires.
b Factual analysis
Plant Manager Jared's assertion that he made a deci-
sion in April to permit the scheduling change is incon-
sistent (1) with his statement to employees in June that
he did not think it would be possible, (2) with his order
to poll employees on the subject, and (3) with Fleming's
contention that the decision was not made until the first
week of July Jared's explanation that he did not want
employees to think he was trying to "steamroll" them in
June is disingenuous and, I conclude, fabricated
Fleming's testimony is hardly more reliable His aver-
ment that the polling was completed by the end of the
week of 3 July is ambiguous, because 3 July fell on a
Thursday, and the following day was a holiday If Flem-
ing meant that the polling was not completed until the
end of the first full week after 3 July, this meant that it
was not finished until 11 July, with the final decision de-
pendent upon completion of the polling The filing of the
union petition was only a few days away (15 July)
The Company's decision could not have been based on
business reasons of productivity-it started with an em-
ployee request. Fleming admitted that the Company
would not have changed the schedule without the em-
ployees' approval, and noted that the change had been
well received. Fleming also agreed that the asserted in-
11 R Exh 81
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crease in August productivity-for which the Company
supplied no documentation-did not match the "spring
break" asserted increase in productivity-for which the
Company supplied no documentation. If working on the
first shift with Company managers was more efficient,
Respondent has supplied no reason for the fact that
third-shift employees continued to work their regular
shift during vacation Although the Company submitted
evidence of occasional assignment of second-shift em-
ployees to overtime work on the first shift, these assign-
ments had an entirely different purpose-the balancing of
overtime work among employees
The Company asserts that it announced the shift
change to supervisors in mid-July, i e , at about the time
of the filing of the Union's petition However, it has ad-
vanced no reason why notification to employees was de-
layed until 28 July, the week before the scheduling
change If, as the Company professes, it was concerned
about its employees'. babysitting problems and polled
them on this matter as early as June, the delay in notifi-
cation until 1 week before the shift change could only
have compounded those problems. These considerations
cast doubt on Fleming's contention that the decision was
made earlier in July
The credible evidence shows that, when Company
Vice President Viars was asked in June whether the shift
change could be made, he promised to look into it, but
his tentative decision was negative. This is the only rea-
sonable construction to put on Jared's statement to em-
ployees that he did not think it was possible because of
babysitting problems. Thereafter, the Company changed
its position However, it did not do so until it had fin-
ished polling employees in July The documentary evi-
dence clearly shows that the employees were not noti-
fied until well after the filing of the union petition.
After careful consideration of all the evidence, includ-
ing the direct conflict between the testimonies of Compa-
ny Vice President Viars and Personnel Director Flem-
ing, I find that Respondent made an original tentative de-
cision against the shift change in mid-June, and thereafter
altered its position in favor of the change after the filing
of the Union petition All of these events took place sub-
sequent to the advent of the Union campaign
3 The alleged shortened overtime on 23 August
a Summary of the evidence
,Respondent often worked overtime in order to satisfy
production requirements and customer needs On 20
August, it announced that overtime would be worked
the following Saturday, 23 August The third shift would
work normal hours beginning Friday night but on the
following day, Saturday, the first and second shifts
would work only 6 hours beginning at 6 am and 12
noon, respectively The stated purpose was to allow
second-shift employees to attend the Giles County
Fair, i 8 an annual community undertaking which ended
on Saturday
18GC Exh 4
Betty Jean Hayes, an employee, since 1981 who
worked on the second shift, testified that she had worked
some prior Saturdays when the fair was being conduct-
ed, and that her hours upon those occasions were
normal, i e, from 4.30 p in to 2 30 a in. Second-shift em-
ployee Tim Pierce testified that he had worked Satur-
days on six occasions during prior years when the fair
was being conducted and that his working hours were
from 3 p m until 11-30 p in
Plant Manager Jared testified that in August 1983 he
had changed overtime on Saturday from a mandatory to
a voluntary basis so that employees could attend the fair.
This testimony is corroborated by a memorandum from
Jared to employees at that time stating that the change
was made because of some employees' desires to attend
the fair 19 Jared averred that the Company supported
the fair, a popular community event. Although the plant
manager could not recall other occasions on which he
had made accommodation to employees because of the
fair, he and former Production Manager Clarence Smith
testified about the customary structuring of overtime to
permit employees to attend various community events
throughout the years. Jared testified about the impor-
tance the Company attached to support of the fair and
other such events.
b Factual analysis
The testimonies of Hayes and Pierce may be accurate
However, they are not necessarily inconsistent with
Jared's testimony, supported by documentary evidence,
that overtime in August 1983 was changed from a man-
datory to a voluntary basis in order to accommodate em-
ployee desires to attend the fair-Hayes and Pierce may
well have worked normal overtime hours that day on a
voluntary basis, or may not have worked at all The doc-
umentary evidence has probative weight, and I credit
Jared's testimony
The General Counsel appears to argue that the 1983
example should be discounted because Respondent then
changed overtime from a mandatory to a voluntary basis
rather than reducing total overtime hours 20 I do not
consider this to be a significant distinction because in
either event Respondent changed previously scheduled
work because of the fair Relying on the 1983 example
and the many other instances in which Respondent
changed work schedules to accommodate employee de-
sires to attend community events, I find that the 1986
shortening of overtime hours did not constitute a depar-
ture from prior practice
C Alleged Unlawful Statements During Employee
Meetings
1. The complaint allegations
The complaint alleges that, during various meetings on
31 July and in August, Respondent threatened its em-
ployees with loss of work and discharge because of their
union activities, told them that their performance bonus
19 R Exh 104
20 G C Br p 20
MAREMONT CORP
would be reduced because of those activities, and stated
that it could not tell them how to recoup the bonus re-
duction until after the election As indicated during the
discussion above concerning the $175 bonus, Respondent
held various meetings with employees in August.
2 The first speeches, on or about 1 August
Employee Sadie Hobbs worked on the first shift and
testified that she attended an employee meeting on 1
August. Respondent's vice president Viars and Plant
Manager Jared were present.21 Viars spoke and told em-
ployees that he was disappointed about the union activi-
ties and the prospect of another election He said that he
thought that the Union had been sent a clear message
during the prior campaign. When members of the audi-
ence smiled, Viars became upset, told employees to wipe
the smiles off their faces, and said that it was nothing to
laugh about.
According to Hobbs, Viars said that he had been con-
sidering consolidation of Respondent's tool and die and
related operations, theretofore conducted at various
places, at the Pulaski plant, and that this would possibly
mean new equipment and employees However, Viars
added, because of the possibility that the plant might
become unionized, he would have to reconsider the
matter. If the plant had a strike it would interfere with
operations, and the Company could not allow that to
happen. Employee Robert Newton testified that during
an antiunion meeting which he attended, Viars for the
first time talked about consolidation of the tool and die
operations at Pulaski, but added that he would have to
"rethink his thoughts" on this subject "because of what
was going on in Pulaski."
Although the testimonies of Respondent's witnesses
differ from those of the General Counsel' s witnesses, the
former had less recall of the speeches, while the latter
are corroborated by a written copy of Viars' speeches on
this occasion Although the copy contains other material,
such as the Company's need to be competitive, it also
contains references to the tool and die consolidation sub-
ject, as follows
My personal preference was to consolidate it all
here at Pulaski. I even went so far as to discuss this
move with the employees at another plant and let
them know that I was considering moving that
function here. Now, I don't know what to do. After
all, once these functions are consolidated, then all of
the production processes in the Company would be
dependent upon the operation of this new part de-
partment If it is shut down because of a strike or
for any other reason , the whole Company will be
affected I will have to consider all possible aspects
of this issue before I finalize a decision 22
According to Viars, he told employees that the Com-
pany had an opportunity to make an offer to Nissan
Motor Company for manufacture of McPherson struts
The Company did not have enough capacity, but the
21 The pleadings establish, and I find, that Viars and Jared were super-
visors and agents of Respondent within the meaning of the Act
12 CP Exh 8
17
board of directors approved the expenditure of over $7
million for necessary equipment . However, Viars in-
formed employees, Nissan carried little inventory,
needed its products promptly, and Viars did not know
how the union petition would be looked at by Nissan,
which was also considering giving the order to a com-
petitor of Respondent. The relevant portion of the copy
of Viars' speech reads as follows
Of course, since Nissan is looking for only one
source for its struts and shocks, it also is concerned
about its supplier being able to meet the delivery
schedules it establishes Now, if the union wins, cre-
ates the possibility of a strike, I don't know what is
going to happen to this deal I do know that since
this petition was filed, Nissan visited Monroe yester-
day and Monroe has quoted them a lower price.
I suppose you can see why I said at the outset
of my remarks that this petition is a very big disap-
pointment for me.23
Numerous witnesses testified that Viars said essentially
the same thing during a speech to second-shift employ-
ees One of them24 testified that Viars said that the em-
ployees at another of Respondent's plants would wel-
come the extra work if Respondent consolidated tool and
die operations at that plant I credit the General Coun-
sel's evidence of the first- and second-shift speeches
Third-shift employee Mike Hayes testified that Viars
made the same statement during the third shift Viars,
however, contended that Plant Manager Jared spoke to
third-shift employees This was corroborated by Re-
spondent's witness Winfred Burnett The latter recalled
that Jared mentioned the fact that a union petition had
been filed, but denied that Jared said he would have to
reconsider the consolidation decision because of the
filing. Because of the conflict in the evidence, I consider
it insufficient to establish that Viars or Jared made the
same statements to third-shift employees which Viars
made to the other two shifts
Respondent in fact did not conslidate its tool and die
operation at the Pulaski plant, nor did it get the Nissan
contract.
3. The speeches on the cause of the declining
performance bonus
Viars testified that during his 1 August speeches to
employees, he told them that, because of the union peti-
tion and campaign , the Company would hold employee
meetings to explain its position, that these meetings
would reduce productivity, and that they would there-
fore have a negative impact on the employees' perform-
ance bonus Employee Lawrence Johnson testified that
at a later meeting in mid-August, employee Tracy Arm-
strong asked Viars how employees could make up the
performance bonus being lost because of the meetings.
Viars "sort of laughed and said he couldn't tell us until
after the election, but there was a way we could make it
up " Armstrong testified that she could not recall wheth-
23 Ibid
24 David Johnson
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er Viars said anything about making up lost time I credit
Johnson
Other witnesses25 testified that Respondent's Vice
President Ray Mack26 told employees at a meeting in
mid-August that their performance bonus would go
down because of the meetings the Company was con-
ducting
I credit the General Counsel's essentially uncontradict-
ed evidence.
Some of Respondent's witnesses agreed that at other
employee meetings for other purposes such as training
and safety, employees were not informed that their at-
tendance at those meetings would reduce their perform-
ance bonus Respondent sought to explain this by intro-
ducing evidence of the various factors utilized to deter-
mine productivity One of the factors was a mathemati-
cal fraction in which the numerator was the time
planned to meet a production goal and the denominator
was the actual production time This was called a pro-
ductivity index. The more time actually spent in produc-
tion increased the denominator and thus decreased the
value of the fraction The amount of the performance
bonus therefore went down. According to Respondent's
witnesses, employee meetings which could be anticipated
such- as safety meetings were added in advance to the
planned . time needed for production (numerator) - and
offset the actual time in these meetings (denominator).
These meetings therefore did not affect the productivity
index Unplanned meetings such as meetings to present
the Company's position on the Union could not be incor-
porated into the formula in advance and therefore had an
adverse effect on the productivity index and the bonus.
Respondent issued a monthly report to its employees
on the productivity bonus. In the July report it told em-
ployees that there would probably be a drop in produc-
tivity the following month "due to the . meetings
concerning the union election," and in the August
report said that "[t]he recent NLRB election did take its
toll on the productivity results "2,7 This is consistent
with Respondent's position that "unplanned" meetings
could not be programmed in advance into the productiv-
ity index However, on 4 September Respondent re-
ceived a citation from the Tennessee Department of
Labor for failure to provide information on hazardous
chemicals to its employees as required by state and Fed-
eral lav',28 and thereafter held employee meetings in
September and October to correct this deficiency Re-
spondent's violation of law, the subsequent citation on 4
September, and the following employee meetings could
scarcely have been planned in advance when the 1986
budget was structured. However, there is no evidence
that employees at the chemical training meetings were
told that their attendance would adversely affect their
productivity index, and the bonus reports for September
and October make no mention of the employee meetings
in those months 29
25 Roger Shaw and Mike Hayes
26 The pleadings establish, and I find, that Ray Mack was a supervisor
and an agent of Respondent within the meaning of the Act
24GC Exh 14
28GC Exh 23
29 G C Exh 14
4 Viars' speeches to employees on 27 August
a Summary of the evidence
Respondent held employee meetings on all shifts on 27
August, 2 days before the election Company President
Pond, Vice President Viars, and Plant Manager Jared
addressed the employees Employee Sadie Hobbs testi-
fied that Viars spoke to all first-shift employees at the
first-shift meeting He told them that the only employees
wanting a union were those who did not want to work,
that he was "tired of the little group on the side of the
road . . and the little bunch inside," and that "they was
going to be gotten rid of once and for all." Employee
Robert Newton affirmed that Viars said he was going to
send a "message" to those employees who would prefer
to stay home and receive their checks He had been
"fooling with the Union for four years," and was going
"to get rid of the ones off the side of the road and a few
in the plant " Employee James Roberts testified that
Viars said he was "going to get rid of the ones on the
road and what few organizers they had on the inside "
Employees Clifford Brown, Richard Rose, and Betty
Jean Hayes gave similar testimony
Respondent's witnesses were asked leading questions
on whether Viars threatened to discharge employees,
and denied that he did so.
Respondent introduced a document which, it argued,
was a copy of the written speeches containing almost ev-
erything that Viars- said to the employees. The speech
contains statements against the Union. Although it refers
to a "small group of outsiders" and a "small group of in-
siders," there is no specific threat to discharge them in
the written speech The document consists of three
letter-sized pages with double-spaced type, a partial
fourth page, and contains not over 800 words 30
Viars contended that he read the speech word for
word, and said nothing in addition except to remark on
how good it looked to see members in the audience
wearing garments with the Company colors (red and
white). Various witnesses testified that, except for these
opening remarks, Viars spoke from behind a podium, and
frequently looked down as he was speaking Some wit-
nesses asserted that they saw papers in front of Viars
The testimonies of the witnesses varied about the
length of Viars' speech Viars himself contended that he
did not speak for over 10 minutes This estimate is con-
tradicted by all of Respondent's other witnesses who tes-
tified about the matter .31 Their estimates ranged from 10
to 15 minutes to somewhere between 15 minutes and an
hour. Mike Smith affirmed that he was "sure" that Viars'
speech took more than 15 minutes, while Geraldine
Hughes asserted that it took "every bit" of 15-20 min-
utes, perhaps more. This is consistent with the testimony
of the General Counsel's witness, Richard Rose, who
stated that Viars made a "rather lengthy" speech
ao R Exh 78
31 Verna Owens, Mike Smith, Geraldine Hughes, Phillip Russell, Rich-
ard Long, and Sarah Hargrove
MAREMONT CORP
b Factual analysis
Crediting Respondent's witnesses, I conclude that
Viars spoke for at least 15 minutes. Since the printed
speech contained not more than 800 words, Viars would
have had to be speaking at less than 55 words per
minute, or less than one word per second, if he confined
his remarks to the printed text of the speech This rate of
speed is not characteristic of human speech, and is more
akin to that of a mechanical robot If the higher time es-
timates of the length of the speech are accurate, Viars'
rate of speech was even slower Based on my observa-
tion of Viars on the witness stand and my hearing his
testimony, I find that he spoke at a substantially faster
pace than that indicated by this analysis. Accordingly, I
infer that he made more statements than are indicated in
the written speech
I credit the essentially consistent accounts of Viars'
speeches presented by the General Counsel's witnesses
and reject the denials by the Respondent's witnesses that
Viars threatened employees with discharge. The re-
sponses of the latter witnesses were elicited by leading
questions, and the answers were largely conclusory in
nature
Some of Respondent's witnesses appeared to contend
that Viars was merely saying he wanted to get rid of the
Union, not any particular employee This interpretation
is not persuasive in light of Viars' statements that he in-
tended to get rid of the "little group on the side of the
road" and "what few organizers they had on the inside "
These statements clearly refer to individuals, not merely
to the Union as an entity As noted, the written speech
makes specific reference to "groups" of "outsiders and
insiders "
I therefore find that Viars told employees on 27
August that he intended to get rid of employees on the
road-an obvious reference to union adherents engaged
in handbilling-and to organizers for the Union within
the plant
D The Alleged Unlawful Statements of Supervisors to
Individual Employees
1 Alleged statements of Supervisor Bud Howell
a Summary of the evidence
The complaint alleges that various supervisors32 di-
rected unlawful statements or coercive questions to em-
ployees Supervisor Bud Howell is alleged to have en-
gaged in unlawful interrogation.
Employee Lawrence Johnson testified that, about a
week before the election was ani.ounced, i e , shortly
before 4 August, Supervisor Howell asked him whether
there was going to be an election Johnson replied that
he did not know and had not attended any union meet-
ings Howell responded that he thought another employ-
ee, Pete Thorne, had informed Johnson about an elec-
tion Howell testified that he had heard that Thorne was
32 Bud Howell, Woodrow Hastings, W C Wells, James Brewer,
David Wilburn, Don Story, and Robbie Barnes The pleadings establish,
and I Find, that the foregoing individuals were supervisors and agents of
Respondent within the meaning of the Act
19
a union supporter Johnson had not participated in any
union activities, worn any union insignia, or informed su-
pervisors about his union sympathies Supervisor Howell
agreed that he talked to Johnson every night but denied
that he ever discussed the Union with him
The complaint also alleges that Howell interrogated an
employee concerning the latter's union sentiments by
asking him whether he wanted a "Vote No" hat The
Company had procured such hats as part of its election
campaign material 33
Employee Roger Shaw attended several union meet-
ings, but did not wear any union insignia or communi-
cate his union sympathies to supervisors Supervisor
Howell testified that he was unaware of Shaw's union
sympathies
Shaw testified that about 2 weeks before the election,
he approached Howell's desk with a completed work
order. The desk faced a wall, and Howell was seated at
it. Behind him was a 3-wheel work cycle with a box
containing "Vote No" caps The box had two flaps on
top, one of which was open Shaw opened the other flap
and looked at the caps Howell, who had been complet-
ing another work order for Shaw, turned, saw him look-
ing at the caps, and asked whether he wanted one
"Sure," Shaw replied, and then received a cap
According to Howell, when he turned from his desk,
Shaw already had a hat in his hand, and Howell asked
him whether he wanted one Shaw denied that he had
picked up a hat before being asked by Howell
b Factual analysis
Johnson and Shaw were both employees of Respond-
ent at the time of their testimonies The Board has con-
cluded in similar circumstances that such testimony is en-
titled to considerable weight since it is unlikely to be
false when it is adverse to an employee's pecuniary inter-
est, such as preservation of his job.34 Because of this
factor, and because Johnson and Shaw impressed me as
more trustworthy witnesses than Howell, I credit their
testimonies I conclude that Respondent did not know
the union sympathies of either of them
2 Alleged statements of Supervisor Woodrow
Hastings
a Summary of the evidence
The complaint alleges that Supervisor Woodrow Hast-
ings interrogated employees concerning their union senti-
ments and threatened them with plant closure if the
Union won the forthcoming election Employees Tim
Pierce and James Rose testified that , approximately a
week before the election , Hastings approached them at
their work stations He asked how they thought the
Union looked , and Pierce replied that it was going to be
a close election Hastings asked why they wanted the
Union, and Pierce replied that the employees wanted
33 G C Exh 12 The caps have a legend reading , "Let's Do It
AGAIN VOTE NO [Xl"
34 Bohemia, Inc, 266 NLRB 761, 764 fn 13 ( 1983), Southern Paint &
Waterproofing Co, 230 NLRB 429, 431 fn 11 (1977)
7
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
better wages and benefits . Hastings then said that if the
Union won the election, the employees would not have a
job within 2 weeks and that he, Hastings , would also be
out of a job . The Company would close the plant and
move it elsewhere.
Hastings agreed that he approached Pierce and Rose
and had a conversation with them about a week before
the election . However, the supervisor denied that the
Union or the election was mentioned , that he inquired
about them , or that he said anybody would be out of a
job if the Union won the election . Indeed , Hastings
claimed Pierce and Rose were in a conversation about
the closing of another plant (Swan Hose) and asked
Hastings whether Respondent 's plant at Pulaski could be
moved . Hastings testified that he replied any place could
be moved and agreed that he said Respondent 's plant (at
Pulaski) could be closed in 2 weeks . In response to an
employee inquiry , the supervisor said that it would possi-
bly be moved to Chickasha (another of Respondent's
plants). Hastings recalled that a film about the closing of
the Swan Hose plant had been shown at an employee
meeting during the election campaign.
b. Factual analysis
Hastings ' admissions that he said the Pulaski plant
could be closed in 2 weeks , and possibly would be
moved to another location where Respondent already
had a plant, constitute tacit corroboration of Pierce's and
Rose's testimonies . The latter were truthful witnesses
with greater recall of this conversation than Hastings,
and, accordingly , I credit their accounts of it.35
3. Alleged statements of Supervisor Robbie Barnes
a. Summary of the evidence
The complaint alleges that , on or about 2 September,
Supervisor Robbie Barnes told an employee that employ-
ees should be discharged because of their union activi-
ties.
Employee Jim Brown testified that the day before the
election , he had a conversation with Supervisor Barnes
in the aisle . The latter said that she had heard that em-
ployee Tim Pierce had gone to the office to talk to Plant
Manager Jared . Brown replied that he did not know the
details, but that Pierce had made a mistake in talking to
Jared , that it was the worst thing he could have done be-
cause he "couldn 't get nowhere ." According to Brown,
Barnes agreed that Pierce should not have spoken to
Jared . Pierce's parents had worked at the plant and had
"been real loyal to the Company ." Pierce was a "kind of
a disgrace" because he was involved in union activities.
Pierce would be lucky if Jared did not fire him, and, if
Barnes had her way, she "would go ahead and discharge
him and all these other people for pushing the union real
strong . 36 Brown underwent extensive cross-examination
se Rose also testified that Hastings said the Company would not sign a
contract with the Union even if it won the election There is no such
allegation in the complaint , and Respondent moved to strike that portion
of Rose 's answer Although I find it unnecessary to grant the motion, I
give no weight to that portion of Rose 's testimony
96 Page 1503 of the transcript is hereby corrected so as to insert the
word "she" in line 21 between the words "well," and "said," and in line
during which he was asked the leading question whether
Barnes spoke to him about Pierce on September 2nd.
Brown answered affirmatively , but, on being challenged,
agreed that he could not remember the exact date.37
Supervisor Barnes testified that she had a conversation
with Brown about another employee's conversation with
Plant Manager Jared . The conversation took place "right
after the election , right before, sometime around the
election ." According to Barnes , she was talking with an-
other employee when Brown approached and said that
employee Tim Pierce had gone to the office to protest
Plant Manager Jared's "cussing" at him by using the
word "bullshit ." Barnes testified that she told Brown that
use of this word did not constitute "cussing ." She also
told Brown that Pierce's parents had been "good work-
ers" at the plant for years . Barnes averred that it was
Brown who then said , "If I was Ben Jared . .. I'd kick
his ass out that front door." Barnes contended that she
replied to Brown, "That 's the difference in you and Ben
Jared." The supervisor denied any mention of the Union
and denied the other statements attributed to her by
Brown.
b. Factual analysis
Brown testified without contradiction that he partici-
pated in union activities during a prior campaign in 1985
and then believed that those activities were being sub-
jected to Company surveillance . Accordingly, Brown de-
cided to remain "silent" and "neutral" during the 1986
campaign in order to keep the Company "off (his) back"
and keep it from "interrogating me, harass me (sic), stuff
of that sort." This tactic was successful until Supervisor
Barnes offered Brown a Company T-shirt . "If I didn't
put on the shirt and wear it ," Brown testified, "she
would swear up and down I was strongly for the
Union."
Barnes' admissions that she talked with Brown about
the Pierce-Jared conversation and that the work record
of Pierce's parents was discussed constitute partial cor-
roboration of Brown' s testimony. It is unlikely that
Brown , a union supporter at least in 1985, would have
told a supervisor that he would have fired Pierce for
protesting to the plant manager . Brown's contention-
that he told Barnes that Pierce had made a mistake be-
cause the protest to Jared would not do any good-is in-
herently more probable. Further, Brown had a more
truthful demeanor than Barnes . Accordingly, I credit his
version of this conversation, and reject Barnes' account
where it differs from Brown's.
I further find that the conversation took place on the
day before the election . This was Brown 's testimony on
direct examination and neither his answers to leading
questions on cross-examination nor Barnes ' contradictory
23 between the words "And," and "said ." It is apparent from the context
of this reported testimony of Brown , and from his other testimony, that
Brown was attributing the reported statements to Barnes
99 Brown also testified that , about 2 weeks before this asserted conver-
sation , Barnes solicited him to wear a pro -Company T-shirt . He wore it
for a short time, then took it off, and Barnes asked him the reason
Brown replied that it was too hot This incident is not alleged in the
complaint.
MAREMONT CORP.
assertions about the date have probative value equal to
Brown's initial answer.
4. Alleged statements of Supervisor Don Story
a. Summary of the evidence
(1) Alleged conversation with John Brown
The complaint alleges that Supervisor Don Story en-
gaged in unlawful interrogation of an employee, in-
formed said employee that employees would be dis-
charged because of their union activities , interrogated an-
other employee by offering her a shirt with an antiunion
slogan, and impliedly threatened her with unspecified re-
prisals because of her union activities.
Employee John Brown testified that Supervisor Don
Story approached him at about 4 p.m. on the day of the
election and asked him about the outcome of the elec-
tion . Brown replied that "it looks like it's going to be a
winner this time." Story said that he had heard that
Brown was on the "other side" this time and had worn a
"Vote No" shirt. Brown replied that he had worn the
shirt . Story told Brown that he had asked employee
Thomas Gibson about Brown's union sentiments, and
that Gibson had replied that Brown was "alright and on
the right side." However , Brown contended , Story said
that he wanted to ask Brown himself . The latter replied
to Story that he was "for the winning team this time."
Story asked how many people were going to be "on the
side of the road next Tuesday," and Brown replied that
that depended on how many employees the Company
wanted to discharge.38
Supervisor Story testified that he had a conversation
with Brown on 28 August , the day before the election.
According to Story, Brown approached him and asked
whether Story had seen all the people on the road into
the plant who were supporting the Union. Story told
Brown that he had not seen anybody and that ended the
conversation. Story denied asking Brown about the
result of the election or saying that he had heard that
Brown was on the "other side ." He also denied asking
Brown how many employees would be on the side of the
road "next Tuesday," denied using the word "dis-
charge," and denied telling Brown that he had asked
Thomas Gibson about Brown's union sentiments . Gibson
testified and denied that Story asked him how Brown
was going to vote . According to Gibson , Brown ap-
proached the former a few days after the election and
said that Story had told Brown "that night of the elec-
tion" that somebody , apparently Gibson and Story, knew
how Brown was going to vote . Gibson testified that he
told Brown he did not have the conversation with Story
and that he attempted to get Brown to talk to the super-
visor, but that Brown declined.39
as On cross-examination , Brown testified that he felt "intimidated" by
Story 's questions , and felt that the supervisor was "deliberately trying to
find out if (he) was going to vote for the UAW or . . . the Company."
Respondent sought to elicit testimony from Brown that , in his pretrial af-
fidavit , he stated that the Company did not try to intimidate him.
Brown 's answer to these questions were inconclusive . The affidavit itself,
R. Exh 31 , was identified but not introduced into evidence.
99 Gibson 's account of the asserted conversation with Brown is gar-
bled, and the summary above sets forth its most probable meaning
21
(2) Alleged conversation with Davidia Sanderson
Davidia Sanderson was the daughter of one of the al-
leged discriminatees in this case (Margaret Sanderson).
She was on the Union 's in-plant organizing committee
and solicited employee signatures on authorization cards.
Davidia Sanderson testified that in about mid-August,
Supervisor Story, wearing a red T-shirt , approached her
in her work area and asked where her shirt was.40 Davi-
dia Sanderson replied that she did not have one, and
Story asked her whether she wanted one. Davidia San-
derson answered that she did not want a shirt . Story re-
sponded that it would take a few minutes for him .to get
one, and Davidia Sanderson again said that she did not
want one . Story said , "You're messing up and you know
you're messing up."4 i
Story agreed that he had a conversation with Davidia
Sanderson on 28 August, i .e., the day before the election,
and that he was wearing a "Vote No" T-shirt. He had
been wearing one for several days . Story - initiated the
conversation , and it concerned end-of-month inventory
problems . According to Story, Davidia Sanderson com-
mented that Story had his red T-shirt on again and the
supervisor replied that there were "plenty " of them in
the personnel department. That ended the conversation.
Story denied asking Davidia Sanderson whether she had
a T-shirt , denied offering her one, denied telling her that
she was "messing up," and denied threatening her.
b. Factual analysis
Brown's testimony is partially corroborated by Story's
admission that he had a conversation ' with Brown the
day before the election . As set forth above, Brown was
trying to remain silent during the 1986 campaign because
of his belief that his 1985 union activities had been sub-
jected to Company surveillance. His answers to Story's
asserted inquiries were ambiguous , probably for this
reason . It is highly unlikely that Brown, in these circum-
stances, would have initiated a discussion with a supervi-
sor about employee support for the Union-as Story
contended. It is more probable that Brown's 1986 union
sentiments were unknown to Respondent and therefore
more likely that Story inquired about them . Gibson's
denial that Story in fact asked Gibson about Brown's
union sentiments is a collateral matter and does directly
affect the issue of what Story said to Brown. In any
event, the garbled nature of Gibson 's testimony does not
inspire confidence in its veracity . Brown was Respond-
ent's employee at the time of his testimony , and it is
therefore unlikely that that testimony was fabricated.42
40 The Company distributed red T -shirts as part of its campaign mate-
rial.
4' Davidia Sanderson executed two pretrial statements which were in-
troduced by Respondent. In a statement submitted to the Union , she re-
cited that Story asked her whether she wanted a shirt , that she refused,
and that Story said "You know you're messing up " In a statement sub-
mitted to the Board , Davidia Sanderson set forth the details of the con-
versation substantially in accordance with her testimony . She added that
Story was referring to a "Vote No" shirt because he "grabbed" at the
one he was wearing when asking her where her shirt was. R. Exhs 12(a),
(b).
42 Supra, fn 34
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, Brown was a more truthful witness than Story.
Accordingly, I credit his testimony that Story made the
inquiries to him which Brown recited and asked how
many employees would be on the side of the road "next
Tuesday," i.e , after the election
Davidia Sanderson's testimony was partially corrobo-
rated by Story's admission that he had a conversation
with her the day before the election, and that he initiated
that conversation Davidia Sanderson was on the in-plant
organizing committee and distributed authorization
cards It is improbable that she would have made refer-
ence to an antiunion T-shirt being worn by a supervisor
Further, she was an employee of Respondent at the time
of her testimony43 and was also inherently more credible
than Story Accordingly, I accept her testimony that
Story twice offered her a Company T-shirt, and, when
she refused, told her that she was "messing up"and knew
it.
5 Alleged statements of Supervisor David Wilburn
The complaint alleges that Supervisor David Wilburn
threatened employees with discharge because of their
union activities
Elizabeth Gardner was the wife of one of the alleged
discrimmatees in this case (Gary Gardner) As set forth
hereinafter, Gary Gardner was discharged on about 24
September Mrs Gardner testified that on 12 August she
placed a production report on Supervisor Wilburn's
desk. There were some buttons on the desk that said
"Vote No-Keep out, the UAW " Wilburn suggested to
Mrs Gardner that she take one, and, after she initially
declined, the supervisor suggested that she give one to
her husband According to Mrs Gardner, Wilburn was
joking at this time This incident is not alleged to be vio-
lative of the Act
Mrs Gardner also testified that she had another con-
versation with Wilburn on 27 August, 2 days before the
election Wilburn said, "I know you'll do right Friday
when they go up to have the election," and Mrs Gard-
ner replied, "Yeah, I'll go in there and vote right " Wil-
burn then responded, "You don't want to come up fired
just like your husband," and Mrs. Gardner replied that
she did not want to be fired because she needed her job.
Although Gary Gardner had not been discharged at this
time, he had received warnings from the Company On
cross-examination, Mrs Gardner stated that she did not
consider Wilburn's statement on 27 - August to be a
threat-"ain't nobody threatened me," the witness
averred.
Wilburn testified that he and Mrs Gardner were
joking during the 12 August conversation about the but-
tons but did not testify about the asserted conversation 2
days before the election. Since Mrs Gardner was a cred-
ible witness, I find that Wilburn made the statements to
her on 27 August which she recited in her testimony
43 Supra, fn 34
6. Alleged statements of Supervisor James Brewer
a Summary of the evidence
The complaint alleges that Supervisor James Brewer
interrogated an employee concerning his union senti-
ments by offering him a hat bearing an antiunion slogan
and impliedly threatened the employee with unspecified
reprisals because of his union activities
Unlike the Company's campaign material referred to
above, the hat in this instance had been available to em-
ployees prior to the advent of the union campaign and
was associated with a management attempt to inculcate
employee concern for productivity and quality perform-
ance The hat had the words "I Care" on it and was in
the Company colors of red and white There was abun-
dant evidence about the "I Care" hats In general, they
were given to employees who went to the front office
and asked for them Employee Sadie Hobbs testified that
there was a leaflet advising employees to come to the
office if they wanted an "I Care" hat, although Hobbs
also said that she had seen Plant Manager Jared carrying
some in the plant
Cliff Brown testified that he was a Company employee
until 15 September He engaged in union handbilling and
stated that his sentiments in favor of the Union were
well known Brown testified that 2 days before the elec-
tion, he saw Supervisor James Brewer hand out "I Care"
hats to other employees On cross-examination, Brown
testified that there were six such employees and gave the
names of five of them 44
Brewer then approached Brown during worktime, said
that the cap Brown was wearing looked dirty and of-
fered Brown an "I Care" hat Brown answered "No
thanks, I'll just get it dirty Give it to someone else"
Brewer replied that he respected Brown's decision and
that this would not affect their friendship "After this is
all over," Brewer also told Brown, "I'm going to work
on you." Brown in fact had had a friendly relationship
with Brewer for some time Employee Sadie Hobbs testi-
fied that she saw Brewer with "all these I Care" caps
before the election. Hobbs could see Brown's workplace
from her own station, and testified that she saw Brewer
approach Brown and appear to offer him a cap Brown
"shook his head 'No"', and did not take one Hobbs did
not hear what was said
Brewer denied that he had "I Care" caps at his desk
If an employee asked for one, he would go to the plant
manager's office and get it Brewer also denied giving
such caps to all but one of the employees partially identi-
fied by Brown on cross-examination 45 The only em-
ployee to whom he gave a cap46 specifically asked for it.
This was Company policy, according to Brewer
44 Billy Pope, Danny Barnett, Willie Mason, "George," and a lady
named "Brown " The name "Lillie" as it appears in line 5 on page 356 of
the transcript is hereby corrected to read "Billy "
45 Brewer denied giving caps to Will Mason, Danny Barnett, or Billy
Pope He identified Lenore Brown as the only female in his department
with that last name and denied that he gave her a cap
46 George Currin
MAREMONT CORP 23
Brewer also denied offering an "I Care" cap to Cliff
Brown , denied having a discussion with him about such
caps , and denied telling Brown that he was going to
"work, on" him after the election. Brewer testified that
he had heard a rumor that Brown was "gung ho" for the
Union and knew that Brown had been a union observer
at the election . Brewer also testified that Brown was
fired after the election and that he , Brewer , participated
in the discharge decision
b Factual analysis
Brown was corroborated by Hobbs both on the issue
of whether Brewer carried "I Care" hats in the plant and
whether he offered one to Brown Hobbs also corrobo-
rated Brown's testimony that he refused the offer Both
Brown and Hobbs appeared to be more truthful than
Brewer and I credit their consistent testimonies on these
issues I also credit Brown's testimony that he saw
Brewer offer or hand out hats to other employees in ad-
dition to Currin.
It is unlikely that Brewer offered a hat to Brown with-
out saying anything I credit Brown's testimony that
Brewer told him that he respected his decision, that it
would not affect their friendship, but that Brewer would
"work on" Brown when "this (was) all over 1147
7 Alleged statement of Supervisor W C Wells
The complaint alleges that Supervisor Wells on 20
August instructed an employee not to talk to other em-
ployees about the Union As more fully described herein-
after, Gary Gardner had two conversations with Super-
visor Wells on 20 August which preceded a warning
given to Gardner As later indicated, I credit Gardner's
testimony that, during the second conversation-after
Gardner had complained to Wells that two employees
and another supervisor were arguing with him against
the Union on working time-Wells replied that these in-
dividuals had the right to talk against the Union with
Gardner any time they wanted to, and that Gardner
should keep his mouth shut and not talk to anybody
Under these circumstances, it is clear that Wells ordered
Gardner not to talk to other employees about the Union
E The Allegedly Unlawful Discipline of Gary
Gardner
1 The complaint allegations
The complaint alleges that Respondent issued a verbal
warning to Gardner on 23 April and restricted his move-
ments within the plant, issued written warnings on 6
June and 20 August and again restricted his movement
within the plant, and discharged Gardner on 24 Septem-
ber-all because of his union activities
" It is undisputed that Brown was discharged after the election and
that Brewer participated in the discharge decision On the basis of
Brown's testimony that he was an employee until 15 September, 1 infer
that this was the date of discharge There is no complaint allegation that
Brown's discharge was unlawful and the discharge is relevant only to the
extent that it throws light on the alleged violations
2 Gardner's employment history and union
activities
Gardner had worked for the Company about 13 years
at the time of his discharge. He started working for the
Company in 1973 and was terminated on 24 September,
13 years later Supervisor Pruitt testified that Gardner
was "talking union" in 1985, and had a disagreement
with another employee about it Gardner participated in
union handbilling beginning 1 June 1986, attended union
meetings, made home visits to employees on behalf of
the Union, and was a union observer at the election. At
an employee meeting on 19 August conducted by Com-
pany Vice President Viars, Gardner asked eight or nine
questions and was then told that Viars would not answer
any more from Gardner Plant Manager Jared character-
ized them as "obnoxious-type" questions.
3. Respondent's disciplinary rules and their
interpretation
Respondent asserts that Gardner was disciplined be-
cause of violation of rules on discipline Its employee
handbook states three types of corrective action-verbal
warnings, written warnings, and discharge Verbal warn-
ings are normally given for initial, minor infractions of
Company rules A written warning is given after repeat-
ed violations or violations of a more serious nature Writ-
ten warnings are valid for 6 months, but thereafter are
considered to be inactive Three active written warnings
within a 6-month period warrant discharge. Although a
written record may be made of a discussion, it is not
considered to be a "written" warning unless a "standard
Written Report of Conduct is used "48
Respondent's supervisors testified about these rules,
but the results are not entirely clear Supervisors Bruce
Landtroop and Walter Pruitt asserted that something
called "counseling" precedes the first disciplinary step of
a verbal warning. Pruitt said that he would normally
"caution" or "talk" to an employee seen violating the
loitering rule. Personnel Director Fleming appeared to
say that counseling and a verbal warning were the same
thing All supervisors agreed that only repeated or habit-
ual conduct warranted a verbal warning Fleming con-
tended that supervisors were required to document
verbal warning, but Supervisor Pruitt testified that he
was not required to do so
As explicated above, the Company's written rules
specify that a written warning expires in 6 months Su-
pervisors Pruitt and Grigsby asserted that this expiration
policy did not apply to verbal warnings, but Personnel
Director Fleming testified that it did apply After 6
months, according to Fleming, both verbal and written
warnings "became ineffective in terms of the disciplinary
system "
Fleming contended that there should normally be two
or three verbal warnings before a written warning, and
Grigsby appeared to say the same thing, but Pruitt as-
serted that there was no set number of verbal warnings
before a written warning was justified
48 G C Exh 7 at 28
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The rules against loitering or wasting time and
their application
a. Summary of the evidence
Several of Respondent's published rules prohibited
wasting time or loitering, roaming, visiting in other de-
partments, or interfering with the work of other employ-
ees 49 Gardner's asserted violation of these rules, particu-
larly in connection with break periods, constitute part of
Respondent's rationale for the discipline administered to
Gardner
There were two types of breaks, a 10-minute break
and a 30-minute break for lunch and supper. Employees
were permitted to take breaks in the cafeteria, outside
the building, or in any department which was also on
break The beginning of break periods was announced by
a buzzer or horn. The end of the 10-minute breaks was
announced by the horn, and employees were expected to
be back at their work areas within a reasonable time
thereafter With respect to the lunch or supper break, the
horn sounded five minutes before the end of the break,
and employees were expected to be at work when a
second horn sounded
There was evidence concerning the application or fail-
ure to apply these rules to other employees Gardner tes-
tified that in August he saw employee Stanley Birdsong
in the parking lot "after the horn had blowed" signaling
the end of the lunch period at 12.30 p.m. The witness
also affirmed that he saw employee Faye Randolph leav-
ing the cafeteria at 12 30 p.m and running past her fore-
man Gardner contended that he had seen three employ-
ees50 leaving'the cafeteria after 12.30 p m "on many oc-
casions " He also testified that he saw two employees 51
talking for several minutes with a management official
who was not their supervisor "after the buzzer had
blowed." Ronnie Thomas, a company employee at the
time of his testimony and one of the employees identified
by Gardner, partially corroborated the latter's testimony.
Thus, Thomas testified that he and other employees re-
mained in the cafeteria a short time after the "12.30
buzzer" about two or three times a week Supervisor
Walter Pruitt ate there, according to Thomas. James
Roberts gave similar testimony
Several employees testified about the activities of Ivan
Hughes, a leader of an employee antiunion movement.
Although this evidence does not pertain to break peri-
ods, it relates to the rules against loitering, roaming, or
wasting time According to Ronnie Thomas, Ivan
Hughes was a materiel handler who normally transport-
ed equipment with a forklift or other device Thomas as-
serted that he saw Hughes talking to employees during
August two or three times weekly without his equip-
ment Roger Shaw, a company employee at the time of
his testimony, affirmed that during the month before the
election, he saw Ivan Hughes walking through the plant
in different departments "working occasionally," but oth-
erwise "walking, talking " Shaw stated that Hughes
came to Shaw's department during work time and gave
49 R Exh 38, sec II
50 Harold Hughes, Ronnie Thomas, and Larry Johnson
51 Larry Johnson and Harold Hughes
the supervisor (Bud Howell) a document containing a
newspaper advertisement placed by the "Maremont Em-
ployees for Right to Work, Ivan Hughes, Treasurer."52
Sadie Hobbs testified that she normally saw Hughes in
her area only "very occasionally" 'However, during
August, Hobbs saw Hughes in her department two to
five times every day He talked to employees during
work time and tried to get them to accept "Vote No"
pins. Hobbs saw one employee shake her head as a refus-
al to accept the pin. Employee Lawrence Johnson gave
testimony similar to that of Thomas, Shaw, and Hobbs
Respondent submitted the testimony of Production Su-
pervisor Don Dunnavant who was recalled for addition-
al testimony The General Counsel and the Charging
Party objected to the recall and I sustained the objection
Thereafter, Respondent presented an offer of proof in
question and answer form. In its posthearing brief, Re-
spondent urges me to reconsider my rejection of Dunna-
vant's testimony 53 I hereby reverse my exclusionary
ruling and receive Dunnavant's statements as evidence of
record.
Dunnavant averred that Ivan Hughes was a first shift
expediter and denied receiving any complaints about
him Hughes' job required him to go to various depart-
ments and talk to employees Dunnavant denied seeing
Hughes distribute antiunion material in work areas but
agreed that he may have done so without Dunnavant's
knowledge. Dunnavant originally denied knowing that
Hughes was "pro-Company" but later admitted knowing
this.
Charles Beecham, a former employee who worked in
Respondent's maintenance department, testified that the
employees in that department customarily went to the
restroom to wash up prior to the buzzer announcing a
break period. These departures were as much as 5 min-
utes before the beginning of the break period On 19
September, Supervisor William Murray told employees
to discontinue this practice and wait for the buzzer.
However, four employees54 continued their former prac-
tice but were not warned or otherwise disciplined Main-
tenance Supervisor Murray testified that if another su-
pervisor told him an employee was leaving early for a
break, Murray would give the employee the equivalent
of a verbal warning On the other hand, Murray also
contended that employees sometimes had to wash up
during normal working time if they had something
"greasy, nasty, or dirty" on their hands No special per-
mission was required for these departures from break pe-
riods, there was no specific time limit, and the Company
had no published or verbal rules on the subject Murray
did not deny telling employees on 19 September to dis-
continue this practice of deny that infractions continued
thereafter without the administration of discipline
Respondent submitted testimonial and documentary
evidence of instances where supervisors issued verbal
52 G C Exh 13
sa R br 40, fn 49
54 Beecham named three employees-Pat Kincaid , Marlon Johnson,
and Ricky Stevenson
MAREMONT CORP
warnings to employees for wasting time 55 In many of
these instances, the employees were observed committing
the infractions several times before the first warning was
issued. Thus, Supervisor Hastings testified that he ob-
served one employee wasting time on four instances
before giving him a written warning, while two other
employees committed three or four infractions before re-
ceiving a written warning Supervisor Landtroop identi-
fied a document stating that he "talked with all employ-
ees" in his department in April about being late after the
lunch period 56 At the hearing, Landtroop asserted that
he talked separately about this matter with each one of
about 30 employees in the department However, Land-
troop also 'testified that less than half of the employees
were "abusing" the rule They "sauntered back" or were
"creeping along" rather than "walking briskly back " No
written warnings were issued Landtroop observed other
employees committing violations without giving them
written warnings
Finally, three employees testified without contradic-
tion about Company Vice President Viars' views of the
break rules. Thus, Viars was meeting with third shift em-
ployees and one of them asked for an additional break
period Viars rejected the request. According to employ-
ee Mike Hayes, he said, "Let's face it, we know you
leave five minutes early and come back five minutes late
and we don't say nothing about it" Employees Law-
rence Johnson and Roger Shaw gave similar testimony.
b Factual analysis
I credit the mutually consistent testimony of the Gen-
eral Counsel's witnesses concerning the activities of Ivan
Hughes and find that his principal activities during work
time for about a month before the election were to cam-
paign against the Union in the plant. On one occasion, he
submitted an antiunion document to a supervisor. Dunna-
vant's testimony does not directly contradict the General
Counsel's evidence
I also credit the testimony of former employee Charles
Beecham, a truthful witness, that employees in the main-
tenance department routinely left work prior to break
periods in order to wash their hands Murray's testimony
on this subject is either contradictory or implausible I
further find, since Murray did not deny it, that he asked
employees on 19 September to stop leaving early for
breaks, but thereafter failed to discipline those who con-
tinued the infractions.
It is apparent and I find that on some occasions super-
visors issued written warnings to employees for loitering
However, it is also clear that the rule was not enforced
rigorously This is evident from my findings above and
from Viars' statements to employees about the break
rules It is also evident from Hastings' admissions of the
number of infractions he observed before "writing up"
an employee Supervisor Landtroop's testimony about
55 Some of the documentary evidence was rejected on the ground that
the dates thereon indicated events too late to be relevant In its brief, Re-
spondent urges that I reconsider this ruling on the ground that other par-
ties were permitted to submit evidence of alleged disparate treatment
during the same time period Respondent's argument has merit Accord-
ingly, I now receive Respondent's Exhibits 62 through 67
56 R Exh 61
25
"talking" to every one of his employees is implausible
because he admitted that less than half of them were
committing an infraction. Based on the testimonies of the
General Counsel's witnesses, I conclude that similar in-
stances were simply overlooked by supervisors. Finally,
recalling the prior discussion of Respondent's discipli-
nary rules,57 it is obvious that the Company supervisors
did not agree on the distinction between "counseling" or
"talking" and a verbal warning, or the number of verbal
warnings which would justify a written warning, or the
documentation of verbal warnings, or whether a verbal
warning expired in 6 months as did a written warning.
5 The warnings issued to Gary Gardner
a Warnings in the 1970s
Supervisor Pruitt testified about several warnings
issued to Gardner in the late 1970s, to wit, a warning in
1976 for failing to get parts and standing around talking,
one in 1979 in part for prolonged conversation and being
in other departments, and another in the same year for
not being in the work area at the end of a supper break
Pruitt submitted asserted notes of these warnings 58
b Warnings for "wasting time" in the 1980s
Supervisor Pruitt testified that he issued a verbal
warning to Gardner on 29 October 1985 for reading a
Company bulletin board during work time without per-
mission, and submitted an asserted note that he made of
this warning 59 Gardner denied that Pruitt said anything
to him Pruitt contended that employees were permitted
to read the board only during nonworking time He
averred that Company rules are posted on this board
Pruitt also asserted that he gave Gardner a verbal
warning on 13 November 1985 for talking to other em-
ployees while getting a piece of equipment 60 Pruitt
agreed that employees are allowed to talk with one an-
other as long as it does not interfere with work.
Supervisor Pruitt testified that he gave Gardner a
verbal warning in January 1986 for not being at work by
the end of a lunch period,61 and Gardner corroborated
Pruitt's testimony
Pruitt also testified that he gave Gardner a verbal
warning on 23 April 1986 for talking on the telephone
during working time without permission, and supported
it with an asserted note made at that time 62 Although
the complaint alleges that this warning took place and
was violative of the Act,63 Gardner denied that Pruitt
said anything to him on that occasion and denied that
Pruitt ever warned him about talking on the telephone
After reviewing his notes, Pruitt testified about admo-
nitions he gave Gardner about interfering with the work
of other employees He did this several times On 8 May,
57 Supra, subsec 3
58 R Exhs 100, 101, 103
19 R Exh 89
60 Ibid
61 Respondent submitted an asserted note concerning this incident
from a small notebook kept by Pruitt R Exh 90
62 R Exh 88
63 G C Exh 1(g), sec 19(a) -
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pruitt issued a verbal warning to Gardner about union
discussions during working time. Asked whether he told
Gardner to restrict his "union talk for breaks in non-
working areas." Pruitt answered, "Yes." Pruitt agreed
that he had issued verbal warnings in the past to other
employees without issuing a written warning.
c. The written warning on 6 June
(1) Summary of the evidence
Gardner's wife, Elizabeth, worked in the Company's
"McPherson Strut" department. Gardner testified that,
for about 2 years, he had been taking his afternoon 10-
minute break visiting his wife in that department Ac-
cording to Gardner, it takes about 2 to 3 minutes to walk
from the McPherson Strut department to his work sta-
tion. His customary practice was to leave when the
buzzer sounded ending the break period, and walk back
to his work station. Gardner testified that his supervisor,
Walter Pruitt, had seen him visiting with his wife on sev-
eral occasions, but Pruitt denied knowledge of the prac-
tice. Nobody ever told Gardner not to take a break in
the McPherson Strut department. Production Superin-
tendent Grigsby agreed that it was permissible for him to
do so.
Gardner testified that he visited with his wife during
the afternoon break period on 5 June and "followed his
usual practice." Production Superintendent Grigsby was
in the McPherson Strut department at the time. The de-
partment has a computerized clock run from a central
control. Grigsby testified that he started observing Gard-
ner some time between 2:15 and 2:20 p.m., the end of the
break period. Gardner was talking to other employees
whom Grigsby assumed to be McPherson Strut employ-
ees. When the buzzer sounded ending the break period,
these employees immediately returned to the McPherson
Strut assembly line 20 to 30 yards away. They took per-
haps a minute to return. Grigsby agreed that Gardner
was talking to these employees "right up until the bell
rung." However, Grigsby contended Gardner did not
leave the department until 3 minutes and 40 seconds
later. Grigsby made no written note of this time span but
testified that he recalled it because he has a "terrific
memory " Since the McPherson Strut employees started
returning to work immediately on the sounding of the
buzzer, the issue arose as to what Gardner was doing for
3 minutes and 40 seconds. According to Grigsby, Gard-
ner was talking to other employees. "Other people can
work and he could still talk to them." Grigsby did not
testify specifically that Gardner walked 20-30 yards back
to the assembly line to continue talking with McPherson
Strut employees returning to work After timing Gard-
ner, Grigsby called the latter's supervisor, Walter Pruitt,
and determined that he had not given Gardner permis-
sion to be in the McPherson Strut department for 3 min-
utes and 40 seconds.
Grigsby testified that he had observed other employ-
ees wasting time-the exact amount of which he did not
recall-and had reported it to their supervisors. Grigsby
did not determine whether the supervisors had issued
prior verbal warnings to the employees concerned Had
the supervisors done so, Grigsby would have conducted
"further investigation." In Gardner's case, according to
Grigsby, he and Pruitt decided to take Gardner to the
personnel office because they did not know whether he
would get a written warning. Although Pruitt suggested
that Grigsby knew about Gardner's prior verbal warn-
ings before they arrived at the personnel office, Grigsby
testified that he did not know this fact before arrival at
the office. Gardner's case was the first one in which
Grigsby and a supervisor had gone to the personnel
office immediately after an employee committed an in-
fraction. According to Grigsby, he and Pruitt met with
personnel officer Bill Polly prior to 3:30 p.m. on 5 June.
According to Pruitt, however, he met with Grigsby
and Polly on the morning of 6 June and the decision was
made to issue a written warning to Gardner. Gardner
testified that he was called into the office at about 10
a.m. on 6 June and was given a written warning.64 Ac-
cording to Gardner, Pruitt then told him that he knew
the "position he was in," and that he was going to have
to keep a "straight line and follow the rules." Pruitt
denied saying precisely this to Gardner. However, he
agreed that he did tell Gardner that the latter would not
have any problems as long as he "followed the rules and
did his ,lob." Pruitt testified that Gardner was "very out-
spoken for the Union," but denied that this was a factor
in the written warning.
Gardner observed to the supervisors that other em-
ployees, whom he named, had been late from breaks on
several occasions, and Grigsby said that he would check
it out. Gardner protested that he was being "singled
out," and, according to his testimony, there was no re-
sponse from the supervisors.
(2) Factual analysis
I credit Pruitt's undisputed testimony about warnings
issued to Gardner in the 1970s, and the one issued to him
on 13 November 1985. I also credit Pruitt's corroborated
testimony that he issued a verbal warning to Gardner on
8 January 1986 about being late after a lunch period. Fi-
nally, I credit Pruitt's admission that, on 8 May, he told
Gardner to restrict his union discussions with other em-
ployees to nonworking areas. I reserve decision on the
disputed evidence as to whether Pruitt gave Gardner
verbal warnings on 29 October 1985 or 23 April 1986.
With respect to the written warning on 6 June, I con-
clude that Gardner's established practice was to visit his
wife in the McPherson Strut department during the
afternoon break, and that this did not violate any Com-
pany rule. I do not credit Pruitt's assertion that he had
no knowledge of this practice. Although Grigsby's testi-
mony about the 3 minutes and 40 seconds is not entirely
consistent, Gardner did not deny it, and defended himself
by asserting that other employees did the same thing.
64 The warning is set forth on a form entitled "Report of Employee's
Workmanship and/or Conduct " It states that Gardner was "talking to an
employee in the McPherson department 3 minutes and 40 seconds after
the break horn blew " The employee was told "to be back in the work
area in a reasonable amount of time after the break horn sounds" A
space on the form inquires whether the employee had previously been
warned for the same offense, and, if so, the date The indicated answer is
affirmative, but the only date give is 8 January 1986 G C Exh 9
MAREMONT CORP 27
Accordingly, I find that Gardner did not leave for his
work station when the buzzer sounded ending the after-
noon break period on 5 June.
I note the contradiction in Grigsby's and Pruitt's testi-
monies as to the day they went to Polly's office to dis-
cuss Gardner Without resolving this contradiction, I
find that this was a departure from production superin-
tendent Grigsby's past practice He normally left disci-
pline for matters of this kind to the supervisors, and his
visit to the personnel office with a supervisor was the
first time he had ever done this immediately after a simi-
lar infraction by an employee Although Pruitt tried to
suggest, that Grigsby knew about Gardner's prior verbal
warnings before going to the personnel office, I credit
Grigsby's denial of such knowledge Pruitt had failed to
issue or recommend written warnings to employees after
several verbal warnings
I credit Gardner's testimony that Pruitt told him on 6
June that he knew "the position he was in" and that he
would have to keep a "straight line and follow the
rules " Pruitt's account of this conversation admits some
of Gardner's version As for the remainder, Gardner was
a more truthful witness than Pruitt, and his version is
consistent with Pruitt's verbal warning on 8 May I
credit Gardner's testimony that he told the supervisors
on 6 June he was being "singled out," and that they did
not respond
At this point, the 8 January warning for lateness and
the 8 May warning about union discussions are the only
warnings determined to have been issued within 6
months prior to 6 June
d The written warning on 20 August
(1) Summary of the evidence
As indicated above, an employee meeting was held on
19 August, and Gardner, after asking Vice President
Viars several "obnoxious-type" questions, was told that
Viars would not answer any more questions from him
The next day, 20 August, Gardner was scheduled to
begin work at 6 am, an hour earlier than his normal
starting time Gardner testified that he arrived at the
plant at 5 55 a m., parked his car, clocked in at 5 59 a m ,
and went to the cafeteria to deposit his lunch in the re-
frigerator On the way out, he passed Supervisor Wil-
burn and said "Good morning " Gardner went to the
"stacker area" at the far side of the cafeteria, and ob-
tained a "lift" which he used in his work Gardner then
proceeded to his work station in the projection welding
department, a distance of about 150-160 feet Supervisor
Pruitt was absent on medical leave, and Gardner's tem-
porary supervisor was W. C. Wells Gardner testified
that Wells said nothing to him when he arrived at his
work station
Supervisor Wilburn testified that at 6 09 or 6 10 a m
he saw Gardner standing in the cafeteria reading "a
paper of some sort " Wilburn said that he knew the time
because he looked at his watch Wilburn saw Personnel
Supervisor Wade Wallace in the cafeteria and asked
whether Gardner was supposed to be at work Wallace
said that he would check on it, and Wilburn returned to
his office to make a note of the incident. On cross-exami-
nation, Wilburn testified that he goes to the cafeteria a
few times a week in the morning, and that there are nor-
mally some employees there a few minutes after 6 a m
Wilburn did not recall reporting any other employee for
being in the cafeteria between 6 a m and 7 a.m
Supervisor Wallace corroborated Wilburn's testimony
After assertedly seeing Gardner in the cafeteria between
6.08 and 6 10 a m, Wallace returned to the personnel de-
partment and ascertained that Gardner had clocked in at
5 59 a m and that his shift started at 6 a.m. The comput-
er clock then read 6.10 a.m. Wallace contended that he
then called Supervisor Wells to determine whether
Gardner had permission to be in the cafeteria at that
time. According to Wallace, Wells said that he would
check and call back Wells did so according to Wallace
and reported that Gardner denied being in the cafeteria
at that time. Wallace testified that other hourly employ-
ees are normally in the cafeteria shortly after 6 a m , as
many as 15-20 on occasion On 20 August, there were
six to eight such employees. Wallace testified that he did
not check the clock-in time of any employee other than
Gardner, and has not done so between 20 August and
the date of the hearing in this matter
Supervisor Wells testified that employees are permit-
ted to place their lunches in the refrigerator provided
that they do so before the shift begins He confirmed
that Gardner's shift began at 6 a m. and that the latter
customarily used a "lift" in his work Wells did not deny
Gardner's testimony that he, Wells, said nothing to
Gardner when the latter arrived at his work station in
the welding department with his lift on the morning in
question.
Wells testified that Supervisor Wallace called him at
about 6.10 a.m. and asked whether he had given Gardner
permission to be in the cafeteria and, if so, the reason
Wells contended that he replied he had not given such
permission but would "look into it" and get back to Wal-
lace.
Two separate conversations then ensued between
Wells and Gardner, but the evidence is conflicting as to
the times thereof According to Wells, he had a conver-
sation with Gardner at 6 15 a m in which he told the
employee that there were "two witnesses" affirming that
Gardner had been in the cafeteria between 6-08 a m. and
6.10 a.m. Gardner replied that he had been to the cafete-
ria to place his lunch in the refrigerator, had then gone
to get his lift, but was at his work station in the welding
department "at 6 00 am" Wells claimed that he told
Gardner that he was not supposed to be in the cafeteria
during working hours and that Gardner replied that he
knew the rules
According to Gardner's account of the first conversa-
tion, Wells approached him at 6 45 a.m. and asked
whether he had been in the cafeteria at 6.10 a m. Gard-
ner denied it and Wells said he would "go further "
Wells agreed that he had a conversation with Gardner
at 6 45 am but contended that it was the second one
that morning Gardner came up to Wells and complained
that Supervisor Wilburn and two employees had "har-
assed" him about the Union during working hours
Gardner agreed that he made this complaint to Wells,
28 DECISIONS OF THE NATIONAL LABOR RELA ; -ONS BOARD
but asserted that the conversation took place at about
7 10 a in , subsequent to his first conversation with Wells
at 6:45 a.m
According to Gardner , he complained to Wells that,
on 18 August , Supervisor Wilburn had asked why Gard-
ner wasn't wearing a "Vote No" button and cursed the
Union . Gardner also complained that employees Jesse
Mae Townsend and Mary Fields argued against the
Union with him during working time In reply, Gardner
testified , Wells told him to keep his mouth shut and not
talk to anybody , that these individuals " talking against
the Union had the right to talk to (Gardner) anytime
they wanted to " Wells denied saying this and stated that
he sent Gardner 's complaint to the personnel ' department
Gardner testified that he was called to the personnel
department at 8.30 a in and that Supervisors Polly,
Grigsby, and Wells were present Wells confirmed that
the meeting took place at 8.30 a . m. or thereafter Gard-
ner was given a written warning for being in the cafete-
ria at 6:10 a.m 65 Gardner denied it and told the supervi-
sors that they were "setting him up " He gave the names
of other employees assertedly late getting back from the
cafeteria , 66 and Polly replied that they "didn't have
nothing to do with" Gardner Polly said that the best
thing for Gardner to do was return to his department
and not talk to anybody . Gardner repeated his com-
plaints against Supervisor Wilburn and two other em-
ployees. Polly said that he had other warnings in Gard-
ner's file, but Gardner denied warnings on 29 October
1985 or 23 April 1986. Polly made no explanation about
these warnings , according to Gardner.
(2) Factual analysis
Supervisor Wells himself admits that Gardner claimed
he was at work at 6 a.m when Wells initially confronted
him in the welding department Nowhere does Wells
claim that Gardner arrived late for work . Further, Wells
did not deny Gardner's testimony that Wells said nothing
to him when Gardner arrived in the welding department
ready for work It is unlikely that the supervisor would
have allowed Gardner to arrive 10 minutes late without
saying anything to him . From Wells' testimony it appears
that he had no complaints against Gardner until he re-
ceived a call from the personnel department The fact
that Wells did not say anything to Gardner until he re-
ceived this call constitutes implicit contradiction of Wil-
burn's and Wallace's testimonies that they saw Gardner
in the cafeteria at 6.10 a.m . Gardner could not have been
at work in the welding department since 6 a . m. and si-
multaneously in the cafeteria at 6 10 a.m . Crediting
Wells' report of Gardner ' s denial of the charge and
Gardner's denial voiced later to the supervisors, I find
65 The warning asserts that Gardner was seen in the cafeteria at ap-
proximately 10 minutes after the beginning of his shift and that he denied
it The warning continues that "another write -up on or before 12-6-86
will result in termination " The following dates for alleged prior warn-
ings for the same offense appear in the space provided for such informa-
tion October 29, 1985 , April 23 , 1986, January 8, 1986 , and June 6, 1986
(in the order given ) G C Exh 10
66 Gardner gave the names of the following employees as those late
when returning from the cafeteria Ivan Hughes , Harold Hughes, Glen
Worsham , Ronnie Thomas, and Larry Johnson
that he was at work at 6 a . m. and not in the cafeteria at
6.10 a in.
This finding is buttressed by the subsequent chronolo-
gy of events . Thus, it is clear from the testimonies of
Gardner and Wells that Gardner 's meeting with the
three supervisors took place at 8.30 a in or thereafter If,
as Wilburn and Wallace contended , they ascertained
Gardner's purported infraction a few minutes after 6 a m
and immediately called Wells, it is unlikely that they
would have waited about 2 hours before bringing Gard-
ner to the personnel department Gardner was a more
truthful witness than Wells, and I credit his testimony
that the first conversation with Wells took place at 6.45
a in., and the second one- in which Gardner complained
about Wilburn and other employees-after 7 a . m. I credit
Gardner's testimony that Wells then told him to keep his
mouth shut and that the employees criticizing the Union
to Gardner had the right to say this any time that they
wished to do so.
I credit Gardner 's testimony that Personnel Supervisor
Polly, responding to Gardner 's complaints that other em-
ployees were late in returning from the cafeteria, said
that this had nothing to do with Gardner I also credit
Wilburn's and Wallace's admissions that this was the
only time they checked on any employee in the cafeteria
between 6 a m and 7 a.m.
Regarding the asserted 29 October 1985 and 23 April
1986 warnings , I credit Gardner ' s uncontradicted testi-
mony that Polly did not explain these when presenting
Gardner with the 20 August warning I also note that no
record of prior discipline on these dates appears in the
Company's written warning dated 6 June.67 If Gardner's
file contained a record of these asserted prior warnings
on 6 June, it is probable that the warning on that date
would have reported them I credit Gardner 's denial that
he was warned about anything on these dates and find
that the asserted discipline in fact did not take place
6 Gardner's discharge
a Gardner 's relationship with Lucy Birdsong
(1) Summary of the evidence
Gardner was an expediter in the projection welding
department and was required to carry parts to the vari-
ous welders working at their welding machines Lucy
Birdsong was one of the welders , and her complaint
against Gardner formed the basis for Respondent's dis-
charge of Gardner . Since the complaint was sexual in
nature, the relationship between the two employees is
relevant
Gardner was 31 years of age and Birdsong was 52
Gardner was married and Birdsong had previously been
married They had a friendly relationship at work and
had known one another for several years. Gardner testi-
fied that Birdsong brought him candy every day and on
several occasions caught rides with him across town
after work Gardner helped Birdsong with her paper-
67 Supra, fn 64, G C Exh 9
MAREMONT CORP 29
work, and Birdsong related personal matters to Gardner
such as gifts given to her by her ex-husband
According to Gardner, Birdsong made sexual remarks
to him several times a week in a joking manner The two
were frequently joking. However, after Birdsong's alle-
gations against Gardner, her asserted sexual remarks to
him became part of a formal charge of sexual harassment
by Gardner against Birdsong, and Respondent assessed
the merit of the two charges before disciplining Gardner.
The latter contended that Birdsong made a sexual in-
quiry about his anatomy in connection with his being
bow-legged, and asked how he made love to a woman.
She also commented that she would "take care" of him
one weekend.
Birdsong agreed that she was friendly with Gardner,
and talked to him at work She admitted "laughing" with
him "sometimes," but denied that she ever joked Bird-
song admitted that she sometimes caught a ride with
Gardner since she did not drive herself, but testified that
she paid for the rides and that Gardner's wife was also in
the car. Birdsong stated that she gave Gardner her tele-
phone number, but asserted that this was for the purpose
of allowing Gardner to sell her some tomatoes She
denied discussing her ex-husband with Gardner, although
she testified that Gardner knew the individual involved.
Birdsong agreed that she gave candy to Gardner, but
contended that she gave candy to other employees She
denied that she made sexual comments to Gardner, but
agreed that on one occasion she asked him what he had
done for the weekend
Gardner testified that Birdsong told him on many oc-
casions that he would be fired if he did not "leave the
Union alone " Birdsong testified that she knew Gardner
favored the Union but denied discussing it with him.
(2) Factual analysis
Gardner was a more truthful witness than Birdsong
and there is other evidence that they had a friendly rela-
tionship. Birdsong submitted statements to the Company
somewhat more corroborative of Gardner's testimony
than her own testimony at the hearing, as appears herein-
after I credit Gardner's testimony including those in-
stances where it conflicts with Birdsong's.
b The alleged sexual harassment and Respondent's
investigation
(1) Birdsong and the NLRB
The initial charge in this case was filed on 19 Septem-
ber 68 Birdsong testified that she received a telephone
call from a "Labor Board Relations man" on Sunday
night, 21 September, asking her whether she knew where
Gary Gardner was when he was charged with being out
of his department at 6.10 am Birdsong replied that she
did not know. Birdsong repeatedly denied on cross-ex-
amination that this call "upset" her. However, she sub-
mitted a statement to management in which she asserted
that she was "scared to death after the call "69 Confront-
se G C Exh 1(a)
se G C Exh 20
ed with this statement, Birdsong initially contended that
it was not true, but finally admitted that although she
was not "upset," she was "scared" after the call from the
Board agent because she lives alone and "different
people like that do different things to your house." She
refused to let the Board agent in the door when he came
to visit her
(2) The incident on 22 September
Gardner testified that, just after the afternoon break on
22 September, he lwas working on number 13 welder and
Birdsong was standing by number 9 welder, about 10 to
12 feet away. According to Gardner, Birdsong was
wearing pants, a blouse, a flannel shirt over the blouse
and over that a leather apron (which the welders used to
protect themselves while welding) tied at the neck and
around the waist. According to Gardner, the welders
wear something over their blouses to protect themselves
from overhead air-conditioning vents. Respondent's wit-
nesses denied that Birdsong was wearing a shirt over her
blouse, or that the leather apron was fastened in the
back. The significance of this dispute is Birdsong's con-
tention that Gardner lifted up her blouse
Gardner testified that he asked Birdsong whether she
needed some "eye-rings or was changing over." Bird-
song replied that she was waiting on parts. Gardner told
her to wait a second and he would get some for her. He
then noticed that her clothes were loose, and asked
whether she was losing weight Birdsong replied that her
clothes were too big and laughed
Birdsong testified that she told Gardner she was out of
"rings" He looked at her and asked "Why don't you
eat9" Gardner then grabbed her blouse, pulled it up to
her armpit, let it down, and pulled it up again 2 inches
above her waist. He said, "Hey, James Garner, look at
her ass," and walked away laughing. On cross-examina-
tion, Gardner stated that he was 6 feet from Birdsong
and denied touching her or her clothing He was holding
onto the lift he was operating at welding machine
number 13, and leaned over to ask her whether she was
out of "eye rings " Gardner denied commenting on Bird-
song's anatomy.
Respondent's witness, Jean Willoughby, testified that
she was about 10 feet away at her machine She looked
up and saw part of the incident but not all of it Accord-
ing to Willoughby, Gardner pulled up Birdsong's shirt to
the waist so that her pants were visible. Willoughby did
not hear any of the conversation She affirmed that Bird-
song later asked whether she had seen the incident and
told Willoughby that Gardner had said something to
Birdsong about losing weight
Birdsong contended on cross-examination that she
went to Willoughby and asked whether the latter had
seen what Gardner "did." She told Willoughby that
Gardner told James Garner to look at her "ass " Bird-
song was asked whether she told Willoughby that Gard-
ner had said something to her about losing weight and
claimed that she could not remember this because it had
"been a long time " In fact, Birdsong agreed, she had
lost "a lot of weight" prior to 22 September Whereas
Birdsong previously alleged that Gardner spoke to James
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Garner when assertedly pulling up Birdsong's blouse, on
cross-examination Birdsong contended that Gardner
called out to "Jeanie," "Jean" (Willoughby) at this time
Unlike Willoughby, Birdsong initially testified that Wil-
loughby told Birdsong that she had heard what Gardner
said Birdsong later amended this testimony
Birdsong stated that she waited until the following
morning to report this incident to management because
she was "embarrassed," it was "late in the evening"
when the shifts were changing and the office was "full of
people "
Birdsong went to the personnel department the next
morning and talked to Company officials Grigsby, Flem-
ing, and Plant Manager Jared Later in the day she spoke
with a Company lawyer Plant Manager Jared wrote a
statement for Birdsong to sign Birdsong testified that she
signed the statement without reading it She amended
this answer to affirm that she "read over" the statement
and inserted the word "Ass" in a blank space in the
statement. The statement essentially sets forth Birdsong's
version of the incident with Gardner There is nothing in
it about a conversation with Willoughby In the state-
ment, Birdsong accuses Gardner of "harassing" her by
not getting parts but in her testimony denied that she had
made this accusation The statement also sets forth Bird-
song's belief that Gardner was "harassing" her because
of a call which she received from a Board agent.70
Respondent's witness, James Garner, testified that on
the day in question, he visited the water fountain behind
Birdsong's welding machine Gardner was supplying
parts to another welder and was talking with Birdsong.
Garner returned from the water fountain and did not
stop On direct examination, he testified that Gardner
leaned over Birdsong's shoulder, pointed at Birdsong's
anatomy, and said that "she had a small ass and it was
drying up " Garner claims that Birdsong "seemed
shocked" and denied that she laughed On cross-examina-
tion, Garner acknowledged that Birdsong and Gardner
talked a lot together and that it was common for em-
ployees to "clown around " Garner stated that the inci-
dent did not constitute a "big argument" between Bird-
song and Garner, and that Birdsong replied to Gardner's
comment, "That's all right." As for Birdsong's seeming
shock, Garner testified that she had been "unusually
quiet" for a few days prior to the incident in question,
and had "seemed sort of shook up" On the issue of
whether Gardner touched Birdsong or her clothes,
Garner initially testified that if Gardner did so, he,
Garner, did not see it The witness then clarified this
answer "He [Gardner] didn't touch her " Garner af-
firmed that the word "ass" was used widely throughout
the plant and gave examples of short Anglo-Saxon words
similarly used.
Regarding Birdsong's contention that Gardner called
out to Garner about her "ass," Gardner was asked to
identify other employees present during his conversation
with Birdsong He mentioned only Willoughby at the
next machine Gardner testified that he did not look
around to see whether other employees were present be-
70 G C Exh 20
cause the motor on his lift was operating and because he
was working his "butt off."
(3) The Company's investigation
The following morning, 23 September, Birdsong relat-
ed her version of the incident to Supervisor Pruitt Pruitt
took her to the personnel office where she met with
Plant Manager Jared at about 6 20 am As indicated,
Jared reduced Birdsong's complaint to writing except
that he left a blank space for the word "ass" which Bird-
song supposedly did not want to "say." This was the
first statement Jared had ever taken from an employee.
When Personnel Manager Fleming arrived, Jared
turned the matter over to him and Fleming called several
persons to the office One of these was James Garner,
who testified that he told Fleming that if there was a
touching of any sort, he did not see it but did hear Gard-
ner make the statement to Birdsong recited above in
Gardner's testimony.71 Willoughby told Fleming that
she saw Gardner pull up Birdsong's shirt, and that Bird-
song later told her that Gardner said she was losing
weight.72 Fleming asked Willoughby whether she knew
"anything else" that Gardner had done
Fleming directed Supervisors Polly and Wallace to
conduct interviews with other employees and to obtain
statements There is no evidence that these other em-
ployees were witnesses to the incident
Supervisor Pruitt brought Gardner to Fleming's office
shortly after 10 a m Gardner requested Sadie Hobbs as a
"witness" and this request was granted. The personnel
manager told Gardner that Birdsong had charged him
with pulling "on her shirt and making a comment about
her ass." Fleming then took Gardner's statement about
the incident substantially in the same terms as Gardner's
testimony recited above In this statement, Gardner af-
firmed that he had no knowledge of other incidents of
sexual harassment In later statements, Gardner repeated
his version of the incident involving Birdsong, gave in-
formation of similar incidents involving other employees,
and made the specific accusations against Birdsong set
forth in his testimony outlined above 73 Birdsong submit-
ted a statement to the Company denying Gardner's accu-
sations but admitting that she once asked him why he did
not "straighten his legs " Birdsong added in her state-
ment, "We both laughed " On another occasion, she
asked him about a girlfriend of his 74
71 R Exh 92(c)
72 R Exh 92(b)
73 Gardner's statement includes charges that Birdsong, on 19 Septem-
ber, said that he must be thinking about his girlfriend because he ap-
peared to be sexually excited, and that Birdsong would "take care of
him" one weekend Birdsong also commented on the same day that
Gardner must be bow-legged because of his size "in the private area " R
Exhs 92(f), 95, 96
74 R Exh 92(l)
MAREMONT CORP 31
c Gardner's suspension, reentry into the plant on 23
September, and return the next day
(1) Summary of the evidence
Fleming suspended Gardner for the day with pay on
23 September Gardner asked whether he was being
fired, and Fleming denied it According to Fleming, he
told Gardner to "leave the plant and not return" until 9
am the next morning Gardner asked to see his wife,
and Fleming replied that Supervisor Pruitt would ac-
company him, wait until the conversation was complete,
and escort Gardner out of the plant Gardner said that
this would not be necessary and agreed to let Pruitt
inform his wife of the events that had transpired Gard-
ner then left by a door next to Fleming's office
Gardner agreed essentially with this account except
that Fleming merely said that he was "sending [Gardner]
home with pay with instructions to come back in the
morning at nine o'clock " Sadie Hobbs testified that
Gardner asked whether he was being fired "No," Flem-
ing replied, "I'm going to send you home and you come
back tomorrow morning at 9 00." When Gardner men-
tioned the need to talk with his wife, Fleming said that
Pruitt would accompany him, and Gardner agreed to let
Pruitt inform Gardner's wife.
Gardner left, but testified that he remembered he had
left his newspaper on the computer in the plant He re-
turned to get it but it was no longer there Gardner ap-
proached Birdsong, who was doing some paper work.
On direct examination Birdsong testified that Gardner
"hit" her on the left shoulder and told her that she had
better get the sex harassment charge dropped. "You did
it," she replied to Gardner. On cross-examination, Bird-
song agreed that Gardner "tapped" her on the shoulder
and that he had previously given her a friendly tap
Gardner appeared to leave, according to Birdsong, but
later was at the computer for a short time Birdsong
stated on direct examination that Gardner was "gazing"
at her and then left after a few minutes Birdsong testi-
fied for the Company in a state unemployment compen-
sation hearing and affirmed in the instant hearing that
she told the referee in the state hearing she and Gardner
"stared" at each other for a period of time Birdsong was
then shown a transcript of her testimony at the state
hearing which does not recite any such "staring 1175
Birdsong insisted that although the "staring" incident
was not in the transcript, nonetheless she told it to the
referee Gardner testified that he "left the plant" after his
conversation with Birdsong. The latter went to Flem-
ing's office and told him about the incident
Fleming testified that he heard that Gardner had reen-
tered the plant He made an investigation and determined
that it was true 76 Fleming and three other supervisors
75 R Exh 13, p 22
76 Anna Marie Edwards testified that she saw Gardner speak to Bird-
song, leave, return, and speak to her again Margaret Coleman testified
that Gardner put one hand on Birdsong's shoulder and the other around
her waist as he was talking to her Mary Fields contended that Gardner
had his hand on Birdsong's shoulder Respondent elicited testimony from
Fields that Gardner had invited her to go to a motel with him, which
invitation she rejected However, Fields also testified that she had been
against the Union during the campaign, had had conversations with
(Jared, Polly, and Wallace) obtained a total of 22 state-
ments from employees. Birdsong did not name all the
employees Fleming testified that, "as the thing expand-
ed," the Company "interviewed random people that
could have had the opportunity to witness it " Fleming
spent about 9 hours on the case over 2 days, Wallace
almost as much time, while Polly worked both days on
the case. Fleming had called Polly back from vacation to
assist in the investigation
Gardner and Hobbs returned to Fleming's office the
next morning, 24 September Hobbs testified that Flem-
ing told Gardner that he had violated Fleming's order
not to return to the plant or talk to any employee Gard-
ner denied either such order, and Hobbs agreed with
him Gardner said that he wanted it "in writing" and
Fleming, who had already written part of Gardner's
statement, purportedly added on another piece of paper
that he had not ordered Gardner not to reenter the plant
or to talk to anyone This constituted an additional half
page Hobbs said that she read it and that she and Gard-
ner signed it. Fleming put it under other papers.
Hobbs identified a statement signed by her and Gard-
ner as the subject of her testimony On the second page,
the statement avers that Fleming did not tell Gardner
which door to exit (after the suspension) and that he did
not warn Gardner not to talk to anyone 77 It was
brought to Hobbs' attention at the hearing that the state-
ment does not specify that Fleming did not order Gard-
ner not to reenter the plant Hobbs agreed but believed
that such a statement existed somewhere.
Fleming affirmed that he brought up the matter of
Gardner's reentry into the plant on the morning of the
24th Asked whether Gardner and Hobbs argued with
him on the subject, Fleming was unresponsive He assert-
ed that he could not recall having a conversation (with
Gardner and Hobbs) on this subject Fleming identified
the statement discussed by Hobbs as one that he had
taken The writing on the second page is the same as that
on the first and on Gardner's other statements taken by
Fleming.
(2) Factual analysis
Fleming tacitly corroborates Gardner's and Hobbs'
testimonies that Gardner's reentry into the plant on 23
September was discussed in Fleming's office the next
morning On the issue of whether Gardner and Hobbs
disputed Fleming's assertion that he had ordered Gard-
ner not to do so, Fleming's unresponsive answer and ulti-
mate denial are not believable, and I find that this dis-
pute did take place. I further find that the second page
of Gardner's statement of that day is the document re-
ferred to by Hobbs,78 and that it was written by Flem-
ing Although the document does not specifically negate
Fleming's contention that he ordered Gardner not to re-
enter the plant, it does affirm that Fleming did not order
Gardner about the Union, and had complained to her foreman about
Gardner's asserted failure to supply her with parts Asked whether she
disliked Gardner, Fields answered, surprisingly, "No, I love him " Fields
was an unreliable witness
77 R Exh 95
78 R Exh 95
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gardner to refrain from doing several things, including
talking with other persons Crediting Gardner and
Hobbs, I find that Fleming, on the 23rd, merely told
Gardner to go home and return the next morning, but
did not specifically order him not to reenter the plant
Fleming, in essence , argued with the two employees on
24 September that his requirement the previous day that
Pruitt accompany Gardner back into the plant to talk to
Gardner's wife should have been interpreted by Gardner
as an order not to reenter on his own once he had left.
It is clear that Gardner did reenter the plant, and I
credit his testimony that his-object in doing so was to re-
trieve his newspaper 79 I find that he got Birdsong's at-
tention by tapping her on the shoulder, something which
he had done previously, and asked her to withdraw the
sex harassment charge. She replied that he had done it
and this ended the conversation I do not credit Bird-
song's contradictory testimony about Gardner' s "gazing"
or "staring" at her thereafter.
d. Respondent's "write-up" and discharge of Gardner
On the morning of Gardner's return to Fleming's
office on 24 September, the personnel manager gave him
a "write-up" because he had sexually harassed a female
employee, had failed or refused to follow a supervisor's
instructions by entering the plant after being ordered to
leave, and had threatened, intimidated, coached or inter-
fered with the supervision of employees.80
Respondent's "Sexual Harassment Policy" is based on
EEOC guidelines and prohibits employees from engaging
in such conduct 81 Fleming testified that he had read the
EEOC guidelines. In later cross-examination he stated
that he gave the EEOC rules a "very cursory reading"
in preparation for trial, and that this was the first time he
had done so Fleming testified that he attended a seminar
on sexual harassment in 1983, but that this was from a
company official, not a Government expert. He did not
consult legal counsel on application of the law to the
Gardner incident and did not know what constitutes a
"hostile environment" within the meaning of the regula-
tions
Fleming testified that it was his understanding from
Willoughby's statement that Gardner had "exposed
[Birdsong's] person" by pulling her blouse above the
"Gardner was cross-examined exhaustively about the name of the
newspaper and the circumstances of his asserted loss of it
80 G C Exh 18
81 Respondent ' s written policy states , in part , as follows
I It is the policy of Maremont Corporation that sexual harassment
of employees in the workplace is unacceptable and will not be toler-
ated The law provides
Harassment on the basis of sex is a violation of Sec 703 of Title
VII Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute
sexual harassment when ( 1) submission to such conduct is made
either explicitly or implicitly a term or condition of an individual's
employment, (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of
substantially interfering with an individual's work performance or
creating an intimidating , hostile , or offensive working environ-
ment
Common sources of charges include offensive or abusive physical
contact , joking , lewd language , suggesting sexual favors , displaying
sexually suggestive objects , pictures , magazines , etc [G C Exh 17]
level of her pants by 4 or 5 inches When Fleming was
shown Willoughby's statement, which does not specifi-
cally allege exposure of skin,82 he testified that it "must
have been someone else that said that skin was exposed"
or that he failed to put it in Willoughby's statement
Birdsong's charge was valid because it had "corrobora-
tion " Fleming was asked whether some of the versions
of the incident corroborated Gardner. His answers were
equivocal First, the witness contended that the state-
ments did not "totally" corroborate Gardner He then re-
fused to acknowledge partial corroboration and argued
that some of the witnesses did not see all of the incident
"I don't think that is corroboration at all," Fleming as-
serted He considered the "losing weight" evidence to be
tied in with Gardner's asserted comment about Bird-
song's "ass "
Fleming was asked whether he attempted to assess the
relationship between Gardner and Birdsong in order to
determine whether she had impliedly consented to what-
ever it was that Gardner did. Fleming replied that he did
assess the relationship and that it was "not hostile "
Asked again whether the information he had obtained in-
dicated that Gardner's action may have been invited or
not unwelcome, Fleming replied that he did not consider
the information to make this assessment because Bird-
song had told him that it was unwelcome.83
Fleming considered Gardner's charge against Birdsong
as an attempt to "strike back" at Birdsong. It had no va-
lidity because Gardner said in his first statement that he
did not know of other instances of sexual harassment
There was no corroboration of Gardner's charges, ac-
cording to Fleming. He did not regard Birdsong's admit-
ted telling Gardner to straighten his legs while laughing
as corroboration of Gardner's assertion that Birdsong
made a sexual comment about Gardner's anatomy when
referring to his bowlegs Nor was Birdsong's admitted
asking about Gardner's "girl friend" in any way corrobo-
rative of Gardner's claim that Birdsong said he must be
thinking about his girlfriend because he was sexually ex-
cited.
Concerning Gardner's reentry into the plant on 23
September, Fleming testified that his investigation
showed that Gardner did so on two occasions the same
day and that this therefore constituted two separate re-
fusals to obey a supervisor's instruction Accordingly,
since Gardner was also guilty of sexual harassment, there
were three separate violations within 2 days warranting
discharge even if Gardner had not received other warn-
ings within 6 months.
Fleming testified that he decided to terminate Gard-
ner, and that Plant Manager Jared concurred Simulta-
neously with issuance of the writeup, Fleming gave
Gardner a separation notice citing three "write-ups"
during a 6-month period, including violation of the Com-
pany's "Sexual Harassment Policy "84
82 R Exh 92(b)
83 Page 4171 of the transcript is amended so as to insert a "Q" between
the "A's" on lines 12 and 13, reading as follows "Q Did you consider
the information to determine whether the behavior was invited or not un-
welcome?"
14 G C Exh 19
MAREMONT CORP
e Respondent 's handling of other charges of sexual
harassment
(1) The Deborah Whittaker complaint
In March 1986, Personnel Supervisor Billy Dale Polly
investigated a complaint which Deborah Whittaker, an
employee in the "Hijacking" department, had made to
her supervisor Polly testified that Whittaker told him
that she had been receiving obscene telephone calls at
night, and that an employee had been making statements
to her in the plant such as "You sure do look good
today, "and" I sure would like to have some of you."
Whittaker identified the employee and said there were
no witnesses
Polly interviewed the employee identified by Whitta-
ker, and he denied the allegation. Polly testified that
other employees worked in the area, but he did not at-
tempt to determine whether anyone had heard this be-
cause Whittaker told him there were no witnesses. Polly
went over the Company's sexual harassment policy with
the employee named by Whittaker, but did not adminis-
ter any discipline He did not take statements from Whit-
taker or the employee but made notes of the incident.85
Polly spent about 45 minutes to an hour on the case and
was the only management official who investigated it.
(2) The Vickie Phillips complaint
Polly investigated a complaint which employee Vickie
Phillips made in June 1986 She told Polly that an em-
ployee had been making suggestive remarks to her for
some time, that she was crying because of it and seeing a
psychiatrist, and that it affected her work. The employee
called her affectionate names despite her telling him to
stop and tried to get her home telephone number. In
Phillips' opinion, these actions by the employee had been
instigated by another employee whom she named The
specific incident which caused Phillips' complaint was
the first employee's pointing to an unusually large shock
absorber and telling her that he had one bigger than that
for her. This upset Phillips and she told Polly that she
wanted to be left alone. Polly spent about 20 minutes
with Phillips and made about a page of notes86 but did
not take a statement from Phillips He next spoke with
the two employees named by Phillips, they denied every-
thing Polly explained the Company's sexual harassment
policy to the first employee but did not administer any
discipline He made brief note of his conversations with
the two employees87 but did not take any statements
Polly then talked to Phillips a second time and told
her that he could not find any "evidence that would con-
stitute sexual harassment "88 Phillips said that she did
not know of any other witnesses, and Polly did not inde-
pendently seek out other persons with possible knowl-
edge of the events He testified that Phillips was a paint
line coordinator and that three other employees worked
on the same shift in the same vicinity. Polly spent a total
33
of about 2 hours on the investigation and was the only
management official who dealt with it
(3) Connie White's complaint
Connie White was an employee of a company that had
a cleaning contract for Respondent's plant Company of-
ficial Frank Dearman testified that White's supervisor,
Connie Wilburn, reported to him that several employees
in the "Automatics" department had been making vulgar
and suggestive remarks to White while she was cleaning.
Dearman reported this matter to Personnel Supervisor
Bill Polly.
Personnel Director Fleming testified that he talked to
the foreman in the Automatics department, Edgar Sum-
ners, and asked whether he had seen anybody talking to
White. Sumners replied that he had Fleming then direct-
ed Sumners "as a precautionary measure" to talk to the
people he had seen-although the Company "hadn't
been told any names," it might be wise for them to stop.
Polly also spoke to Sumners The latter testified that he
had seen three of his employees talk to White and that
this took place every day Sumners told these three em-
ployees about the complaint and said that hey did not
know who had engaged in the alleged conduct. The
foreman told the employees that he was not "accusing"
them of it, but that it would be better for them not to
talk to White. One of the employees later volunteered to
Sumners that he had not said anything out of the way
Sumners did not ask any of the employees what they had
said to White and reported back to Polly only on what
he had said to the employees. Fleming did not take a
statement from White or any of the employees to whom
Sumners had spoken.
Company official Dearman testified that he reported to
White's supervisor, Connie Wilburn, that the Company
needed "names" if the cleaning contractor expected it to
"take action." Wilburn later reported to Dearman that
she and White wished to drop the matter
(4) Lucy Birdsong's additional complaint
Personnel Supervisor Polly testified that Lucy Bird-
song complained to him in February 1987 that an em-
ployee put his hand on the back of her neck and rubbed
it twice Further, Birdsong reported that this employee's
brother, not himself a Maremont employee, was nearby
watching the incident The first employee later grabbed
Birdsong's elbow and said something to her; she pulled
away Polly testified that Birdsong told him this was not
a case of "sexual harassment," but that she was reporting
it because she believed "she was being set up for some
reason." Polly took a statement from Birdsong89 and
Personnel Manager Fleming took one from another em-
ployee corroborating Birdsong 90
Polly talked with the employee accused by Birdsong
and testified that he denied touching her neck during the
first incident Although Polly took a half page of notes
concerning his interview with the employee,91 he did
not take a statement from him
85 R Exh 128
86 R Exh 129(a) 89 G C Exh 28
87 R Exh 129(b), (c) 90 R Exh 130(a)
88 R Exh 129(e) 91 G C Exh 29
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Polly testified that he did not consider the employee's
conduct to be "sexual harassment" because "touching on
the elbow [the second incident] is [not ] of a sexual
nature." The employee was not given any discipline but
was required to sign a copy of the Company's policy on
sexual harassment Asked why the employee was re-
quired to sign this document in light of the Company's
determination that sexual harassment was not involved,
Polly replied that the Company wanted to make sure
that everybody understood the sexual harassment policy
Polly spent 30 to 45 minutes on this complaint from
Birdsong.
(5) Marie Hargrove's complaint
Employee Marie Hargrove called Personnel Supervi-
sor Polly in February 1987 and complained of two inci-
dents involving a supervisor According to Polly, Har-
grove asserted that the supervisor had "punched her in
the armpit next to her breast" while they were in the
"black-light booth " A few days later, the supervisor
"put his arm around her " Polly's written note of this
conversation with Hargrove states that she said the su-
pervisor "punched [her] in the ribs, . . . that his finger
was near her armpit beside her breast," and that she
shoved his finger out of the way 92 Polly's testimony
and his note relate that the night before her conversation
with Polly, Hargrove was late returning to the plant
after her supper break because her car had broken down
in the middle of the road She left it there and caught a
ride back to the plant. Hargrove asked the supervisor for
a partial personal leave to handle the matter but he re-
plied that he did not know whether he could grant one
for that reason
After Polly's telephone conversation with Hargrove,
he wrote a statement which she signed in which she al-
leged that the supervisor "put his finger" in her armpit
and later put his arm around her 93 Hargrove gave Polly
the names of witnesses, and Polly took statements from
them One of the witnesses affirmed that she saw the su-
pervisor "put his arm around Marie Hargrove's shoul-
ders," while another said that he had his hand "on" her
shoulder The other witness did not see anything 94
Polly testified that he interviewed the supervisor and
that the latter denied "punching (Hargrove) in the
armpit," although he did admit putting his hand "on" her
shoulder while telling her not to drink so many Cokes.95
Asked why the supervisor's statement did not deny that
he put his hand on her armpit near her breast, Polly re-
plied that he reported this allegation to the supervisor
and that it should have been in the statement
Polly concluded that there was no sexual harassment
in these incidents. There was no "witness" to the super-
visor's asserted actions in the black light booth, and,
with respect to his later actions, Polly did not believe
that a "touching on the shoulder was of a sexual
92 R Exh 131(a) The note also recites that the supervisor put his arm
around Hargrove a few days later
nature "96 He did not consider the possibility that-the su-
pervisor's refusal to grant leave to Hargrove when her
car broke down may have been related to these inci-
dents.
Accordingly, no discipline was administered to the su-
pervisor, although he was required to sign a copy of the
Company's "Sexual Harassment Policy " Polly spent
about 3 hours on the Hargrove case
(6) Summary
Polly reported the five incidents summarized above to
Personnel Director Fleming but not to Plant Manager
Jared because "no discipline was involved " He testified
that there had to be "touching" and "corroboration" in
order to make a finding of sexual harassment Polly did
not know the source of this requirement; first asserting
that it came "down from corporate headquarters" and
then stating that it was an "interpretation" at the Pulaski
plant. Whatever the source, the policy was not set forth
in writing. On the other hand, Polly also testified that a
corroborating witness would not necessarily be required
"in every case " He first testified that the repetition of
offensive conduct would not give greater weight to a
complaint of sexual harassment and then stated that such
repetition would be required to create a "hostile environ-
ment " Polly did not recall that the words "hostile envi-
ronment" were included in the Company's statement of
policy on sexual harassment and had not read the EEOC
guidelines.
F. The Discharges of Betty Jean Hayes and Margaret
Sanderson
1. Hayes' and Sanderson's employment histories and
union activities
'Betty Jean Hayes had been an employee for about 5
years and did not receive a warning or discipline of any
kind She was in the final assembly department prior to
her discharge on 16 September
Hayes engaged in handbilling in the 1986 union cam-
paign, talked to employees about the Union, obtained sig-
natures on authorization cards, and attended union meet-
ings. She was a union observer at the election Hayes tes-
tified without contradiction that her supervisor, C W
Warren, told her in June 1986 that it was common
knowledge that she favored the Union
Margaret Sanderson had been an employee for about
11 years prior to her discharge on 16 September She
had never received any discipline or warning of any
kind Sanderson testified that she wore a shirt and cap
indicating support for the Union during the 1985 cam-
paign During the 1986 campaign, she attended all the
union meetings, talked to employees about the Union in
the plant, and made about 12 home visits to employees
On cross-examination, Respondent elicited testimony
from Sanderson that she obtained signatures on union
cards during the 1986 campaign but did not distribute
any literature Sanderson was shown her pretrial state-
93 R Exh 131(c)
94 R Exhs 131 (d)-(g) 96 Polly did not discuss the corroboration from one witness that the
95 R Exh 131(b) supervisor put his arm "around" Hargrove
MAREMONT CORP 35
ment which avers that she did not distribute cards or lit-
erature 97 Sanderson testified that she told the Board
agent only that she did not distribute literature and
missed the fact that the agent also put "cards" in the
statement
Margaret Sanderson's daughter, Davidia, testified that
her brother-in-law, Ronnie Tarpley, was a foreman, and
the parties stipulated that Tarpley was a supervisor, at
least in 1985 Davidia testified that during family discus-
sions in 1985 when Tarpley was present, her mother
stated that she supported the Union.
Margaret Sanderson testified that she was riding with
union activists Gary Gardner and Sadie Hobbs in early
May for the purpose of making a house call She associ-
ated socially with Hobbs During the ride, Supervisor
Wade Wallace was in an adjoining lane and looked at
the employees. Sanderson's testimony was corroborated
by Gardner and Hobbs, while Wallace agreed that he
saw them riding together.
2 The hazardous chemical training sessions
Respondent was required by federal and state law to
conduct educational and training programs informing its
employees about the hazards involved in chemicals
which they were handling,98 and in September received
a citation from the Tennessee Department of Labor al-
leging violation of state law 99 The citation gave the
Company approximately one month to conduct the train-
ing Hayes and Sanderson were discharged for asserted
refusal to sign attendance sheets of the training sessions
they attended because, they said, the sheets were blank
and had no legend at the top Legal requirements gov-
erning the nature of such attendance sheets is one of the
issues
The U S. Department of Labor published a memoran-
dum covering procedures for implementing federal law
in which it noted that "[s]ome employers will voluntarily
keep records of training sessions."100 The Office of
Safety and Health Administration (OSHA) conducted
training sessions with outlines affirming that "after at-
tending the class each employee will sign a form stating
that they [sic] received the written materials outlined
above and received the safety training "101 Tennessee
law required Respondent to provide `a hazardous chemi-
cal education and training program for its employees,
and to "keep a record of the dates of training sessions
given to [its] employees "102
Respondent prepared a detailed plan to comply with
its obligations under these laws After specific instruc-
tions, the plan states. "Because this is a result-oriented
standard, it will be difficult for OSHA to determine
whether or not an employer has complied with the train-
ing requirements. Therefore, it would be advisable to
keep records of your training sessions This is not a re-
s' R Exh 6
sa G C Exhs 21, 22
19 G C Exh 23
100 R Exh 35, sec I(9)(d)
tot R Exh 36, p 19
102 "Hazardous Chemical Right to Know Law," sec 50-3-2010, Ten-
nessee Code Annotated, G C Exh 21
quirement, it is merely a suggestion "103 The "Adminis-
trative Requirements" of the plan provide for a "Super-
visor Training Sheet " This document has spaces for
plant location, date of training, the hazardous chemicals
covered, and other data Numerous lines for signatures
of attending employees begin after this data, at about the
middle of the page.104 Supervisor Wade Wallace testi-
fied that the plan was developed by corporate headquar-
ters, that he first saw it in June, and was "required" to
follow its provisions in the chemical training sessions
conducted at Pulaski
3 Differences in the attendance sheets at the
September and October training sessions
Training sessions were conducted in September and
October by Supervisor Wallace Respondent retained a
consultant, Gregory Rose, to assist it in its training re-
sponsibilities Rose was present during training sessions
on 12 September He consulted with Wallace and
brought with him a form for employee signature stating
that the employee had attended a training session on haz-
ardous chemicals on a particular date However, this
form was not used because, Rose stated, the Company
was giving "universal training" in the September ses-
sions, and because it would not be expedient to use the
form for all of the 800 employees attending the sessions
Supervisor Wallace agreed that he and Rose "rejected"
the form in September and contended that the Company
would have had to have "somewhere between 850 to 900
forms " As indicated, however, Respondent's prepared
form in its plan, which Wallace was required to follow,
provided for multiple signatures on the same page after a
description of the training Wallace agreed that in Octo-
ber the Company did not pass out 800-900 forms-
merely enough to get "everybody's name on it"-some
departments took only one form
4 The training sessions on 12 September
Supervisor Wallace held six to eight hazardous chemi-
cal training sessions on 12 September. At the start of
each session, Wallace announced its purpose and passed
around a legal pad of yellow paper There was no head-
ing at the top of the pad Wallace asked the employees
to sign the pad
Hayes and Sanderson attended different training ses-
sions. When the document came to them, they noted that
although there were other signatures on it, there was no
heading at the top of the tablet They did not sign and
passed the tablet along to the next employee Hayes testi-
fied that the Company had never done this before and
that she thought it strange that the Company would ask
employees to sign a blank piece of paper. She noted that,
as the employees left, Supervisor Wallace asked whether
everybody had a chance to sign
Supervisor Wallace testified that, as each meeting con-
cluded, he pulled the sheets out of the tablets, stapled
them together, and wrote the time of the meeting and
the dates However, Supervisor C. W Warren, who had
'03 R Exh 39, p 25
104 Ibid
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about 54 employees under his supervision, testified that
he compared the attendance sheet with computer print-
outs of employees then at work and at that time saw no
heading at the top of the list Supervisor Robert Dunna-
vant testified that he had one of the attendance lists in
his hand on 13 September, the day after the training ses-
sion, and that there was no heading on it at that time.
Foreman Wallace Harris gave similar testimony. I credit
Warren, Dunnavant, and Harris and conclude that the
time and dates were added to the sheets at a later time
Supervisor Wallace testified that about 16 employees
did not sign the lists. Some of these had attended the ses-
sion and the Company attempted to get their signatures
on the sheets. All were obtained except those of Hayes
and Sanderson Some employees were absent and Wal-
lace distributed to them a brochure about hazardous
chemicals when they returned to work. However, he did
not obtain a receipt that they had received these bro-
chures
Regarding to the attendance lists themselves, Wallace
agreed that there was no reason why he could not have
put a heading such as "Attendance List" at the top of
the sheet, but did not do so because there was "no ques-
tion about it" at the meetings, and he assumed that ev-
erybody understood the purpose of the list. Several of
these lists are in evidence and contain at the top merely a
date, an hour, and a shift number.105 Several lists from
the October training sessions are also in evidence. Pursu-
ant to Respondent's published plan, the first half of the
signature pages of these lists contain detailed descriptions
of the training session with the signatures beginning
thereafter 106
Wallace agreed that a list without a heading would not
in itself constitute evidence to OSHA that a training ses-
sion had been held. Even with the dates and time subse-
quently added by Wallace, there is no description of
what took place. Personnel Director Fleming conceded
that the September 12 lists were inaccurate in that they
did not reflect that Hayes and Sanderson actually attend-
ed the training sessions According to Fleming, these lists
have not been turned in to anyone.
5. The events of 13 September
a Margaret Sanderson
(1) Summary of the evidence
Supervisor Wallace Harris testified that at 3 p.m. on 12
September, Personnel Supervisor Polly informed him
that Sanderson had not signed the list Polly instructed
Harris to come and get the list and have it signed by
Sanderson Harris replied to Polly that it was too late
that day Harris and Sanderson had a conversation the
next day,107 at 7 a.m. according to Harris.
Sanderson testified that Harris approached her and
asked whether she "had seen the paper," and Sanderson
replied affirmatively. Harris asked whether she "wanted"
to sign it, and Sanderson replied that she did not know
'05 G C Exhs 5, 6, R Exh 41
108 R Exh 42
107 13 September, a Saturday, was a workday
why she was being asked to sign a blank piece of paper
without a heading Harris shrugged and walked off As
he did so, Sanderson said that she had been told by her
lawyer not to sign anything she did not understand
Harris did not reply. Sanderson had a pending compen-
sation claim against the Company because of a prior
injury. Sanderson initially testified that she did not ob-
serve anything in Harris ' hand during this conversation
but later agreed that he brought "the paper" with him .
According to Harris, he told Sanderson that the list
was a "right-to- know law." She replied that her lawyer
had told her "not to sign any list " Harris directed San-
derson to sign the list and Sanderson repeated her law-
yer's advice Harris testified that he was aware that San-
derson had filed a compensation claim against the Com-
pany and contended that Sanderson said her lawyer had
told her "not to sign anything." He did not ask Sander-
son the reasons her lawyer had given her Harris denied
that Sanderson ever told him that she did not understand
why she was being asked to sign a blank sheet of paper,
or said that she never signed anything without a heading,
or that she never signed anything she did not understand.
The "only reason" Sanderson gave Harris for not signing
the list was her lawyer's advice Harris affirmed that he
had the list in his hand when talking to Sanderson.
Harris was then directed by Personnel Supervisor
Polly to bring Sanderson to the personnel office. He did
so, and a conversation ensued. According to Sanderson,
Polly said, "Margaret, you didn't sign the paper and
we're sending you home until Monday morning We'll
make a decision " Sanderson replied that she did not sign
it because she "did not understand it " Neither Polly nor
Harris replied, and no one asked her to sign the attend-
ance list.
According to Harris, Polly asked, "Why didn't you
sign the list?" Sanderson replied that she "just couldn't
sign it " Polly then said that he was sending her home
pending "further investigation," with instructions to
return Monday morning Harris again denied that San-
derson said that she did not understand the list or that
she did not sign it because it did not have a heading on
it. Polly testified and acknowledged that he was present
in the personnel office when Harris brought Sanderson
there However, Polly denied that Sanderson refused to
sign the list in his presence Instead, he contended, Su-
pervisor Harris reported to him that Sanderson had re-
fused to sign
Harris accompanied Sanderson back to get her person-
al belongings and at that time Sanderson supposedly
asked Harris to help her keep her job but also said that
she was going to leave the Company.
(2) Factual analysis
Harris' account of the first conversation is highly im-
probable. Thus, it is unlikely that Sanderson would have
refrained from giving the Company the reason she did
not sign the list-the absence of a heading or legend Ac-
cording to Harris, Sanderson later asked him for help in
keeping her job, and it would have been against her in-
terest to hide the reason for her failure to sign the list
At that point, Sanderson had no reason to believe the
MAREMONT CORP
Company would have refused to allow her to sign a list
with a heading on it, and it is likely that she would have
disclosed her reasons to Harris Harris' testimony that
Sanderson relied upon "lawyer's advice" as the "only"
reason for failure to sign is unbelievable. I credit Sander-
son's version of the conversation with Harris and note
that it does not relate a specific order for her to sign the
list.
Harris' version of the subsequent conversation in Su-
pervisor Polly's office suffers from the same defect. It is
unlikely that Sanderson would have said that she "just
couldn't" sign the list without giving some reason Ac-
cording to Harris himself, Polly asked her the reason I
credit Sanderson's testimony that she answered Polly by
saying that she did not understand "it," i e , the reason
she had to sign a blank piece of paper without a heading
Further, Sanderson's testimony that Polly told her to go
home without even asking her to sign the list is not ex-
pressly contradicted by Harris and is corroborated by
Polly, who denied that Sanderson refused to sign in his
presence. I credit Sanderson's account of this conversa-
tion, as thus corroborated.
In summary, Sanderson never refused to sign the list.
During the training session on 12 September, Supervisor
Wallace "asked" employees to sign and Sanderson
merely passed the list along when it reached her-she
had no individual conversation with Wallace on that
date Respondent did not consider this to be a "refusal,"
since other employees did the same thing, and the Com-
pany later accepted their signatures without any disci-
pline. And, as indicated, Sanderson did not "refuse" to
sign on 13 September-she was merely asked why she
had not signed, and was then sent home The most that
Respondent could validly say about Sanderson is that she
"failed" to honor Wallace's request on 12 September to
sign the list Personnel Director Fleming testified that
"failure to follow the instructions of a supervisor is not
considered to be as serious as . refusal to follow"
such instruction, that the disciplinary action would be
"less severe" in such circumstances, and that "[a] write-
up would be appropriate in the matter of a failure to
follow" (instructions) Sanderson, however, was later dis-
charged
b Betty Jean Hayes
Second-shift Supervisor C. W Warren testified that he
examined the attendance list and discovered that Hayes'
name was not on it. He reported this to second shift Su-
perintendent Robert Dunnavant and the latter directed
Warren to get Hayes to sign it
On 13 September, Supervisor Warren approached
Hayes at work, and, according to their mutually consist-
ent testimonies, told her that he needed her signature on
the attendance list. Hayes agreed on condition that she
be provided with a copy. Warren replied that he did not
know whether he could do this and the conversation
then ended
Warren transmitted Hayes' request to Superintendent
Dunnavant, who tried to reach individuals in the person-
nel department without success. Dunnavant then called
Plant Manager Jared. According to Dunnavant, Jared
said that the Company could not give Hayes a copy of
37
the list because this would be giving out employees' sig-
natures
According to Warren, he returned to Hayes with a
list, told her that the Company could not give her a
copy and again asked her to sign She replied, "I can't
sign it " Hayes testified that Warren told her there was
no one with authority to give her a copy and directed
her to accompany him to the personnel office where a
conversation took place between Hayes and Dunnavant
in Warren's presence.
The testimonies of Hayes, Dunnavant, and Warren
show that Dunnavant asked Hayes whether she attended
the meeting and that she replied affirmatively Dunna-
vant then asked Hayes to sign the same list that had been
signed by members of the group who attended the same
training session. There was nothing at the top of the list
at this time, and the last page was only partially filled
with signatures Hayes said that she would gladly tell
anybody that she attended the meeting but wanted a
copy of anything that she signed. Dunnavant replied that
the Company would not give her a copy. Hayes said that
she would sign a separate sheet so that the Company
could give her a copy without revealing the names of
other employees. Dunnavant refused this request be-
cause, he said, it would have seemed "strange" to OSHA
if Hayes' name was alone on a separate sheet. However,
Dunnavant agreed that the list as it was at that time,
without any heading, would not have proved anything to
OSHA Asked at the hearing why a legend could not
have been put on a separate sheet signed by Hayes, Dun-
navant replied, "It [was] not mine to identify " Accord-
ing to Dunnavant, identification of the list was Supervi-
sor Wallace's prerogative. There is no evidence that
Wallace was consulted about the matter As indicated
above, Wallace testified that he had no objection to a
legend at the top of the lists but nobody asked him about
it
The discussion between Hayes and Dunnavant went
on for some time He told her that it was just an "attend-
ance sheet," and she replied that "after a person signs a
blank paper, you can put anything you want to on it."
Dunnavant and Warren "just shrugged " Hayes was
again asked to sign the list which was lying on a table in
front of her. She started to sign, but then said that she
could not do so because she wanted a copy Dunnavant
told her to go home and return the following Monday at
her regularly scheduled worktime 108
1080n cross-examination, Hayes agreed that she did not relate in her
pretrial statement that the reason she refused to sign the list was the fact
that she did not receive a copy However, there is no question that she
gave this reason to Dunnavant, since he testified to this effect
Hayes also testified on direct examination that she was afraid to sign
the list because the Company might have put a legend on it relieving the
Company of liability in the event Hayes was injured by dangerous chemi-
cals On cross-examination, Hayes agreed that she did not give this
reason in an unemployment compensation hearing at which she testified
However, the evidence recited above, which I credit, shows that Hayes
was fearful of something being inserted in the blank space, the existence
or specific nature of such fear does not alter the events which took place
or their significance
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The discharges
Sanderson met with Personnel Director Fleming and
Supervisor Harris at about 9 a in the following Monday,
15 September Fleming said that he wanted to hear San-
derson's side of the story and Sanderson testified that she
recited the events as set forth above Fleming replied
that he would investigate the matter Sanderson offered
to sign the list at that time Fleming replied that he did
not "expect" her to say this and instructed her to return
the following morning Sanderson did not see the attend-
ance sheet during the meeting with Fleming
Hayes met with Fleming and Supervisor Robert Dun-
navant later the same day, 15 September, and recited the
events of the prior Saturday Fleming commented that
she should have known the "seriousness" of the matter,
and Hayes replied that she had never previously been
asked to sign a blank piece of paper Hayes offered to
sign the list at that time. Fleming "didn't give much of
an answer," said that Hayes had been "insubordinate,"
and instructed her to return the next day
Fleming testified that he spent 5 or 6 hours on an in-
vestigation to determine whether Wallace's instructions
about signing the list were clear. He took numerous
statements from other employees but none from Hayes
or Sanderson Fleming concluded that Wallace's instruc-
tions about the nature of the list and its signing had been
clearly communicated He decided to terminate Sander-
son and Hayes for insubordination He did not allow
them to sign the list on Monday because "[a]n act of in-
subordination is notsomething that can be righted by of-
fering to correct the problem two days after " Both had
been given "ample opportunity" to sign the list on Satur-
day, and "strict rules" on insubordination are necessary
for plant efficiency
Fleming said that he was aware that the absence of a
heading at the top of the list was at least one of the rea-
sons for the employees' failure to sign However, any
such heading was "unnecessary," because the purpose of
the meeting and the list had been "explained" to the em-
ployees Fleming testified that he was aware of some fear
that the Company might insert a waiver of liability in the
blank space at the top of the list but did not consider this
in making his discharge decision, because the list had
been "explained clearly " Plant Manager Jared was asked
whether the Company's employees "should blindly trust
Maremont not to misuse their signatures on a blank piece
of paper." Jared's answer, "Yes." Fleming discharged
Sanderson and Hayes on 16 September for "refusal to
follow instructions of [a] supervisor." 109
7 Respondent's handling of other instances of
asserted insubordination
Personnel Supervisor Polly testified that there were
only three other discharges for insubordination during
the 3-year period prior to the hearing, and that each one
of them involved an employee's refusal to perform cer-
tain work. In another case an employee was given a
writeup for failure to "pick up her pace "i io Personnel
109 R Exhs 126, 127
110 G C Exh 27
Manager Fleming testified that the Company asks em-
ployees to sign writeups given to them "to acknowledge
the fact that [the Company] went over the writeup with
him and that it will be in his personnel file " However,
am employee's refusal to sign a writeup is not cause for
discipline, according to Fleming
G Legal Analysis and Conclusions
1. The alleged unlawful grants of benefits
a. The $175 monetary grant in August
In general, an employer's legal duty in deciding
whether to grant new benefits while a representation
proceeding is pending is to decide that question as it
would if the union were not on the scene. Granting ben-
efits prior to an election is not in itself grounds for set-
ting an election aside. The issue is whether the grant was
made with the object of influencing the voters' actions in
a forthcoming election
As set forth above, the Company's practice was to
grant hourly wage increases, if any, in January, and pro-
ductivity bonuses in lump-sum form in December. In this
case, the Company granted a lump-sum monetary benefit
to its employees in August for the first time during a
union campaign which it actively opposed. Although the
Company had mentioned to employees the prior Decem-
ber that there was a possibility of another benefit the fol-
lowing August, this was not definite, and the plan was
abandoned by the Company the following spring prior to
the advent of the union campaign After the beginning of
that campaign, the possibility of additional benefits in
August was again suggested to employees by the Compa-
ny but only as a possibility dependent on successful
Company operations. It was not until after the filing of
the representation petition in July that the Company
made the decision to grant an additional monetary bene-
fit in August and to do so in lump-sum form
On these facts, I conclude that Respondent intended to
influence the, results of the election and unlawfully inter-
fered with its employees' statutory rights, in violation of
Section 8(a)(1) of the Act R. Dakin & Co, 284 NLRB
98 (1987).111
b The change in vacation shift schedule
Respondent notes the evidence showing that it previ-
ously polled employees concerning their desires on work
schedules and argues that Board authority i 12 establishes
that the polling of the employees in this case and the
subsequent change of shift schedule was not violative of
the Act
This is not a complete statement of the facts. Although
Respondent did poll employees previously about their
desires, there is no evidence that it previously did so
after the filing of a representation petition Of greater
significance in this case, Respondent changed its position
on the granting of benefits after the filing of such peti-
111 See also Leisure Lodge, 279 NLRB 327 (1986)
112 Respondent cites Williams Litho Service, 260 NLRB 773 (1982), and
Rich Plan of Western Reserve, 271 NLRB 1010 (1984), revd on other
grounds 796 F 2d 864 (6th Cir 1986)
MAREMONT CORP 39
Lion It is, of course , clear that the change was a benefit
because of the overwhelming employee vote in favor of
it As Fleming noted , the shift change was "well re-
ceived" by the employees Respondent 's tilt in favor of
the benefit after initially opposing it did not take place
until after the election petition was filed and until after
Respondent was certain that the employees wanted it It
is clear that Respondent 's action was intended to influ-
ence the results of the election Accordingly, it thereby
violated Section 8(a)(1) of the Act . Radio Broadcasting
Co., 277 NLRB 1112 (1985)
c The alleged shortened overtime on 23 August
Unlike the change in vacation shift schedule, there is
nothing in the evidence to show that Respondent altered
its position on the overtime decision issue subsequent to
the filing of the election petition There had been no
prior decision oil overtime for 23 August prior to the
filing of the Union petition on 15 July-the overtime
question was, still in the future Accordingly, the decision
made on 20 August is indistinguishable from prior Com-
pany decisions made to accommodate employee desires
to attend community events such as the Giles County
Fair I shall therefore recommend that this complaint al-
legation be dismissed
2 Alleged unlawful statements during employee
meetings
ees' union activities is unlawful. Lion Uniform, 259
NLRB 1141, 1143 (1982). I reach the same conclusion
herein with respect to Viars' threatened withholding of
the tool and die consolidation at Pulaski
The Nissan contract and Viars' comments about it
raise another issue Although the tool and die consolida-
tion was clearly within Respondent's control, it was not
within its control whether Nissan would award the
McPherson Strut contract. to Respondent and, in fact,
Nissan did not do so. The General Counsel cites Black &
Decker Corp., 282 NLRB 1166 (1987), in which an em-
ployer's threat to withhold new product lines for a par-
ticular plant in the event of unionization constituted ob-
jectionable conduct However, in that case the capacity
to withhold the new products lay with the plant's own
corporate management, not, as here, with an entirely dif-
ferent business entity This raises the question of whether
Viars' comments about what Nissan might do involved
economic predictions of matters beyond his control and
therefore constituted permissible conduct under the
Gissel criteria set forth above. As noted, the complaint
merely alleges that Respondent threatened employees
with loss of work As I have already found that Re-
spondent did so with respect to the tool and die consoli-
dation, any additional finding of a violation with respect
to the Nissan contract would be cumulative According-
ly, I consider it unnecessary to pass on this issue
a Viars'statements about the possibilities of tool
consolidation and the Nissan contract at Pulaski
The issue is whether, as the complaint alleges, Viars
threatened employees with loss of work in these speech-
es. The Supreme Court has stated as follows
[A]n employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communications do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization [NLRB v.
Gissel Packing Co., 395 U S 575, 618 (1969) ]
An employer's capacity to decrease wages and other
benefits is not "beyond his control," and it is well estab-
lished that an employer's threat to cause such reductions
because of union activity is violative of the Act The tool
and die consolidation, which Viars told employees he
preferred, would have meant plant expansion and more
jobs and would thus have been beneficial to employees.
Viars' statement that he would have to reconsider this
matter in the event of a union victory constituted an im-
plied threat to withhold this benefit if the employees se-
lected the Union. The Board has held that a threat to
cancel plans for plant expansion because of its employ-
b. Respondent 's speeches on the adverse effect of
employee meetings on the productivity bonus
The employees were compelled to attend meetings in
August at which Respondent explained its opposition to
the Union . At these meetings , Company officials Viars
and Mack told employees that their attendance at the
meetings would adversely affect the amount of their pro-
ductivity bonus Since the meetings were the result of
the employees ' union activities , this amounted to telling
the employees that they would be monetarily penalized
because of those activities This was obviously coercive
Viars' statement that he could tell employees how to
make up the loss after the election linked recoupment of
the loss to the employees' votes during the election and
was also coercive
Respondent ' s mathematical defense is entirely fictional.
Faced with testimony that other employee meetings did
not reduce the "productivity index," the Company
argued that these meetings could be "budgeted" in ad-
vance so as to prevent any reduction in the index In the
first place, these are all mathematical constructs which
were entirely Respondent 's creation and which it could
have altered . Further, when Respondent was later com-
pelled to hold unplanned and unbudgeted employee
meetings as a result of its violation of state and Federal
chemical laws, those meetings did not reduce the em-
ployees' bonus Accordingly , I reject Respondent's de-
fense and find that Respondent 's statements to employees
that their attendance at meetings about the union would
adversely affect their productivity bonus, and that Re-
spondent could tell them how to recoup the loss after
the election , violated Section 8 (a)(1) of the Act
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. Viars' speech a few days before the election
As indicated, on 27 August Viars told employees that
he intended to get rid of union adherents engaged in
handbilling on the road and union organizers within the
plant This was coercive under well-established Board
law, and constituted a violation of Section 8(a)(1) of the
Act
3 Individual statements and questions by
supervisors
b Statements and questions of Supervisor Woodrow
Hastings
As described above, about a week before the election,
Supervisor Hastings asked two employees how the
Union "looked," and why they wanted the Union When
they gave reasons, Hastings replied that they would lose
their jobs in 2 weeks if the Union won, and that the
Company would move the plant elsewhere Under estab-
lished precedent, this constituted unlawful interrogation
and the threat of plant closure, violative of Section
8(a)(1)
a. Statements and questions of Supervisor Bud Howell
Supervisor Howell approached employee Lawrence
Johnson and asked whether there was going to be an
election. Johnson's union sympathies were unknown to
Respondent at this time. When Johnson replied that he
did not know, Howell responded that he thought another
employee (believed by Howell to be a union supporter)
had informed Johnson about the election
In Rossmore House, 269 NLRB 1176, 1177-1178 (1984),
the Board overruled prior cases on interrogation "to the
extent they find that an employer's questioning open and
active union supporters about their union sentiments, in
the absence of threats of promises, necessarily interferes
with, restrains, or coerces employees in violation of Sec-
tion 8(a)(1) of the Act " In Sunnyvale Medical Clinic, 277
NLRB 1217 (1985), the Board approved of the judge's
analysis of circumstances surrounding interrogation, even
though the questioned employee was not an open and
active union supporter And, in Cooper Industries, 283
NLRB 323 (1987), the judge relied on the fact that the
employee was not an open union supporter, plus the co-
ercive nature of the questions and the context in which
they were asked The Board affirmed, noting that this
analysis was consistent with the principles enuticiated in
Rossmore House (id, fn. 2)
In this case, in addition to the fact that Johnson's
union sympathies were unknown, Respondent had al-
ready evidenced its hostility to the Union by the acts and
conduct outlined above Accordingly, I find that How-
ell's interrogation of Johnson was coercive and violative
of Section 8(a)(1).
The union sympathies of Roger Shaw were also un-
known to Respondent Although he opened one flap of a
box of "Vote No" caps already partially opened while
Howell's back ,was turned to him, he did not pick one
up. Howell then turned around and asked him whether
he wanted one. In similar circumstances, the Board has
concluded that the act of offering antiunion insignia to
employees and observing their reactions constitutes
"polling" them about their union sentiments Houston
Coca Cola Bottling Co, 256 NLRB 520 (1981) Taking
into consideration the fact the Shaw's union sympathies
were unknown to Respondent, its other unlawful acts
herein and its other unlawful interrogation found herein-
after, I conclude that Howell's offering Shaw a "Vote
No" cap constituted coercive interrogation violative of
Section 8(a)(1).
c Statement of Supervisor Robbie Barnes
Supervisor Barnes' statement to an employee the day
before the election that, if she had her way, she would
fire an employee for protesting to Plant Manager Jared
and would fire "all these other people pushing the
union" was obviously coercive. '
d. Statements and questions of Supervisor Don Story
Like other employees, John Brown had tried to keep
his union sympathies to himself, and it is evident that Re-
spondent was not sure of them. When Brown tried to
evade Supervisor Story's questions about his, union sym-
pathies on the day of the election, Story persisted. The
supervisor's question about how many employees would
be "on the side of the road" after the election suggested
to Brown that Respondent intended to discharge em-
ployees. Brown made the suggestion explicit by saying to
Story that that depended on how many people 'the Com-
pany wanted to fire, and Story's silence reinforced
Brown's interpretation. In light of Brown's unknown
union sympathies, Respondent's other unlawful acts, the
fact that this conversation took place on the day of the
election, Story's silence when Brown interpreted his
question to mean the discharge of employees, and Viars'
threat to get rid of union adherents handbilling on the
road, I conclude that Respondent, by Story's statements,
thereby engaged in unlawful interrogation and a threat
to discharge union adherents
Although Davidia Sanderson was active in favor of
the Union, Respondent's knowledge of this fact has not
been established I conclude that Supervisor Story's per-
sistent attempts to get her to accept a pro-Company T-
shirt constituted an unlawful inquiry into her union sym-
pathies, for the reasons explicated above in connection
with Supervisor Howell and Lawrence Johnson When
Davidia refused, Story's further statement to her that she
was "messing up" and knew it constituted a coercive
threat of unspecified reprisals because of her union sym-
pathies.
e The statement of Supervisor David Wilburn
As set forth above," Wilburn talked to Elizabeth Gard-
ner on 27 August, 2 days before the election. Her hus-
band, Gary Gardner, had received warnings from the
Company at that time. Wilburn told Elizabeth to "do
right" in the election and said that she didn't want to
"come up fired" like her husband. These statements obvi-
ously constituted a coercive threat of discharge in the
MAREMONT CORP 41
event that Elizabeth did not vote for the Company. Al-
though Elizabeth testified that she had not been "threat-
ened," this was a conclusory opinion, and the Board uti-
lizes the objective standard in determining the legality of
such statements As the Board has stated, "the subjective
reactions of employees are irrelevant to the question of
whether there was, in fact, objectionable conduct." Elec-
tra Food Machinery, 279 NLRB 279, fn 8 (1986),, quoting
Emerson Electric Co., 247 NLRB 1365, 1370 (1980).
Respondent refers to the earlier incident in mid-August
when Wilburn offered Elizabeth a "Vote No" button and
argues that this was not unlawful because both individ-
uals were joking 113 This argument is misdirected since
the button incident was not alleged in the complaint
I therefore find that, by threatening an employee with
discharge if she did not vote for the Union in a forth-
coming election, Respondent thereby violated Section
8(a)(1) of the Act
f. The statements and conduct of Supervisor James
Brewer
The credited evidence shows that Supervisor Brewer
approached employee Cliff Brown 2 days before the
election and offered him an "I Care" hat This hat had
initially been disseminated by the Company prior to the
advent of the Union campaign, but utilized the Company
colors of red and white. Brewer and Brown had a friend-
ly relationship Brewer commented that Brown's hat
looked dirty, but the latter refused the offer, saying that
he would just get the new hat dirty. Brewer responded
that he respected Brown's decision and that it would not
affect their relationship. However, Brewer added, "After
this is all over, I'm going to work on you." Brown was
discharged about 2 weeks after the election and Brewer
participated in the discharge decision -
Respondent argues that the offer of the "I Care" hat
did not constitute interrogation because the Company
first disseminated it prior to the advent of the union cam-
paign for a different purpose Although the Company's
general policy had been to require employees to come to
the front office and request an "I Care" hat, during the
campaign supervisors were seen carrying them in the
plant, and Brewer distributed several to other employees
I conclude that Respondent's new policy of distribution
during the union campaign, the timing of the offer to
Brown-2 days before the election-and the fact that the
"I Care" hat had colors similar to the Company's antiun-
ion campaign material, were sufficient to endow the hat
with a new significance, one favoring the Company in
the forthcoming election Accordingly, for the reasons
previously given, I conclude that Brewer's offer of the
hat to Brown constituted impermissible interrogation into
Brown's union sympathies and violated the Act.
Respondent also argues that the friendly relationship
between Brewer and Brown, and the supervisor's refer-
ence to it when he offered the hat to Brown, dilute the
significance of Brewer's statement that he was going to
"work on" Brown when "this," i.e., the election, was
"all over " I do not agree. Brewer's statement was clear-
ly an implied threat and in itself casts light on the
113R Br p 113
"friendship " Whatever the nature of the latter, it did not
keep Brewer from participating in a decision to dis-
charge Brown. I find that Brewer's statement to Brown,
when the latter refused an "I Care" hat, constituted an
implied threat of unspecified reprisals because of
Brown's refusal to accept pro-Company insignia 2 days
before the election, from which refusal Brewer inferred
that Brown favored the Union Accordingly, the state-
ment was unlawful.
g. The statement of Supervisor W. C. Wells
Supervisor 's Wells' statement to an employee directing
him not to talk about the Union with other employees
was patently coercive and a violation of the Act.
4 The alleged discrimination
a. Applicable principles
The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference
that protected conduct was a motivating factor in Re-
spondent's decision to discipline employees Once this is
established, the burden shifts to Respondent to demon-
strate that the discipline would have been administered
even in the absence of the protected conduct 114
b Gary Gardner
Respondent's violations of the Act described above es-
tablish the existence of massive union animus Those vio-
lations included specific threats to discharge union activ-
ists engaged in handbilling on the road and organization-
al work inside the plant Gardner fell into both of these
categories. He had been known by Respondent to favor
the Union in 1985, and became a union activist in 1986.
On 8 May, Gardner was warned by a supervisor to re-
strict his union discussions to nonworking time in non-
working areas During one of Respondent's employee
meetings opposing the Union in mid-August, Gardner
was told that further questions of his would not be an-
swered. I conclude that the General Counsel has estab-
lished a strong prima facie case that the discipline admin-
istered to Gardner was discriminatorily motivated
The evidence submitted by Respondent to rebut the
General Counsel's case instead supports it Thus, Re-
spondent claimed that it issued two warnings to Gardner
which in fact were not given-Gardner's denials and the
absence of any reference in the 6 June warning to warn-
ings on 29 October 1985 or 23 April 1986 establish that
fact, as found above. Although the complaint alleges a
warning "on or about" 23 April, no such warning took
place on 23 April Instead, one took place on 8 May, as
114 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 889 (1st Cir
1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta-
tion Management Corp, 462 U S 393 (1983) The test set forth above ap-
plies regardless of whether the case involves pretextual reasons or dual
motivation Frank Black Mechanical Services, 271 NLRB 1302 fn 2
(1984) "[A] finding of pretext necessarily means that the reasons ad-
vanced by the employer either did not exist or were not in fact relied
upon, thereby leaving intact the inference of wrongful motive established
by the General Counsel " Limestone Apparel Corp, 255 NLRB 722 (1981),
enfd 705 F 2d 799 (6th Cir 1982)
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affirmed by Supervisor Pruitt himself He then told
Gardner to restrict his union discussions to nonworking
times and nonworking areas Taking into consideration
the source of this evidence, I conclude that the com-
plaint allegation of "on or about" 23 April is sufficient to
include the warning which actually took place on 8 May
I further note that Pruitt's order to Gardner, to the
extent that it restricted his union discussions (not distri-
bution of literature) to nonworking areas, is contrary to
Board law 115 The evidence also shows that pro-Compa-
ny employees were simultaneously allowed during work-
ing time to solicit other employees to oppose the Union
Such disparate enforcement of rules is also violative of
the Act 116 Although such violations are not alleged in
the complaint, the evidence is consistent with the com-
plaint allegation that Respondent restricted Gardner's
movement within the plant I so find
Although Gardner technically violated a rule by wait-
ing 3 minutes and 40 seconds before leaving for his work
station after a break on 5 June, this rule also was dispar-
ately enforced It was the first time that Superintendent
Grigsby had taken an employee to the Personnel Office
without knowledge that he had committed a prior infrac-
tion Other employees committed similar infractions
without being warned Maintenance employees were
routinely allowed to go to the restroom prior to the be-
ginning of break periods Respondent attempted to
change this latter practice on the same day that litigation
in this case began with the filing of the first charge (19
September). However, continued infractions of the rule
thereafter did not result in any discipline. The supervi-
sors themselves could not agree on their own rules at the
hearing The fact that the loitering rule was not rigidly
enforced is graphically illustrated by Company Vice
President Viars' statement to employees "Let's face it-
we know you leave five minutes early and come back
five minutes late and we don't say anything about it "
The disparate application of the rule on 6 June against
Gardner clearly establishes its discriminatory motivation
Supervisor Pruitt also told Gardner on 6 June that he
knew "the position he was in" and that he would have to
keep "a straight line and follow the rules " Since it was
Pruitt who had previously told Gardner that he could
discuss the Union only in nonworking areas-which I
have found to be a restriction on Gardner's movement-
Pruitt's statement on 6 June constituted reinforcement of
the prior order
Respondent's discriminatory motivation is even more
apparent in its 20 August warning, since Gardner in fact
was not guilty of the charged offense Nonetheless, Re-
spondent concocted the story that Gardner was in the
cafeteria 10 minutes after starting time, and then solicited
his supervisor, who had not complained, to support the
charge Once again, the evidence shows disparate appli-
cation of the rule Respondent's supervisors admitted
that they had seen other employees in the cafeteria at
similar times without checking on them. When Gardner
115 Our Way, Inc, 268 NLRB 394, 419 (1983)
116 Pdliod of Mississippi, Inc, 275 NLRB 799, 809 (1985), Hudson
Oxygen Therapy Sales Co, 264 NLRB 61 (1982)
protested this fact, Personnel Supervisor Polly told him
that those instances had nothing to do with Gardner
Respondent's "writeup" of Gardner on 24 September
for sexual harassment of Lucy Birdsong and for insubor-
dination was similarly motivated With respect to the
former charge, the facts show that Personnel Manager
Fleming did not treat the conflicting accounts of the in-
cident in an even-handed manner Thus, he discounted
admissions by Birdsong which, fairly appraised, should
have been considered as partial corroboration of Gard-
ner's contentions Fleming asserted that he based his
action partially on a belief that Birdsong's skin had been
exposed, but was unable to point to evidence of such at
the hearing. Fleming considered use of the word "ass" to
be opprobrious despite the fact that similar language was
used in the plant Although Fleming agreed that Gard-
ner's supposed use of the word was tied in with Bird-
song's loss of weight-as asserted by Gardner, corrobo-
rated by Willoughby, and admitted by Birdsong at the
hearing-Fleming apparently believed a comment about
loss of weight to be sexually offensive Fleming admitted
that he did not attempt to determine whether the evi-
dence (other than Birdsong's bald assertions)- tended to
establish that the basic relationship between Gardner and
Birdsong waslikely to make such a remark inoffensive.
Fleming did not know the meaning of the words "hostile
environment" in connection with sexual harassment,
even though they are incorporated into the Company's
written policy.' 17
Finally, the Company's disparate treatment of other in-
stances of alleged sexual harassment establishes beyond
any doubt its discriminatory application of the rule to
Gardner As compared to Gardner, the other instances
involved significantly more offensive conduct, including
explicit invitations to engage in sexual activity and offen-
sive touching The amount of time spent on these investi-
gations was miniscule compared to the Gardner investi-
gation When corroborating evidence was not immediate-
ly available, it was not sought and no statements were
taken When such evidence was available, as in the Har-
grove complaint, it was ignored Personnel Supervisor
Polly, who conducted these asserted investigations, gave
contradictory testimony on Company policy on sexual
harassment, and was unfamiliar with the written rules
governing the subject.
The charge of insubordination was the product of
Fleming's inventive imagination Although he merely
told Gardner to go home on 23 September and return
the next morning, Gardner's reentry into the plant to get
his newspaper gave Fleming the opportunity to claim
that Gardner was insubordinate because he should have
known from the surrounding circumstances that Fleming
117 Sexual harassment is a form of employment discrimination prohibit-
ed by 42 U S C § 2000 et seq ("Title VII"), Simmons v Lyons, 746 F 2d
265, 270 (5th Cir 1984 ) The evidence required to establish sexual harass-
ment is summarized in Jones v Flagship International , 793 F 2d 714 (5th
Cir 1986) In the latter case , the Court of Appeals for the Fifth Circuit
agreed with the lower court's determination that, although the employer
had made several overtures to the plaintiff to engage in sexual activity,
the plaintiff had failed to establish that the conduct complained of was
"sufficiently pervasive to constitute a hostile work environment " (id , 793
F 2d at 721)
MAREMONT CORP
was also ordering him not to reenter the plant On the
basis of this casuistry, Fleming concluded that Gardner
was guilty of insubordination Respondent's prior history
of discipline did not warrant such a finding or the penal-
ty of discharge Only three discharges for insubordina-
tion had occurred in the previous 3 years, and in each
case it involved an employee's refusal to obey a work
order, which infraction Gardner did not commit 118
The further charge that Gardner threatened or intimi-
dated an employee (apparently Birdsong) upon reentry
into the plant is similarly without foundation, as the facts
show Finally, Fleming's essentially legalistic approach
to what the'Company perceived as the Gardner problem
is indicated by his comment that Gardner had reentered
the plant twice, thus making a total of three violations in
2 days and justifying discharge even if Gardner had not
committed other infractions within the preceding 6
months, as required by Respondent's rules The entire
record' shows that Respondent orchestrated its discipline
of Gardner in order to justify discharge of a known
union adherent I therefore conclude that the Company
has not rebutted the General Counsel's prima facie case
and find that Respondent issued warnings to Gordon on
8 May and 6 June and restricted his movement within
the plant, again warned him on 20 August, and dis-
charged him on 24 September-all because of his union
activities and sympathies, in violation of Section 8(a)(3)
and (1) of the Act -
c. The discharges of Betty Jean Hayes and Margaret
Sanderson
The facts outlined above show and I conclude that
both Hayes and Sanderson engaged in union activities
and that Respondent had knowledge of this fact Each
had worked for the Company for several years and nei-
ther had ever been disciplined On the basis of the Com-
pany's prior violations and union animus, and the em-
ployees' excellent work records, I conclude that the
General Counsel has established a strong prima facie
case that Respondent's discharges of these employees
were discriminatorily motivated
The basic facts underlying Respondent's charge of in-
subordination are clear. The legal requirements of record
keeping for chemical training sessions varied somewhat
depending on the agency involved. Respondent conclud-
ed that such record keeping was voluntary but nonethe-
less developed a form for employee signature on an at-
tendance list which disclosed the nature of the session at
which the employee had been present. The Pulaski plant
was required to follow this procedure However, al-
though Supervisor Wallace used this form for the Octo-
ber training sessions, he did not do so in the September
sessions, and the employees at the earlier meetings were
asked to sign a blank piece of paper. Respondent has not
advanced any satisfactory reason for its failure to use the
prepared form in the September meetings. Although the
date and hour of these sessions was placed on the papers,
this was not done until a later time, and even then the
fact that this was a list of employees who had attended a
chemical training session was not stated All witnesses
18 See Han-Dee Pak, Inc, 249 NLRB 725, 733 (1980)
43
agreed that these documents did not constitute proof that
chemical training sessions in fact had been conducted.
The matter was never tested, however, since the docu-
ments were never submitted to any agency
Hayes and Sanderson failed to sign the blank sheets of
paper at the meetings Hayes was asked to sign the next
day, and offered to do so if provided with a copy When
the Company replied that this would disclose names of
other employees, Hayes offered to sign a separate sheet
with a legend at the top so that she could be provided
with a copy without disclosure of other names. This
offer was also declined by the Company One supervisor
said that he could not identify the list with a legend be-
cause, in essence, this was another supervisor's responsi-
bility The other supervisor was not contacted about the
matter
Sanderson, subsequent to her attendance at a training
session on 12 September, was never directly asked to
sign the list Instead she was merely asked whether she
wanted to sign it Sanderson had a pending compensation
claim against the Company and replied that she did not
understand why she was being asked to sign a blank
piece of paper She was then brought to the personnel
office and repeated the fact that she did not understand
the signing requirement Sanderson was then suspended
without being asked to sign
Hayes and Sanderson met with the personnel manager
the following workday, and offered to sign the list Re-
spondent refused this offer, conducted a purported inves-
tigation, and discharged Hayes and Sanderson on 16 Sep-
tember for asserted insubordination With respect to San-
derson, the discharge was contrary to Respondent's own
policy, which provided for less severe discipline in in-
stances where the employee merely failed to follow in-
structions
The Board has considered the case of a union adherent
who was discharged for demanding a copy of a state-
ment the employer's attorney had written after inter-
viewing him (which the employee had not signed) and
for refusing to return the statement without such copy
The Board, taking into account a series of coercive state-
ments made by the employer, considered it "understand-
able" for the employee to demand a copy and held with
judicial approval that his discharge was violative of the
Act. Gerbes Super Markets, 176 NLRB 11, 13 (1969),
enfd 436 F 2d 19 (8th Cir. 1971) In its enforcing decree,
the Court of Appeals for the Eighth Circuit concluded
that it was "reasonable" for the employee to qualify his
cooperation in the interview with a requirement that he
be furnished a copy of the statement recorded by the em-
ployer (id , 436 F 2d at 22).
It was equally reasonable in this case for Hayes to re-
quire a copy as a condition of signing a blank piece of
paper, and for Sanderson, who had a claim against the
Company, to ask for an explanation Plant Manager
Jared's opinion that employees should trust their employ-
er by signing blank sheets of paper on demand is highly
unreasonable. Respondent's unreasonableness is further
manifested by its refusal (1) to accept any of Hayes'
compromise offers, (2) to give Sanderson an explanation,
(3) to put a heading on the list, and (4) to accept the em-
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees' offers to sign on the next working day. Both
employees had spotless working records, and in this in-
stance had not refused to perform any work. 1 19 Sander-
son, in fact, had not really refused to sign the list
Respondent had no interest in any business use for the
attendance lists This is demonstrated by the fact that the
lists had no meaningful heading as late as the hearing in
this case and could not have been used as proof of chem-
ical training sessions. The Company did not even attempt
to document chemical training of all employees since it
did not require receipts for the brochures distributed to
employees who were absent at the chemical training ses-
sions In short, Hayes and Sanderson were asked to per-
form a meaningless act
I conclude that Respondent seized on the opportunity
presented by the chemical training sessions to rid itself of
two known union adherents because of their union ac-
tivities and sympathies, in violation of Section 8(a)(3) and
(1) of the Act
,,CONCLUSIONS OF LAW
1. The Respondent, Maremont Corporation, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2 International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has committed unfair labor practices in
violation of Section 8(a)(1) of the Act by engaging in the
following acts and conduct
(a) Granting its employees an unscheduled bonus and
allowing second shift employees to work the first shift
during a vacation period, in order to discourage member-
ship in the Union and to influence its employees' votes in
a forthcoming Board election.
(b) Interrogating its employees concerning their union
activities or sympathies, both directly and by offering
them wearing apparel favoring Respondent
(c) Telling employees that their pay would be reduced
because of their union activities, and that ways to recoup
the reduction could not be disclosed until after the elec-
tion
(d) Telling employees that plant expansion 'and a con-
sequent increase in jobs might be curtailed because the
employees' union activities.
(e) Ordering an employee not to talk to other employ-
ees about the Union.
(f) Threatening employees with discharge, the dis-
charge of other employees, plant closure, or unspecified
reprisals because of their union activities or sympathies,
or failure to vote for Respondent in a forthcoming elec-
tion
4 By issuing warnings to Gary Gardner on 8 May, 6
June, and 20 August 1986, and by restricting his move-
ment within the plant because of his union activities, and
by discharging Gardner on 24 September 1986, and em-
ployees Betty Jean Hayes and Margaret Sanderson on 16
September 1986, all because of their union activities and
119 Ibid
sympathies, Respondent committed unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act
5 The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act
6. Respondent has not violated the Act except as spec-
ified herein
THE OBJECTIONS TO THE ELECTION
The Petitioner's objections in general allege the same
conduct as that alleged in the complaint Complaint alle-
gations not contained in the objections are those which
assert that Respondent unlawfully shortened overtime on
23 August, changed its schedule so as to permit second
shift employees to work the first shift during the vaca-
tion period, and directed an employee not to talk to
other employees about the Union. With respect to the
latter two allegations, I have found that they occurred
and that they violated the Act Regrading to the short-
ened overtime, I have found that it took place but was
not violative of the Act. During the investigation of the
objections, the Regional Director for Region 26 consid-
ered these objections because they were discovered
during the course of the investigation. 120
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommended that it be or-
dered to cease and desist and to take certain affirmative
action designed to effectuate the purposes of the Act
Having found that Respondent unlawfully discharged
Betty Jean Hayes and Margaret Sanderson on 16 Sep-
tember 1986, and Gary Gardner on 24 September 1986, I
recommended that Respondent be ordered to offer each
of them immediate and full reinstatement to his or her
former position, or, if such position no longer exists, to a
substantially equivalent position, dismissing if necessary
any employee hired to fill said position, and to make
each of them whole for any loss of earnings he or she
may have suffered by reason of Respondent's unlawful
conduct,, by paying each of them a sum of money equal
to the amount he or she would have earned from the
date of his or her unlawful discharge to the date of an
offer of reinstatement, less net earnings during such
period, to be computed on a quarterly basis in the
manner established by the Board in F. W Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).[2[
I shall further recommend that Respondent be ordered
to remove from its records all references to its unlawful
warnings issued to and discharge of Gary Gardner, and
its unlawful discharges of Betty Jean Hayes and Marga-
120 G C Exh 1(1), Burns Security Services, 256 NLRB 959 (1981)
121 in accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January I, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 US C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
MAREMONT CORP 45
ret Sanderson, and notify each of them in writing that
this has been done and that evidence of their unlawful
discipline will not be used as a basis for future personnel
actions against them.
With respect to Petitioner's objections to the election,
it is obvious that the voters in the election were not
given an opportunity to express their choices free of co-
ercive influence from the Employer. Accordingly, I shall
recommend that the objections be sustained, that the
election be set aside, and that a second election be held
I shall further recommend issuance of a broad order in
this case The Board has stated that such an order is war-
ranted if "it can be . . shown that a respondent
concurrently with the discriminatory discharge, engaged
in other severe conduct violative of [the Act] Thus
egregious violators of the Act would be subject to
the traditional Board remedy for conduct which requires
broad injunctive relief " Hickmott Foods, 242 NLRB 1357
(1979). In this case, Respondent through many supervi-
sors committed egregious and widespread violations of
the Act concurrently with its unlawful discharges A
broad order is further warranted in order to ensure that
voters in the second election will not be coerced by un-
lawful conduct different from that which would be pro-
hibited by a narrow order.
The General Counsel's brief includes a recommenda-
tion for a visitatorial clause on the ground that such
clauses should be routinely included in Board orders. In
Cherokee Marine Terminal, 287 NLRB 1080 (1988), the
Board declined to utilize this remedy on a routine basis
Although Respondent's violations have been widespread,
a broad order will be sufficient to protect voters in an-
other election. Accordingly, I shall decline to recom-
mend a visitatorial clause
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi22
ORDER
The Respondent, Maremont Corporation, Pulaski,
Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Granting its employees an unscheduled bonus,
other unscheduled compensation, unscheduled changes in
work schedules, or any other unscheduled benefit, where
the intent thereof is to discourage union membership or
influence the choices of voters in a forthcoming Board
election
(b) Interrogating its employees concerning their union
sympathies or activities, either verbally or by offering
them Company clothing, insignia, or other materials
(c) Telling employees that their pay will be reduced
because of their union activities, and that ways to recoup
the reduction cannot be disclosed until after a Board
election.
(d) Telling employees that plant expansion and a con-
sequent increase in jobs might be curtailed because of the
employees' union activities
(e) Ordering employees not to talk to other employees
about the Union
(f) Threatening employees with discharge, the dis-
charge of other "employees, unspecified reprisals, plant
closure, or other adverse consequences because of their
union activities or sympathies, or failure to vote for Re-
spondent in a forthcoming Board election.
(g) Discouraging membership in International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other labor or-
ganization, by issuing warnings to, discharging, or re-
stricting the movement of, employees because of their
union activity, or by discriminating against them in any
other manner with regard to their hire, tenure of em-
ployment, or terms and conditions of employment
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Gary Gardner, Betty Jean Hayes, and Mar-
garet Sanderson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Pulaski, Tennessee plant copies of the
attached notice marked "Appendix "123 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
122 If no exceptions are filed as provided by Sec 102 46 of the Board' s 123 If this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board "
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that all allegations in the
complaint not found herein to be violative of the Act are
dismissed
IT IS FURTHER ORDERED that the Petitioner 's objec-
tions to the election in Case 26-RC -6869 on 29 August
1986 are sustained , that the election is hereby set aside,
and that a second election by secret ballot shall be held
among the employees in the unit(s ) found appropriate,
whenever the Regional Director deems appropriate The
Regional Director shall direct and supervise the election,
subject to the Board 's Rules and Regulations Eligible to
vote are those employed during the payroll period
ending immediately before the date of the Notice of
Second Election, including employees who did not work
during that period because they were ill, on vacation, or
temporarily laid off. Also eligible are those employees
who have been found herein to have been unlawfully
discharged , and employees engaged in an economic
strike that began less than 12 months before the election
date and who retained their employee status during the
eligibility period and their replacements Those in the
military services may vote if they appear in person at the
polls Ineligible to vote are employees who have quit or
been discharged for cause since the payroll period, strik-
ing employees who have been discharged for cause since
the strike began and who have not been rehired or rein-
stated before the election date, and employees engaged
in an economic strike that began more than 12 months
before the election date and who have been permanently
replaced Those eligible shall vote whether they desire to
be represented for collective bargaining by International
Union, United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them Excelsior Underwear,
156 NLRB 1236 ( 1966), NLRB v. Wyman-Gordon Co,
394 U. S 759 ( 1969) Accordingly , it is directed that an
eligibility list containing the names and addresses of all
the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the the date of
the Notice of Second Election The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances Failure to comply with this requirement shall be
grounds for setting aside the election if proper objections
are filed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT grant employees an unschedule bonus,
other unschedule compensation , unscheduled changes in
work schedules , or any other unscheduled benefit, where
the object is to discourage union membership or influ-
ence the choice of voters in a forthcoming Board elec-
tion
WE WILL NOT interrogate our employees concerning
their union sympathies or activities , either verbally or by
offering them Company clothing, insignia, or other mate-
rials.
WE WILL NOT tell employees that their pay will be re-
duced because of their union activities , and that ways to
recoup the reduction cannot be disclosed until after a
Board election.
WE WILL NOT tell employees that plant expansion and
a consequent increase in jobs might be curtailed because
of their union activities
WE WILL NOT order employees not to talk to other
employees about the Union
WE WILL NOT threaten employees with discharge, the
discharge of other employees , unspecified reprisals, plant
closure, or other adverse consequences , because of their
union activities or sympathies , or failure to vote for the
Company in a Board election
WE WILL NOT discourage membership in International
Union, United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW , or any other
labor organization , by issuing warnings to, discharging,
or restricting the movement of employees because of
their union activity , or by other discrimination against
them. '
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
rights under Section 7 of the Act
WE WILL offer Gary Gardner , Betty Jean Hayes, and
Margaret Sanderson full reinstatement to their former
jobs , without loss of any rights or privileges, and WE
WILL make them whole for any loss of earnings they
may have suffered because of our unlawful discharges of
them, with interest
WE WILL expunge from our records all references to
our unlawful discipline of the above -named employees,
and notify them in writing that this has been done, and
that such discipline will not be used as the basis for
future personnel actions against them.
MAREMONT CORPORATION