Matthews Industries

National Labor Relations Board - Board Decisions

Sep 14, 1993

312 N.L.R.B. 75 (N.L.R.B. 1993)

75
312 NLRB No. 20
MATTHEWS INDUSTRIES
1 On March 16, 1993, Administrative Law Judge Lawrence W.
Cullen issued the attached decision. The Respondent filed exceptions
and a supporting brief. The Respondent does not except to the
judge’s finding that it violated Sec. 8(a)(1) by promulgating and dis-
tributing an overbroad no-solicitation and distribution rule on March
2, 1992.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 All dates are in 1992, unless otherwise stated. 4 The four alleged discriminatees worked in the press department.
Matthews Industries and United Steelworkers of
America, AFL–CIO. Case 10–CA–25956
September 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue here is whether the judge correctly found
that the Respondent discharged four employees in vio-
lation of Section 8(a)(3) of the Act.1 The Board has
considered the decision and the record in light of the
exceptions and brief and has decided to affirm the
judge’s rulings, findings,2 and conclusions, as further
explained below, and to adopt the recommended
Order.
In early 1992,3 the Respondent had a manufacturing
work force of approximately 200 employees, including
alleged discriminatees Robert Owens, Rodney Flynn,
Jeffrey Jones, and Joseph Russell. No union had re-
cently attempted to organize these unrepresented em-
ployees. Former Plant General Manager Maurice
Dutton testified that he had general conversations with
the Respondent’s president, Ralph Matthews, about the
possibility of unionization. According to Dutton, Mat-
thews normally became emotional and made comments
about closing the facility in the event of unionization
because he had no intention of having a union.
Press department employee Owens contacted Union
Agent Clarence Brown in early February 1992. Brown
held preliminary organizational meetings with Owens,
Flynn, and another employee on February 13 and 19.
Pursuant to Brown’s instructions, Owens and Flynn so-
licited employees to sign authorization cards during
breaktimes and before work in the employees’ parking
lot. The employees generally attempted to keep their
union activities secret. However, no-trespassing signs
soon appeared in the parking lot.
Quality Inspector William Gillis has worked with
the Respondent for many years. Former Plant Manager
Dutton testified that Gillis shared ‘‘some confidences’’
with him about other employees. About mid-February,
Owens observed Gillis ‘‘going down row by row look-
ing in cars’’ in the employees’ parking lot. Owens tes-
tified that he had union literature in his truck which
could readily have been seen by Gillis. Also in Feb-
ruary, Owens joined a breaktime conversation between
Gillis and another employee about the Union. In this
conversation, Owens acknowledged starting the organi-
zational campaign. Gillis said he would join the Union
if many other employees did, otherwise ‘‘he wouldn’t
fool with it.’’
On February 28, the Union convened another meet-
ing. Fourteen of the Respondent’s employees attended,
including Owens, Flynn, Russell, and Jones. At the
end of the meeting, only those four employees took
union bumper stickers and displayed them on their
trucks, which they parked in the employees’ parking
lot. (Employee Mark Ralston testified that this lot is
where all employees are ‘‘supposed to park.’’)
In the afternoon of March 4, Tim Matthews, assist-
ant to and son of the president, convened a meeting of
employees in the press, spot weld, and lab weld de-
partments. He announced that those departments were
being consolidated over a 3-month timespan. Matthews
stated that there would be a reduction in work force
of ‘‘one, five, four, or no employees.’’ The criteria for
separation from the work force would be performance
and attitude. At that time, there were 24 employees in
the press department and 4 employees in the 2 other
departments.4
Matthews also introduced Mike Johnson, who had
begun work 2 days earlier as the new press department
supervisor. According to the Respondent’s notes of the
meeting, Johnson encouraged employees to work to-
gether to improve operations and to discuss proposals
for changes with him. He concluded with the observa-
tion that:
I do not come to work for my health. I come be-
cause I get paid and if I can improve that situa-
tion, I will. How many of you would come to
work if you were not paid? Me either. I will say,
if I am on my bike running smoothly and some-
one pokes a stick in my spokes, I am not going
to be a happy person. I have a good attitude about
what we’re doing and I plan to keep my attitude.
Let’s work together.
Early the next morning, Thursday, March 5, Gillis
initiated a conversation with Flynn. Gillis asked if
Flynn had heard anything about a union. When Flynn
feigned ignorance, Gillis claimed ‘‘it’s all over the
plant.’’ Flynn then acknowledged his organizing activ-
ity and asked if Gillis sincerely wanted to join the
Union. Gillis said he would be interested if everybody
else was.
Flynn then told Gillis of his plans to set up an em-
ployee meeting with the Union for the afternoon of
March 6. Gillis said that he could not make the meet-
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The General Counsel does not allege that either Matthews’ sum-
moning of the police or his offer of union card revocation forms was
unlawful.
6 The General Counsel called McMinemon to testify under Rule
611(c) of the Federal Rules of Evidence.
7 E.g., Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046 (1985);
Long Island Airport Limousine, 191 NLRB 94, 95 (1971), enfd. 468
F.2d 292, 295 (2d Cir. 1972).
8 Contrary to the Respondent’s argument in exceptions, the judge
did not rely on this incident to find that Gillis observed bumper
stickers which had not yet been displayed. There is no need even
to find that he observed the union literature in Owens’ truck. The
incident does illustrate, however, that Gillis’ interest in employee ac-
tivities went beyond matters of quality control.
ing. He asked Flynn to identify those who had already
signed union cards. Flynn named only himself, Owens,
Jones, and Russell because they were the only employ-
ees to have proclaimed their union sympathies by dis-
playing the bumper stickers.
Finally, Flynn asked Gillis if he wanted to sign a
union card. Gillis replied that he did not believe he
could join the Union because he was a salaried em-
ployee. The claim of salaried status was false. Gillis
was an hourly paid employee.
In the afternoon, the Respondent’s officials informed
Flynn, Owens, Jones, and Russell that they were termi-
nated immediately. The employees received pay for the
next day (Friday), in addition to severance pay, but
were told not to work that day. Their termination no-
tices were marked not for rehire.
Approximately 1 week later, Flynn and Union Agent
Brown attempted to handbill employees during the
afternoon shift change. Respondent’s president Mat-
thews observed them on the sidewalk adjacent to the
employees’ parking lot and summoned the police.
Within a week, Matthews held meetings with employ-
ees about the organizing campaign. According to the
credited testimony of employee Mark Ralston, Mat-
thews told employees that if a union were selected he
would engage in hard bargaining. Matthews also said
that employees could obtain forms from their super-
visors which would enable employees to get signed
cards back from the Union.5 After one meeting, Qual-
ity Control Inspector Gillis told employee Ralston that
‘‘you could get back your cards, and don’t sign a
union card.’’
Personnel Administrator Brenda McMinemon was
the only current official of the Respondent to testify
about the March 5 termination of the four employees.6
In addition, the record includes, as exhibits, statements
submitted by McMinemon to the Board’s Regional Of-
fice during the precomplaint investigatory phase of this
proceeding. McMinemon said that the departmental
consolidation resulted from a general directive by
President Matthews to increase productivity and to re-
duce waste. From March 3–5, she, Tim Matthews, and
Supervisor Johnson allegedly reviewed the files of all
employees in affected departments, consulted with
other supervisory personnel, and jointly decided to ter-
minate Owens, Flynn, Jones, and Russell for varying
reasons of performance, disciplinary records, attend-
ance, and attitude. McMinemon acknowledged that
some retained employees had worse attendance or dis-
ciplinary records than those who were terminated.
The Respondent did not terminate any more press
department employees until July 3. On that date, it laid
off about 50 employees, including 2 from the press de-
partment, because of the loss of a contract for a major
product line.
The foregoing narrative of facts is based on
uncontroverted and/or credited evidence introduced as
part of the General Counsel’s case-in-chief. The Re-
spondent chose to rest without presenting any evidence
in its defense. In exceptions, it contests the judge’s re-
jection of its motion to dismiss and his finding that the
General Counsel’s case-in-chief presented prima facie
evidence of unlawful antiunion discrimination. In par-
ticular, the Respondent argues that the judge erred in
finding from circumstantial evidence that it had any
knowledge of the four discriminatees’ union activities
when it discharged them on March 5, 1992. We affirm
the judge.
The Board has not hesitated to infer an employer’s
knowledge of employees’ protected activities where
the circumstances reasonably warrant such a finding.7
We find that a reasonable inference to be drawn from
the circumstances in this case is that the Respondent
was aware of the four discriminatees’ support for the
Union when they were discharged, and that the dis-
charges were motivated by that support. We rely on
the following factors:
(1) The discriminatees were the only employees who
overtly supported the Union by displaying bumper
stickers on their vehicles. They parked these vehicles
in the Respondent’s employees’ parking lot, where all
employees were supposed to park. Owens and Flynn
also solicited card signatures in this lot. As dem-
onstrated both by the unprecedented posting of no-tres-
passing signs in mid-February and by President Mat-
thews’ observation of mid-March handbilling, manage-
ment paid close attention to what went on in the area
of the parking lot.
(2) Quality Inspector Gillis’ curiosity about union
activities was extraordinary. Shortly after card solicita-
tions began at the plant, Owens observed Gillis look-
ing into employees’ cars.8 Gillis expressed an interest
in joining the Union, if others did, to both Owens and
Flynn, but less than a month later he encouraged Ral-
ston to revoke or not to sign a union authorization
card. He also falsely claimed that he was a salaried
employee in order to avoid Flynn’s solicitation of a
commitment to the Union. On the same day that
77MATTHEWS INDUSTRIES
9 See NLRB v. Long Island Airport Limousine Service, 468 F.2d
292, 295 (2d Cir. 1972) (relying on evidence that ‘‘reputed Com-
pany informer’’ knew of employee’s union activities). We disavow
any suggestion in the judge’s decision that an employee per se en-
joys ‘‘some specialized status with management’’ because of the
quality control function.
10 The judge actually understated this point by mistakenly stating
that the discharges followed ‘‘within two weeks’’ of the display of
bumper stickers.
11 The matter is open to considerable doubt. Much of the evidence
relating to the consolidation plan is in the Respondent’s
precomplaint position statement to the Regional Office. Personnel
Director McMinemon testified in specific corroboration of only a
few aspects of the factual allegations in this statement. Furthermore,
we note that the only apparent personnel consequence of the depart-
mental consolidation was the discharges of the four discriminatees.
The discharges or layoffs of two additional press department em-
ployees on July 3 resulted from the intervening loss of a customer
contract.
12 Absent any alternative explanation, we find that Johnson’s re-
marks to employees on March 4 about attitude and his metaphor
about poking a stick in bicycle spokes suggest his awareness of
union activity.
13 With respect to the factor of the Respondent’s animus, we reject
the Respondent’s contention that the judge relied on President Mat-
thews’ legitimate predictions of hard bargaining in his mid-March
meetings with employees. In any event, we do not rely on this fac-
tor. We find animus based on Matthews’ solicitation of card revoca-
tions in those meetings as well as his earlier statements to Dutton
about closing the plant to avoid unionization.
Flynn, in conversation with Gillis, specifically named
only the four discriminatees as card signatories, the
Respondent discharged them. Based on this evidence
and former General Manager Dutton’s testimony that
Gillis shared confidences about employees with him,
we find it reasonable to infer that Gillis was one
source for identification of union activists to the Re-
spondent’s management.9
(3) As previously indicated, the discharges occurred
less than a week after the discriminatees’ display of
prounion bumper stickers10 and only hours after Gillis
learned from Flynn about the discriminatees’ support
for the Union and plans for another union meeting the
following day. In view of that timing, we are not per-
suaded that the departmental consolidation plan was
the motivation for the discharges. Even assuming,
arguendo, that the Respondent legitimately con-
templated consolidation prior to union activity con-
centrated in the affected press department,11 there is no
credible evidence explaining why the consolidation
suddenly took place when it did. There is no indication
of a preconceived timetable. Press Department Super-
visor Johnson was in only his first week on the job.12
There was no precipitating economic event. On March
4, Tim Matthews forecast a 3-month implementation
period and could not specify how many press depart-
ment jobs might be eliminated. He gave no indication
whatsoever that management was contemplating immi-
nent discharges, even though Personnel Director
McMinemon identified Matthews as a principal in the
discharge selection process. Less than 24 hours later,
the Respondent hastily discharged the discriminatees
and paid them not to work the following day. In these
circumstances, we do not agree that the consolidation
was the reason for the termination of the employees.
Further, even assuming arguendo that the efficiencies
of consolidation permitted the termination of four em-
ployees, the evidence establishes that the Union adher-
ents involved here were discriminatorily selected as the
four who would be terminated.
Based on the foregoing, we agree with the judge
that the General Counsel presented prima facie proof
of the Respondent’s knowledge of the discriminatees’
union activities. The other elements necessary to estab-
lish that the Respondent violated Section 8(a)(3) by
discharging employees Flynn, Owens, Jones, and Rus-
sell because they engaged in union activities are suffi-
ciently documented in the judge’s decision.13 There-
fore, in accordance with our opinion above and the
judge’s decision, we will adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Matthews Industries, Deca-
tur, Alabama, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
J. Howard Trimble, Esq., for the General Counsel.
Richard I. Lehr, Esq. and R. David Proctor, Esq., of Bir-
mingham, Alabama, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on August 25 and 26, 1992, in De-
catur, Alabama. The hearing was held pursuant to a com-
plaint issued by the Acting Regional Director for Region 10
of the National Labor Relations Board (the Board) on June
2, 1992. The complaint is based on an amended charge filed
by the United Steelworkers of America, AFL–CIO–CLC (the
Union or the Charging Party) on April 28, 1992. The com-
plaint alleges that Matthews Industries (the Respondent or
the Company) violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by issuing an employee handbook on
or about March 2, 1992, containing an unlawful nonsolicita-
tion and distribution rule. The complaint further alleges that
the Respondent violated Section 8(a)(3) and (1) of the Act
by laying off and refusing to reinstate its employees Rodney
Flynn, Robert Owens, William J. Jones, and Joseph A. Rus-
sell on March 5, 1992. The complaint is joined by the an-
swer of the Respondent filed July 13, 1992, where it denies
the commission of any violations of the Act.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified here, and after due
consideration of the briefs filed by the General Counsel and
the Respondent, I make the following
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
the Respondent was, and has been at all times material, an
Alabama corporation, with an office and place of business
located at Decatur, Alabama, where it is engaged in contract
manufacturing, that during the past calendar year, a rep-
resentative period, Respondent sold and shipped from its De-
catur, Alabama facility finished products valued in excess of
$50,000 directly to customers located outside the State of
Alabama and that it is, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
B. The Labor Organization
The complaint alleges, Respondent contends it is without
knowledge, and I find based on the entire record in this pro-
ceeding that the Union is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Nonsolicitation and Distribution Rule
On March 2, 1992, the Respondent published a new em-
ployee handbook which was handed out to each employee at
that time. The handbook contains the following rule restrict-
ing solicitation or distribution of literature:
Solicitation or distribution of literature by anyone, in-
cluding employees and non-employees, for any cause or
purpose is prohibited at all times while on company
property.
It was stipulated by the parties at the hearing that the rule
has never been enforced with respect to union activities or
organizing or union literature. Counsel for the Respondent
acknowledged at the hearing that the above rule ‘‘is probably
over broad’’ and advised that within the past week prior to
the hearing the rule has been revised.
Analysis
Based on the above, I find that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act by its
promulgation and distribution of the above nonsolicitation
and distribution rule which is clearly over broad as it places
restrictions on solicitation and distribution of literature at all
times on the Respondent’s property. Our Way, Inc., 238
NLRB 209, 214 (1978); Essex International, 211 NLRB 749,
750 (1974); Yerger Trucking, 307 NLRB 567 (1992);
Baddour, Inc., 281 NLRB 546, 547 (1986), enfd. mem. 848
F.2d 193 (6th Cir. 1988), cert. denied 109 S.Ct. 370 (1988).
B. The Discharges
On March 5, 1992, the Respondent discharged four of its
employees Rodney Flynn, Robert Wayne Owens, William
Jeffrey Jones, and Joseph A. Russell. The discharges fol-
lowed by less than a month the commencement of an orga-
nizing campaign on behalf of the Union initiated by Owens
and meetings with Union Representative Clarence Brown on
February 13, attended by Flynn, Owens, and Ronnie Kil-
patrick, on February 19, attended by Flynn, Owens, and Ron-
nie Kilpatrick, and on February 28, attended by Flynn,
Owens, Jeffrey Jones, Joseph Russell, and a number of other
employees with a total of about 14 employees at the meeting.
The discharges also followed the placement of bumper stick-
ers on the personal trucks of employees Flynn, Owens,
Jones, and Russell which stickers stated, ‘‘United Steel-
workers is the Union for You.’’ The discharges were within
hours of an interrogation engaged in by longtime employee
and quality inspector William Gillis of employee Flynn con-
cerning who was supporting the Union and in which con-
versation Gillis initially told Flynn he was interested in the
Union and would join if the other employees supported the
Union and at which time Flynn told Gillis he was one of the
supporters of the Union and told him that Owens and Jeff
Jones and Andrew Russell were also supporters for the
Union. At that time in response to Gillis’ inquiry, Flynn told
Gillis he was going to arrange another union meeting for the
following day for second-shift employees and asked Gillis if
he wanted to sign a card whereupon Gillis told Flynn he did
not believe he could join because he was a salaried employee
but assured Flynn that he would not violate his confidence
by divulging what Flynn had told him. I credit the abov-
unrebutted testimony of Flynn. In addition Owens, Jones, and
Russell each testified that that they took a bumper sticker
from Union Business Representative Clarence Brown at the
February 28 meeting and put it on their trucks. They were
the only employees to do so. The trucks were thereafter reg-
ularly parked on the employees’ parking lot. Owens testified
that shortly before his termination, he observed Gillis on the
employees’ parking lot ‘‘going down row by row looking in
cars.’’ On one occasion Owens told Gillis that he was start-
ing up the Union. In addition shortly after the union meet-
ings began, the Respondent posted ‘‘No Trespassing’’ signs
at entrances to the employees’ parking lot.
On March 4, Tim Matthews, assistant to the president and
the son of President Ralph Matthews met with employees in
the press department, and employees of the spot-weld and
lab departments and told them that the departments were
being consolidated and that as a result of efficiencies gained
there would be a layoff of a few employees based on per-
formance and attitude. On the next day March 5, a Thursday,
employees Flynn, Owens, Jones, and Russell were terminated
and their termination notices were marked not for rehire. The
employees were paid for the next day, a Friday, but told they
did not need to work on that date. Personnel Manager Bar-
bara McMinemon who was called to testify by the General
Counsel contended that the employees were terminated based
on attendance records, performance, prior discipline, and atti-
tude in a joint decision by herself, Assistant to the President
Tim Matthews, and new Press Department Supervisor Mike
Johnson after she reviewed the personnel records of all pro-
duction employees. The Respondent put on no evidence but
rather moved to dismiss the complaint on the basis that the
General Counsel had failed to prove that the Respondent had
knowledge of the employees’ union activities thus failing to
prove a prima facie case of a violation of the Act by their
termination by Respondent citing Pioneer Natural Gas Co.
79MATTHEWS INDUSTRIES
v. NLRB, 662 F.2d 408 (5th Cir. 1981); and Delchamps, Inc.
v. NLRB, 588 F.2d 476 (5th Cir. 1979).
The General Counsel relies on Greco & Haines, Inc., 306
NLRB 634 (1992), where the Board stated:
In addition, circumstantial evidence is sufficient to jus-
tify an inference of employer knowledge . . . Thus
under established precedent the judge could infer
knowledge from the following: the timing of the alleg-
edly discriminatory discharges within days of the union
organizing meeting; the abrupt termination of the lead-
ing union instigator and another union supporter . . .
the inplausible and sometimes conflicting nature of the
reasons advanced by the Respondent of its activities
and the union animus . . . .
The General Counsel also relies on Dr. Frederick
Davidowitz, D.D.S., 277 NLRB 1046 (1985), where the
Board affirmed an administrative law judge who
relied on the timing of the discharges and the pretextual
quality of the Respondent’s asserted justification for
them to establish a basis for the inference of knowl-
edge. We agree with the Judge about the significance
of timing and pretextual excuses in this case. We fur-
ther find that several other factors support a finding that
Respondent had knowledge of the activities.
The General Counsel thus contends that the termination of
the leading union adherents Owens and Flynn and the other
employees stopped ‘‘the infant organizing campaign in its
tracks.’’ The General Counsel argues ‘‘it is much more likely
that Respondent’s source of information about the Union and
employees involved was Gillis’’ relying on testimony of
former General Manager Maurice Dutton that he believed
Gillis would have reported any union activities to manage-
ment. The General Counsel also contends that the reasons
put forth by Personnel Manager Barbara McMinemon con-
cerning the procedure for considering the employees for ter-
mination is not credible in view of the announcement by
Matthews on March 4 concerning ‘‘the proposed unification
of the press department with spot weld and lab weld depart-
ments and that the employees were advised that the changes
should be completed in a three month time span.’’ Thus,
‘‘the urgency therefore to terminate these four employees the
next day is incredulous.’’
Analysis
I find that the General Counsel has established a prima
facie case that Owens, Flynn, Jones, and Russell were dis-
charged because of their support of the Union. Initially, I
credit the unrebutted testimony of these employees that they
were the only employees to attach union bumper stickers to
their trucks which they parked on the parking lot. I further
credit Owens’ unrebutted testimony that he observed Gillis
checking each car on the parking lot a few weeks prior to
the discharges and that he had union literature in his truck
which could have readily been observed by Gillis. I further
credit the unrebutted testimony of Flynn concerning the in-
quiry made of him by Gillis concerning the status of the
union campaign and that Flynn identified the four
discriminatees as union supporters and told Gillis that he was
attempting to set up a union meeting with the second shift
for the next day. I also credit the unrebutted testimony of
Owens that Gillis questioned him about the Union and that
he told Gillis he had initiated the union campaign. As the
Board has recognized in its prior decisions such as Greco &
Haines, Inc., supra, direct evidence is often not available to
prove knowledge but knowledge may be inferred on the basis
of indirect evidence. In the instant case the sudden rush to
discharge Owens, Flynn, Jones, and Russell on the same day
and 1 day short of the end of the week for which they were
paid in total coming within 2 weeks of their commencing to
openly display union bumper stickers on their trucks, the in-
quiry of a longtime employee who because of his quality
control function enjoyed some specialized status with man-
agement and the initial interest of Gillis in the Union and im-
mediate rejection of it on the alleged ground that he was a
salaried employee immediately after he learned the identities
of the union organizers from Flynn followed by the discharge
of all four employees is sufficient evidence to support an in-
ference and a finding that Respondent obtained knowledge of
the union campaign and the identity of the union supporters
and establishes knowledge on the part of the Respondent. I
thus find the events and the timing involved leading up to
the discharges demonstrate that Respondent had knowledge
of the union campaign and the identity of the organizers who
it moved quickly to discharge and designate as ineligible for
rehire. These circumstances demonstrate much more that a
mere suspicion of illegal motive. Rather they clearly estab-
lish a prima facie case. Moreover although animus of the Re-
spondent can also be established by indirect circumstantial
evidence in this case as a result of the timing and cir-
cumstances sat out above, the General Counsel produced di-
rect evidence of animus on the part of Respondent through
the testimony of former General Manager Maurice Dutton,
whom I credit that Respondent’s president, Ralph Matthews,
had become upset when unionization had been discussed in
the past and vowed to close the plant rather then to allow
a union to represent the employees.
As the Respondent chose not to proceed after the close of
the General Counsel’s case, the prima facie case stands
unrebutted. I also note the testimony of Barbara McMinemon
concerning the selection process and find that it was not the
sole criteria used to select the employees for termination but
rather that at a minimum the discriminatees were selected for
discharge at least in part because of their support of the
Union. I further find that the Respondent has failed to rebut
the prima facie case established by the General Counsel by
the preponderance of the evidence. In Wright Line, 251
NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
held that once the General Counsel makes a prima facie
showing that the protected conduct was a motivating factor
in the action taken against the employee, the burden then
shifts to the employer to demonstrate that it would have
taken the action even in the absence of the protected con-
duct. It is not sufficient for the employer to merely show that
it also had a legitimate reason for the action but the em-
ployer must also show that the action would have taken place
even in the absence of the protected activity. In the instant
case as the Respondent did not choose to proceed to attempt
to rebut the prima facie case, it has not met this burden. In
this regard I have also considered the testimony of Personnel
Manager Barbara McMinemen who was called by the Gen-
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6624.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
eral Counsel and of the exhibit submitted concerning the al-
leged procedures utilized and reasons for the selection of the
discriminatees for discharge and found it does not meet this
burden. I accordingly find that the Respondent has failed to
show by a preponderance of the evidence that these employ-
ees would have been discharged in the absence of their en-
gagement in protected activities. I find that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by its discharge of
Owens, Flynn, Jones, and Russell. Roure Betrand Dupont,
Inc., 271 NLRB 443 (1984); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
CONCLUSIONS OF LAW
1. Respondent Matthews Industries is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) of the Act by its
promulgation and distribution of an unlawful nonsolicitation
and distribution rule.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by its discharge of its employees Rodney Flynn, Robert
Wayne Owens, William Jeffrey Jones, and Joseph Anthony
Russell.
5. The above unfair labor practices have the effect of bur-
dening commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has violated the Act, it
shall be ordered to cease and desist therefrom, and to take
certain affirmative actions, including the posting of an appro-
priate notice, designed to effectuate the purposes of the Act,
and including the recision of its unlawful nonsolicitation and
distribution rule and its unlawful discharges of its employees
Rodney Flynn, Robert Wayne Owens, William Jeffrey Jones,
and Joseph Anthony Russell. It shall also be ordered to rein-
state these employees to their former positions or, if their
former positions no longer exist, to substantially equivalent
ones and to make them whole for all loss of pay and bene-
fits, including seniority and other rights and privileges sus-
tained by them as a result of Respondent’s unlawful dis-
charges of them. Backpay and benefits shall be with interest
as computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).1 Re-
spondent shall also expunge its records of all references to
the unlawful discharges of these employees and inform them
in writing that this has been done and that such unlawful ac-
tions shall not be used against them in any manner in the
future. Respondent shall also preserve all necessary records
for computing backpay and benefits and make them available
to the Regional Director for Region 10, or his representative.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Matthews Industries, Decatur, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and distributing an unlawful nonsolicita-
tion and distribution rule.
(b) Discharging its employees because of their support of
a union or their engagement in union activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its unlawful nonsolicitation and distribution
rule.
(b) Rescind its unlawful discharges of its employees Rod-
ney Flynn, Robert Wayne Owens, William Jeffrey Jones, and
Joseph A. Russell and offer them full reinstatement to their
former positions or, if their former positions no longer exist,
offer to reinstate them to substantially equivalent positions.
Make them whole for all loss of pay and benefits and other
rights and privileges including seniority sustained by them
with interest as prescribed in the remedy section of the deci-
sion as a result of Respondent’s unlawful discharges of them.
(c) Expunge from its records all references to its unlawful
discharges of Flynn, Owens, Jones, and Russell and inform
them in writing that this has been done and that such unlaw-
ful acts will not be used against them in any manner in the
future.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility, copies of the attached notice marked
‘‘Appendix.’’3 Copies of the notice, on forms provided by
the Regional Director for Region 10, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
81MATTHEWS INDUSTRIES
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promulgate and distribute an unlawful non-
solicitation and distribution rule.
WE WILL NOT discharge our employees because of their
support of a union or their engagement in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind our unlawful nonsolicitation and distribu-
tion rule.
WE WILL rescind our unlawful discharges of our employ-
ees Rodney Flynn, Robert Wayne Owens, William Jeffrey
Jones, and Joseph A. Russell and offer them full reinstate-
ment to their former positions or to substantially equivalent
positions if their former positions no longer exist WE WILL
make them whole for all loss of earnings and benefits and
other rights and privileges sustained by them including se-
niority, because of our unlawful conduct, with interest, as a
result of our unlawful discharges of them.
WE WILL expunge from our records any references to the
unlawful discharges of Rodney Flynn, Robert Wayne Owens,
William Jeffrey Jones, and Joseph A. Russell and will inform
them in writing that this has been done and that the unlawful
conduct will not be used against them in any manner in the
future.
Our employees have the right to join and support United
Steelworkers of America, AFL–CIO–CLC or to refrain from
doing so.
MATTHEWS INDUSTRIES