Maywood, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1980

251 N.L.R.B. 979 (N.L.R.B. 1980)

MAYWO()D. INC. 974
Maywood, Inc. and United Furniture Workers of
America, AFL-CIO. Cases 16-CA-7770, 16-
CA-7944, 16-CA-8060, and 16-RC-7736
July 27, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By MEMBERS JENKINS, P NEL I O. ANI)
TRUESDAIF.
On December 27, 1979, Administrative Law
Judge Almira Abbot Stevenson issued the attached
Decision in this proceeding. Thereafter, Respond-
ent and the General Counsel filed exceptions and
supporting briefs; the Charging Party filed cross-
exceptions, a brief in support thereof, and a brief in
answer to Respondent's exceptions; and Respond-
ent filed answering briefs to the General Counsel's
exceptions and the cross-exceptions of the Charg-
ing Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings,2 find-
'Respondent has requested oral argument. This request is hereby
denied as the record. the exceptions, and the briefs adequately present the
issues and positions of the parties
2 Respondent exceplt, to he Administratisce Las Judge's denials if its
request for pre-trial disacoery and conritends that because of her rulings,
and the failure of the Board', procedures to provide fior such dlsco'.ery.
it was unlahle to adequatels prepare its defenlse It therefore argues that it
had been depried of its right to due process W'e find n merit in Re-
spondent's exceplotins antd contelnionlls 1Discserv is rio a constitutional
right in administrats e proceedings and, therefore. the Board', failure to
provide fr it is tiot a s iilatiotn of due process of law See Medicine BRo
Coal 'ompani. 217 NlRB 911, 932 934 (1975) Addtiorially, we find
that the iomplailla, is ailended. ad the General Counlsel's response to
Responderit', "Motir for a More Definite Statement of the Complaint,"
which the Admiltistratise Lass Judge, In part, granted, adequately ap-
prised Respondentl of the nature of the alleged unfair labor practices
3 The General Counsel, the Charging Party, and Respondent have ex-
cepted to certain credibility findings made by the Administrative Law
Judge It is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect Standard Dry Wall Products. Inc. 91 NLRB 544
(1950), enfd 188 2d 362 (3d Cir 1951) We have carefully examined
the record arid finid nlo basis for reversing her findings
4 In the absence of exceptions thereto,. we adopt, pro farina, the Ad-
ministrative Lasw Judge's recommendations that the Union's Objections I
and 2 be overruled
251 NLRB No. 139
ings,: recommendations, 4 and conclusions 5 of the
Administrative Law Judge and to adopt her rec-
ommended Order, as modified herein. 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent.
Maywood, Inc., Amarillo, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so
modified:
I. Substitute the following for paragraph 9(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
National Labor Relations Act."
In adopting the Administrative Law Judge's recommendatillls that Ob-
jections 3, 4, 5, and 7 be sustained, we agree with her finding that under
Dreser Industries. Inc., 231 NLRB 591 (1978). Respondent's prepetilion
unfair labohr practices may he considered insofar as the} lend meaning
and dimesionll to related postpetition conduct H cer. e do nlot
adopt her further finding that under Dresr Industris Respondenl's un-
lawful prepetition conduct may he considered as salil grounds for setting
aside the election as, in our iew. there are no) circumlanlce here which
warrant a departure from the rule of The Ideal aIlectri nd iranulact-ur
ing Compan. 134 NLRB 1275 (19611
Since we are setting aside the election based on other objections we
find it unnliecessary to pass n the Administrative Law Judge', finding
concerning the uper isory status of Ortez ior the Administ rali e l.a
Judge's recommendation that Objection 6 be sustained
I The Administrative Law Judge concluded, and "ve agree. that Re-
spindent did rnot violate Sec. 8(a)() of the Act b requesting ltha ell-
ployee Boatman furnish a doctor's release in order It) recei e ick leave
pay. In so finding. howeser. we do not rely n the fact that Boatman
was not denied sick leave pay.
We agree with the Administrative Law Judge's cinclusioll that Re-
spondent violated Sec. 8(a)(3) f the Act when it assigned emploee
Blackwell to full-time duty on the chopsaw and presented him from per-
forming leadperson functions because of his union activities and sympa-
thies. Accordingly. and since our remedy would not be materiall' affect-
ed. we find it unnecessars to reach the issue f whether Respondent's
conduct additionally iolated Sec 8(a)(41
o In par. I(c) of her recommended Order. the Administraltsc Law
Judge used the narrow cease-and-desist language. "in an, like r related
manner." We have considered this case in light of the standards set frth
in Hickmotr Fo)ds, Inc.. 242 NLRB 1357 (1979), and have conclued that
a broad remedial order is appropriate Accordingl). we shall nllmlifs the
recommended Order and use the broad injunctice language, "i a1
other manner"
Member Jenkins would award interest on the backpas due in accord-
ance with the formula set forth in his partial dissent In O()lnpi, .Wtdical
Corportion, 250 NLRB 146 (1980).
98( I)tECISI()NS O() NATFIONAL LABOR RLA [FIONS BOARD
2. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NO-rICE To EMPLOYEES
POSTEID BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILl. NOI discharge employees, reduce
authority of leadmen, or impose more onerous
working conditions on employees to discour-
age membership in United Furniture Workers
of America, AFL-CIO, or any other union, or
because employees give testimony in a Nation-
al Labor Relations Board proceeding.
WE' Wll. NOT threaten to discharge employ-
ees or deprive them of benefits because they
advocate the Union; bar prounion employees'
access to the plant after hours except in accord
with a lawful rule; coercively interrogate em-
ployees; engage in surveillance or solicit em-
ployees to engage in surveillance of employ-
ees' union activities; tell employees that other
employees in their department are not for the
Union and do not sign union authorization
cards; or induce employees to revoke their sig-
nature to union authorization cards.
WE WIl.. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Debbie Hand, Shane Hone,
Christine Smart, and Rena Roberts immediate
and full reinstatement to their former jobs or,
if their jobs no longer exist to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed.
WE WILL. make whole the above-named em-
ployees and Florence Pool for any loss of pay
they may have suffered as a result of the dis-
crimination against them, plus interest.
MAYWOOD, INC.
DECISION
STIA I'TM NI OI I HFl CASE
AIMIRA ABBOT ST'IrE NSON, Administrative Law
Judge: A hearing was held in this consolidated proceed-
ing at Amarillo, Texas, January 15-19, 22-26, February
26-28, and March 1, 1979. The charge in Case 16-CA-
7770 was served on the Respondent February 28, 1978;
the charge in Case 16-CA-7944 was served June 12,
1978; the original charge in Case 16 CA-8060 was
served August 21, 1978, and the amended charge in that
case was served October 13, 1978. The Charging Party-
Petitioner (referred to as the Union) filed a petition in
Case 16-RC-7736 on May 9, 1978 and an election was
conducted by the National Labor Relations Board, on
July 26, 1978, in an appropriate unit of production and
maintenance employees. The Union lost by a vote of 243
to 124, with I void and 9 challenged ballots. The Union
filed timely objections to the election. On September 29,
1978, the Regional Director issued a supplemental deci-
sion in which he determined that the objections raised
substantial and material questions of fact, and inasmuch
as the objections were also alleged as unfair labor prac-
tices, he consolidated these cases for hearing. On Octo-
ber 13, 1978, the Regional Director issued an order con-
solidating cases, amended complaint, and notice of hear-
ing. The amended complaint was further amended, and
motions filed by the Respondent for a more definite
statement were granted in part and denied in part. The
Respondent has filed an answer to all allegations.
Upon the entire record, including my observation of
the demeanor of the witnesses and after due considera-
tion of the briefs filed by the General Counsel, the
Union, and the Respondent, I make the following:
FINDIN(;S OF FACT ANI) CONCLUSIONS OF LAW'
I. UNFAIR LABOR PRACTICES
a. Introduction
The Respondent is engaged in the manufacture of
doors, shutters, and moldings. It admits, and I find, that
the following persons were supervisors at material times:
John Maynard-president
Russel Hatcher-vice president of production
Cecil Weatherly-plant superintendent
Hugh Hagan-personnel director and assistant
plant manager
Jerry Baker-personnel manager
Darrell Coleman-foreman
Oscar Ferguson-foreman
Francine Vincent-foreman
Bennie Cuppell-foreman
Danny Allen-night foreman, unit I
Pat Salmon-supervisor
Arthur Purcell-supervisor
Marvin Bass-supervisor
Allen Cuppell-supervisor
Mary Crawford-supervisor
Larry Cross-supervisor
Ron Jackson-supervisor
Dale Mason-supervisor
' No issue is raised as to jurisdiction or labor organizatlon status of the
Union. I fitnd that the Respondent meetls the HBoard's standard for the as-
sertion of jurisdiction, and that the U!nioin is a labor organization within
the meaning of Sec 2(5) of the Act After the hearing closed, the parties
submitted a ,ritern stipulation coicerrng certain testimony of Florene
Pool erroneously omitted from tihe transcript of the hearing and certain
cirreconti o1' the transcript Ihe stipulatlion i hereby apprsoved and re-
ceived in esidnctce as Fxh I
MAYWO)OD. INC. 9 I
The Respondent denies the supervisory status of other
individuals alleged as such in the complaint, and the
issues as to them are resolved below.
The Union engaged in an organizing effort among the
Respondent's employees throughout the summer and fall
of 1977 chiefly directed by Organizer Al May. A petition
for an NLRB election was filed in late November, but
about the second week in December it was withdrawn
for lack of employee support and May left the area.
Except for some continued authorization card solicitation
by a few employees, organizing activity was substantially
suspended until late February, when International Repre-
sentative Charles Campbell arrived and renewed the
Union's campaign. Meetings were held and cards solicit-
ed in March 1978 and following months. An in-plant or-
ganizing committee was formed and on April 24, 1978,
Campbell informed Company President Maynard that
employees Florene Pool, James Palmer, Joyce Edens,
Janie Chambers, Ira Spivy, Donald Oliver, Christine
Smart, Jack Swetnam, Barbara Antel, Lupe Schardein,
Dolores Robertson, Randy Beall, and Thai Long Van
were members. On May 8, 1978, Campbell wrote again
to Maynard, adding Wanda Marshall, Juan Guenero,
Carolyn Vincich, Patricia Morris, and Benny Garcia to
the list of in-plant committee members. On May 25, 1978,
Campbell informed Maynard that Deanna Boatman.
Rena Roberts, and Bill DeHay had joined the committee.
As indicated above, the Union filed a petition for all
election on May 9, 1978. A hearing was held in the rep-
resentation case on June 1, 2, and 13, 1978. Union leaflets
were distributed to employees as they left work from
April or May until July 26. As set forth above, the elec-
tion was held July 26, and the Union lost.
B. iolations of Section 8(a)(1)
I. President John Maynard
The complaint alleges that President Maynard, on or
about June 3, 1978, at the hearing in Case 16-RC-7736,
threatened to terminate union supporters one at a time.
Three individuals testified in support of this allegation:
Rena Roberts, who was employed in the flush door de-
partment from April until July 1978 and was an active
union advocate; Myrtle McKinney, a 14-year employee
and strong union supporter whose terminations are dis-
cussed below; and Ray McKinney, who is Myrtle
McKinney's husband and not employed by the Respond-
ent. All three testified they attended the representation
case hearing and overheard President Maynard say to
Personnel Director Hagan, at counsel table, "I will fire
the union people one at a time," or words to that effect.
Roberts added that Maynard was "laughing like he was
going to enjoy it," but she did not think he was joking
and it worried her because she did not want to be fired.
Maynard and Hagan denied that Maynard made any
such remark. After careful consideration of this as well
as all the testimony of these five witnesses, I credit the
General Counsel's witnesses over those of the Respond-
ent in this instance. Roberts' demeanor for truthfulness
was impressive generally and the McKinneys' mutually
corroborative accounts were strongly supportive. By
contrast, although Maynard's denial was forceful.
Hagan's was less so and his demeanor while testifying on
this issue was noticeably poor, indicating a departure
from the strict truth.
Accordingly, I conclude that President Maynard's
threat to terminate union supporters at the representation
case hearing in June 1978, uttered in the presence and
hearing of an employee, coerced and restrained employ-
ees in violation of Section 8(a)(1) of the Act.
2. Foreman Danny Allen
The complaint alleges that Foreman Allen on or about
May 30, 1978, threatened employees with calling the
police on employee union organizers. The General Coun-
sel's witness was Florene Pool, an employee of the flush
door department for 13 years, one of the most active
union advocates and a member of the union in-plant or-
ganizing committee whose alleged constructive discharge
is discussed below. Pool credibly testified that on Ma
30, 1978, after a union meeting, she and others returincd
to the plant about 9:30 p.m. to solicit night-shift emplo\-
eces they encountered Allen at the entrance to the cafele-
ria and he told them, "If you come in. I will lock the
door behind you and I will call the police,"'' and hlie fol-
lowed Pool out to Second Street repeating this state-
ment. Allen did not testify.
In Tri-Count, .Mtdlcal Center. Inc., 222 NI.RIB 1(08)
(1976), the Board affirmed that off-duty emplocecs
cannot be barred from plant premises for the purpose of
soliciting union support absent a rule, clearly disseminat-
ed to all employees, limiting access solely with respect to
the interior of the plant and other work areas, applicable
to off-duty employees seeking access to the plant for any
reason and not just for purposes of engaging in union ac-
tivities. It is clear that Pool and her colleagues were in
effect seeking access to the cafeteria, a non work area,
for the purpose of soliciting for the Union, and had no
intention of "wandering about the plant" as the Respond-
ent contends. Moreover, there is no merit in the Re-
spondent's reliance on the absence of evidence that Su-
pervisor Allen recognized them as employees in view of
my finding, supported by testimony of management kvit-
nesses, that the identity of all employee union advocates
was known to the Respondent. Further, the Respondent
does not claim, and there is no evidence, that it has pro-
mulgated any rule limiting access to the plant, much less
a rule which meets the standards defined in Tri-County
Medical Center. Inc., .supra. Accordingly, I find that by
barring access by off-duty employee Florene Pool and
others to the plant cafeteria on May 30, 1978, for the
purpose of soliciting night-shift employees to support the
Union, the Respondent violated Section 8(a)(1) of the
Act.
3. Supervisor Arthur Purcell
The complaint alleges that Purcell in November 1977
informed employees they would lose their profit sharing,
incentive pay, and other benefits if the Union came in:
on two occasions, in December 1977 and Januar) 1978.
coercively interrogated employees, and in May 178
threatened to discharge an employee (Patricia Morris)
for union activity.
98)X2 I)ECISIONS O()F NATIONAL LABOR RI.ATIONS HO()ARD
Wayne Wiley was hired in October 1977 and worked
in both prefinished and flush doors before leaving the
Company in March 1978. He signed a union authoriza-
tion card October 24. 1977, and later revoked it. He testi-
fied that, during the prefinish department safety meeting
in November 1977 after the first petition was filed, Pur-
cell brought up the matter and told the assembled em-
ployees, "If we got the Union in all benefits including
profit sharing and incentive would be dropped and we'd
be dropped back to the minimum wage." Purcell claimed
that employees Elda Robinson and Patricia Morris asked
at this safety meeting whether employees would lose all
their benefits if the Union came in, and Purcell respond-
ed, "I don't know, you might and you might not."
Purcell's demeanor was poor while giving his version
of this incident. On the other hand, Wiley seemed to be a
disinterested witness and there is no reason to believe he
fabricated this story. I therefore credit Wiley and con-
clude that, in November 1977, Purcell threatened em-
ployees with loss of benefits if they selected the Union to
represent them, thereby violating Section 8(a)(1) of the
Act.
Patricia Morris was hired in November 1977 and
worked under Purcell's supervision in the prefinish de-
partment. Her discharge is discussed below. Morris' testi-
mony is: The morning of her first day of employment,
employees Florene Pool, Joyce Edens, and Debbie Hand
asked her to sign a union authorization card. She de-
clined, but later that morning she asked Purcell about the
Union, and Purcell responded, "Who was talking to you
about the union?" When she pointed to Pool and Hand,
who were close by, Purcell told her "to stay away from
them." Purcell asked her again, in January, "was those
girls still bothering me," and when she said no, he in-
structed her to let him know if they did. And in March
1978, after she had signed a union card, while "we were
playing around on break," Purcell pulled some union
cards out of her back pocket and asked her "if the girls
were still bothering me," and whether she had signed a
card.
I credit Morris in this respect, over Purcell's denials,
because it seems likely that Purcell interested himself in
whether the union drive had penetrated his department. I
conclude that Purcell coercively interrogated Morris No-
vember 29, 1977, and in January 1978, and thereby vio-
lated Section 8(a)(l) of the Act substantially as alleged in
the complaint. Although not specifically alleged, I also
conclude that Purcell again coercively interrogated
Morris and engaged in surveillance of her union activi-
ties by taking union cards out of her pocket in March
1978, in violation of Section 8(a)(1), as these matters
were fully litigated.2 I do not, however, credit Morris'
additional testimony to the effect that Purcell threatened
to discharge Florene Pool on Morris' first day of work,
and threatened to discharge Morris twice, in May and in
June, as it was improbable and uncorroborated, whereas
Purcell's denials of this testimony were impressively
forceful. I accordingly recommend that the allegations
that Purcell threatened to discharge an employee for
union activity be dismissed.
I2 nrthcrml, Inc., 235 NLRH h93 (1978)
4. Supervisor Allen Cuppell
The complaint alleges that in or about August 1978
Cuppell imposed more onerous conditions of employ-
ment on an employee by requesting, for the first time, a
doctor's release for sick pay.
Deanna Boatman was rehired by the Respondent on
May 5, 1977, and was assigned to veneer stiles where
Francine Vincent was foreman and Allen Cuppell was
supervisor. Boatman signed a union card April 6, 1978,
and became a member of the in-plant committee of
which, as stated above, the Union informed the Respond-
ent in its letter of May 25, 1978. Boatman testified that
upon occasions, before she signed a union card, when
she was sick, she was given sick leave by Supervisor
Cuppell without being asked for a doctor's excuse. After
she signed the card, she continued, when she asked Cup-
pell for sick leave pay to cover a recent illness, he asked
her, for the first time, if she had a doctor's excuse. She
produced the excuse, and he stapled it to a "sick leave
paper" and sent both to the office.
Boatman appeared to be an honest person who revered
the truth, and I credit her generally. However. I do not
find a violation here. The Employee handbook, with
which Boatman was familiar, provides for sick leave pay
after I year's service, and states that "sick leave must be
supported by a doctor's statement that attests to the fact
that your [sic] were physically unable to work." Person-
nel Director Hagan testified, and the record shows, that
management leaves it to the discretion of individual su-
pervisors whether or not to authorize sick leave pay.
Cuppell testified that he usually requires a doctor's slip
only when he thinks an employee is faking, which he did
not suspect Boatman of doing. However, on this one oc-
casion, he further testified, he did ask Boatman for an
excuse because Foreman Vincent told him Boatman had
discussed this illness with her and she wanted him to ask
for the excuse. As the matter was discretionary with su-
pervision, as Cuppell's testimony about the reason for re-
quiring the excuse was not disputed, as knowledge of
Boatman's card signing was not shown and the matter
was otherwise not related to union activity, and as Boat-
man was not denied sick leave pay, I conclude that this
allegation is not supported by a preponderance of the
evidence, and recommend that it be dismissed.
5. Supervisor Mary Crawford
The complaint alleges that in May 1978 Supervisor
Crawford threatened to find an excuse to terminate an
employee and requested another employee to observe
and report to supervision the union activities of other
employees.
Crawford was supervisor of the doors and shutters de-
partment under Foreman Oscar Ferguson. Carol Moore
was employed in department from August 2, 1976, until
she left voluntarily May 26, 1978. She declined Randy
Beall's request to sign a union card. She testified that, in
early May 1978, Crawford told her, "we needed to keep
an eye on Randy Beall and see if he passed out any
Union cards, and . . . I needed to sit with the other girls
who work in our department during lunch break and
noon hour . . . and report to her if he passed out any
MAYWO'(OD, INC 983
Union cards." Moore continued that, a week or so later,
Supervisor Crawford informed her that "Oscar Ferguson
told her that morning that if Randy kept pressing the
Union that they would have to find some reason to make
him quit or fire him."
I credit Moore over Crawford's denials. Moore was a
disinterested witness whose demeanor for dependability
was more impressive than that of Crawford who ac-
knowledged Beall was the only employee in her depart-
ment she knew to be prounion. I conclude that the Re-
spondent violated Section 8(a)( ) in May by soliciting an
employee to observe and report on the union activities of
another employee and by threatening to find an excuse
to terminate an employee for engaging in union activity.
6. Foreman Darrell Coleman
The complaint alleges that Coleman coercively inter-
rogated employees in April 1978. Rena Roberts testified
that during her first day at work in April 1978 Coleman
told her the Union was trying to come in and "two
women" would try to sign her up, but a majority of the
people did not want it, and he wished she would not
sign. After employees Florene Pool and Joyce Edens
sought her signature during lunch break, Coleman asked
whether they had requested her to sign and whether she
was going to sign for the Union; she told him she did not
know as she wanted to check with her husband.
I credit this testimony over Coleman's denial inasmuch
as I have found Roberts to be generally credible. Cole-
man, on the other hand, was inconsistent at times and
conveyed the impression of dissembling on much of his
testimony. I conclude that in April 1978 the Respondent
coercively interrogated an employee about her union ac-
tivities and the union activities of other employees, in
violation of Section 8(a)(l).4
7. Supervisor Pat Salmon
The complaint alleges that Salmon interrogated an em-
ployee on or about December 19, 1977, and January 23,
1978; in April 1978 he informed an employee that per-
sons in his department did not sign union cards; interro-
gated and threatened an employee's job on or about June
21, 1978,in that during a safety meeting he told an em-
ployee the Company did not recognize the union in-plant
organizing committee and if the employee was not happy
she could "hit the clock"; on or about December 15,
1977, and continuing to date prohibited employees in the
flush door department from using the restrooms during
working hours without prior permission or a doctor's
certificate while other departments have not been so re-
stricted; and on or about May 24, 1978, imposed onerous
conditions of employment on employees of the flush
door department by restricting smoking to automobiles
with windows rolled up.
a. Interrogation and threats
Myrtle McKinney, an employee of the flush door de-
partment for over 13 years, testified that Salmon, who
Bank of St I. uii s% .L.R.B. 456 F 2d 1234 (8th Cir 1972)
4 Tlhere is no eidence of interrogation by Coleman on or about June
5. 1978, and that allegation swill be dismissed
was her supervisor, after having learned 6 months previ-
ously, upon repeated questioning and threat of discharge,
that she had signed a union authorization card, asked
her, on January 19, 1978, if she "wanted to do anything
about" her union card. When she told him no, he
"wanted to know if there was any others in there that
had signed union cards." McKinney responded she did
not know, and Salmon told her, "Well, I know that
Debbie (Hand] and Florene [Pool] and you have," and
he "wanted to know how many more."
Rena Roberts, referred to above, testified that her first
day on the job, in April 1978, shortly after her foreman,
Darrell Coleman, introduced her to her supervisor,
Salmon, Salmon told her, while showing her where the
timeclock was, "This department is not for the union.
We do not sign cards for the union."
Florene Pool, as stated above, one of the most active
union advocates and a member of the in-plant organizing
committee as the Company was first advised in the
Union's letter of April 28, 1978, testified that at flush
door department safety meeting held on June 21, 1978,
she complained to Salmon about company policies with
respect to employees and Salmon asked her if she was so
unhappy with the Company, why did she not quit,
adding "why don't you just hit the timeclock right
now?"
I credit McKinney whose testimony here is supported
by the probabilities in light of the unlawful interrogation
found above by Salmon's foreman and the testimony of
employee Roberts who has been deemed generally credi-
ble. On the other hand, Salmon's demeanor on a number
of occasions revealed a seeming disregard for the truth.
Also, his denial of McKinney's testimony was weakened
by his admission of having interrogated her on one occa-
sion; and his denial of knowledge of McKinney's proun-
ion stance was wholly undermined by other testimony of
his and of Foreman Coleman's that they knew the flush
door department to be 100 percent prounion except for
Donna Brinkley. I therefore do not credit Salmon's
denial of McKinney's and Robert's testimony. Salmon's
account of the remarks made to Pool at the safety meet-
ing did not differ substantially from hers, and I credit
Pool.
Accordingly, I conclude that the Respondent violated
Section 8(a)(1) of the Act by coercively interrogating
Myrtle McKinney on January 19, 1978, about her union
activities and the union activities of other employees;
telling Rena Roberts in April 1978 that employees in her
department were not for the Union and did not sign
union authorization cards;5 and by suggesting, on June
21, 1978, after Florene Pool complained about company
policies with respect to employees, that Pool quit. 6
I Global Marine Development of California. Inc. 214 NLRB 192 (1974);
.American Beef Packers. Inc.. 196 NLRB 875 (1972): The Cotten Lumber
Company. 185 NLRB 60)2 (1970)
6 It is well established tha a remark such as he one Salmon made to
Pool. as a known leader of the union organiing campaign engaged in
protected concerted activity. clearly conse)s the threat that management
considers such actiSties and continued employmcnt to be essentially in-
compatible. Padre Dodge, 205 NLRHB 252 (19731) Slaughter Company, 172
NlRB 60 (19681 A there appears to be no eidence that Salmon inter-
Continued
NIAYWOOD, INC )1
9X4 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
b. Restrictive rules
(1) Restroom rule
Myrtle McKinney testified that on a day in November
1977, after she visited the restroom twice before 9 a.m.,
Supervisor Salmon told her, among other things, that "if
people around here want to sign cards and things from
now on they will have to ask me to go to the restroom."
Based on similar testimony by McKinney, Joyce Edens,
Debbie Hand, Rachel Turner Laughter, and Supervisor
Salmon, I find that Salmon announced shortly thereafter
that flush door department employees must begin obtain-
ing his permission before visiting the restrooms at times
other than regular breaktimes, and employees who had
problems with the new rule would be required to bring a
doctor's excuse.
Deanna Boatman and Patricia Morris testified that no
such rule was imposed on the veneer stiles and pre finish
department employees. Foreman Vincent testified that
her inspectors were required to have replacements when
visiting the restrooms. Personnel Director Hagan and Su-
pervisor Purcell explained that there is no plant rule re-
garding restroom privileges between breaks, and it is
within each supervisor's authority to impose restrictions
when the privileges are abused; Hagan added that other
supervisors have imposed restroom restrictions on occa-
sion.
Although the evidence fails to show that the flush
door department employees were the only ones whose
restroom privileges were restricted, the imposition of the
restriction on these employees was unlawful if McKin-
ney's testimony about the reason given by Salmon for
the restriction is credited. And notwithstanding the ab-
sence of corroboration, I do credit this testimony by
McKinney over Salmon's denial because the management
witnesses were so unbelievable on the point. Thus, as
found above, Foreman Coleman and Supervisor Salmon
both admittedly knew that all the flush door employees,
except Brinkley, were advocates of the Union; and Salm-
on's denial that the new restrictions were related in any
way to this knowledge was particularly unconvincing.
Moreover, the reasons he gave for imposing them were
inconsistent with each cther and with testimony by other
management witnesses. Thus, although the Respondent
submits that Salmon needed this rule to keep track of his
people because his mobility and vision were impaired by
poor health, Salmon expressed no such need. Salmon
said only that he imposed the restriction in order to get
more production and to make sure the employees did not
spend too much time outside the department. He testi-
fied, variously, that the flush door department employees
had been abusing the restroom privilege; that they had
not abused the privilege and he had not told manage-
ment they had; that there had been instances when em-
ployees were away from their work stations and he
thought it was coming to that point; that no particular
employee had been guilty of abuse; and that he had not
told the employees they had, or had not, abused the res-
rogated an employee on or about December 19, 1977. or orally repri-
manded flush door employees regarding their work on or about June 14.
1978, recommend that these allegations be dismissed.
troom privilege. Nevertheless, Foreman Coleman testi-
fied, on direct examination, that Salmon told him Debbie
Hand had been abusing the restroom privilege, and on
cross-examination, that Salmon said that Hand and Joyce
Edens had been going to the restroom too often between
breaks. Personnel Director Hagan testified Salmon in-
formed him he instituted the restriction because the res-
troom privilege was being abused.
(2) Smoking rule
Because the Respondent manufactures combustible
(wood) products, smoking was permitted only in break-
rooms, the cafeteria, and in cars where, the employee
handbook provides, "The doors must be closed .... "
Much union activity took place in employees' cars on the
parking lots during breaktime.
Based on the credited testimony of Joyce Edens and
Rachel Turner Laughter, both of whom impressed me as
telling the truth throughout, I find that, in late May, Su-
pervisor Salmon announced that employees could no
longer smoke in their cars with the windows down on
pain of immediate termination. As the weather was too
hot for smoking in cars with the windows up, employees
of the flush door department took to going off plant
premises to the Third Street overpass to smoke during
breaktime until Salmon informed Edens that smoking
was not permitted there either.
Here again management witnesses were inconsistent
and unpersuasive. President Maynard and Personnel Di-
rector Hagan testified they directed the supervisors in
the spring of 1977 or 1978 to merely ask employees to
roll their car windows up While smoking to help avert
the danger of fires inasmuch as it was an exceptionally
dry season and several small fires had broken out in the
sawdust bins although they had been extinguished with-
out calling the fire department; the policy was not, how-
ever, uniformly enforced and later in the summer when
the weather turned hot, Hagan revoked the directive.
Supervisor Purcell testified, on the other hand, that the
original rule forbade rolling car windows down because
small fires had broken out, one of which in February
1978 required calling in the fire department; but the rule
was subsequently changed by Hagan who advised super-
visors to so inform employees. Foreman Coleman said
Safety Director Ely originated the rule against windows
being down, before 1978, by inserting notices in pay-
check envelopes. Salmon insisted he never even heard of
a rule requiring windows to be rolled up, but claimed he
understood no smoking was allowed under the Third
Street overpass, of which he advised Edens.
(3) Conclusions
Based on the findings of fact set forth above, I con-
clude these more onerous conditions of employment
were not imposed on the employees of the flush door de-
partnment for the reasons given by the Respondent. In
these circumstances, and in view of management's
knowledge that all but one of the employees in the de-
partment were prounion, the credited testimony that
Salmon related the restroom restriction to the signing of
union authorization cards, the admission that the smok-
MAYWOOD, INC. 985
ing restriction was not evenly enforced, and the other
unfair labor practices found, I conclude that the Re-
spondent in November 1977 prohibited employees of the
flush door department from using the restrooms between
breaks without prior permission or a doctor's certificate,
and in May 1978 prohibited them from smoking in their
cars with the windows rolled down because of the
known union activities of a large majority of employees
in that department, thereby interfering with, coercing,
and restraining them in violation of Section 8(a)(1) and
discriminating against them in violation of Section
8(a)(3). 7
8. Surveillance
The complaint alleges that President Maynard, Person-
nel Director Hagan, Personnel Manager Baker, and Su-
pervisors Purcell, Coleman, Bennie Cuppell, Dale
Mason, and Bob Bougher engaged in surveillance and
creating the impression of surveillance of employee
union activity on various dates from November 15, 1977,
until July 1978.
a. Foreman Darrell Coleman
Joyce Edens testified that on a day in November 1977
she solicited an employee of the stile department, Dan
Brothers, at his work station during the lunch break, to
support the Union; while telling him about the benefits
of unionization, she noticed his glancing over his shoul-
der and when she turned to see what he was looking at,
she discovered Foreman Coleman standing 2 feet behind
her; and that she continued to talk to Brothers, but he
refused to sign the card and she returned to work. Cole-
man claimed not to recall this incident.
Although I credit this testimony by Edens, whom I
have found generally credible, I cannot conclude, with-
out more, that Coleman was spying on Edens or that he
was even aware that she was soliciting for the Union at
the time. Accordingly, I recommend that the surveil-
lance allegation as to Coleman be dismissed. 8
b. Foreman Bennie Cuppell
Joyce Edens testified that on a day in November 1977
during break when she, Florene Pool, and Debbie Hand
were soliciting for the Union on the unit 1 parking lot,
outside of unit 8, they noticed Cuppell, the foreman of
unit H, sitting on a bench outside unit 8 watching them.
They had never seen Cuppell sitting there before, and he
is so hyperactive, it was unusual for him to be sitting,
Edens said. Pool testified to a time during the organizing
campaign when she was sitting on that bench talking
about the Union to a group of employees during break
and Cuppell came out and sat beside her, and the em-
ployees did not listen to her after they saw him sitting
there.
7 As a preponderance of the evidence in my opinion fails to establish
that the Respondent disparately enforced company rules by allowing a
known antiunion employee, Donna Brinkley, to return late from lunch or
otherwise, I recommend that this allegation he dismissed
C National Jewish Hospital and Research Center, 226 NLRB 1241,
1245 (1976).
Both Edens and Pool have been found to be generally
credible witnesses. and I do not doubt them here. How-
ever, inasmuch as Cuppell was not their supervisor, they
would not be expected to be particularly familiar with
his comings and goings and I therefore see no reason to
doubt Cuppell's testimony that he crosses this parking lot
on his way to lunch; that he has sat on the bench during
break sometimes daily and sometimes two or three times
a week from where he has observed employees smoking
in their cars but from where he has observed no union
activity of which he was aware. In these circumstances,
I find that the evidence falls short of establishing that
Cuppell was engaged in surveillance, or that his conduct
created an impression of surveillance, and I recommend
that this allegation be dismissed.9
c. Supervisor Dale Mason
Mason is supervisor of the door lights department in
which Donald Oliver is employed. Oliver signed a union
card in June 1977, attended union meetings, became a
member of the in-plant committee of which the Respond-
ent was informed in the Union's April 24, 1978, letter,
and beginning in April distributed union leaflets to em-
ployees. He testified that on April 25, 1978, the day after
the Union's letter, Mason came to his work area and said
to him, "I hear you have been making house calls."
When it dawned on Oliver what Mason was asking, he
replied he had not made any house calls for his church
in a couple of years. Mason admitted making this remark
to Oliver, whom he considered a friend. He testified he
had heard someone say Oliver was making house calls,
and he wanted to know why; he knew Oliver was active
in the Union and he had an idea that that was what the
house calls were about but he "couldn't prove it." It is
clear from Mason's testimony, and I find, that his remark
to Oliver on April 25, 1978, was designed to obtain in-
formation about Oliver's union activities, and as such
constituted a form of surveillance. or coercive interroga-
tion, which is proscribed by the Act. I conclude that
Mason violated Section 8(a)(1).'o
d. President Maynard, Personnel Director Hagan,
Personnel Manager Jerry Baker. and Supervisors
Purcell and Bob Bougher
Card solicitation was engaged in throughout both cam-
paign periods. Union leaflets were distributed outside the
plant on Second Street from April or May 1978 on. All
witnesses agree that, as the union campaign approached
its climax on July 26, 1978, when the Board election was
held, the activities of the prounion employees intensified.
They stepped up their solicitation of support in the plant
cafeteria and parking lots where employees went to eat
and smoke during breaks and they distributed union leaf-
lets on Second Street as employees and supervisors were
leaving work. The campaign was open and aboveboard:
there was no attempt to conceal; and the identity of em-
I Larand Leisurehve. Inc., 213 NLRB 197, 21)5 (1975). lurrrant. anuJau-
turing Compuaer. 196 NLRB 794 (19721
"' . L.R.B. Muellr Bruss (. 5)9 F: 2d 7(4 (th Cir 19751 ( (C
Murphy C(rmpan. 223 NLRB 604, 611 (11976)
MAYWOOD, INC. ($
986 DECISIONS OF NATIONAL I.ABHOR RELATIONS 1()ARI)
ployees favoring the Union was known to all. It is the
gravamen of these allegations that the Respondent's su-
pervisory hierarchy engaged in early and continued
"regular surveillance" as "one aspect of Respondent's
overall plan to discourage union activities and end union
support."
The evidence on these allegations may be summarized
as follows: Joyce Edens testified that beginning in late
November or early December 1977 Supervisor Arthur
Purcell and other supervisors observed her soliciting
card signatures in the cafeteria. Edens also testified that
in early June Personnel Manager Baker observed her,
from in front of the production office, talking to an em-
ployee about the Union on Second Street while returning
from lunch. Florene Pool testified that Supervisor Pur-
cell watched her on a nearly daily basis while she was
soliciting in a parking lot. James Palmer testified that
quite a few people in management, including Personnel
Manager Baker, watched from their office windows and
the parking lots while employees distributed leaflets on
Second Street during May, June, and July, 1978.
It seems to be well established that where, as here, a
union campaign is conducted openly in areas of an em-
ployer's premises in full view of management, manage-
ment does not violate the Act by observing what is
going on." That rule is clearly applicable to this testi-
mony, and I recommend that the allegations in support
of which it was elicited be dismissed.
Joyce Edens testified that on May 1, 1978, while em-
ployees were passing out union literature on Second
Street, Personnel Director Hagan, Personnel Manager
Baker, and other unnamed supervisors stationed them-
selves with clipboards and appeared to be writing down
names of people who received leaflets. Barbara Antel
testified that on June 1, 1978, Hagan stood on the street
corner while union leaflets were being distributed as long
as leafleting continued-about 15 minutes-with a pen
and clipboard and appeared to be taking names or writ-
ing.
Personnel Director Hagan testified he crossed Second
Street approximately every half hour during the day,
that he and Personnel Manager Baker carried clipboards
or notebooks in the course of his duties including a
number of occasions when they saw union activity on
Second Street. Although Supervisor Bennie Cuppell tes-
tified he occasionally informed Hagan there were a lot of
employees in the street handbilling and Hagan "took
down the information," Hagan testified that all supervi-
sors at one time or another gave him names of employ-
ees who were and were not for the Union but he never
wrote down any names because anybody could just walk
across Second Street and see who was engaging in union
activities.
I accept Hagan's explanation that clipboards were car-
ried in the course of duty and that he recorded no em-
ployee names as reasonable in view of the visibility of
the leafleting effort, and, in these circumstances, the ap-
parent absence of any reason to record the names of
either those who gave out or those who received union
literature over such an extended period of time. There-
'I Chemironic.. Inc.. 236 NLRB 178 (1978).
fore, even if Hagan and Baker stood by with their clip-
boards and wrote on them from time to time, I find that
they were not engaged in surveillance and cannot rea-
sonably be held to have created an impression of surveil-
lance. I conclude that these allegations should be dis-
missed. 12
Florene Pool testified that, during the first part of May
1978, "it looked like all of management" was out on the
parking lot, all had walkie-talkies which she did not
recall they carried before, and they were "swarming all
over the place." Joyce Edens testified that on numerous
occasions in May, June, and July she saw different super-
visors whom she had never seen with walkie-talkies
before throughout the plant and on the parking lots with
walkie-talkies, not going anywhere just walking about
from one end to the other of the parking lots. Personnel
Director Hagan and the expediter and the coordinator of
cut parts and production control, Robert Bougher, both
testified that, in addition to the two-way radios on the
forklift trucks, there are 13 walkie-talkies in use which
are carried by Superintendent Weatherly Hagan inven-
tory controllers production control planners, expediters
and coordinators and the safety director. Hagan and
President Maynard testified to two times in June and
July 1978 when Hagan gave walkie-talkies to several su-
pervisors and instructed them to patrol the parking lots
and report the presence of nonemployees because some
employees had complained of solicitations by nonem-
ployees during the lunch break as a result of which,
however, no reports of unauthorized people were re-
ceived.
Even though the witnesses differed as to the time
these events occurred, I accept management's explana-
tion of the use of walkie-talkies on the plant premises be-
cause it is reasonable, and because Edens and Pool do
not seem to have been in a position to know plant proce-
dure with respect to the use of the gadgets. In these cir-
cumstances, and in the absence of evidence that manage-
ment was influenced by union activity or an intent to
engage in surveillance of union activity in its use of
walkie-talkies, I conclude that the allegation should be
dismissed.
Joyce Edens testified that about the second week in
July, shortly before the Board election, during the lunch
break, Supervisor Bougher stood at the back of the cafe-
teria with a walkie-talkie in his hand and pointed his
finger at each member of a union group having lunch at
one of the tables. However, I accept the explanation of
Bougher that he carries a two-way radio in the course of
his duties as expediter and coordinator of cut parts and
production control, and that he sometimes encounters su-
pervisors in the cafeteria and discusses parts problems
with them, often pointing with his hands and fingers in
the direction of where parts should be obtained or sent.
In these circumstances, and as the evidence does not
show any particular union activity by the union group at
the time, I credit Bougher that he observed no such ac-
tivity in the cafeteria. I conclude that Bougher was not
2 RikeS, .4 Dim on of Idcruted Deparimlen, Srore,, 241 N.RH 24(I
(1979).
MAYWOOD, INC 987
engaged in surveillance, and recommend that this allega-
tion be dismissed.
Edens testified that on May 23, 1978, Supervisor Pur-
cell came out of his unit, walked in front of Edens' car,
stood there a few moments staring at it, and then pro-
ceeded on down the parking lot where he stood staring
back across the lot. The next day, Edens continued, Pur-
cell came out of his department carrying a pad of paper
and a pencil and proceeded from car to car and appeared
to be writing down the license numbers of all blue cars
on the parking lot, and Union Organizer Charles Camp-
bell drove a blue car. Supervisor Purcell testified he ob-
served employees, including Edens and Pool, sitting in
cars and talking together on many occasions during
breaktime, but he denied staring at Edens' car. He also
denied that blue cars had any significance to him al-
though he once noted license numbers of some cars in
order to notify their drivers that they should park be-
tween the space lines. I accept Purcell's explanation of
his note taking because it is reasonable, and I credit him
that he did not, or at least that he did not intend to, stare
at the union advocates. I conclude that Purcell on these
occasions was not engaging in surveillance, and recom-
mend that the allegation be dismissed.
Florene Pool testified that on May I and 22, 1978,
Personnel Manager Baker was on the parking lot with
another unnamed supervisor observing her and Edens so-
liciting employees who were eating lunch in their cars,
although Baker had theretofore stayed in his office
during lunch break to take care of business brought to
him by employees. In view of the absence of any basis
for Pool's asserted knowledge of Baker's working habits,
and in light of the openness with which she, Edens, and
others solicited for the Union on company premises, I
conclude that this testimony is insufficient to establish
that Baker or anyone else was engaged in surveillance at
the times designated, and I recommend dismissal of the
allegation to that effect.
Although I am aware of testimony by Florene Pool
and others to the effect that they felt the union activists
were under constant surveillance, in my opinion the evi-
dence, considered separately or all together, does not
support the General Counsel's contention that manage-
ment subjected the employees to continued regular sur-
veillance as one aspect of its overall plan to discourage
activities and end union support. 3
C. Violations of Section 8(a)(3) and (4)
I. Employee Debbie Hand
The complaint alleges in effect that on or about No-
vember 15, 1977, the Respondent discriminatorily as-
signed Hand more onerous duties by increasing her
hours of work on a core table; interfered with her Sec-
tion 7 rights on or about December 5, 1977, in that
1 Florene Pool's testimony abou; alleged impression of surveillance
by Supervisor Larry Cross in June 1978 was vague and uncertain and
would not, even if credited. support the allegation as to him. There is no
substantial credible evidence to support additional allegations of surveil-
lance by Cross and Supervisor Ron Jackson in June 1978, by Supervisor
Darrell Coleman in June 1978, or by Supervisor Dale Mason in July
1978. I therefore conclude that all of these allegations should be dis-
missed
Safety Director Micky Ely informed her that her prob-
lems were the result of her union activities, suggested
she revoke her union authorization card, and arranged
for her to do so, and Personnel Director Hugh Hagan
caused her to revoke her card in that he summoned
Wally Green, an antiunion employee, in order to have
Green provide Hand with revocation forms; and that the
Respondent discriminatorily discharged Hand on January
3, 1978.
Debbie Hand was hired in June 1976 and worked in
the flush door department under Pat Salmon's supervi-
sion. The departmental routine called for four or five of
the employees to work on the four core tables building
cores for about 2 hours in the morning, and then to
move as a group to layup. Only in the following circum-
stances was this routine departed from: Employees re-
mained at the core tables for an additional hour or two if
an extra load of doors was needed; occasionally when
the department was shorthanded employees were rotated
on a core table all day, each for I day only; and new
employees were kept on a core table all day for several
days until they mastered the work. On layup, the next
step in the production process after core building, one
employee inserts cardboard fillers into the cores which
have been built at the core tables, another then pushes
the doors into the glue-spreading machine, and another
catches the doors when they emerge spread with glue.
Skins, or veneer panels, are then placed on both glued
sides and the assembled doors are put into a press. After
the layup operation, the doors are taken from the press
and ripped, or sawed down the middle, and then moved
to the sizer who trims off the edges. Hand performed all
these functions at one time or another except operating
the ripsaw. Hand and most but not all of the other flush
door employees considered work on a core table the
most difficult because it required an employee to work
fast, bending over and reaching across the cores to staple
them at all corners with a staple gun which dangles from
a cord counterbalanced by a weight.
Hand testified that Salmon told her that she was one
of the best (she did not recall ever being told she was the
best) core builders and that she had made 150-percent
overall production. Joyce Edens testified that Salmon
held Hand up as an example to the rest of the employees
because of her 150-percent production on all-round duty.
Hand conceded her attendance was not good, and the
record shows she was absent a total of 246 hours during
the year 1977-52.75 hours the first quarter, 47.50 the
second, 71.25 the third, and 74.50 hours the fourth quar-
ter. She received two personnel memos for absenteeism
dated September 15 and October 13, 1977, the first
threatening termination and both threatening to require a
doctor's excuse.
Hand signed a union authorization card September 23,
1977, and, from October of that year until her termina-
tion, she solicited other employees in the parking lot and
cafeteria, before work and during breaks. Supervisor
Salmon, Foreman Coleman, and Personnel Director
Hagan were all aware that Hand was active on behalf of
the Union.
MAYWOOD, INC.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On a day during the latter part of November 1977,
Salmon directed Hand to remain on a core table full
time. The other department employees continued to
move on to layup after 2 hours on the tables.
Hands' testimony: After a week in her new assignment
she was upset and in pain, and she asked Salmon why
she had to stay on a core table full time as it was "kill-
ing" her back. She said if she had done anything wrong,
he should tell her so she could straighten it out. But
Salmon merely replied, "No, that's all I have for you to
do." Hand spoke to Salmon several times after that about
the pain the assignment caused, a couple of times in
tears. Salmon's response was the same. Her incentive pay
and her attendance dropped. Joyce Edens testified with-
out dispute that she observed that after Hand had been
on a core table full time for 2 or 3 days her production
dropped following the first 2 hours of the day and she
sometimes did not even make 100 percent. According to
Edens, Hand appeared to be angry and upset over the as-
signment at first but as time went on "she lost all anima-
tion .... She didn't talk to us very much. She cried a
lot."
Getting nowhere with Salmon, Hand said she next
took the matter up with Foreman Coleman, asking him if
he knew why she was confined to core table work. Cole-
man replied he did not know why; when Hand explained
that the work was killing her back, Coleman promised to
talk with Salmon. This conversation was repeated sever-
al times with no other result. On one occasion, Hand and
Joyce Edens testified that they observed Salmon and
Coleman watching Hand crying at work and laughing at
her.
Around the second week in December 1977, Hand
called on Safety Director Micky Ely' 4 in an upset and
tearful condition and told Ely it hurt her back to stay on
a core table full time 8 hours a day. He responded, "He
knew that they were giving me the runaround." Hand
"told him I thought I knew why because of my Union
activities and he said, 'You're probably right."' After
some discussion of unionism, Hand "asked him if there
was something that I could do to get management off
14 The General Counsel contends, and the Respondent denies, that Ely
was a management employee. Ely left the Respondent's employ during
the summer of 1978 and moved to Indiana. He did not testify. Evidence
regarding his duties consists of testimony by President Maynard as fol-
lows: Ely was safety director, on salary. His office was in the same unit
as the personnel office. He reported directly to Personnel Director
Hagan. He attended safety and advisory committee meetings; this comit-
tee was made up of employee representatives and management, and met
periodically to discuss safety problems; Ely decided on the problems to
be discussed. He dealt with OSHA, escorting their inspectors around the
plant; he was responsible for seeing that certain production functions
were carried out in a safe manner, evaluated production methods for
safety purposes, and, along with others, made recommendations to his su-
periors regarding ways to perform certain operations more safely. He au-
thorized hospital or emergency room treatment for employees injured on
the job. On April 12, 1978, Ely issued a memo to all employees entitled
"speeding," informing them, among other things, "Any employee ob-
served driving over 20 mph or recklessly will be given a written repri-
mand. If a second offense occurs there will be a two-day suspension and
if the employee is observed a third time, termination will be the result."
This evidence establishes that Ely exercised direct responsibility for
working conditions where safety was affected, and authorized treatment
for employee injuries on the job; and that he exercised authority to disci-
pline and discharge employees for violation of safety rules. I find that he
was a supervisor within the meaning of Sec. 2(11) of the Act
my back to quit hassling me." Ely asked Hand if she
knew Wally Green. Hand said she did not, and asked
Ely "if I sign one of those revocation papers [which
Green was passing out in the cafeteria] would it get man-
agement off my back and he said that it probably would
but it would depend on my actions, whether I ate lunch
with or associated with the same people."t 5 Ely then es-
corted Hand to Personnel Director Hagans's office
where he told Hagan Hand wanted to get in touch with
Wally Green to revoke her authorization card. Hagan
told Hand, "You know, we are not forcing you to sign
this," and she said she was doing it of her own free will.
Hagan then summoned Green from his work by tele-
phone. When Green arrived, the management representa-
tives introduced him to Hand; the two of them went into
an adjoining office, and Hand signed the form revoking
her union authorization card. 6
Hand continued that the next day she sought out
President Maynard in his office, again upset and crying,
and told him that the full-time core table assignment was
hurting her back, and that she had talked to Ely, Hagan,
and Coleman but her assignment had not been changed.
Maynard responded that he did not know what to tell
her. She said she thought it was because of her union ac-
tivities, but Maynard did not respond to that, and Hand
left the office. Hand was not relieved of the full-time
core table assignment.
Hand's account of her termination was as follows: On
the morning of December 30, 1977, about 8:30 there
were no materials available with which to build the
cores, so Salmon took Hand to the hardware department
and, as Hardware Supervisor Bagrich was not in the
plant that day, told leadperson Ed McBride to tell her
what to do. McBride put Hand to work as his depart-
ment was shorthanded. About 11:45 Hand called
McBride to her station and told him she needed to leave
the plant at the 3 p.m. break to attend a wedding.
McBride told her okay. Hand worked until 3 p.m. when
she went for the break with employees Edens and Pool
in Edens' car in the parking lot. When they returned to
work, Hand went home, forgetting to punch out.
Hand's testimony continued that she returned to work
January 3, 1978, at 8 a.m. Her card was not in the rack.
Coleman approached and asked what happened to her on
Friday. She told him she had permission from Ed
McBride to leave early for a wedding. Coleman said she
did not have proper permission, as she should have asked
her own supervisor, Salmon. Hand told Coleman she had
been under the supervision of McBride and that was
why she asked him. Coleman said Salmon had come to
get her and nobody could find her and she had forgotten
to punch out. She admitted she forgot, and he said,
'" Hand's testimony of her interview with Ely is undisputed. There is
evidence that Ely left the Respondent's employ during the summer of
1978 and now resides in Indiana. I cannot accept this, without more, as a
satisfactory explanation of the Respondent's failure to produce him as a
witness, and therefore cannot infer that Ely would have refuted Hand's
account of the interview if he had testified. Cf. Delta Metals Inc., 236
NLRB 1665, 1669 (1978); Martin Lurther King Sr. Nursing Center, 231
NLRB 15, fn. 1 (1977).
'6 Hagan's account of this meeting conformed with Hand's. He added
that Hand was "crying quite heavily" at the time
MAY'WOOD, INC
"Well, we'll just have to terminate you," and Hand left
the plant.
Myrtle McKinney testified that, while she was as-
signed to the hardware department, in late January or
early February 1978, McBride gave her permission to
leave early to visit a doctor I day when Supervisor Ba-
grich was absent.
Supervisor Salmon testified that Hand was a good pro-
duction employee although her attendance was poor. He
assigned Hand to work full time on the core table "Be-
cause she was my best core builder. She could get out
more cores. Someone had to work there all day . . . we
had to build cores all day .... And, I was utilizing my
labor." Hand was not as good on layup, he said, because
she had no patience and hurried those who did not work
as fast as she; also, the other employees had more experi-
ence on layup than Hand. When Hand complained,
Salmon said he told her this, and told her that the core
table "was where I needed her, and that was where I
was going to work her." Hand once told him it was not
fair and, although she did not say so, he thought "she
was tired of reaching over the core table all day long,"
which he considered "just a petty gripe." She cried oc-
casionally, but he did not know why, he said, but he
thought she just felt sorry for herself, although "to her it
was real." She never told him her back hurt. He denied
ever laughing or seeing Coleman laugh at her. Accord-
ing to Salmon, Hand was hired for the core table and she
continued to work on it full time until she was terminat-
ed. In his opinion, no job was harder than any other. He
denied that the assignment was related to union activity.
President Maynard testified that Hand complained to
him she was being unfairly treated, being left on a core
table full time, and it was not fair. Her voice "cracked" a
time or two, but he would not say she was crying. After
promising to check into the matter, Maynard referred it
to Hagan who reported "that we were behind in produc-
tion in the flush-door department, that Debbie Hand was
the best core maker we had. That we needed to leave
her on the core table full time, to get production out."
With regard to the termination of Hand, Salmon testi-
fied he did not make the decision. On her last day, after
he sent her to hardware because core building materials
were not on hand, the materials finally did arrive and, at
that point, he needed Hand. He went to get her shortly
after lunch, before break, but she had left. McBride told
him she said she had Salmon's permission to attend a
wedding. However, Hand had not requested, and had
not obtained, his permission to leave early. So he pulled
her card, discovering she had not punched out. Salmon
took the matter to Coleman and the two of them dis-
cussed it with Hagan.
Ed McBride testified that as leadperson in the hard-
ware department he did not have authority to permit em-
ployees to leave early. When Hand arrived in his depart-
ment on temporary transfer, she told him she was going
to a wedding that afternoon, and "that she was taking off
early, and no time was mentioned" (on cross-examina-
tion, McBride testified Hand told him "she was taking
off at 3.") McBride told her "as long as somebody else
knows," and she replied, "he does." McBride took this to
mean she had told Salmon that morning before she came
up to hardware, because "it's known, when you're going
to take off work, you have to tell the supervisor first,
you don't just leave, you just don't get transferred to an-
other department." This policy, that an employee must
get permission from her regular supervisor to leav e the
plant, is not written, it is told to employees when first
hired. (Janet Ortez, however, did not mention this as one
of the matters on which she customarily briefs new em-
ployees.) Hand left at the 2:45 p.m. break and did not
return. Salmon came to the department a little after 3
o'clock and asked McBride where she was, saying he
needed her in his department. McBride told Salmon she
had gone to a wedding, and asked, "Didn't you knotw
about it? She said you did." Salmon said he did not.
Forman Coleman testified that Hand never complained
to him about her physical condition, but she did tell him,
more than once, that it was unfair to keep her on a core
table. He informed her that Salmon had said "she was a
better core maker. And, that we just had to do do that to
get the production out that was needed, at the time."
Coleman recalled Hand's crying once while working at a
core table, but he could not remember when. He as-
sumed it was because "she felt like we were picking on
her." He denied that he or Salmon laughed at her. Cole-
man said he considered the ripsaw the hardest job and
the glue spreader the second hardest. Coleman testified
that he made the decision to terminate Hand after dis-
cussing it with Salmon and Hagan. He said, at one point,
that his action was based on Salmon's report that Hand
had told lead person McBride she had Salmon's permis-
sion to take off early to attend a wedding, and she did
not have Salmon's permission; and for failing to punch
out. He also testified that on the day of her discharge she
refused to tell him why she failed to tell Salmon she was
leaving and merely shrugged when he asked her; that he
told her she had been given "enough chances, as far as
her absenteeism [was concerned] . . . and enough warn-
ings . . . and we felt like, she just walked off the job,
and she was terminated. And, she just smiled, and waved
to everyone in the [flush] door department, and left."
Coleman continued that Hand made no protest, said
nothing about having permission from Salmon or anyone
else, and offered no explanation except that she had gone
to a wedding, and no explanation for failing to punch her
timecard; "she seemed tickled over the whole thing."
Coleman conceded employees forget to punch out "lots
of times" and no one has been fired for that unless the
employee was suspected of cheating. He was not, he
said, suspicious of Hand. Coleman recommended that
Hand not be rehired because she "caused trouble in the
department, and complained about each job she was put
on," which he said was based on information received
from Salmon. Coleman's final report on hand rated her
as unsatisfactory in cooperation with others, dependabil-
ity, and attitude; average in ability, quality of work, and
safety; and below average in attendance. Coleman ex-
plained he considered Hand's attitude to be poor be-
cause:
Both times that she had talked to me, she had it
in her head, that we were treating her unfair, be-
cause she was involved in the Union. And I tried to
9) 8
990 DIECISIONS OF NATIONAL LABOR REI.ATI()NS O()ARI)
tell her that it wasn't that it was because of produc-
tion. But, she just insisted, that we were being
unfair to her. There was a time, she would cry
during the conversation ....
Well, it was just the way she conducted herself
. . . when she would talk to you. I can't give you
any specifics. Well, then, and Pat Salmon said,
during some meetings they had. They would have
Safety Meetings, and her attitude was pretty bad
toward the Safty Meeting they were having.
Coleman denied that Hand's known union activities were
a factor in her assignment. He also did not know who, if
anyone, took Hand's place on a core table full time until
Rena Roberts was so assigned as discussed below.
Hagan testified he was not involved in any way in
Hand's discharge, but she violated a rule in the hand-
book by failing to get permission from her supervisor to
leave early. The handbook says that "All absences must
be reported by telephone or prearranged with your su-
pervisor and personnel manager," but no specific refer-
ence is made to leaving early.
With respect to the revocation of Hand's union author-
ization card, in December 1977, 1 find that Safety Direc-
tor Ely's implication that Hand's core table assignment
was the result of her union activity and that she might be
relieved of the assignment if she revoked her union card
and ceased associating with union advocates, volunteer-
ing the name of an employee who could engineer the
revocation, escorting her to the personnel office, and
eliciting the assistance of the personnel director in the
revocation unlawfully induced Hand to repudiate her
commitment to the Union, and I conclude that he there-
by violated Section 8(a)(l) of the Act. 17 I further con-
clude that Personnel Director Hagan also violated Sec-
tion 8(a)(1) by summoning Wally Green to the personnel
office and introducing him to Debbie Hand there for the
purpose of assisting Hand in revoking her card, as, in
context, Hagan conveyed the impression of further in-
ducement and approval of the revocation. "
With respect to the assignment of Hand to work full
time on a core table and her subsequent discharge, the
testimony set forth above makes it plain that the motivat-
ing forces behind these actions were not those advanced
by the Respondent. Was she given the assignment be-
cause she was a good production worker and the best
core builder in the department, as Salmon said? It seems
unlikely, as inconsistent with the reason advanced for the
next assignment, after Hand's departure, of an employee
to full-time work on the core table for any length of
time. Rena Roberts, another prominent union activist,
was next given the assignment, Salmon said, because she
was not very good at core building and was a slow pro-
duction worker. Salmon also gave apparently inconsist-
ent reasons for not using Hand on layup-that she was
faster than the other employees, and that she had less ex-
N7:L.R.B. v Birmingham Publishing Comnpany. 262 F2d 2 (5th Cir
1958); St. Regis Paper Compan, 239 NI.RB 668 (1978); Sunflower A'ovelty
Bags. Inc., 225 NLRB 1331. 1336 (1976); A.hevill Steel Companu, 202
NLRB 146 (1973)
At Justrite .UanuJacturilg Co, 238 NL.RB 57 (1978); Ilattrua Yuchth.
A4MF Incorporated. 207 NLRB 1043. fn . (1973). Accord: River lg.
Inc., 16) NL.RI 58, 60 (1966).
perience than the others, on that job. Moreover, the evi-
dence shows that all members of management turned a
deaf ear to, and some even laughed at, Hand's request to
be relieved of the core table assignment despite the obvi-
ous fact that it was causing a valued employee extreme
distress and was lowering her production. It does not
seem rational for a supervisor to regard such requests
and complaints as "Just a petty gripe," as Salmon said,
or paranoia, as Coleman indicated. And of course ascrib-
ing poor attendance as one of the reasons for discharge
and rating her upon discharge as only average in ability,
when the assignment exacerbated her attendance prob-
lems and reduced her production, can only be regarded
as cynical. There are additional weaknesses in the de-
fense to the discharge. Coleman and Salmon said Hagan
was consulted; Hagan said he was not. Coleman said that
failure to punch out was a factor in the decision, then
conceded that forgetting to punch out was a common
occurrence which did not result in discharge except
under conditions inapplicable to Hand. Other factors,
Coleman said, were that she caused trouble in the de-
partment by complaining about each job she was put on,
yet there is no indication of any job complaints before
the assignment in issue; that she cried when she talked to
him, yet no reasonably acceptable basis for this is sug-
gested other than the job assignment which he refused to
change; and that Salmon told him her "attitude was
pretty bad, toward the Safety Meetings" which was not
corroborated by Salmon and for which there is no sup-
port in the record, as there similarly is no support for
Coleman's final rating of Hand as unsatisfactory in coop-
eration with others.
In all these circumstances, and in view of the unfavor-
able demeanor displayed by Personnel Director Hagan,
Foreman Coleman, and Supervisor Salmon contrasted
with the apparent sincerity of Hand, Edens, and McKin-
ney, when testifying on matters at issue here, and the su-
periority of Hand's account of her last day at work over
McBride's in believability and probability, I credit the
General Counsel's witnesses. Moreover, in view of other
more onerous conditions found to have been imposed on
employees of the flush door department because of their
solid union support, the animus against Hand because of
her union activity revealed by Safety Director Ely, his
direct attribution of the assignment to Hand's union ac-
tivity and implied promise to relieve Hand of the oner-
ous work assignment on condition that she revoke her
union authorization card and cease associating with other
union advocates with which latter condition Hand failed
to comply, the vague, inconsistent, and baseless reasons
given for the onerous work assignment and the decision
to discharge such an employee who before her onerous
assignment was considered valuable at a time when labor
was in short supply, and the other unfair labor practices
found, establish beyound reasonable doubt that Hand's
conduct on her last day of work was seized upon as a
pretext to conceal the Respondent's true motive to rid
itself of a leader in the campaign to organize the plant. I
conclude that the Respondent discriminated against
Debbie Hand by assigning her to work full time on a
core table in November 1977 and refusing thereafter to
NIAYW)OOD. INC. 91 I
revoke the assignment, and by discharging her on Janu-
ary 3, 1978, in iolation of Section 8(a)(3) and (I) of the
Act.
2. Employee Shane Hone
The complaint alleges that Foreman Francine Vincent
engaged in a continued concerted program of harassment
and disparate enforcement of plant rules against Hone
causing him to quit on April 4, 1978.
Hone (sometimes erroneously called Holm in the tran-
script) was hired in September 1977 as a laborer at 2.95
an hour. By the time of the events herein 7 months later,
he was being paid 3.63 an hour and working in the
veneer lamination department as an assistant to Supervi-
sor Allan Cuppell. The unit foreman was Francine Vin-
cent.
Hone signed a union card in November 1977. In De-
cember 1977, Hone was elected to the safety and adviso-
ry committee, in which position it was his additional
duty to inspect the building for safety, ask the employees
for their complaints, and present such matters at monthly
meetings to President Maynard, Plant Superintendent
Weatherly, Personnel Director Hagan, and Safety Direc-
tor Ely, also members of the committee. Hone testified
as follows with regard to events leading to his departure
from the Respondent's employ:
At the March 1978 meeting of the safety committee.
Hone complained about "the way the raises were given
to new employees and they by-passed old employees and
the way, the general picture of the wage situation."
Hagan promised to look into it. Hone told Hagan:
they better do something about [it] because the
people had said in my unit that if management
wouldn't do it for us they would go to the Union.
Three or four days later Cuppe!l and Vincent came to
his department and talked to two of the senior employ-
ees, Deanna Boatman and Rita Brown, individually in
private, and then called Hone into the breakroom. There
Vincent called him a rabble-rouser and a back stabber
and cursed him, saying:
I'm very disappointed in you. I had high hopes for
you but you turned out to be a complete disappoint-
ment. a complete flop . . . that I couldn't expect
any more pay raises or any advancements in the
company . . . that they had been considering me
for a leadman position . . . but I had blown it.
Immediately after the interview, Vincent came back
and told Hone if he wanted to take the few davs off
Cuppell had promised him for his honeymoon, to go
ahead and take them but he would be fired if he did, and
"if I don't like the way things are I can just leave."
Hone took the next working day off, and the day after
that, April 4, 1978, he quit because, he testified, Vincent
had told him he had no chance for advancement.
Deanna Boatman, an active union advocate, testified
that, in her interv iew with Vincent and Cuppell after
Hone's meeting with the safety committee, she told them
she was unhappy because "the ones that had gotten the
raises wasn't the ones that was doing the work. The
three that did not get the raises were the ones that were
putting out the work." When asked whether Vincent hald
ever cursed her. Boatman responded that in the fall of
1978, after she and another employee got into an argu-
ment, Vincent called the two of them aside and threat-
ened to fire Boatman, saying "you can file charges with
whom ever you goddamn well please. You are just an-
other dumb employee out here, that's all."
Foreman Vincent testified as follows: Management
considered Hone a trainee for the position of leadperson.
After the safety committee meeting, however, Hagan
and Weatherly told Vincent that Hone reported the unit
was "giving raises indiscriminately and we were giving
them to lazy people . .. the ones that had the worst at-
tendance and that the whole department was fixing to
walk out"; they asked Vincent to check into it. So Viil-
cent pulled the personnel files of all six employees of unit
10, got the attendance reports, and talked to all of them
"one at a time. We talked to Rita Brown, Dee Boat
man-I can't remember if it was Joyce Edens or not
all of them said that they hadn't said any such thing, that
they were very happy with their pay." Vincent and Cup-
pell then sent for Hone, angry with him because he had
not followed the chain of command by speaking to the
safety committee before taking the matter up with
them-
I told him that I thought that that was the
cheapest shot that I had ever seen anyone give their
supervisor. I felt that it was a back stabbing trip and
that I didn't appreciate it .... That I was disap-
pointed .
Vincent also told him his attendance was the worst in
the department, he had not followed the chain of con-
mand, he had lied when he told the committee the em-
ployees uwere ready to walk out, because the emploees
did not back up his statements at the safety committee
meeting. Vincent denied cursing Hone, adding that she
has never cursed an employee. Vincent also testified that
she did not know whether Hone or any of the other unit
employees was active on behalf of the Union. Allan Cup-
pell testified substantially to the same effect as Vincent,
adding that Hone kept telling him and Vincent he did
not feel he was being treated fairly as he was doing all
the work and that, "I told him if he didn't like the way it
was being done, that he could just leave." Cuppell also
claimed he did not know Hone's views on the Union.
I credit Hone's substantially undisputed testimony as
to what he said at the saftey meeting, to the effect that
failure to resolve alleged employee complaints on wages
would result in employees turning to the Union."i I also
credit Hone's account of what took place after that, as
well as Boatman's account of her interview with Vinlcent
and Cuppell, as Boatman has been found generally credi-
ble. I do not credit Vincent or Cuppell that the unani-
mous response of the employees repudiated Hone, as at
least one employee, Boatman, credibly testified that she
t'residcili Masa1rd "si , the o8nl) other partItilpani in tht ,,ict\
11l'tIrIlg 1-, ho XNil'ka l , t Ik .hS i ttic ., 1. i hi1 1 an hi rCk[ llctiollni v1, aldl lit
t.cdl
5
.1tl
992 DECISIONS ()F NATIONAL LABOR R'ATI()NS t()ARD
did not repudiate him. I credit Hone's version of his final
meeting with the two supervisors, because Vincent im-
pressed me as having the forceful personality revealed by
Hone, and Cuppell corroborated Hone in one important
respect. Cuppell's noticeably poor demeanor when deny-
ing knowledge of Hone's union sympathies further un-
dermined the credibility of the Respondent's witnesses.
In these circumstances, I find that Foreman Vincent
engaged in deliberate harassment of Hone calculated to
make him quit. Thus, she canceled his status as a leadper-
son trainee, ended his chances of wage increases or ad-
vancement, cursed him, revoked his promised wedding
leave, and invited him to quit if he did not like it. I also
find, based on the credited facts of this incident, the hos-
tility toward unionism which Vincent demonstrated on
election day, and the other unfair labor practices found,
that the motivation behind the treatment of Hone was
not that he bypassed immediate supervision with the em-
ployee complaints or that he lied about union-employee
sentiments, but was his threat of unionism and his sus-
pected advocacy of the Union. I conclude that the Re-
spondent made Hone's working conditions intolerable for
discriminatory reasons, thereby constructively discharg-
ing him on April 4, 1978, in violation of Section 8(a)(3)
and (1) of the Act.2 0
3. Employee Delores Robertson
The complaint alleges that Supervisor Marvin Bass
transferred Robertson on or about April 1, 1978, from
job to job causing her to lose incentive pay because of
her union activities.
Robertson was employed in the doorlight department
for II years. Marvin Bass was supervisor. Robertson
signed a union card in mid-1978 and was active in the
1978 campaign. In its letter to the Respondent dated
April 24, 1978, the Union revealed that Robertson was a
member of the in-plant organizing committee. Bass vol-
unteered that Robertson told him she was active for the
Union.
Robertson testified that before she became a member
of the organizing committee she was a saw operator and
clamp operator for 10 to 12 hours a week more or less,
for which she made $40 to $50 weekly incentive pay.
After the Union's letter of April 24, she said she contin-
ued to work on the saw and the clamp part time and was
also moved "Into the insulated light room and putting up
molding, boxing, and stuff like that," which was un-
skilled and did not pay incentive. Although Robertson
has performed those jobs before on an irregular basis, she
performed them "a little more regularly" after she
became a member of the committee. When asked, "Did
you lose any incentive pay?" Robertson answered in the
affirmative. In August sometime, after the union election,
she said, she went "back on the saw" and started making
her incentive again.
20 J. p Stevens Co., Inc. v.NL. RB., 461 F 2d 490. 494 (4th Cir
1972); Mary Pupillo d/b/a Marie Antoinette Manufacturers, 193 NLRB 396
0(971): Frank S. Malek and Azzeta G. Malek. Partners, d/b/a Precision
Tool and Die Mfg. Co., 205 NLRB 205 (1973): W T Grant Company, 195
NLRB 1000 (1972): Montgomery Ward & Co., Incorporated (Wards South-
town Retail Store). 160 NLRB 1729 (1966).
Supervisor Bass testified he customarily moved people
along with the products in order to get the products
completed. He said the insulated light. or glass, room
work did not pay incentive because it was new and no
rate had been set, and that he tried to rotate department
employees in that work. He indicated that he regularly
assigned Robertson as wuell as Lupe Schardein (whose
subsequent discharge is discussed below) and leadperson
Gerald Swindale, to the insulated-light room.
It is clear that the Respondent was aware of Robert-
son's union advocacy, and it is also clear, from the unfair
labor practices found, that the Respondent was hostile
toward unionization. However, I cannot find that Rob-
ertson was discriminated against based on her testimony
set forth above. It would appear that there was little
change in her assignments, and what change there was
could be accounted for by Bass' employee rotation
policy. Moreover, the leadperson, as well as Schardein,
was also assigned to the same work. I conclude that a
preponderance of the evidence fails to establish a viola-
tion with respect to Robertson, and I recommend that
this allegation be dismissed.
4. Employee Christine Smart
The complaint alleges that the Respondent discharged
Smart on April 28, 1978, because of her union activities.
Smart was hired January 23, 1978, and assigned to the
flush door department under Supervisor Salmon and
Foreman Coleman. Smart testified as follows: She re-
ceived a pay increase in January at which time Salmon
told her she was doing good work and could be depend-
ed on, and another pay increase in March 1978. At the
time of her termination, she was being paid $3.40 an
hour, plus average incentive pay of around $25 a week.
Her work was not criticized.
Her attendance, however, was poor. During the 13
weeks of her employment, from January 23 through
April 24, 1978, Smart was absent 12 days. She furnished
doctor's certificates for each absence except for 2 days in
March when her husband underwent surgery. No warn-
ings were issued, and she was not criticized for absentee-
ism.
Smart was an active union advocate, attending meet-
ings and soliciting cards. Her name was listed as a
member of the in-plant organizing committee in the
Union's letter to the Respondent of April 24, 1978.
Smart was absent for 3 days beginning April 25, be-
cause of illness. She returned to work before the start of
her 7:15 shift on the morning of April 28 but her time-
card was not in the rack. She sought out Supervisor
Salmon and told him she had a doctor's release and
needed a timecard. He refused to accept the doctor's
slip, and directed her to sign a statement, which he
handed her, to the effect that she had been absent too
much; if absent again in the near future she would be ter-
minated; and she agreed not to be absent any more in the
near future for any reason. Salmon told her she could
not go to work until she signed the statement. Smart re-
fused to sign because she could not guarantee she would
not be absent again. Salmon told her to wait and see
Foreman Coleman, who would be in about 8 o'clock.
MAYWOOD, INC 993
Smart said she would wait. Instead, she left the plant,
and returned about 8:30. Salmon told her Coleman was
in a meeting and for her to wait. She waited until 9:30
break and then went outside with some of the employ-
ees. She returned at 10:05 and encountered Salmon and
Coleman at the entrance. She told Coleman she had a
doctor's release and was ready to go to work; but Cole-
man informed her she had refused to sign the statement
proffered by Salmon and could not go to work; he asked
why she had refused to sign it, explaining it was only a
warning given "to let me know the Company knew I
was out." Smart said she would not sign. Coleman asked
her how she felt the factory could keep up with produc-
tion if they let everybody off when they wanted to take
off. Smart repeated that she was not going to sign the
statement and asked whether that meant she was termi-
nated, and Coleman replied, "Yes, it does." Smart under-
stood she would have continued in the Respondent's
employ if she had signed the statement.
Salmon testified he was aware that Smart was proun-
ion. He did not recall Smart's offering a doctor's slip; he
said he would have permitted Smart to return if she had
signed the reprimand. When she refused, he told her to
wait for Coleman because Salmon had never had an em-
ployee refuse to sign a reprimand before. When Coleman
did not arrive within a few minutes, Smart told Salmon
she was leaving and walked out; she was not gone too
long, and returned in about an hour. While she was
gone, Salmon and Coleman conferred with Personnel Di-
rector Hagan. Coleman described what had happened
and it was decided to terminate Smart because she left
without permission, walking off her job. When Smart re-
turned to the plant, she told Salmon her husband had
sent her back to at least hear what Coleman had to say.
After some discussion among the three of them, Smart
was told she would not be given her timecard and that
she was terminated. Salmon said, in his opinion, Smart
quit.
Coleman testified, as an adverse witness called by the
General Counsel, that he made the decision to terminate
Smart because she refused to sign the reprimand for ab-
senteeism, and because her supervisor did not know what
to do about the refusal to sign and instructed her to wait
for Coleman; but instead of waiting, she left the plant.
When Smart returned to the plant 2 or 3 hours later, she
asked Coleman about the reprimand and he told her
"that I felt like she wasn't interested in her job enough
to wait and talk to me and she was terminated." He fired
her, he said, for leaving the plant and not waiting for
him. As a witness for the Respondent, Coleman testified
he returned to the plant floor after doing about 15 min-
utes' paperwork in the office, and Salmon told him what
had happened about Smart, that she had left the plant, so
they assumed that she had quit and decided at that time
to terminate her. Smart returned to the plant a little
before lunch and said her husband made her go back to
work, but Coleman claimed he saw no doctor's excuse.
We felt like that her walking off at the time, that
she didn't want her job that much, not to wait
around, and talk to me about it, so we terminated
her.
Coleman said he had terminated other employees but he
could not remember any names except for one termina-
tion about 7 or 8 years ago.
Coleman conceded there is no company policy requir-
ing employees to sign reprimands. ut he felt, he said:
Just by her leaving, and her attendance in the past
. . was justification for termination .... And I
told her, that her attendance in the past, and this
coming up [her leaving without waiting for Cole-
man] I just felt like, that she didn't want the job.
Coleman said he felt that he would have put her back to
work if she had waited for him. Coleman noted on
Smart's termination slip that she was discharged, and not
recommended for reemployment, for "poor attendance."
Testifying as an adverse witness for the General Coun-
sel, Personnel Director Hagan said he did not know who
made the decision to fire Smart. Hagan testified Coleman
and Salmon reported to him that Smart had been written
up for abenteeism and had walked off while they were
trying to talk to her about it. They consulted him be-
cause they had never had an employee walk off in the
middle of a reprimand before and did not know what to
do. He said he told them, "Well, if her absentee[ism] has
been that bad and she walked off without waiting to dis-
cuss it, then I don't think I would want her for an em-
ployee." He understood that she was terminated shortly
thereafter. Hagan also testified there was no requirement
that an employee sign a reprimand. He said there are no
company guidelines for defining excessive absenteeism
which is a prerogative of the supervisors who decide on
the basis of what they can tolerate and still get the work
done.
Here again we have inconsistent testimony by the Re-
spondent's witnesses. Thus, as to who made the decision
to terminate Smart, Salmon indicated that it was made
by Hagan, Coleman, and himself during the period while
Smart was out of the plant. Hagan said, however, he did
not know who made the decision, although he under-
stood she was terminated shortly after he recommended
it. Coleman testified he made the decision. Also, as to
how long Smart was gone, Salmon said "not too long,
about one hour," but Coleman said "2 to 3 hours." Final-
ly, as to the reason or reasons for the termination,
Salmon said it was because she walked off the job and
quit. Coleman said, at the beginning of his testimony,
that she was terminated because she refused to sign the
reprimand; but he and Hagan subsequently testified that
there is no company policy requiring employees to sign
reprimands. Coleman also gave as reason for the dis-
charge Smart's leaving the plant without waiting to talk
to him, leading him and Salmon to believe that she quit.
He then added that her poor attendance was a factor,
and this was the only reason noted on ner termination
slip. Hagan testified his recommendation was based on
information from Salmon and Coleman of excessive ab-
senteeism and that Smart had walked out while they
were reprimanding her.
The record also shows that the reasons given are base-
less. Inasmuch as Smart returned to the plant shortly
after she left, it was clear that she had not quit her job.
MAY WOOD. INC qq3
D)ECISIONS ()F NATIONAL LABOR RELATION()NS BOARI)
Refusal to sign a reprimand was not grounds for dis-
charge under company policy. She did not walk out in
the middle of a reprimand. Employees were not fired for
absenteeism without prior counseling and warnings, ac-
cording to Coleman.
In view of the shifting nature of the Respondent's tes-
timony and the lack of merit in all of them, I cannot find
that Smart was terminated for any of the reasons ad-
vanced. In these circumstances, and based on the Re-
spondent's admitted knowledge of Smart's union advoca-
cy, its hostility to activity in favor of the Union, other
unfair labor practices found including the unlawful dis-
charge of Debbie Hand from this same department, I
find that the reasons given for the discharge of Christine
Smart were pretext to hide the real reason, to be rid of
an advocate of the Union. I conclude that the discharge
of Smart on April 28, 1978, was violative of Section
8(a)(3) and (1) of the Act.
5. Employee Myrtle McKinney
The complaint alleges that on or about May 11, 1978,
the Respondent discharged McKinney because of her
union activities.
McKinney was hired in 1964 and worked 13 years as a
core builder in the flush door department. She suffered
an industrial accident to an eye in late 1973 which kept
her away from work until the spring of 1974 when she
returned to duty. In May 1976, McKinney's back was in-
jured by a fall in the plant. After hospitalization, she re-
turned to work in May 1977 with instructions from her
doctor not to do any heavy lifting, a mandate with
which Supervisor Salmon complied, assigning her to
building light-weight single cores and helping Florene
Pool sort wood for cutting.
Beginning in July 1977, McKinney passed out union
authorization cards to employees for signature, and on
July 19, 1977, she herself signed a card. McKinney testi-
fied, and I find on the basis of the absence of any contra-
diction, that the day after she signed the card Foreman
Coleman and Supervisor Salmon issued her a discharge
warning for having criticized the quality of lumber being
used in the department in the presence of a potential cus-
tomer some 3 weeks earlier; McKinney charged them
with resurrecting an old incident because of her union
activities; and Coleman denied the charge but told her,
"I want you to quit passing out Union cards or you will
be fired."
Although the General Counsel contends that McKin-
ney was taken off light duty shortly after she signed the
union card and assigned to heavier duties in retaliation
therefor, I do not credit McKinney's testimony in sup-
port of this contention because it was so inconsistent and
confusing. Thus, she said the new assignment, lifting
heavy boards and overlong duty on a core table, revived
her back problems and caused "bleeding" and that she
reminded Salmon of her light-duty medical restriction
and appealed to Safety Director Ely, but to no avail;
however, she also denied asking for reassignment to
lighter work. Moreover, she was transferred to the hard-
ware department in December 1977, at which time she
conceded that Vice President Hatcher told her, as he tes-
tified, that the purpose of the transfer was to obtain
lighter work for her. And yet she said she protested the
transfer, and was told by both Salmon and Hatcher that
the transfer was to be effected despite her protest be-
cause the union people had to be split up, testimony
which I cannot credit in the circumstances and in the ab-
sence of corroboration, and in view of the forcefulness of
Salmon's and Hatcher's denials. Nor do I credit McKin-
ney that the job given her in the hardware department-
sitting at a table assembling small parts and dumping
boxes of the parts on the table for assembly-was more
injurious to her back than the duties she had been per-
forming in flush doors. In my opinion, McKinney's testi-
mony overall reveals that, although she complained to
management that her jobs were too heavy, her real com-
plaint at this stage was that she thought she should be
assigned to her favorite job, that of standing at the layup
table placing skins on doors after they emerged from the
glue spreader, and not that the jobs to which she was as-
signed were physically too heavy for her.
On February 3, 1978, McKinney had her third indus-
trial accident when she fell on the ice at the back door
of the plant, again injuring her back. She was off work
about a month during which she was hospitalized for a
couple of days. While she was in the hospital, Safety Di-
rector Ely telephoned to ask how long she would be
there, and she told him she did not know. She was re-
leased the following day and took a medical statement to
Personnel Manager Baker to the effect that she was
unable to work. Baker made a leave-of-absence slip dated
February 20, 1978, stating, "Her doctor advises that she
is physically unable to work at this time" and that her
return date was "undetermined." At the suggestion of
her doctor, Barton Freeman, McKinney returned to
work on Monday, March 6. The General Counsel con-
cedes that this return "technically end[ed] her leave of
absence." She worked that day and the next day, March
7. She was unable to work any longer, and did not
return on March 8. The Respondent has a slip dated
March 9, 1978, indicating that McKinney called in to say
"her back was keeping her from walking" and another
slip dated March 10, 1978, "Not going to make it
today-depends." Although McKinney testified that she
returned to Dr. Freeman, he wrote a statement excusing
her from work for 2 months, and she delivered the state-
ment to Maywood, the Respondent has no such record,
nor any record of any call-ins or leaves of absence grant-
ed to McKinney dated after her March 10, 1978 call.
The General Counsel concedes that "McKinney was
never again formally placed on leave of absence, al-
though she stayed out of work without calling in until
she was terminated in May." McKinney was examined,
for the second time, by a Dr. D. F. Havemann on May 4
or 5. She testified he advised her to quit work but when
she told him she could not afford to quit, he said he
would permit her to return to light duty but Dr. Free-
man would have to say when; Havemann said nothing,
McKinney testified, about writing a letter to the Re-
spondent. Havemann did, however, write a letter to the
Respondent on May 5, to the following effect:
I have seen one of your employees, Mrs. Myrtle
McKinney, at the Scott and White Clinic in Febru-
9(4
MAYWO()()D. INC. 995
ary of this year and again MNay 4. 1978. For the past
few weteks, she apparentlily has not been working,
and not surprising, she feels much better. I am sure
Mrs. McKinney would prefer to be declared dis-
abled rather than to continue to work in any capac-
ity: however, I do not feel that she is disabled and I
would like to request that you consider changing
her job description to some position where she can
avoid lifting heavy objects (over 15 pounds), such
as the one she previously occupied. I believe with
your help we may be able to keep this lady work-
ing; otherwise, she will probably seek further medi-
cal opinions for disability and eventually will prob-
ably be able to be declared medically disabled. I
have strongly encouraged her to keep working and
to talk with you and your company concerning re-
turning to the previous position which she should
medically be able to perform without difficulty.
I discussed her case thoroughly with Dr. Bart
Freeman of Amarillo and he is in agreement that
she should continue to work but will require a posi-
tion that avoids lifting heavy objects . . . .
The following week, on May 9, McKinney testified, she
saw Dr. Freeman again and he told her she could not
return to work until June ; she claimed she called the
plant the next day and gave this information to a person
she could not identify. The Respondent has no record of
the call.
On May 15, McKinney picked up a letter at the post
office from Personnel Manager Baker dated May II1,
1978, to the following effect:
We received a letter from Dr. D. F. Havemann,
M.D., dated May 5, 1978, that you should be able
to medically perform your work.
As of this date, May 11, 1978, we have not heard
from you concerning your returning to work. We
are led to believe that you do not wish to return to
work, and to our employment. We, therefore, are
terminating your employment with Maywood, Inc.,
all of your benefits have been terminated as of May
11, 1978 . . . .
The next day, McKinney went to Baker's office and he
told her he had a letter from Dr. Havemann saying she
was supposed to be at work on May 9. McKinney asked
to see the letter as she was unaware of it, but Baker did
not let her see it. (She subsequently received a copy
from Dr. Havemann.) After her conference with Baker,
McKinney visited Dr. Freeman and asked for a release
to go back to work immediately. Freeman provided her
with the following statement dated May 16, 1978:
I saw Mrs. McKinney on May 9, 1978 and I have a
letter from Dr. Havemann at Scott & White Clinic
in Temple, Texas and have also talked to him on
the phone. I do feel at this time Mrs. McKinney
could return to work, but I fully agree with his pre-
vious recommendations that she not have a job
when she lifts objects heavier than fifteen pounds or
where she stands in one place for long periods of
time . . .
McKinney took this statement to Personnel Manager
Baker, told him it was the only release she had received
from a doctor, and said she was ready to go back to
work. Baker said he would speak to Personnel Director
Hagan but he did not think it would do any good.
MlcKinney telephoned Baker and he informed her Hagan
said she could not return.
Hagan testified he participated in the decision to termi-
nate McKinney, along with Vice President Hatcher and
Plant Superintendent Weatherly and they terminated her
for failure to report to work in accord with company
policy to terminate an employee who is absent 3 days
without calling in, as stated in the employee handbook.
Although supervisors have on occasion telephoned em-
ployees if they have reason to believe the employees did
not intend to quit in an effort to find out what happened,
no one called McKinney, he said.
In the absence of corroboration, and in view of Dr.
Havemann's letter to the contrary, I cannot credit
McKinney's account of her May 4 interview with him.
Nor can I credit her testimony that Dr. Freeman forbad
her return to work until June I and that she so advised
the plant, in view of the contradiction in Havemann's
letter; Freeman's letter, written shortly thereafter, to the
effect that she was able to return immediately; and in
view of the absence of any record of her alleged call to
the plant. Indeed, as indicated, the General Counsel con-
cedes she did not call in between her last day of work
and her termination.
Analysis of the evidence relevant to McKinney's ter-
mination reveals that the Respondent was fully aware of
her allegiance to the union cause; that she was interro-
gated and threatened several times by Supervisor Salmon
and Foreman Coleman about her union activities.
Beyond this, however, there is very little going for the
General Counsel's case. Thus, she contends that the 3-
day no-call rule was not a hard and fast one, that the Re-
spondent deviated from its past practice of calling no-call
absentees to make sure they did not intend to quit, and
that the Respondent gave no consideration to the fact
that McKinney might have been unaware of Havemann's
May 5 letter. I find no merit in these contentions. To
treat them in reverse order, I see no obligation on the
Respondent to inquire into McKinney's knowledge of
the letter or its contents in the circumstances. The letter
could be presumed to be based on a visit to the doctor
by McKinney, and even if she had received no copy of
the letter, it could be presumed that McKinney received
the information and the recommendation contained
therein from the doctor himself. Indeed, I am not at all
sure she did not. Nor does the evidence establish a past
practice of calling absentees to ascertain their intentions.
That some supervisors and management exercise their
discretion to make such calls on occasion does not estab-
lish the kind of practice to raise a suspicion when no call
is made. Moreover, the fact that the employee handbook
provision, "If absence is not reported for three consecu-
tive days, an employee will automatically be terminat-
ed," is not a hard and fast rule does not help the General
Counsel case, because it was not rigidly applied to
McKinney herself. On the contrary, the Respondent did
MAYW(X)I). INC.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not invoke the rule for 2 months even though McKinney
had not called in and was not on an official leave of ab-
sence. This conduct is, rather, a persuasive factor in
favor of the Respondent's case, as it shows leniency on
its part toward an employee known to advocate a Union
to which the Respondent was hostile, even though it
could have seized the opportunity to discharge her much
earlier-3 days after her call-in-had it wished to do so
for that reason.
Summarizing, I find that despite the Respondent's
unfair labor practices, some of which were even directed
toward McKinney, a preponderance of the credible evi-
dence fails to establish that it terminated her for discrimi-
natory reasons, and I conclude that this allegation should
be dismissed. 2
6. Leadperson Tommy Blackwell
The complaint alleges that Supervisor Pat Salmon on
June 13, 1978, announced a reduction in Blackwell's au-
thority as a leadperson because of his union activity and
because he gave testimony at the hearing in Case 16-
RC-7736.
Blackwell was hired in January 1977 and after a few
months he was promoted to leadperson and transferred
to the flush door department. At that time, either Fore-
man Coleman or Foreman Ferguson told him he might
become supervisor when Salmon retired if he worked
out well as lead and showed initiative. Blackwell testified
that he has been paid as a leadperson ever since then, no
one ever told him otherwise, and he still is a leadperson.
He described his duties as:
Well, just to set an example for everyone else, work
hard, help train the new employees and make sure
they had everything . . . they need . . . Generally,
just helping everybody.
He added that at times he worked every job in the de-
partment; his routine was to work one assigned job and
then go wherever he was needed.
Blackwell signed a union card; and before Christmas
1977 told Foreman Coleman he had done so and asked
Coleman his opinion of the Union. Coleman responded
he had heard Blackwell attended a union meeting (al-
though Blackwell did not attend any meetings), but if
Blackwell intended to work his way up in the Company
and be a supervisor, he needed to be loyal to the Compa-
21 McKinney testified that all her workmen's compensation insurance
claims based on her three accidents have been settled to her satisfaction.
Lucille Wood, who is responsible for the Respondent's hospital and
medical insurance program, testified, without dispute, that the last claim
filed by McKinney was paid in full on May 10, 1978, and that there are
no outstanding unpaid claims by McKinney.
With respect to her profit-sharing claim, McKinney testified she par-
ticipated in the program since it began 9 years ago; when she was termi-
nated, she received only the money she had invested without interest or
any company contribution. Personnel Manager Baker testified he discov-
ered a mistake made by the actuary which resulted in payment to
McKinney and several other employees who left the Company in 1978 of
10 percent less than they were due out of the profit-sharing fund. Those
accounts have now been recomputed and McKinney has been paid the
remaining amount due her In these circumstances, and in light of the
General Counsel's apparent acquiescence, I accept the Respondent's ex-
planations, and recommend dismissal of the allegations based on McKin-
ney's insurance and profit-sharing claims.
ny. Supervisor Salmon acknowledged he was aware of
Blackwell's prounion sympathies.
In June 1978, Blackwell testified under subpena re-
garding his duties at the representation hearing, but there
is no evidence as to which party subpenaed him. Florene
Pool testified on June 13, 1978, under a union subpena.
When they returned to work on June 14, Salmon reas-
signed Florene Pool from the chopsaw to core building
and layup, and assigned Blackwell to the chopsaw after
which, he testified, he did not perform leadperson duties.
Blackwell continued on the chopsaw assignment until
shortly before Salmon retired at the end of 1978, when
he resumed the duties he had performed before June. He
believed, he said:
. . .the reason I was stuck on the Chop saw was
because Florene [Pool] was about the only one who
could chop, really, pretty fast besides me and when
she left they had to have somebody on there to
keep up with the building ....
Salmon testified he told Blackwell when he first came
into the department (around March 1977) that as leadper-
son he would have only such authority as Salmon grant-
ed him and that he was there to learn, and Salmon never
changed his authority. As leadperson, Blackwell was ex-
pected to do production work at least 75 percent of the
time, Salmon tried to assign Blackwell to every job in
the department, including intermittent assignments to the
chopsaw when Blackwell requested it before June 1978.
As discussed below in connection with Pool, Salmon tes-
tified he transferred Pool to core building and layup, and
placed Blackwell on the chopsaw because he wanted
Blackwell to learn the operation.
Foreman Coleman testified that as a leadperson Black-
well did production work, working on the chopsaw,
sizer, ripsaw, and "just about everything in the depart-
ment"; there was no reduction in his authority, and no
change in his duties and responsibilities.
I credit Blackwell's testimony, which was supported
by Joyce Edens, that he was assigned to full-time duty
on the chopsaw and prevented from performing leadper-
son's functions shortly after he and Pool testified at the
representation hearing. Although his pay was not re-
duced nor his job title revoked, such conduct was to
Blackwell's disadvantage because it deprived him of 6
months' training and experience which might have quali-
fied him for advancement. As for the reason why the
Respondent treated him in this manner, I cannot find it
was done because he testified, in view of the absence of
evidence as to which side he testified for. It is clear,
though, that his reassignment was part and parcel of the
reassignment of Pool which I find below was based to a
substantial degree on her testimony for the Union. More-
over, the evidence-including Salmon's and Coleman's
incredible denials that his duties were changed at all,
their knowledge of his union advocacy, and Coleman's
warning that it would have an adverse effect on his
chances of advancement-establishes that the selection of
Blackwell to replace pool on the saw was motivated by a
determination to implement Coleman's warning. I con-
clude that the Respondent stripped Tommy Blackwell of
MAYWOOD. INC. 997
his leadperson duties on June 14, 1978, because of his
union activities and sympathies, and thereby violated
Section 8(a)(3) of the Act.
7. Employee Lupe Schardein
The complaint alleges that the Respondent discharged
Schardein on June 15, 1978, because of her union activi-
ties.
Schardein was employed 5 years, the last 2 years in
doorlights under Supervisor Bass. She worked as a saw
operator, automatic clamp operator, and at the glaze
table, the same jobs as Dolores Robertson, whose case is
discussed above. She averaged $40 a week incentive pay,
and she received a merit increase March 1, 1978. Schar-
dein signed a union authorization card in mid-1977 and
attended union meetings during the 1978 campaign. On
April 24, 1978, Schardein's name was provided to the
Respondent as a member of the in-plant organizing com-
mittee. Until then, to Schardein's knowledge, the Re-
spondent was not aware of her union advocacy. Supervi-
sor Bass admitted knowledge that Schardein was active
in the Union.
Schardein claims, as did Robertson, that she was as-
signed more onerous duties after her membership on the
in-plant committee became known to the Respondent. As
in Robertson's case, however, I cannot find this to be
true. Schardein's testimony that she never worked in the
glass room before this was unconvincing in view of Bass'
testimony to the contrary which was consistent with Ro-
bertson's experience. She was similarly unpersuasive that
she was not allowed to work on the saw or clamp after-
wards in view of her concession that she did so when
production was heavy, and that she worked various jobs
when production was light. She also conceded that Rob-
ertson (whose assignments have been found lawful) and
the leadperson also worked in the glass room.
With regard to Schardein's subsequent discharge, the
relevant facts are that her attendance began to deterio-
rate after her baby was born in November 1976, and in
November 1977 she was suspended for I day and warned
of possible termination because she had missed 148 hours
that year and failed to show up on a Saturday, even
though she always called in when absent and had a good
excuse for missing work on Saturday. Six months later
Schardein called in absent on June 12 and 13, because
her child was sick. She returned to work June 14 and
handed Bass a doctor's excuse. Bass, however, gave her
a "personnel memorandum" reciting her November 1977
discipline, and the fact that she had missed 97.82 hours,
including 10 absences and 9 tardies so far in 1978.
(Schardein testified the tardies referred to leaving work
early with permission.) Schardein was suspended for a
day and put on 60 days' probation and told "If for any
reason she is absent or tardy, she will be terminated."
On the next day, June 15, Schardein arrived on the
plant premises at 6:30 a.m. for her 6:55 shift. She then
discovered the keys to her husband's car in her purse. In-
forming Dolores Robertson she had to take the keys to
her husband so he could go to work, she drove home
with them, returning to the plant at 6:59 to find her card
missing from the timeclock. She told Supervisor Bass
what had happened, but he said, "Well, we are sorry,
Lupe. but we have already warned you." She protested
"but for being four minutes late?" and he said, "Well,
we'll just going to have to let you go." Robertson con-
firmed that Schardein arrived about a minute before 7
a.m. while the employees were "still standing around the
inspection table going through our daily orders": but she
could not remember to whom she had given Schardein's
message.
Bass testified he made the decision to terminate Schar-
dein on the spot because she had built up a very poor
attendance record, he had written her up twice, and she
came in late (he was not sure exactly how late, but esti-
mated it as between 8 and 15 minutes late), after all em-
ployees were at work, he said, the day after he put her
on probation. Bass testified that no one told him she
would be late, and when she arrived, he asked her what
happened, and she told him she had her husband's keys
and left to take them to him; he asked her why after
being suspended she did not tell him or the foreman. If
she had told one or the other of them, he said, before she
left to take the keys home, he did not believe she would
have been fired, but he did not know she had even been
to the plant. Bass disclaimed any anti union motive in
terminating Schardein.
There is not, in my opinion, sufficient basis for finding
that Schardein's discharge was discriminatorily motivat-
ed, despite the fact that Bass was aware of her leadership
in the union campaign. Thus, it appears that Bass took
disciplinary steps against Schardein for excessive absen-
teeism in November 1977 before her union adherence
was known to the Respondent. Moreover, the rather
severe discipline, of a -day suspension and a warning of
possible termination, was given even though Schardein
always called in and had a good excuse for being absent
on the Saturday. It must therefore be said that Bass'
second disciplinary action, also involving a suspension as
well as a warning of termination if she should be late or
tardy again for any reason, taken on the basis of her con-
tinued record of absences and immediately after a 2-day
absence for which she had called in and then brought a
medical excuse, showed consistent behavior by Bass and
was a logical second disciplinary step. Finally, although
Schardein may have been only 4 minutes late the day of
her discharge and may have had what she considered a
good excuse, I cannot say that the termination was un-
reasonable in view of the failure of Robertson or any-
body else to pass the information along to Bass, and in
view of his flat warning, given only the day before, that
she would be terminated if she were tardy again for any
reason.
Accordingly, although the record shows that the Re-
spondent was aware of Schardein's union activity and
was hostile to unionization, a preponderance of the credi-
ble evidence fails to establish that Schardein's discharge
was motivated by discriminatory considerations, and I
conclude that this allegation must be dismissed.
8. Employee Patricia Morris
The complaint alleges that on February 28, 1978, the
Respondent refused to extend insurance coverage to
Morris, and on June 7, 1978, Supervisor Arthur Purcell
MAY WOOD. INC. 997
948 I)lCISIONS ()OF NAII()NAI. IAIBO()R R.A'IONS BO()ARI)
assigned Morris more onerous duties because of her
union activities, causing her to quit.
As stated above, Morris was hired on November 29,
1977, and assigned to the prefinish department under the
supervision of Arthur Purcell. She signed a union card in
March 1978, and thereafter solicited cards and wore a
union hat. She was known to Purcell as an advocate of
the Union.
Morris' testimony: At the time she was hired, Janet
Ortez filled out a group insurance enrollment and record
card for her as Morris is unable to read, and Morris
signed it. Morris understood she would be enrolled in
the company hospitalization and medical insurance plan
after 60 days. On March 13, after no deductions were
taken from her pay for premiums, at Supervisor Purcell's
suggestion, Morris obtained new insurance forms from
the office receptionist. At lunch, Joyce Edens and Flor-
ene Pool helped her fill out the new forms, that evening
Morris' husband helped complete the forms, and the next
day Morris returned the completed forms to the recep-
tionist who told her she might have to have a physical
examination. Two or three weeks later, Morris and an-
other employee complained to Supervisor Purcell that
deductions were still not being made for their insurance.
Purcell promised to straighten out the matter, arid the
other employees thereafter received coverage but Morris
did not. Morris spoke to Purcell again after 2 weeks arid
on several occasions thereafter but she heard no more
about the matter and no premiums were deducted from
her paycheck.
Janet Ortez testified it is her practice upon hiring a
new employee to ask whether the employee wants insur-
ance coverage; if she wants the coverage, Ortez has the
employee fill out a card, providing asistance if needed,
and has the employee sign it. The signed card is placed
in the box where it remains for 60 days. At the end of
that period, the card is pulled and sent to payroll for de-
duction of premiums, with a copy retained in the person-
nel office and a copy to Lucille Woods who is responsi-
ble for payment of insurance claims. Ortez could not
recall whether Morris wanted insurance or not. Person-
nel Manager Baker testified there is no card on file for
Morris.
Woods explained that, if an employee who declined in-
surance at the time of hire later wishes to enroll, the
proper procedure is to obtain a longer form from person-
nel and fill it out. Personnel Manager Baker forwards a
signed form to Woods who sends it on to the carrier
which decides whether to issue a policy or require a
physical examination. Woods testified that no long form
signed by Morris has come to her; there is no record of
an application by Morris and Woods has no memory of
discussing Morris' case with anyone.
Supervisor Purcell testified that Morris asked him in
late 1977 why she never got an insurance policy. He re-
plied he did not know but would find out. Upon inquir-
ing of Baker, Purcell learned that Morris had never
signed up for a policy. Purcell relayed this information
to Morris who said she thought she had signed up. He
told her she would have to go to personnel and sign up
if she wanted a policy, and she said she would. Morris
told him sometime later she never did receive a policy.
lie asked her if she ever went to personnel and signed up
but she did not respond.
In this instance, I credit the Respondent's witinesses.
Thecy were individually impressi e on this subject, corn-
sistent, and mutually corroborative. Morris, by conitrast.
was not corroborated and it seemnis likely that she some-
how failed to take the steps prescribed for all employees
to obtain insurance coverage. Accordingly, I conclude
that a preponderance of the credible evidence fails to
support the allegation that the Respondent refused to
extend coverage for discriminatory reasons, and I reconim-
mend that it be dismissed.
Morris conceded that her attendance was poor, be-
cause, she said, of snow and her baby's illnesses. The Re-
spondent's records show she was absent 12 times and
tardy 8 times for a total of 61.50 hours missed in the 2
months, January and February 1978. On March 8, 1978,
Supervisor Purcell issued her a reprimand, and put her
on 30 days' probation.
The function of the prefinish department is to dip the
different kinds of doors in paint or stain; run them
through heaters and lacquerspray booths, and hang them
up to dry; sand them; and shrink wrap and stack them.
The doors are of different sizes from small up to almost
58 pounds.
Morris' testimony: Late in May she began to suspect
she was pregnant, so to avoid lifting the heavy doors she
twice requested a transfer of Purcell and Coleman, but
she was not transferred. During the last 2 weeks of June,
lifting and working on the heavy doors was painful, but
Purcell refused her requests for permission to go home,
change her assignment, or provide help in lifting the
doors. On June 29, Morris did not go to work. Two days
later she reached Personnel Manager Baker on the tele-
phone and asked for a leave of absence because she was
pregnant and her doctor advised her against working
right then. Baker told her it would be all right. She
asked whether she should call in every morning, and he
told her no. She has not called in since. Her baby was
born January 7, 1979, and at the time of the hearing, Jan-
uary 22, 1979, she was still under a doctor's care and had
not been released to return to work. As of that date,
Morris had never received any notice that she has been
terminated, and was under the impression she was still
on leave.
Purcell's testimony: Morris as a fairly good worker
and Purcell gave her a 24-cent increase 13 days after her
March I reprimand because her attendance improved.
Morris' attendance deteriorated again after that, howev-
er, and Purcell prepared another reprimand dated June 8.
1978, suspending Morris for I day because of it, but the
new reprimand was never delivered because Morris did
not return to work. Purcell claimed not to know why
her attendance was poor, and testified she never com-
plained about stomach cramps and never told him she
was pregnant. Morris' work assignments were not differ-
ent from those of other employees and Purcell never
asked her to do work not asked of the others. Morris bid
on several posted vacancies, and Purcell received several
calls from personnel or other departments into which she
hid, but when Purcell told them about Morris' poor at-
MAYWD()D, INC'
tendance record, nothing more came of her transfer re-
quest.
Purcell continued that Morris and did not conime to
work on June 8 or 9, and he called the personnel office
and was told she had called in absent on those dates. The
Respondent's records show she reported herself ill with
stomach cramps. Morris did not return and did not call
again, and as Purcell heard nothing more from or about
her, he assumed she had quit and he terminated her June
17, 1978. Although Morris never said she was quitting,
the plant rule assumes a quit after 3 days' absence with-
out calling in. In Morris' case, Purcell waited longer
before terminating her because he believes in "giving
them a chance to find out if they are going to have a
doctor's reason or not when she comes back."
Personnel Manager Baker testified it is the practice to
make out leave-of-absence forms on employees who call
in and obtain leave, have the forms approved by the
foreman or supervisor, and keep the completed forms in
a special box in the office safe until the employee re-
turns. Baker said that no leave is granted without his
knowledge; there is no such form on Morris, and Baker
has no independent recollection of her calling in. The
parties stipulated that the Respondent has no call-in slips
for Morris after June 9, 1978.
The record is clear that Purcell had knowledge of
Morris' union advocacy. Indeed, he referred to her, in a
conversation with Rena Roberts, as Roberts' "Union
friend." I have found above that Purcell coercively inter-
rogated Morris on several occasions, and that he en-
gaged in surveillance of her union activities, in violation
of Section 8(a)(1); and that he also violated the Act by
threatening members of the safety committee.
In my opinion, however, the other alleged violations
with respect to Morris were not made out. Thus, it is not
shown that Morris was assigned more onerous duties.
Indeed, her duties were not changed at all. Although I
am inclined to believe that she made Supervisor Purcell
aware that she was not well during her last 2 weeks of
work, contrary to his denials, I cannot find that he treat-
ed her any differently from the way he had treated her
in the past or from the way he treated other employees
under his supervision, or that rational business interests
would have dictated he do so absent Morris' union affili-
ation. Moreover, I accept his explanation, which seems
reasonable, that her failure to obtain a transfer was at-
tributable to her concededly poor attendance record. Fi-
nally, I cannot credit Morris' testimony that she obtained
an indefinite sick leave of absence on July 1 from Per-
sonnel Manager Baker, in view of the absence of any
record thereof and in view of documentary evidence that
she had already been terminated on June 17. Moreover,
without determining whether or not Morris intended to
quit, I find, in accord with Purcell's credited testimony
and the Respondent's business records, that during
Morris' last week, she worked Monday, Tuesday, and
Wednesday, June 5, 6, and 7; that she called in Thurs-
day, June 8 and 9, and reported she was absent because
of stomach cramps; that she did not return to work or
call in after that; and that Supervisor Purcell terminated
her on June 17 in accord with the plant rule providing
for termination after 3 consecutive days' absence itihout
reporting in.
The credible evidence therefore fails to establish that
Morris wsas assigned rorc onerous dutlies. or that she
was either constructively discharged or discharged for
discriminatory reasons, and I conclude that these allega-
tions must be dismissed
9. Employee Rena Roberts
The complaint alleges that from July 1 through Juls
25, 1978, Supervisor Salmon transferred Roberts to the
more onerous job of working a core table because of her
union activity, causing her to quit a week before the July
26, 1978, Board election.
Roberts was hired in late April 1978 at 3.25 an hour.
She signed a union card, solicited other employees to
sign during breaks, and passed out union literature. After
attending the representation hearing in June, at which
she did not testify, Roberts was given a warning by
Salmon for being late for work three or four imes; wv hen
she was tardy again, Roberts testified. Salmon sent her to
Foreman Coleman ho told her "he as tired of me
being late and he said he knew that I had signed a union
card." This was her last warning.
Roberts had first been assigned to a core table to learn
to build cores; when she got better at that, she was
moved to the glue machine where she worked with Pool
and Edens learning that operation, and new employees
were assigned to learn core building as was the custonm.
Two or three weeks before she quit, Salmon put Roberts
back on a core table to work all day while he assigned
new employees to the glue machine. W'henl Roberts com-
plained, Salmon explained his reason was "he needed my
quota up." Roberts testified as follows about this assign-
ment:
it was too hard to stay on and bend over the
table all day long, eight hours a day constantly be-
cause lie was always on your back, always staying
right there with you.
She quit, Roberts testified, because she "couldn't handle
it because it was too hard," working on a core table all
day long, 8 hours a day.
Although Salmon at first claimed ignorance of Rob-
erts' union advocacy, he subsequently admitted observ-
ing her distributing union leaflets. I find that he and
Foreman Coleman were well aware of Roberts' prounion
activities.
According to Salmon, Roberts was hired as a core-
maker (as were practically all flush door employees) but
she was "not very good." Salmon did not remember
making a decision to place Roberts on a core table all
day long, but he did remember she was \vorking at that
job all day during the period before she left The onil
reason he would make such an assignment, he said, was
to utilize his labor, putting "the best labor, at the best
place." In detailing his reasons for Roberts' assignmritl.
Salmon said:
Rena Roberts was slow, she was a new employee
She had no experience on the lay up. and if I had
1000 I)ECISIONS OF NATIONAL LABO3R RELATIONS BO()ARD
put her over there, she would have been slowing up
three more people. And hurt production more, than
if she stayed on the core table by herself.
Although Salmon said Donna Brinkley was assigned to
full time on a core table for a brief period, Foreman
Coleman said the only other employee he could recall
being required to build cores full time besides Roberts
was Debbie Hand. On Roberts' termination slip, Salmon
recommended against reemployment because she was
"lazy and bad attitude toward the company." Foreman
Coleman testified, and there is in evidence an employee
absentee form dated July 24, 1978, signed by "Debra," to
the effect that Roberts called in to quit because she was
moving out of town. Roberts, however, still lives in
Amarillo.
I have found above, in the discussion of Debbie
Hand's case, that full-time permanent duty on a core
table was an onerous assignment, and I find that it was
no less onerous for Roberts than it was for Hand. Rob-
erts complained to Salmon about the assignment and, as I
have found Roberts to be a generally credible witness, I
credit her testimony that the reason she quit her employ-
ment was that building cores full time was too hard for
her even though she may have telephoned in another
reason. Moreover, the evidence is in my opinion over-
whelming that Roberts was given the assignment because
of her known union advocacy in order to force her to
quit. Thus, the Respondent's hostility toward unionists
and toward Roberts in particular was demonstrated by
its imposition of more onerous smoking and restroom
conditions on all employees of the flush door department
in violation of Section 8(a)(l) and (3); its giving this same
assignment to Debbie Hand in retaliation against her for
engaging in union activities; and Supervisor Salmon and
Foreman Coleman's coercive interrogation of Roberts
about her union activities and the union activities of
other employees on her first day of employment. The
record also shows that Foreman Coleman connected a
threat to discharge Roberts for absenteeism with her
having signed a union card; that the onerous assignment
of full-time core table work was given to only two em-
ployees, Roberts and Debbie Hand who was ultimately
discharged for her union activities; and that Salmon gave
opposite reasons for the choice of these two for the
work, that Hand was the best core builder and that Rob-
erts was a poor core builder. In these circumstances, it
seems patent that Salmon's rating of Roberts' attitude as
bad, for which no other explanation is advanced, really
referred to her sympathy for the Union cause.
Accordingly, I conclude that the Respondent for dis-
criminatory reasons deliberately made Rena Roberts'
working conditions more onerous in expectation that she
would quit, thereby constructively discharging her on
July 24, in violation of Section 8(a)(3) and (1) of the
Act.22
2 J. P. Stevens & Co.. Inc. v, .NL.R.B.. supra; Drum Parts, Inc., 222
NLRB 511 (1976); Missourian Publishing Company. Inc., 216 NLRB 175,
179 (1975). There is no evidence that Roberts testified at the representa-
lion hearing. or that the Respondent's treatment of her was i any ay
connected with that proceeding I therefore recommend that the further
allegation that her discharge was a violation of Sec 8(a)( 4) be dismissed
10. Employee Joyce Edens
The complaint alleges that from about April 19
through July 26, 1978, Supervisors Vincent, Coleman,
and Salmon engaged in a continuous concerted program
of harassment and disparate enforcement of plant rules
against Edens because of her union activity, causing her
to quit on July 26, 1978.
Edens had been employed almost 2 years once before
and quit in June 1977. She returned to the Respondent's
employ in August 1977 as a coremaker in the flush door
department at $2.95 an hour. By July 1978, when she left
again, she was making $3.15 plus incentive pay of $70 to
$80 a week.
Edens signed a union authorization card shortly after
returning to the Respondent's employment, on August
17, 1977. Thereafter she, Florene Pool, Debbie Hand,
and Barbara Antel were most active on behalf of the
union cause, attending meetings, openly soliciting on
nonworktime, and distributing literature at the plant en-
trance. They signed up all the flush door department em-
ployees except Donna Brinkley who worked there for
about 2 months beginning in late April 1978. Foreman
Coleman and Supervisor Salmon were aware that all the
flush door department employees except Brinkley were
prounion. 23
Edens and Florene Pool attributed a campaign of sur-
veillance to Francene Vincent, foreman of quality con-
trol, based on Vincent's sitting reading a magazine at the
same table in the cafeteria where the union leaders sat in
December 1977, whereas she had previously sat with
other supervisors three tables away playing dominoes
during lunch break. Similarly, Vincent, who Edens had
never seen in the flush door department women's room
before, upon occasion followed the three union activists
in and just stood there. Pool added that Vincent in-
creased her visits to the department after the Union cam-
paign got underway, and that she also "follow[ed] Joyce
and Debbie and I all through the plant." Vincent ex-
plained that she sat at the same table as Edens, Pool, and
Hand on one occasion when the seating was reduced in
the cafeteria to provide space for storing large prizes ac-
quired for the employee Christmas party, and that the
domino game broke up when one or two of the supervi-
sor players stopped coming to the cafeteria for lunch
around the first of December. Vincent said she uses all
the women's rooms in the plant, and denied following
employees into the flush door department restroom. Vin-
cent also explained that she normally visits the flush
door department twice a week, spending 2-1/2 to 3
hours there, but in late November and early December
1977 she visited the department more often because it
was having a quality control problem with glue on the
door skins.
z3 The General Counsel contends that part of the Respondent's con-
tinuous concerted program of harassment against Edens included Salm-
on S assignment of additional duty keeping production records, and of
forbidding Edens alone, from talking while working on layup. However.
Edens testified that the additional duty ssas assigned at the time she re-
turned ad the proscription against talking was laid down in August The
evidence therefore fails to show that these incidents occurred after Edens
signed a union authorization card on August 17, 1977. or that they were
related to union activity of which the Respondent uas aware
MAYWOOD. INC. 1001
In March 1978, Supervisor Salmon announced that all
flush door employees would be required to work I hour
of overtime a day. The General Counsel contends that
this requirement, which remained in effect except for I
week in late April or early May until after the Board
election on July 26, 1978, was a form of harassment be-
cause it interfered with employee solicitation of union
support and was not necessary. In support of these con-
tentions, Edens and Pool pointed out that, before over-
time was instituted, the employees had a 1-hour lunch
break which gave the union advocates sufficient time to
contact employees on behalf of the union in the cafeteria
and on their way there and back; but as one-half of the
overtime was worked before the regular shift started and
one-half was worked during the lunch break, the lunch
break was reduced to 30 minutes and the union advo-
cates had no time for solicitation during lunch. Edens
said at one point that the employees preferred to work
the entire I hour of overtime before the start of the shift
but were not given that option. She also testified, how-
ever, as did Salmon, that overtime was worked in accord
with the consensus of employees.
Pool and Edens also testified that doors began to stack
up in the flush door area for the first time, and by April
1978 they were stacked in every conceivable space, even
though at times production dropped because of a short-
age of materials. Foreman Coleman and Supervisor
Salmon testified the department was put on overtime be-
cause there was a substantial increase in production to
meet customer demand; eventually doors began to stack
up because the departments responsible for subsequent
operations could not keep up; production was continued
in flush doors, however, for future subsequent processing
and, when materials ran short, some flush door employ-
ees were transferred temporarily to avoid a layoff. Per-
sonnel Director Hagan testified that the Company does
not like inventory to build up and he inquired almost
daily about the necessity for the volume of doors being
produced, was assured it was necessary, and eventually
all were sold and shipped out.
Edens also recounted as an incident of harassment an
occasion in April or May 1978 when she asked Salmon a
question about his announcement that all flush door em-
ployees would be crossed-trained to perform more than
one job, and he responded, "Don't ever, ever again ques-
tion my authority" in a manner that reduced her to tears.
Edens and Pool also told about a safety meeting of de-
partment employees in June 1978 when Salmon assigned
Edens to give a short talk on the cost of accidents at the
next meeting and gave her a book of reference on the
subject. Because of an inscription, "For Foremen and Su-
pervisors" on the front of the book, Edens returned it to
Salmon and told him she was a member of the Union in-
plant organizing committee and could not get involved
in supervisory duties (as she did not want to risk having
her ballot challenged in the forthcoming election).
Salmon then gave the assignment to Pool and she re-
fused for the same reason. Salmon told them the Compa-
ny did not recognize the in-plant committee and that
membership on it was not a valid reason for refusing the
assignment. Salmon testified that his only motive was to
get the employees more closely involved with safety.
Edens described an incident on July 18 or 19, when
Lewis Warren, an antiunion employee of the stile depart-
ment, drove a forklift delivering materials to the flush
door department at excessive speed in a dangerous
manner; Edens brought his conduct to Salmon's atten-
tion; Salmon merely told her to take her complaint to
James Palmer, the safety representative; inasmuch as
Palmer was on vacation, Warren himself presumably was
the safety representative.
Edens was an observer for the Union at the Board
election July 26, 1978. The Union lost and she quit the
next day because, she said, the surveillance and harass-
ment affected her physical and mental health. She went
on to say that it was terribly hot in the department
during the late spring and summer and the employees
"were forbidden to go to the restroom to get water to
drink except at designated times of the day." After the
Union lost the election, she continued, "I knew that
these conditions would not better themselves and that it
would only get worse, and I just didn't feel like I could
take . . . it any more, so I couldn't go back." Edens did
not otherwise elaborate on the heat and thirst from
which she said she suffered, but she did testify that she
never asked permission to visit the restroom between
breaks after that requirement was imposed and she knew
of no employees who did ask and were refused permis-
sion.
Florene Pool testified that, during the 2 or 3 months
before the election, she and Edens discussed the possibil-
ity of quitting if the Union should lose the election and
that they expected to do so. When Edens first applied
for unemployment compensation, she specified she was
available for union work at $5 an hour; she revoked this
limitation within a day or two, however, because she
was informed she would have to belong to a union to get
union work and she did not belong to a union.
With regard to surveillance, given as a factor in
Edens' decision to quit, I accept the explanation offered
by Foreman Vincent as to the reason she sat at the table
usually occupied by union activists, as well as her testi-
mony explaining her visits to the flush door department
and her custom of using the women's rooms in whatever
part of the plant she found herself. In these circum-
stances, I find, as I have found above in dismissing sur-
veillance allegations against other members of manage-
ment, that Vincent was not engaged in deliberate surveil-
lance of employees' union activity and that where, as in
this case, a union campaign was conducted openly in
areas on the Employer's premises in full view of manage-
ment, Vincent did not violate the Act by going wherever
her duties and needs directed her and observing what
was going on about her.2 4
With regard to other forms of alleged harassment men-
tioned by Edens, I find, as testified to by Supervisor
Salmon and substantially conceded by Edens, that the
overtime was worked in accord with the consensus of
the flush door department employees and was not re-
quired during the lunch break for the purpose of interfer-
ing with the union campaign. I accept the testimony of
24 Cherntronic , Inc 236 NlRB 178 (1978)
MAYWOOD. INC.
1 02 I)DECISIONS ()F NATIONAL LABOR RELA-IIONS 3()ARD
Salmon and Hagan regarding the need for overtime
work, to meet customer demands, and the reason doors
were stacked up at times was because departments re-
sponsible for subsequent operations on the doors fell
behind, and that all doors were eventually processed and
shipped, inasmuch as I do not believe it at all likely that
management would have compromised cost efficiency
for an entire department to such an extent in order to
eliminate one half hour solicitation time for three or four
of the most active union adherents. Nor does it seem that
Salmon's outburst at Edens' question in the spring, or his
attempt to involve her and Pool in the safety program,
can be attributed to a desire on his part to harass them
because of their union activity. There is no indication
that the book he offered for use in preparing the next
safety meeting did not contain material on the subject to
be covered, and the fact that it bore an inscription direct-
ed at supervisors and foremen does not establish that
Salmon's intent was to change the two employees' status
as members of the voting unit. Nor is there any indica-
tion that Salmon was aware of James Palmer's absence
on vacation when he suggested that Edens take her
safety complaint to Palmer as the safety representative,
or that Salmon had any questionable motive in making
the suggestion which would appear to be reasonable and
routine.
I have also considered the possible effect on Edens of
the limitations unlawfully imposed on all of the flush
door employees with respect to smoking and use of res-
trooms and the other unfair labor practices committed by
department supervisors as well as other members of man-
agement. These factors did not, however, cause many
other union advocates who were subjected to the same
conditions to quit, and I do not believe they can be said
to have made Edens' working conditions so intolerable
as to justify her quitting. Indeed, in the absence of any
merit in the reasons she detailed for her departure, as
dealt with above, and in view of the evidence that she
planned in advance to quit if the Union lost the election,
and her initial caveat thereafter that she would only work
in a union plant, I am compelled to conclude that the
dominant reason for Edens' leaving the Respondent's
employ was frustration because the Union lost the elec-
tion.
Accordingly, I conclude that a preponderance of the
credible evidence fails to establish that the Respondent
constructively discharged Joyce Edens, and I recom-
mend that this allegation be dismissed. 25
11. Employee Florene Pool
The complaint alleges that the Respondent on June 14,
1978, assigned more onerous duties to Pool by transfer-
ring her from the chopsaw to a core table, and on June
21, 1978, refused her request for vacation time, because
of her union activity and because she testified in the rep-
resentation hearing, causing her to quit, and thereby con-
structively discharging her.
25 McGraw-Edison Company (Bersted Manufacturing Division), 172
NLRB 1604, 1617 (1968); Montgomery Ward & Co., Incorporated (Ward's
Southtown Retail Store). supra at 1743
Pool was hired by the Respondent in 1966 at $1.75 an
hour; for 10 years she worked in the flush door depart-
ment under Pat Salmon's supervision. Pool was chopsaw
operator, but at one time or another she had performed
all jobs in the flush door department. After becoming an
active union supporter, she still spent 80 percent of her
time on the chopsaw. By the spring of 1978, Pool's
hourly wage was $3.85 and her weekly incentive bonus
averaged more than $100. Although the chopsaw oper-
ation was considered by some to be dangerous, Pool
considered it the easiest in the department, she made
good incentive pay, and she was not unhappy with the
job.
Pool signed a union authorization card on July 19,
1977, and became one of the most active union advocates
in the plant, attending meetings and openly soliciting in
the cafeteria, parking lot, and at employees' homes. Her
name was listed in the Union's April 24, 1978, letter as a
member of the in-plant organizing committee. There is
no question, and I find, that management was well aware
of her leadership role in the organizing campaign.
In detailing the grievances which led to her departure
from the Respondent's employ, Pool said, as did Edens,
that Supervisor Salmon's attitude changed from friendly
to unfriendly with the advent of the union campaign.
Moreover, Pool added, he ceased speaking to her so that
"I never knew what to do from one minute to the next
in the department," and that whichever job she went to
he would "jump all over me and have me do something
else and then that wouldn't suit him .... And if you
ask him a question . . . you couldn't understand what he
was talking about half the time." Pool also said Salmon
did not want anyone else to talk to her and recounted an
instance when James Palmer stopped to speak to her at
her work station and Salmon rushed up and said to him,
"You can't cohabit with Florene." On June 13, 1978,
Pool testified under a union subpena at the representation
hearing. The next working day after Pool testified,
Salmon assigned leadperson Tommy Blackwell to work
on the chopsaw, and transferred Pool to a core table.
From then on, Pool worked 2 hours a day building
cores, and the remainder of the day at the layup table,
and her incentive pay dropped. Salmon testified Pool
was his best employee on the chopsaw but at the time he
took her off and assigned her to build cores, and put
leadperson Blackwell on the saw, the department was
shorthanded and he needed a core builder and Pool was
a better core builder than Blackwell, and Blackwell
needed experience on the chopsaw.
On June 16, Salmon told Pool she would have to
figure her own reasonable expectancy (re). Pool told him
she "didn't feel like it was my job to do that" because
she did not know how, as a supervisor or leadperson had
always figured her RE. Salmon responded she had a
very negative attitude toward her work. Salmon testified
that at the time he requested Pool to record her own
RE, he made the same request of all incentive employ-
ees; that he considered it to be the employees' advantage
to keep their own records; that none refused; and that he
did not recall Pool's protest.
MAYW'OOD, INC IWI)
With respect to her vacation time request, Pool testi-
fied as follows: On July 12, Pool asked Salmon for per-
mission to take 3 days of vacation time so she could stay
home with her sick grandchild who lived with her.
Salmon refused, and told Pool if her grandson was sick
enough to be put in the hospital, she would have to take
time off without pay. Thereupon, Pool took her request
to President Maynard. Shortly thereafter Personnel Di-
rector Hagan contacted Pool and told her "nobody ever
had any trouble getting their vacation time at
Maywood" and he could not understand why she was
having trouble but he would investigate. Hagan subse-
quently informed Pool that if her grandson was "ill
enough on the morning that I absolutely had to take off
work," she would be granted I day's vacation time.
Afraid she would be fired if she took the next day off,
Pool arranged to send the child to kindergarten with his
medicine, and went to work. A week later, at her re-
quest, the Company paid Pool for a week's vacation time
which she had never taken.
Salmon testified that vacations are normally requested
in advance by submitting a form to him which he ap-
proves and passes along. At the time of Pool's request,
she had just returned the day before from 2 or 3 days'
vacation, and he told her she would have to take the
time without pay as he needed her for production.
Hagan testified that he and Maynard okayed the vaca-
tion time, and Hagan informed Pool that production was
heavy but she could have the time since it was an emer-
gency.
On July 26, 1978, the Union lost the election and Pool
did not return to work after that because, she testified,
the election results affected her deeply; she had suffered
during the union campaign, she said, both mentally and
physically:
And I felt like the Company had threatened me
with my incentive . . . .
I felt I could no longer work for a company that
I had worked for twelve and a half years at three
dollars and something an hour.
And I felt like if I went back to work at
Maywood that the pressure would increase. The
company would either get rid of me one way or an-
other . ... I had all I could take.
Pool also referred to remarks by fellow workers ques-
tioning her morals, and the "extremely bad" working
conditions. Under further questioning by the General
Counsel to describe the working conditions referred to,
Pool mentioned the pressure caused by being watched all
the time; not being able to please the supervisor no
matter what she did; and her work on the core table's
being harder on the back and shoulders than the chop-
saw which she was accustomed to. As stated above, Pool
testified she and Edens discussed the possibility of quit-
ting if the Union lost the election, and expected to do so.
Assessing the matters claimed as reasons for Pool's
quitting, I have found no merit in the allegations that the
Respondent engaged in surveillance of the union activi-
ties of Pool and her co-leaders of the union campaign.
Remarks which may have been made about her morals
by other employees were not, of course, attributable to
the Respondent. With regard to her feeling that she
could not please Supervisor Salmon in her work, inco-
herent statements and instructions were not conduct of a
kind usually found to stem from union animus, and seem
more likely to have stemmed from his declining health.
With respect to Salmon's order that Pool keep her
own production records, his testimony that the order ap-
plied to all incentive employees was not contradicted
and I agree with him that it would appear to be to the
employees' advantage. The accounts of the vacation pas
incident do not vary greatly, and I accept the explana-
tion offered by Salmon and Hagan that Pool had just re-
turned from 2 or 3 days' vacation, and that the heavy
production schedule made her presence at work impor-
tant-because it seems reasonable and is not denied by
Pool. Moreover, Pool did receive a day's vacation, and
was subsequently paid for all accumulated leave time. 2'
With the regard to the June 14 transfer of Pool from
her job on the chopsaw, I cannot accept Salmon's testi-
mony that it was in the interest of increasing production
to take the best chopsaw operator off and put a less ex-
perienced person on the chopsaw. Moreover. the reas-
signments came about the next working day after she tcs-
tified for the Union in the representation hearing. In
these circumstances, and in view of the hostility toward
the union adherents displayed by management. and
Salmon and Foreman Coleman in particular, I find that
the new assignment was more onerous to Pool because
she preferred the chopsaw and made more incentive pay
operating it; and that the reason for Pool's reassignment
was her known leadership in the union campaign and her
testimony on behalf of the Union at a Board proceeding.
I conclude that the assignment contravened Section
8(a)(3), (4), and (1) of the Act, as alleged in the com-
plaint.
It also seems probable that the change in job assign-
ments was a factor in Pool's decision to quit the Re-
spondent's employ, as she credibly testified. However, I
cannot agree that the record establishes this as a valid
reason for quitting. Thus, Debbie Hand and Rena Rob-
erts would have been glad to have the job to which Pool
was assigned when she was taken off the saw, theirs
being physically so much more difficult, and the evi-
dence fails to show that the reduction in Pool's incentive
pay was substantial. Indeed, in stating her reasons for
quitting, Pool was more concerned with a possible loss
of incentive pay in the future than with any loss she had
already sustained. In these circumstances, as the Re-
spondent's other unfair labor practices played no part in
her decision to quit, and as she planned 2 or 3 months in
advance to leave if the Union lost the election, I con-
clude that the dominant reason for Pool's departure was
her suspicion of the Respondent's intent and future
course of action with regard to her incentive pay and job
status in the face of the Union's election defeat, and not
because the Respondent made her working conditions in-
z I the circumstances I cnclude that the Repolndenl did not rfu'se
Pool's request for vacation time because he tcetified in the reprreentaloil
hearing or hecaue of her lnion ;lt Initle'. aiid I recorllmmin d Ihat Ihe all-
gatrin to hat effect he disrmied
MAYWOOD. INC 1003
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tolerable and unbearable. I conclude that a preponder-
ance of the credible evidence fails to establish that the
Respondent constructively discharged Florence Pool,
and I recommend that this allegation be dismissed. 27
12. Employee Barbara Antel
The complaint alleges that from May 3 through July
26, 1978, Supervisor Vincent assigned Antel more oner-
ous duties, those of inspecting two clamp operations
rather than the normal one, because of her union activi-
ties, causing Antel to quit July 26, 1978. 28
Antel was hired June 9, 1975. She worked as an in-
spector in quality control under the supervision of Fore-
man Vincent. Loretta Compton was leadperson. Antel
signed a union authorization card and became one of the
most active union advocates, soliciting cards, and hold-
ing union employee meetings at her home; her name was
listed as a member of the in-plant organizing committee
in the Union's April 24, 1978, letter to the Respondent,
and during the last week of the campaign she took part
in leaflet distributing at the plant entrance.
Antel testified that on May 19, 1978, she found a card
at her work station to the following effect:
Union
Your/ story has touched my heart
Never before have I met anyone with more troubles
than you have. Please accept this expression of my
sincere sympathy.
Now fuck off and quit bothering me.
Looking up, she saw Foremen Vincent and Oscar Fergu-
son about 10 feet away watching her; both smiled, and
Vincent waved at her and left the building. I credit this
testimony over Vincent's denial, as Vincent conceded
knowledge of Antel's union advocacy and her own en-
thusiastic anti union attitude, and in view of Vincent's
language toward Shane Hone found above.
Antel's duties consisted of inspecting interior shutters
and cafe doors weighing 3-1/2 to 6 pounds which had
been made by other employees on automatic clamps.
Production employees stacked the shutters and doors on
a table as they made them, and it was Antel's job to pull
them off the stack and measure them; check front, back,
and ends for defects; try to fix anything broken; and
carry those she could not fix to the repairman. Each
clamp produced about 400 doors a day, and there were 7
or 8 clamps located 5 to 6 feet apart, and normally 8 in-
spectors.
Sometime in May leadperson Compton assigned Antel
to inspect doors produced on two clamps instead of one.
27 McGraw-Edison (Berted Manufacturing Division). supra; Montgomery
Ward & Co.. Incorporated (Wardiv Soulhtown Retail Store). supra There is
no evidence that the Respondent assigned Edens or Florene Pool to more
onerous duties consisting of increased hours on a core table in November
1977.
28 The complaint also alleges that the Respondent violated Sec. 8(a)(3)
by refusing to honor an insurance claim of Antel's, However, the undis-
puted evidence shows that a delay in payment for hospitalization of
Antel's son was caused by a mixup over whether Antel's husband's carri-
er would pay, and Antel and Lucille Wood both testified that the prob-
lem has been resolved and Antel has no claims outstanding against the
Respondent. I therefore recommend that this allegation be dismissed.
Antel testified that she performed this work two or three
times a week from then until she quit on July 26. Antel
testified that the employees who made the doors "had
been on the clamps for years and were on the old indi-
vidual incentive plan . . . they put them out as fast as
they could. And it was hard enough to keep up with
one" let alone two, which was backbreaking and made
her tired at night. In her own opinion Antel was neither
the best nor the most senior inspector, two being senior
to her. Antel could recall no time in the past when an
inspector inspected two clamps.
Antel served as a union observer at the July 26 elec-
tion. Although she testified that, during the balloting,
company observer Janet Ortez "constantly elbowed"
her, and placed the eligibility lists on the table away
from Antel so she could not see them, I credit Ortez'
denial as my observation of Ortez convinced me it is
most unlikely that she would engage in such conduct.
The day after the election, July 27, Antel decided not
to return to Maywood because, she testified,
I had all of the harassment that I felt like I could
take from the company working the two jobs and
all of the treatment that I had received from Janet
at the [election] and I just couldn't take any more.
On cross-examination, Antel testified she did not plan
ahead to quit if the Union lost the election, but she con-
ceded:
As long as I have been at Maywood I have been
planning on quitting at one time or another, Christ-
mas, after Christmas but no, not if the Union did
not win . . . . I have two small children and I have
always wanted to stay home with them.
She added that she had heard everybody say at one time
or another that they planned to leave "after Christmas or
next week."
Vincent testifed she tries for one inspector for each
clamp, but if the department is shorthanded, she has to
assign an inspector to two clamps. This happens when
attendance falls off. If one or two are absent, she usually
can borrow from another department, but if more than
one or two are absent, she has to assign one of the better
inspectors capable of doubling up to two clamps. It was
for this reason that she assigned Antel to two clamps oc-
casionally, not always-Antel was a good worker with a
little bit more experience than the others. Other inspec-
tors, however, also worked two clamps on occasion
during the same period, Vincent said. Antel, she said,
was a good inspector, and, if she had not quit, Vincent
would expect her to still be working at Maywood; in
fact, Vincent said she could have used her at the time of
the hearing. On the termination slip, however, Vincent
recommended against reemployment on the ground that
Antel was undependable. 29
Assessing the reasons advanced by Antel for quitting,
I must discount the alleged conduct of Janet Ortez at the
29 No reliance is placed on the testimony of Mary Crawford as it is
not clear that her testimony about inspectors was based on the same job
as that performed by Antel
MAYWOOD, INC 1005
Board election which I have found did not happen. With
regard to her assignment of inspecting the production of
two clamps, Vincent's testimony that other employees
are also assigned to two clamps when the department is
shorthanded appears more probable, in view of the em-
ployment of a regular complement of only eight inspec-
tors for the work produced by seven or eight clamps,
than Antel's testimony that no one but her ever received
such an assignment. The difference then between her
duties and those of other inspection employees becomes
less distinct. That she never complained to supervision
lends weight to the probability that her work was not
significantly more onerous than the work of other in-
spectors, and the probability that it was not a telling
factor in Antel's decision to quit. Accordingly, in view
of Antel's description of the non permanent nature of her
commitment to her job at Maywood, her leadership role
in the union campaign, and the timing of her departure
at the same time as other union leaders Edens and Pool,
I conclude that Antel, like them, was motivated mainly
by frustration over the outcome of the election and that
despite the evident animus of Vincent she was not con-
structively discharged. I therefore recommend that this
allegation be dismissed.
13. Employee Bill DeHay
The complaint alleges that on or about August 4, 1978,
Pat Salmon reprimanded DeHay in writing because of
his union activities.
DeHay was hired in February 1978 and, upon informa-
tion that he had some welding training, was assigned to
the fabrication section, building boxes. He was not adept
at the work, however, and 3 months later was given the
alternative of being discharged or transferred to flush
doors. He chose the transfer.
DeHay's name was on the May 25, 1978, list of in-
plant organizing committee members, and he handed out
union leaflets after work, giving one to Supervisor
Salmon.
DeHay testified as follows to his experience in flush
doors: One day Salmon told DeHay to quit singing and
whistling on the job. DeHay asked why, and said:
. . . is this supposed to be a mortuary when you
come in there is mist on the walls; you punch a
clock and close your mouth and don't say nothing.
Salmon walked off without replying to that, upset. When
Salmon again remonstrated with DeHay for the same
thing, DeHay told him,
Pat, I just can't understand why you want us to be
quiet in here . . . I feel like we are supposed to be
zombies or something, just come to work . . . I
don't understand why we can't you know, enjoy
our work and be happy with it.
On August 4, 1978, DeHay was catching cores off the
glue machine after working some overtime and he was
bored so he had "been doing quite a bit of whistling and
singing and talking and carrying on"; Salmon asked him
to stop it, but "naturally [I] just kept doing it." Salmon
handed DeHay the following personnel memo:
Remarks: Bill's work performance is unsatisfac-
tory. He does not take his work seriously. He visits
too much and keeps the other employees from
doing their work. He does not work well alone. He
has had two verbal warnings (July 26, 1978 &
August 3, 1978). This is his third warning.
Action taken: If improvement is not made imme-
diately, Bill will be terminated.
Salmon informed DeHay his conduct was interfering
with his own work and the work of others around him.
DeHay responded he could not see "any importance in it
. . I think it's childish more or less."
Sometime after the reprimand, DeHay and Salmon got
into a heated argument during which Salmon told
DeHay he was "the sorriest damn worker, that I have
ever worked in my department." Coleman broke up the
argument and transferred DeHay to another department.
DeHay subsequently quit.
Supervisor Salmon testified he gave DeHay the repri-
mand because he was not a good worker.
Well, he would wander off. He thought it was all a
lark . . . I never could get it over to him, that he
was in that Department to work, instead of.. . just
playing around. He kept other people from work-
ing, too.
Foreman Coleman testified DeHay "wasn't a very good
employee." He was transferred from the machine shop to
flush doors because he could not do the work in the
shop, and he goofed off a lot in flush doors.
I cannot on this record find that DeHay was repri-
manded because of his union activities, as the General
Counsel contends. It is clear that, by May 25, the Re-
spondent was aware of DeHay's prounion stance. It is
also clear that the Respondent, and Salmon and Coleman
in particular, was hostile to unionization. It is not at all
clear, however, that these factors affected DeHay's em-
ployment status. Although the Respondent may have
condoned talking while working at layup before the
advent of the Union, as the General Counsel contends,
DeHay by his own testimony did more than that. Thus,
he admitted that he bluntly refused to be guided by the
two verbal warnings Salmon gave him for whistling,
singing, talking, "and carrying on," and I have no doubts
that the "carrying on" included visiting with other em-
ployees and keeping them from doing their work, as
stated in the reprimand (which DeHay also bluntly re-
jected). I find that DeHay shaded his testimony to his
own advantage, and that he was reprimanded for cause,
as the Respondent contends. Accordingly, I recommend
that this allegation be dismissed.
14. Employee Lydia Alvarez
The complaint alleges that the Respondent, for 3
weeks beginning on or about July 12, 1978, assigned Al-
varez to more onerous duties including operating a
sander, and on or about August 31, 1978, issued a written
reprimand to her because of her union activities.
Alvarez was hired December 8, 1977, and was as-
signed to the rework department under the supervision
M A Y W O O D. IN C I 5~~~~~~~~~~~~
I ()6 I):CISI)NS ()F NATIONAL LAI()R RLA I()NS H()ARI)
of Ron Jackson, where she was engaged in making
panels with a resaw and joiner, averaging $50 a month
incentive pay. She signed a union authorization card and
sometime in June 1978 she twice passed out leaflets on
Grant Street near the plant after work. The next day
Jackson transferred her to the sander without giving any
reason, where she worked for 2 weeks. There, she
smoothed boards by running them through a saw-mount
machine, an easier job than operating the resaw. Al-
though employees in Alvarez' unit are transferred to
other jobs from time to time, she was the only one trans-
ferred at that time. Jackson transferred Alvarez back to
her regular job after the election, where she still works.
Thereafter, Alvarez testified, Quality Control Foreman
Vincent complimented her work to Jackson, telling her,
"Keep up the good work. This saves Maywood money."
Two weeks after that, on August 31, 1978, Supervisor
Jackson gave her a personnel memorandum to the effect
that she had "a poor attitude toward improving her
work," and that she mixed some rejects she had made in
with good products in order to hide them. Jackson
added that if she did not improve, disciplinary action
would be taken. Alvarez told Jackson, in response to the
reprimand, "Well, I've always done this kind of work
and . . . I haven't changed at all," and reminded him of
the compliment Vincent had paid her.
Jackson was not called to testify.
The above evidence does not in my opinion justify
finding a violation as to Alvarez. Other than the timing
the day after she joined in the Union leafleting, the alle-
gation that assignment to the sander was unlawful has
little if anything going for it. Thus, transfers within the
department were admittedly common; the sander job
was easier than operating the resaw and there is no evi-
dence there was any difference in pay. It cannot there-
fore have been disparate or more onerous. Nor does the
record show that the reprimand was discriminatorily mo-
tivated-Alvarez claimed she was working the same
when she was reprimanded as she had when she was
complimented 2 weeks before, but the Respondent was
aware at the time of the compliment that she had distrib-
uted union leaflets. Moreover, Alvarez did not deny she
had engaged in the conduct specified in the reprimand,
and in view of the nature of it, it seems unlikely that su-
pervision was aware of that when she was complimented
or that it would have praised her work if such conduct
had been known.
Accordingly, I conclude that a preponderance of the
credible evidence fails to establish these allegations, and I
recommend that they be dismissed.
It. OBJEF.C'IrONS
Based on the findings and conclusions above of viola-
tions of Section 8(a)(l), (3), and (4) of the Act for coer-
cive interrogation, surveillance, soliciting an employee's
surveillance, barring employee access to the plant after
hours, inducing an employee to revoke her signature on
a union authorization card, telling an employee employ-
ees in her department were not for the Union and did
not sign authorization cards, reducing authority of a
leadman, imposing more onerous working conditions,
threatening discharge and loss of benefits, and discharg-
ing employees, as covered by Objections 3, 4, 5, and 7, I
recommend that these objections be sustained. Although
some of the objectionable conduct occurred before the
petition in Case 16-RC-7736 was filed, it adds meaning
and dimension to related post-petition conduct demon-
strating a continuing program designed to thwart the
unionization of its employees and therefore must be in-
cluded as bases for setting the election aside.3 0
The Petitioning Union also alleges, in Objection 1, that
the Employer interfered with the election by hiring new
employees and paying them wages higher than those of
prior starting employees for the purpose of affecting the
outcome of the election. In support of this objection,
Joyce Edens, Florene Pool, and James Palmer testified
that the Employer hired large numbers of new employ-
ees during the period May to July resulting in an in-
crease in the work force, and that the Company ran un-
usually large newspaper want ads which for the first
time listed company employee benefits, copies of which
are in evidence, during that period even though at times
some departments were shut down and some employees
did not seem busy, and doors were stacked in the flush
door department.
Personnel Director Hagan testified that the Employer
enjoyed a 22- to 25-percent increase in sales in 1978 over
1977, and because of its high rate of turnover, estimated
at 150 percent, and a low rate of unemployment in Ama-
rillo, estimated at only 2 to 3.2 percent, the Company
sought employees through large newspaper ads and tele-
vision advertising, added a second shift, and instituted
overtime work. Even so, he continued, selected depart-
ments occasionally overproduced and inventory built up
because sales forecasts were not always accurate, and co-
ordination of the mixture of production required for
shipment was not always good. Hagan added, and Pool
acknowledged, that employment levels have historically
built up during the spring into the summer and dropped
from then until December. I credit this testimony be-
cause it is substantially uncontroverted, appears to be
reasonable, and is supported by the record as a whole, as
I have credited above management's explanation for the
stackup of inventory in the flush door department.
With respect to starting wage rates, Pool testified to
one instance when a ripsaw operator job was posted at
$3.90 to $4.25 an hour at a time when an experienced
ripsaw operator named Travis Watson was making $3.40
an hour. Watson told Pool that he was raised to $3.70 an
hour only after he filed a complaint. Hagan explained
that the $3.90 to $4.20 rate range was posted because the
actual rate paid would depend on how well qualified the
chosen operator was. When Hagan was informed of
Watson's situation, he asked Foreman Coleman if he
planned to keep Watson in the job. Coleman said Watson
was still new but Coleman thought he could be made
into a ripsaw operator. Hagan told Coleman in that case
Watson was making only $3.40 and Coleman should start
moving him up. Coleman explained he had overlooked
the matter, and shortly thereafter increased Watson to
$3.90. 1 accept Hagan's explanation as it was substantial-
:"' Dre.ser Industries. Inc.. 242 NLRB 74 (1979)
MAYWO'()I). INC' I(X)7
ly uncontradicted and because it is logical in the circunm-
stances. I accordingly find no merit in Ob(ection 1. and
recommend that it he overruled.
Objection 2 alleges that the Respondent granted nu-
merous wage increases prior to the election. This objec-
tion goes to wage and benefit increases given in January
1978, a new incentive system announced in January and
put into effect in April 1978, and unexpected extra incen-
tive pay for employees of the rework department in June
1978.
With regard to the wage and benefit improvements in
January, Personnel Director Hagan credibly testified,
and it appears to be undenied, that management reviews
wages and benefits every year after Christmas and cus-
tomarily increases benefits and grants cost-of-living
wages in January. The record also shows that changes in
the incentive pay system had been under study by effi-
ciency experts for a period of time; that, in January,
management announced the incentive pay system would
be expanded and a new plan of monthly department
wide incentive pay would be substituted for the existing
individual weekly incentive program in April; and that
many old incentive employees objected to the new plan
and were allowed to remain under the individual pro-
gram. Regarding the extra incentive pay for rework de-
partment employees, Hagan explained that the incentive
department changed the method of calculating hours
worked in that unit and, in establishing a cutoff date for
conversion to the new method, they had to pick up an
extra week and give out an extra week's incentive pay.
Based on these facts, I find that the changes in wages
and benefits conformed with past practice and were mo-
tivated by business considerations and not designed to
defeat the Union in the Board election. I therefore rec-
ommend that Objection 2 be overruled.
Objection 6 alleges that the Employer's use of Janet
Ortez as an election observer improperly influenced the
employee vote because she is a supervisor and personnel
manager.
Ortez' title is "personnel interviewer"; she is hourly
paid and is responsible to Personnel Manager Jerry
Baker. Although there are no employees under her direc-
tion, the Employer concedes that she interviews and
hires production employees.
The record shows that Ortez receives requisition slips
from the plant supervisors to tell her which departments
have vacancies and to give brief descriptions of the work
to be performed. In selecting or rejecting applicants,
Ortez applies standards which were told to her orally by
Baker at the time she was trained for her job. Ortez
makes judgments as to whether applicants meet the
standards or not. If she decides they meet the standards,
she hires them and places them on the job. In 10 or 15
percent of the cases, Ortez decides to consult Baker as to
whether or not an applicant meets the standards. In addi-
tion to special physical requirements for certain jobs,
there are general standards which all appicants must
meet, such as physical condition (excludes the extremely
overweight); appearance (must be wearing shoes, fully
dressed, and clean); attitude (must want to work); and
stability (employment record). Ortez testified that the at-
titude standard is hard to define and that she makes a de-
termination with regard to this factor based on conversa-
tion with the applicant about his or her background. In
assessing stability, Ortez testified, she makes an "on the
spot" judgment on the basis of work record and all the
circumstances.
The authority to hire is the first criterion listed in Sec-
tion 2(11) of the Act which, if in tile exercise thereof in
the interest of an employer, an individual is required to
use independent judgment, designates the individual as a
supervisor. As the Employer's witnesses unanimously
testified that Ortez applied standards such as those set
forth above, I find no merit in the Employer's contention
that little judgment is applied by Ortez because, due to
its high turnover and the low unemployment rate, the
Employer hires just about anybody it can get. I find, on
the contrary, that Ortez regularly exercises independent
judgment in order to determine whether or not appli-
cants meet the Employer's standards, and in order to
decide whether to consult the personnel manager, to
reject applicants, or to hire applicants and place them in
jobs. She is therefore a supervisor within the meaning of
Section 2(11). 31 I further find that the use of Ortez, who
hired many of the unit employees who voted in the elec-
tion, as observer for the Employer presented the likeli-
hood that her presence at the polls might have unduly
influenced employees to cast a nonunion vote and there-
fore created a doubt as to whether the election reflected
the true wishes of the electorate.:'2 I recommend that
Objection 6 be sustained.
I1. REMHEI)Yr
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (4)
of the Act, I recommend that it be ordered to cease and
desist therefrom and from interfering in any like or relat-
ed manner with its employees' exercise of their rights
under Section 7 of the Act. In order to effectuate the
policies of the Act, I also recommend that the Respond-
ent be ordered to take certain affirmative action as set
forth in my recommended Order.
Having found that the Respondent discriminatorily dis-
charged Debbie Hand, Shane Hone, Christine Smart, and
Rena Roberts, I also recommend that it be ordered to
offer them immediate and full reinstatement to their
former jobs, without prejudice to their seniority or other
rights and privileges, and to make them whole for any
loss of earnings suffered by reason of the discrimination
against them, in accord with F W. Woolworth and Com-
pany, 90 NLRB 289 (1950). Having found that the Re-
spondent assigned more onerous duties to Florene Pool
because she testified at an NLRB proceeding, I recom-
mend that it be ordered to pay her the difference be-
tween the incentive pay she earned and the incentive pay
she would have earned had 80 percent of her time been
spent on the chopsaw during the period June 14 through
: .\ I. RB t lo r r-a dorl (Corporti. 525 2d 805 i811th (Cir
I1 75) Ih, ZIIr (orporallio. 115 N RB "h2 I i), 1 1 uIhlh Ihe per
, allttel lcr tle.cr hlad nit filn l alkihorlt Io hire. I* jtiql1lgtllhahle Ii Ill
facts a re tih olher ca, cr i Clled Ito i ltt retlilt i h the trnilplNocr
I: i il n . nllljn /tu, n (' ,p . S 1. R 1, 456 1:2 I 2 1 2 ( 8th
(iT 1l972)
MAYWOOD. INC 100
1008 DECISIONS O()F NATIONAL LABOR REI.A'IONS BOARD
July 26, 1978. Interest shall be paid on all backpay due as
provided in Florida Steel Corporation, 231 NLRB 651
(1977), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 3 3
The Respondent, Maywood, Inc., Amarillo, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees, reducing authority of lead-
men, or imposing more onerous working conditions on
employees to discourage membership in United Furniture
Workers of America, AFL-CIO, or any other union, or
because employees give testimony in an NLRB proceed-
ing.
(b) Threatening to discharge employees or deprive
them of benefits because they advocate the Union; bar-
ring prounion employees access to the plant after hours
except in accord with lawful rule; coercively interrogat-
ing employees; engaging in surveillance or soliciting em-
ployees to engage in surveillance of other employees'
union activity; telling employees that other employees in
their department are not for the Union and do not sign
union cards; or inducing employees to revoke their sig-
natures to union authorization cards.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the National Labor Relations
Act.
a3 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2. 'Fake the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Debbie Hand, Shane Hone, Christine Smart,
and Rena Roberts immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges; and make them and
Florene Pool whole in the manner set forth in the
Remedy section herein.
(b) Rescind its rules requiring employees of the flush
door department to obtain permission before using the
restrooms between breaks and to roll up the windows
when smoking in automobiles parked in plant lots.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, reports, and all records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its facility in Amarillo, Texas, copies of the
attached notice.3 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 16, after
being duly signed by an authorized representative, of the
Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found herein be dismissed; and
that the electon held in Case 16-RC-7736 be set aside
and a new election be conducted at such time as the Re-
gional Director deems appropriate.
a4 In the event this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "'osted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."