Mullican Lumber Co.

National Labor Relations Board - Board Decisions

Mar 25, 1993

310 N.L.R.B. 836 (N.L.R.B. 1993)

836
310 NLRB No. 140
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The parties have excepted to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
No exceptions have been filed to the judge’s finding that the Re-
spondent’s no-solicitation rule was unlawful or to his dismissing the
allegation that the Respondent created the impression of surveillance.
2 Unless otherwise indicated all dates are in 1991.
3 Uncontradicted testimony by Richards shows that Robards as-
sured him and Larue on numerous occasions that they would be
placed in other jobs rather than be laid off because of lack of elec-
trical work.
We do not view Operations Manager Steve Lafon’s statement to
Richards on August 26, to the effect that it would not make any
sense to have two people on the payroll at the higher electrician rate
if only one was doing the job, as a change from management’s ear-
lier-expressed policy of transferring any unneeded electrician to a
production job.
4 Thereafter, because of recurring machinery breakdowns, Robards
assigned Richards as a troubleshooter on the day shift and Larue to
machinery maintenance on the evening shift.
5 Larue testified that in addition to completing the unfinished por-
tion of the employee breakroom installation work, he was also re-
quired to install a ventilating fan that was added later to the
breakroom project.
Mullican Lumber Company and International
Brotherhood of Teamsters, Local Union No.
175, AFL–CIO. Case 11–CA–14718
March 25, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 16, 1992, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent and the General Counsel filed exceptions
and supporting briefs, and the Respondent filed a brief
in support of the judge’s decision concerning the dis-
charge of Patrick Garrett.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent unlawfully ter-
minated Thomas Richards on September 13, 1991,2 be-
cause he told some of the Respondent’s managers on
August 29 that he was a member of, and was going
to be represented by attorneys from, the Teamsters, the
Steelworkers, and the United Mine Workers, and that
if he had to sue in court to get the Respondent to re-
move a particular disciplinary warning from his record,
the Respondent managers would themselves be held
‘‘personally liable,’’ and also because Richards soon
thereafter, in early September, told some of these same
Respondent managers that he was going to be distrib-
uting union authorization cards.
In its defense, the Respondent asserts that its layoff
of Richards on September 13 was occasioned by the
completion of its final electrical installation project at
which time it no longer needed a second electrician, as
envisioned in a 1990 management decision to that ef-
fect. The Respondent states that this decision predated
the union organizing campaign and therefore was unre-
lated to any protected or union activity, and further,
that it selected Richards for layoff because of his lack
of seniority vis-a-vis Carl Larue, the other electrician.
We affirm the judge’s rejection of the Respondent’s
asserted defense, and instead rely on the judge’s fol-
lowing findings.
First the judge found that it was common knowledge
that the Respondent’s intention was to transfer rather
than lay off any unneeded electrician to a production
job when the rewiring and installation projects were
completed and only one electrician was needed in the
plant. Indeed, the record reveals that in 1987 then-
Plant Manager John Robards told that to Richards3 and
in 1988 Robards assigned Richards to work on a knot
saw during a hiatus in electrical installations.4 Further-
more, the judge credited Larue’s testimony that he was
assigned to the work of finishing the electrical installa-
tion in the employee breakroom following Richards’
termination on September 13.5 It is therefore clear that
when the Respondent told Richards on September 13
that his job was eliminated and he was laid off, the
final electrical installation project was not yet com-
pleted.
The judge further found that the Respondent, who
had never before laid anyone off, decided to lay Rich-
ards off only after he threatened on August 29 to hold
Respondent managers personally liable in a possible
lawsuit in which he would be represented by attorneys
from three unions, and that the Respondent effectuated
that layoff decision after Richards told Respondent
managers in early September that he would be distrib-
uting union authorization cards. We note in this con-
text that the Respondent did not give evening shift
electrician Larue any advance notice that he was going
to be the only electrician, and that he would thence-
forth be working the day shift in place of Richards. In-
deed, as the record reveals, it was not until the Mon-
day morning following the Friday termination of Rich-
ards that the Respondent tracked down Larue at his
home and told him to report immediately to work on
the day shift. We find that this circumstance dem-
onstrates the precipitate nature of Richards’ termi-
nation, and further supports the judge’s finding that the
real reason why the Respondent terminated Richards
was because of his recent announcement to the Re-
837MULLICAN LUMBER CO.
6 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1966); Wright Line, 251 NLRB 1083, 1088 fn. 12 (1980); see
Whitesville Mill Service Co., 307 NLRB 937 (1992).
7 Chairman Stephens would conform the judge’s violation finding
and corresponding conclusion of law to the judge’s factual findings
and analysis by finding that the Respondent’s initial decision on Au-
gust 29 and its accelerated implementation of that decision on Sep-
tember 13 constitute discrete violations of Sec. 8(a)(3) and (1).
Chairman Stephens finds that the layoff allegations of the complaint
encompass the decision on which the layoff/termination was based
and that both issues were fully litigated, and he further notes that
this additional finding would not warrant any modification of the
judge’s recommended Order and notice.
8 Because it is unclear whether Richards, absent his unlawful lay-
off, would have been retained as an electrician or transferred to a
production job at the conclusion of all electrical installation work,
we shall leave to the compliance stage of this proceeding the deter-
mination of the job to which Richards is entitled to reinstatement.
1 All dates herein refer to 1991 unless otherwise indicated.
spondent of his plans to engage in union and protected
concerted activity.
In sum, we find that the totality of the above cir-
cumstances belies the Respondent’s assertion that
Richards’ layoff was simply part of an orderly plan to
reduce the complement of electricians upon completion
of the plant rehabilitation project. Rather, we infer
from the pretextual nature of the reason for Richards’
termination advanced by the Respondent that it was
motivated by union animus and hostility towards Rich-
ards’ anticipated exercise of his Section 7 rights.6 We
therefore conclude, in agreement with the judge,7 that
the Respondent terminated Richards in violation of
Section 8(a)(1) and (3) of the Act.8
ORDER
The National Labor Relations Board orders that the
Respondent, Mullican Lumber Company, Ronceverte,
West Virginia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Jasper C. Brown, Jr., Esq., for the General Counsel.
Bruce A. Petesch, Esq. (Haynesworth, Baldwin, Johnson and
Greaves, P.A.), of Raleigh, North Carolina, for the Re-
spondent.
Russell Chandler, of Charleston, West Virginia, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Louisburg, West Virginia, on April 2, 1992. The
charge which gave rise to this proceeding was filed by Inter-
national Brotherhood of Teamsters, Local Union No. 175,
AFL–CIO (the Union) against Mullican Lumber Company
(Respondent) on November 1, 1991.1 The charge was later
amended on December 9 and 12. On December 13, a com-
plaint and notice of hearing issued which alleges, inter alia,
that Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by creating the impres-
sion among its employees that their union activities were
under surveillance; by promulgating a rule prohibiting solici-
tation on its property without authorization of Respondent;
and by discharging Patrick Garrett and laying off Thomas
Richards because of their activities on behalf of, or support
for, the Union.
In its answer to the complaint, as amended at the trial, Re-
spondent admitted certain allegations including the filing and
serving of the charges; its status as an employer within the
meaning of the Act; the status of the Union as a labor orga-
nization within the meaning of the Act; and the status of cer-
tain individuals as supervisors and agents of Respondent
within the meaning of the Act. Respondent denied having en-
gaged in any conduct which would constitute an unfair labor
practice within the meaning of the Act.
At the trial, all parties were represented and afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Following the close of the
trial, counsel for General Counsel and Respondent both filed
timely briefs with me which have been duly considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS
I. JURISDICTION
Mullican Lumber Company is, and has been at all times
material, a West Virginia corporation with a plant located at
Ronceverte, West Virginia, where it is engaged in the manu-
facture of hardwood flooring. In the course and conduct of
its business operations, Respondent annually sells and ships
from its West Virginia facility products valued in excess of
$50,000 directly to points located outside the State of West
Virginia. Respondent also annually purchases and receives at
its West Virginia facility goods and raw materials valued in
excess of $50,000 directly from points outside the State of
West Virginia.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
International Brotherhood of Teamsters, Local Union No.
175, AFL–CIO is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Initial Organizing Campaign and Changes in
Work Rules
Respondent operates a wood flooring plant at Ronceverte,
West Virginia, where it employs fewer than 100 production
and maintenance employees. Adjacent to the wood flooring
plant, Respondent also operates a sawmill, but this is oper-
ated as a separate entity and is not involved in these pro-
ceedings.
In early May 1991, Respondent’s employees began to or-
ganize among themselves to be represented by a union. Em-
ployee Patrick Garrett assumed a leading roll in making the
initial contact with the Union and thereafter arranging meet-
ings between employees and union representatives in May
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and June. Garrett was assisted by other employees, including
Thomas Richards. Respondent’s personnel director, John
DiLorenzo, acknowledged that Respondent became aware of
the union activity in the plant in the early part of May. Oper-
ations Manager Steven Lafon admitted that when he became
aware of the union campaign, he discussed the matter with
owner Bill Mullican. All of Respondent’s supervisors and
managers, however, deny any knowledge of the identity of
specific individuals involved in the union organizing cam-
paign.
Sometime between mid-May and early June, Respondent
held a meeting with employees where it acknowledged it
knew about the union activity and announced various new
work rules. In response to leading questions from counsel for
General Counsel, two employee witnesses placed the meeting
in ‘‘late May.’’ Operations manager Lafon placed the meet-
ing on June 4, during which, according to Lafon, he or Man-
ager of Human Resources Kaye Elmor read a statement re-
garding the Company’s position concerning the Union.
Elmor, however, placed the effective date of the new work
rules, and therefore the meeting, in mid-May. The date, how-
ever, is really not critical and does not affect anyone’s credi-
bility. Lafon acknowledged that after becoming aware of the
union campaign he discussed the matter with owner Bill
Mullican, and they jointly agreed that Respondent should
make a statement in response to the union activity. It was
then that the meeting was held, and it was at the same meet-
ing that new work rules were announced.
Regarding the Union, Lafon simply told employees that
Respondent knew the Teamsters were trying to organize the
plant, that Respondent did not feel employees needed any
outside representation, and that if employees had any ques-
tions about the Union, or the signing of union cards, Re-
spondent would be glad to answer those questions. Respond-
ent then used the rest of the meeting explaining and dis-
cussing new work rules with employees. Counsel for General
Counsel does not allege or contend that the announcement or
imposition of these new work rules violated the Act, with the
only exception being the specific no-solicitation rule which
counsel for General Counsel alleges is overly broad.
In all, Respondent announced 36 new work rules, includ-
ing a new no-smoking policy. Respondent had had a no-
smoking policy for years, but at this meeting Respondent re-
vised the penalty for smoking in nonsmoking areas from a
‘‘B’’ violation for which employees would receive a written
warning to an ‘‘A’’ violation which could result in imme-
diate discharge. During this meeting, Lafon and Elmor re-
viewed each of the revised work rules with employees.
Counsel for General Counsel argues that by Respondent
telling employees it was aware the Union was trying to orga-
nize, it created the impression their union activities were
under surveillance, and Respondent thereby violated Section
8(a)(1) of the Act. Counsel for General Counsel argues that
merely by acknowledging to employees the Union was trying
to organize employees, employees could ‘‘reasonably as-
sume’’ that Respondent had placed their activities under sur-
veillance. I find this argument so far-reaching as to be almost
ludicrous. It is difficult to conceive of how an employer
would begin a speech on the subject of a union campaign
without acknowledging to employees that it knows union ac-
tivity is ongoing. Simply by acknowledging to employees
that it knows union activities are ongoing, without more,
cannot be said to create the impression that those activities
are under surveillance. See Rood Industries, 278 NLRB 160,
164 (1986).
One of the revised work rules instituted by Respondent
prohibits ‘‘solicitation of any kind without the approval of an
authorized company representative.’’ Violation of this rule
subjects an employee to discipline up to and including dis-
charge. On its face, the rule prohibits solicitation in the plant
without qualification as to time or place. The Board has long
held that an employer cannot lawfully require that employees
secure permission prior to engaging in protected activities. A
rule which requires authorization prior to solicitation con-
cerning an organizing campaign in a nonwork area on non-
work time is presumptively unlawful. Meadows East Inc.,
275 NLRB 1322 (1985); St. Paul’s Church, 275 NLRB
1242, 1249 (1985). Respondent produced no evidence, ex-
trinsic or otherwise, to rebut the presumptive invalidity of its
overly broad no-solicitation rule. Accordingly, I find that
promulgation and maintenance of this rule violates Section
8(a)(1) of the Act.
B. June 13: Discharge of Patrick Garrett
Patrick Garrett worked for Respondent as a production em-
ployee for 4 years prior to his discharge on June 13. Garrett
worked in the nesting department on the first shift under the
supervision of Doug Sprouse. As mentioned earlier, Garrett
made the initial contact with Teamsters union representatives.
Thereafter, he solicited employees to support the Union and
made arrangements for meetings between union representa-
tives and employees. There is no clear evidence, however,
that Respondent was specifically aware of Garrett’s union ac-
tivities.
As evidence that Respondent must have been aware of
Garrett’s union activity, counsel for General Counsel points
to four separate incidents. On one occasion in late May, a
fellow employee repeatedly asked Garrett in a loud voice
about an upcoming union meeting while a supervisor was ap-
proximately 15 to 20 feet away. Although the supervisor tes-
tified before me, he was not asked about and therefore did
not deny having overheard the conversation. On another oc-
casion in late May, Garrett was talking with a group of em-
ployees, including Tom Richards, while Plant Manager
Bobby Kennedy and a supervisor walked by within 10 feet
of the group. Neither the supervisor nor Kennedy, however,
said anything to the group of employees to suggest they
overheard the conversation. On yet another occasion, Garrett
and two other employees were discussing the Union when
they observed Plant Manager Kennedy within 2 or 3 feet of
the group. Again, Kennedy said nothing to suggest he was
aware of the conversation. Concerning a fourth incident, Gar-
rett testified that on one occasion in early June in the em-
ployee breakroom, he reached in his billfold for money and
a union authorization card inadvertently fell onto the floor
between him and Supervisor Doug Sprouse. Garrett reached
down, picked up the card, and put it back in his billfold.
Garrett was not able to say with any certainty that Sprouse
saw the authorization card. Sprouse apparently said nothing
to suggest that he had seen the card. Based on these four in-
cidents, and the fact that Respondent employees fewer than
100 production and maintenance employees, counsel for
General Counsel seeks to employ the ‘‘small plant doctrine’’
to conclude that Respondent must have been aware of Gar-
839MULLICAN LUMBER CO.
rett’s union activities. While I think it is likely that at least
some supervisor or supervisors were aware of Garrett’s union
sentiments and union activities, I am persuaded, for reasons
described more fully below, that Garrett’s discharge was not
the result of those union activities and that Garrett would
have been discharged on June 13 whether or not he had been
engaged in union activity.
During the morning on June 13, the flooring plant’s dust
collection system broke down, resulting in a cloud of dust
particles throughout the plant. Maintenance Foreman Leon
Spencer, Operations Manager Lafon, and Plant Manager
Bobby Kennedy all worked on repairing the collectors. Re-
pairing the system took several hours. At one point during
the repairs, employee Patrick Garrett gathered with 8 to 10
other employees near the back door to the plant trying to
avoid the dust that had accumulated throughout the plant.
Garrett admits that during this discussion with other employ-
ees, he lit and smoked a cigarette.
Garrett testified that during the conversation, he jumped
down from the dock area so that he was then technically out-
side the plant, and smoked a cigarette. According to Garrett,
he then climbed back up onto the dock area, engaged in
more conversation with fellow employees, then jumped back
down onto the ground adjacent to the dock, and lit another
cigarette. Garrett admits that before completing the second
cigarette, he climbed back up onto the edge of the dock and
sat there with his feet hanging over the edge. According to
Garrett, as he smoked the second cigarette, Supervisor Leon
Spencer approached him from behind and told him to get
outside with the cigarette. Garrett responded that he was out-
side, but he then jumped down from the dock to the ground
where he completed the cigarette. According to Garrett, on
completing the second cigarette, he returned to work.
Garrett admits there had been a no-smoking policy at Re-
spondent’s plant for years. Nevertheless, Garrett testified that
he did not see a no-smoking sign posted in the dock area on
or before June 13. Other employees also testified that they
did not recall seeing a no-smoking sign in the dock area, al-
though they were aware of a no-smoking policy. One em-
ployee, Robert Bragg, actually testified that Respondent put
up the no-smoking sign in the dock area 2 months after Gar-
rett’s discharge, but I do not credit this claim.
Supervisor Leon Spencer testified that as he was helping
to repair the dust collectors, he needed a crescent wrench.
Spencer walked through the plant to the shop, got the
wrench, and headed back toward the collectors by way of the
shipping area. Spencer testified that as he was walking back
he came upon Garrett, still 15 or 20 feet inside the plant,
with a lighted cigarette in his mouth. According to Spencer,
he told Garrett that he knew better than to smoke in the
plant, Garrett responded by immediately moving to the dock
area where he sat down with his feet inside the door to the
dock. On cross-examination, Spencer stated that Garrett sat
down on the dock with his feet hanging outside the dock.
Spencer stated that he continued on through the plant be-
cause he was in a hurry. When he got back to the area where
the dust collectors were being worked on, Spencer told Plant
Manager Kennedy what had just taken place.
Plant Manager Kennedy told Operations Manager Lafon
about the incident. Lafon, Kennedy, and Spencer later re-
viewed what had happened, and informed Personnel Manager
DiLorenzo. Together they decided that some action should be
taken against Garrett, and that Garrett should be terminated.
Together, they telephoned the manager of human resources,
Elmor, at Respondent’s headquarters. As Operations Manager
Lafon testified:
We talked about [it] and felt that there really was noth-
ing we could do other than terminate him. We had al-
ready had a couple of meetings involving the smoking
policy. We felt like if we didn’t [do] something in this
case then there was no way we were ever going to have
a smoking policy. If you had let this one go with a
warning or anything else, you would not have had a
smoking policy, because it could not have been a more
hazardous condition and it could not have been more
obvious. . . . So we then called Kaye, who was in the
Merryville office, talked to her and told her the cir-
cumstances around it. She agreed that we didn’t have
any choice but to terminate.
Later in the afternoon of June 13, Garrett was summoned
to a meeting with Kennedy, DiLorenzo, Sprouse, and Spen-
cer. Kennedy stated that Spencer had observed Garrett walk-
ing around in the plant with a lit cigarette. Kennedy asked
Garrett if that was true, and Garrett denied it was true. Spen-
cer then said that Garrett knew it was true, but again Garrett
denied the accusation. Kennedy read a statement made by
Spencer and asked Garrett to sign it, but Garrett refused to
do so. Kennedy told Garrett that he was being discharged.
There is considerable discrepancy between the testimony
of Garrett and that of Maintenance Foreman Spencer about
where Garrett was while he was smoking. Garrett claims he
was no further inside the plant than sitting on the shipping
dock with his feet dangling outside. Spencer claims he first
met Garrett 15 or 20 feet inside the plant. The evidence here
strongly suggests that as is often the case, the truth lies
somewhere in between. Employee George McMahan, called
as a witness by counsel for General Counsel, testified that
he observed Garrett smoking in the dock area standing just
outside the dock door on the ground. Employee Robert
Bragg, also called as a witness by counsel for General Coun-
sel, testified that he observed Garrett sitting on the loading
dock with his feet dangling outside while smoking the ciga-
rette. Employee Marvin Miller, however, called as a witness
by Respondent, testified just as credibly that he saw Garrett
standing in the doorway of the plant smoking the cigarette.
While I do not credit Spencer that Garrett was 20 feet, or
even 15 feet inside the plant, I find even by Garrett’s own
admission that he was in the plant, whether sitting or stand-
ing in or near the doorway, smoking the lighted cigarette on
September 13 while the dust collection system in the plant
was broken down. I also find that the entire plant, including
the shipping area, both inside and outside the doorway, is a
posted no-smoking area. Every employee witness called ad-
mitted being aware of a no-smoking policy. Respondent sub-
mitted a photograph of the dock area where Garrett was
smoking. While certain of the employee witnesses called by
counsel for General Counsel complained that the photograph
does not properly depict the shipping area on June 13, I
credit Spencer that the photograph was taken on the same
day as Garrett’s discharge. The presence of barrels contain-
ing chemicals is not the significant feature of the photograph.
Rather, the photograph clearly shows a no-smoking sign
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posted in this area. I have every reason to believe, and no
reason to doubt, that all employees understood the no-smok-
ing policy to extend to every area of the plant, including the
shipping area. Even Garrett’s testimony suggests an aware-
ness of this, since he was so careful to place himself either
on the ground just outside the door or barely inside the plant
sitting on the loading dock.
Counsel for General Counsel also introduced some evi-
dence from which he argues that disparate treatment was ac-
corded Garrett over other employees. Careful analysis of the
evidence, however, suggests consistency rather than disparity,
particularly when one takes into account the different cir-
cumstances involved. Employee Jerry Quick testified that in
the past he has smoked cigarettes in Respondent’s plant as
often as 30 times per week and that he was observed by su-
pervisors on at least 10 occasions. That part of his testimony
I found extremely exaggerated. Elsewhere, Quick testified
that he had been caught smoking in the plant by supervisors
between 5 and 10 times and had not been disciplined or dis-
charged. Even that part of his testimony I found somewhat
exaggerated. Quick testified that Foreman Spencer had even
admonished him about smoking in the plant during 1991 and
had told Quick to put out the cigarette before Plant Manager
Kennedy caught him. I credit Quick to the limited extent that
I find he has smoked on occasion in the plant in the past
and that on occasion he was even caught by supervisors
doing so. While not reprimanded or discharged, Quick was
admonished and told to immediately put out the cigarette. All
of this occurred before the no-smoking ban was elevated
from a category ‘‘B’’ violation to a category ‘‘A’’ violation,
calling for more severe punishment, up to and including dis-
charge for the first violation.
At the same time that Respondent was announcing the
stiffened penalty for smoking, Quick returned to work from
an extended absence. Shortly after his return, and shortly be-
fore Garrett’s discharge, Quick was caught smoking outside
the plant in the ‘‘ramp area’’ also covered by the smoking
ban. When Supervisor Doug Sprouse caught Quick, he gave
Quick a written warning. When Human Resources Manager
Elmor learned that Quick had only been issued a warning,
Sprouse himself was reprimanded for not enforcing the rule.
At Elmor’s direction, Sprouse met with Quick the following
day and explained that the situation had been mishandled.
Sprouse stated however that because it was he who made the
mistake, Respondent was going to let it stand as a written
warning. At the same time, Sprouse told Quick that if he was
ever again caught smoking in a prohibited area, he would be
terminated.
Rather than evidencing disparate treatment, the situation
involving Quick reflects a certain consistency by Respondent.
Quick’s situation clearly shows that Respondent placed a
new emphasis on enforcing its smoking ban during May and
June 1991, apparently for reasons unrelated to the Union.
Shortly after upgrading its smoking ban from a category
‘‘B’’ violation to a category ‘‘A’’ violation calling for a pen-
alty up to and including discharge. Employee Quick was
caught smoking. When Quick’s supervisor issued him a rep-
rimand rather than terminating him, Quick’s supervisor was
himself reprimanded, and Quick was told that he would be
discharged the next time he was caught smoking. Shortly
thereafter, Garrett was caught smoking. Unlike Quick, who
was clearly outside the plant, Garrett was caught sitting just
inside the plant at or near the door in the loading dock. Even
more significant, however, is the fact that Garrett was caught
smoking at the very moment that the entire plant was shut
down due to a breakdown in the dust collection system
which resulted in a cloud of dust particles throughout the
plant. The danger of this situation simply cannot be ignored,
and was obviously considered by Respondent in making the
decision to discharge Garrett. As Lafon testified, ‘‘if you had
let this one go with a warning or anything else, you would
not have had a smoking policy, because it could not have
been a more hazardous condition and it could not have been
more obvious.’’ I conclude that Garrett’s discharge resulted
solely from the fact that he was caught smoking in a prohib-
ited area on a day when Respondent was suffering from a
breakdown of its dust collection system which resulted in ex-
tremely dangerous conditions. I find that Garrett’s discharge
was unrelated to his activities on behalf of, or support for,
the Union, and I shall dismiss that allegation from the com-
plaint.
C. September 13: Layoff/Termination of
Thomas Richards
Thomas Richards worked as an electrician in and about
Respondent’s flooring plant from 1987 until September 13,
1991. Beginning in May, Richards and several other employ-
ees became active in the union campaign along with Garrett.
While Garrett was the most active employee until his termi-
nation on June 13, Richards also carried union authorization
cards with him at work and solicited various employees to
sign cards on behalf of the Union. There is some evidence
that Respondent was aware of Richards’ union sentiments
prior to September 1991. After Garrett was discharged in
June, Garrett filed for unemployment compensation. A hear-
ing was held to determine Garrett’s eligibility for unemploy-
ment compensation, and Richards testified at the unemploy-
ment compensation hearing on Garrett’s behalf. Also in late
June 1991, Richards had a brief conversation with Respond-
ent’s owner Bill Mullican relating to Garrett. According to
Richards’ uncontradicted testimony, which I credit, on June
27, Richards observed a truckdriver who was smoking near
the loading dock in the plant. From the context of Richards’
comment it is apparent that this truckdriver was not em-
ployed by Respondent. Richards told Mullican, who was
standing nearby, that Mullican did not believe in giving a
man a fair shake. Richards continued by telling Mullican,
‘‘You’re letting that man do exactly what you let one of our
workers go for.’’ Mullican replied that he would ‘‘take care
of it.’’
On August 26, an incident occurred which neither party
spends much time discussing in their posttrial brief, but
which I believe was instrumental in the decision to terminate
Richards. On that day there was a breakdown in the con-
veyer belt used in Respondent’s production system. Richards
was working elsewhere in the plant. Consequently, Super-
visor Leon Spencer and maintenance man Randy Kisemore
took it upon themselves to repair the conveyer system. In
doing so, one of them accidently dropped a steel cover onto
electrical wires, which pierced and therefore shorted the
wires. When Spencer thought he was done repairing the con-
veyer system, and turned on the system, the electrical circuit
breaker immediately tripped or released due to the short in
the wires. Only then did Spencer seek out Richards’ help.
841MULLICAN LUMBER CO.
Richards spent approximately 15 minutes reviewing and ana-
lyzing the work which had been done by Spencer before it
was discovered that the circuit breaker had tripped due to the
shorted wires. Later that same day, Richards was called into
a meeting with Spencer, Lafon, and DiLorenzo where he was
given a written warning for taking 15 minutes to trouble-
shoot this tripped circuit breaker. Richards protested receiv-
ing this warning. On the following day, Richards again pro-
tested receiving the written warning to Spencer. When his
protest fell on deaf ears, Richards protested further to Human
Resources Manager Elmor, as described below.
During the meeting on August 26, Richards objected in
part to receiving this written warning by stating that he had
never been hired as a troubleshooter. Richards stated that he
had been hired initially to help with installation of wiring,
and that he then expected to be transferred to a production
job at the same rate of pay. Lafon asked Richards if he was
saying that if Respondent transferred him to a production job
and assigned someone else to the electrician job with trouble-
shooting responsibilities that Richards should continue to re-
ceive the higher electrician wage rate. Richards told Lafon
that was his understanding. Lafon told Richards it would not
make any sense to have two people on the payroll at the
higher rate if only one was doing the job.
After receiving the written warning on August 26, on Au-
gust 29 Richards met with Elmor, Spencer, Lafon, and
DiLorenzo. I rely on Respondent’s own exhibit concerning
what took place at this meeting. Richards began the meeting
by telling Respondent that he was a member of the Team-
sters Union, Steelworkers Union, and United Mine Workers
of America. Richards then stated that their lawyers were
going to represent Richards. Richards asked that the written
warning be removed from his record. It is not clear which
of the supervisors present spoke on behalf of Respondent,
but whoever it was told Richards it was okay if he was a
member of those unions, but that the unions did not represent
Respondent’s employees. Respondent also told Richards they
would not remove the discipline from his record. Richards
stated that it was important the discipline be removed be-
cause it might prevent him from getting another job due to
a bad reference. Richards was assured that no prospective
employer would be told about the warning, but that it was
not going to be removed. Richards then stated that he did not
hold anything against Respondent but that he was holding
Spencer, Lafon, and DiLorenzo ‘‘personally liable,’’ pointing
at each of them individually. Richards then made the state-
ment that if it came down to taking it to court, the three
would be held personally liable. Richards again insisted that
the written warning be removed from his record. Finally,
Elmor stated that the discipline would not be removed, but
that it would not be given out in a reference, and there was
no need to discuss the matter further. The meeting then
ended.
In early September, soon after the meeting with Elmor on
August 29, Richards asked for a meeting with Lafon and
Spencer. Richards asked fellow employee Carl Larue to at-
tend the meeting as a witness. The meeting was brief. Rich-
ards simply informed Lafon and Spencer, ‘‘I am going to be
passing out union cards.’’ Lafon told Richards that he had
the right to do this, but asked Richards if he was aware that
Respondent believed employees did not need outside rep-
resentation. Richards said he was aware of Respondent’s po-
sition. The meeting ended.
On September 13, Richards was called into a brief meeting
with LaFon, DiLorenzo, and Spencer. Spencer told Richards
that his job was being eliminated and that Richards was
being laid off. Richards did not reply, and simply walked out
of the meeting.
Respondent argues that Richards’ layoff was precipitated
by a reduction of work and that Richards was chosen for the
layoff because he was the less senior of two electricians. Re-
spondent admits that it had never before laid anyone off and
that the decision to lay off Richards was not made until late
August or early September 1991. These two facts are very
significant. Nevertheless, Respondent argues that a layoff had
long been anticipated, that the need for two electricians was
recognized by everyone as only temporary, and that by the
beginning of September electrical work had been completed
so that a layoff was appropriate at that time. Respondent’s
position is partially supported by the record. Richards was
hired in 1987 at a time when Respondent was undertaking
extensive wiring projects, including installation of new wir-
ing, installation of new machines, and rewiring of existing
facilities. Richards is a licensed master electrician. Prior to
coming to work for Respondent, Richards was employed in
the coal mining industry as an electrician for 32 years. Rich-
ards was first assigned to install new machines in the floor-
ing plant. Carl Larue, who already worked for Respondent
before Richards was hired, was assigned to assist Richards.
Together Richards and Larue removed numerous pieces of
existing equipment and installed new equipment. Larue was
not and is not a licensed electrician, and there is no doubt
that he learned much from Richards.
The records supports a conclusion that it was common
knowledge, known too by Richards and Larue, that when the
rewiring and installation projects were completed, Respond-
ent would need only one electrician in the plant. It is equally
clear, however, that Richards believed, and had been led to
believe by Respondent, that when only one electrician was
needed, the other would be transferred to a production job.
Further, the records supports a conclusion that wiring of the
employee breakroom was generally considered to be the last
project to require two employees. There is conflicting testi-
mony about whether wiring of the breakroom was completed
when Richards was laid off. I believe the record supports a
conclusion that the vast majority of wiring had been com-
pleted, but that not all of the electrical work on the
breakroom was complete when Richards was laid off. Em-
ployee Larue, who continued as the sole electrician after
Richards was let go, testified that he completed the work on
the breakroom after Richards left.
The record as a whole paints a very clear picture about
Richards’ layoff/termination. Richards was hired in 1987 at
a time when Respondent looked forward to extensive and so-
phisticated replacement and installation of wiring. Richards
was a licensed master electrician who not only performed
this rewiring and installation well, but who taught fellow em-
ployee Larue all or most of the skills necessary for work at
Respondent’s facility on a day-to-day basis. Richards became
active in the union campaign. On August 26, Richards re-
ceived a written reprimand. Whether that reprimand was jus-
tified or not, Richards vigorously protested receiving the
written reprimand, first to local plant officials and then on
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In making this finding, I obviously reject the Wright Line argu-
ment that Richards would have been laid off/terminated regardless
of his union activity. This is the entire essence of Respondent’s posi-
tion here. As I have found, the evidence supports a conclusion that
if it were not for Richards’ union activity, he would have been re-
tained and not laid off/terminated. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982).
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
August 29 in a meeting with Director of Human Resources
Kaye Elmor. In the August 29 meeting, Richards informed
Elmor and other supervisors that he was a member of the
Teamsters, Steelworkers, and Mine Workers Unions and that
their lawyers were going to represent Richards. When Rich-
ards was told that it was okay that he was a member of these
unions but that they did not represent Respondent’s employ-
ees, Richards stated he did not hold anything against the
Company but that he was holding LaFon, Spencer, and
DiLorenzo ‘‘personally liable.’’ Richards added that if it
came down to taking it to court, these three people would
be ‘‘held liable.’’ As Elmor admitted, it was late August or
early September that Respondent decided to lay off Richards.
The conclusion is inescapable that when Richards threatened
to sue LaFon, Spencer, and DiLorenzo, they along with
Elmor hastily decided to terminate Richards. Richards’ notice
to Respondent in early September that he was soliciting other
employees on behalf of the Union was simply confirmation
or affirmation of his seriousness about the Union. Since elec-
trical installation work was essentially completed, Respond-
ent decided it would be easy to lay off Richards then and
not transfer him to another position, and this is exactly what
it did.
There can be no question that Richards’ comments on Au-
gust 29 were protected activity. In the plant, in a meeting
with supervisors over a work-related reprimand which had
been issued to him, Richards repeatedly threatened with the
help of three unions to bring suit personally against his su-
pervisor, the personnel manager, and the operations manager.
Almost immediately thereafter these same people decided to
lay off Richards although no employee had ever been laid off
before. A few days later Richards affirmed his involvement
with the Union by formally notifying Respondent that he was
soliciting other employes’ signatures on authorization cards.
I wholly agree with Respondent that by then the die had
been cast, but I find that it had been cast by his threat to
sue and hold supervisors ‘‘personally liable,’’ not by Re-
spondent’s diminution of electrical work. Richards’ formal
notification to Respondent that he was soliciting other em-
ployees’ signatures on authorization cards appears to have
merely accelerated the decision which had already been
made. Even before work on the employee breakroom was
complete, Respondent acted as swiftly as possible to ‘‘lay
off,’’ i.e., terminate Richards. I find that Richards’ termi-
nation was precipitated by his protected union activity, and
Respondent thereby violated Section 8(a)(1) and (3) of the
Act.2
CONCLUSIONS OF LAW
1. Respondent Mullican Lumber Company is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Local Union
No. 175, AFL–CIO is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent did not create an impression among its em-
ployees that their union activities were under surveillance,
and that allegation shall be dismissed.
4. Respondent promulgated and published a no-solicitation
rule prohibiting solicitation of any kind without the approval
of Respondent, and Respondent thereby violated Section
8(a)(1) of the Act.
5. Respondent discharged Patrick Garrett because Garrett
violated its no-smoking policy in a particularly dangerous sit-
uation and not because of Garrett’s union activities or senti-
ments, and that allegation in the complaint is therefore dis-
missed.
6. Respondent laid off/terminated Thomas Richards be-
cause of Richards’ activities on behalf of, or support for, the
Union, and Respondent thereby violated Section 8(a)(1) and
(3) of the Act.
7. The unfair labor practices which Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Mullican Lumber Company, Ronceverte,
West Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promulgating and publishing a rule which prohibits
employees from engaging in any kind of solicitation without
prior approval of Respondent’s representative.
(b) Discharging employees because of their activities on
behalf of, or support for, International Brotherhood of Team-
sters, Local Union No. 175, AFL–CIO or any other labor or-
ganization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw, remove, and expunge from its work rules
the rule which prohibits employees from engaging in any
843MULLICAN LUMBER CO.
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6624.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
kind of solicitation without prior approval of Respondent’s
representative.
(b) Offer immediate and full reinstatement to Thomas
Richards to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges.
(c) Make whole Thomas Richards for any loss of earnings
or other benefits he might have suffered by reason of the dis-
crimination against him by paying him a sum of money
equal to the amount he normally would have earned from the
date of the discrimination to the date of Respondent’s offer
of reinstatement, less net interim earnings, with backpay to
be computed in the manner proscribed in F. W. Woolworth,
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).4
(d) Expunge from its files any reference to the discharge
of Thomas Richards and notify him in writing that this has
been done, and evidence of the unlawful action against will
not be used as a basis for future personnel actions against
him.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its Ronceverte, West Virginia facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promulgate or enforce a rule which pro-
hibits employees from engaging in any kind of solicitation
without prior approval of Company representative.
WE WILL NOT discharge employees because of their activi-
ties on behalf of, or support for International Brotherhood of
Teamsters, Local Union No. 175, AFL–CIO or any other
labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL withdraw, remove, and expunge from our work
rules the rule which prohibits employees from engaging in
any kind of solicitation without prior approval of our rep-
resentative.
WE WILL offer immediate and full reinstatement to Thom-
as Richards to his former position, or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges.
WE WILL make whole Thomas Richards for any loss of
earnings or other benefits he might have suffered by reason
of the discrimination against him by paying him a sum of
money equal to the amount he normally would have earned
from the date of the discrimination to the date of our offer
of reinstatement, less net interim earnings, with appropriate
interest.
WE WILL expunge from our files any reference to the dis-
charge of Thomas Richards and notify him in writing that
this has been done, and evidence of the unlawful action
against him will not be used as a basis for future personnel
actions against him.
MULLICAN LUMBER COMPANY