P. B. and S. Chemical Co.

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 1 (N.L.R.B. 1976)

P B AND S CHEMICAL CO
P. B. and S. Chemical Company and International
Chemical Workers Union , AFL-CIO . Case 6-CA-
7894
May 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On August 13, 1975, Administrative Law Judge
John M Dyer issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief to which Respondent
filed an answering brief
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, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
We agree with the Administrative Law Judge that
by announcing that employees would not be granted
pay raises until the union matter was cleared up Re-
spondent violated Section 8(a)(1) of the Act
While we also agree that the evidence herein is
insufficient to establish that the discharges of em-
ployees Rick and Jack Brookover and Raymond
Starkey violated Section 8(a)(3) of the Act, we dis-
agree with his conclusion that the discharges did not
violate Section 8(a)(1)
Before these employees were discharged on No-
vember 5, 1974,1 the Brookovers had taken an active
part in two incidents wherein they left the plant in
protest, once over the rescission of their break peri-
od, and later over what they considered unfair treat-
ment concerning a prior termination of Raymond
Starkey The Administrative Law Judge appears to
find that the first incident was not protected concert-
ed activity and the second was neither protected nor
a central cause in the discharges We note with re-
spect to the latter finding that if the employees' walk-
out over Starkey's prior termination was protected
concerted activity and constituted any part of the
motivation in their discharges such discharge violates
Section 8(a)(1) of the Act
All dates hereafter are in 1974 unless otherwise indicated
I
A Protected Activity
The first incident involving a walkout began with a
request by the Brookovers 2 to take their morning
break an hour early They were given permission by
their foreman inasmuch as they had started work
early that day, but they were cautioned that they
would not be entitled to a second break at the usual
time When Plant Manager Harpley saw the men not
working, he questioned them about what they were
doing, even though the foreman had just explained
what had occurred and that he had given them per-
mission Two of the brothers went immediately back
to work upon being questioned, but Rick remained
sitting and got into an argument with Harpley, after
which Rick got his brother Steve to leave the plant
with him According to Harpley's credited testimony,
when he told them they could not have two breaks
they said they were going to quit The next day they
returned to work and were immediately put to work
by Harpley
The second incident occurred in October Starkey
had been cleaning the floor in the warehouse using a
scraper with a handle when Harpley told him to re-
move the handle and use the scraper on his hands
and knees Starkey refused and Harpley told him
that if he did not do the job he was no longer an
employee Starkey then went into the plant, told the
Brookovers and others what had happened, and was
taken home by Harpley
The employees decided to strike over the incident
and Jack Brookover announced their decision to the
foreman After the lunchbreak they refused to return
to work When Harpley returned, he spoke first to
Jack Brookover and then the other employees and
agreed to take Starkey back
In both of these incidents the employees walked
out in protest over their complaints These employees
obviously did not intend to abandon their jobs and
in fact all returned to work Under such circum-
stances, we do not pass on the reasonableness of
their decision to engage in concerted activity
N L R B v Washington Aluminum Company, Inc,
370 U S 9, 16 (1962) We therefore find that the
walkout constituted protected concerted activity
which, if shown to be a cause in the discharges here,
requires a finding that Respondent's action violated
Section 8(a)(1) of the Act
B The Discharges
On November 1, Harpley phoned Respondent's
district manager, Arlene Dunn, telling her that he
2 A third brother Steve Brookover, was employed briefly by Respondent
but was not alleged to be a discrimmatee
224 NLRB No 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was resigning because he could not control the em-
ployees and that it was affecting his health A few
days later Dunn came to the plant to investigate the
situation The following day she met with Harpley at
a restaurant to discuss what should be done Harpley
testified that Dunn raised various questions about
occurrences at the plant over the previous months,
including the walkouts, and that he agreed with her
that these employees should be discharged because
of their actions in leaving the plant Although Harp-
ley agreed to effect the discharges, when he did not
return to the plant Dunn terminated the men herself
Before actually making the discharges, Dunn pre-
pared a memo listing seven "reasons for dismissal"
which did not specifically refer to the walkouts The
list did refer, however, to "taking unauthorized
breaks, or taking longer time than permitted " The
record shows that the reference must be to the inci-
dent which precipitated the first walkout, as it was
the only one that involved a break
Dunn directed that all the employees, except the
Brookovers and Starkey, be assembled in the ware-
house She informed the three men that they were
terminated and then met with the others in the ware-
house, explained the action she had taken, and enter-
tained questions concerning matters of general inter-
est to the employees
Later that day she had a statement prepared listing
seven incidents involving the discharged employees,
including protected activities She read the statement
to a group of employees at the afternoon break, ask-
ing them to sign it, verifying its accuracy
On the basis of the above undisputed facts, we find
that Respondent's action in discharging Rick and
Jack Brookover and Raymond Starkey on November
5 was motivated, at least in part, by their protected
concerted activity, and therefore violated Section
8(a)(1) of the Act
In reaching our conclusion, we find, contrary to
the Administrative Law Judge, that Respondent's de-
fense fails to overcome the evidence of illegal moti-
vation set out above Thus, while Respondent makes
much of the fact that each of the three discriminatees
was involved in numerous incidents of horseplay at
the plant, it is undisputed that all of Respondent's
employees engaged in such activity, which had a long
history at the plant, predating the employment of
these three employees In addition, the fact that no
other employees were discharged or even disciplined
for similar acts of horseplay, and the further fact that
the incidents listed as causes for the discharges were
not considered sufficiently serious to warrant dis-
charge at the time they occurred render them sus-
pect
Finally we note that Respondent's disavowal of
the walkouts as a basis for the discharges is inconsis-
tent with other evidence which was not discredited
by the Administrative Law Judge and that these inci-
dents did contribute to the decision In this regard,
several employees testified, and Dunn did not deny,
that when she read the statement, which included the
walkouts, at the afternoon break to the employees,
she said that these were the reasons for the dis-
charges 3 Dunn also admitted that she had not made
a final decision to discharge these men until she
spoke with Harpley on the morning of November 5,
and that she took his recommendation into account
in making her decision Harpley's testimony was that
he did not view any of the activity cited by Dunn as
sufficient to warrant discharge, except the walkouts
C Dunn's Interrogations
We also disagree with the Administrative Law
Judge's finding that Dunn's interrogation of each of
the employees did not violate Section 8(a)(1) of the
Act These admitted interrogations occurred shortly
after the discharges and were occasioned by a report
to Dunn from an employee that he felt that he had
been coerced by the discharged employees into sign-
ing a union authorization card After receiving this
information, she questioned each employee individu-
ally as to whether, where, when, and why they had
signed union cards
The Administrative Law Judge notes Dunn's testi-
mony that she explained to each employee why she
was asking the questions and that the appropriate
assurances of no reprisals were given He then con-
cludes that although her manner in asking the ques-
tions may not have been "the most legalistic " her
motivation was not improper and the questioning did
not have an inherently coercive effect on the employ-
ees We disagree
In reaching this conclusion, we first note that the
basic premise in situations involving the questioning
of employees by their employer about union activi-
ties is that such questions are inherently coercive by
their very nature We have, however, held that in cer-
tain circumstances employers may have a legitimate
purpose for making a particular inquiry of employees
which may involve, to some limited extent, union
conduct See, e g, Johnnie's Poultry Co and John
Bishop Poultry Co, Successor, 146 NLRB 770 (1964),
enforcement denied 344 F 2d 617 (C A 8, 1965)
3 Even were we to find that protected concerted activity was not a signifi-
cant factor motivating the discharges, the announcement to the remaining
employees that it was would violate Sec 8(a)(1) in any event The impact of
an announcement that employees have been discharged for activity protect-
ed by Sec 7 of the Act, even if untrue, interferes with, restrains , and coerces
employees in their exercise of those rights
P B AND S CHEMICAL CO 3
We find it unnecessary, in the circumstances of
this case, to decide whether the evidence before the
Administrative Law Judge was sufficient to justify
his finding that Respondent was warranted in its al-
leged belief that employees may have been coerced
into signing union cards by threats and whether this
belief justified its questioning of the employees We
reach this conclusion based on the undisputed evi-
dence that Dunn went far beyond any permissible
scope of inquiry in asking her questions, even assum-
ing the validity of the Administrative Law Judge's
preliminary findings Retired Persons Pharmacy, t/a
NRTA-AARP Pharmacy, 210 NLRB 443 (1974) If
Respondent was concerned about whether its em-
ployees had been threatened by union adherents, the
only arguably legitimate inquiry would have been
whether they had, in fact, been threatened We find
that Respondent had no legitimate purpose for ask-
ing its employees, where, when, and why they may
have signed union cards Indeed, it is immaterial to
the existence of the alleged threats to know whether
the employee actually did sign a card
In light of the above, we find Respondent's actions
in interrogating its employees concerning their union
activities violative of Section 8(a)(1) of the Act
REMEDY
Having found that the Respondent discriminatori-
ly discharged Rick Brookover, Jack Brookover, and
Raymond Starkey, on November 5, 1974, and has
since failed and refused to reinstate them, because of
their protected concerted activities, in violation of
Section 8(a)(1) of the Act, we shall order the Respon-
dent to offer them immediate and full reinstatement
to their former positions or, if those positions no lon-
ger exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and to make them whole for any loss of
pay they may have suffered as a result of this deter-
mination against them by payment to them of a sum
of money equal to that which they would have
earned as wages, from the date of discharge to the
date of reinstatement, less their net earnings during
such period, in accordance with the formula pre-
scribed in F W Woolworth Company, 90 NLRB 289
(1950), together with interest at the rate of 6 percent
per annum to be added to such backpay, such inter-
est to be computed in accordance with the formula
prescribed in Isis Plumbing & Heating Co, 138
NLRB 716 (1962) Having further found that the Re-
spondent has interrogated employees concerning
their union activities, in violation of Section 8(a)(1)
of the Act, we shall order that it cease and desist
therefrom and post the appropriate notices
In view of Respondent's multiple violations of the
Act, including unlawful discharges, we find that a
broad order is warranted and we shall so provide
ADDITIONAL CONCLUSIONS OF LAW
We make the following Conclusions of Law in ad-
dition to those made by the Administrative Law
Judge
"4 By discharging Rick Brookover, Jack Brook-
over, and Raymond Starkey on November 5, 1974,
because of their protected concerted activities, Re-
spondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(1) of the Act
"5 By interrogating its employees concerning
their union activities, Respondent has violated Sec-
tion 8(a)(1) of the Act "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, P B
and S Chemical Company, Proctor, West Virginia,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Telling its employees they will not be granted
pay increases until the union matter is cleared up
(b) Discharging employees because of their con-
certed activity
(c) Interrogating employees concerning their
union activity
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Rescind its announcement that pay raises will
not be granted to employees until the union matter is
cleared up
(b) Offer to reinstate Rick Brookover, Jack Brook-
over, and Raymond Starkey to their former positions
or, if these positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges
(c) Make whole Rick Brookover, Jack Brookover,
and Raymond Starkey for any loss of earnings they
may have suffered by reason of the unlawful action
taken against them in the manner set forth in the
section of this Decision entitled "Remedy "
(d) Preserve and, upon 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
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay due under the terms of this Order
(e) Post at its Proctor, West Virginia, plant and
warehouse copies of the attached notice marked
"Appendix " 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 6, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material
(f) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with
4In the event that 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties participated
and offered evidence, the National Labor Relations
Board found that we violated the law and ordered us
to post this notice
WE WILL cancel our announcement that em-
ployees will not be given pay raises until the
union matter is cleared up
WE WILL offer to Rick Brookover, Jack Brook-
over, and Raymond Starkey immediate and full
reinstatement to their former positions or, if
suchjobs no longer exist, to substantially equiv-
alent positions, without prejudice to their senior-
ity, or other rights and privileges previously en-
joyed by them, and WE WILL pay them for any
loss of pay they may have suffered as a result of
their being discharged on November 5, 1974
WE WILL NOT tell our employees they will not
receive pay increases until the union matter is
cleared up
WE WILL NOT discharge our employees be-
cause of their concerted activity
WE WILL NOT interrogate employees concern-
ing their union activities
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
International Chemical Workers Union, AFL-
CIO, to bargain collectively with representatives
of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities
All our employees are free to become or remain
union members
P B AND S CHEMICAL COMPANY
DECISION
STATEMENT OF THE CASE
JOHN M DYER, Administrative Law Judge The Interna-
tional Chemical Workers Union, AFL-CIO, herein called
the Union or Charging Party, filed an original charge on
November 18, 1974,1 alleging violations of Section 8(a)(1)
and (3) and filed an amended charge on December 18,
against P B & S Chemical Company, herein called the
Company or Respondent
On January 27, 1975, the Regional Director of Region 6
of the National Labor Relations Board issued a complaint
which alleged that Respondent had violated Section 8(a)(1)
and (3) of the Act by discharging employees Raymond
Starkey, Jack Brookover, and Rick Brookover on Novem-
ber 5, and violated Section 8(a)(1) by interrogating employ-
ees concerning union membership, warning them that eco-
nomic benefits would be withheld if they supported the
union, and by threatening employees that Respondent
would close its plant if the employees supported a union
Respondent's timely answer admitted the requisite ser-
vice and commerce allegations and that it had discharged
the three employees and refused to reinstate them but de-
nied that it violated the Act At the hearing in this matter
held on March 17 and 18, 1975, at Wheeling, West Virgin-
ia, Respondent admitted the supervisory status of Arlene
Dunn as its district manager but denied that Foreman Ed-
mond Ankrom was a supervisor within the meaning of the
Act
General Counsel pursued alternative theories that the
discharges were caused because of the union activities of
the employees or because of their concerted activities
There are some conflicts in the testimony of the witnesses
concerning whether certain remarks were made but most
of the testimony is uncontradicted The situation presented
in this case is rather unusual and in assessing the facts I
have concluded that the complaint must be dismissed in
regard to the discharge allegations and all but one of the
8(a)(1) allegations
General Counsel and Respondent have filed briefs
which have been carefully considered At the hearing, all
parties had full opportunity to appear, to examine and
cross-examine witnesses, and to argue orally On the entire
record in this case including my evaluation of the reliabili-
1 Unless specifically stated otherwise all dates herein occurred in 1974
P. B. AND S. CHEMICAL CO. 5
ty of the witnesses based on all the evidence received, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Kentucky corporation with its principal
office and place of business in Henderson, Kentucky, and
it maintains other facilities and locations including the fa-
cility at Proctor, West Virginia, which is the facility in-
volved in this proceeding. Respondent is engaged at its
Proctor plant in filling cylinders with chlorine gas and dis-
tributing them and packaging and distributing various
chemicals. From its Proctor plant and warehouse during
the past year, Respondent sold and shipped to points di-
rectly outside the State of West Virginia products valued in
excess of $50,000 and during the same period received di-
rectly from points outside the State of West Virginia goods
and materials valued in excess of $50,000.
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Ralph Harpley was the plant manager of the Proctor
plant from the time he came there in 1970 until he left in
November 1974. This plant was a part of one division of
Respondent and was under a district manager named Ut-
berg until he left the Company in May 1974. Utberg's of-
fice was at the Opalco Laboratories located in McKees-
port, Pennsylvania, which facility is the biggest customer of
the Proctor plant for its chlorine gas. Arlene Dunn was the
assistant district manager and she had responsibilities in
arranging for shipments of ton-cylinders of gas to the
Opalco plant from Proctor and for scheduling the truck
transportation. She testified that there were a number of
occasions when there was an evident lack of communica-
tion between her and Harpley as to what had to be done to
maintain the schedules and she said that Harpley would
not get shipments out on time or fail to have overtime work
performed in order to meet the shipping schedules.
When Arlene Dunn became the district manager on
June 11, 1974, after Utberg resigned, she telephoned Harp-
ley and asked him to come to McKeesport, Pennsylvania,
to meet with her because they had had a lack of good
communication and she wanted to start out on the right
foot. She testified that she gave him a choice of 3 days to
come up during the week of June 16, and he said that he
would come up on one of those days. However, he failed to
come up on any of the days, giving what she considered
were poor excuses. She sent a letter to him stating that she
expected him to be in her office on Tuesday, June 25, or
she would consider that he wanted to be terminated. Harp-
ley reported and they discussed the situation and she told
him she wanted to be kept informed of each and every
problem that he had at the plant. Harpley agreed to keep
her apprised of all problems including sales problems, cus-
tomer problems, or personnel problems and thereafter they
were in almost daily contact by telephone.
She visited the Proctor plant in August for a day and
inspected the plant. She testified and Harpley confirmed
that, from June until November 1, Harpley never informed
her of any personnel problems except on one occasion and
indicated to her that he had all the problems well in hand.
The Proctor plant had approximately 10 employees en-
gaged in production work in addition to Denny Swords, a
salesman, and a secretary named Susie. Whenever Harpley
was absent from the plant, Swords would take over for
him. Edmond Ankrom has had the title of foreman for the
past 4-1/2 years of the 9 years he has been with the Com-
pany. Both Harpley and Ankrom assigned work to the em-
ployees depending on what needed to be done at a particu-
lar time. Ankrom had no disciplinary authority whatsoever
and was unable to hire or fire or effectively recommend
such. His direction of the employees was strictly of a rou-
tine nature and he did not exercise any true independent
judgment in his duties as a foreman. He was a working
foreman and I do not find that he was a supervisor within
the meaning of the Act. Harpley reserved all true supervi-
sory authority to himself during the time that he was the
plant manager. Respondent gave the designation of lead-
man to Joe Ebert who was a longtime employee but had no
supervisory functions of any type.
Ralph Harpley was a personal friend of the Brookover
family for more than 10 years. During the summer of 1974,
on separate occasions he hired three brothers, Stephen,
Rick, and Jack Brookover. Stephen Brookover was em-
ployed from May until August 1974, when he left. Rick
Brookover was hired towards the end of March and Jack
was hired in May. Raymond Starkey was hired in early
August, although he testified that he thought he had start-
ed work earlier than that.
The normal work hours at tl:e Proctor plant were from 8
a.m. to 4:30 p.m. Cleanup was supposed to start at 4:15
p.m. and since some of the cleanup involved using water
hoses to wash out parts of the plant, there were occasions
through the years when some employees were sprayed with
water hoses. The employees admitted that there had always
been a small amount of horseplay in the plant which con-
sisted usually of occasional hose sprayings, throwing valve
packing or plastic washers, and on one occasion greasing
the handlebars of two motorcycles. There was also an old
abandoned house on the premises and there were occa-
sions through the years when employees would throw rocks
or endcaps at birds roosting on the house or possibly at the
house windows. The house has since been torn down.
In addition to their cleanup time the employees had a
15-minute break in the morning at 10 a.m. and a 10-minute
break around 2 p.m., in addition to their regular lunch
period. The plant did not have a lunchroom. According to
the Brookovers the plant did not have heaters which one of
the Brookovers asserted were needed during the summer
because the plant was occasionally wet and damp in the
morning.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Events Up to November 5
All the employees , including all General Counsel wit-
nesses except the dischargees themselves , agreed that
horseplay increased dramatically after the employment of
Jack Brookover and ceased with the discharge of the
Brookovers and Starkey on November 5. There was testi-
mony that , in addition to regular plastic washers being
thrown , both lead washers and metal endcaps, which screw
on to the chlorine cylinders , were thrown in the plant.
Most of the witnesses agreed that the Brookovers and Ray-
mond Starkey were the instigators of these activities and
even the Brookovers agreed that on occasion they started
such activities in the plant.
Employee Joe Ebert testified that he was struck in the
back by a lead washer which came from the vicinity where
Jack Brookover was working and he left his work station
and started to go to the office to protest about being hit.
On his way Jack Brookover shook his fist at him and Ebert
decided not to complain to the office about it . There were
several incidents of employees being sprayed with paint
while the Brookovers were employed and one of the inci-
dents involved one brother spraying the other . There was
some attempt to show that prior to the Brookover's em-
ployment there were occasions when paint was sprayed on
persons' gloves or shoes while they were spray-painting the
chlorine cylinders but such would be incidental to the work
itself and not a deliberate attempt at horseplay.
Ed Ankrom testified that he spoke to the three discharg-
ees on several occasions about their misconduct in the
plant , and they might improve for a short period of time
but then they were right back into it as much , if not more
than ever. Among other things he told the three not to
throw things and stated that on one occasion grease was
applied to the restroom doorhandles and to office doors.
Ankrom said that the office secretary had a few words with
Jack Brookover over this and he later talked to Jack about
it. He testified he asked Brookover whether he had done it
and Brookover denied doing it. Brookover testified that
Ankrom said that whoever was doing it should quit and
when he denied doing it, Ankrom again stated that who-
ever was doing the greasing should quit . At that point
Brookover asked Ankrom to step outside. Ankrom testified
that after the first question he told Brookover to speed up,
that the next man on the production line was waiting for
him, and at that point Brookover asked him to step outside
and he told Brookover he would not fight with him. Brook-
over said something about going to O.S.H.A . and getting
the plant closed down. Ankrom reported this incident to
Denny Swords, the plant sales manager , since Harpley was
on vacation . When he returned , Harpley called Jack
Brookover into the office and said he would not tolerate
any behavior like that and if necessary they would put
Brookover under a peace bond. Harpley testified that
Brookover did not deny any of the accusations made
against him. During the hearing Brookover stated he did
not mean the invitation to step outside the way it sounded
but there is no other rational interpretation of such an invi-
tation . Harpley did not advise Arlene Dunn of this episode.
On one occasion a ton-cylinder rolled off the concrete
ramp behind the plant out into soft ground . Rick Brook-
over got on the tow-motor and drove to the edge of the
concrete , attempted to pick up the ton-cylinder with the
forks, and according to Starkey a piece of the concrete
broke off and the tow -motor went further out into the yard
and sunk in the mud . They tried to pull the tow -motor out
with a car belonging to one of the men but were unable to
do so and had to use a truck . By that time Foreman An-
krom was out there and assisted in getting the tow-motor
out of the mud. He told them to leave the cylinder in the
mud and they would wait until the ground firmed up and
get it later. Despite this admonition , after putting down
some boards Starkey drove the tow-motor out to pick up
the ton -cylinder and got it part way back when the boards
slipped and the tow-motor sank in the mud again. They
had to get the truck again and pull it back out. Ankrom
testified that he thought the second time it was done delib-
erately since they treated it so lightly, laughing and car-
rying on , and he had told them not to mess with it further.
One day during August the employees reported to work
early and the three Brookovers asked Ankrom if they could
have a break about 9 a.m. Ankrom told them they could
only have one break and at 9 a.m. the three Brookovers
took a break. Harpley came out of the office about that
time and asked Ankrom what they were doing. Ankrom
told Harpley that he had told the Brookover brothers that
they could take a break either at 9 or 10 but could only
have one break . Harpley went back and asked what they
were doing and Jack and Steve immediately went back to
work , but Rick Brookover continued sitting there and got
into an argument with Harpley . Harpley felt the Brook-
overs were insisting on taking an extra break in addition to
the normal 10 a.m. break and the two Brookovers return-
ing to work tends to confirm that idea. Rick Brookover
testified that Harpley used some vulgar language in telling
them to get back to work saying he was not going to lose
his job over one of them. Rick Brookover said he was going
to get the place "straightened out." According to Brook-
over, Harpley told him if he went home not to come back
and Brookover said he was not going home but was going
to get it "straightened out." Rick started to leave, his broth-
er Jack asked where he was going and he told him that he
was going to get the place "straightened out" and walked
out through the office. He stated that Harpley asked him
again what was wrong and he said that there were no heat-
ers or water fountains in the place, no place to eat, the
back wall was caving in and they were leaving. He said that
as they were leaving the secretary mentioned the bath-
room. This may have been a facetious remark on her part
in that Jack Brookover apparently poked holes in the wall
between the men 's and women 's bathrooms . Jack Brook-
over stated he told Harpley that he was leaving for person-
al business as they went out through the office.
Harpley testified that as near as he could recall when he
told them they could not have two breaks they said they
were going to quit , and Jack and Rick left the plant.
According to the Brookover brothers they went to the
local unemployment office and asked if they knew where
to get in touch with O.S.H.A. and were told they knew
nothing about it, but were given a telephone number in
Wheeling. When they got to Wheeling they found out that
it was not the proper number. They came back to work the
P B AND S CHEMICAL CO 7
next day According to both of them Harpley apologized to
them and immediately put them back to work Harpley
testified that they returned the next day and he put them to
work
The General Counsel argues on the basis of this testimo-
ny that the Company was put on notice that the Brookover
brothers were leaving to go and complain to 0 S H A and
that this was protected concerted activity He further refers
to this leaving the plant by the two brothers as a walkout
and states that since when they were discharged some ref-
erence was made to walkouts, that the discharges for this
and the later walkout violated the Act as being a reprisal
for concerted protected activity The General Counsel's
brief states
Before the first, [walkout] the Brookover brothers
complained of the working conditions (lack of water
fountains and lunch tables, etc) and announced their
intention to get the place straightened out This state-
ment put Respondent on notice that the brothers
sought to enlist the aid of some governmental agency
in their effort to secure better working conditions If
motivated in part as a protest against the curtailment
of the previously approved break the activity was
nonetheless protected [citations omitted] And if moti-
vated in part as a protest against derogatory, abrasive
and tactless treatment, the activity was protected It is
clear that the walkoff was a concerted work stoppage
and not a quit Thus, Rick Brookover told Harpley
that he was not going home, but was going to get the
place straightened out Indeed, Respondent did not
regard the walkout as a quit
These statements are made in the absence of any real
proof to back them up and in contradiction of what Gener-
al Counsel's witness Harpley expressly testified, that the
Brookovers told him they were quitting It was his friend-
ship for their parents that allowed them to return to work
the following day Even if one were to credit the Brook-
overs, and I do not, their leaving the plant during the mid-
dle of the shift to go complain to 0 S H A was merely a
matter of them deciding to take leave of the plant at their
own convenience to do wha't they wished Whether they
left to go complain to 0 S H A or to go home did not give
them a right to leave the plant on this occasion There was
no dangerous condition at the plant which would have just-
ified them in refusing to continue work They walked out
of the plant to suit their own convenience and all Harpley
knew was that they were quitting Even if they did try to
contact 0 S H A, Respondent did not know this was their
intention when they left, as Jack Brookover admitted when
he said he told Harpley he was leaving for personal rea-
sons They were simply seeking to obtain information at
their own convenience and at the expense of their job du-
ties Clearly they were trading on Harpley's friendship with
their parents and their return the following day was a fur-
ther demand on Harpley which he granted Certainly un-
der the circumstances Harpley could have discharged the
two if they had not told him they were quitting
Harpley did not report this event to Arlene Dunn appar-
ently because, as he admitted, he never thought about fir-
ing the Brookovers until November 1
During her visit to the plant in August, Arlene Dunn
commented to Harpley on the messy condition of the
floors and the necessity to clean and scrape them before
painting Around the first of October, Harpley started Star-
key (who was the mostjunior man at the plant at that time)
scraping the floors with a putty knife During the first day
Harpley worked off and on with Starkey for about 4 hours
in cleaning the floors and assigned Starkey to scrape the
floors the next day Starkey had the putty knife tied to a
long stick and the stick either broke or Harpley comment-
ed that the job was not being done well enough and told
Starkey to squat down and scrape as they had done the
previous day Starkey said that he was not going to get
down on his hands and knees like a girl and clean the floor
Harpley told him that he would do the assigned work or
quit Starkey testified that he was faced with a choice of
quitting or being fired, and he quit rather than do the job
and told others in the plant that he had quit Harpley who
was leaving the plant gave Starkey a ride home in his truck
and went on to Wheeling, West Virginia
Arlene Dunn recalled Harpley telling her on the tele-
phone that he had assigned an employee to scrape the
floors and that whenever he left the employee was walking
off and talking to other employees and was not working
and he might have to fire him She told him that if the
employee was not working he did not have much of a
choice She heard nothing further and assumed the em-
ployee had been fired At that time copies of personnel
actions were not going to her Harpley did not recall the
conversation
According to Jack Brookover, Edward Cunningham told
him that they ought to go on strike at breaktime and get
the place straightened up and get Starkey back to work At
breaktime they agreed that they had better wait until
lunchtime, when the plant was closed down to make sure
that nothing would happen since chlorine is a dangerous
substance At lunchtime they all went outside to eat and
when the bell rang to start back to work they did not go
back in Jack Brookover testified that he and Tom Raber
told Ankrom that they were going to stay out until Starkey
got back to work and they got some "good facilities " An-
krom told them that Harpley was in Wheeling and for
them to talk to him when he got back They decided to stay
outside There was some talk about joining a union and
some of them chipped in and a call was made to the Team-
sters Union, but they did not have anybody available to
come and talk to them They started to prepare a strike
sign but it was never posted before Harpley returned
According to Jack Brookover, Harpley said he did not
know whether Brookover started this and Brookover told
him that he did not, but that they were out on strike
Brookover claimed he told Harpley that they did not get
the raises when they were supposed to get them, and that
they had no heaters in the plant, no water fountain, and no
place to eat They started to talk about Starkey and about
that time Starkey came up and Harpley patted him on the
back and said go back to work and he would try to get the
thing straightened out within a few weeks They all went
back to work
Harpley stated that, when he was called in Wheeling and
told that the people were out, he returned and talked to
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them and was told that they would not go back to work
unless he agreed to bring Starkey back, and that nothing
was said about conditions in the plant at that time He said
he agreed, Starkey returned, and the men went back to
work Harpley did not inform Arlene Dunn of these events
In regard to the initiation of this walkout, Edward Cun-
ningham preceded Jack Brookover as a witness for the
General Counsel and nothing was elicited by the General
Counsel from Cunningham regarding the walkout With
Harpley stating that nothing was said about conditions in
the plant and with no effort being made to have Cunning-
ham testify about the walkout, I have doubts that it oc-
curred as Jack Brookover testified and I credit Harpley's
version of the conversation
Again the General Counsel argues that the walkout over
Starkey's "discharge," as he terms it, was concerted pro-
tected activity and claims that concerted activity in protest
of a discharge, albeit a lawful one, was protected
The General Counsel does not cite any cases concerning
such activity over an employee quitting Here there could
be no question as to a constructive discharge Starkey told
Harpley and the plant employees that he had quit rather
than work as a girl This could not be a discharge
Harpley testified that although he was informed that
someone had cut holes in the wall between the men's and
ladies' restrooms again after he had such holes plugged up
once, he did not make any investigation to find out who
did it Further, he acknowledged receiving increasing num-
bers of reports from Ankrom between early October and
November 1, that the Brookovers and Starkey were en-
gaged in uncontrollable horseplay, which led other employ-
ees to engage in it, and that Ankrom pleaded with him to
do something about it and he did nothing, although realiz-
ing that there was a serious situation in the plant
The three Brookover brothers testified that on an occa-
sion which they put as ranging somewhere between May
and July a driver from Eaton and Colby, a customer of
Respondent's, talked to them about their wages and indi-
cated that with a union they would probably do better
They testified to somewhat different versions as to how Ed
Ankrom got into the conversation, but each of them stated
that Ankrom said that if the union were to come in the
Company probably could not stand union wages and
might close the plant Jack Brookover and his brothers tes-
tified that on a number of occasions thereafter and contin-
uing up to November, Ankrom repeated this statement, but
they could not put it in any sort of context nor give any
dates or occasions on which such a statement was repeated
Ankrom testified that sometime around April, shortly
after Rick Brookover was hired, Rick asked him why the
Company did not have a union and he replied that he did
not think the Company was interested in a union Rick
asked what Ankrom thought would happen if the Compa-
ny did get a union and Ankrom replied that he did not
know, that the Company might close down rather than pay
union wages Ankrom testified that he had never talked to
any member of management concerning a union or what
would occur if a union were to come into the plant and was
never asked about a union after that, nor did he ever make
any statements concerning unions after that one occasion
He added that he did not hear employees talking about the
Union thereafter
Since I have previously stated that Ankrom was not a
supervisor within the meaning of the Act, and I find that
by his answer to a question propounded by Rick Brook-
over in April he was not acting as a conduit of information
from top management but merely giving his personal opin-
ion, there was no 8(a)(1) violation committed by Respon-
dent by Ankrom's statement and I will dismiss that com-
plaint allegation I further credit Ankrom that he was not
asked about, nor did he make, any further statement about
a union after that time and I discredit the Brookovers' con-
trary testimony
After hearing nothing further from the Teamsters
Union, Jack Brookover mentioned a union to his father
who procured some authorization cards from the Charging
Union Jack and Rick Brookover signed authorization
cards, picked up Raymond Starkey in their car, and pro-
ceeded to drive to the homes of Arthur Moore, Dave and
Everett Cunningham, and Starkey Moore and the two
Cunninghams all signed union authorization cards, on the
evening of October 26 These cards were then returned to
the Charging Union The Brookovers made a point of
keeping the organization a secret They discussed it with
one or two other people but were careful to see that no
mention of it was made to Harpley or Ankrom It is clear
that neither Harpley, Ankrom, nor any member of
Respondent's management knew anything about the
Union until sometime after the three discharges
Harpley testified that he never gave any thought to dis-
charging the Brookovers or Starkey even though he was
getting constant complaints from Ankrom concerning the
uncontrollable horseplay in the plant On November 1, he
called Arlene Dunn and said he was resigning because he
could not get materials, customers were complaining about
deliveries, and he could not handle the employees He ac-
knowledged he was talking about the horseplay in the plant
when he was talking about controlling the employees This
was about all he recalled of that telephone conversation
Arlene Dunn testified that on the morning of November
1 she received a call between 10 30 and 11 from Harpley
who in a quivering voice said he was going to have to quit
his job When she asked what the problem was, he said he
could not handle his people anymore She told him to put
Ed Ankrom in charge and go home for the weekend and
she would come down on Monday unless he wanted her to
come down then He told her that she did not need to come
that day She called back about a half hour later and find-
ing Harpley still there she asked what the problem was He
said he just could not handle the people anymore and the
product shortages and just could not cope She asked if he
was going home and he said yes She told him she would be
down on Monday
Harpley said he called Denny Swords on Sunday and
told him he had quit, and he would be there on Monday at
8 a in to tell him what he had done and that Swords could
look over the situation and take over
Arlene Dunn arrived at the plant about 10 30 a in on
Monday, November 4, and met with Ankrom and Swords
Swords told her that Harpley would not be there, that he
P B AND S CHEMICAL CO
had called and said he was going to the doctor because his
nerves were really bad and had asked that she call him She
asked Ankrom what seemed to be wrong and he told her
that Harpley was in a very bad state on Friday, that the
employees had dust gotten out of hand and he had told
Harpley that if something was not done he (Ankrom) was
going to have to quit because it was affecting him on the
job and at home Ankrom and Swords then told her of
various incidents of people throwing objects, spraying
paint and water, leaving early, and taking breaks when
they desired, and laid the blame for the initiation of these
activities to Jack and Rick Brookover and Raymond Star-
key Ankrom said he wanted her to talk to some of the
employees and they could confirm what had been going
on
She talked to Joe Ebert who said he had been threatened
by Jack Brookover after Jack hit him in the back with a
lead washer and he had started to the office to complain
about it
As she was going through the plant, Arlene Dunn was
insulted by an unflattering call or whistle and turned and
went to the area it came from and there were the two
Brookovers and Raymond Starkey After introducing her-
self as the district manager she asked each of them if they
had anything to say and they each replied they did not,
and she left They corroborated the event, but each denied
making the sound that prompted her questions
She next talked to truckdriver Bill Riggs, who corrobo-
rated the stories about the Brookovers and Starkey engag-
ing in horseplay in the plant He told her that not much
work was being done and that Ankrom and Harpley were
doing as much physical work as the Brookovers and some
of the other employees
She also talked to Arthur Moore and Dave Cunning-
ham, and they corroborated the amount of horseplay being
engaged in by the Brookovers and Starkey and told her
that things needed to be straightened out before the plant
could really get back to work
She called Harpley that afternoon and told him she
found things in a bad state and that she needed to talk to
him and asked to meet him that night or the following
morning He agreed to meet her the following morning at a
local restaurant
C The Events of November 5 and Thereafter
Harpley's memory of his meeting with Dunn was not
particularly good and he did not recall whether he met with
her the evening of November 4 or the morning of Novem-
ber 5 He testified that from the questions she asked he
assumed that she had talked to Ankrom and some of the
others at the plant She asked his opinion as to whether the
three should be discharged and he said they should She
then asked if he wanted to discharge them or if she should
and he did not answer He testified that it was his feeling
that the Brookovers should have been discharged because
of the walkouts they had engaged in but did not say that he
told her that Asked why he had not discharged them he
merely replied that his heart was bigger than his mind and
that he did not do so because of his friendship with their
parents Harpley stated that he had never reported any
9
personnel difficulties to Arlene Dunn, although he had re-
ported some occasional difficulties on sales or problems
with customers
Arlene Dunn testified that when she met with Harpley
on the morning of November 5 his hands were shaking and
his lips were quivering She told him that she had found
some shocking things at the plant, such as parts being
thrown, people being sprayed with paint guns, breaking
windows out of the old house, washing up early, and taking
breaks when they were not supposed to be taken, and he
confirmed that all these things were true Harpley said he
could not fire the Brookovers because they were personal
friends, although he knew that they should have been fired
He said they came from a nice family and he could not
understand why they did those things in his plant She told
him that the situation could not continue He said he
thought ne could come back to work after he got to feeling
better and she told him that if he was going to remain at
the plant as a supervisor she thought he should do the
discharging since if she did so, she would be jeopardizing
the employees' view of him as a supervisor He agreed to
come back and discharge the three men, but as they were
leaving the restaurant he got in his truck and went in the
opposite direction She then went to the plant and wrote
out a list of the reasons she had for terminating the three
men Her memo which she used at the termination inter-
view was as follows
I Ricky Lee Brookover
2 Jackie Ray Brookover
3 Raymond Leonard Starkey
The above named people were dismissed at 10 00
A M, November 5, 1974, for the reasons listed below
Reasons for dismissal
1 Slow down on job Failure to complete job as-
signment on time
2 No respect for supervisors
3 Abuse company equipment
4 Taking unauthorized breaks, or taking longer
time than permitted
5 Cause dissension among co-workers
6 Misconduct on job
7 Threaten bodily harm to Supervisor and fellow
employees
Arlene Dunn, District Manager
She had Ankrom take the other men into the warehouse
at the 10 a in break while she met with the two Brookovers
and Starkey in the plant She told the three that it had been
brought to her attention that over the past several months
there had been a number of incidents in the plant which
could not be tolerated, that Harpley was off sick and might
be out for a week or so and because of their abuse of
company equipment, taking unauthorized breaks, threaten-
ing fellow employees, and threatening their supervisor, that
they were terminated She stated that Jack Brookover and
Ray Starkey stood up and started to go but Rick Brook-
over took a step or two towards her and asked if she meant
they were fired She said yes, and Rick Brookover took a
few more steps towards her with his fist clenched and she
thought he was going to hit her, and she backed away Rick
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookover said they wanted their pay right then She told
him that the pay was not made up at that office and that it
would be mailed to them by special delivery within 24
hours She turned and started to leave and he followed her
several more steps and said the Labor Board had said that
they could have their pay right then She said that they
might say that but their pay was not made up at that office
and would be sent to them as she said She left and went on
into the warehouse
The version given by the Brookovers and Starkey is simi-
lar in that they stated that she came out in the plant after
Ankrom had taken the other employees to the warehouse
and told them that Harpley was sick and might not be back
and she was relieving them of their duties They said that
Jack and Starkey got up to leave and she asked if they
wanted to hear why they were being discharged and they
sat down She told them that they were being discharged
for threatening bodily harm to the foreman, for slowing
down their work, for taking too long a break, and for walk-
ing off their jobs According to them she also said there
was no need for them to go to the Labor Board, because
she had a letter signed by all the employees about ev-
erything that they had done and there was no need to try to
do anything to the plant or to Ankrom's house because she
would have guards patrolling Rick Brookover said that
they got up to leave and he asked if he could have his
check, and she said that the check would be sent to them
from Kentucky and they would have to wait until the end
of the pay period
I credit the version of the discharge conversation as giv-
en by Arlene Dunn There was no indication to her or any
other management official that there was any union orga-
nization going on in the plant and she would have had no
reason to refer to the Labor Board at the time of these
discharges I believe that Rick Brookover mentioned the
Labor Board or some similar agency in talking about their
checks I do not believe that the Brookovers leaving their
jobs was mentioned in that conversation since it did not
appear in her memo The fuller statements in the document
signed by the other employees that afternoon mentions
these events
Arlene Dunn went into the warehouse and met with An-
krom and the other men and informed them that she had
discharged the three and gave them her reasons She said
that the men all nodded in agreement She told them she
had been remiss in not coming down there sooner and
asked if they had any questions or comments while she was
there The men asked her various questions concerning the
Company's benefits Dave Cunningham asked about being
passed up for a pay increase, Everett Cunningham wanted
to know whether his sister was a dependent on his hospital-
ization plan and about savings bond deductions, and other
questions were asked She told them she did not know the
answers to all their questions but would find out and when
she got the answers she would get back to them She con-
cluded the meeting by telling them that she knew they did
not get up at 8 a in to come to the plant to fool around and
they were as important to the plant as the plant was to
them and they expected a fair day's work for a fair day's
pay
Later that day she had a statement prepared of the
events and at the 2 p in break she read it to them and
asked them to read it over again and if they agreed with the
contents of the document to sign it The document 2 was
signed by the employees who were present
After the 2 p in meeting Arlene Dunn called her home
office and reported what she had found and what she had
done She was asked if there was any chance that the dis-
chargees might become angry and attempt to vandalize the
plant, that chlorine gas could be dangerous She said she
did not know and was advised to take safety precautions
and get police protection
It would appear that the Brookovers learned of these
things later and transposed them into the discharge conver-
sation
Since this document refers to the walkout, General
Counsel insists that this was part of the reason for the dis-
charges, and that the discharges were in violation of Sec-
tion 8(a)(1) since the three employees were being dis-
charged for engaging in protected concerted activity These
"walkouts" have been discussed above, and I have con-
cluded that their nature was not such as to have prevented
Respondent from disciplining those who engaged in them
Further they were not the central causes of the discharges
here I reject General Counsel's theory of an 8(a)(1) viola-
tion here
The General Counsel argues that there was no real rea-
son for Arlene Dunn to have this document prepared and
to send it on to company headquarters and that this was
merely done to bolster the discharges and was not merely
used as a basis for the discharges
When we consider that Arlene Dunn had been in this
job for less than 6 months and that there was a real up-
heaval in the Proctor plant, which was under her jurisdic-
tion, with a plant manager resigning and three employees
being discharged, it is simple enough to understand a per-
son being new in a responsible management position doing
2 The document is as follows
The following events occurred on the approximate dates and were wit-
nessed by the signers below
1 July, 1974, Demanded a break at 8 A M when they were refused
and told if they took it at 8 A M they would not get one at 10 A M
The Brookover brothers walked off the job, they were permitted to
return to work
2 August or September, 1974, Decided to quit at 4 P M and refused
to return to work
3 September, 1974, Threw washers and other cylinder parts around
the plant when Joe Ebert told Supervisor Ankrom, Ebert was threat-
ened with bodily harm
4 September 18 1974 Put axle grease on doorknob
5 September 18, 1974, Knocked or cut hole in ladies room wall,
when patched, they repeatedly knocked it open again Hole put in
ladies room ceiling
6 September 19, 1974 When told to speed up on cylinders, Jack
Brookover said he was doing as much as everyone else and invited
Ankrom outside to fight
7 October, 1974, Starkey dismissed for not properly cleaning ware-
house floor prior to painting He had been shown how twice and
Ralph Harpley worked with him for over 1/2 hour to demonstrate
He refused to do properly When he was dismissed, Ralph took him
home, when Ralph returned to plant Brookovers had walked off
with others and did not return to work until Starkey was permitted to
come back
The above statements are true and correct
[Signatures by eight employees]
P B ANDS CHEMICAL CO I I
everything that she could think of to explain the situation
and her handling of the events to her superiors I do not
find it unusual in these circumstances for Arlene Dunn to
have secured every bit of information she could about what
had been going on in this plant unknown to her so that she
could explain to her superiors why the events had gotten as
far as they did before something was done
Joe Ebert testified that, several days after the three were
discharged, he was stopped by them and a fourth man a
short distance from the plant He said he was forced to pull
over to the side of the road to keep from hitting them and
because of oncoming traffic, and one of the men put his
hands on the handlebars of his motorcycle and Jack
Brookover "shoved" a union card towards him and asked
him to sign it He said that Jack Brookover had been drink-
ing, and he could smell beer on his breath and, when he
said he had to hurry home to a sick wife, he was told to
sign the card He said he did not have a pen and was given
a magic marker and told to sign it He testified that, since
Jack Brookover had previously threatened him and there
were four of them standing around, he decided to sign the
union card and did so and immediately left He reported to
Ed Ankrom that he had been forced to sign the union card
and Ankrom reported this to Swords who was to pass it on
to Arlene Dunn
She returned to the Proctor plant on the morning of No-
vember 11, since by that time Harpley had made it clear
that he was not going to return as plant manager That
morning she was told that Ebert had been stopped and
forced to sign a union card and wanted to talk to her about
it She had a conversation with Ebert who told her that
when he left work on his motorcycle on November 8, he
had gotten just around the bend of the road beyond the
plant when he was stopped by the Brookovers and Starkey
and a fourth person He told her they surrounded him,
thrust the union card at him, and told him to sign it and
when he said he wanted to hurry home because his wife
was sick they told him to sign it and had their hands on his
motorcycle handlebars at the time When he said he did
not have a pen he was given one, and he signed the card
and was allowed to leave
After receiving this information she asked Ankrom if he
knew whether anybody else had been forced to sign a
union card and he replied that he did not know She decid-
ed to find out and called in the employees singly Accord-
ing to her testimony, Bill Riggs came to the office and she
told him how Joe Ebert had been forced to sign a union
card and that in view of that she was concerned that per-
haps some of the other employees had been forced to sign
cards She said he did not have to talk to her about it and
it would have no effect on his job whether he did so or not,
that it would be voluntary if he wished to tell her anything
along that line Riggs said that he had been pulled over by
the group and asked to sign a card He told them that he
was not signing He was told if he was a man he would sign
it, and he replied that he was a man and was not going to
sign it
Dunn then talked to each of the other employees in the
plant starting the conversations in the same way, reciting
what Ebert had said and that the employees did not have
to talk to her if they did not want to and that it would have
no effect on their jobs at the Company but she wanted to
know whether they had been coerced into signing union
cards
General Counsel's witness Arthur Moore indicated that
Arlene Dunn spoke to him on two occasions and on one
occasion with no preamble asked whether he had signed a
union card, who had given it to him, and where and when
it occurred However, on cross-examination his testimony
changed somewhat and most of what would be considered
8(a)(1) aspects of interrogation were no longer left in his
testimony He testified that he was told it was entirely vol-
untary whether he talked to Mrs Dunn or not and that she
did tell him about Ebert being coerced and wanted to
know whether others had been coerced into signing Moore
was a very suggestible witness and no violation of the Act
could be predicated on his testimony
Everett Cunningham originally testified that Dunn had
questioned him on two occasions, but on cross-examina-
tion his testimony was changed, and he testified she only
questioned him on one occasion, and on that occasion had
advised him about Ebert being coerced into signing a card
and told him that he could talk to her on a voluntary basis
if he wished, and whether he did or not it would not affect
his job in any way
Although according to her testimony she talked to all the
employees in the plant about this problem, General
Counsel's witness David Lee Cunningham was not asked
about it and did not testify concerning it
Arlene Dunn's questioning of the employees was not de-
signed to find out whether they had signed union cards or
not on the basis of the Blue Flash doctrine, but rather was
based on a verified report to her of an employee being
coerced into signing a union card The manner in which
she went about asking the employees whether others had
been coerced in a similar manner may not have been the
most legalistic manner in which to ask such questions, but
was properly motivated and did not have an inherently
coercive effect on the employees insofar as I can de-
termine
I do not find that Arlene Dunn's conduct in making this
inquiry as to whether employees were coerced into signing
union cards by the discharged employees violated Section
8(a)(1) of the Act and I will dismiss that allegation
In early December Arlene Dunn returned to the plant,
met with the employees, and gave them some answers to
the questions they had asked of her following the discharge
of the three employees Among the things she admitted
saying was the following "As far as your wages are con-
cerned or your pay increases, I don't know why Mr Harp-
ley did not put in for his reasons, his reasons are only
known to him Until this was settled I couldn't agree on
any pay increases because it could be interpreted as trying
to buy your vote "
Some of the employees stated that she referred to this
Brookover thing or this union thing stating that the Com-
pany could not give pay increases until this thing was over
General Counsel urges that the pay increases were an
automatic pay increase and that by making this statement
the Respondent was denying proper pay increases to em-
ployees and thereby violating Section 8(a)(1) of the Act
Respondent takes the position that pay increases were
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not automatic but were periodic wage reviews done by the
supervisors, with recommendations made after specific pe-
nods of time as to whether the employees should receive
wage increases or not It was clear that the Brookovers
received wage increases as their time periods came up with
one possible exception It is also clear from the testimony
that some of the employees did not receive their periodic
review with Harpley or get wage increases which they felt
were due them in midsummer
Whether the wage increases would be considered auto-
matic or semiautomatic or applicable only upon review by
a supervisor, Arlene Dunn's statement or announcement
was tantamount to withholding all wage increases and re-
views until the "thing" was over, which would have the
effect of suspending any wage increases until the question
of union representation or the charges brought by the
Union against the Company had been resolved Whether
as an automatic or singly determined increase, suspension
of wage increases on this basis would have the natural ten-
dency of placing the blame on the Union for the suspen-
sion of wage increases Certainly Respondent was entitled
to proceed either in granting wages in an automatic man-
ner, if that was what it was, or a semiautomatic review and
recommendation, since that was their practice and proce-
dure and suspending a legitimate practice was error In
either event Respondent should have proceeded on its reg-
ular course of business and not suspended wage increases
as Arlene Dunn said Respondent was going to do at this
point This comment of hers violated Section 8(a)(1) of the
Act A petition had been filed by the Union with the Na-
tional Labor Relations Board for an election prior to De-
cember 12, when she was at the plant and made this state-
ment It is unknown whether Respondent has withheld any
wage increases on that basis or not If it has, then it may
have violated the Act by doing so, but such has not been
alleged in a charge, and such was not litigated in the hear-
ing
Respondent might urge that this is an isolated violation
of the Act since it occurred once, but this was a statement
that was made to all of the employees in the plant at that
time and as such this is not an isolated incident, but rather
one incident which affects all employees and until or unless
that statement was reversed and the employees were told
precisely what their rights were and what would happen
with their wage increases, it represents a deprivation of
their rights under the Act, and I so find and conclude
In regard to the 8(a)(3) allegation, there is no evidence
that Respondent had any knowledge of the Brookovers'
union activities prior to their discharge From the evidence
it is clear that they strenuously sought to keep Respondent
from learning of their activities and in this they were suc-
cessful The "small plant theory" cannot supply the knowl-
edge in this case under the circumstances extant here
I find and conclude that Jack and Rick Brookover and
Raymond Starkey were discharged for dust cause and that
their discharges did not violate either Section 8 (a)(3) or
8(a)(1) of the Act
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's December 1974 announcement that em-
ployees would not be granted raises until the union matter
was cleared up which I have found constitutes a violation
of Section 8(a)(1), occurring in connection with
Respondent's business operations as described in section I,
above, has a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
IV THE REMEDY
I recommend that Respondent rescind its announcement
concerning pay raises for employees and that it be ordered
to cease and desist from violating the Act in the same or
similar manner
On the basis of the foregoing findings and the entire
record in this matter I make the following
CONCLUSIONS OF LAW
I P B & S Chemical Company is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By announcing that employees would not be granted
pay raises until the union matter was cleared up, Respon-
dent engaged in, and is engaging in, unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and 2(6) and (7) of the Act
[Recommended Order omitted from publication