Paper Board Cores, Inc Of Alabama

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 995 (N.L.R.B. 1989)

PAPER BOARD CORES 995
Paper Board Cores , Inc of Alabama and Central
Alabama-Georgia Joint Board, ACTWU,
AFL-CIO Cases 15-CA-10313, 15-CA-10388,
and 15-CA-10470
February 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On July 22, 1988, Administrative Law Judge
Lawrence W Cullen issued the attached decision
The General Counsel and the Respondent filed ex-
ceptions and supporting briefs, and the Respondent
filed a brief in opposition to the General Counsel's
exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions3 as modified, and to adopt the rec-
ommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
tional Labor Relations Board (the Board) The complaint
in Case 15-CA-10313 is based on a charge filed by the
Amalgamated Clothing and Textile Workers Union,
AFL-CIO (the Charging Party or the Union) on 26
May 1987 The complaint in Case 15-CA-10388 is based
on a charge filed by the Charging Party on 7 August
1987 The complaint in Case 15-CA-10470 is based on a
charge filed by the Charging Party on 18 November
1987 The consolidated complaint alleges that Paper
Board Cores, Inc of Alabama (the Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the
Act) by threatening and cursing an employee(s) to dis
suade the employee(s) from supporting the Union and by
impliedly threatening employees with retaliation for their
union activities and by referring to the employees as
troublemakers, that Respondent violated Section 8(a)(1)
of the Act by disparately enforcing a work rule prohibit
ing employees from leaving their work areas that Re
spondent violated Section 8(a)(3) and (1) of the Act by
discharging employee Dwight Sanders because of his
union activities, and that Respondent violated Section
8(a)(5) and (1) of the Act by acquiescing, condoning, and
assisting in the circulation of a decertification petition, by
withdrawing recognition from the Union, and by unilat
erally announcing and implementing changes in wages
and benefits The complaint is joined by Respondent's
answers in which Respondent denies the alleged viola
tions of the Act
On the entire record in this proceeding, including my
observations of the witnesses who testified here, and
after due consideration of the beefs filed by the General
Counsel and counsel for the Respondent, I make the fol
lowing
i The case caption corrects the judge s reference to the Respondent as
Paper Board Core Inc of Alabama
2 The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive 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 re
versing the findings
2In agreeing with the judge that the Respondent lawfully discharged
Dwight Sanders for threatening to put a gun to the head of another em
ployee we specifically reject the General Counsel s argument that Sand
ers statement was part of the res gestae of protected grievance discus
sion Rather we find that Sanders statement in light of his next-day re
affirmation that he meant what he said is sufficiently flagrant and egre
gious to warrant denial of any protection Sanders may have enjoyed
during the grievance process
Charlotte White Esq , for the General Counsel
L Traywick Duffle and Kurt A Powell Esq (Hansell &
Post), of Atlanta, Georgia , for the Respondent
Joe Alvarez, of Columbus , Georgia , for the Charging
Party
DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN, Administrative Law Judge
These consolidated cases were heard before me on 25
26, and 27 January 1988 at Bay Minette, Alabama The
hearing was held pursuant to a consolidated complaint
issued by the Regional Director of Region 15 of the Na
292 NLRB No 107
FINDINGS OF FACT AND ANALYSIS
I JURISDICTION
A The Business of Respondent
The complaint alleges , Respondent admits and I find
that the Respondent was and has been at all times mate
nal an Alabama corporation with offices and a place of
business located at Bay Minette Alabama where it is en
gaged in the business of converting paper into various
products, that during the 12 month period prior to the
filing of the complaints, a representative period of all
times material , Respondent, in the course and conduct of
its business operations, sold and shipped goods valued in
excess of $50,000 from its Bay Minette Alabama facility
directly to points located outside the State of Alabama
and purchased and received at the facility materials
valued in excess of $50 000 directly from points located
outside the State of Alabama and has been an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
B The Labor Organization
The complaint alleges the Respondent admits, and I
find that the Union is now, and has been at all times ma
tenal , a labor organization within the meaning of Section
2(5) of the Act
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C The Appropriate Unit
The complaint alleges , Respondent admits and I find
that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act
All production and maintenance employees, proba
tionary employees and truckdrivers employed by
Respondent at its Bay Minette , Alabama plant ex
cluding temporary employees , office clerical em
ployees , guards and supervisors as defined in the
Act
II THE ALLEGED UNFAIR LABOR PRACTICES'
A Background and Interrelationship of the Charges
On 25 September 1985 in Case 15-RC-7192 a majon
ty of Respondent's employees in the aforesaid appropn
ate unit by a secret ballot election, designated and select
ed the Union as their collective bargaining representative
and the Union was so certified by the Regional Director
for Region 15 on 3 October 1985 Pursuant to a request
for bargaining by the Union on 10 October 1985, the par
ties commenced negotiations on 5 November 1985 and
engaged in 31 bargaining sessions but were unsuccessful
in reaching an agreement with the final bargaining ses
sion held on 18 March 1987 at which time most of the
contract language had been resolved but the wages and
benefits had not been resolved During this period the
Respondent had been purchased by another company
There is no allegation that the Respondent engaged in
surface bargaining, dilatory tactics, or otherwise bar
gained in bad faith during the negotiations Dwight
Sanders, a bargaining unit employee holding the classifi
cation of baler, made the initial contact with the Union
that led to the commencement of the union campaign
and was subsequently a leader in its organizational of
forts getting union cards signed handing out union liter
ature, and attending a scheduled representation hearing
on behalf of the Union although he was not called on to
testify as the hearing was canceled pending an agreement
on the election to be held Subsequently, Sanders served
as a member of the Union's bargaining committee and at
tended all 31 sessions He was also designated as one of
three employees to represent coworkers on the job in
grievances or disciplinary matters as there was no gnev
ance machinery in effect and Respondent did not wish to
take up these matters at bargaining sessions On one oc
casion he led a protest concerning the length of negotia
tions into the office of Robert M Sullivan Respondent s
general plant manager and an admitted supervisor
On 12 December 1986 Sanders was discharged follow
ing an instance on 10 December 1986 when he was
called on to assist a coworker (Tommy Fell) in discuss
ing a grievance of that worker against another worker
(James Edmundson) with a supervisor (Plant Superin
tendent Joe Price) and which Sanders followed up with
a meeting with another supervisor (Temporary Supervi
sor David Beck) where he is alleged to have threatened
' The following includes a composite of the testimony credited in my
consideration of the evidence presented at the hearing
to put a 38" (gun) to the head of unit employee Ed
mundson and to carry (take) him into the office of
Plant Manager Sullivan Both Price and Beck who were
then on loan from another of Respondent's plants are ad
mitted supervisors On 12 December 1986, Sanders was
discharged for making the threat to employee Edmund
son He had been employed 5 years at the time of his dis
charge and had previously been disciplined on only one
occasion when he received a written warning for writing
the words contract now on a work order His dis
charge is alleged as a violation of Section 8(a)(3) and (1)
of the Act Additionally, Price is alleged to have cursed
prounion employees in a conversation with Sanders on
10 December 1986, and to have threatened to fight Sand
ers on that date, both of which incidents are alleged to
be violations of Section 8(a)(1) of the Act committed by
Respondent Beck is alleged to have referred to the
union employees as troublemakers in violation of Section
8(a)(1) of the Act Additionally, Respondent is alleged to
have disparately enforced an unwritten rule against em
ployees leaving their work stations in the plant against
Elmore Pate, a known union supporter, in violation of
Section 8(a)(1) of the Act Pate is a former employee
who along with Sanders had spearheaded the union cam
paign, attended the scheduled representation hearing on
behalf of the Union, served on the Unions negotiating
committee, and was designated to represent employees in
complaints to supervision and in disciplinary matters
In October 1986 John Craig Peacock, a unit employ
ee, commenced the circulation of a decertification peti
tion among the employees and by March 1987 had ob
tained 15 signatures, representing 50 percent of the bar
gaining unit and filed it with the Board on 17 March but
subsequently, withdrew it in late March On the next day
Wendell Willard a coemployee of Peacocks who had
assisted Peacock in the circulation of the original decerti
fication petition, commenced to go to the employees
who had signed the petition circulated previously and
asked them to sign a new petition stating that they no
longer wished to be represented by the Union and col
lected all 15 signatures again This petition was presented
by Peacock and Willard to Plant Manager Sullivan on 25
March 1987, who testified he made a copy and returned
the original to them and consulted his attorney who
wrote the Union on that date withdrawing recognition
This petition was not filed with the Board It is undis
puted that following the withdrawal of recognition from
the Union on 25 March 1987, the Respondent refused to
bargain further with the Union and announced and im
plemented a number of unilateral changes in wages ben
efits and terms and conditions of employment affecting
employees in the bargaining unit Specifically, the Re
spondent announced to its employees on 26 and 30
March 1987 that it had withdrawn recognition from the
Union and that it intended to implement improved wages
and benefits On 1 April 1987 Respondent implemented a
change in the employees working hours On I May 1987
Respondent implemented a change in the employees
health insurance On 30 March 1987 Respondent an
nounced a 5 percent wage increase to its employees and
implemented the increase on 1 May 1987 On 1 May
PAPER BOARD CORES 997
1987 Respondent implemented a $25 birthday bonus to
spouses of unit employees On 4 November 1987 Re
spondent announced it would replace a scheduled per
centage wage increase with a bonus and implemented a
$200 bonus for its employees The assistance in circula
tion of the petition the withdrawal of recognition, refus
al to bargain , and the unilateral changes are alleged as
violative of Section 8(a)(5) and (1) of the Act Also at
issue is the status of Filomena Wade who was originally
excluded from the bargaining unit as a temporary em
ployee in information furnished by Respondent to
Region 15 during the course of the investigation into the
8(a)(5) and ( 1) charge giving rise to the complaint
B The Discharge of Dwight Sanders and Related
Incidents
As set out above and based on the unrebutted testimo
ny of Sanders, Falls, Pate , and Union Representative Joe
Alvarez , Sanders was a leading union adherent whose
prounion sympathies were well known to management
The General Counsel also presented testimony through
Sanders and Melinda Falls, the former secretary and
office manager to Plant Manager Sullivan , and through
Elmore Pate that Sanders ' union activities caused him to
incur the displeasure of Respondents management and to
be subjected to harassment and threats as a result
Sanders testified that he was called into Plant Manager
Sullivan s office in August 1985 at which time Sullivan
asked me what I meant by trying to get the union orga
nized in his plant , and I said I have no comment He said
how many cards do you have, son? I said I have no
comment He said I in not going to negotiate in any ca
pacity with a union in my plant And I said I have no
comment , and he tells me to go on back to my machine,
that he would deal with me at a later time ' Plant Man
ager Sullivan testified that when he called employees
into his office prior to the election , he was just trying
to find out what was going on, but I didn 't discuss
any you know signing Union cards or recommend one
way or another what to do' and `I said , you have the
right to do what ever you want to do, if you want a
Union that s your privilege to to you know get
you one but I said I don't think we need we need a
Union but that was prior to us hiring (legal counsel)
He denied having made any statement to Sanders that he
knew that Sanders was signing (soliciting) cards I credit
Sanders' specific recall of this incident over Plant Man
ager Sullivan s general denials
The General Counsel further adduced evidence
through the testimony of Melinda Falls (the former
office manager and secretary to Plant Manager Sullivan
who was terminated in August 1986 by Sullivan for al
leged unsatisfactory work performance) that Sullivan
had directed her to write memos falsely stating that
Sanders had telephone conversations with Falls in which
he complained about Respondent 's supervisor Bob
Icon, and Sullivan stating that Sullivan did not know
what was going on and in which Sanders was reported
to have issued threats concerning what would happen
when the Union was selected as the collective bargaining
representative of the employees Sullivan denies having
told Falls to fabricate these memos but rather testified he
had told Falls to write down what was said by Sanders
in these conversations when Falls reported them to Sulli
van Sanders also denied the conversations For reasons
of demeanor, considerations of Falls bias against Sulli
van as a result of Sullivan 's termination of her and as a
result of my review of these memos which are critical of
Respondent 's management and which I find unlikely to
have been fabricated by Falls I credit Sullivan in this
regard
Falls also testified that on another occasion Sullivan
and then unit employee Harold Price and Sullivan s son
Robert T (Robby) Sullivan , a supervisor were discuss
ing Price s upcoming promotion to plant superintendent
and that Price who was then a unit employee stated that
the first thing he was going to do after his promotion
was to get rid of that son of a bitch , Dwight Sanders
This conversation was denied by both Sullivan and
Price I credit Falls in this regard
Falls also testified that on another occasion after Sand
ers fell from the back of a pickup truck while throwing
trash into a landfill behind the Company s premises, that
Plant Manager Sullivan , on learning of the incident,
stated that it was a shame that Sanders had not died I
credit Falls in this regard Regarding this incident, Sand
ers testified that after the union election he was assigned
to throw trash off the back of the truck by Bob Icona
(Price s predecessor in the position of plant superintend
ent), a task difficult as the result of his limited use of one
arm and hand as a result of a birth defect Former union
activist and negotiating team member Elmore Pate testi
feed that he objected to Sanders being required to per
form this job Icona who was subsequently terminated
by Respondent , did not testify I credit the testimony of
Sanders and Pate that Sanders had not previously been
required to perform this task Falls further testified that
when Sanders was still on medical leave as the result of
the truck incident , Sullivan attempted to obtain permis
sion from his superior over the telephone to fire Sanders
as the result of Sanders absence , but that she picked up
the telephone and informed Sullivan s superior that Sand
ers was not yet due back from his medical leave and that
Sullivan subsequently admonished her for having ruined
this opportunity to fire Sanders I credit Falls testimony
in this regard
Sanders also testified that after Price became superin
tendent he was assigned a new task cleaning unusable
wastepaper off a spool requiring him to use a powersaw
and that the saw would back up on him as a result of the
limited use of his hand Both Price and Plant Manager
Sullivan testified that this was part of the baler's respon
sibilities and that Sanders was free to use the saw or a
knife whichever he chose and that they did not consider
this an arduous task as the result of the condition of
Sanders arm and hand I credit Sanders testimony in
this regard and find that he had not previously been as
signed this task
On 10 December 1986 prounion employee, Tommy
Fell, became involved in a dispute after he had been as
signed to use a forklift by Price and was subsequently
followed by employee Robert Edmundson, who was not
a union supporter and who asked Fell whether he was
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
through with the forklift. Fell replied in the negative and
Edmundson then said he would report to Price Fell's re-
fusal to permit Edmundson to use the forklift.2 Fell then
went to Price who told him that he had had a belly full
of the "goddamn" business between the union and non-
union employees. Fell, along with Price, • then ap-
proached the area where Sanders was working and Fell
informed Sanders of the problem because Sanders had
been designated a union representative of employees in-
volved in complaints against management or disciplinary
matters pending the establishment of a grievance proce-
dure under the terms of the initial contract to be negoti-
ated. Sanders testified that when he spoke on behalf of
Fell, Price told Fell to let Edmundson have the forklift
when he tells him to do so. Price also said that he would
get the problem straightened out.
Subsequently, that afternoon Sanders took the problem
to Supervisor David Beck, who was temporarily on loan
to Respondent's Bay Minette plant from its Cedartown
plant. Beck testified that Sanders told him that he could
not discuss the matter involving Edmundson with Price
but that if he (Beck) did not solve the problem he (Sand-
ers) would put a "38" (gun) to Edmundson's head and
"carry" (take) him to Plant Manager Sullivan's office.
Beck, who testified he considered this a threat, reported
this to Superintendent Price who reported it to Plant
Manager Sullivan the following day because Sullivan
had been out of town on 10 December 1986. Sullivan
testified he told Price to go out and ask Sanders whether
he had made the statement as reported by Beck. Sullivan
testified that Price thereafter did so and reported to him
that Sanders had said that not only had he made the
statement but that he meant it. Price also testified that
Sanders had said that not only had he made the state-
ment but that the meant it. Price's testimony was cor-
roborated by unit employee James Ramer. Sullivan testi-
fied that after Price reported to him that Sanders admit-
ted making the threat, he called Sanders in and dismissed
him for making the threat, which he considered a serious
matter that could not be tolerated in the tense pro and
antiunion atmosphere among the employees which had
previously been the subject of serious arguments.
At the hearing, Sanders denied having threatened Ed-
mundson with a gun as cited by Beck but admitted
having told Beck, "I'll carry [take] his goddamn ass to
Robert Sullivan's office," if the problem were not
straightened out and that Beck had stated that it was the
union employees who were causing the trouble. Sanders'
testimony was corroborated in part by employee Tommy
Fell. Beck denied having stated that the union employees
were causing the trouble or having referred to them as
troublemakers. At the hearing the Respondent intro-
duced the prior testimony of Sanders at an unemploy-
ment compensation hearing involving the matter in
which Sanders testified that in his termination discussion
2 The testimony developed at the hearing disclosed that in October
1986 unit employee Craig Peacock commenced the circulation of a decer-
tification petition and that there was a good deal of dissension between
prounion and antiunion employees at the plant concerning this. In De-
cember the employees left their work stations and went into the office of
Plant Manager Sullivan and protested the slow pace of contract negotia-
tions and the circulation of the decertification petition.
Sullivan had not even mentioned the alleged gun threat.
At the hearing Sanders testified that Sullivan had men-
tioned the alleged threat. Sanders attempted to explain
these inconsistencies in his testimony by testifying that
he did not understand the procedures at the unemploy-
ment hearing. Sanders also testified at the Board hearing
before me that he did not even own a gun and had car-
ried a gun only once while working as a security guard
prior to his employment with Respondent. Respondent
countered this testimony by the testimony of two inde-
pendent witnesses (Byran Coleman, security manager at
a store where Sanders had been employed as a security
guard) and Dougell Taylor (the supervisor of Sanders at
the security agency employing Sanders) both of whom
testified that Sanders had been required to carry a gun as
a security guard and that they had observed him carry
one on numerous occasions.
1. Supervisor David Beck's alleged threat
This refers to the conversation between Sanders and
Beck in which Sanders took the problem concerning Ed-
mundson to Beck and allegedly made the threats to put a
gun to the head of Edmundson. Sanders testified that
when he discussed the problem of Edmundson with
Beck, Beck said, "This is a good employee; you union
people's causing him trouble." Beck denied making this
comment or ever having made any references to union
supporters as troublemakers or said that union employees
were causing trouble.
Analysis
I credit the testimony of Beck over that of Sanders.
However, I would not find that the statement allegedly
made by Beck, even as testified to by Sanders, rises to
the level of an unfair labor practice. By several accounts
there was dissension among employees at the plant as
demonstrated by the record testimony and I would find
Beck's statement as no more than a personal view of the
cause of the trouble and would not find that it constitut-
ed a threat of any kind.
2. The alleged cursing and threat issued by Price to
Sanders on or about 10 December 1986
Sanders testified that after he had discussed the work
dispute concerning Edmundson and Fell with temporary
Supervisor David Beck that Price approached him and
He said I'm tired of the goddamn bickering. He
said there's nobody going over my head to Robert
Sullivan, and just because you're a half assed shop
stewart, you don't have the right to go. over my
head to Robert Sullivan, and that he [Sanders] re-
plied:
I said, you have a problem here that needs to be
handled. Harold Price then tells me that he will
take care of it.
Sanders testified further that Price then left and he saw
Price talking to Edmundson but could not hear the con-
versation.
PAPER BOARD CORES
Price testified concerning this incident that there was a
dispute between Fell and Edmundson concerning the use
of the forklift and that Fell was dissatisfied with Price's
telling Fell to let Edmundson use the forklift and that
Fell then approached Sanders and Sanders became upset
and Sanders contended that Edmundson was causing
problems and that he (Sanders) was tired of it Price tes
tified
and I [Price] became irritated with the situa
tion and told Mr Sanders that I was tired of the
bickering between union and non union employees
in the plant I had had a belly full of it , and that if
individuals or people would listen to what I told
them to do and do what I assigned them to do, that
we wouldn t have these problems to start with
Analysis
I credit Sanders version over that of Price s with re
spect to the use of the word goddamn ' which appears
to be a sanitized version of the conversation I find both
versions quite similar about what was said However, I
do not find that Price s remarks to Sanders constituted
an unlawful threat or curse to Sanders in retaliation for
his union activities but the remarks appear directed to
bickering that had been going on between employees as
testified to by Price and other employees concerning
their pro or antiunion sentiments Moreover , it appears
from the record that this conversation followed the con
versation between Beck and Sanders in which Sanders
attempted to bypass Price by going directly to Beck and
threatening to go to Sullivan and at which time Sanders
had issued the statement concerning the gun Under all
these circumstances , I find Price s remarks were the
result of a general exasperation with the bickering be
tween employees and an assertion of Price s own author
ity and did not give rise to a violation of the Act
3 Price s alleged threat to fight Sanders on or about
10 December 1988
It appears from the record that this conversation took
place on the afternoon of 10 December 1988 following
Sanders' conversation with Beck and Price s later con
versation with Sanders
Sanders version of this incident is as follows
Then later on that afternoon Harold Price , myself
R B Green Curtis Johnson, Daryl Johnson and
Tommy Fell was around the baler there and he
Harold Price says Dwight here I heard
was going to take one of the employees to the
office with a big gun stuck to his head '
Harold Price said ` David Beck tells me that the
way they handle problems in the Cedartown plant
is that they clock out and go across the street in a
square circle and battle it out Dwight, why
don t you clock out and you and I go out back
because it won t be but two licks 111 hit you and
you'll hit the ground '
999
Sanders testified that everyone , including himself,
laughed about it and that Price then walked off Sanders
version was corroborated by Fells
Price , who was unable to place the date of this con
versation , testified that Sanders had discharged a bale of
paper from the machine and it fell apart and that he
(Price) jokingly asked Sanders whether he had used his
good or bad arm to tighten the bands on the bale and
that Sanders replied it made no difference as one arm
was as good as the other and that if they went outside
and fought he could show Price this Price testified he
then stated
That according to David Beck that was the way
that they had settled differences in the Cedartown
plant Dwight told me that if we went outside and
settled our differences , that there would be two
licks past [sic ] He would hit me and I would hit
the ground
Price testified that it was a joking matter and no one
took the matter serious Price s testimony was corrobo
rated in part by unit employee R B Green , a member
of the union negotiating committee who testified
When I came up the conversation was going on I
heard Mr Price say that the way they do things in
Cedartown, they take it out in the back in a ring
and settle it And Mr Sanders said, well there
wouldn t be one lick passed , and then it will all be
over and everybody laughed and I walked on off
Analysis
I find that Price s version of this conversation as cor
roborated by employee R B Green should be credited
and I thus find that Sanders was an active participant in
this incident which appears to have been a joking mci
dent from the start However even if Sanders version
were to be credited I find that this incident does not rise
to the level of a violation of the Act I note that this in
cident followed shortly after on the same date the inci
dent in which Sanders had told Supervisor Beck that he
would put a gun to the head of Edmundson and take him
to the office and Price 's remarks related to the threat by
Sanders rather than to his role as a union steward More
over as noted above by all accounts the conversation
was deemed a joking matter by all concerned I thus find
that Price's remarks to Sanders did not violate the Act
4 Analysis of the discharge of Dwight Sanders
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(3) and (1) of the
Act by Respondent as the result of its discharge of
Dwight Sanders It has been established that Sanders was
a known leading union advocate who had incurred the
displeasure of Respondents management as a direct
result of his union activities and who was discharged
shortly after meeting with Supervisors Beck and Price in
his role as a union stewart while processing a grievance
on behalf of another employee However I find that Re
spondent has rebutted the prima facie case by a clear and
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
convincing preponderance of the evidence. Initially, I
find that Sanders did make the threat as testified to by
Supervisors David Beck and Price and employee Ramer.
I find Sanders ' testimony in this regard was inconsistent
and unconvincing and I do not credit it. I thus find that
he made the threat to put a gun to the head of a cowork-
er and to take him to Sullivan 's office. I also credit the
testimony of Beck that this was a serious threat and fur-
ther credit Price's and Ramer 's testimony that Sanders
reaffirmed this threat when questioned about it and the
testimony of Sullivan that Sanders did not deny making
the threat at the time of his termination . Moreover, I am
convinced by Sullivan's testimony that he considered this
a serious threat and discharged Sanders as a result of the
threat . I find that Respondent would have discharged
Sanders even in the absence of his engagement in union
activities and in the absence of Respondent's antiunion
animus toward him. I thus find that Respondent did not
violate Section 8(a)(3) and (1) of the Act by its discharge
of its employee Dwight Sanders. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See also
NLRB v. Charles Batchelder Co., 646 F.2d 33 (2d Cir.
1981); Canadaigua Plastics , 285 NLRB 278 (1987); Clear
Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d
148 (9th Cir . 1985), cert . denied 474 U.S. 1105 ( 1986),
and W. W Granger Inc., 255 NLRB 1106, (1981), set
aside on other grounds 677 F.2d 557 (7th Cir. 1982), all
cited by Respondent with respect to Respondent 's rights
to discipline employees for misconduct and threats to
other employees affirming that the Act does not protect
employees when they engage in such misconduct or
threats of fellow employees.
B. The Alleged 8(a)(5) and (I) Violations
It is undisputed that unit employee John Craig Pea-
cock assisted by unit employee Wendall Willard com-
menced the circulation of a decertification petition in
October 1986 and collected the signatures of 15 employ-
ees thereon by March 1987 and that Peacock filed the
petition with the Board but withdrew it shortly thereaf-
ter in March 1987. A day or so later Willard commenced
the circulation of a new petition against representation
by the Union , and solicited and obtained signatures from
the same 15 employees who had signed the earlier peti-
tion. At the hearing the General Counsel contended
there were 31 employees in the bargaining unit in March
1987 including Sanders who was allegedly unlawfully
discharged in December 1986 and Filomena Wade, an
employee who was incorrectly excluded from the bar-
gaining unit as a temporary employee by Respondent
when it furnished this information to the Region during
the investigation of this case . The General Counsel thus
contends that the 15 signatures did not represent a ma-
jority . In its brief Respondent conceded that Filomena
Wade is a bargaining unit employee and I so include her
in the unit based on the evidence that she performed the
same work under the same terms and conditions on a
full-time basis as the other employees . As I have-found
the discharge of Sanders in December 1986 was not un-
lawful , I do not include him in the unit as of March
1987. I thus find that the unit consisted of 30 employees
in March 1987.
Plant Manager Sullivan testified that on 25 March,
Willard and Peacock presented him with a petition stat-
ing that the undersigned 15 employees did not wish to be
represented by the Union . This testimony was corrobo-
rated by Willard and Peacock, and unrebutted by the
General Counsel . Additionally , both Plant Manager Sul-
livan and employee Filomena Wade testified that in
March 1987 , Wade told Sullivan that she did not want to
be represented by the Union but did not want to sign the
decertification petition being circulated at that time. Ac-
cording to the testimony of Sullivan he had been aware
of the circulation of the earlier decertification petition by
Peacock as a result of complaints by prounion employees
who marched into his office in October 1986 protesting
the slow progress of contract negotiations and the circu-
lation of the petition to decertify the Union. Sullivan tes-
tified that he issued a written warning to Peacock for
circulating the petition on company premises during
worktime . I credit Sullivan 's and Wade 's testimony as set
out above which testimony was unrebutted . As 15 em-
ployees of the 30 unit employees signed the petition stat-
ing that they did not wish to be represented by the
Union, the Union thus no longer enjoyed the support of
a majority of the employees . Moreover , as I have cred-
ited Sullivan 's and Wade 's testimony , I find that a major-
ity of the employees expressed their desire not to be rep-
resented by the Union through the petition signed by 15
of the employees and the verbal representation by Wade
to Sullivan . It is undisputed that Respondent through its
attorney on the date of the presentation of the petition
by Willard and Peacock to Sullivan withdrew recogni-
tion from the Union and subsequently announced and im-
plemented unilateral changes in wages and benefits and
terms and conditions of employment without giving the
Union notice thereof and affording the Union an oppor-
tunity to bargain concerning them and has since refused
to bargain with the Union.
The General Counsel contends that the petition was
tainted by the involvement of management in the promo-
tion and assistance of the circulation of the petition. In
support of this position the General Counsel introduced
the testimony of Melinda Falls, Tommy Fell, and
Elmore Pate, and Sanders . Unit employee Tommy Fell
testified that another unit employee, Robert Edmundson,
had told him (Fell) that the Respondent had given Pea-
cock and Willard gas, food , and steaks for their roles in
circulating the initial petition . Sanders also testified that
he had heard this conversation between Fell and Ed-
mundson although Fell did not mention Sanders' pres-
ence during this conversation . Edmundson testified that
the conversation was initiated by Fell who was stating
that Peacock and Willard were receiving money for the
circulation of the petition and that he (Edmundson)
became aggravated and "said, well, I got some too,
Tommy" and that Fell then called union negotiating
committee member Andy (Russell) and told him that Ed-
mundson had obtained meat and money also and that
Edmundson then told Russell that he had also obtained
meat and money and that Russell stated he could use
that but that he (Edmundson) said that he told Russell
that he could not as he had not received anything. Ed-
PAPER BOARD CORES
mundson denied at the hearing that he had received any
thing of value in return for signing or circulating either
of the two petitions There was no evidence presented in
any way indicating that Edmundson was involved in as
sisting in the circulation of the petition Additionally,
Elmore Pate testified that on 11 March 1986 he over
heard Edmundson ask Plant Manager Sullivan about a
petition and heard Sullivan respond that they needed
two more Pate who had been a leading union adherent
was discharged in August 1987 for missing 2 consecutive
days of work and testified that he regarded the discharge
as unfair Charges filed with the Region by Pate protest
ing his discharge were subsequently withdrawn Addi
tionally, Melinda Falls testified that she had overheard
Plant Manager Sullivan ask Peacock to spy on union
meetings in the spring of 1986, that Sullivan told her to
increase Peacock's wages by 10 cents at the end of 1985
because he was not a union member, and that Sullivan
told Peacock he did not have to wear safety shoes be
cause he was not a union member Falls testimony was
refuted by Sullivan and Peacock, who testified he had
never attended a union meeting , which testimony was
corroborated by Union Representative Joe Alvarez who
chaired the union meetings Falls further speculated that
Peacock was paid for time he did not actually work be
cause she saw Peacock leave in the afternoons with
other employees This testimony was refuted by Robert
T (Robby) Sullivan, Peacock's foreman and the son of
Plant Manager Sullivan who had responsibility for Pea
cock's timecards and who testified that he had not falsi
fled the timecards The timecards do not bear out Falls
testimony Additionally, Plant Manager Sullivan and
Peacock testified that because of Peacocks large shoe
size (15) there were no safety shoes to fit him at the time
of their initial issuance to employees but that Peacock
was subsequently issued safety shoes ordered for him
In addition to the foregoing, the General Counsel
points to several alleged inconsistencies in the testimony
of Peacock, Willard and Foreman Robert (Robbie) Sulli
van all of whom are personal friends, as well as their as
sertions that they and Foreman Sullivan had never dis
cussed the petition Peacock testified that he had initially
signed a union card in September 1985 but had asked
Sanders to contact the Union to retrieve his card and
resign from the Union and had subsequently called
Union Representative Alvarez by telephone, subsequent
ly obtained legal counsel and written Alvarez a letter of
resignation but was never contacted by Alvarez Alvarez
admitted seeing the letter of Peacocks and that he did
not respond to the letter Peacock testified that he then
decided to circulate the petition to get nd of the Union
The initial signatures are dated in October 1986 In
March 1987 Peacock filed the petition with the Board,
and subsequently withdrew it the same month because of
concerns over the effect it might have on long term
career employees and that his neighbor was no longer
speaking to him His testimony was corroborated by em
ployee Marcus Chastang who testified that Peacock had
started the petition in 1986 because the Union would not
permit Peacock to withdraw from membership but had
had second thoughts about it because of its effect on
other employees and by Willard who also told Peacock
1001
he was crazy for withdrawing the petition Willard
then initiated the circulation of the second petition The
General Counsel also points to alleged inconsistencies in
Peacocks testimony regarding who was initially respon
sible for the initiation of the petition Plant Manager Sul
livan, Superintendent Price Foreman Sullivan Peacock,
and Willard each denied that there had been any in
volvement of management in the circulation of the peti
tion or that Peacock or Willard was paid or compensated
in any way for their roles in circulating the decertifica
tion petitions Each of the 15 employees who signed the
petition testified that they did so of their own free will
and that no member of management had discussed the
matter with them, that they were not aware of any man
agement involvement therein or that Peacock or Willard
was given anything by management for their role in cir
culating the petition
Analysis
A certified union enjoys a rebuttable presumption of
majority status This presumption may be rebutted by a
showing that there is a good faith reasonable doubt of
the Union s continuing majority status based on objective
considerations Under such circumstances an employer
may withdraw recognition from the Union Guerdon In
dustries, 218 NLRB 658 (1975) NLRB v Gulfmont Hotel
Co, 362 F 2d 588 (5th Cir 1966), enfg 147 NLRB 997
(1964), KSD AM Radio 262 NLRB 687 (1982), Orion
Corp v NLRB 515 F 2d 81 (7th Cir 1975) In this case
Respondent was presented with objective evidence that
the Union no longer enjoyed majority support as a result
of the presentation of the petition by Willard and Pea
cock to Plant Manager Sullivan and the unsolicited state
ment of Filomena Wade to Plant Manager Sullivan that
she did not want to be in the Union I further find that
the evidence presented by the General Counsel is insuffi
cient to prove that Respondent was involved in the cir
culation of the petition so as to taint the petition I credit
Edmundson s testimony that he was joking with Fell
when he told him that Peacock and Willard had received
items of value in return for circulating the petition
Moreover Edmundson was a unit employee and his
statements to Fell, even if credited cannot form the basis
for admissions against Respondent in the face of the
denial of the truth by Edmundson and the total lack of
supporting evidence thereof I do not credit Sanders tes
timony concerning the alleged statement of Peacock that
he had received $15 for gas money Pates testimony that
he overheard Edmundson inquire of Plant Manager Sul
livan about the petition in March 1987 to which Sullivan
allegedly replied they needed two more signatures at
most demonstrates management knowledge of the circu-
lation of the petition and it is undisputed that Plant
Manager Sullivan became aware of the petition at least
by October 1986 when the employees staged a protest in
his office concerning the circulation of the petition I fur
ther conclude that the testimony of Falls concerning an
alleged request to spy by Sullivan of Peacock alleged
exemption from wearing safety shoes for Peacock and
alleged unwarranted overtime pay for Peacock should
not be credited as I found it inconsistent, unconvincing
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
speculative, and unsupported by independent evidence
and it was refuted by Sullivan and Peacock
I conclude on the basis of all the evidence presented at
the hearing that the General Counsel has failed to
present sufficient evidence to establish a prima facie
showing that the petition was tainted by management in
volvement In making this determination, I have also
considered the testimony of Peacock which was in sever
al respects inconsistent with respect to who decided to
initiate the initial petition other than himself among other
inconsistencies in his testimony Some of this testimony,
in addition to the testimony of Fell and Pate, gives rise
to a suspicion that there may have been management in
volvement in the circulation of the petition However
mere suspicion is insufficient to establish a prima facie
case of a violation of the Act and I find that the testimo
ny presented by the General Counsel is insufficient to
support an inference that Respondents management was
involved in the circulation of the petition
C The Alleged Disparate Enforcement of the Work
Rule Prohibiting Employees from Leaving Their Work
Area
Former employee and union supporter Elmore Pate
testified that Superintendent Harold Price told him to
stay in his work area even when he had no work to do
Employees Marcus Chastang and Viola Dunn testified
that employees were permitted to go to the bathroom
and get snacks or drinks in the lunch area but were not
permitted to wander around the plant
Similarly, Plant Manager Sullivan Superintendent
Price, and Foreman Sullivan testified to the recurring
problem with employees leaving their own work areas
and stopping by other employees areas to talk on their
way to and from the restroom or lunch area Price test[
fled that Pate was the worst offender Pate was never
disciplined for this offense Various employees have been
told to get back to their work areas, but this has been the
extent of the enforcement of the rule
I credit the testimony of Respondent s management
representatives Plant Manager Sullivan Supervisor Sul
livan, and Plant Superintendent Price as supported by
the testimony of other employees I find the evidence
presented by the General Counsel does not support a
finding of disparate enforcement of the rule against union
supporters in violation of Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All production and maintenance employees, proba
tionary employees and truckdrivers employed by
Respondent at its Bay Minette Alabama plant ex
cluding temporary employees, office clerical em
ployees, guards and supervisors as defined in the
Act
4 The Respondent did not unlawfully threaten or in
terrogate its employees within the meaning of Section
8(a)(1) of the Act
5 The Respondent did not violate Section 8(a)(3) and
(1) of the Act by its discharge of employee Dwight
Sanders
6 The Respondent did not unlawfully promote or
assist in the circulation of a petition to decertify the
Union and did not unlawfully withdraw recognition and
institute unilateral changes in violation of Section 8(a)(5)
and (1) of the Act
7 The Respondent did not disparately enforce a work
rule in violation of Section 8(a)(1) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed3
ORDER
The complaint is dismissed in its entirety
a If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses