Peavey Co.

National Labor Relations Board - Board Decisions

May 27, 1980

249 N.L.R.B. 853 (N.L.R.B. 1980)

PEAVEY COMPANY 853
Peavey Company and American Federation of Grain
Millers, Local 81, AFL-CIO. Case 14-CA-
12216
May 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 18, 1979, Administrative Law
Judge J. Pargen Robertson issued the attached De-
cision in this proceeding. Thereafter, counsel for
the General Counsel filed exceptions and a sup-
porting brief, and Respondent filed exceptions and
a supporting brief and an answering brief to the ex-
ceptions of counsel for the General Counsel.
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,' find-
ings,2 and conclusions3 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative aw Judge. It is the Board', established polic n ot to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry lWall ProductLr
Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
2 We agree with the Administrative Law Judge's conclusion that Me-
linda Snider was discharged in violation (of Sec (a)(
3
) and (I) of the
Act. We find that Respondent's asserted reason for the discharge was
pretextual and that Snider was discharged solely because of her concert-
ed and union activities As the Administrative Law Judge fould. Re-
spondent tolerated Snider's poor job perfiormance for over 18 months
until she instigated inquiries into employees' work grievances This, coup-
led with Respondenl's animus towards Snider's concerted and uion alLc-
tis.ties. as well as the timing of her discharge, demonstrates that Re-
spondent was motivated by Snider's protected actiVities when it dis-
charged her
' As found b the Administrative Law Judge, on Nosember 30. 1978.
Respondent's ice president, Richard Johnson, called Melinda Snider into
his office and told her that she was a confidential employee, and that she
could not engage in any union activities. The Administrative Law Judge
found that Johnson's remarks served no purpose other than to interfere
with Snider's union activities, and that the remarks constituted a violation
of Sec. 8(a)(1) of the Act. Respondent excepts to this finding, arguing
that under Cato Show Printing Co.. Inc.. 219 NLRB 739 (1975), since Re-
spondent believed in good faith that Snider was a confidential employee.
Johnson's comments were not violative of the Act We find no merit in
Respondent's argument Cato dealt with restrictions lon the activities of
alleged supervisors, and it is clear that an employer can restrict the actis-
ities ,of supervisors Confidentials have a much different status in that em-
ployers are not entitled to restrict their protected activities Thus, wvhelh-
er or not Respondent honestly iewed Snider as a confidential employee
is of no moment here since Snider was entitled to engage in such actisi-
ties even if she were a confidential. Wheeling Electric Company, 182
NL.RB 218 (1970), enforcement denied 444 F.2d 783 (4th Cir. 1971); Peer-
less of America. Incorporaued, 198 NLRB 982 (1972), enforcement denied
in relevant part 484 F.2d 1118 (7th Cir 1973). See also Los ngelh's ,Ne
Ho,.pital, 244 NLRB No 157, fir 4 (1979) Thus, we adopt the Adminis-
trative Law Judge's finding that Johnson's remarks to Snider instructing
her that she could not engage in union activities iolated Sec 8(a) I1) of
the Act
249 NLRB No. 110
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein. 4
The Administrative Law Judge dismissed an alle-
gation that Respondent's vice president, Richard
Johnson, unlawfully promised employee Deborah
Dickerson improved working conditions, finding
that Johnson's statement was too ambiguous to
constitute anything which an employee could rea-
sonably construe as a promise to improve working
conditions. Counsel for the General Counsel ex-
cepts to this finding, and we find merit in his ex-
ception. The Administrative Law Judge credits
Dickerson's testimony that:
I mentioned something about the bad working
conditions in the office and Dick [Johnson]
said that he had not been aware of them, we
had opened his eyes and that he was glad of
this and he was going to see that things had
gotten better, that attitudes had changed.
We find that Johnson's statement was a promise to
improve conditions in the future. The remarks
were made during the course of his other com-
ments about why an employee should vote against
the Union. Respondent's argument that conditions
in the office had in fact changed for the better as a
result of the employees' activities, and that John-
son's statement was merely a recognition of this
fact, overlooks the fact that the thrust of Johnson's
statement was prospective: Johnson "was going to
see that things had gotten better." (Emphasis sup-
plied.) This statement clearly refers to future events
and constitutes a promise of improved working
conditions. As such, the statement is a violation of
Section 8(a)(l) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Peavey Company, Alton, Illinois, its officers,
Chairman Fanning finds it unnecessary to distinguish Cato since he
would not follow that case in any event See his dissenting opinion ill
that case.
For the reasons set forth above, Member Truesdale finds the instant
case distinguishable from Cato. He therefore further finds it unnecessary
to express a position with respect to the particular issues insolved in that
case
' In par l(f) of his recommended Order, the Administrative La"
Judge uses the broad cease-and-desist language. "in any other manner "
However, we have considered this case In light of the standards set forth
in Ilickmottr ioods, In., 242 NLRB No 177 (1979), and have concluded
that a broad remedial order is inappropriate inasmuch as it has riot been
shown that Respondent has shown a proclivity to iolate the Act or has
engaged i such egregious or widespread misconduct as to demonstrate a
general disregard fior the employees' fundamental statutory rights Ac-
cordingly, w'e shall modify the recommended Order and notice so as Io
use the narrow injunctive language, "in any like or related manner"
EAVEY COMPANY
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. In paragraph l(c) delete "employee she" and
substitute "employees they."
2. Insert the following as paragraph l(f) and re-
letter the subsequent paragraph (g):
"(f) Promising improved working conditions in
order to discourage its employees' union activi-
ties."
3. Substitute the following for paragraph l(g):
"(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees for
engaging in concerted activities or union activ-
ities on behalf of American Federation of
Grain Millers, Local 81, AFL-CIO, or any
other labor organization.
WE WILL NOT harass our employees by fol-
lowing them around because of their concert-
ed and union activities.
WE WILL NOT change our personnel policies
in order to discourage our employees' union
organizing activities.
WE WILL NOT tell our employees they
cannot engage in union activities.
WE WILL NOT tell our employees that em-
ployers may consider union supporters disloyal
or that union supporters are often not promot-
ed.
WE WILL NOT promise our employees im-
proved working conditions in order to dis-
courage their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Melinda Snider immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges.
WE WILL make Melinda Snider whole for
any loss of earnings she may have suffered as a
result of our discrimination against her, with
interest.
PEAVEY COMPANY
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on May 8, 1979, at St. Louis, Mis-
souri, following a complaint which issued on March 6,
1979. The charge was filed on February 1, 1979.
The complaint alleges Respondent violated Section
8(a)(3) of the Act by discharging employee Melinda
Snider, and Section 8(a)(1) of the Act by harassing em-
ployees by following them around, by granting benefits
during an organizing campaign, by telling an employee
she could not participate in union activities, by granting
higher than normal raises in pay during a union cam-
paign, by telling its employee that union supporters were
considered disloyal, and by promising an employee im-
proved working conditions during a union organizing
campaign.
Upon the entire record and from my observations of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and Respondent, I hereby
make the following:
FINDINGS AND CONCLUSIONS
1. COMMERCE
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
Respondent admits and I find that American Feder-
ation of Grain Millers, Local 81, AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE EVIDENCE
Melinda Snider was employed by Respondent from
January 1977 until her discharge on January 26, 1979.
Although she was rated "competent" throughout her
employment, Respondent's supervisors testified that she
was not a good secretary. One of Snider's supervisors,
Vice President Richard Johnson, testified that Snider
created problems for Respondent from the time they
made her secretary in June 1977 until she was dis-
charged. However, Johnson admitted that Snider was a
good typist.
Snider admitted to personality problems with her im-
mediate supervisor, Sandra Noe, which started during
August 1977.
One of Snider's coworkers, Deborah Dickerson, ap-
parently precipitated a situation which lead to the instant
controversy when Dickerson resigned in October 1978.
Sandra Noe called Dickerson into her office to request
her to continue working. Dickerson was promised a raise
in pay. Dickerson told Noe that she was willing to stay
but that she wanted to see that the problems in the office
were straightened out. Dickerson suggested that some-
PEAVEY COMPANY 855
one in the office act as spokesman and relay the employ-
ees' problems to Noe. Noe asked if Dickerson was will-
ing to act as spokesman. Dickerson agreed but suggested
Mellinda Snider as another employee that would be a
good spokesman. Noe objected, saying there were prob-
lems with Mellinda that would have to be straightened
out before Snider could act as spokesman.
Despite Noe's objection, Snider, along with Dickerson,
began soliciting employee grievances in the hope of pre-
senting them to management and hopefully correcting
some of the matters bothering various employees. Sever-
al meetings were held among the employees. Snider and
Dickerson ran the meetings and did most of the talking.
Sandra Noe admitted learning of those meetings from
one of the employees.
After several of the employee meetings, Sandra Noe
asked in a meeting on either November 3 or 13 if the em-
ployees were prepared to discusss their problems. Noe
pointed out the employees had met several times and she
felt it was time to discuss the problems with her. First,
Mellinda Snider, then Deborah Dickerson, responded
that the employees were not ready and that they did not
have everything organized. Noe testified that she still did
not realize during the November 3 (or 13) meeting that
Snider and Dickerson planned to be spokesmen for the
employees.
During the third week of November, Snider and Dick-
erson went to Noe's office. They informed Noe that they
had their list of grievances and were ready to have a
meeting with her. Snider and Dickerson asked if Direc-
tor of Administration Kermit Bergie, manager of the
barge division, Bob Davis, and Vice President Richard
Johnson could also attend the meeting. Noe told Snider
and Dickerson she would get back to them. Later that
day Noe told Snider and Dickerson that they could not
hold the requested meeting with Snider and Dickerson
acting as spokesmen. Noe testified she told Snider and
Dickerson that she would agree to meet with the em-
ployees individually to discuss their problems.
On November 21, Sandra Noe asked Mellinda Snider
to type a letter. Noe testified that Snider and several
other employees were gathered at Deborah Dickerson's
desk talking. Snider replied that she was on her break
and would type the letter later. Noe replied, "O.K., I
will type it myself." Later that afternoon Noe called
Snider into her office to discuss the above incident and
some earlier problems she had experienced with Snider.
Noe told Snider that she did not want Snider to question
office rules and regulations. When Noe called Snider into
her office Snider remarked that she had to leave at 4:30.
Although the meeting had not concluded at 4:30, Snider
left.
On November 24, Snider received a written repri-
mand. The reprimand cited her November 21 refusal to
type a letter while on break and her leaving the meeting
at 4:30 as acts of insubordination. The employees testified
this was the first written reprimand issued to any of Re-
spondent's employees.
Following receipt of the November 24 written repri-
mand, Mellinda Snider contacted the Union. That night,
at a meeting of employees at Snider's home, Snider told
the employees that she had called the Union and she in-
formed the employees of a meeting with the Union
planned on November 27.
Several employees met with the Union at the Steel-
workers union hall on November 27. Snider was given
some union authorization cards which she distributed to
employees at work the following day, November 28.
Vice President Johnson admitted learning of Snider's
union activities on that same day, November 28. Johnson
testified he received a call from the manager of two of
Respondent's grain loading facilities who told him union
cards were being circulated in Johnson's office by "that
girl."' Johnson testified that Mellinda Snider was, on
November 28, know as "that girl."
Upon learning of Snider's union activity, Johnson con-
tacted Respondent's attorney. With help from his attor-
ney, Johnson prepared and gave an antiunion speech to
the employees on November 29. In the speech Johnson
stated (in part):
It has come to my attention that some of you are
considering signing cards authorizing a union to
represent you.
I want you to know that signing such a card is a
very serious matter. None of you should do so
unless you are willing to accept all the conse-
quences and obligations of union representation.
You may also be told by the union organizer that
signing a card really doesn't mean much, but I
repeat, it is a very serious matter.
Many of you asked questions pertaining to person-
nel files, company policy and salary ranges.
Although we feel personnel files are confidential
and are company property-to satisfy your concern
you may review your personal (sic] file at any time
it is convenient for you and Sandy.
On November 30, Johnson called Snider into his office
and told her she was a confidential employee and could
not be a part of the bargaining unit. Johnson told Snider
she could not engage in any union activities.2 Snider had
never before been told she was a confidential employee.3
' Johnson admitted that he had testified in an affidavit to the Regional
Office that Mellinda Snider was identified as the employee circulating
union cards. However, he testified at the hearing that he recalled the ref-
erence was simply to "that girl." Nevertheless Johnson admitted he as-
sumed "that girl" meant Mellinda Snider.
2 Johnson denied telling Snider she could not take part in union activi-
ties. However, I found Snider to be a candid witness and I credit her
testimony. Johnson altered his testimony at the heanng from his affidavit.
In his testimony he said Snider was not named as the employee circulat-
ing union cards However, in his affidavit he testified that she was identi-
fied by name. I was not impressed with Johnson's demeanor, and I do
not credit his testimony to the extent it conflicts with other evidence.
3 Respondent's counsel stipulated he was not contending that Snider
was not entitled to protection under the Act due to her confidential em-
ployee status. However, he defended the alleged 8(a)(1) violation regard-
ing this conversation as privileged in view of Respondent's honest belief
that Snider was a confidential employee.
PEAVEY COMPANY
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snider appeared at the representation case hearing on
December 20 and 28, 1978, and testified on behalf of the
Union.
On January 1, 1979, employees were granted increases
in pay. Snider received a $100-per-month increase. She
was told by Richard Johnson that she did "all of the let-
ters fine and everything, that my raise was $100 per
month, but that it was not a merit raise. It was going to
bring me up to my base salary." Bob Davis said he
would like for her (Snider) to exert her energies in other
areas. Snider replied, "In other words, keep out of trou-
ble, right?" Davis said, "Right, keep your nose to the
grindstone."
Following her request Deborah Dickerson met with
Richard Johnson in his office on January 12. Dickerson
asked if Johnson could give her any reasons why she
should not vote for the Union. Johnson replied that he
did not know what the Union was promising, but any-
thing they promised would still have to be bargained
over. He told Dickerson that when a union is brought
into a company, a wall can come between employees and
management. He said that sometimes a company will
look upon employees who have brought a union into the
office as disloyal, and disloyal employees are not often
moved up. Johnson said his eyes had ben opened and
that he was going to see that things got better. Johnson
said he hoped that Dickerson could relate his position to
the other employees.
On January 26, Mellinda Snider was discharged. The
discharge was allegedly precipitated by an incident that
occurred on January 25. Three or four letters were left
on Snider's desk for typing by the crew dispatcher, Liz
Stahlhut. Stahlhut was not a supervisor. According to
Snider, she typed the letters and left them on Stahlhut's
desk. After lunch Snider found one of the letters again
on her desk with handwritten notes. Snider returned the
letter to Stahlhut's desk without further work. That
afternoon Sandra Noe came to her and asked if she
(Snider) would type the letters again. Snider replied that
she would. However, Snider was working on a customer
list and she did not get to the letters that day. The next
morning Noe asked Snider if she had typed the letters.
When Snider said she had not, Noe asked why. Snider
replied that she was completing her own work first and
Noe said, alright, and then walked back into her office. 4
At approximately 4:30 Richard Johnson and Kermit
Bergie called Snider in and discharged her.
Snider's discharge letter indicates (1) her job perform-
ance deteriorated following her January 10, 1979, salary
review, (2) she failed to enclose a pay rate change letter
in the January 15 payroll mailing, (3) she failed to pro-
vide 12 filing folders at the request of her supervisor on
January 12 until she was asked again on January 24, (4)
she failed to provide typed addresses on insurance enve-
lopes after being asked during the first week in January
and (5) the January 25 incident regarding the Stahlhut
letters, as reasons for her discharge. The letter also stated
4 Sandra Noe testified that Stahlhut brought her one of the letters after
Snider had typed it and it was sloppy, the margins were uneven, and the
second page was not the same type stationery as the first According to
Noe, Snider did not complete the letter until around 2 p.m the following
day.
that Snider's failure to maintain as confidential 5 informa-
tion concerning other employees and her negative atti-
tude toward her job, her supervisor, and her employer
were other reasons for her discharge.
Sandra Noe, Snider's immediate supervisor, testified
regarding Snider's discharge:
It felt that Mellinda was uncooperative. This letter
(the Stahlhut letter) was actually the result of a
long list of poor work performance, insubordina-
tion, and assigning her own priorities.
We felt we could not live with this situation any-
more.
Richard Johnson told Deborah Dickerson, after
Snider's discharge, that "Mellinda had become just a dis-
turbance that they had had to do it [discharge Snider],
union or no union."
On January 31, Deborah Dickerson complained to
Richard Johnson that Sandra Noe appeared to be follow-
ing her around. Dickerson said that, whenever she went
to another employee, Noe would appear and stand
nearby while she and the other employee were talking.
Dickerson said it appeared Noe would come out of her
office whenever she was talking with Mellinda Snider.
Dickerson testified the problem with Noe stopped short-
ly after her January 31 complaint to Johnson.
IV. CONCLUSIONS
A. The Alleged 8(a)(3) Violation
According to Snider's supervisor, she was fired be-
cause she was uncooperative and she had for a long
period performed her work poorly, engaged in insubordi-
nate conduct, and determined her own priorities. The
evidence supported that assertion by Sandra Noe. How-
ever, I find that the evidence also demonstrated that
Snider was discharged because of her union and concert-
ed activities.
The circumstances surrounding Snider's discharge
would, in many instances, justify an employer's action in
discharging her. However, in the instant case Snider did
nothing more than she had been doing for the 18 months
prior to her discharge other than engaging in concerted
and union activities. Snider was in fact uncooperative
and insubordinate but both Noe and Johnson indicated in
their testimony that she had been uncooperative and in-
subordinate since, at least, August 1977. Johnson testified
that Snider had always performed poorly.
Richard Johnson testified that, from the time Snider
became a secretary in June 1977, she had problems
which included, "she didn't follow a lot of the directions
given to her. She did not water the plants like she was
told to do in [Johnson's] office. She did not change the
calendar on [Johnson's] desk as she was told to do.
Every time she would place mail on [Johnson's] desk, in-
stead of being face up and facing at me it was always
turned around backwards. She found it difficult to come
into my office and discuss anything . . . she did not
IThe record remained unclear as to what Respondentl meant when it
stated Snider failed to maintain as confidential information concerning
other employees
PEAVEY COMPANY 857
apply herself.... She was always on the telephone, if
she wasn't on the telephone, she was hard to find at her
desk. .... She didn't, except for one occasion, fly off the
handle to me. But I am aware of other instances where
she has."
Noe testified about an incident in April 1978. After
Snider had been invited to a national secretaries breakfast
by the Company, she came back and typed a letter criti-
cizing Respondent for not inviting more of its employees
and giving them the recognition they deserved. Noe
called Snider in to discuss her letter and, according to
Noe's testimony, "Mellinda was very unreasonable. She
became belligerent, she started screaming at me. I had
never encountered a situation like this before, since I had
been a supervisor.... She also indicated to me that I
was lying to her."
In October 1978, Noe asked Snider for a list of the
open vacations. According to Noe, Snider indicated that
she was busy. "As usual, she would spend time talking to
other employees, or on the phone, and I did not get
them until-I had to ask for them the following day. I
got them and two [of] them were wrong. There was
only three or four of them that was still left open and
two of those were wrong, the days that she gave me
were not correct.... Mellinda seemed to determine her
own priorities rather than go by what I would ask her to
do. And, again, she would not if she felt she was over-
worked, or had too much to do or couldn't do it, some-
times she would say, 'I'm busy' but then on those occa-
sions she would spend time on the phone or talking to
other employees."
Noe testified that, on November 6, she informed
Snider that due to a change in operations, duties had
been reassigned. This resulted in Snider being given
some additional duties. Snider replied that she felt she
should do no more work without more money and that
she felt that was true about everyone else in the office.
Noe asked if she was refusing to do the added work, and
Snider replied, "Yes, not without more money."
Around the time of the November 6 incident Snider,
along with Dickerson and several other employees,
began compiling a list of grievances to present to Noe.
Noe learned of these concerted activities through one of
Snider's coworkers. Despite all the evidence demonstrat-
ing Snider's poor performance as a secretary, she had not
been disciplined in any fashion for uncooperative atti-
tude, insubordination, poor work performance, determin-
ing her own priorities, or anything else, prior to her en-
gaging in concerted activities in late October and early
November 1978. Thereafter, on November 24, she re-
ceived the written warning for refusing to type a letter
during her break and for leaving a meeting with two su-
pervisors at the end of her shift.
After the November 24 warning, Snider contacted the
Union and started soliciting other employees to sign au-
thorization cards at work. Richard Johnson, upon hear-
ing that "that girl" was circulating union cards, assumed
"that girl" referred to Mellinda Snider.f Snider thereaf-
s On November 30. Richard Johnson told Snider nol to egage in
union activities because she "as a confidential emplosee
ter testified on behalf of the Union in the December 20
and 28, 1978, representation case hearing.
Snider's discharge followed a $100 raise in pay some
16 days earlier. 7 During her salary review Snider was
told her raise was not based on merit but was to bring
her up to base salary. She was told to exert her energies
in other areas. 8
Under the circumstances of this case, I must question
why such a marginal performance employee with a poor
attitude was retained without discipline until she instigat-
ed inquiries into employees' work grievances. Respond-
ent, by Davis', Bergie's, and Johnson's refusal to meet
and discuss those grievances with Snider and Dickerson,
demonstrated its animus toward that activity. Respond-
ent's animus toward Snider's union activities was clearly
evidenced in Johnson's November 29 speech to the em-
ployees and Respondent's 8(a)(l) activity, which is dis-
cussed below.
In view of Respondent's tolerance of over 18 months
of Snider's poor job performance, its animus toward her
concerted and union activities, the timing of her dis-
charge, and my findings that the asserted basis for her
discharge was activity typical of her past behavior on
the job which went unpunished, I must and do find her
discharge was motivated at least in substantial part by
her protected activities and thus violated Section 8(a)(3)
of the Act.
B. The Alleged 8(a)(l) Violation
1. Since November 20 and mid-January, Supervisor
Sandy Noe harassed employees by following them
around because of their union activities (complaint par.
5(a) and (E)):
Mellinda Snider testified that from November 24, until
her discharge "Sandy began popping up at my desk if I
was on the phone. If somebody was at my desk, she
would come to the file cabinet next to it. If I went to
somebody else's desk, she would go around through the
back way and come out and stand close to where I was
at." Snider testified that this had not occurred with the
same frequency prior to her contacting the Union.
Deborah Dickerson testified that during the weeks of
January 22 and 29, "like every time I would get up from
my desk and go to another employee's desk to discuss
anything, [Sandy Noe] would be there behind me. And
she would just stand there and not say anything. When I
would go back to my desk, she would go back to her
office." Dickerson complained to Richard Johnson about
Noe's actions on January 31. Dickerson noticed that Noe
did not appear during her conversations with other em-
ployees following January 31.
Sandra Noe denied following or harassing employees
because of their union activities. However, I found both
Snider and Dickerson to be straightforward, candid wit-
7 Alithough the raise became effective orn January I, Sider's salary
rea itle occurred on Januar 10
As indicated earlier I credit Snider over Richard Johnson I find in
agreement ith Snider that she was not told her work performance was
poor and inadequate and that she had to improve during her January 10
salilr) review.
Lw'rr Trucinrg Comnpany. 20( NLRB 672, 677 (1972): Hackett Prec(-
uon Contparl, 190 NLRH 408 (1971): and San Jose Bavarian Motors, 229
NIRB 127. 128 (1977)
PAVEY COMPANY
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses. Dickerson was employed by Respondent when
she testified. I credit their testimony regarding the above
incidents and discredit Noe's denial. I also find that
Noe's actions were designed to interfere with Snider,
Dickerson's, and other employees' union activities. Testi-
mony revealed that prior to November 24, 1978, employ-
ees occasionally discussed nonwork related matters at
work without interference. I find that Noe's actions had
the likely effect of interfering with employees' union ac-
tivities and violated Section 8(a)(1) of the Act.
2. On November 30, Respondent granted benefits to
employees by changing personnel file policy:
During Johnson's November 29 speech he made the
following comment:
Many of you asked questions pertaining to person-
nel files, company policy and salary ranges.
Although we feel personnel files are confidential
and are company property-to satisfy your concern
you may review your personal [sic] file at any time
it is convenient for you and Sandy.
Mellinda Snider testified that it was her understanding
that, before November 29, employees were not allowed
to see their personnel files. That understanding was sup-
ported by the testimony of Richard Johnson. Johnson
testified that he was unaware that employees could view
their files until November 29. Johnson's testimony was to
the effect that his speech did not represent a change in
policy but that he was unaware the policy was to let em-
ployees see their files. Under those circumstances I find
that Johnson's speech, at the very least, held out to em-
ployees an improved working condition. Regardless of
the actual policy, if Johnson and his employees under-
stood the policy to be contrary to employees seeing their
personnel file, then his speech represented a change for
those employees. Moreover, Johnson's speech (above)
implies a change of policy. Johnson admitted learning of
the union organizing campaign on the day before his
speech. Therefore, I find in support of the General
Counsel that Johnson's announced change was designed
to interfere with the employees' union activities and con-
stitutes a violation of Section 8(a)(1) of the Act.
3. On November 30, Vice President Johnson told an
employee she could not participate in union activities:
As indicated above I credit Snider's testimony that
Johnson called her into his office and told her she could
not engage in any union activities. Respondent contends
that the comment was not a violation since Johnson hon-
estly believed Snider was a confidential employee.
In considering this particular allegation, I am aware
that Respondent may have found it necessary to protect
confidential information which might be within Snider's
knowledge. However, I note that Johnson said nothing
to Snider about retaining confidential facts. Therefore, I
find his comments served no purpose useful to Respond-
ent other than to interfere with Snider's union activities.
I am unaware of authority supporting Respondent's
"honest belief" argument and I note that Respondent
cites no such authority. In the absence of such authority
I find Johnson's remarks constitute an 8(a)(1) violation.
4. Since January 1, 1979, Respondent has granted
higher than normal raises to employees:
The General Counsel argues that Respondent's Janu-
ary pay increase was higher than any previous year and
was not approved until after the union organizing drive
started, and is, therefore, a violation.
However, unrebutted evidence revealed that a recom-
mendation for a companywide change of wage review
date from August I to January was approved in Febru-
ary 1978. In order to avoid a 17-month lull in wage in-
creases, Respondent decided on a small raise to its em-
ployees in August 1978, then a larger raise in January
1979. Thereafter, wage reviews would occur on January
1. Therefore, as the General Counsel asserts in his brief,
a small raise of 4.34 percent was granted in August 1979.
By memo dated July 31, 1978, Respondent notified all
its managers to advise employees that the effective date
of the salary review was being changed from August 1
to January 1, and that the current increase in compensa-
tion (August 1) covers only 5 months. Respondent con-
tends that the larger than normal increase in January was
necessitated by the 17-month lapse since the last full year
salary review.
In view of Respondent's announced change in its wage
review policy which predated its employees' union activ-
ities, I find Respondent's action places it within the
scope of that activity found permissible in Arrow Elastic
Corporation, 230 NLRB 110, 112 (1977).10 The evidence
does not demonstrate that the larger than usual increase
was caused by anything other than the 17-month lapse
since the last full year's raise, as asserted by Respondent.
Therefore, I find no violation in the January pay in-
crease.
5. In mid-January Respondent told an employee that
employees that started the union would be considered
disloyal and that the Company does not move up disloy-
al employees:
Deborah Dickerson aksed to speak to Vice President
Johnson in January. On January 12, she was called into
Johnson's office. Dickerson asked Johnson for any rea-
sons why she should not vote for the Union. During the
conversation that followed, Johnson told Dickerson,
"sometimes a company will look upon employees who
have brought a union into the office as disloyal, and dis-
loyal employees are not often moved up." Johnson ad-
mitted talking to Dickerson but denied making the state-
ments regarding disloyal employees. As indicated above
I was not impressed with Johnson's demeanor. I credit
Dickerson's version of the January 12 conversation.
Although Dickerson admitted she thought Johnson
was speaking of companies in general and not Respond-
ent when he talked about employees being disloyal, she
also recalled that Johnson asked her to inform the other
employees of his thoughts. Under the circumstances, I
find Johnson's remarks are violative of the Act. A rea-
sonable employee would most likely understand his re-
marks to warn of a danger associated with engaging in
union activities. I find those remarks constitute interfer-
ence and violate Section 8(a)(l) of the Act.
10 Schwab Foods. Inc.. d/b/a Scotts ICGA Foodliner, 223 NLRB 394
(1976).
PEAVEY COMPANY 859
6. In mid-January Vice President Johnson promised
improved working benefits:
During their January 12 conversation Johnson told
Dickerson:
[Johnson] said he had not been aware of [the bad
working conditions], we had opened his eyes and he
was glad of this and he was going to see that things
had gotten better, that attitudes had changed.
I find that statement too ambiguous to constitute any-
thing which an employee could reasonably construe as a
promise to improve working conditions. Therefore, I
find that particular statement by Johnson does not vio-
late Section 8(a)(1) of the Act.
Upon the foregoing findings of fact and upon the
entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent Peavey Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. American Federation of Grain Millers, Local 81,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By harassing its employees by following them
around while they talk with other employees, because of
their union activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By changing its policy to permit employees to view
their personnel file in order to interfere with its employ-
ees union organizing campaign, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By telling employees they cannot participate in
union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the
Act.
6. By telling employees that employees who start a
union may be considered disloyal and that disloyal em-
ployees are no often promoted, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. By discharging its employee Mellinda Snider be-
cause she engaged in protected concerted activities and
union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
8. Respondent did not engage in unfair labor practices
by granting a higher than average wage increase to its
employees on January 1, 1979, or by telling employees it
would see that things got better.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As I have found Respondent unlawfully discharged
Mellinda Snider, I shall recommend that Respondent be
ordered to offer her immediate and full reinstatement to
her former job or, if that job no longer exists, to a sus-
tantially equivalent position, without prejudice to her se-
niority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make Snider
whole for any loss of earnings she may have suffered as
a result of the discrimination against her. Backpay shall
be computed with interest as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 136 NLRB 716 (1962); and Florida Steel
Corporation, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '
The Respondent, Peavey Company, Alton, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Harassing its employees in order to interfere with
its employees' union activities.
(b) Changing its personnel policy in order to discour-
age its employees union organizing activities.
(c) Telling its employees they cannot participate in
union activities.
(d) Telling its employees that employees who start
unions may be considered disloyal and that disloyal em-
ployees may not be promoted.
(e) Discharging its employees because they engage in
protected concerted activities and union activities.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Mellinda Snider full and immediate reinstate-
ment to her former job, or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges. Make whole
Mellinda Snider for any loss of earnings suffered as a
result of the discrimination against her in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under this Order.
(c)Post at its Alton, Illinois, facilities copies of the at-
tached notice marked "Appendix." 2 Copies of said
I In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
121n 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 Pursu-
Continued
PEAVEY COMPANY
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for places where notices to employees are customarily
Region 14, after being duly signed by Respondent's rep- posted. Reasonable steps shall be taken by Respondent to
resentative, shall be posted by it immediately upon re- insure that said notices are not altered, defaced, or cov-
ceipt thereof, and be maintained by it for 60 consecutive ered by any other material.
days thereafter, in conspicuous places, including all (d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
ant to a Judgment of the United States Court of Appeals Enforcing an steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board."