Peck, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 451 (N.L.R.B. 1984)

PECK, INC.
Peck, Incorporated and Local 741, Laborers Inter-
national Union of North America and Local
303, Graphic Arts International Union, AFL-
CIO-CLC. Cases 25-CA-13476 and 25-CA-
13787
28 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 25 May 1982 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and Respondent filed an answering
brief.
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, and
conclusions' and to adopt the recommended Order
as modified. 2
' In the absence of exceptions, we adopt pro forma the judge's finding
that Respondent's president, Flander, unlawfully conveyed a message of
futility when he stated that only the skilled employees were unionized at
the Respondent's Minnesota plant and that the packaging department em-
ployees never selected a union to represent them.
In the absence of exceptions, we also adopt pro forma the judge's find-
ing that the Respondent's president, Flander, unlawfully engaged in sur-
veillance by staring at employee Barbara May on two separate occasions
while she was working.
The General Counsel has excepted to the judge's finding that Supervi-
sor Tim Adams did not unlawfully interrogate Barbara May. In light of
the Respondent's numerous other violations of Sec. 8(aXl) and (3), we
find it unnecessary to reach this issue. It would be cumulative to find an
additional unlawful interrogation in the circumstances of this case, and
the remedy would not be altered even if the violation were found.
We agree that the Respondent's discharge of employee Doug Dixon
violated Sec. 8(aX3) and (1). In doing so we do not adopt the judge's
statement that Wright Line, 251 NLRB 1083 (1980), is "not applicable" to
the discharge. We find that the General Counsel has met its burden under
Wright Line of establishing that protected conduct was a motivating
factor in the Respondent's decision, and we also find that Respondent has
failed to establish that it would have discharged Dixon even in the ab-
sence of his protected activity.
I In support of his recommendation that the Board issue a broad cease-
and-desist order, the judge erroneously relied on NLRB v. Entwistle AMg.
Ca, 120 F.2d 532 (4th Cir. 1941), enfg. as modified 23 NLRB 1058
(1940). The proper analysis for determining the scope of a cease-and-
desist order is set forth in Hickmott Foods, 242 NLRB 1357 (1979). Utiliz-
ing that analysis, we do not find that the Respondent's unlawful conduct
warrants the issuance of a broad order. Consequently, and since the judge
failed to include any injunctive language in the recommended Order, we
shall modify the Order by inserting a provision requiring the Respondent
to cease and desist from violating the Act "in any like or related
manner."
Consistent with our decision in Sterling Sugars, 261 NLRB 472 (1982),
we shall require the Respondent to expunge from its records any refer-
ence to employee Dixon's unlawful discharge. We shall also require the
Respondent to notify Dixon in writing of such expunction and to inform
him that the Respondent's unlawful conduct will not be used as a basis
for future personnel actions concerning him.
269 NLRB No. 73
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Peck, Incorporated, Bloomington, Indi-
ana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Insert the following as paragraph 1(l).
"(1) 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."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly.
"(b) Remove from its files any reference to the
unlawful discharge of Doug Dixon and notify him
in writing that this has been done and that the dis-
charge will not be used against him in any way."
3. 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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of their protected rights
by:
(a) Telling employees not to talk with an investi-
gative agent of the National Labor Relations
Board.
(b) Promising employees benefits in the midst of
their organizing campaign in an effort to dissuade
them from selecting the Union as their representa-
tive.
(c) Asking employees why they think they need
a union, telling employees we would rather deal
with them than with the Union, and asking em-
ployees for their opinion about the Union.
(d) Telling employees we would know who
signed the cards for the Union, thereby creating
the impression among employees that their organiz-
ing activities are under surveillance by us.
(e) Telling employees we have 3000 applications
on file and, if they are unhappy there, they know
what they can do.
(f) Telling employees notices to employees to be
posted on the employees' bulletin board must be
signed and okayed by us before posting.
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Reprimanding and admonishing employees
for engaging in union organizing activities in the
employees' cafeteria, the restrooms, or on company
time.
(h) Staring at an employee for long periods of
time following an angry reprimand to said employ-
ee for engaging in lawful organizing activities,
thereby creating the impression that said activities
are under surveillance by us.
(i) Creating the impression that employees' orga-
nizing efforts would be futile.
(j) Implying that nonunion employees would not
be laid off if employees selected the Union as their
representative.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act, except to the extent that such rights may
be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL offer Doug Dixon immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify him that we have removed from
his files any reference to his discharge and that the
discharge will not be used against him in any way.
All our employees are free to become, remain, or
refuse to become or remain members of Local 741,
Laborers International Union of North America, or
Local 303, Graphic Arts International Union,
AFL-CIO-CLC, or any other labor organization.
PECK, INCORPORATED
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge.
Upon a charge of unfair labor practices filed in Case 25-
CA-13476 on April 24, 1981, by Local 741, Laborers
International Union of North America, herein called
Local 741, and a charge of unfair labor practices filed in
Case 25-CA-13787 by Local 303, Graphic Arts Interna-
tional Union, AFL-CIO-CLC, herein called Local 303,
against Peck, Incorporated, herein called the Respond-
ent, individual complaints were issued by the Regional
Director for Region 25 in Case 25-CA-13476 on May
29, 1981, and an amendment to said complaint on June
16, 1981. A complaint and an order consolidating com-
plaints in Cases 25-CA-13476 and 25-CA-13787 was
issued on September 11, 1981, and an amended consoli-
dated complaint on November 19, 1981.
The consolidated complaint as amended alleges that
the Respondent interrogated employees regarding their
union membership, activities, and sympathies; that the
Respondent created the impression among its employees
that their union activities were under surveillance by the
Respondent; that the Respondent promised its employees
fringe benefits in order to encourage its employees to
reject the Union as their exclusive representatives; that
the Respondent removed its employees' notices from the
bulletin board in order to discourage them from support-
ing or assisting the Union; that the Respondent required
its employees to date, sign, and secure clearance from it
prior to posting notices on the bulletin board, in order to
discourage their support of the Union; that the Respond-
ent issued unwarranted reprimands to employees in order
to discourage them from engaging in union activities;
that the Respondent, by verbal announcement, promul-
gated a rule prohibiting solicitation on company time or
in its restrooms and cafeteria; that the Respondent threat-
ened employees with discharges if they supported the
Union; that the Respondent informed employees that, in
the event of a layoff, nonunion employees would not be
laid off; that the Respondent advised its employees to re-
frain from speaking to agents of the National Labor Re-
lations Board; and that the Respondent warned its em-
ployees in writing that it would be dangerous to join,
form, or assist the Union in any way, all in violation of
Section 8(a)(1) of the Act; and that the Respondent also
discharged one employee for concertedly complaining
about wages, hours, and working conditions, and dis-
charged another employee because he joined, supported,
or assisted the Union, or because the Respondent be-
lieved he joined, supported, or assisted the Union, both
in violation of Section 8(a)(3) of the Act.
The Respondent timely filed answers to the consolidat-
ed and amended consolidated complaint on June 2 and
13, 1981, September 15, 1981, and November 24, 1981,
respectively, denying that the Respondent has engaged
in any unfair labor practices as alleged in the consolidat-
ed complaint, as amended.
The hearing in the above matter was held before me in
Bloomington, Indiana, on December 7, 8, and 9, 1981.
Briefs have been received from counsel for the General
Counsel and counsel for the Respondent, respectively,
which have been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein Respondent Peck, Incor-
porated, is and has been a corporation duly organized
under and existing by virtue of the laws of the State of
Indiana. At all times material herein, the Respondent has
maintained its principal office and place of business at
Bloomington, Indiana, herein called the facility, where it
is engaged in the light manufacturing, and the assembly
of paper specialty products.
452
PECK, INC.
In the course and conduct of its business operations
during the fiscal year ending March 31, 1981, the Re-
spondent sold and shipped from its Bloomington, Indiana
facility products, goods, and materials valued in excess of
$50,000 directly to points located outside the State of In-
diana. During the same period, the Respondent in the
course and conduct of its business operations purchased
and received at its Bloomington, Indiana facility prod-
ucts, goods, and materials valued in excess of S50,000 di-
rectly from points located outside the State of Indiana.
The complaint alleges, the amended answer admits,
and I find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the parties stipulated, and I find
that Local 741, Laborers International Union of North
America and Local 303, Graphic Arts International
Union, AFL-CIO-CLC, are, and have been at all times
material herein, labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a manufacturer of "To and From"
tags for Christmas, and decorations for Halloween,
Christmas, Valentine's Day, St. Patrick's Day, Easter, as
well as a line of bulletin board aids distributed through
school supply houses and teacher stores for grades kin-
dergarten through six.
At all times material herein the following named per-
sons occupied the positions set opposite their respective
names, and were supervisors of the Respondent within
the meaning of Section 2(11) of the Act, and agents of
the Respondent within the meaning of Section 2(13) of
the Act:
Leo Flander
Robert Lemke
John W. Peck
Marlene K. Watts
Joyce Scalze
Jerry Ajer
Tim Adams
Chuck Ward
President
Vice President
Vice President
Personnel Director
Supervisor
Manager
Supervisor
Supervisor of Packaging
During the first 8 or 9 months of 1981, the Respondent
had in its employ approximately 120 persons. Through-
out that period the Respondent's president, Flander, tried
to tour his plant once a day for human relations pur-
poses, to enable him to know the employees and to ob-
serve production. His tours were from 20 minutes to 2
hours in duration. One phase of the manufacturing proc-
ess at the Respondent included a light assembly line on
which workers performed a job called "plucking." This
operation involved a worker standing by the conveyor
belt and using his or her middle finger and thumb to
pluck out the perforated tabs, in a stack of perforated
cards to be placed on the assembly line in tempo with a
blinking light at the other end, which served as the time
counter.
The Respondent operated the same type of plant in
Minnesota before moving to Bloomington. A few super-
visory personnel and one employee came from Minneso-
ta and commenced preparation for operation of the
Bloomington plant in about May or June 1980. The Re-
spondent and its processing facilities moved into its new
plant in November 1980, during which time it was inter-
viewing applicants for employment. The plant finally
opened for production in January 1981.1
B. The Organizing Activities of Respondent's
Employees and Respondent's Reactions Thereto
Gayle Grissom has been in the Respondent's employ
from February 9, 1981, to the present time. On March 2,
1981, she signed a union authorization card (G.C. Exh. 9)
for Local 741, attended an organizing meeting on March
3, and thereafter distributed literature (G.C. Exh. 8) and
talked to fellow employees on behalf of Local 741 in the
cafeteria and restrooms of the plant.
Barbara May has been in the Respondent's employ
from February 9, 1981, to the present time, except for an
interruption of approximately 1 month's duration. She
signed a union authorization card on March 5, 1981, and
distributed literature in the cafeteria, restrooms, and out-
side the plant on behalf of Local 741. On March 3 or 4,
1981, Sandra Bartlett received a union authorization card
for Local 741 from a fellow employee in the restroom.
She immediately signed and returned the card to the
same employee.
Sandra Bartlett was employed by the Respondent on
January 19, 1981, as a temporary employee. On March 2,
she received her evaluation from Supervisor Joyce
Scalze, which described her as having an improved atti-
tude, fine quality and quantity of work performance, and
the potential to be an excellent employee. She was also
granted a $20 "merit increase" and permanent work
status.
Tracy Lamb and Sandra Bartlett were quite friendly
prior to Lamb bcoming a group leader on February 9,
when their friendship ceased. Bartlett distributed union
literature in the plant on March 3 or 4. While working
on the line on March 4, Bartlett called to group leader
Tracy Lamb and told her to ignore the employees yell-
ing at her about the assembly line moving too rapidly,
because they knew it was not her fault. This was not an
uncommon complaint by employees. Lamb started shout-
ing and told Bartlett "if you do not like it, you can get
the hell out." Lamb walked away and the employees
went to lunch.
However, when the employees returned from lunch,
Bartlett was rotated to the job of transferring. Lamb tes-
tified that she walked over to Bartlett and advised her
that she was not performing her job correctly. Bartlett
responded, "You're doing a piss poor job yourself."
Lamb said she then told Bartlett, "If you did not like it
you can get the hell out." Lamb thereupon reported the
incident to Supervisor Joyce Scalze, and later Scalze
came to her and took her to the office where Kay Watts,
The facts set forth above are undisputed and are not in conflict in the
record.
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartlett, and Manager Jerry Ajer were present. Watts
asked Lamb what happened, and Lamb told her version
of the story. Watts then asked Bartlett several times to
tell her side of the story but Bartlett would only say she
needed the job and requested another chance. Watts said
she advised Bartlett the Respondent could not keep her
if she did not give an explanation for the incident on the
line. When Bartlett did not respond, Watts terminated
her employment. Bartlett was the first employee ever
discharged by the Respondent at its Bloomington, Indi-
ana facility.
Bartlett further testified that, when she reported to the
office, present were Kay Watts, Plant Manager Jerry
Ajer, Tracy Lamb, Supervisor Joyce Scalze, and herself.
Watts advised her that she did not need her kind of
people in the plant; that Bartlett tended to upset the
people on the line and made them hate the job; and that
all she did was complain. Bartlett asked Watts for an-
other chance because she needed the job but Watts said,
"no way, you will be happier elsewhere."
Bartlett testified that she and other employees fre-
quently complained to group leaders and supervisors
about employees sustaining multiple paper-edge cuts on
their hands from performing the plucking operation. In
this regard, Bartlett's testimony is consistent with the tes-
timony of Barbara May and Gayle Grissom, which is un-
disputed and therefore credited. However, none of the
other complaining employees were discharged.
Director Watts testified that she discharged Bartlett
because her altercation with group leader Tracy Lamb
resulted in "disruption of total production," and because
Bartlett refused to give her an explanation for her con-
duct on the line. However, Production Manager Jerry
Ajer, who was a part of the conference in which the de-
cision was made to discharge Bartlett, testified that Bart-
lett was discharged only for telling Lamb she was doing
a "piss-poor job."2
2 Based on the demeanor of witnesses Bartlett and Watts, and on other
credited evidence, both testimonial and circumstantial, I credit and dis-
credit certain portions of the testimony of both witnesses in reference to
Watts' reasons for Bartlett's discharge during the discharge meeting on
March 4 as follows: I credit Bartlett's version that Watts told her she did
not need her kind of people in the plant; and that Bartlett tended to upset
the people on the line and made them hate the job, because when Bartlett
first yelled at Lamb about the speed of the assembly line, she did provoke
an angry and loud response from Lamb to the effect that, "if you don't
like it you can get the hell out." Likewise, Bartlett's statement during the
second incident to Lamb that she was doing a "piss poor job" herself,
could very well have been the basis for Watts telling Bartlett she did not
need her kind of people in the job, and that she tended to upset people
on the line and made them hate the job. On the other hand, I credit
Watts' testimony that she discharged Bartlett because of her altercation
with group leader Lamb and because Bartlett refused to explain her ver-
sion of the incident. I do not credit Watts' testimony that Bartlett's re-
marks to Lamb disrupted total production because the Respondent did
not introduce any evidence to establish even a negligible interruption in
production, if that much. Although Director Watts might have told Bart-
lett all she did was complain, it is possible Watts construed Bartlett's
complaints about the speed of the assembly line as a complaint, and it is
possible she might have construed Bartlett's "piss poor" remark to Lamb
as a complaint by Bartlett. Hence, even if I were to credit Bartlett's testi-
mony, which I do not, that Watts told her all she did was complain, this
statement by Watts would not be interpreted by me as an objection by
Watts to Bartlett's complaint about the speed of the line, since other em-
ployees also complained about the speed of the line. These conclusions
are further supported by the fact that the evidence of record does not
The uncontroverted evidence established that, on the
same afternoon (March 4), employee Lee Ann Walek
yelled at her group leader and refused to follow instruc-
tions from the latter about the work. Walek was sum-
moned to Watts' office, charged with insubordination,
and given a verbal warning which was not included in
her personnel file. Although Walek told Watts group
leader Lamb misunderstood her comment ("If you can
do a better job, come over here and do it yourself"), she
said she meant for Lamb to come over and show her
how to to do it. Watts told Walek not to yell across the
assembly line where her comments could be misunder-
stood. Thereafter, Walek remained in the office and told
Watts that she had heard union literature was being dis-
tributed in the plant. Although Watts and Walek denied
that Watts asked her or that she voluntarily told Watts
which employees were responsible for the union litera-
ture distribution, I do not credit their testimony in this
regard because it is inconsistent with what later hap-
pened, as well as the tenor of all the credited evidence
regarding Respondent's antiunion attitude and conduct
herein discussed, infra.
The above essentially uncontroverted and credited evi-
dence raises the question as to whether the Respondent's
discharge of Bartlett was motivated by Bartlett's and
other employees' complaints about paper cuts substained
on the hands from performing the plucking operation,
and/or complaints about the speed of the assembly line;
or for the above reasons advanced by Watts in her testi-
mony as credited herein.
Although it is clearly established by the evidence that
the Respondent was opposed to unionization of its
Bloomington facility, and that Sandra Bartlett signed a
union authorization card in the restroom on March 3 or
4, the evidence fails to demonstrate that the Respondent
had any knowledge of such activity or Bartlett's involve-
ment therein on and prior to the afternoon of March 4.
The Respondent did receive knowledge on March 4 that
Bartlett complained to group leader Tracy Lamb about
the speed of the assembly line. However, I am not per-
suaded that the Respondent's knowledge of this com-
plaint (which was a common complaint from employees)
alone provides sufficient evidence of an unlawful motive
for the Respondent's discharge of Bartlett under the cir-
cumstances herein.
While it is readily conceded that Bartlett's complaint
about the speed of the assembly line was uttered on
behalf of herself and other employees which constituted
protected concerted activity, it is particularly noted that
neither Bartlett nor any other employee was called to
the office and questioned about such complaint. In fact
the evidence shows the employees went to lunch and, on
their return, Bartlett was in her turn rotated to the trans-
ferring opertion. It was during this operation that group
leader Lamb informed Bartlett that she was not perform-
ing the operation correctly. Bartlett's response was to
the effect that "you're doing a piss poor job yourself." It
is not shown that Bartlett expressed a willingness to
show that Watts knew that Bartlett was engaged in any form of union or
concerted activity on and prior to the discharge of Bartlett.
454
PECK, INC.
learn how, or that she thereafter performed the job the
way Lamb wanted her to peform it. Bartlett was there-
upon called to the office of Personnel Director Watts,
and asked several times for her version of the latter inci-
dent. When Bartlett failed to give a responsive answer,
she was discharged by Watts.
The above conclusion is further supported when it is
noted that Bartlett did not deny Lamb's version but in a
sense, by telling Director Watts she needed the job and
asking her to please give her another chance, conceded
that Bartlett was responsible for the second March 4 in-
cident.
It is not known whether Watts would have terminated
Bartlett if she had given her version of the incident, but
it is clear that Bartlett first rebuffed the instructions of
group leader Lamb with an intemperate ("piss poor")
remark, and thereafter failed to cooperate with manage-
ment's investigation of the incident. It is also observed
that there was a prior breach in the personal relations of
Lamb and Bartlett which would have contributed to the
latter incident on March 4. Although Walek told Watts
about union literature in the plant on the afternoon of
March 4, it is not shown that this occurred before the
discharge of Bartlett. In fact it appears from the evi-
dence that it occurred subsequent to her discharge.
Moreover, when Bartlett contacted the Respondent sev-
eral weeks after her discharge and requested to be rein-
stated to her job, and voluntarily gave an explanation for
her remarks on March 4, the Respondent reemployed
her immediately. Under these circumstances, I am per-
suaded that the General Counsel's evidence fails to estab-
lish that the Respondent's discharge of Bartlett was moti-
vated by her union or her protected concerted activity.
Additionally, since the evidence fails to demonstrate
that the Respondent discharged Bartlett because of her
union or concerted activity, it is not material why the
Respondent discharged her. As the court held in NLRB
v. Garner Tool & Mfg., Inc., 493 F.2d 263, 268 (8th Cir.
1974), an employer may discharge an employee for a
good reason, a bad reason, or no reason at all, as long as
he is not motivated by unlawful considerations.
Although Bartlett's earlier complaint on March 4 that
the assembly line was operating too rapidly might have
constituted limited protected concerted activity, I not
only find that such activity was the motivating cause of
her discharge, but that it was insufficient to insulate her
from her subsequent insubordinate conduct in response
to instructions given her by her group leader. See St.
Mary's Infant Home, 258 NLRB 1024 (1981), where the
Board upheld the administrative law judge as follows:
I conclude on the basis of her testimony that the
discharge of Johnson took place without knowledge
of her union activity, and was prompted solely by
an extended period of absenteeism which took place
against a background of recent insubordination
toward a supervisor. Accordingly the limited union
activity of Johnson is found to have failed to con-
tribute to the reasons for her termination, and the
8(a)(3) and (1) allegation in her complaint shall be
dismissed. [258 NLRB at 1036.]
Although Watts discharged Bartlett without having
previously issued warnings to her or complying with a
progressive discipline procedure, this fact would appear
to be immaterial since the evidence does not show that
the discharge was motivated by Bartlett's union or pro-
tected concerted activity. Consequently, I conclude and
find that the Respondent's discharge of Bartlett was not
in violation of the Act.
Approximately I month after her discharge, Bartlett
contacted Kay Watts and requested to be reinstated to
her job. Upon consulting with other members of manage-
ment, Watts told Bartlett to come in and the Respondent
rehired her on April 6. After starting work, Bartlett
went to the office to obtain some insurance forms for
hospitalization. She told Watts that she was asked to
speak with a representative from the National Labor
Realtions Board and she did not know what to do about
it. Bartlett said Watts told her not to talk to the Board
representative and everything would be all right. How-
ever, Watts denied that she told Bartlett not to talk to
the Board agent but, instead, told her that it was all right
to talk to him, there was nothing to worry about.3
C. Respondent's Campaign in Opposition to the Union
The undisputed evidence established that the Respond-
ent tries to have a meeting with its employees once a
month. Respondent Personnel Director Kay Watts gen-
erally conducts those meetings. The evidence established
herein that in the late afternoon on March 4, 1981, Per-
sonnel Director Kay Watts learned that union literature
was in the plant. She testified she so informed President
Eugene Flander who acknowledged he first learned
through Watts and employee Lee Ann Walek on March
5 that union cards were being distributed in the plant. He
said he was concerned that the employees felt they
needed a union at this time. He thereupon consulted with
his attorney, counsel herein. Flander immediately author-
ized Director Watts to have a letter (G.C. Exh. 3) re-
typed and distributed to the employees with their checks
on that afternoon (March 5, 1981). The letter (G.C. Exh.
3) read as follows:
It has come to our attention that you may be
asked to sign a union card.
What does it really mean to sign a union card?
As I observed the demeanor of both witnesses as they testified I was
persuaded that Bartlett was telling the truth and Watts was not. Unlike
midday March, by this time in April the evidence clearly shows that the
Respondent, Watts, and Flander had definite knowledge of the union ac-
tivity of specific employees. Additionally, I noted that Bartlett's version
of the conversation was consistent with the Respondent's antiunion posi-
tion and conduct as the evidence clearly establishes in the record, supra
and infra. I was further persuaded that Watts was not telling the truth
when she stated that she told Bartlett to talk with the Board representa-
tive and assured Bartlett everything would be all right. Such advice by
Watts is inconsistent with the evidence of her prior and subsequent con-
duct and attitude towards the Union and the employees who supported
it, further herein discussed, infra. Although these facts were not alleged
in the complaint, they were nevertheless litigated in this proceeding. I
therefore conclude that Watts' advice to Bartlett violated Sec. 8(aXl) of
the Act.
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The card usually is not just a form that the union
can use to get an election, although this is what you
may have been told.
The card could be an "authorization card" by
which you, the signer, may give the union the right
to represent you in all matters concerning your job.
Such cards can be used by a union to gain represen-
tation without an election.
Most dangerous is the fact that the union card
could be a "membership" card.
By signing such a "membership" card you
become a member of that union with all duties and
obligations, legally enforceable. You may then be
subject to such things as union dues, fees, fines and
penalties.
It is not wise to join any organization without
fully investigating why they want you to join. You
should have a full and complete understanding of
what you are giving up and what it will cost you
personally.
In mid-or late March 1981, President Flander admitted
the Respondent held a meeting with the employees
during which he read the above "Know Your Rights"
letter (G.C. Exh. 3) to employees. He also read a letter
(G.C. Exh. 6) dated March 30, 1981, to the employees,
which explained that employees also had a right not to
join the Union, and it emphasized information which
constituted a campaign on behalf of the Employer to
remain nonunion. President Flander also held up and
read a union authorization card for Local 741, emphasiz-
ing that he wanted the employees to know exactly what
they were signing.
According to the testimony of Gayle Grissom, Presi-
dent Flander also told the employees they may be giving
up their right to vote in an election, in fact there may
not even be an election if the Union gets enough cards
signed; that employees would be subject to fines, dues,
initiation fees, and in a very loud voice, he said, "And
we're going to know who signed these cards, so that we
can verify signatures that it was employees for an elec-
tion"; that "if you don't like things here, there are 3,000
applications on file, right Kay?" and Kay Watts nodded
her head in the affirmative. Employee Barbara May cor-
roborated Grissom's testimonial account of what Presi-
dent Flander said in the meeting, adding that, when
President Flander asked Kay to confirm that the Re-
spondent had 3000 applications on hand, Kay Watts
nodded her head in the affirmative and said, "If you're
not happy here, you know what you can do." However,
Flander and Watts denied that Flander made the above
reported statements, and Watts denied that she made the
above-described gesture and quoted comment about
knowing who signed cards and suggesting or telling em-
ployees if they did not like it there they could resign.
Barbara May further testified and corroborated Gris-
som's testimony about the April meeting, to the effect
that Flander said the Respondent gave its employees in
Minnesota certain benefits which he intended to give to
the Bloomington employees, that included a turkey at
Thanksgiving, a ham at Christmas, and a Christmas party
on the last half of the workday of December 18. He also
stated that he was giong to extend the break from 10 to
15 minutes and that there would be a bell or buzzer to
specify the extra 5 minutes for traveling time to enable
workers to get back to their work stations; and that the
Respondent was going to set up a store where employees
could purchase its products at half price, and that notices
for the employees' bulletin board should be dated,
signed, and okayed by the front office. However,
Flander and Kay Watts denied he said the notices had to
be okayed by the front office. President Flander ac-
knowledged he told the employees about Thanksgiving
and Christmas gifts and the Christmas party. However,
he explained that break period was extended simply to
give the employees enough time to get to and from the
restrooms and back to their work stations on time. He
denied he said products of the Company would be sold
at half price, but at regular prices.4
D. Respondent's Interrogation-Impression of
Surveillance of Employees' and Other Intimidating
Conduct Towards Them
Grissom further testified that about 10 o'clock in mid-
April 1981, Personnel Director Kay Watts, accompanied
by Supervisor Joyce Scalze, approached her and Watts
handed her a union meeting notice which Grissom had
posted on the company bulletin board by the timeclock
an hour earlier. Watts said, "Gayle, the bulletin board
across from the timeclock is for personnel use only,"
"we will be erecting one in the lounge for employee no-
tices." As Watts and Scalze proceeded to walk away,
Grissom called them and explained to Watts that she had
received a call from the union representative and he
asked her to help him; that she felt she had not done
enough to help the union organizing effort and she
posted the notice on the board at his request. At that
time Watts asked her why did she feel the employees needed
a union; that the Company would rather deal with the em-
ployees than the Union. Grissom explained to Watts that
she could not talk to Watts, Scalze, or President Flander
because Flander scared her and he scared everybody.
She also told Watts about complaints of herself and other
employees on the line about the work being so hard for
such little pay; and that she has never worked so hard
for so little pay and been treated so badly.
Grissom undisputedly testified that she posted a notice
on the bulletin board for the sale of her husband's motor-
cylce when she first came to work in February, on
4 I credit the testimonial accounts of Grissom, May, Flander, and
Watts, as to what President Flander said in the March and April meet-
ings, except Flander's and Watts' denial that Flander in effect told em-
ployees the Respondent would know who signed union cards so it could
verify signatures of an election; that if employees did not like things at
the plant, there were 3000 applications on file; that employees would be
permitted to purchase company products at half price; that personal no-
tices to be posted on the bulletin board for the benefit of employees must
be dated, signed, and cleared by the front office; and that Director Watts
told employees "if you're not happy here, you know what you can do." I
do not credit their mere denials because I was personally persuaded by
their demeanor that they were not telling the truth. However, I was per-
suaded by the demeanor as well as the mutually corroborated detailed
testimony of Grissom and May, in conjunction with the credited evi-
dence of record as a whole, that their versions were truthful and Flan-
der's and Watts' denials were not.
456
PECK, INC.
which she wrote only her telephone number. About a
week before she posted the union notice, she posted a
notice of a garage sale for her friend, both of which no-
tices were in Watts' hand at the time she approached
her. Grissom told Watts the notices about the motorcy-
cle sale and the garage sale were hers also, and Watts
handed them to her. She attended the company-called
meeting a few days later (April 16, 1981) wherein Presi-
dent Flander conducted the meeting during which he
told employees about the Christmas party, turkeys, etc.,
as Barbara May also testified. May added that Flander
also told the employees that notices for the employees'
bulletin board should be dated, signed, and okayed by
the front office before posting.
Based on the foregoing credited evidence, I conclude
and find that the Respondent (President Flander) told
employees in a company-called meeting that the Re-
spondent was going to know who signed cards for the
Union, so that it could verify signatures for the election.
It is well-established Board law that such a pronounce-
ment by an employer during an organizing campaign of
employees creates the impression that the union activity
of employees is under surveillance by the employer.
Consequently, such conduct by the Respondent is in vio-
lation of Section 8(a)(1) of the Act. Crown Cork & Seal
Co., 253 NLRB 310, 314 (1980); Lundy Packing Co., 223
NLRB 139 (1976).
I further conclude and find that the Respondent (Presi-
dent Flander) told employees that, if they did not like
working for the Respondent, there were 3000 applica-
tions on file; and that Personnel Director Watts told em-
ployees "if you are unhappy here, you know what you
can do." Since these statements by the Respondent im-
mediately followed the above found unlawful statements
by the Respondent, they must be construed in the con-
text in which they were uttered. Thus, the first state-
ments having given employees the impression their union
activities were under surveillance, the Respondent's ref-
erence to 3000 applications on file and telling employees
if they were unhappy in its employ they knew what they
could do, may be, and in all probability was, reasonably
interpreted by the employees that the Respondent was
threatening them with replacement if they signed union
cards or did not allow the Respondent to remain non-
union. Under these circumstances, the Respondent's re-
marks to the employees exceeded the bounds of free
speech, and had a coercive and restraining effect upon
the exercise of employees' Section 7 rights, in violation
of Section 8(a)(1) of the Act. NLRB v. Gissel Packing
Co., 395 U.S. 575 600 (1969).
President Flander testified he informed the employees
about free turkeys, free hams, a Christmas party, and the
extended break period because the Respondent was just
implementing the same fringe benefits for the Blooming-
ton employees that it had previously provided to its Min-
nesota employees. However, the timing of Flander's an-
nouncement in this regard puts credibility in question.
The Respondent's Bloomington facility has been in oper-
ation since January 1981, and the evidence does not
show that the Respondent made any effort to provide
employees with such fringe benefits prior to its full
knowledge of the employees' organizing campaign in
early March 1981. More specifically, it was only less
than 2 weeks after the Respondent acknowledged it
learned of the employees' organizing campaign, and
while the Respondent was engaged in its own campaign
in opposition to the employees' campaign, that it an-
nounced the aforedescribed fringe benefits. Under these
circumstances, the Respondent's anouncement can only
be construed as promises of benefits to dissuade its em-
ployees from unionizing its Bloomington facility. As
such, the promises were designed to discourage the em-
ployees from unionizing the plant and therefore consti-
tuted a restraint upon and coercion against employees'
Section 7 right to organize, in violation of Section 8(a)(1)
of the Act. NLRB v. Exchange Parts Co., 375 U.S. 405,
409 (1964). In holding that such announcement was un-
lawful, the Court said:
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that
the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged.
Also see K d E Bus Lines, 255 NLRB 1022, 1036 (1981).
It is well established by the undisputed evidence that
the Respondent had no prohibition against employees
posting notices to employees on the Company's bulletin
board prior to March. In fact, the evidence shows that
employees had been posting personal notices on the
Company's bulletin board since early February 1981. Al-
though Director Watts testified she was in charge of the
bulletin board and was responsible for notices posted and
removed therefrom, she denied she had seen the two no-
tices (for sale of a motorcycle and for a garage sale),
which she removed from the board with the union notice
and handed to Grissom on or about April 14. I do not
credit Watts' denial in this regard however, because I
find it inconceivable that she took care of the bulletin
board since the Respondent commenced business oper-
ations in January, and did not see employee notices
posted there prior to the very day on which Grissom's
notice about the union meeting was posted. Since the
Respondent's antiunion position had already been well
established at the time Watts removed the notices from
the bulletin board, it is clear that personal notices to em-
ployees were not significant to the Company until the
notice about the Union was posted.
Moreover, assuming that Watts had not in fact seen
personal notices to employees prior to the posting of
Grissom's union notice, it appears strange that Watts
could not have left the notices on the board until 2 days
later, when a bulletin board was to be erected for em-
ployees in the cafeteria. By immediately removing the
notices after the posting of the union notice, and after
Watts ascertained who posted the union notice and per-
sonally delivered it to Grissom, the union animus of the
Respondent, as well as its intention to let organizing em-
ployees know the Respondent knew who they were, is
clearly revealed. K-Mart Corp., 255 NLRB 922, 925
(1981).
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grissom acknowledged to Watts that she posted the
union notice. When Watts asked her why did she feel the
employees needed a union, because the Company pre-
ferred dealing with employees than with a union, such
question by Watts (a high ranking official), in the setting
previously described, constituted coercive interrogation
of employees in violation of Section 8(a)(1) of the Act.
Additionally, by telling employees notices to employ-
ees to be posted on the bulletin board had to be signed,
dated, and okayed by the Respondent prior to posting,
without demonstrating a legitimate business reason there-
for, the Respondent's motive to further discourage em-
ployees from engaging in union activity is clearly re-
vealed. Such conduct by the Respondent had a coercive
and restraining effect on employees' Section 7 rights, in
violation of Section 8(a)(l) of the Act. Liberty House
Nursing Home, 236 NLRB 456, 461 (1978); and Palomar
Transport, 256 NLRB 1176, 1177-78 (1981).
President Flander undisputedly testified that he trans-
mitted a copy of its memorandum (G.C. Exh. 3) to em-
ployees and read the contents thereof to them during his
meeting with employees. Among other things, the memo
warned employees that union membership could be
"most dangerous" "you may then be subject to such
things as union dues, fees, fines and penalties," "if you
hire them [the Union], you will probably have to pay for
their services in the form of monthly dues, initiation fees,
and other special assistance, including 'strike' funds and
fines." In General Counsel's Exhibit 6, the Respondent
refers to the Union as "pushers." Counsel for the Gener-
al Counsel contends that the Respondent exceeded the
bounds of free speech by emphasizing the above-de-
scribed detrimental effects of unionization, and that such
comments were unlawful.
However, I do not agree with counsel for the General
Counsel that the above-described comments were "de-
rogatory" or necessarily described detrimental effects of
unionization. The Respondent was careful to say employ-
ees may be subject to such financial obligations should
they select a union, and certainly they may very well be
so subjected. At most, the Respondent's remarks, that
union membership could be "most dangerous" and its
characterization of labor organizations as "pushers," may
more properly constitute evidence of union animus,
rather than "derogatory" or detrimental effects of union-
ization. The General Counsel did not cite any authority
in support of a stronger and unlawful meaning. The Re-
spondent must be allowed to exercise its right of free
speech, even if it "puffs" a little in doing so. In short, I
find that the above remarks were not of a coercive and
restraining character, sufficient to constitute a violation
of Section 8(a)(l) of the Act.
E. Other Restraining and Coercive Conduct by the
Respondent
On April 23, 1981, while Grissom was performing
what is called the plucking operation on the assembly
line, President Flander, accompanied by Director Watts,
approached Grissom and said in a loud voice, "Gayle
we've had complaints that you've been harassing people, and
making threats about the Union." Grissom continued to
testify as follows:
And I said, I have done nothing illegal, and he
said, well, we've got three people that say you have
been harassing and making threats; and I was get-
ting very nervous.
And, he said, we know your rights as far as orga-
nizing, but not in the bathrooms, not in the cafeteria,
and not on company time.
When someone tells you no, they mean no,
dammit, back off. You've had your warning. And
when he pointed his finger at me, I-I just-well, I
was just so nervous, it was terrible.
I was also told-he told me, that this would not
be on my record.
As Flander and Watts proceeded to walk away, Grissom
said she called Watts and Watts refused to turn around.
After leaving Grissom's work station, President
Flander and Director Watts approached Barbara May at
her work station. Flander appearing angry said, "I've had
complaints about your harassing and threatening people in
the packaging department about union activity" "I asked
you in one of the meetings to keep it clean, and keep it
out of the production area, and you have chosen not to" "I
cannot have this. Now when people tell you no, they
mean no," "when people tell you no, damn you, they mean
no." He walked away but turned and came back and
shook his finger at May and said, "No dammit, I mean
it." "You have had your warnings." "This warning will not
go in your record." Watts repeated to him, "This warning
will not go in your record." The incident with May oc-
curred in the presence of fellow employees Linda Long,
Gloria May, and Dana. Linda Long told Flander, "she
has rights, you should not be out here on the line yelling
at her like this" "she has a right to know who these
people are that said she has committed these wrongs."
Flander looked at Linda Long, pointed his finger, and
said, "this is no damn Court of law, Linda." Linda Long
corroborated May's testimony about the above incident.
On the next day, May said she saw President Flander
sitting near her, staring at her for about 15 to 20 minutes,
as she worked. On another occasion during the day, she
saw him staring at her for approximately 15 minutes. 5
I The testimonial accounts of Grissom and May are essentially uncon-
troverted. However, to the extent that they may be at variance with the
Respondent's (Flander and Watts) testimony, I nevertheless credit theirs
because I was persuaded by their demeanor and the demeanor of another
corroborating witness, Linda Long, in part, that their versions were true
and the Respondent's was not. Although President Flander denied he
stared at May for long periods on two occasions following his intimidat-
ing warnings to her on the day before, I do not credit his denial because
I was persuaded not only by his demeanor, but also by the entire record
evidence of his union animus and unlawful conduct, that he was not testi-
fying truthfully in this regard. The timing of his staring is too probative
in character to attribute to coincidence. Common experience discredits it.
I was fully persuaded by the demeanor of Grissom, and the overwhelm-
ing corroborated and circumstantial evidence of record, that she was a
truthful witness even though the General Counsel's objection to the re-
quest of counsel for the Respondent to review her affidavit was sus-
tained. Counsel for the General Counsel's objection was sustained be-
cause counsel for the Respondent's request to review the affidavit was
not made until he had completed approximately three-quarters of his
cross-examination of Grissom. Counsel for the General Counsel unrelent-
ingly stood upon his objection in a bench conference, and his objection
was erroneously upheld on his and my erroneous misunderstanding that it
Continued
458
PECK, INC.
Based on the above credited evidence, I conclude and
find that the Respondent (President Flander) angrily ac-
cused employees Grissom and May of harassing and
threatened employees on company time about joining the
Union. Since the Respondent did not produce any proba-
tive evidence that either Grissom or May had harassed
or threatened any employee about union membership, I
do not credit its (Flander's) testimony in this regard. At
most, President Flander testified that one or two employ-
ees had informed him that they had been threatened or
harassed by Grissom and May. Such other individual em-
ployees did not testify in this proceeding about state-
ments or conduct by Grissom or May, which constituted
harassment or threatening conduct. In the absence of
such evidence, President Flander's accusations in this
regard are self-serving and therefore discredited. Addi-
tionally, Flander's angry reprimand and admonition to
Grissom to refrain from engaging in organizing activities
in the bathroom, the cafeteria, or on company time; and
May to refrain from organizing activities in the produc-
tion area, or with people in the packaging department,
constituted an interference with, a restraint upon, and co-
ercion against the exercise of employees' Section 7
rights, in violation of Section 8(a)(1) of the Act. Gorman
Machine Corp., 257 NLRB 51 (1981); J. P. Stevens & Ca,
247 NLRB 420 (1980), and T.R. W Bearings, 257 NLRB
442 (1981).
Upon the foregoing credited testimony of Barbara
May, I further conclude and find that, on the day follow-
ing the angry reprimand to May, President Flander on
two occasions during the workday stared at May for a
period of 15 to 20 minutes each. Such conduct by the
Respondent on the day immediately following the angry
reprimand certainly could, and must have been intended
to, have an intimidating and restraining effect on May.
Since the staring was done by such a high ranking offi-
cial of the Respondent (President Flander), such conduct
constituted actual surveillance and/or creating the im-
pression in violation of Section 8(a)(1) of the Act. Cited
authority unnecessary.
Counsel for the General Counsel contends upon the
undisputed testimony of Grissom and May, which I
credit, that by telling the employees during his speech,
"that only the skilled employees at the former Minnesota
plant were unionized, and the packaging department em-
ployees never selected the union to represent them,"
President Flander conveyed to the employees a message
that it would be futile to organize because such organiza-
tional effort in Minnesota was unsuccessful. In support of
his position, counsel for the General COunsel cites
Firmat Mfg. Corp., 255 NLRB 1213 (1981). In my view,
the above statement alone would not constitute an infrac-
tion of 8(a)(1) conduct. However, when such statement is
was supported by the Board's Rules and Regulations. I felt bound by this
erroneously understood and frequently advocated objection in Board pro-
ceedings. In the past, when such objections were interposed, I was able
to persuade counsel for the General Counsel to relent. I was unable to do
so on this occasion and did not have my copy of the rules with me.
However, an examination of Secs. 102.118 2(bXI), 2, and 2(c) of the
Rules and Regulations does not support such an objection. In fact the
rules further provide that the prior testimony may be stricken, upon
motion of opposing party, if the affidavit is not given to the oppposing
party for examination.
considered in the context and along with the Respond-
ent's other unlawful utterances during the speeches, I
find that such remarks do convey a message of futility.
As such they had a coercive and restraining effect on
employees' organizational desires, in violation of Section
8(a)(1) of the Act.
President Flander admitted during his testimony that,
by telling the employees none of the nonunion employ-
ees was laid off in Minnesota, he implied that none of the
nonunion employees would be laid off in Bloomington.
Consequently, such implied remarks constituted a subtle
threat that employees who joined the Union would be
laid off, in violation of Section 8(a)(1) of the Act.
F. Other Alleged Unlawful Interrogation by the
Respondent
In its answer, the Respondent admits that Tim Adams
was a supervisor within the meaning of the Act, as al-
leged in paragraph 4 of the consolidated complaint
herein. In its posthearing brief to me, the Respondent
argues that it also admitted in its answer that Tim Adams
was promoted from a group leader to a supervisor on or
about March 23. Thereafter, the Respondent did not
amend its answer or present any evidence to the con-
trary. Consequently, since Barbara May testified without
dispute that her conversation with Adams occurred in
mid-April, I find that Adams was a supervisor within the
meaning of the Act. However, as counsel for the Re-
spondent argues in his brief, Adams was a fellow worker
with May only a few weeks before he became a lower
level supervisor. The conversation with May occurred
after May told Adams she was having a bad day and
Adams asked her if she would like to talk about it in his
office. May accepted the invitation.
May, while crying, told Adams she was depressed
about the difficulty of the work, low pay, and little op-
portunity for advancement. She testified without dispute
that their conversation continued as follows:
And he said, "Well, Barb, did you receive the
letter in your paycheck?" And I said, "Yes, I re-
ceived the letter in my paycheck." He says, "do you
think that that will change things?"
And I said, "do you mean the letter that was sent
around about our union?" I said, "are you asking
me about the letter, or about the union?"
And he said, "yes," he says, "I'd like to know
your opinion about the benefits here, and your opinion
about the union."
And I said, "well," I said, "I think Peck has good
benefits, I think there needs to be a lot changed," I
said, "I like working here, I like my fellow employ-
ees, but I just-I do believe that they need to have
things changed, and at this time," I said, "I don't
think a union would help, I don't think it would
help at this time."
But I said, "Tim, I don't know whether I can talk
to you about the union, because I don't know
whether I can trust you or not. I don't know how
you feel about it." And he said, "well Barb," he
says, "you can talk to me about anything," and he
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
says, "it's not going to go any farther than this
office, it's just between me and you."
And, he said, "you know, what you tell me," he
says, "won't go any further than what-between
those doors."
And I said, "well, Tim, I don't know whether or
not I can really believe that, the way things are
around here, and everybody don't know who to
trust, people don't know-they can't trust Flanders,
they can't trust Kay Watts," I said "you can't trust
the group leaders," I said, "everything you say,
seems to wind up right back in your face, and
people going-you just, you just can't trust people."
And I said, "I don't know if I can trust to talk to
you about the union."
And I said, "the wages we're making are like
coolie wages, or chink wages, and I think a union in
that part would give us job security, would give us
more money, would help people keep their jobs,
that they wouldn't be afraid anymore."
A close examination of the above testimony clearly de-
scribes a conversation between two people who knew
each other quite well. May felt comfortable enough to
tell Adams how she was affected by the job and Adams
apparently felt confortable enough to ask May how she
felt about the Union, did she think it would help to im-
prove things. While initially May was a little reluctant to
disclose her feelings about the Union, it is clear she
wanted to talk to Adams about it. She only wanted to be
assured it would remain confidential. While Adams did
not specifically assure May against company reprisal, he
did assure her it would remain confidential with him, and
May accepted his pledge of confidence and discussed her
views about the Union. Although the Respondent at this
juncture had a history of union animus, Supervisor Tim
Adams was a lower level supervisor who knew May as a
former coworker only 6 weeks prior thereto. Adams did
not appear to be seeking information to pass on to the
Respondent so that it could take action against May. The
conversation was informal and May's responses were
truthful. While May was initially uneasy about disclosing
her views to Adams, there is no evidence that Adams'
questions inspired fear in May. This is especially true
after May expressed her interest in confidentiality and
Adams so assured her. Under these circumstances, I am
persuaded that such interrogation was not coercive and
unlawful. Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir.
1964), enfg. 144 NLRB 805 (1963).
President Flander further testified that on April 23,
after Bernice Canada told himself, Supervisors Kay
Watts, Joyce Scalze, and group leader Tim Adams, that
she was in the ladies restroom in one of the stalls when
somebody reached under the door and stuffed some
union literature into her purse; and that when she was
leaving the restroom some person in the restroom said,
"watch your car." Canada said she believed the person
was Gayle Grissom or Barbara May. Flander said that is
when he decided to approach Grissom and May. He said
he told Grissom that "we had reports of intimidation and
harassment, that I respected her rights under the labor
law, but these rights did not include the right to harass
or intimidate fellow employees; and that if these types of
things transpired, we wished that they would be discon-
tinued immediately." Flander denied he said anything
else. He said he told May the same thing. However, he
admitted Linda Long was present when he spoke with
May and Long said she thought it was unfair he did not
tell Barbara May who complained. He told Long he did
not think disclosure of the person was necessary. He
denied he told May or any other employee that union
activity in the bathrooms, cafeteria, or on company time
was forbidden. He also denied he engaged in surveillance
on April 24.7
With respect to what he told the employees in the
July meeting after the notice had been posted on the bul-
letin board announcing a union election to be held on
August 14, President Flander testified as follows:
I told them that the Graphic Arts Union then
had filed a petition for an election; that Local 741,
the International Laborers' Union had intervened
with the NLRB regarding that petition. That occu-
pied with the Unfair Labor Practice Charges filed
by the International Laborers' Union effectively
blocked the election; that the tentative date for the
hearing of those charges was set December 7, 1981,
and unless there was some change that there would
not be an election until sometime after that day.
With respect to questions regarding the eligibility of tem-
porary employees to vote, Flander testified as follows:
I told them that we had a lot of questions regard-
ing whether they would have to sign cards or
whether, if there was an election, they would be
able to vote and that type of thing. I told them that
to the best of our knowledge and after checking
with counsel, that it was-there was very little
chance that temporary employees would be certi-
fied to vote in an election; that they really wouldn't
be involved in an election of this type.
Flanders said another rumor which circulated the
plant was that the Respondent left Minnesota because it
was unionized. He said in response to this rumor he told
the employees that Minnesota was unionized by Graphic
Arts but only 8 people were members while 120 produc-
tion employees were not.
G. The Respondent's Discharge of Doug Dixon
Doug Dixon, 21-year-old student at Indiana University
was referred to the Respondent by the university, and
was employed by the Respondent from June 30, 1981, to
July 17, 1981. He rotated on the plucking operation as
did other employees but testified he was never told there
was a production quota. On July 14, 1981, John Orr, an
affiliate of Graphic Arts United, gave Dixon a card to
sign. Dixon signed it and stuck it in his pocket. He at-
tended the company-called meeting of employees 2 days
I was not persuaded by the demeanor nor the testimony of Flander
that he was telling the truth. I was persuaded by the corroborated ver-
sions of Grissom and May, however. Consequently, I do not credit Flan-
der's above denials for the reasons hereinbefore discussed.
460
PECK, INC.
later, on July 16, when President Flander told employees
he had noticed increasing union activity in the plant; that
there was a union in the Minnesota plant but it did not do
much for the employees there; that what the Union would
do is just take a big chunk out of the paycheck of employ-
ees, it would not give them many benefits; and that he did
not understand why there was union activity in the shop.
Flanders then entertained questions from the employees
and received a few regarding vandalism on the parking
lot and another about benefits. Dixon then asked Presi-
dent Flander did he know what exploitation was, and he
testified that his remaining remarks during the meeting
were as follows:
I said I'd never seen it so bad as it is here in this
factory. I said I'd seen ladies out on the factory
line, coming off the line with bloody lines, and I
said, Marilyn Bridges-I think the last name's
Bridges-It's Marilyn Bridges, I think-I said, she
had to be taken off the line, because her hands are
hurting so bad because of the cuts, and how bad she
was bleeding.
A. I worked at Whirlpool and I worked at Bootz
Manufacturing in Evansville, and both those places
had unions, and I never saw anything as bad as it
was in this shop, as far as the exploitations go, and
was concerned. And-
Q. Did Mr. Flander respond to you?
A. Yes, he said that the cuts were superficial
cuts, and I said, well, they sure hurt like real cuts.
And I said-well, when he said that its probably
just because you're a temporary employee, and then I
didn't say anything to that, and he kind of went on
to another-you know, try to get another question
in before, you know, I could say anything else to
him.
On the very next day, July 17, Dixon's group leader,
Lola Vennette (Cookie), proceeded to stack bubbles 16
high, instead of 8 high, as usual. He told her that made it
difficult to manage and she asked him, "do you want me
to go to Chuck," and he said, "yes, I'll talk to Supervisor
Chuck Ward." A few minutes later Ward came to him
and asked him to come along with him. They went into
the office and Kay Watts advised him that he was termi-
nated because he did not pluck fast enough, and he used
abusive language to the group leader. Watts asked Dixon
to sign the termination slip but he refused because he did
not agree with it, Dixon had never received a warning
about being a slow plucker and Ward directed him to
punch out. Dixon said, during his working tenure with
the Respondent, Ward on one occasion told him he was
doing a good job sealing. Watts acknowledged that she
was not sure which document regarding company rules
(R. Exh. 9 and G.C. Exh. 13) she gave to Doug Dixon
on or about June 29, 1981.
Kay Watts further testified that group leader Ashley
Barrow informed her that on July 2, 1981, Barrow in-
formed Doug Dixon that he was missing too many bub-
bles on the assembly line. Dixon jumped out of his chair,
and in a loud manner, called Barrow a "damn liar." On
the day prior thereto, Watts testified that she observed
Dixon miss seven straight bubbles on the assembly line.
On July 17, she said she had a conversation with group
leader Chuck Ward, who told her Dixon told Sylvester
to slow down the line. On the morning of morning of
July 17, Watts testified that she told Teresa Torgison
that she had observed Dixon missing bubbles and Torgi-
son said that was not uncommon for Dixon's work.
Later that day she met with Production Manager Jerry
Ajer and Vice President Bob Lembke and discussed the
report she had received about Dixon. They all agreed to
terminate Dixon. About 5 o'clock that afternoon, she, in
the presence of Ward, advised Dixon that he was being
terminated because of his inability to perform the pluck-
ing procedure and his insubordination.
Watts acknowledged she prepared a reprimand (R.
Exh. I 11) but did not show it to Dixon at the time of his
discharge, but nevertheless placed it in his personnel file.
She testified she did show Dixon his termination notice
(R. Exh. 12) but Dixon refused to sign it. Watts further
testified she discussed Dixon's termination with President
Flander and he agreed to terminate Dixon. On the fol-
lowing Friday, Dixon came into the plant to pick up his
check, and yelled to her, "hey, Kay I'll see you in
court," and she said, "fine Doug, I'll see you there."
Group leader Chuck Ward testified that on July 2,
1981, Ashley Barrow showed him a stack of bubbles
with one-fifth of tags missing, all of which he said was
missed by Doug Dixon. He told Barrow this was only
Dixon's first week and perhaps he should take them back
to him and inform him that he was missing. Later that
evening Barrow came to him and informed him that he
had taken a stack of bubbles and showed Dixon how to
process them but Dixon was still missing bubbles. He
said he told Dixon that due to all the rejects the tags
were not in the bubbles. At that time, Dixon jumped up
and called him a "damn liar." Ward said he took Dixon
to the office and warned him about such vocal outburst
on the line and that he had to improve his speed on
plucking. Thereafter, he wrote a report to Kay Watts.
Watts asked him why he did not include the "damn liar"
statement in his report and have Dixon sign it. Ward told
her because he did not hear the statement and because this
was only a verbal warning. The report was not dated.
On July 16, Jan Sylvester told him Dixon had asked her
to stop putting bubbles on with the light. On July 17,
Ward told Watts that Sylvester told him about Dixon.
That evening, Watts along with Manager Ajer advised
him that they were going to terminate Dixon. Flander
said, although Dixon was terminated on July 17, he did
not participate in his termination. s
Although Doug Dixon was a new and temporary em-
ployee, having been hired June 29 and terminated July
17, 1981, the Respondent treated him as a new employee
being trained until July 17. The date July 17 becomes
significant here only when it is observed that it is the
very day subsequent to July 16, the day on which Presi-
dent Flander met with and explained his curious concern
s The above testimony of Dixon, Watts, and Ward is essentially free of
conflict and is credited for recitation, but not for the truth as the Re-
spondent contends as reasons for the discharge of Dixon.
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees about unionization of the plant. Dixon had
signed a union authorization card on July 14 and attend-
ed the company-called meeting on Thursday, July 16.
Although the evidence does not establish that the Re-
spondent knew Dixon was involved in union activity,
Dixon nevertheless was perhaps the most vocal and criti-
cal employee spokesman at the meeting about working
conditions and plant atmosphere. Not only were Dixon's
critical remarks about work conditions corroborated by
the uncontroverted testimony of Grissom, May, and
Long, but his remarks were articulated in strong and
what might be considered unapologetic language.
As noted, Dixon asked Flander did he know what ex-
ploitation meant, and went on to describe working con-
ditions which were injurious to employees' hands. He
said he had never witnessed such hazardous work and
lack of concern by an employer in his work experience.
Flander told Dixon that was because he was a temporary
employee. While Flander did not explain the latter
remark, it is not incoherent in the context of the discus-
sion they were having. Thus, it may be reasonably in-
ferred from such language by Flander that he was re-
minding Dixon in the presence of other employees that
Dixon may not ever become a permanent employee. No
other reason for such a response is apparent. In view of
the Respondent's well-established union animus, it is rea-
sonable to conclude that the Respondent could not have
appreciated Dixon's very critical remarks in the midst of
its expressed concern about employees unionizing the
plant and its efforts to avoid it.
On the very next day, July 17, Dixon was subjected to
a work experience he had not encountered before. His
group leader stacked bubbles twice as high as they are
normally stacked, and when Dixon complained about the
difficulty to manage the bubbles so stacked, that it posed
a handling problem, he was escorted off to the office of
Personnel Director Watts, who advised him he was ter-
minated because he could not pluck fast enough, and be-
cause he used abusive language towards a group leader.
It is particularly noted that the abusive language to
which Watts was referring occurred more than 2 weeks
before, on July 2, when group leader Barrow informed
Dixon he was missing too many bubbles. Dixon jumped
out of his chair and, in a loud voice to Barrow, told him
he was a "damn liar." Although the incident was re-
duced to writing without the "damn liar" reply, Dixon
was not given a verbal or a written reprimand about the
incident.
At the trial herein, Watts testified that on the day
prior to the "damn liar" incident, July 1, she observed
Dixon miss seven consecutive bubbles on the assembly
line. Watts also testified that, on July 17, group leader
Chuck Ward told her Dixon told employee Sylvester to
slow down the line. Finally, Watts said she told Teresa
Torgison that she had observed Dixon missing bubbles
on July 17. She said Torgison said that that was not un-
common for Dixon. Assuming that Watts' testimony in
this regard is correct, it is readily observed that she did
not issue an oral or written warning or reprimand to
Dixon after July 2, nor after her observation of Dixon
missing bubbles on July 17. In fact, Watts' acute observa-
tion of Dixon missing bubbles on July 17 appears to be a
questionable coincidence, peculiarly occurring on the
very next day after Dixon uttered his sharp criticism to
management in the company-called meeting. Consequent-
ly, based on the foregoing sequence of the evidence, in
light of the well-established union animus and other un-
lawful conduct of the Respondent herein, I conclude and
find that the Respondent's discharge of Dixon was solely
motivated by his critically sharp complaints to manage-
ment during the July 16 meeting.
The fact that the Respondent (Personnel Director
Watts) did not issue the warning to Dixon which she
produced at the hearing regarding the July 2 incident
clearly shows that the Respondent did not view Dixon's
conduct at that time (July 2) as significant, and did not
issue a warning to him in compliance with its progressive
disciplinary procedure. The warning produced at the
trial herein had never been shown to Dixon or signed by
him and, therefore, is of a self-serving character which I
do not credit. It therefore becomes obvious that the Re-
spondent's contention that it discharged Dixon for his
remote "damn liar" remark on July 2, on which it took
no action, or for his deficient plucking, for which it did
not issue him a warning, clearly reveals such contention
by the Respondent to be a well-contrived pretext, to
conceal its unlawful discharge of Dixon. Since Dixon
was discharged for complaining about work conditions,
about which other employees also complained, it is clear
that he was complaining on behalf of himself and other
employees and was therefore engaged in protected con-
certed activity. Since the Respondent's discharge of
Dixon was motivated by his critical complaints in the
meeting about work conditions, its discharge of him was
discriminatory and in violation of Section 8(a)(l) of the
Act.
Since the Respondent has not shown that Doug Dixon
would have been discharged in spite of his sharp and
critical complaints about working conditions at the plant,
Wright Line, 251 NLRB 1083 (1980), is not applicable to
the facts as found herein.
The complaint herein contained numerous 8(a)(1) alle-
gations, to which the evidence referrable thereto is frag-
mented throughout the record. I made a diligent effort to
integrate the testimonial evidence with the appropriate
allegations and make findings with respect thereto. Any
allegations for which evidence was not addressed or
found in support thereof are hereby dismissed.
Counsel for the General Counsel's unopposed motion
to correct the transcript is hereby granted. However, his
motion to amend the complaint is rendered unnecessary
by the issue raised by his motion having been litigated
herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
462
PECK, INC.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices warranting a remedial order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that the Respondent interfered
with, restrained, and coerced its employees in the exer-
cise of their Section 7 rights, by telling employees not to
talk with an investigative agent of the National Labor
Relations Board; by promising employees benefits in the
midst of their organizing campaign; by asking employees
why they throught they needed a union and telling them
the Respondent would rather deal with them than with a
union; by telling employees it would know who signed
cards for the Union; by telling employees it had 3000 ap-
plications on hand and if they did not like it there, they
knew what they could do; by telling employees that em-
ployee notices to be posted on the bulletin board had to
be signed and okayed by the Respondent before posting;
by reprimanding and admonishing employees about en-
gaging in organizing activities in the employees' cafete-
ria, the restrooms, and on company time; by staring at an
employee for long periods of time following an angry
reprimand to said employee for engaging in lawful orga-
nizing activities; by creating the impression employees'
organizing efforts would be futile; by implying to em-
ployees that nonunion employees would not be laid off;
and by creating the impression that employees' organiz-
ing activities were under surveillance by the Respondent,
the Respondent violated Section 8(a)(l) of the Act; that
by discharging an employee because he complained
about working conditions in a company-called meeting,
the Respondent violated Section 8(a)(3) and (1) of the
Act, the recommended Order will provide that the Re-
spondent make the discharged employee whole for any
loss of earnings he may have suffered within the meaning
and in accord with the Board's decision in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977),? except as specifically modified
by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
the Respondent cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed by Section 7
of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
On the basis of the above findings of fact and on the
entire record of this case, I make the following
CONCLUSIONS OF LAW
1. Peck, Incorporated, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 741, Laborers International Union of North
America and Local 303, Graphic Arts International
Union, AFL-CIO-CLC, are, and have been at all times
D See generally Isis Plumbing Co., 138 NLRB 716 (1962).
material herein, labor organizations within the meaning
of Section 2(5) of the Act.
3. By telling employees not to talk with an investiga-
tive agent of the National Labor Relations Board, the
Respondent has violated Section 8(a)(1) of the Act.
4. By promising employees benefits in the midst of
their organizing campaign, the Respondent has violated
Section 8(a)(l) of the Act.
5. By asking employees why they thought they needed
a union and telling them the Respondent would rather
deal with them than a union, the Respondent has violat-
ed Section 8(a)(l) of the Act.
6. By telling employees it would know who signed
cards for the Union, the Respondent created the impres-
sion its employees' organizing activities were under sur-
veillance, in violation of Section 8(a)(1) of the Act.
7. By telling employees the Respondent had 3000 ap-
plications on file and if they were not happy there, they
knew what they could do, the Respondent has violated
Section 8(a)(1) of the Act.
8. By telling employees that employee notices to be
posted on the employees' bulletin board had to be signed
and okayed by the Respondent before posting, the Re-
spondent has violated Section 8(a)(1) of the Act.
9. By reprimanding and admonishing employees for
engaging in organizing activities in the employees' cafe-
teria, the restrooms, and on company time, the Respond-
ent has violated Section 8(a)(1) of the Act.
10. By staring at an employee for long periods of time
following an angry reprimand to said employee for en-
gaging in lawful organizing activities, creating the im-
pression said employee's activities were under surveil-
lance, the Respondent has violated Section 8(a)(1) of the
Act.
11. By creating the impression employees' organizing
efforts would be futile, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
12. By implying that nonunion employees would not
be laid off by the Respondent, the Respondent has vio-
lated Section 8(a)(1) of the Act.
13. By discriminatorily discharging Doug Dixon be-
cause he complained during a company-called meeting
about working conditions, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
14. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1 O
ORDER
The Respondent, Peck, Incorporated, Bloomington,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
io If no exceptions are filed as provided by Sec. 102.46 of the Boards
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.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Telling employees not to talk with an investigative
agent of the National Labor Relations Board.
(b) Promising employees benefits in the midst of their
organizing campaign, in an effort to dissuade them from
unionizing the Respondent's plant.
(c) Asking employees why they think they need a
union and telling them the Respondent would rather deal
with them than with a union.
(d) Telling employees it would know who signed
cards for the Union, thereby creating the impression that
employees' organizing activities were under surveillance.
(e) Telling employees the Respondent has 3000 appli-
cations on file and if they are not happy there, they
know what they can do.
(f) Telling employees that notices to employees to be
posted on the employees' bulletin board must be signed
and okayed by the Respondent before posting.
(g) Reprimanding and admonishing employees for en-
gaging in. organizing activities in the employees' cafete-
ria, the restrooms, or on company time.
(h) By staring at an employee for long periods of time
following an angry reprimand to said employee for en-
gaging in lawful organizational activities, thereby creat-
ing the impression such activities of employees are under
surveillance by the Respondent.
(i) By creating the impression employees' organizing
efforts would be futile.
(j) Implying that nonunion employees would not be
laid off in the event the plant is unionized.
(k) Discriminatorily discharging employees because
they complained to management about working condi-
tions.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Doug Dixon immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or other rights previously enjoyed,
and make him whole for any loss of pay suffered by
reason of the discrimination against him, with interest, in
the manner described in the section of this decision enti-
tled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at Respondent's plant and place of business lo-
cated in Bloomington, Indiana, the attached notice
marked "Appendix."" Copies of the notice, on forms
provided by the Regional Director for Region 25, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
1 1 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
464