Peter Vitalie Co.

National Labor Relations Board - Board Decisions

Mar 29, 1993

310 N.L.R.B. 865 (N.L.R.B. 1993)

865
310 NLRB No. 146
PETER VITALIE CO.
1 The Respondent asserts in its exceptions that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are sat-
isfied that these contentions are without merit.
In its statement accompanying its exceptions, the Respondent as-
serts, inter alia, that it requested additional time before the hearing
to prepare a defense. It appears that the Respondent is referring to
its second request for a continuance which it filed on Friday, August
28, 1992, seeking a postponement of the hearing then scheduled to
begin on Monday, August 31, 1992. Counsel for the General Coun-
sel filed an opposition to the Respondent’s motion. The judge denied
the Respondent’s motion, based on factors which the Respondent did
not mention in its statement to the Board, namely that the Respond-
ent had already requested and had already been granted a prior post-
ponement in this proceeding from July 22, until August 31, and that
the Respondent thus had ample time to secure representation but,
with full knowledge of its responsibilities, elected to do nothing ex-
cept seek ‘‘another eleventh hour postponement.’’ The Respondent’s
statement filed with the Board does not controvert the judge’s rea-
soning. Accordingly, we find no prejudice in the judge’s denial of
the Respondent’s request for a second continuance.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 All dates hereinafter are 1992 unless I indicate otherwise.
2 The charge was amended on March 25.
3 The specific 8(a)(1) complaint allegations are set forth elsewhere
in this decision.
4 Company President A. Atkisson submitted with her brief a re-
quest that I receive in evidence certain heretofore unoffered exhibits
which she labeled and described as follows:
SB#1—One page (time card Keith Powell)
PV#7—Two pages (check and time card, Crawford/Wood)
PV#8—Two pages (warning notices Morgan/Owen)
PV#9—Three pages (Corporate Articles Sterling Billiard Com-
pany, Inc.)
PV#10—Four pages (Corporate Articles Peter Vitalie Com-
pany, Inc.)
PV#11—Three pages (Management Agreement)
PV#12—Two pages (Commercial Rental Contract)
No explanation for the posttrial offerings was provided. Accord-
ingly, I reject the Company’s exhibits as outlined above; however,
I have included a copy of each in a rejected exhibit file.
Peter Vitalie Company, Inc. and Sterling Billiard
Company, Inc. and United Paperworkers Inter-
national Union, AFL–CIO. Case 11–CA–14881
March 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 3, 1992, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Peter Vitalie Company,
Inc. and Sterling Billiard Company, Inc., Rosman,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Patricia Timmins, Esq., for the General Counsel.
Andee Atkisson, President, for the Company.
John C. Scroggs, Representative for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. On Feb-
ruary 19, 1992,1 United Paperworkers International Union,
AFL–CIO (the Union) filed an unfair labor practice charge2
against Peter Vitalie Company, Inc. (Vitalie) and Sterling
Billiard Company, Inc. (Sterling) (collectively the Company)
alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). On April 1, after an investiga-
tion, the Regional Director for Region 11 of the National
Labor Relations Board (the Board) issued a complaint and
notice of hearing (the complaint) against the Company pursu-
ant to which I heard the matter in trial at Brevard, North
Carolina, on August 31 and September 1. It is alleged in the
complaint that the Company, through certain of its agents
and supervisors, engaged in various acts that interfered with,
restrained, and coerced its employees in the exercise of rights
guaranteed them by Section 7 of the Act.3 It is also alleged
the Company violated Section 8(a)(3) of the Act by on or
about February 13, issuing written warnings to its employees
Tammy Crawford and Gerald Wood, and by on or about
February 18, discharging and thereafter failing and refusing
to reinstate its employees Crawford, Wood, Rose Baltezore,
and Keith Powell.
Vitalie and Sterling filed timely answers which were sub-
sequently amended in which it is admitted that Vitalie and
Sterling separately engage in operations that are in and affect
commerce, that the Board’s jurisdiction is properly invoked
on Vitalie and Sterling separately and that the Union is a
labor organization within the meaning of the Act. Vitalie and
Sterling deny that collectively the entities constitute a single-
integrated business enterprise and a single employer within
the meaning of the Act. Vitalie and Sterling deny all alleged
wrongdoings and assert Crawford, Wood, Baltezore, and
Powell were discharged for just cause.
I have carefully reviewed the trial record4 and have stud-
ied the posttrial briefs. I have been influenced by my assess-
ment of the witnesses as they testified. Based on the above,
and as explained below, I will conclude that Vitalie and Ster-
ling constitute a single-integrated business enterprise and a
single employer within the meaning of the Act and that indi-
vidually and collectively constitute employers within the
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Executive Vice President James Brannigan testified the building
engineers and contractors did not want to construct a wall through
the middle of the building for air flow and communication reasons
as well as the fact it was anticipated that within 2 to 3 years, a sepa-
rate building would be constructed to house Sterling.
6 Vice President of Manufacturing David Robinson testified he is
part of the management services that are provided to Sterling for a
monthly fee.
7 Vitalie employee Crawford testified that when she was caught up
with her work, she would, from time to time, help out on the Ster-
ling side of the facility. She said she had observed as many as three
Sterling employees helping out on the Vitalie side at a given time.
8 The employees were unable to say if management in some man-
ner accounted for the hours they worked on loan to the other com-
pany.
9 Executive Vice President Brannigan testified he secured the
health coverage for both companies from Pacific Mutual because he
was able to get a better rate by using just one health carrier with
common employee coverage. He testified Vitalie pays for the overall
policy and Sterling pays Vitalie for its share of the premiums.
meaning of the Act and that the Company violated the Act
substantially as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION
Vitalie is a North Carolina corporation with a factory lo-
cated at Rosman, North Carolina, where it is engaged in the
manufacture of billiard, snooker, and pool tables. During the
year preceding the issuance of the complaint, a representative
period, Vitalie received at its Rosman, North Carolina, fac-
tory goods and raw materials valued in excess of $50,000 di-
rectly from points outside the State of North Carolina. It is
alleged in the complaint, the parties admit, the evidence es-
tablishes, and I find, Vitalie is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. Sterling is a North Carolina corporation with a factory
located at Rosman, North Carolina, where it is engaged in
the manufacture of billiard, snooker, and pool tables. During
the year preceding the issuance of the complaint herein, a
representative period, Sterling received at its Rosman, North
Carolina, factory goods and raw materials valued in excess
of $50,000 directly from points outside the State of North
Carolina. It is alleged in the complaint, the parties admit, the
evidence establishes, and I find, Sterling is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is alleged at paragraph 9 of the complaint that collec-
tively Vitalie and Sterling constitute a single integrated busi-
ness enterprise and a single employer within the meaning of
the Act. The parties stipulated the directors of Vitalie and
Sterling are the same for each Company with the same per-
sons occupying the same positions at both companies. The
directors for Vitalie and Sterling are as follows:
Gilbert Atkisson, Chairman of the Board
Andee Atkisson, President
James Brannigan, Executive Vice President and
Treasurer
Alice Dodson, Vice President of Administration
David Robinson, Vice President of Manufacturing
Nick Varner, Director
Hans Peter Shild, Director
The officers for Vitalie and Sterling are the same and are as
follows:
Gilbert Atkisson, Stockholder
Andee Atkisson, President
James Brannigan, Executive Vice President and
Treasurer
Alice Dodson, Vice President of Administration and
Corporate Secretary
David Robinson, Vice President of Manufacturing
Gilbert and Andee Atkisson are the sole shareholders and
100-percent owners of both Vitalie and Sterling. Both Vitalie
and Sterling manufacture pool tables. The Vitalie tables are
‘‘furniture high class tables’’ where as the Sterling tables are
‘‘commercial’’ types used in billiard parlors. Sterling also
manufactures ‘‘mid-price ranged’’ tables priced from ‘‘two
to three thousand dollars.’’ The various styles of the
midpriced tables are named after communities in North Caro-
lina. The two companies share an undivided building5 where
the supervision6 for both companies share a common factory
office and common front offices. The employees of both
companies share common lunch, break, and restrooms, and
a buzzer is sounded to announce break and lunchtimes for
the employees of both companies. The employees of Vitalie
and Sterling take their breaks and lunch at the same time.
The employees share a common parking lot and a common
timeclock. Employees from Vitalie and Sterling are inter-
changed as needed.7 Employees from both companies have
from time to time been permanently transferred from one of
the companies to the other. For example, Coke Bayne was
permanently transferred from the Vitalie rail department to
the Sterling rail department and John Mallowitz was perma-
nently transferred from the Vitalie cutting department to the
Sterling laminating department. Various employees testified
that when they were temporary assigned from one company
to the other, they continued to receive the same wage rates
and were paid by the Company they were permanently as-
signed to without having to keep track of the hours they
worked at the Company they were not permanently assigned
to.8 There are also permanent transfers among management
personnel. For example, before Keith Aiken became a super-
visor for Sterling, he was an assistant supervisor at Vitalie.
Before David Robinson became vice president of manufac-
turing in charge of the overall operations at both companies,
he was a supervisor for Vitalie. The health insurance pro-
vided the employees of Vitalie and Sterling is the same and
with the same carrier.9 Vice President of Manufacturing Rob-
inson, who testified he was in charge of ‘‘the complete run-
ning of the plant,’’ orders materials for both plants and the
finished products from both companies are shipped from a
common shipping dock. Robinson testified shipments to cer-
tain customers from Vitalie and Sterling are combined on
one truck because certain customers do business with both
companies. Executive Vice President Brannigan testified both
companies are represented at, and held out to be, separate
companies at the annual Billiard Congress of America Trade
Shows.
The Board in Geo. V. Hamilton, Inc., 289 NLRB 1335,
1337 (1988), noted:
867PETER VITALIE CO.
The standards for determining the existence of a single-
employer relationship are well settled and are concisely
summarized in Central Mack Sales, 273 NLRB 1268,
1271–1272 (1984), as follows:
In determining whether two or more businesses
are sufficiently integrated so that they may be fairly
treated, for jurisdictional and other purposes, as a
single enterprise, the Board looks to four principal
factors: (1) common management; (2) centralized
control of labor relations; (3) interrelation of oper-
ations; and (4) common ownership or financial con-
trol. Radio and Television Broadcast Technicians
Local Union 1264 v. Broadcast Service of Mobile,
Inc., 380 U.S. 255, 256 (1965); Sakrete of Northern
California, Inc. v. NLRB, 332 F.2d 902, 905, fn. 4
(9th Cir. 1964). ‘‘The Board has determined that no
single criterion is controlling, although it considers
the first three, which evidence operational integra-
tion, more critical than the fourth, common owner-
ship.’’ NLRB v. Triumph Curing Center and M. F.
Lee d/b/a Lee’s Sewing Company, Inc., 571 F.2d
462, 468 (9th Cir. 1978), enfg. 222 NLRB 627
(1976).
Of the above-mentioned first three criteria relating to
operational integration, particular emphasis has been
placed on centralized control of labor relations. Stoll In-
dustries, 223 NLRB 51, 54 (1976).
Regarding common management, it is clear that Vice
President of Manufacturing Robinson fully and closely man-
ages both companies. Robinson testified he was in charge of
‘‘the complete running of the plant’’ which includes both
companies. Robinson testified he is responsible for all lower-
level supervision and that all employees ultimately answer to
him. Robinson describes himself as the plant manager for
both companies. Robinson said he has the overall responsi-
bility for maintenance of the equipment and tools utilized by
both companies and that he orders all materials utilized by
both companies.
The officers and directors of both companies are the same.
It appears Vice President of Manufacturing Robinson imple-
ments the labor relations policies of both companies.
Sterling’s supervisor, Aiken, and Vitalie’s supervisor, Chap-
man, both testified they received instructions from Vice
President of Manufacturing Robinson regarding what they
could and could not do in the union campaign at the Com-
pany. It appears the labor relations policies for both compa-
nies are established by Chairman of the Board G. Atkisson
and President A. Atkisson along with Executive Vice Presi-
dent Brannigan and Vice President of Manufacturing Robin-
son.
Both companies are owned by Chairman of the Board G.
Atkisson and President A. Atkisson.
Regarding interrelation of the operations, I note the em-
ployees of both companies work in the same building where
they share common lunch and break times and facilities. The
employees work the same hours and punch the same time-
clock. The employees park in the same parking lot and have
the same health insurance coverage. Employees of the two
companies share tools and equipment and employees are
temporarily assigned between the two companies as needed.
In addition to temporary assignments form one company to
the other, employees and supervisors have been permanently
transferred between the two companies. Both companies
produce pool tables that are shipped from a common ship-
ping dock and on occasion in the same truck.
In light of the (1) common management, (2) common con-
trol of labor relations, (3) common ownership, and (4) close
interrelationship of Vitalie and Sterling, I find, as alleged in
the complaint, that Vitalie and Sterling collectively constitute
a single integrated business enterprise and a single employer
within the meaning of the Act. See Geo V. Hamilton, supra.
Airport Bus Service, 273 NLRB 561 (1984), Truck & Dock
Services, 272 NLRB 592 fn. 2 (1984), and Alle Arecibo
Corp., 264 NLRB 1267 fn. 1 (1982).
II. LABOR ORGANIZATION STATUS
It is alleged in the complaint, the parties admit, the evi-
dence establishes, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. A BRIEF OVERVIEW
The Union commenced an organizing campaign at the
Company in early February. Talk of a union surfaced at the
Company on or about February 2 and 3, and Union Rep-
resentative John Scroggs contacted employee Powell on Feb-
ruary 4. Powell thereafter arranged for Scroggs to meet with
interested employees away from the Company on February
8. A second union meeting was held away from the facility
on February 15. The Company held a meeting with all em-
ployees around mid-February at which the Union was dis-
cussed. The unfair labor practice allegations arose during,
and grew out of, the organizing campaign.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish or defend against the claims set
forth in the complaint, the parties called some 14 witnesses
and presented numerous documents. The testimony and re-
sponses thereto are set forth below for the most part in the
order established by the complaint.
Inasmuch as credibility is a material issue in the instant
case, I deem it appropriate to make some preliminary com-
ments thereon. In deciding which of the conflicting versions
of conversations or events is more credible, I have given
considerable weight to the demeanor of the witnesses while
they were on the stand. I have considered each witnesses’
testimony in conjunction with established or admitted facts,
inherent probabilities, and reasonable inferences which may
be drawn from the record as a whole. With respect to the
testimony, I have borne in mind the tendency of witnesses
in general to testify as to their impressions or interpretations
of what was said or done, rather than attempting to give a
verbatim account of what they heard, saw, or did. Further,
I am not unmindful that even in the case of persons testi-
fying about their own remarks or actions, they may well tend
to express what they said or intended to say in clearer or
more explicit language than they actually used in their dis-
cussions or conversations. As to any witness having testified
in contradiction of the findings herein, their testimony has
been discredited either as having been in conflict with the
testimony of credible witnesses or because it was in and of
itself unworthy of belief. All testimony has been reviewed
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Throughout the record, Robinson is referred to as vice president
of manufacturing or vice president of production. I find it unneces-
sary to conclude which (or if both titles) is correct.
11 Owen said on cross-examination that Robinson’s speech took
place so long ago she could not recall what, if anything, else was
said.
and carefully weighed in light of the entire record. As spe-
cific credibility conflicts arise, I may state more specifically
my reasons for crediting or discrediting any particular wit-
ness on any particular portion of their testimony.
A. Threats of Discharge and Other Allegations
It is alleged at paragraph 13a of the complaint that Vice
President of Production10 David Robinson at the plant on
February 11, and Supervisor Ricky Chapman on February
13, and Supervisor Terry Nicholson on February 14, threat-
ened employees with discharge if they engaged in union ac-
tivities.
Counsel for the General Counsel presented employee wit-
nesses Crawford, Wood, Baltezore, and Powell in support of
these allegations.
1. Vice President of Production Robinson
Employee Crawford testified she along with the employees
of Vitalie and Sterling attended a meeting conducted by the
Company on February 11, shortly after the 7 a.m. work shift
started. According to Crawford, Vice President of Production
Robinson, Executive Vice President Brannigan, and all com-
pany supervisors attended the meeting. Crawford testified
Robinson said ‘‘he wasn’t going to put up with this union
business and that if anyone was for the union, they would
be fired.’’ Crawford testified Executive Vice President
Brannigan told the group ‘‘he was totally against the Union’’
and ‘‘didn’t see why we needed a union.’’
Employee Baltezore testified Robinson said ‘‘any one
there at the plant that wanted a union felt like . . . felt like
that he wasn’t doing his job’’ and ‘‘if he heard of anyone
trying to organize or even talk about the Union would be
fired.’’ She said Robinson then stated Chairman of the Board
G. Atkisson ‘‘would have some heads.’’ Baltezore said Exec-
utive Vice President Brannigan told the group that whatever
the supervisors told the employees ‘‘would go’’ and ‘‘he
would not see them hurt.’’
Wood testified ‘‘Robinson started out by saying those who
signed the Union card will be fired or terminated’’ and ‘‘he
couldn’t believe that certain people would want a union’’ and
‘‘[i]t hurt him to believe that or to know that.’’ Wood testi-
fied Robinson said he had ‘‘bent over backwards’’ to help
and get along with everybody. Wood testified Executive Vice
President Brannigan told the employees it was their right to
have a union but he was totally against it because it could
hurt more than help the Company.
Employee Powell testified Vice President of Production
Robinson started the meeting off by saying he had heard a
rumor about the Union and it made him very angry because
he was trying to do so much for the employees and it didn’t
mean anything to them. According to Powell, Robinson said
the Company would not tolerate a union and that if ‘‘any-
body had anything to do with the Union would be fired.’’
Powell said Robinson told the employees changes had been
made, more were going to be made, and that Executive Vice
President Brannigan would announce some immediate pro-
motions. Powell said Brannigan then announced some man-
agement changes and stated ‘‘it hurt him to know that there
was union activity going on in the plant and he hoped it
would cease.’’
The Company presented employees Bobbie Owen, Barbara
McCall, Mark Norton, Lisa Smith, and Dwayne Morgan as
well as Supervisor David Stamey, Executive Vice President
Brannigan, and Vice President of Production Robinson who
testified regarding the company-called employee meeting at
which the Union was discussed.
The Company contends the meeting took place on Feb-
ruary 13.
Vitalie employee Owen testified she attended the meeting
but could not recall the exact date it took place. Owen said
the meeting was called because Vice President of Production
Robinson ‘‘had just heard about the Union.’’ Owen said
Robinson ‘‘didn’t threaten anybody’s job’’ but she recalled
he said ‘‘[i]f anybody don’t like their job, there’s the door.’’
According to Owen, Robinson said he was hurt by the fact
the employees had gone to the Union and added he ‘‘thought
you’ns liked me better than that.’’11
Vitalie employee McCall attended the meeting but could
not recall when it took place. McCall, who said the meeting
was mostly about the Union, testified Robinson expressed his
disappointment at the employees trying to get a union in at
the Company in light of the fact he had been so good to the
employees.
Vitalie employee Norton also could not recall when the
meeting took place but stated Robinson told the employees
he had heard they were trying to start a union and told them
they did not need one because things were running pretty
good without a union. Norton said Robinson told the em-
ployees that if they were not happy with their working condi-
tions ‘‘there’s the door’’ walk out. Norton testified Executive
Vice President Brannigan told the employees he was ‘‘hurt’’
that they thought they needed a union ‘‘[b]ecause he tried to
go out . . . and get us the best insurance and best benefits’’
he could find.
Vitalie employee Smith thought the meeting took place on
February 13, but could not be sure. Smith testified Robinson
said it hurt his feelings that the employees did not come to
him with their problems and if we ‘‘didn’t like our working
conditions . . . we knew where the door was . . . there
wasn’t nothing . . . holding us, if we didn’t like it.’’ On
cross-examination, Smith said she didn’t really pay that
much attention to what Robinson said about the Union be-
cause she was not in favor of the Union.
Sterling employee Morgan could not recall when the meet-
ing took place but stated Robinson said he was hurt by what
was going on and that with the Company’s ‘‘open book pol-
icy’’ the employees could have explained their problems to
their supervisors and if he and the other supervisors could
not have worked the problems out, they could have taken the
problems to Chairman of the Board G. Atkisson. Morgan tes-
tified Robinson told the employees if they were not happy
with their jobs, they ‘‘could find someplace else to work.’’
Morgan stated Executive Vice President Brannigan expressed
his disappointment with the employees in that he had worked
hard to get them the best retirement available. Morgan testi-
869PETER VITALIE CO.
12 Stamey testified Robinson had always been fair with him.
13 Even if I only credited the testimony of the employee witnesses
called by the Company, and Vice President of Production Robinson,
I would conclude he violated Sec. 8(a)(1) of the Act when he sug-
gested to the employees that if they were unhappy working at the
Company there was the door through which they could leave. Robin-
son called the meeting because of rumors of union activity and he
told the employees he was hurt they would seek assistance from a
union without bringing their concerns to him. Robinson’s comments
suggests he had already concluded certain employees were unhappy
and he, in effect, told the unhappy ones to leave. Such violates the
Act. See New Life Bakery, 301 NLRB 421 (1991).
14 I have included in this section the allegations related to Chap-
man as outlined in complaint pars. 13(a), (c), (d) and (e). Those sub-
paragraphs allege Chapman, on February 13, created the impression
among the employees their union activities were being surveilled,
that he solicited employees to repudiate their support for the Union,
and that he threatened employees with more stringent enforcement
of company rules for engaging in union activities. I shall also in-
clude in this section the allegations contained at par. 13(e) that Su-
pervisor Keith Aiken also threatened employees with more stringent
enforcement of company rules for engaging in union activities. Inas-
much as these latter 8(a)(1) allegations relate to the 8(a)(3) allega-
tions contained in par. 14 of the complaint, I shall also address those
allegations at this section of the decision. It is alleged at par. 14 of
the complaint that the Company, on February 13, issued written
warnings to employees Crawford and Wood because of their support
for the Union.
fied no threats were made against employees’ jobs or that the
plant would close.
Current Vitalie Supervisor Stamey testified he could not
recall when the meeting took place. Stamey said Robinson
told the employees he was hurt that there were ‘‘hints of the
Union’’ but the decision was the employees as to what they
wanted to do about the Union. Stamey distinctly recalled
Robinson saying that if the employees were not happy with
their jobs, they could hit the door.12
Vice President of Production Robinson testified that ap-
proximately a week before he learned of union activity, he
observed ‘‘a lot of unrest’’ among the employees in the
plant. Robinson said the employees were not concentrating
on their jobs. Robinson said goods were being shipped in a
timely fashion but that the Company produced quality prod-
ucts by skilled labor and that the employees needed to be
free of any distractions or disturbances so they could con-
centrate on their work. Robinson said ‘‘there was rumors out
that there was a union trying to be formed.’’ Robinson said
he called a meeting of all employees on the morning of Feb-
ruary 13, for a number of reasons, namely, ‘‘rumors of [a]
union,’’ ‘‘disturbances,’’ ‘‘turmoil,’’ and ‘‘unrest’’ in the
plant. Robinson testified:
I can’t say word for word what I said, but basically
what I said was—the first thing was that—that I had
noticed an unrest in—in—there was a lot of people
upset and the plant was not working efficiently; that,
you know, if—I would like to know what was going
on, and nobody answered. And, then I also went on
from there saying that if anybody is worrying about
their jobs— because they had been complaints and stuff
talking about people getting laid off and fired—I said,
‘‘if anyone has any complaints about being fired, or if
this is what the trouble is you’re worrying about your
job,’’ I said, ‘‘I’ll tell you about it.’’
And, I said also that if this is the part about rumors
of the Union, which no specific Union was mentioned,
but if there was rumors of Unions that everybody in the
plant did have a right to do and talk about a Union, but
it had to be on break times; it had to be on—out of
work or whatever, and it was their right, but that they
could not do it here at work. . . .
I also—at the end of it I did say that—that I’ve al-
ways been the type that if—if I didn’t like the place
where I worked, I wouldn’t work. And, then I also
added that—that I felt like if anybody didn’t like work-
ing here at this plant, then there was the door.
Robinson denied more stringently enforcing company
rules. Robinson denied threatening employees with discharge
at any time. Robinson said it was the Company’s policy in
the slow season [which included February] to cut the work
week from 5 to 4 days. He said he mentioned at the meeting
that ‘‘at the worst during the slow season . . . it might go
down to either four-day work weeks or three-day work
weeks.’’ Robinson denied threatening the plant would for
any reason close.
I credit the witnesses called by counsel for the General
Counsel regarding what was said at the above-described
company meeting and when it took place. There are some
variances among the General Counsel’s witnesses, however,
such does not warrant a rejection of their testimony. I note
the employee witnesses called by the Company did not di-
rectly dispute the comments attributed to Robinson by Coun-
sel for the General Counsel’s witnesses. In fact, the overall
tenor of the testimony of the employee witnesses called by
the Company tended to lend credence to what counsel for the
General Counsel’s witnesses testified to. For example, the
employee witnesses called by the Company indicated Vice
President of Production Robinson was personally hurt by ru-
mors of union activity, that he felt he had been good to the
employees, and if the employees did not like their working
conditions, they knew where the door was and they could
leave. Additionally, Robinson did not specifically deny the
comments attributed to him and even acknowledged telling
the employees that if they did not like working for the Com-
pany, they were free to walk out the door.
It is against this backdrop that I am persuaded, as testified
to by Crawford, Wood, Baltezore, and Powell that Robinson
threatened the assembled employees that they would be fired
for union activities and as such the Company, through Rob-
inson, violated Section 8(a)(1) of the Act.13
2. Supervisor Ricky Chapman14
Employee Crawford testified that on February 13, her im-
mediate supervisor, Chapman, spoke with her while he and
she were alone in his office. Crawford testified:
He started out by saying that he couldn’t believe that
[Chairman of the Board] Atkisson was still sexually
harassing me, and then we talked about the sexual har-
assment for a few minutes, and he asked me what we
thought the union could do for us up there, and why
we didn’t come to him with our complaints, and I said
that I knew that we’d be fired if we complained, and
he said it would help me 100% if I would tear-up my
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The written notice reflects Crawford was 3 minutes late on Feb-
ruary 13 (G.C. Exh. 2). Crawford acknowledged she was late for
work on that date.
16 The written notice reflects Wood was 3 minutes late on Feb-
ruary 13 (G.C. Exh. 8). Wood does not deny being late on the date
in question.
union card. And he said that I wouldn’t be fired be-
cause he and David Robinson were over the hiring and
firing then. And he said that he hated to do this, but
he had give me a tardy notice, and I asked him what
he wanted me to do with that, and he said sign it. So,
I signed it,15 and he said that if I saw I was going to
be late, to be sure to call and he would cover for me.
And he said after I got 2 of the tardy notices that if
I come in tardy a 3rd time, I’d be fired.
Crawford testified she had been late for work at least one or
two times per month since she has been employed at the
Company but stated the only consequence of her tardiness
was that her pay had been docked. Prior to the February 13,
warning Crawford said she had never received any warnings.
Crawford said she had never been spoken to about tardiness
prior to that time. Crawford also said she had never heard
of the rule Chapman announced regarding two warnings for
the first two occasions when an employee was tardy and then
discharge for any third and final warning.
Employee Wood testified his immediate supervisor, Chap-
man, called him into his office on February 13, where the
two of them met alone. Wood testified:
Ricky [Supervisor Chapman] showed me an order form
for an Ajax Elite. We talked about it for a few minutes.
Then he said, ‘‘This ain’t the real reason I called you
in here.’’
Then he gave me this white slip of paper that had
Tardy Notice checked on it and he said,
‘‘I hate to give you this, but I have to.’’
It had the date, the time and my signature—well his
signature on it.
I said—I asked him if I had to sign it?
He said, ‘‘No, you don’t have to sign it.’’
I said, ‘‘Well, I’m not going to sign it.’’16
He said that Gil [Chairman of the Board Atkisson]
had told him that they would fire all the employees and
let the supervisors do the work until they can hire new
employees.
Then he started asking, ‘‘What’s the real reason
you’ll wanted the Union?’’
I said, ‘‘For job security and the way people’s been
treated.’’
He said, ‘‘What do you mean, the way people’s been
treated?’’
I said, ‘‘Well, one minute you’ll be patted on the
back saying how good a job your doing, 30 minutes
later you’d be fired.’’
He said, ‘‘You always got job security. I’ll look out
for you.’’
I said, ‘‘Well what about the rest of the people?’’
That’s all I can recall.
Wood said Chapman told him if he received two warnings
for tardiness and then got a third one, he would be termi-
nated. Wood had never heard of such a rule prior to that
time. Wood said he had been tardy two or three times per
month since being employed with the Company and no su-
pervisor had ever spoken with him about tardiness nor had
he ever received any prior warnings regarding tardiness.
Wood also said he had never heard of any employee receiv-
ing discipline for tardiness.
Employee Powell testified he reported for work a couple
of minutes late on one occasion but that no one from man-
agement spoke with him about it. Powell was unaware of
any Company rule concerning tardiness.
Supervisor Chapman did not specifically testify about any
meeting with Crawford on February 13. He acknowledged
expressing his views on the Union to the employees but de-
nied more stringently enforcing plant rules because the em-
ployees engaged in union activities, he said, ‘‘I just told
them, you know, that they was going to be wrote up for
coming in late and stuff like that.’’ Chapman explained that
he made his comments not in response to union activity by
the employees but rather in an effort to bring discipline back
into the plant. Chapman testified, ‘‘We were getting a lot of
people coming in late, standing around talking and stuff.’’
Chapman said he had never counseled Crawford about tardi-
ness prior to giving her a written warning on February 13.
3. Supervisor Aiken
Employee Baltezore testified she had been tardy for work
10 or 12 times during the past year and no one from super-
vision or management had spoken with her concerning her
tardiness. She said she did not receive any writeups or dis-
cipline of any sort except that her pay was docked 15 min-
utes even if she was tardy for only 1 to 2 minutes. Baltezore
said she heard a rumor at the plant in February that if an
employee was tardy, the employee would be written up twice
and then discharged for the third offense. She said that on
February 13 or 14, she asked her immediate supervisor,
Aiken, about the rumor. She said he told her in the presence
of employee Shirley Eubanks that the rumor was true that
‘‘this is the way it’s going to be from now, for a while, until
things cool down.’’ Baltezore said she had never, prior to
Aiken’s comments, been told of any such policy related to
tardiness.
Supervisor Aiken denied threatening employees with more
stringent enforcement of plant rules because of the employ-
ees’ union activities. Aiken explained ‘‘this is something we
do every so often to remind people that you quit work at
3:25 instead of 3:05 and you don’t take longer breaks. This
is done every so often by all of us.’’ Aiken said that employ-
ees would otherwise take advantage of the Company. Aiken
did not specifically testify about any February conversation
with Balteqore regarding any tardiness policy of the Com-
pany.
Vice President of Production Robinson testified the Com-
pany has always, as needed, issued warnings and taken dis-
ciplinary actions against its employees. Robinson said that,
for example, the Company at one time had a problem keep-
ing the restrooms clean so warnings were issued to employ-
ees with the third warning resulting in discharge. Robinson
explained the Company simply took disciplinary corrective
actions when excessive infractions of a company rule sur-
faced. Vice President of Production Robinson testified the
Company had a problem during the first week of February
871PETER VITALIE CO.
17 Certain of the information the Company provides to all its new
employees states, among other things, the following:
Tardiness will not be tolerated nor will excessive absence.
. . . .
Habitual tardiness or excessive absence will result in termi-
nation. [R. Exh. 3.]
18 Aiken and Chapman both testified but neither identified any em-
ployees other than Crawford and Wood that had been issued warn-
ings for tardiness during the time in question in February.
19 Additionally, what Chapman told employee Wood lends cre-
dence to Crawford’s testimony.
20 Supervisor Aiken did not specifically refute Baltezore’s testi-
mony on this point.
21 I find Aiken’s statement to Baltezore constitutes, as alleged in
the complaint, an unlawful threat to more stringently enforce the
rules as a result of the employees’ union activities.
22 Chapman did not specifically refute Wood’s testimony regarding
this conversation.
23 I find this statement constitutes an unlawful threat to discharge
employees for their union activities.
with excessive tardiness, that led to corrective actions.17
Robinson testified the problem involved ‘‘probably 10 em-
ployees’’ and added others were written up in addition to
Crawford and Wood but that the other writeups were given
by Supervisors Aiken and Chapman. Robinson distinctively
remembered they told him they had written up a few oth-
ers.18
5. Credibility resolutions and analysis
I credit Crawford’s testimony regarding her meeting with
Chapman on February 13. Chapman did not specifically re-
fute Crawford’s testimony.19 A detailed look at Chapman’s
comments to Crawford establishes the unlawful allegations
attributed to him in the complaint. To ask Crawford, as
Chapman did, what the employees thought the Union could
do for them and why the employees did not come to him
with their complaints coupled with his telling Crawford it
would benefit her to tear up her union card leaves an impres-
sion the employees’ union activities are under surveillance
by the Company and I so find. It is clear beyond question
that Chapman unlawfully solicited Crawford to repudiate her
support for the Union when he told her it would help her 100
percent if she tore up her union card. Taken in context, it
is just as clear that when Chapman told Crawford she would
not be fired because he and Vice President of Production
Robinson were in charge of the hiring and firing at the Com-
pany, he left the implication that if she did not tear up her
union card as he suggested, she would be fired because he
had the authority to do so. Thus, Chapman unlawfully threat-
ened Crawford with discharge in violation of Section 8(a)(1)
of the Act. Immediately following his above-outlined com-
ments, Chapman issued a written warning to Crawford for
being 3 minutes tardy and announced Chapman more strin-
gently enforced the Company’s rules on tardiness because of
Crawford’s union activities. Crawford, Wood, Baltezore, and
Powell all credibly testified they had never heard of any such
rule on tardiness before Crawford’s and Wood’s warnings.
Furthermore, Crawford, Wood, and Baltezore had been tardy
on occasions throughout their employment without discipli-
nary action taken against them. That it was more stringent
enforcement is also demonstrated by the credited testimony
of Baltezore that Supervisor Aiken20 told her about the three
warnings and then discharge for tardiness rule that ‘‘this is
the way it’s going to be for now for awhile until things cool
down.21 Still further evidence that the Company was more
stringently enforcing its rules on tardiness is found in the
credited testimony of Wood regarding his meeting with Su-
pervisor Chapman on February 13.22 As noted earlier, Chap-
man gave Wood a written warning for being 3 minutes late
and told Wood if he received two additional warnings, he
would be discharged. Chapman also told Wood Chairman of
the Board G. Atkisson had said he would fire all the employ-
ees and let the supervisors do the work until the Company
could hire new employees.23 Such indicates the Company
was taking action and more stringently enforcing its rules be-
cause of the employees’ union activities.
6. The written warnings
Did the Company violate the Act when it issued Crawford
and Wood written warnings for their tardiness on February
13?
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Board set forth its causation test for
cases alleging violations of the Act that turn, as does the
case herein, on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Once this is established,
the burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of the
protected conduct. An employer cannot simply present a le-
gitimate reason for its actions but must persuade by a pre-
ponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.
The classic elements commonly required to make out a
prima facie case of union discriminatory motivation under
Section 8(a)(3) of the Act are union activity, employer
knowledge, timing, and employer animus.
Counsel for the General Counsel established a prima facie
showing the Company issued written warnings to its employ-
ees Crawford and Wood on February 13, because of their
union activities. First, the Company knew or suspected
Crawford and Wood had engaged in union activities. In
Crawford’s case, such knowledge is demonstrated by, among
other facts, Supervisor Chapman’s asking Crawford what she
thought the Union could do for the employees and by telling
Crawford it would help her 100 percent if she would tear up
her union card. That the Company knew or suspected Wood
had engaged in union activities is demonstrated in part by the
fact Supervisor Chapman asked Wood as he gave him his
written warning what the real reason was that the employees
wanted the Union. The Company’s motivation is dem-
onstrated in part by Supervisor Aiken’s comments to em-
ployee Baltezore that the tardiness warnings were part of
what would be happening until things cooled down. The
Company’s animus is further demonstrated by other viola-
tions of the Act that Chapman and Aiken engaged in when
they spoke with Crawford, Wood, and Baltezore. For exam-
ple, Supervisor Chapman told employee Wood that Chairman
of the Board G. Atkisson would fire all the employees and
hire replacements.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 One of the posttrial exhibits (PV#8) that the Company attempted
to offer which I rejected purported to be warnings issued to two em-
ployees on February 14, for being ‘‘late for work.’’
25 Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).
26 The Bourne test has been cited with approval by various cir-
cuits. For a partial listing of those circuits, see Teamsters Local 633
v. NLRB, 509 F.2d 490 fn. 15 (D.C. Cir. 1974).
The warnings were issued 3 days after the Company held
a meeting with its employees to discuss rumors of union ac-
tivity and at which meeting Vice President of Production
Robinson engaged in conduct found to violate Section
8(a)(1) of the Act.
I am persuaded the Company failed to demonstrate it
would have issued warnings to Crawford and Wood on Feb-
ruary 13, in the absence of protected conduct on their part.
First, there is no credible showing the Company had a policy
of issuing two written warnings for tardiness and then dis-
charging employees for a third offense. Second, there is no
showing anyone else was warned other than these two known
or suspected union supporters. Vice President of Production
Robinson testified others were given written warnings for tar-
diness during this same time period but he could not name
any such employees assertedly because such warnings were
given by Supervisors Chapman and Aiken. Supervisors
Chapman and Aiken, however, did not testify about issuing
any other such warnings for tardiness. The Company did not
produce copies of any such warnings at trial.24 Simply stated,
the Company failed to demonstrate it would have taken the
same action it did in the absence of any protected conduct
on the part of Crawford and Wood. Accordingly, I find the
Company violated Section 8(a)(3) of the Act by issuing writ-
ten warnings to its employees Crawford and Wood on Feb-
ruary 13.
B. Interrogation and Other Allegations
It is alleged at paragraph 13(b) of the complaint that on
February 11 and 14, Supervisor Terry Nicholson unlawfully
interrogated employees at the plant concerning their union
sympathies and desires. Inasmuch as certain portions of the
evidence in support of the interrogation allegations relate to
other complaint allegations, I shall consider those allegations
at this point in the decision. The other allegations that relate
to Supervisor Nicholson are set forth at paragraphs 13(c), (f),
(g), (h), and (i). These subparagraphs allege that on February
11, 12, and 14, Nicholson created an impression among the
employees their union activities were being surveilled; that
on February 14, he threatened employees with discharge,
plant closure, a reduction in work hours, and other unspec-
ified reprisals if employees engaged in activities on behalf of
the Union and/or selected the Union as their collective-bar-
gaining representative. It is also alleged that Nicholson ad-
vised employees it would be futile to engage in union organi-
zational activities.
1. The interrogation
Employee Wood testified he was in the plant’s restroom
on February 11 around 10:30 a.m. when Supervisor Nichol-
son entered and asked ‘‘What do you think of this union
nonsense or business?’’ Wood responded he didn’t know, it
was the first he had heard about it and it surprised him.
Nicholson responded, ‘‘well, I heard there’s twenty-five
cards signed . . . [t]hat only leaves 10 people that haven’t
signed a card.’’ Wood told Nicholson ‘‘well, I must be one
of the ten.’’ Nicholson advised Wood that there were 250
employees at American Thread and they couldn’t get a union
in. Wood said he left the restroom at that time.
According to Wood, Nicholson again, the next day (Feb-
ruary 12), entered the restroom when he was there and asked,
‘‘What are you doing, union man?’’ Wood said he walked
out without responding to Nicholson.
Employee Powell testified that after he had ‘‘clocked out’’
on February 14, Supervisor Nicholson approached him while
he was alone in the shipping area waiting for his brother to
get off work and asked if he was ‘‘one of the ring leaders
of the union’’ and/or if his brother was. Powell said Nichol-
son also asked him, ‘‘What do you think of the union?’’
Powell told Nicholson he was with the majority of the em-
ployees. Nicholson responded, ‘‘Well, you know, the options
of what will happen if a union . . . come[s] in here.’’ Ac-
cording to Powell, Nicholson outlined the options as: (1) the
Company would make it rough on the employees, (2) they
would go to a 3-day workweek, (3) the Company would fire
the employees and operate with supervision, or (4) the Com-
pany could move to Georgia. Nicholson told Powell that if
the Company did all these things, ‘‘they probably wouldn’t
make enough to pay their power bill.’’
2. Credibility resolutions
Supervisor Nicholson was not called as a witness nor was
the failure to do so validly explained. I credit the unrefuted
testimony of Wood and Powell as it relates to Nicholson’s
conversations with them on February 11, 12, and 14.
3. Analysis and conclusions
I shall review these allegations of interrogation in light of
the Board’s decision in Rossmore House, 269 NLRB 1176
(1984), enfd. sub nom. Hotel Employees & Restaurant Em-
ployees v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
Rossmore House, the Board held the lawfulness of ques-
tioning by employer agents about union sympathies and ac-
tivities turns on the question of whether ‘‘under all the cir-
cumstances, the interrogation reasonably tends to restrain or
interfere with the employees in the exercise of rights guaran-
teed by the Act.’’ The Board in Rossmore House noted the
Bourne25 test was helpful in making such an analysis. The
Bourne factors are as follows:
(1) The background, i.e., is there a history of em-
ployer hostility and discrimination?
(2) The nature of the information sought, e.g., did
the interrogator appear to be seeking information on
which to base taking action against individual employ-
ees?
(3) The identity of the questioner, i.e., how high was
he in the company hierarchy?
(4) Place and method of interrogation, e.g., was em-
ployee called from work to the boss’s office? Was there
an atmosphere of ‘‘unnatural formality’’?
(5) Truthfulness of the reply.26
Supervisor Nicholson was not employee Wood’s imme-
diate supervisor and no valid reason was advanced regarding
873PETER VITALIE CO.
27 The Company may well have believed or suspected Wood fa-
vored the Union at the time of this conversation but Wood had not
openly demonstrated such support.
28 I also conclude and find that when Nicholson commented to
Wood on February 12, ‘‘What are you doing, union man?’’ he cre-
ated the impression the employees’ union activities were under sur-
veillance.
29 Brannigan testified on cross-examination he told Crawford and
Wood ‘‘a union was fine’’ and added ‘‘we discussed what was
going on.’’ However, he stated ‘‘the main point I talked to them
. . . about [was] the good benefits they had, what good, you know,
Continued
why he questioned Wood about the Union in the restroom.
Wood had not openly demonstrated his support for the Union
at the time.27 Nicholson did not give Wood any assurance
against reprisals if he responded truthfully (or otherwise) to
his inquiries. Nicholson did not end his inquiry at seeking to
ascertain Wood’s views about the Union, he went on to tell
Wood he had heard 25 employees had signed union cards
with only 10 employees failing to do so. Nicholson also told
Wood that employees at another company had been unsuc-
cessful in attempting to secure union representation. For the
above reasons, I find Nicholson’s interrogation of Wood was
coercive interference and as such violated Section 8(a)(1) of
the Act. I also find Nicholson, as alleged in the complaint,
left the impression the employees’ union activities were
under surveillance28 and the employees would be unsuccess-
ful if they attempted to have a union represent them.
Nicholson was not Powell’s supervisor when he ques-
tioned Powell about the Union on February 14. No valid rea-
son was advanced for Nicholson’s inquiry. Nicholson not
only failed to give Powell any assurance against reprisals if
Powell answered his questions about the Union but Nichol-
son went on to outline for Powell the dire consequences of
unionization. Nicholson not only wanted to know if Powell
supported the Union as a ring leader but also wanted to
know Powell’s brother’s position on unionization. For the
above reasons, I find, the interrogation was coercive inter-
ference in violation of Section 8(a)(1) of the Act.
4. Other violations by Nicholson
Additionally, I find Nicholson’s comments to Powell, as
outlined above, constituted other violations of the Act. That
the Company would make it rough on the employees because
of their union activities constitutes a threat of unspecified re-
prisals against the employees for their union activities and I
so find. For Nicholson to tell Powell that the Company could
go to a 3-day workweek or fire all the employee and operate
with supervision constitutes unlawful threats to reduce the
employees work hours and to discharge them. Nicholson’s
telling Powell the Company could move to Georgia if the
employees unionized constitutes an unlawful threat to close
the plant because of the employees’ union activities. Finally,
Nicholson’s comments, taken as a whole, unlawfully conveys
to the employees it would be futile for them to engage in
union organizational activities. Such violates Section 8(a)(1)
of the Act, and I so find.
C. The Allegation of an Impression of Surveillance
Attributed to Executive Vice President James Brannigan
It is alleged at paragraph 13(c) of the complaint that the
Company, through Executive Vice President Brannigan on
February 14, created among employees the impression their
union activities were being surveilled.
Crawford testified Executive Vice President Brannigan
came to the detail department on February 14, and in the
presence of employe Wood spoke with her as follows:
He [Executive Vice President Brannigan] started out by
saying that we knew how much he cared for us, and
that we were like family to him. Then he asked me
how far the union had gotten, and I told him that I
didn’t really know, and he asked me why we wanted
a union, and I told him because of the way everybody
was getting fired for nothing and the working condi-
tions, and he said that he’d had one meeting that day
with Gil [Chairman of the Board Atkisson] and Andy
[President Atkisson], and he promised me that we
wouldn’t be fired, and then he said that he was going
back and another meeting with them, and he would do
everything he could to save our jobs, and also he said
that Gerald [Wood’s] and my name was the first names
mentioned, and that we were considered the ring-lead-
ers.
Crawford said she asked Brannigan why Chairman of the
Board Atkisson had started issuing tardy notices. Crawford
said Brannigan told her Chairman of the Board Atkisson had
not started that policy that he and Vice President of Produc-
tion Robinson started it and stated if the employees wanted
a union, ‘‘they were going to go strictly by the Union.’’
Wood testified Executive Vice President Brannigan told
them (Crawford and Wood) he had permission from manage-
ment to speak with them and that he ‘‘started out by saying
how much he cared for us and how much he loved us and
we were like family and he’d do anything he could to help
us.’’ Wood testified Brannigan went on to say ‘‘that my
name [Wood’s] and Tammy Crawford’s were the first two
names mentioned in the union organizing’’ and that Rose
Baltezore’s name was ‘‘the third name mentioned.’’ Wood
said he left the detail department while Executive Vice Presi-
dent Brannigan and Crawford were still talking. Wood re-
turned to the detail department about 15 to 20 minutes later
while Brannigan and Crawford were still talking. According
to Wood, Brannigan asked if he (Wood) had anything else
to say. Wood told Brannigan he guessed Crawford had cov-
ered it all. Brannigan left saying he was going to a meeting
with President A. Atkisson and Vice President of Production
Robinson. Brannigan told Crawford and Wood he would get
back with them and added they would not be fired for their
union activities.
Executive Vice President Brannigan acknowledged speak-
ing with Crawford and Wood on the afternoon of February
14. He said he told them they were entitled to a union if they
wished but that he explained to them they had such great
benefits and then asked them why they were ‘‘deliberately’’
being late for work. According to Brannigan, the only answer
came from Crawford who told him they were out to get
Chairman of the Board G. Atkisson.
Brannigan denied questioning Crawford and Wood about
the Union or that he was interested in their union activities.29
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would a union be; and with the good retirement they had the good
health that they had.’’
30 Wood’s testimony about this meeting was essentially the same
as Crawford’s.
Brannigan said his sole interest with Crawford and Wood
was that they could continue to have jobs with the Company
and he wanted them to go to Supervisor Chapman and Vice
President of Production Robinson and ‘‘iron this out’’ about
their excessive tardiness.
Executive Vice President Brannigan denied at any time
creating the impression among the employees their union ac-
tivities were being surveilled.
I credit Crawford’s and Wood’s account of their February
14, meeting with Executive Vice President Brannigan. I am
convinced Brannigan cared for the two employees in ques-
tion and that overall he wanted things to turn out well for
them but in his enthusiasm to have everything work out in
a way he perceived best he made certain comments to
Crawford and Wood that he was unable or unwilling to recall
at trial. Specifically, I find Brannigan told Crawford and
Wood, as testified to by Wood, that theirs were the first two
names mentioned by the Company in relation to the union
organizing campaign at the Company and that Baltezore’s
was the third name mentioned. For the Company, through its
representative Executive Vice President Brannigan, to tell
employees which ones were the ring leaders for the Union
when the employees in question had not openly demonstrated
their support for the Union leaves the impression among the
employees that their union activities are being surveilled.
Such violates Section 8(a)(1) of the Act, and I so find.
D. Threats of Futility, a Reduction in Work Hours, and
Plant Closure
It is alleged at paragraph 13(f) of the complaint that the
Company, through Vice President of Production David Rob-
inson on February 14, threatened employees with reduction
in their work hours if they engaged in union activity and/or
selected the Union as their collective-bargaining representa-
tive. It is alleged at paragraph 13(g) of the complaint that the
Company acting through Robinson and Supervisor Keith
Aiken on February 14, threatened employees with plant clo-
sure if the employees selected the Union as their collective-
bargaining representative. It is alleged at paragraph 13(h) of
the complaint that the Company through Supervisor Aiken
on February 14, advised employees it would be futile to en-
gage in union organizational activities.
1. Vice President Robinson’s comments
Employee Crawford testified that at approximately 1:30
p.m. on February 14, Vice President of Production Robinson
came to her work station and asked that she and Wood meet
with him in his office. Crawford testified:
[Vice President of Manufacturing Robinson] started out,
he said that he didn’t doubt that Gil [Chairman of the
Board Atkisson] had been sexually harassing me, and
we talked about the sexual harassment for 30 to 40
minutes, and then he started talking about the union,
and he said that Andy [President Atkisson] had come
out into the plant, and she was really mad, and that she
said she would close the plant down and move it to
Georgia before a union got in, and she said she didn’t
want to see Gil’s feelings hurt. And he talked about
how he’d worked for 3 years to get the plant were it’s
at and make a good place for people to work, and he
said that everything that’s going on in the plant was my
fault, and he talked about David Hudson and John
Spraggs for a few minutes, how they worked, and he
said he wasn’t going to fire me, but if I didn’t have any
more trust than that in him that I didn’t need to be
working there.
. . . .
He said that Gil [Chairman of the Board Atkisson]
said that they would cut the work week down to 3 days
a week, so nobody could draw unemployment.30
Vice President of Production Robinson did not specifically
address any meeting with Crawford and Wood on February
14. Robinson denied ever threatening the plant would close
as a result of employees engaging in union activities. Robin-
son said he mentioned in the employee meeting that due to
the fact the Company was in a slow production season, the
workweek might be reduced to 4 or even 3 days per week
but that his comments were based on the slow production
season and not as a result of union activities by the employ-
ees.
2. Credibility resolutions
I credit Crawford’s and Wood’s account of their February
14, meeting with Vice President of Production Robinson.
Crawford and Wood appeared to be telling the truth and I
note Robinson did not specifically deny meeting with them
on the date in question or discussing the matters they indi-
cate he discussed.
3. Analysis and conclusions
Viewing the credited testimony, it is clear Vice President
of Production Robinson threatened the plant would be closed
before the Company would allow a union to represent its em-
ployees. Such violates Section 8(a)(1) of the Act and I so
find. It is just as clear that Vice President of Production Rob-
inson threatened that working hours would be reduced (the
Company would go to a 3-day workweek) as a result of the
employees’ union activities. Again, such violates Section
8(a)(1) of the Act and I so find.
4. Threats of plant closure and futility
Employee Baltezore testified that around 2 p.m. on Feb-
ruary 14, her immediate supervisor, Aiken, came to her work
station and told her his father was prounion and noted he
(Supervisor Aiken) would not have had a lot of the things
he did as a child if his father had not been a unionized work-
er. Baltezore testified Aiken then told her the Company was
too small for a union and added:
He didn’t think it would do any good there and he said
that if you all don’t cut this stuff out . . . Andee
[President Atkisson] and Gil [Chairman of the Board
Atkisson] will shut this plant and move to Georgia.
875PETER VITALIE CO.
31 It is suggested in the record that the increase was part of a semi-
annual quality review increase.
32 According to Crawford, Baltezore and Powell also had union
cards at work on Monday, February 10.
33 It is unnecessary at this point in the decision to restate Robin-
son’s and Brannigan’s February 11, comments to the employees.
Aiken told Baltezore the employees were too smart to let that
happen and commented that if anyone could make this Com-
pany work it was the Atkissons.
Supervisor Aiken said he talked to Baltezore and several
other employees about his father’s strong union sentiments
and that he had more as a child because of his father’s union
affiliation. Aiken also acknowledged he told the employees
he did not think his children would have the benefits he had
as a child because of where he (Aiken) worked but that he
felt the union could not help the employees herein. Aiken
said he was just expressing his personal opinion. Aiken de-
nied threatening anyone with plant closure or that he advised
employees it would be futile for them to engage in organiza-
tional efforts for the Union.
5. Credibility resolutions
I credit Baltezore’s testimony. In doing so, I am not un-
mindful that she has an interest in the outcome of this case
and has very strong feelings about the Company. She never-
theless impressed me as a witness that was making every ef-
fort to testify truthfully to the best of her recollection.
6. Analysis and conclusions
When Supervisor Aiken told Baltezore that if employees
did not cut out their union involvement, the Atkissons would
shut the plant and move to Georgia, he violated Section
8(a)(1) of the Act. In this same conversation, Supervisor
Aiken told Baltezore the plant was too small for a union and
it would not do the employees any good to attempt to orga-
nize. Taken in context, I find such constitutes an unlawful
threat it would be futile for the employees to engage in union
organizational activities.
E. The Discharge of Crawford, Wood, Powell,
and Baltezore
It is alleged at paragraph 15 of the complaint that the
Company on or about February 18, discharged and thereafter
failed and refused to reinstate its employees Tammy
Crawford, Gerald Wood, Rose Baltezore, and Keith Powell
because they joined, supported, or assisted the Union and/or
engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection and in order to
discourage employees from engaging in such activities or
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
1. Crawford and Wood
a. Crawford
Crawford began working for the Vitalie part of the Com-
pany in July 1989. Crawford’s job was to construct the rail-
ings around the top of pool tables. As is noted elsewhere in
this decision, her supervisor at the time of her discharge was
Ricky Chapman. Crawford earned $8 per hour and had re-
ceived a wage increase 1 week prior to her discharge.31
Crawford testified she learned of union activity at the plant
on February 7, and attended a union meeting at the Union’s
offices in Pisgah Forest, North Carolina, on February 8.
Crawford said Wood, Powell, and Baltezore and five or six
other employees also attended the meeting. Crawford signed
a union card at the meeting and took other cards to work the
following Monday (February 10). She said she gave two
union cards to employees at the first break and one card to
an employee during lunch that day.32 As far as Crawford
knew, no supervisor or management personnel saw her giv-
ing out union cards and she did not wear any union insignia
nor did she in any manner openly demonstrate her union sen-
timents.
Crawford, as noted elsewhere in this decision, attended the
employee meeting on February 11, at which Vice President
of Production Robinson, and Executive Vice President
Brannigan spoke about the Union.33 As noted elsewhere in
this decision, Supervisor Chapman talked with Crawford
about the Union on February 13, while the two of them were
alone in his office. It was at this meeting that Crawford was
given a written warning for being 3 minutes late and was
told that if she was late two additional times, she would be
fired. Again as is noted elsewhere in this decision, various
Company representatives had conversations with Crawford
and others on February 14, about the Union. For example,
Supervisor Chapman spoke with Crawford in Wood’s pres-
ence about the Union. Executive Vice President Brannigan
spoke with Crawford and Wood in the detail department
about the Union. Vice President of Production Robinson met
on the afternoon of February 14, with Crawford and Wood
at which time the three of them spent 30 to 40 minutes talk-
ing, among other things, about the Union and the Company’s
reaction thereto.
Crawford testified she was not scheduled to work on Sat-
urday, February 15, Sunday, February 16; or Monday (Presi-
dent’s day, February 17). Crawford said that when she and
employee Wood, with whom she shared a ride, arrived at
work on Tuesday, February 18, their timecards were missing
from the timecard rack. Crawford said they went to Super-
visor Chapman’s office and after Chapman cleared everyone
from his office, told him he ‘‘hated’’ to tell them but they
were both fired for causing disturbances in the plant.
Crawford testified Wood asked if it was for going to the
union meeting. Chapman told them he did not know. Chap-
man then escorted Crawford and Wood as they retrieved
their personal items and left the plant.
Crawford testified she decided they needed something in
writing regarding their discharge so she returned to Chap-
man’s office where he gave her a written notice that stated:
Gerald Wood and Tammy Crawford terminated for
causing disturbances among other employees.
Supervisors Susan Aiken and Ricky Chapman signed the
handwritten note. Crawford testified they were never told
what disturbances they had caused.
Crawford testified that prior to her discharge, she had
never been warned, criticized, or counseled regarding any
disturbances. Crawford testified that in fact she had been told
by Supervisors Chapman and Keith Aiken, as well as by
Vice President of Production Robinson, that she was one of
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 The facts surrounding Nicholson’s questioning Wood have been
set forth elsewhere in this decision and will not be repeated here.
35 The Company presented employee Lisa Smith who testified she
had, in the past, seen Crawford and Wood ‘‘hugging and kissing and
. . . touching each other . . . like a man and a female do.’’ Smith
said Wood would ‘‘have his arms around her ass and stuff like
that.’’
36 As is noted elsewhere in this decision, Executive Vice President
Brannigan testified he spoke with Crawford and Wood about their
‘‘deliberately’’ being late for work. Brannigan testified he also spoke
to Crawford ‘‘about her sexual promiscuity’’ and ‘‘about the clothes
she wore.’’ Brannigan said Crawford’s and Wood’s conduct had
been ongoing prior to January 1992.
the best employees the Company had. She said Supervisor
Chapman told her shortly before she was fired that she was
the only employee in the plant that stayed ahead of and
caught up on her work.
b. Wood
Wood testified he commenced working for the Vitalie part
of the Company in June 1989. At the time of his discharge,
Wood worked in the cachet department under the supervision
of Ricky Chapman. Wood’s rate of pay was $7.75 per hour
and he had received a pay increase of 30 cents per hour on
February 7. Wood testified Supervisor Chapman told him at
the time ‘‘I got you a raise . . . I think you deserve a raise.’’
Wood said Chapman told him the Company had placed him
in the cachet department because he was ‘‘a good worker’’
who did ‘‘quality work.’’
Wood said he learned of union activity at the Company on
February 7, and attended two union meetings (February 8
and 15) held away from the plant. Wood signed a union card
at the first meeting and thereafter encouraged his fellow
workers during break and lunch times to do likewise. Wood
said that to his knowledge, no supervisor or management
representative was aware of his union activities or senti-
ments.
Wood attended the company-held employee meeting on
February 11, at which the Union was discussed. Wood was
questioned about his union sentiments on February 11 and
12, by Supervisor Nicholson.34 Wood was given a warning
for tardiness on February 13, at which time Supervisor Chap-
man discussed the Union and, among other things, told
Wood that on a third warning for tardiness, he would be dis-
charged. Executive Vice President Brannigan talked to Wood
and Crawford during the afternoon of February 14, at which
time Brannigan told the two of them that they, along with
a third employee (Baltezore), were the first names mentioned
by the Company when it discussed the employees’ union or-
ganizing efforts at the plant. Vice President of Production
Robinson spoke with Wood and Crawford about the Union
on February 14, the details of which are set forth elsewhere
in this decision.
Wood testified he was not scheduled to work Saturday,
February 15; Sunday, February 16; or Monday, February 17.
Wood returned to work on February 18, and discovered his
and fellow worker Crawford’s timecards were missing from
the timecard rack. The action Wood and Crawford took has
been set forth under the employment history of Crawford and
will not be repeated here.
Wood testified that prior to his discharge, he had never re-
ceived any complaints from management about his work
habits or attitude.
c. Supervisor Chapman’s role
Supervisor Chapman said he talked with Vice President of
Production Robinson on February 14, about Crawford and
Wood. He said the final decision to terminate the two was
made by Robinson but he believed the decision was made on
Feburary 14. Chapman said they were discharged for ‘‘caus-
ing disturbances.’’ Chapman testified he observed some of
the ‘‘disturbances’’ they were involved in. He said the ‘‘dis-
turbances’’ involved employees talking in groups. Chapman
acknowledged he had seen groups talking in the plant that
did not involve Crawford and Wood.
d. Vice President Robinson’s role
Vice President of Production Robinson, who made the
final decision to discharge Crawford and Wood, testified the
‘‘main reason’’ for their discharges was the ‘‘disturbance’’ or
‘‘unrest’’ they were causing in the plant. Robinson said
‘‘there was being pressure put on [employees] by the people
that was trying to form the union.’’ Robinson acknowledged
he observed ‘‘groups of people’’ that were part of the disrup-
tion other than Crawford and Wood. Robinson said the
groups that Crawford and Wood were part of broke up
quicker than groups they were not part of. Robinson ac-
knowledged employees have always talked in groups with
each other and that the Company has no ‘‘strict regulations’’
against talking in the work place.
Robinson said his decision to terminate Crawford and
Wood was not based ‘‘totally’’ on the plant disruptions but
that their prior conduct was also on his mind. Robinson de-
scribed Crawford’s prior misconduct as wearing ‘‘spandex
. . . tight fitting forming pants’’ with ‘‘nothing over them.’’
He said he had spoken to Crawford about her misconduct at
least twice prior to her discharge. Robinson said Crawford’s
misconduct had been ongoing for at least a year. Robinson
said he had also spoken to Crawford and Wood about their
lunch time activities which he described as their being in ‘‘a
sexual position’’ with Crawford ‘‘feeling’’ of Wood.35 Rob-
inson said he had also spoken to Crawford and Wood about
their being tardy and clocking in for each other.36
Vice President of Production Robinson said he did not
make the final decision to terminate Crawford and Wood
until February 17, although he said he told his supervisors
on February 14, to terminate them. Robinson said he decided
on February 17, that he was going to need to discharge some
employees in order to calm the factory down. Robinson said
he only put disrupting the work place on Crawford’s and
Wood’s unemployment forms because he did not like to give
lengthy explanations for discharging employees. Robinson
stated the employees’ union activities did not make up any
part of his reason for discharging Crawford and Wood.
Executive Vice President Robinson said that in the past
(he was not any more specific) two other employees had
been discharged for causing disturbances in the plant. Robin-
son identified Jesse Nicks as an employee that ‘‘nobody
could get along with’’ and that the Company moved from
department to department before finally discharging him.
Robinson identified David Guest as another employee that
had been discharged for causing a disturbance at the plant.
Robinson said Guest was always giving out ‘‘confidential in-
877PETER VITALIE CO.
37 The Company’s contention it tolerated Crawford’s other infrac-
tions because she is a single parent is nothing more than post hoc
rationalization which I reject.
formation’’ about the plant and could not get along with any
of his coworkers.
e. Analysis and conclusions
Examining the instant facts related to Crawford and Wood
in light of the Wright Line, supra, principles, I am persuaded
counsel for the General Counsel established a prima facie
case.
First, Crawford and Wood were both perceived by the
Company, and correctly so, to be supporters of the Union.
The Company announced at its employee meeting on Feb-
ruary 11, that it knew about union activity (or rumors there-
of) in the plant. On February 13, Crawford’s immediate su-
pervisor, Chapman, asked her what she thought the Union
could do for the employees and advised her it would help
her 100 percent if she would tear up her union card. On Feb-
ruary 14, Supervisor Chapman told Crawford, among other
things, that the employees were making a big mistake with
the Union. Supervisor Nicholson asked Wood on February
11, what he thought of the Union and told Wood how many
employees he (Supervisor Nicholson) heard had signed union
cards. The very next day (February 12) Supervisor Nicholson
called Wood a ‘‘union man.’’ On February 13, Supervisor
Chapman asked Wood, among other things, ‘‘what’s the real
reason you’ll wanted the union?’’ Perhaps the clearest indi-
cation of the Company’s perception that Crawford and Wood
supported the Union comes from Executive Vice President
Brannigan’s comments to Crawford and Wood on February
14, that their’s were the first two names mentioned by the
Company in management discussions about the Union’s or-
ganizing efforts at the Company. Additionally, Vice Presi-
dent of Production Robinson told Crawford and Wood on
February 14, that ‘‘it was all Tammy’s [Crawford] fault that
all the union business [was] going on.’’ Clearly, counsel for
the General Counsel established union activity on the part of
Crawford and Wood and that the Company knew or correctly
assumed the two of them were engaging in union activities.
The timing of Crawford’s and Wood’s discharge is sus-
pect. Approximately 10 employees met away from the plant
with representatives of the Union on Saturday, February 8.
The Company meets with its employees on Tuesday, Feb-
ruary 11, to discuss ‘‘rumors’’ of a union at the Company.
On February 11, 12, 13, and 14, the Company, through var-
ious of its representatives, committed various unfair labor
practices. A decision was made on Friday, February 14, to
dismiss four employees, two of which were Crawford and
Wood. Crawford and Wood were told of their discharge on
February 18. I note employees were not scheduled to and did
not work, on February 15, 16, and 17.
The Company’s antiunion animus is demonstrated by the
various comments found to be unlawful that its representa-
tives made. For example, Vice President of Production Rob-
inson told the entire work force on February 11, that he was
not going to put up with this union business and that he
would fire anyone that was for the Union. The Company di-
rected some of its antiunion animus specifically at Crawford
and Wood. Crawford and Wood were, as is set forth else-
where in this decision, given unlawfully motivated written
warnings on February 13. Supervisor Chapman specifically
told Crawford on February 14, that the Company could not
support a union and would probably close its doors. Vice
President of Production Robinson told Crawford and Wood
that Company President A. Atkisson was angry about the
Union and would close the plant and move it to Georgia be-
fore a union would be allowed in at the Company. Robinson
told Crawford that everything that was going on regarding
the Union was her fault.
In summary, I find counsel for the General Counsel estab-
lished an extremely strong, clear case that a ‘‘motivating fac-
tor’’ in the decision to terminate Crawford and Wood was
their union activities.
I am persuaded the Company failed to demonstrate it
would have taken the same action it did even in the absence
of any protected conduct on the part of Crawford and Wood.
To meet its burden, the Company attempted to show that
Crawford and Wood caused disruptions in the workplace.
The Company, however, acknowledged employees were per-
mitted to talk with each other while working. The groups of
employees the Company observed talking during the time in
question involved employees in addition to Crawford and
Wood; however, there is no showing the other employees,
except Baltezore and Powell, were disciplined in any man-
ner. In fact, Vice President of Production Robinson noted
groups that Crawford and Wood were with disbanded
quicker than the groups they were not involved with. The
Company tried to raise other considerations for discharging
Crawford and Wood. However, it could not escape the fact
it told the employees they were being discharged for causing
a disturbance. The Company even put that reason in writing
and advanced that reason at the North Carolina unemploy-
ment hearings for Crawford and Wood. I am persuaded it
was nothing more than an afterthought on the Company’s
part to suggest that Crawford’s style of dress or Crawford’s
and Wood’s tardiness or other alleged activities formed a
basis for their discharge. These other infractions, alleged or
real, had admittedly been ongoing for at least a year.37
For all the above reasons, I find the Company violated
Section 8(a)(3) of the Act when on February 18, it dis-
charged and thereafter failed and refused to reinstate its em-
ployees Crawford and Wood.
2. Keith Powell
Powell began working for the Sterling part of the Com-
pany on July 22, 1991, as an assembler. Powell’s supervisor
at the time of his discharge on February 18 was Keith Aiken.
Powell testified the Union was discussed ‘‘a little bit’’ on
February 2 and 3, and added he was contacted by Union
Representative John Scruggs on February 4. Scruggs asked
Powell how he felt about unionization at the Company. Pow-
ell told Scruggs he would go along with whatever a majority
of the employees wanted. Powell then arranged for the first
meeting of employees with the Union’s representative at the
Union’s Pisgah Forest, North Carolina office on February 8.
Powell signed a union card at the meeting and got one other
card signed away from the plant. Powell said he talked to
employees about the Union but to the best of his knowledge
the Company was not aware of his efforts on behalf of the
Union.
Powell attended the company-called employee meeting on
February 11. As noted elsewhere in this decision, Supervisor
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 Powell did not say whether Supervisor Nicholson or Supervisor
Aiken (or both) made the above comment.
39 Executive Vice President Brannigan testified he first learned of
the poor quality of Powell’s work when he ‘‘chanced upon’’ Super-
visors Aiken and Nicholson discussing Powell’s work. Brannigan
speculated Powell’s brother Gerald may have been able to cover
Powell’s poor workmanship.
40 Powell credibly testified he had never been counseled or warned
about his workmanship or his attitude.
Nicholson spoke about the Union with Powell on February
14, and in that conversation Nicholson wanted to know if
Powell was one of the ‘‘ring leaders’’ for the Union.
Powell testified he reported for work as usual on February
18, and started performing his regular duties when Super-
visor Nicholson informed him that Supervisor Aiken wanted
to see him (Powell) in the office. Powell went to the office
where Supervisor Aiken told him ‘‘I have some bad news for
you . . . I’m going to have to let you go.’’ Powell re-
sponded, ‘‘Well, they finally singled somebody out . . . for
[u]nion activity.’’ According to Powell, Supervisor Aiken
‘‘read off’’ the reason for his discharge which was ‘‘disturb-
ance . . . agitation and loss of production in the work
place.’’ Powell testified Supervisor Nicholson asked during
the termination meeting if he was the ‘‘ring leader.’’ Powell
told Nicholson no. Powell testified ‘‘they said they had to
make some believers out of somebody.’’38 Powell testified
Aiken and Nicholson did not tell him what ‘‘the disturb-
ance’’ or ‘‘agitation’’ was that he allegedly caused nor did
they tell him what production had been interfered with.
Powell testified that prior to his discharge, he never had
any complaints from management about his work, attitude, or
production nor any complaints about causing disturbances or
agitation in the plant.
a. Supervisor Aiken’s role
Supervisor Aiken testified he hired Powell as a favor to
Powell’s brother, Gerald, who is also employed by the Com-
pany. Aiken made the decision to discharge Powell on Feb-
ruary 14, and said he did so because of Powell’s ‘‘poor
workmanship,’’ ‘‘causing disturbances,’’ and because his fel-
low workers said he ‘‘complained’’ about work in general
and about his fellow workers. Aiken said that ‘‘quite a few’’
times he had to take work Powell had performed back to
Powell and tell him his work was not up to the standards of
quality the Company needed and that he had to explain to
Powell how his work assignments should be accomplished.
Aiken said Powell consistently performed his job poorly and
added he could not recall any work Powell had performed
properly. Aiken said the quality of Powell’s work was the
same on January 1, and earlier as it was on the day he was
discharged. Aiken said he only listed ‘‘disruption’’ as the
reason for Powell’s discharge on unemployment forms he
provided the State of North Carolina because he did not take
time to list all the reasons on those forms. Aiken acknowl-
edged the only reason he gave Powell at the time of his dis-
charge for his discharge was that he was causing disturb-
ances and was out of his workplace.
b. Vice President Robinson’s role
Vice President of Production Robinson testified Powell
was not discharged any sooner than he was because his
brother worked for the Company and they did not wish to
create ‘‘hard feelings’’ with the brother.39
c. Analysis and conclusions
I am persuaded counsel for the General Counsel estab-
lished a prima facie case with respect to Powell’s discharge.
Powell was the employee who made the arrangements for
the first union meeting. Powell signed a union card at the
meeting and although he did not perceive his activities were
known to the Company, it appears they were. On February
14, Supervisor Nicholson asked Powell if he was one of the
‘‘ring leaders’’ for the Union and also asked what he thought
about the Union. Powell was asked again by Supervisor
Nicholson at his termination if he was a ringleader for the
Union.
The Company’s antiunion motivation and the timing of the
discharges at issue herein have been addressed earlier and
need not be repeated here except for certain evidence of the
Company’s unlawful motivation specifically directed at Pow-
ell. For example, when Supervisor Nicholson asked Powell
on February 14, if he was a ring leader for the Union, he
(Nicholson) outlined for Powell certain options the Company
had if unionization efforts continued at the plant, namely,
that the Company could close and move to Georgia, it could
fire all the employees and operate with supervision and/or it
could make it rough on all the employees. Perhaps the most
revealing evidence of the Company’s motivation for its ac-
tion against Powell is found in Supervisor Nicholson’s and/or
Supervisor Aiken’s statement to Powell at the time he was
discharged that the Company ‘‘had to make believers out of
somebody.’’
I find the Company failed to demonstrate it would have
discharged Powell even in the absence of any protected con-
duct on his part. The Company, through Supervisor Aiken,
testified Powell was discharged for ‘‘causing disturbances,’’
‘‘causing a breakdown in morale’’ and ‘‘instituting bad feel-
ings among co-workers’’ ‘‘among other problems.’’ Super-
visor Aiken acknowledged he only told Powell at the time
he discharged him that he was being discharged for ‘‘causing
disturbances and being out of his work place.’’ Aiken, how-
ever, testified the precipitating factor that immediately led to
Powell’s discharge was his ‘‘workmanship’’ and his ‘‘atti-
tude’’ toward his work and his coworkers. The Company,
however, acknowledged Powell’s work habits had existed
every since he had been employed by the Company and that
he had never performed quality work. The Company ac-
knowledges it never took any prior action against Powell.40
The Company produced no records to show that production
was down or that quality suffered as a result of Powell’s ac-
tions (or inactions) at the time in question. Vice President of
Production Robinson’s testimony that he did not take action
against Powell any sooner in deference to Powell’s brother
who is employed by the Company is simply unbelievable
and I am convinced was an afterthought on Robinson’s part.
In light of all the above, I conclude and find the Company
violated Section 8(a)(3) of the Act when on February 18, it
discharged and thereafter failed and refused to reinstate Pow-
ell.
879PETER VITALIE CO.
41 There is no contention that she was a supervisor within the
meaning of the Act.
42 She said she attended a second union meeting on February 15.
43 The actual discharge slip reads as follows:
Rose Baltezore was terminated on 2-18-92 at 7:30 a.m. because
of causing disturbances and agitation in the factory which
caused loss of production.
Keith Aiken
44 Vice President of Production Robinson testified Baltezore was
not discharged earlier because she needed the work and even worked
a job other than the one she had with the Company herein.
3. Rose Baltezore
Baltezore started working for the Company in January
1990 and at the time of her discharge was head of the sand-
ing department41 where she ‘‘[m]ostly train[ed] workers . . .
how to sand’’ and to make sure the tables were ready for
delivery to the customers. Her immediate supervisor was
Keith Aiken.
Baltezore testified Crawford asked her about trying to
bring a union in at the Company on February 7. Baltezore
said she attended the first union meeting on February 8, and
signed a union card at that meeting.42 Baltezore said she
took ‘‘a few extra cards’’ back to the plant and gave ‘‘a
few’’ to a coworker before her work shift started on Feb-
ruary 10. Baltezore said that to her knowledge, no one from
management saw her giving out union cards. She said she
talked with the sanding department employees during break
times about signing cards for the Union.
Baltezore attended the company-called employee meeting
on February 11, at which the Union was discussed. As noted
elsewhere in this decision, Supervisor Aiken spoke with
Baltezore on February 14, about the Union in which he stat-
ed, among other things, that a union would not do the em-
ployees any good and warned Baltezore that if the employees
did not ‘‘cut this stuff out’’ the owners would ‘‘shut the
plant and move to Georgia.’’
Baltezore said she reported for work as usual on February
18, and after about 20 minutes, Supervisor Nicholson told
her Supervisor Aiken wanted to see them in Aiken’s office.
According to Baltezore’s credited testimony, Supervisor
Aiken told her it was ‘‘really hard’’ because ‘‘she was such
a valuable employee’’ but he was going to fire her. Baltezore
asked for something in writing and as Aiken was preparing
a written note, Nicholson asked Baltezore ‘‘You were in-
volved in the Union, weren’t you?’’ Baltezore acknowledged
she had been and Nicholson asked, ‘‘Why?’’ ‘‘Why didn’t
you listen to Keith [Supervisor Aiken]?’’ Baltezore told
Nicholson it had not done any good in the past and stated
the employees had no job security. Baltezore said Supervisor
Aiken then handed her a written note indicating she was dis-
charged for causing disturbances and agitation throughout the
plant and for causing a loss of production.43 Baltezore asked
Aiken to explain what the disturbances and agitation were.
Aiken told her ‘‘Ah, you know.’’ Baltezore insisted she did
not but Supervisor Aiken refused to answer any further.
Baltezore left the plant at that time.
a. Supervisor Aiken’s role
Supervisor Aiken testified he made the decision to termi-
nate Baltezore and did so because she caused disturbances in
the plant, broke down morale among the employees, and in-
stigated bad feelings among her coworkers. Aiken said
Baltezore had ‘‘always’’ shown these traits. When asked why
her longtime misconduct had not resulted in her discharge
earlier,44 Aiken testified:
Well, maybe it should have, but it just built up to a
point and I just finally decided that was the best thing
to do because she was just causing too much trouble
and too many bad feelings in the plant.
Supervisor Aiken testified he only told Baltezore at the time
he discharged her that she was being discharged for causing
a disturbance.
b. Vice President Brannigan’s role
Executive Vice President Brannigan testified Baltezore
‘‘had gotten to the point as a supervisor where she couldn’t
keep employees working with her.’’ Brannigan said
Baltezore was ‘‘dictatorial’’ and ‘‘harsh’’ with the employees
that worked for her. According to Brannigan, certain employ-
ees quit rather than work with Baltezore. Brannigan said
Baltezore had been ‘‘a constant complainer’’ ever since she
had been employed with the Company. Brannigan said
Baltezore complained that the tools were not always in work-
ing order that the employees had to work with. He said she
also complained that a lack of ventilation in the sanding de-
partment was not good for the employees. Brannigan said
Baltezore was so ‘‘belligerent’’ about everything that he
started calling her ‘‘Sarge.’’
Executive Vice President Brannigan testified he rep-
resented the Company at the State of North Carolina unem-
ployment hearing for Baltezore. He said the Company took
the position in its documentation before that tribunal that
Baltezore was discharged solely for causing disturbances and
agitation which resulted in a loss of production.
c. Analysis and conclusions
I am persuaded counsel for the General Counsel estab-
lished a prima facie case with respect to Baltezore’s dis-
charge.
It is clear from Executive Vice President Brannigan’s com-
ments to employees Crawford and Wood, as credibly testi-
fied to by Wood, that the Company had concluded Baltezore
was one of the chief supporters of the Union. Brannigan told
Crawford and Wood that Baltezore’s was the third name
mentioned in management discussions concerning the
Union’s organizing activity at the plant. Additionally, Super-
visor Aiken told Baltezore the Company was too small for
a union and ‘‘if you all don’t’ cut this stuff out . . . [the
owners] will shut this plant and move to Georgia.’’ Not only
does the above comment of Supervisor Aiken establish
knowledge, it also demonstrates the Company’s strong
antiunion animus.
The timing of Baltezore’s discharge and other evidence of
antiunion animus on the part of the Company has been noted
elsewhere and will not be repeated here.
I find the Company failed to demonstrate it would have
discharged Baltezore even in the absence of any protected
conduct on her part. At best, the Company only dem-
onstrated that Baltezore complained, perhaps often, about
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
46 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
working conditions in the sanding department. It is beyond
dispute that Baltezore had ‘‘always’’ voiced concerns regard-
ing working conditions in her department. Baltezore’s com-
plaints only became of concern to the Company when union
activity, which it perceived Baltezore was at least in part re-
sponsible for, surfaced at the plant. I reject the Company’s
contention that employees could not work with Baltezore. If
Baltezore had such a problem, it had been tolerated from the
beginning of her employment. I conclude and find the Com-
pany violated Section 8(a)(3) of the Act when on February
18, it discharged and thereafter failed and refused to reinstate
Baltezore.
CONCLUSIONS OF LAW
1. Peter Vitalie Company, Inc. is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Sterling Billiard Company, Inc. is an employer within
the meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. Peter Vitalie Company, Inc. and Sterling Billiard Com-
pany, Inc. (collectively, the Company) constitute a single-in-
tegrated business enterprise and a single employer within the
meaning of the Act, and individually and collectively con-
stitute an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
4. United Paperworkers International Union, AFL–CIO is
a labor organization within the meaning of Section 2(5) of
the Act.
5. By engaging in the following conduct, the Company
violated Section 8(a)(1) of the Act.
(a) Threatening its employees with discharge if they en-
gaged in union activity.
(b) Interrogating its employees concerning their union
sympathies and desires.
(c) Creating an impression among its employees that their
union activities were being surveilled.
(d) Soliciting employees to repudiate their support of the
Union.
(e) Threatening its employees with more stringent enforce-
ment of its rules for engaging in union activities.
(f) Threatening its employees with a reduction in their
work hours if they engaged in union activity and/or selected
the Union as their collective-bargaining representative.
(g) Threatening its employees with plant closure if the
Union were selected as the employees’ collective-bargaining
representative.
(h) Advising its employees it would be futile to engage in
union organizational activity, and
(i) Threatening its employees with unspecified reprisals for
engaging in union activities.
6. By issuing written warnings to its employees Tammy
Crawford and Gerald Wood on or about February 13, 1992,
because they joined, supported, or assisted the Union and/or
engaged in concerted activities for the purposes of collective
bargaining or other mutual aid or protection and in order to
discourage employees from engaging in such activities or
other concerted activities, the Company engaged in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act.
7. By discharging its employees Tammy Crawford, Gerald
Wood, Rose Baltezore, and Keith Powell on or about Feb-
ruary 18, 1992, and thereafter refusing to reinstate them be-
cause of their union concerted and protected activities, the
Company engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Company has engaged in violations of
Section 8(a)(1) and (3) of the Act, I shall recommend it be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found the Company discriminatorily issued written
warnings to its employees Tammy Crawford and Gerald
Wood, I shall recommend that the warnings be immediately
expunged from their files, that they be notified in writing this
has been done, and that evidence of the unlawful warnings
will not be used as a basis for any future personnel actions
against them. Having also found the Company
discriminatorily discharged employees Tammy Crawford,
Gerald Wood, Rose Baltezore, and Keith Powell, I shall rec-
ommend they be offered immediate and full reinstatement to
their former positions of employment or, if their former posi-
tions of employment no long exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, with interest.
Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest,
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).45 I also recommend the Company be ordered
to expunge from all files any references to their discharges
and notify them in writing this has been done and that evi-
dence of the unlawful actions against them will not be used
as a basis for any future personnel actions against them. Fi-
nally, I recommend the Company be ordered to post an ap-
propriate notice to employees for a period of 60 days in
order that employees may be apprised of the rights under the
Act and the Company’s obligation to remedy its unfair labor
practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended46
ORDER
The Respondent, Peter Vitalie Company, Inc. and Sterling
Billiard Company, Inc., Rosman, North Carolina, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge if they en-
gage in union activity.
(b) Interrogating its employees concerning their union
sympathies and desires.
881PETER VITALIE CO.
47 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Creating an impression among its employees that their
union activities were being surveilled.
(d) Soliciting employees to repudiate their support of the
Union.
(e) Threatening its employees with more stringent enforce-
ment of its rules for engaging in union activities.
(f) Threatening its employees with a reduction in their
work hours if they engaged in union activity and/or selected
the Union as their collective-bargaining representative.
(g) Threatening its employees with plant closure if the
Union were selected as the employees’ collective-bargaining
representative.
(h) Advising its employees it would be futile to engage in
union organizational activity.
(i) Threatening its employees with unspecified reprisals for
engaging in union activities.
(j) Discharging, warning, or otherwise discriminating
against its employees because of their membership in, or ac-
tivities on behalf of, the Union or because they engaged in
other protected concerted activities.
(k) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Expunge from the files of employees Tammy Crawford
and Gerald Wood the discriminatorily motivated warnings
given them on or about February 13, 1992, and notify them
in writing this has been done and that evidence of the unlaw-
ful actions will not be used as a basis for any future per-
sonnel actions against them.
(b) Offer Tammy Crawford, Gerald Wood, Rose Baltezore,
and Keith Powell immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them in the
manner set forth in ‘‘The Remedy’’ section of this decision
and expunge any reference to their discharges from their
work records.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Rosman, North Carolina, facility copies of
the attached notice marked ‘‘Appendix.’’47 Copies of the no-
tice, on forms provided by the Regional Director for Region
11, after being signed by the Company’s authorized rep-
resentative, shall be posted by the Company immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Company has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or issue warnings to our employ-
ees because of their activities on behalf of the United Paper-
workers International Union, AFL–CIO.
WE WILL NOT threaten our employees with discharge if
they engage in union activity.
WE WILL NOT interrogate our employees concerning their
union sympathies and desires.
WE WILL NOT create the impression among our employees
that their union activities were being surveilled.
WE WILL NOT solicit our employees to repudiate their sup-
port of the Union.
WE WILL NOT threaten our employees with more stringent
enforcement of our rules if they engage in union activities.
WE WILL NOT threaten our employees with a reduction in
their work hours if they engage in union activity and/or se-
lect the Union as their collective- bargaining representative.
WE WILL NOT threaten our employees with plant closure
if the Union is selected as the employees’ collective-bar-
gaining representative.
WE WILL NOT advise our employees it would be futile to
engage in union organizational activity.
WE WILL NOT threaten our employees with unspecified re-
prisals for engaging in union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL expunge from the personnel files of Tammy
Crawford and Gerald Wood the unlawfully motivated written
warnings we issued them on or about February 13, 1922, and
WE WILL advise them, in writing, this has been done and that
evidence of our unlawful actions will not be used as a basis
for future personnel actions against them.
WE WILL offer Tammy Crawford, Gerald Wood, Rose
Baltezore, and Keith Powell immediate and full reinstatement
to their former jobs or, if their jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings and other ben-
882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
efits suffered as a result of our unlawful conduct, with inter-
est.
WE WILL notify Tammy Crawford, Gerald Wood, Rose
Baltezore, and Keith Powell that we have removed from our
files any reference to their discharges and that their dis-
charges will not be used against them in any way.
PETER VITALIE COMPANY, INC. AND
STERLING BILLIARD COMPANY, INC.