Philips Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 717 (N.L.R.B. 1989)

PHILIPS INDUSTRIES
Philips Industries, Inc. and United Steelworkers of
America. Cases 36-CA-5254 and 36-RC-4856
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
DEVANEY
On May 12, 1987, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs . The Respondent
filed cross-exceptions and a supporting brief. The
General Counsel, the Charging Party , and the Re-
spondent also filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions only to the extent consistent with this
decision.
1. The judge concluded , inter alia, that the Re-
spondent 's discharge of employee Tim Sterrett did
not violate Section 8 (a)(3) and (1) of the Act. The
judge found that the General Counsel presented a
prima facie case of unlawful discharge . However,
the judge also found that the Respondent rebutted
the General Counsel 's case, and accordingly he
recommended dismissal of this allegation of the
complaint . In their respective exceptions , the Gen-
eral Counsel and the Charging Party argue that the
discharge of Tim Sterrett was violative of the Act.
For reasons set forth below , we agree with the
General Counsel and the Charging Party.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
( 1982),2 the Board set forth its causation test for
1 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
The Charging Party Union excepts to the judge's failure to rule on its
Objections 9-12 and 14 to the election conducted in Case 36 -RC-4856
As we have adopted the judge's reommendation that other of the Union's
objections be sustained, we find it unnecessary to pass on the Union's Ob-
jections 9-12 and 14
The judge found that the Respondent violated Sec 8(a)(1) by individ-
ually warning employee Ray Sterrett on May 5 , 1986. The recommended
Order and notice are modified accordingly In adopting the judge 's find-
ings on interrogation , Member Cracraft does not rely on Sunnyvale Medi-
cal Clinic, 277 NLRB 1217 (1985)
2 Approved in NLRB v. Transportation Management Corp, 462 U.S.
393 (1983).
717
cases alleging violations of the Act turning on em-
ployer motivation . First, the General Counsel must
make a prima facie showing sufficient to support
the inference that protected conduct was a "moti-
vating factor" in the employer's decision . Once this
is established, the burden shifts to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Here, for reasons set forth by the judge , we find
that the General Counsel established a prima facie
showing that Tim Sterrett 's discharge violated Sec-
tion 8(a)(3) of the Act. A union organizing cam-
paign commenced at the Respondent 's Stayton,
Oregon facility in March 1986. Tim Sterrett, along
with his brother Ray Sterrett , 3 were among the
primary in -house union organizers .4 Supervisors
were aware of Tim Sterrett's activities and report-
ed them to Plant Manager Holm. Tim Sterrett's
union activities commenced in late March 1986 and
he was discharged shortly thereafter.5 Finally,
based on our findings, including our adoption of
the judge 's findings of violations of Section 8(a)(1)
of the Act, the Respondent has demonstrated its
animus towards the Union and its supporters.
The Respondent, in its defense, offered three rea-
sons for its discharge of Tim Sterrett , to wit (1)
"gross insubordination," (2) "interference with
plant production," and (3) "leaving plant without
permission."
The incident giving rise to the three bases relied
on by the Respondent to support its discharge of
Tim Sterrett may be briefly summarized as follows.
On April 3 Sterrett told his group leader, Mar-
lene Basl , that he needed to leave work early, as he
had a doctor 's appointment scheduled at 3 p.m.
that day. Basl told Sterrett he could leave. Later
that day Supervisor Laura Berning revoked Ster-
rett's permission to leave and told Sterrett he could
not go . Berning did not offer a reason to Sterrett.
About 1 :30 p.m . Sterrett told Berning he was
going home sick . Berning confiscated Sterrett's
timecard after he punched out on the clock. On re-
turning to work the following day, Sterrett was
suspended by Plant Manager Holm. On April 8,
based on the April 3 incident , Sterrett was termi-
nated as previously noted for alleged "gross insub-
ordination, interference with plant production and
leaving plant without permission."
a The judge found that the Respondent 's discharge of Ray Sterrett vio-
lated Sec. 8(a)(3) and ( 1) of the Act . The Respondent has not excepted to
that finding.
4 The judge referred to the Sterrett brothers as the "two primary in-
house union organizers ." He also found that Tim Sterrett was the em-
ployee who first contacted union officials in March 1986.
S Tim Sterrett was suspended on April 3 and that suspension was con-
verted to a discharge on April 8
295 NLRB No. 75
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In regard to the first two reasons advanced by
the Respondent, the judge found they were "pre-
textual and must be rejected." The judge found
"no valid evidence" to support a claim of "gross
insubordination." He further found no credible evi-
dence of interference with plant production beyond
what would always occur when an employee
leaves early . We agree.
However, the judge accepted the Respondent's
third reason (i.e., "leaving plant without permis-
sion") as valid and thus concluded that Tim Ster-
rett would have been discharged even absent his
union activity.
The judge found that the Respondent changed
its normal sick leave policy by refusing to permit
Tim Sterrett to leave on April 3.6 Nonetheless, he
also found , based on evidence produced at trial,
that Tim Sterrett was not, in fact, ill on April 3.
Rather, he left work for a doctor's appointment
that involved a physical examination for another
job.
Ultimately, in light of the foregoing, the judge
framed the issue as follows (JD sec. B,1 a.)
[T]he case raises the question whether this or
any employer can fire an employee for leaving
work early , in order to complete the hiring
process for a new job ! To state the issue is to
supply the answer . Of course , an employer can
do so.
The flaw in the judge 's reasoning is that the Re-
spondent , at the time it discharged Tim Sterrett,
did not know that Sterrett had left to have a physi-
cal for a new job. The issue here turns on employ-
er motivation . An employer cannot be motivated
by facts of which it is not aware.
The Respondent , on brief to the Board , admits it
"was not aware that the doctor's appointment for
which Sterrett left was part of the employment
process of another employer." Indeed , Plant Man-
ager Holm admitted that he did not question Ster-
rett about the appointment until after the decision
to terminate had been made.
Thus, in regard to Tim Sterrett's "leaving plant
without permission ," we are left with the Respond-
ent, contrary to its normal company policy, deny-
ing a primary union activist approval to leave
early.? The Respondent has not demonstrated that
6 The judge found that the Respondent 's policy permitted employees
to leave work without pay for a doctor 's appointment or other valid rea-
sons, even with only a few hours' notice.
7 Tim Sterrett was denied permission to leave by Supervisor Laura
Berning, the Respondent 's official who committed numerous 8 (a)(1) vio-
lations and had exhibited considerable hostility towards the employees'
union activities.
other employees , leaving work early in similar cir-
cumstances, were discharged." Accordingly, the
Respondent has not met its burden of proving that
Tim Sterrett would have been discharged in the
absence of his union activities. Accordingly, we
find that the Respondent's discharge of Tim Ster-
rett violated Section 8(a)(3) and (1) of the Act.
2. The General Counsel and the Charging Party
except to the judge's failure to impose, as part of
the remedy for the Respondent's unfair labor prac-
tices, a Gissel9 bargaining order. 10
In determining whether a bargaining order is ap-
propriate the Board examines the severity of the
violations committed as well as the present effects
of the coercive unfair labor practices that would
prevent the holding of a fair election."
The decision whether to impose a bargaining
order here is a difficult and troublesome one.
Having found that the Respondent discharged two
employees (i.e., brothers Tim and Ray Sterrett) in
violation of Section 8(a)(3) and (1) of the Act, we
have found two 8(a)(3) "hallmark" violations.
These "hallmark" violations are highly coercive
unfair labor practices that are likely to have a long-
lasting and substantially inhibiting effect on em-
ployees. See Horizon Air Services, 272 NLRB 243
(1984); see also NLRB v. Jamaica Towing, 632 F.2d
208 (2d Cir. 1980). However, a "hallmark" viola-
tion will not always mandate the imposition of a
bargaining order . See, e . g., Fiber Glass Systems, 278
NLRB 1255 (1986); Churchill's Restaurant, 276
NLRB 775 (1985); Sangamo Western, Inc., 273
NLRB 256 (1984).
Here , despite our finding of two unlawful dis-
charges, we shall adopt the judge 's finding that a
free and fair election may be held after imposition
of the Board 's traditional remedies.12 We rely, as
did the judge, on the size of the unit (i.e., the effect
of violations is more diluted and more easily dissi-
8 Also, as noted by the judge, the Respondent's reliance on pretextual
reasons to support Tim Sterrett 's dicharge lends support to a finding that
the Respondent's motive was unlawful . See Shattuck-Denn Mining Corp.
Y. NLRB, 362 F.2d 466, 470 (9th Or. 1966).
9 See NLRB v. Gissel Packing Co., 395 U.S 575 (1969).
10 The judge failed to make a specific finding regarding whether the
Union ever obtained majority status in an appropriate unit. The Board
has held that showing of majority status is a prerequisite to the imposi-
tion of a Gissel bargaining order . See Gourmet Foods, 270 NLRB 578
(1984). For purposes of our discussion , we have assumed arguendo that
that union achieved majority status.
11 See Quality Aluminum Products, 278 NLRB 338 (1986); see also
NLRB v. Carlton's Market, 642 F.2d 350, 354 (9th Cir 1981), in which
the court stated that Gissel instructed the Board to consider the extensive-
ness of unfair labor practices , their past effect on election conditions, the
likelihood of recurrence , and the probability that a fair election can be
held.
12 A second election will be necessary if, after counting those chal-
lenged ballots found here to be valid, the Union loses the election.
PHILIPS INDUSTRIES
pated in a larger unit). 13 Further , we agree with
the judge that , in the circumstances here, the likeli-
hood of a recurrence of unfair labor practices is
relatively small. Significantly , top management
committed no violation of Section 8(a)(1) of the
Act. Rather , the violations emanated from the
overzealous actions of first-level supervisors. Em-
ployees would not necessarily view the Respond-
ent's unlawful actions as being a reflection of com-
pany policy . Traditional remedies , including the
posting of cease-and-desist notices, could create, in
these circumstances , an atmosphere in which a free
and fair election could be held.
AMENDED CONCLUSIONS OF LAW
Insert the following after Conclusions of Law
3,a.
"b. Discharging Tim Sterrett because of his
union activities."
AMENDED REMEDY
In addition to those remedies ordered by the
judge, we shall order the Respondent to offer Tim
Sterrett immediate and full reinstatement to his
former job or, if that job no longer exists, to a sub-
stantially equivalent position , without prejudice to
his seniority or any other rights and privileges pre-
viously enjoyed , and make him whole for any loss
of earnings or other benefits suffered as a result of
the discrimination against him . The loss of earnings
and benefits incurred by this employee as a result
of the unlawfully motivated discharge shall be de-
termined as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
In accordance with Sterling Sugars, 261 NLRB
472 (1982), the Respondent shall remove from its
files any reference to the discharge of Tim Sterrett
and notify him in writing that this has been done
and that evidence of this unlawful action will not
be used as a basis for future personnel actions
against him.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Philips Industries , Inc., Stayton, Oregon,
its officers , agents , successors , and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraphs 1(a) and (b)
and reletter subsequent paragraphs.
's The violations found here of Sec . 8(aXl) of the Act , as the judge
noted, affected only a few employees . Of course , the two unlawful dis-
charges must be weighed as having an inhibitive effect on all employees
719
"(a) Discharging or otherwise discriminating
against employees because of their union activities
and sympathies."
"(b) Singling out employees for warnings in
order to discourage their support for the Union."
2. Substitute the following for paragraphs 2(a)
and (b).
"(a) Offer Tim Sterrett and Ray Sterrett immedi-
ate and full reinstatement to their former jobs or, if
their former jobs no longer exist , to substantially
equivalent positions of employment without preju-
dice to their seniority and other rights and privi-
leges and make them whole for any loss of earn-
ings they may have suffered by reason of the dis-
crimination against them in the manner set forth in
the remedy and amended section of this decision.
"(b) Expunge from its files any reference to the
discharges of Tim Sterrett and Ray Sterrett and
notify them , in writing , that this has been done and
that evidence of their unlawful discharges will not
be used as a basis for any future personnel action
against them."
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that Case 36-RC-4856
is severed from this consolidated complaint and re-
manded to the Regional Director , that the ballots
of the employees found to be valid be opened and
counted by the Regional Director in accordance
with the Board 's Rules and Regulations , and the
revised tally of ballots issued and served on the
parties . In the event the Petitioner has received a
majority of the valid ballots cast , the Regional Di-
rector shall issue the appropriate certification of
representative . In the event the Petitioner has not
received a majority of the valid ballots cast, IT IS
FURTHER ORDERED that the election conducted
May 28 , 1986, be set aside . The Regional Director
shall conduct a new election when, in his discre-
tion, a free and fair election can be held.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate our em-
ployees about their activities and sympathies for
United Steelworkers of America , or any other
labor organization, nor ask our employees about
the union activities of other employees.
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT imply to our employees that they
could be terminated for engaging in union activi-
ties.
WE WILL NOT criticize employees for wearing
union T-shirts.
WE WILL NOT suggest to employees that a union
victory could bring a plant closure.
WE WILL NOT tell employees that unions lead to
strikes and strikes lead to plant closures.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
activities and sympathies.
WE WILL NOT single out employees for warnings
in order to discourage their support for the Union.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Tim Sterrett and Ray Sterrett
full and immediate reinstatement to their former
jobs or, if those jobs no longer exist , to substantial-
ly equivalent positions , without prejudice to their
seniority or other rights and privileges , and make
them whole, with interest, for any loss of pay suf-
fered as a result of our discrimination against them.
WE WILL remove from our records any refer-
ence to the discharges of Tim Sterrett and Ray
Sterrett and notify them in writing that this has
been done and that their discharges will not used
against them in any way.
PHILIPS INDUSTRIES, INC.
Catherine M. Roth, Esq. and Gail Streicker, Esq., for the
General Counsel.
John T Neighbours, Esq. (Baker & Daniels), of Indianapo-
lis, Indiana , for the Respondent.
Donald S. Willner, Esq. (Willner & Kelly), of Portland,
Oregon , for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON , Administrative Law Judge.
This case was tried before me at Salem , Oregon, on 28-
31 October and 1-5 and 15- 17 December 1986 , 1 pursu-
ant to an amended complaint issued by the Regional Di-
rector for Region 19 on 18 August . In addition, on 31
July, the Regional Director ordered consolidated certain
issues arising from a representation election in Case 36-
RC-4856. The complaint , based on a charge filed on 3
June by United Steelworkers of America (the Union or
Charging Party), alleges that Philips Industries, Inc. (the
Respondent), has engaged in certain violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
The Union's representation petition was filed on 25
March and sought a representation election among cer-
1 All dates herein refer to 1986 unless otherwise indicated.
tain of Respondent 's production and maintenance em-
ployees . An election was held pursuant to a Stipulation
for Certification Upon Consent Election on 28 May. Ob-
jections to conduct affecting the outcome of the election
were filed by the Union on 3 June . In addition, it ap-
pears from the tally of ballots that 16 votes were chal-
lenged , and they are sufficient in number to affect the
outcome of the election.
Issues
1. Whether Respondent took the following unlawful
actions because of the individual employee's union activi-
ties or other concerted protected activities:
(a) Discharged Tim Sterett and Ray Sterett.
(b) Transferred Patty Swartz from one department to
another department.
(c) Suspended Linda DeHut for one day.
2. Whether Respondent through its agents and supervi-
sors engaged in the following unlawful conduct in order
to coerce employees in the exercise of their organization-
al rights guaranteed to them by Section 7 of the Act.
(a) Referring to an employee as a "troublemaker," and
otherwise making coercive statements or threats to em-
ployees without good cause.
(b) Interrogating employees regarding their own or
other employees ' union sympathies.
(c) Granting employee wage increases in a manner and
in amounts designed to chill employee union activities.
(d) Strictly enforcing previously unenforced produc-
tion standards; and accusing employees of engaging in a
production slow-down without good cause.
(e) Threatening employees with termination.
(f) Making threats to employees regarding the employ-
er's response to a union election victory.
(g) Polling employees as to how they intended to vote,
shortly before an NLRB election occurred.
3. Whether Respondent 's employees classified as group
leaders are statutory supervisors.
4. Whether the challenges to certain other employee
ballots should be sustained.
5. Whether a bargaining order, a second election, or
any other remedy is appropriate under the facts and cir-
cumstances of this case.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses, to argue orally , and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel, the Charging Party, and
the Respondent.2
2 As a whole , the General Counsel's brief barely meets minimum re-
quirements . Few cases are cited and leading cases on specific points are
omitted. The factual discussion is insufficient. However , that portion of
the brief purporting to analyze and discuss the 8(a)(1) allegations is so
deficient that it must be noted for the record Seventeen 8(a)(1) allega-
tions are contained in the amended complaint The General Counsel pur-
ports to brief these allegations, at pages 17-25 of their brief. Only three
cases are cited and are not helpful No attempt is made to connect the
discussion in the brief to the specific paragraphs of the complaint Rather,
a single rambling narrative is utilized Where no evidence supports cer-
tain allegations , the General Counsel fails to so indicate . The parties to
this case, opposing counsel , the issues , and I deserve more from the Gen-
eral Counsel
PHILIPS INDUSTRIES
On the entire record of the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT3
I. RESPONDENT'S BUSINESS
Respondent admits that it is an Ohio corporation en-
gaged in the business of manufacturing mobile home
components and having a plant located in Stayton,
Oregon. It further admits that during the past year, in
the course and conduct of its business, it has sold and
shipped goods or provided services valued in excess of
$50,000 to customers outside the State of Oregon. Re-
spondent further admits that during the past 12 months,
which period is representative of all times material here,
in the course and conduct of its business operations, it
purchased and caused to be transferred and delivered to
its facilities within the State of Oregon goods and materi-
als valued in excess of $50,000 directly from sources out-
side the State, or from suppliers within the State which
in turn obtained such goods and materials directly from
sources outside the State . Accordingly it admits, and I
find, that it is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that United Steelwork-
ers of America is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent owns and operates approximately 42
manufacturing plants located throughout the United
States . The instant case involves certain events occurring
at one of these plants , located in Slayton , Oregon, a
small town containing fewer than 10,000 people. The
business of the Stayton Plant (the Plant) is to manufac-
ture windows , doors, and axles for mobile homes and
recreational vehicles.
Since 1981 , the plant manager has been Thomas Holm.
He is assisted in his duties by several admitted statutory
supervisors : Bill George , production superintendent and
supervisor over torque tier (crank-out type windows),
mobile home departments , and mobile home door lines;
Laura Berning , supervisor over slider line (horizontal,
vertical , and slider windows), trim and storms , and insu-
lated glass line; Bob Young, supervisor over storm doors,
house doors, and axle line; Mark Berning , supervisor
over shipping and receiving and warehouse ; and Louie
Brant, purchasing agent responsible for raw material.
3 Through inadvertance , Respondent 's answer to amended complaint
and notice of hearing was never filed with the General Counsel 's formal
documents . I admit the answer as G .C. Exh 1(m), in addition G C. Exh.
56 was admitted dung hearing but was not included in the bound
volume of exhibits made available to me. I direct that it be included in
the bound documents.
721
The supervisors are assisted in managing the plant by
12 individuals called group leaders. The Union argues
that these employees are statutory supervisors ; the Re-
spondent denies that they are . All agree that approxi-
mately 80 other employees work in the plant . A diagram
reflecting the placement of the various departments, su-
pervisors, and group leaders is in evidence as Charging
Party's Exhibits 7A and 7B.
For administrative purposes , a number of Respondent's
plants combine to form a division , a number of divisions
form a group. Called as a Respondent witness, Roy
Speakes is vice president and general manager of the
Western Division , Shelter Products and Transportation
Group , with headquarters in Cucamonga , California. Be-
tween 1973 and 1981, Speakes had been manager of the
Plant.
Also called as a Respondent witness was Lyle Haws,
group manager of industrial relations , based at Elkhart,
Indiana . Of the approximately 20 plants for which Haws
is responsible , 6 have contracts with labor organizations.
During the early 1970s, a union represented employees
at the Plant . After a few years, the union was decertified.
During 1980 and 1981, certain employees at the Plant
attempted without success to organize another union.
Principal organizers then as now were Ray Sterett, his
brother Tim Sterett , Tim's wife, Barb Sterett (not em-
ployed at the Plant during the present campaign),
Marsha Leffler, and Jerry Hansen . No charges, chal-
lenges, nor objections were filed with the NLRB as a
result of the 1981 campaign.
With this background , I turn next to a brief summary
of the facts and circumstances of the present case.
Respondent 's production employees earn their income
on a combination of hourly rates plus incentive bonus
computed on a daily basis . If an employee produces his
quota for the day, he or she is said "to make standard."
Occasional failure to make standard is not necessarily
grounds for disciplinary action, although consistent fail-
ure is likely to bring a warning and then discharge if
there is no improvement . Respondent offered abundant
evidence to show that it had disciplined employees for
failing to make standard during times when no union or-
ganizing campaign was in progress (e.g., R. Exhs . 29, 30,
31, 32, 33, 34, and 35). Contrary evidence purporting to
show that Respondent tolerated a few consistent low-
producing employees is not persuasive and is not cred-
ited.
Working to standard , however, is no guarantee of im-
munity from company discipline . If supervisors believe
that an employee, even though making standard, is not
performing to full potential , then that employee too, may
be subject to disciplinary action.
Beginning in late 1985 and through early 1986, Re-
spondent's officials came to believe that its production
standards might be too low. That is, based on surveys of
competitors , the economy in general, and its bottom line
profit margins, Respondent decided to have its standards
reviewed by an industrial engineer . The engineer con-
cluded that all or most production standards were too
low and recommended they be raised. In January, Re-
spondent did just that . To illustrate the effect of these
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
changes on employee wages, I turn to Tim Sterett, an al-
leged discriminatee. In January and February, his job
was to build windows . The old standard for his job was
20 windows an hour, and he was able to build 35-40
windows per hour. As of January, the new standard was
30 windows per hour. Accordingly, Sterett's pay was re-
duced by close to $100 per week. However, part of this
pay loss resulted from Sterett 's conscious decision to
reduce his production because he believed that the extra
effort needed to exceed the hourly standard, thereby
making bonus, was not adequately rewarded after the
standards were changed.
In addition to Tim Sterett , other employees were
angry and bitter over the change in production standards
and the resulting pay cuts, again caused in part by em-
ployees' decision not to expend extra effort to earn the
diminished bonus . For example , the testimony of the
General Counsel witness Catherine Wellborn was similar
to that of Tim Sterett in this respect . More will be said
about this later.
For now, it suffices to say that in March, Tim Sterett
contacted John Rusen , a union official, the first step in a
union organizing campaign . This phone call led to a
meeting at a local restaurant on or about 20 March.
Among those attending this initial organizational meet-
ing at the Stayton Plaza Restaurant were Rusen, the
Union's subdistrict director and chief organizer for 6
Western States , Tim and Ray Sterett , and about 8 to 10
other employees . In addition at least two group leaders,
Jerry Hansen and Carol Oeader , attended the meeting
without objection by any other participant. This was not
surprising since in the 1970s group leaders had been part
of the unit and voted in both the representational and de-
certification elections without objection . Similarly in
1981 , group leaders had voted in the representational
election without objection . No change in group leaders'
duties between those past years and current times was
evident.
Rusen explained to employees that his primary pur-
pose was not to win elections ; rather it was to encourage
a majority of employees to join the Union by signing
union authorization cards so as to obtain voluntary rec-
ognition from the Company. Many in attendance signed
cards at the meeting . The Sterett brothers assumed the
role of in-plant organizers. Rusen gave each of them sev-
eral authorization cards to obtain as many employee sig-
natures as possible . If employees were solicited at work,
Rusen cautioned , this could be done on breaktime only.
He recommended that, to the extent possible, employees
be solicited at their homes . In less than a week's time
after this initial meeting , Ray Sterett called Rusen and
said that a majority of employees had signed cards.
Rusen subsequently sent a telegram to Respondent repre-
senting that a majority of employees had signed authori-
zation cards, and demanding recognition and commence-
ment of collective bargaining . This telegram ultimately
led to an election on 28 May.
Rusen 's telegram to Respondent was based in part on
the union activities of Tim Sterett which began in the
plant on 21 March . While wearing a union button and T-
shirt with a union insignia, Sterett began soliciting em-
ployees to sign authorization cards.
Supervisors observed this activity and immediately re-
ported it to Plant Manager Holm. Holm then reported it
to his supervisor, Speakes, who in turn notified Lyle
Haws . Both Speakes and Haws testified that their pres-
ence at the Stayton plant on the following Monday, 24
March, was attributable to plans made before they heard
information about union organizing . Allegedly, they both
had planned to go to Stayton on 24 March, in order to
address employees about the changes in production
standards which had been causing employee discontent.
After hearing Holm's telephone report, Speakes and
Haws decided not to change their prior schedule. When
meeting with employees , they would simply add infor-
mation regarding the employer 's opposition to the Union.
Before meeting with employees on 24 March, Speakes,
Haws, and Holm first met with supervisors to discuss an
appropriate response to the union organizing campaign.
Haws distributed to supervisors a corporate publication
entitled, "Do's and Don't's Union Campaign" (R. Exh.
13). The following received a copy of the booklet: Laura
Berning, Bill George , Bob Young , Mark Berning, and
Louie Brant . All but Brant were witnesses at hearing and
will be referred to below . No group leaders attended this
supervisors ' meeting nor, with one exception , any other
supervisors ' meeting held in the plant prior to the elec-
tion . In addition to distributing the booklet, Haws dis-
cussed with the supervisors the probable reasons for the
union campaign and the best methods of opposing the
Union's organizing . After this meeting, employees were
called to group meetings.
Employees were gathered into three groups for sepa-
rate meetings with Speakes , Haws, and Holm for about
15 minutes . Each meeting included department supervi-
sors assigned to the particular group in attendance. De-
tails of the meeting which were essentially alike will be
provided below. For now it suffices to say that after the
three meetings were concluded , Speakes felt that he had
not adequately conveyed the desired message to employ-
ees. Accordingly, he ordered that another series of meet-
ings be held on the following day. Haws took notes on
both days and these notes were later typed up and admit-
ted into evidence (R. Exhs. 43, 44).
Tim Sterett testified that Speakes made certain com-
ments to him while he was in the plant on 24 March.
First, Speakes allegedly asked the witness if he had an
extra union button . Later Speakes came up to Sterett and
stated , "I hear you are the fastest one on the job." To
this Sterett replied, "Yeah, I guess I am." Neither of
these remarks is specificially alleged to be a violation of
the Act. In any event , I note that Speakes denied making
the remarks and testified that his only remark to Tim
Sterett when Speakes visited him and other employees
while touring the plant was to ask how everything was
going . No other witnesses supported Sterett's testimony
regarding these statements and I do not credit Tim Ster-
ett. It is unlikely that Speakes as the highest ranking Re-
spondent line official would have attempted to provoke
Sterett in this manner and, if he did, someone else would
have heard him.
On 3 April, Tim Sterett was suspended for leaving
work early due to a doctor's appointment . On 8 April,
PHILIPS INDUSTRIES 723
the suspension was changed to a termination . Respondent
gave three reasons for this action : "Gross insubordina-
tion , interference with plant production , and leaving
plant without permission" (G.C. Exh. 15). Once again, I
defer a full discussion of this incident until later.
On 2 May, all of Respondent 's employees were assem-
bled in an open space toward the front of the plant. The
purpose of the meeting was to announce to employees
the amount of their annual pay increase . The message
about to be announced was the result of computations
made by Haws beginning in February . He, Speakes, and
Holm had considered such factors as production , profits,
sales, economic forecasts , and competitor 's labor costs.
For the past several years, salary increases had been an-
nounced at about the same time . Haws began the meet-
ing by reviewing for employees the kinds of facts and
figures considered by him and other officials in arriving
at the pay raise . Finally, the amount was stated . For em-
ployees with tenure of 3 years or longer, the hourly raise
amounted to 25 cents . For group leaders, the hourly
raise amounted to 50 cents (R. Exh. 14).
On 5 May, another meeting was held involving issues
important to this case . This time only a few employees
from a single department attended . Held in Holm's
office, the meeting involved eight employees from the
slider line. They included Ray Sterett, Cathy Wellborn,
Vera Davis, Linda DeHut, Andrea Beougher, and
Rhonda Harsted, all of whom testified , and Heather
Chapman and Marie Wheeler who did not . In addition,
Holm, Haws, and Slider Line Supervisor Laura Berning
were present.
The meeting was allegedly based on information pro-
vided to Holm from Berning . Berning, in turn had alleg-
edly received the information from one of her group
leaders, Marlene Basl, who did not testify . Basl had al-
legedly received the information from Wellborn. The
report allegedly concerned Tim Sterett 's effort to en-
courage a production slowdown in February to protest
the higher standards . Sometime before the meeting with
Holm, Berning had held her own meeting with Tim Ster-
ett and other subordinates warning them to discontinue
the slowdown . When production did not improve, Bern-
ing complained to Holm . Hence the meeting of 5 May
was held.
Holm told the assembled workers that the Company
would not tolerate a production slowdown . He warned
the employees that they must increase production or be
terminated . Some employees protested that they were
working as hard as they could . After all other produc-
tion employees had left the meeting, Ray Sterett was
told to stay.
Ray Sterett was dressed in a union T-shirt, wore a
union button , and carried a large notebook with a union
insignia in bright colors . It was his habit to make notes
of events or statements which he believed related to the
union organizing campaign . The three supervisors also
remained in Holm 's office . Holm told Ray Sterett that
his production performance was totally unacceptable and
that he must meet the standard for his position by 9 May
or be terminated . In his testimony , Ray Sterett admitted
that he was not making standard as of 5 May; he also
testified that other employees were not making standard
either, and were not given this type of warning.
On 9 May, Ray Sterett was terminated by Holm for
violating Respondent 's policy prohibiting employees
from working through a lunchbreak , and for being insub-
ordinate to Berning (G.C. Exh. 38). A full airing of the
facts and circumstances surrounding this discharge
follow below.
On 28 May, an election was held on Respondent's
premises . Early on that day, Holm decided to have all
employees work 1-hour overtime , until 4 : 30 p.m . Begin-
ning from sometime in midafternoon , a supervisor was
stationed at Respondent 's front gate which was closed
and possibly locked . Apparently , no one was allowed to
enter or leave through that gate until the election was
finished in late afternoon . The two Sterett brothers went
to the plant to vote about 3:30 p.m. but were told to
return later to vote . They did return shortly after 4 p.m.
and were permitted to vote then.
B. Analysis and Conclusions
1. The alleged 8(a)(3) violations4
The General Counsel contends that the Respondent
violated Section 8(a)(3) of the Act by discharging the
Sterett brothers , by transferring Patty Swartz, and by
suspending Linda DeHut . Each of these allegations must
be separately analyzed pursuant to the Board 's Wright
Line test. The Board held in Wright Line, 251 NLRB
1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981) cert.
denied 455 U.S. 989 ( 1982),5 that once the General
Counsel makes a prima facie showing that protected con-
duct was a motivating factor in an employer's action
against an employee , 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 em-
ployer cannot carry its burden of persuasion by merely
showing that it had a legitimate reason for the action,
but must show by a preponderance of the evidence that
the action would have taken place even absent the pro-
tected conduct . A judge's personal belief that the em-
ployer's legitimate reason was sufficient to warrant the
action taken is not a substitute for evidence that the em-
ployer would have relied on this reason alone. If an em-
ployer fails to satisfy its burden of persuasion , the Gener-
al Counsel 's prima facie case stands unrefuted and a vio-
lation of the Act may be found. Delta Gas, 282 NLRB
1315, 1317 (1987).
In this case , there is no issue of employer knowledge
of union activity . Beginning on 20 March , neither Sterett
brother made any attempt to hide his activity . Indeed,
Speakes and Haws received notice of union activity
within a day of the initial organizing meeting at the Stay-
ton Plaza Restaurant. It is unnecessary to determine
* In pertinent part 29 U S .C. § 158(a)(1) and (3) provide in part: It shall
be an unfair labor practice for an employer-(I) to interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed in
section 157 of this title, . . (3) by discrimination in regard to hire or
tenure of employment or any term or condition of employment to en-
courage or discourage membership in any labor organization.
S Approved in NLRB Y. Transportation Management Corp., 462 U.S.
393 (1983).
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether their arrival at the Stayton plant on 24 March
was previously planned , as they testified . The point is
that they did arrive on 24 March prepared to oppose the
Union.
It should also be noted that the Board may rely on cir-
cumstantial evidence to prove antiunion motivation.
Hunter Douglas, Inc. v. NLRB, 804 F .2d 802 (3d Cir.
1986).
a. The discharge of Tim Sterett
As noted above, Tim Sterett was fired by Holm on 8
April , for three reasons : "Gross insubordination , interfer-
ence with plant production and leaving plant without
permission" (G.C. Exh . 15). There is evidence that Ster-
ett did leave the plant without permission . As to the
other two reasons, they are derived from leaving work
without permission . That is, Berning testified that 3 April
was a Thursday which is always a particularly busy day.
I reject this testimony and find no credible evidence that
any production day at the plant was busier than any
other . In his rebuttal testimony , Tim Sterett claimed
Tuesdays were busier than any other day. However, his
testimony is subject to the same infirmities as Berning's. I
find that the pressure to produce was substantially uni-
form every day of the week . I also find no interference
with plant production beyond that which would always
occur when an emplyee leaves early.
As to the claim of "gross insubordination," I find no
valid evidence to support this claim except to the extent
that failure to follow Berning's order to continue work-
ing constituted "gross insubordination ." a In sum, two of
the three reasons offered by Respondent to support Tim
Sterett's discharge are pretextual and must be rejected.
This suggests that Respondent 's true motive was unlaw-
ful. Shattuck-Denn Mining Corp. v. NLRB, 362 F .2d 466,
470 (9th Cir. 1966). I turn now to examine the last
reason.
As noted above, Tim Sterett did leave work without
permission . Whether his admitted transgression is suffi-
cient to sustain his discharge must be answered in light
of other evidence.
Respondent 's policy on sick leave is to permit valid
sick leave as necessary without pay. The normal proce-
dure for doctor's appointments is to make them as far in
advance as possible with maximum notice to group lead-
ers or supervisors . They in turn would make an entry on
a calendar kept at the supervisor's desk. In the instant
case, Tim Sterett made his doctor's appointment for the
same day. This was necessary , he testified , because the
doctor had been out of town. Around noontime , he told
his group leader, Basl, that he needed to leave work
early in order to make his doctor's appointment set for 3
p.m. Basl said okay . Later, Berning came to his desk and
said , "I hear you have a doctor's appointment." When
Sterett confirmed this , she said , "Well I'm not going to
let you go." Berning offered no reason to Sterett.
About 1:30 p.m ., Sterett told Berning that he was
going to go home sick , claiming that he had been ill all
day. Berning said that if he left work , he should stay
6 Compare Potential School for Exceptional Children , 282 NLRB 1087,
1091 (1987)
home . After Sterett punched out, Berning confiscated his
timecard . The following day when Sterett reported to
work , he was directed to Holm 's office where he was
met by Bill George and told of his suspension . The sus-
pension was later changed to termination.
I find that the General Counsel has presented a prima
facie case of unlawful discharge . The evidence shows a
company policy permitting employees to leave work
without pay for doctor's appointments or other valid rea-
sons, even with only a few hour's notice . Respondent's
failure to follow this policy is circumstantial evidence
supporting the General Counsel 's case . Naturally, I
cannot ignore the fact that Tim Sterett and his brother
were the two primary in -house union organizers. I find
that Tim Sterett's organizing activities were a motivating
factor in his discharge . Tim Sterett has been a produc-
tive and respected employee, highly regarded by man-
agement . Employed since 1977, he had no prior discipli-
nary experiences before his termination.
On the other hand , Berning had repeatedly expressed
hostility toward the union organizers and union support-
ers. This will be further demonstrated below . In addition,
I note the absence of Basl. Since I will find below that
group leaders are not supervisors , the failure to call Basl
as a witness does not raise an adverse inference . That is,
she was equally available to both sides . See Levingston
Shipbuilding Co., 249 NLRB 1 , 11 (1980); compare
Martin Luther King, Sr. Nursing Center, 231 NLRB 15
(1977). While no adverse inference can be drawn, the
failure to call Basl weighs against Respondent and leaves
a gap in its evidence which cannot be ignored . In sum, I
find that Tim Sterett was fired for both permissible and
impermissible reasons, a classic mixed motive discharge.
NLRB v. Ryder/PIE Nationwide , 810 F.2d 502 (5th Cir.
1987). I turn now to see whether the evidence shows
that Tim Sterett would have been terminated for valid
reasons and absent the unlawful discrimination.
The purpose of Sterett's doctor's appointment was for
him to undergo a physical examination for another job.
Although he told Berning when he left that he was leav-
ing for home due to illness , he didn 't go home. Rather he
went to the home of some relatives where he changed
his clothing . Then he went to the doctor's office as he
had originally told Basl . Sterett had never given Basl a
reason for the doctor's appointment.
At page 7 of their brief, the General Counsel writes,
"At first glance , it may look suspicious that Tim Sterett
went for a physical when he was not feeling well." I find
that Sterett was not ill on the day he left early . His claim
to be ill after he had been told he could not leave early
is suggestive of fabrication . The job which Tim Sterett
was seeking paid close to double what he was making at
Respondent . It is absurd to suggest that a job applicant
would take a physical for a highly desirable new job
when he was not feeling fit.
Yet the General Counsel further argues (Br. p. 7) that
the purpose of the physical was only to uncover "previ-
ous injuries and drug use, none of which would be af-
fected by flu symptoms ." Assuming arguendo this state-
ment is correct , it is based only on the experience of Tim
Sterett after the fact . He would have had no way of
PHILIPS INDUSTRIES 725
knowing what the physical was looking for when he told
Berning that he needed to go home due to illness . There-
fore, I reject the General Counsel 's argument.
Under the doctrine of "provoked insubordination," the
Board has long held an employer cannot provoke an em-
ployee by its unlawful conduct to a point where he com-
mits an act of insubordination and then rely on the act to
discipline the employee . [ought Corp.-MLRS Systems Di-
vision , 273 NLRB 1290, 1295 fn. 31 (1984 ), enfd. 788
F.2d 1378 (8th Cir. 1986). See also Olympic Limousine
Service, 278 NLRB 932 , 943 (1986). Since Respondent
changed its normal sick leave policy by refusing to
permit Tim Sterett to make his doctor's appointment, it
could be argued that Respondent provoked Sterett into
changing the reason for needing to leave early and there-
by telling a transparent lie to his supervisor . Therefore,
for me this case does not turn on the fact that Sterett
lied to Berning about why he had to leave early . Rather,
the case raises the question whether this or any employer
can fire an employee for leaving work early, in order to
complete the hiring process for a new job. To state the
issue is to supply the answer . Of course , an employer can
do so . I find that given the pressure of Respondent's pro-
duction , Respondent has shown that it would have termi-
nated Tim Sterett even absent his protected activities.
The reason given to Basl for having to keep a doctor's
appointment was not a valid reason. If the discipline was
unduly harsh , as the General Counsel suggests (Br. 8),
the severity raises no matter that concerns me in this
case . In any event, I note that Tim Sterett was hired by
the new company shortly after his discharge , apparently
having passed his physical exam without difficulty. He
has found there, at least a degree of job satisfaction
which eluded him at Respondent . I will recommend to
the Board that this portion of the case be dismissed.
b. The discharge of Ray Sterett
After 9 years of employment , Ray Sterett was dis-
charged on 9 May . As noted above, he was discharged
by Holm for "Insubordination and Falsifing efficency
[sic] to Enhance Bonus Earnings" (G.C. Exh. 38). The
discharge of Ray Sterett occurred after a verbal alterca-
tion between him and Bas]. In violation of Respondent's
policy , Ray Sterett had worked several minutes into his
lunch period . This was after he had been warned by
Holm on 5 May to increase his production or be termi-
nated . Due to the absence of Basl as a witness, I cannot
ascertain with certainty what happened . However, it ap-
pears that Ray Sterett had used his work materials ("set-
up") working during lunch . When the time came for
afternoon work to begin , he protested to Bas] that he
didn 't have a "set-up" to resume working . She replied,
"That's what happens when you work through lunch."
When Ray Sterett protested that he was trying to make
100-per-cent of standard so he wouldn 't be fired, Basl re-
plied that she didn't have anything to do with that. After
some additional heated conversation , Basl told Sterett he
was going too far and concluded by saying , "You go
back and stand at your damn fucking job."
A few minutes later, Berning appeared at Sterett's
table which by then had been supplied with another
setup . Berning was distributing paychecks and Sterett
protested that Basl had been swearing at him. When
Berning asked for details , Sterett explained the incident.
To this, Berning remarked , "Working through lunch is
like cheating ." Additional remarks between Berning and
Sterett are disputed . However, after Berning went to
Basl and allegedly found this group leader "crying,"
Berning then reported the incident to Holm , adding that
she didn't want Basl quitting . Later that day without
making any additional investigation , and relying exclu-
sively on Berning 's report, Holm decided to fire Sterett.
In evaluating this evidence , I note that Respondent
characterizes this issue as a dual -motive case (Br. 62). I
agree and find again that the General Counsel has pre-
sented a prima facie case . That is, the evidence shows
undeniably that Ray Sterett was an open and active
union supporter . Soliciting union cards at work and at
employee homes, displaying union insignia on his T-shirt
and buttons , and organizing 1-day demonstrations by
which several employees in the plant wore union T-
shirts on the same day, Ray Sterett was clearly engaging
in a myriad of concerted protected activities . Again,
there is no issue relating to Respondent 's knowledge of
Ray Sterett 's participation in these activities. So the
question is whether Respondent is correct when it con-
tends (Br. 62) that Ray Sterett would have been dis-
charged even if he had never engaged in union activity.
Based on the evidence , I cannot agree . I begin by
questioning any claim that Ray Sterett was properly
fired for poor productivity, as Respondent seems to
argue in its brief (pp. 62-63). The reasons given by Holm
for Sterett 's discharge do not include any claim that Ray
Sterett was fired for low productivity (G.C. Exh. 38).
Moreover , other evidence in the case suggests that Re-
spondent's apparent theory of additional justification for
Sterett's discharge is confusing and casts additional suspi-
cion on Respondent 's motives. See Louisiana Council No.
17AFSCME, 250 NLRB 880, 886 fn. 38 ( 1980).
During the hearing, several witnesses testified that a
production slowdown had occurred and was continuing
even up to the very day that the witness was testifying.
Thus, the General Counsel witness Linda DeHut be-
lieved that Cathy Wellborn was participating in a con-
tinuing slowdown (R. 866). However, Wellborn denied
any current production slowdown . Respondent witness
Patricia Young, wife of supervisor Robert Young, and
longtime slider line employee , also testified without res-
ervation, that the production slowdown is continuing (R.
2111). In addition , Respondent witness and supervisor
Laura Berning testified that the slowdown is continuing
(R. 2043). While I cannot determine whether a slow-
down is continuing up to present time , I do note that
since Ray Sterett was discharged , no employee was dis-
ciplined for deliberately slowing down production. As-
suming that a slowdown is continuing , the interests of
the supervisors in ferreting out those responsible have
waned considerably since union organizer Ray Sterett
was dicharged . This analysis supports a finding that Ray
Sterett was discharged for his union activities. In turning
next to examine Respondent's stated reasons for Sterett's
discharge , I find additional evidence to prove an illegal
discharge.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As to insubordination , I find no evidence to support
such a claim . See Consumers Power Co., 282 NLRB 130,
132 and fn. 15 (1986). The "insubordination" is apparent-
ly based on Sterett 's response to Berning 's remark,
"working through lunch is like cheating ." To this, Ster-
ett allegedly responded, "Why don 't you go ahead and
fire me; that's what you want." Even if I were to credit
this, I question whether it could truly be classified as in-
subordination . No other employee heard Sterett 's alleged
remark . Moreover, to the extent that Sterett may have
been insubordinate , I find that it was provoked.
The conversation with Berning was inextricably inter-
twined with the prior conversation with Basl , which in
turn was linked to Respondent 's policy regarding work-
ing during lunch . Again, I note the absence of Basl from
the case and credit Sterett's testimony that she swore at
him. I also credit Sterett 's testimony that he was truly
disturbed by Basl 's remarks .7 All of this is tangential to
the central element of Sterett's discharge, Respondent's
policy prohibiting working during lunch , to which I now
turn.
The first question is whether Respondent truly has a
policy which prohibits hourly employees from working
through lunch . Notwithstanding the fact that Respond-
ent's employee handbook makes no mention of any such
policy (G.C. Exh . 37), nor is any such policy written
elsewhere , I find that such a policy exists and is known
to employees . Plant Manager Holm, Bill George, Laura
Berning , and the General Counsel witness Wellborn, ade-
quately described the existence of this policy.
For all intents and purposes , however, the enforce-
ment of this policy was so lax as to render it virtually
nonexistent . Before reviewing the evidence showing the
lack of enforcement, it is necessary to explain the appar-
ent rationale behind this policy.
Because employees are not paid for lunch, their pro-
duction for lunch or any other unpaid time will distort
the efficiency ratio on which employees are paid an
hourly wage and earn bonus . Thus if an employee pro-
duces 10 windows per hour as 100-percent standard,
working through lunch might increase production say to
10.25 windows per hour and give an employee, in a
sense an unearned bonus, or perhaps permit an employee
to make standard where he couldn't otherwise do it. This
same rationale should apply to working in the morning,
before an employee's workday formally begins . The evi-
dence shows some employees working through lunch,
without objection or discipline by superviors ; the evi-
dence also shows many more employees working 15-20
minutes in the morning , before paid time begins, and
without objection or discipline by supervisors.
Tim Sterett testified that up to 20 percent of the pro-
duction employees began working close to 30 minutes
7 It may seem difficult to believe that an employee would be disturbed
by another employee 's use of the language in question . Ray Sterett, age
30, is the type who would be . At one point in his testimony , he described
how after his discharge , he was escorted out of the building by a supervi-
sor. In a scene reminescent of the film Norma Rae, Sterett told other em-
ployees of his plight, that it could happen to them , and then shouted re-
peatedly "Go Union ," as he left the plant . I noted for the record his emo-
tional demeanor as he related this aspect of his testimony (R 454-456) I
found him to be somewhat more emotional and sensitive than the average
employee doing the same kind of work in an industrial setting.
before 7 a.m. starting time . He also worked through
lunch on many occasions . Before his discharge, Ray
Sterett also followed the same schedule without objec-
tion by anyone . Patty Swartz, an alleged discriminatee
and now assigned to torque tier, almost always started
about 15 minutes early and observed several other em-
ployees doing the same thing . Swartz also worked into
her lunchbreak, but not very often.
Perhaps the General Counsel witness, Jerry Hansen, a
group leader, gave the most extensive testimony regard-
ing production employees who worked through lunch
and before work started in the morning . At the time of
his testimony , Hansen had a back injury which appeared
to cause him intense pain . He testified in a standing posi-
tion leaning against a pillar. Before his injury , he was as-
signed to self-storing storm windows and trapezoid win-
dows as the only employee in those departments.
According to Hansen , working before 7 a.m. and into
lunch was very common for him and for others . Hansen
named current employees Hazel Hays , George Gallardo,
Carol Oeader (another group leader), Joe Johnson, Sue
Bales (another group leader), Terry Kent, Armida
Caughman, and Leah Fritz as employees most likely to
work into their lunchbreak.
Two of the employees named by Hansen , Caughman
and Hays, were brought in by Respondent to deny that
they worked through lunch. Caughman and Hays denied
the testimony . Sue Bales Dewar was called by Respond-
ent but confined her testimony to other matters. Some
other employees not named by Hansen nor anyone else,
testified for Respondent that they were aware of the
lunchbreak policy and obeyed it. Thus Donna Wiever
and Peggy Jean Bagger supported Respondent 's case as
to not working through lunch . The latter in particular
described several instances of employees caught working
during lunch . Their punishment? They were told not to
do it again.
I note that both Holm and George denied that anyone
worked through their lunchbreaks . Putting aside the
question of who they observed working before 7 a.m., it
is not suprising they saw no one working during lunch.
Both supervisors were in the habit of leaving the plant
during the lunch hour . Lower ranking supervisors would
not be too quick to report violations of a policy which in
the final analysis benefited them in that any extra work
helped supervisors make their daily quota . I find that for
the most part , line supervisors who did not leave the
plant during lunch looked the other way. I credit the tes-
timony of Hansen , who as a current employee for Re-
spondent is entitled to enhanced credibility.8 Further-
more, very little of Respondent 's evidence was directly
contradictory. To sum up, many employees worked in
the morning before 7 a.m. violating the spirit if not the
letter of the policy questioned . Fewer employees worked
into lunch and fewer still were ever told not to do so.
Only one employee was fired for doing so, union activist
Ray Sterett.
The essence of discrimination in 8(a)(3) cases consists
of treating like cases differently . Marathon Le Tourneau
8 S & R Sundries, 272 NLRB 1352, 1357 (1984).
PHILIPS INDUSTRIES 727
Co. v. NLRB, 699 F.2d 248, 253 (5th Cir. 1983). See also
NLRB v. Melrose Processing Co., 351 F.2d 693, 699 (8th
Cir. 1965) (the singling out of an employee for harsher
treatment than other employees who committed the same
violation of company rules indicates unlawful discrimina-
tion).
When Holm decided to fire Ray Sterett on the recom-
mendation of Berning, Holm gave Sterett no opportunity
to explain or to give his version of the incident. This is
evidence of an ulterior motive. See Florida Medical
Center, 227 NLRB 1412, 1413 (1977); Pittsburg Press Co.,
252 NLRB 500, 505 (1980); United States Rubber Co. v.
NLRB, 384 F.2d 660, 662-663 (5th Cir. 1967). Holm's
failure in this case is particularly striking because Sterett
had no prior disciplinary history and was generally con-
sidered to be a good employee.
In sum , I find the reasons tendered for discharging
Ray Sterett were flimsy and pretextual. Shattuck Denn
Mining Corp. v. NLRB, supra, 362 F.2d 466, 470; Joseph
De Rario, DMD, P.A., 283 NLRB 592 (1987). Respond-
ent has failed to show that in the absence of Ray Ster-
ett's protected concerted activity he would have been
discharged anyway. I will recommend to the Board that
he be reinstated and made whole.9
c. The transfer of Patty Swartz
In early 1983 or 1984, Swartz left Respondent's em-
ployment after having worked almost a year . The reason
for her resignation was to start a business with her hus-
band . This endeavor did not succeed as expected and by
early 1986, Swartz told friends who were still employed
by Respondent that she desired to return . One day in
mid-March, two current Respondent employees went to
Swartz' home and dropped off a job application for an
opening in slider line, working under Berning . Swartz
was told to return the job application to Respondent as
soon as possible . Within a day or two, Swartz went to
the plant and gave the application to Berning . Because
Berning knew Swartz from her prior employment and
through certain relatives of Swartz who had also worked
at the plant, and because Berning liked Swartz on a pro-
fessional and social basis, Swartz was rehired virtually on
the spot . With the concurrence of Bill George, Berning
directed Swartz to begin work the next day on 18
March.
Swartz was assigned by Berning to work with group
leader Basl on the slider line. She liked the work and
people she worked with . On more than one occasion,
Swartz told Basl and Berning that compared to her prior
assignment , her current job was much more desirable.
For the 11 or so months in her earlier employment,
Swartz had worked with group leader Carol Oeader in
9 Two final points should be made - First , even if Respondent can per-
suade the Board that Respondent exhibited no independent evidence of
animus toward the Union , a point I dispute, such proof is not an essential
element in finding a prohibited motive for disciplinary action Lewis
Grocer Co., 282 NLRB 166, 169 fn. 23 (1986); second , I note that many
other union supporters were not disciplined by Respondent . However, in
light of the evidence with respect to Ray Sterett that Respondent did not
discharge all union supporters is essentially irrelevant Link Mfg. Co., 281
NLRB 294 (1986); NLRB v. Rain- Ware, Inc., 732 F.2d 1349 , 1355 (7th
Cir. 1984)
the torque tier department . Although Swartz did not
leave her job for reasons of job dissatisfaction, she
simply didn 't like working with Oeader and didn't like
the torque tier department . Neither wages, hours, or con-
venience of the job were the issues.
Two days after Swartz returned to work, the union
campaign began . While Swartz signed an authorization
card and wore a union T-shirt on one occasion, she was
not a leader in the organizing campaign . On the other
hand , she did not hide her support for the union either.
About 1 or 2 weeks after signing a card , Berning came
up to her and advised her in a discussion about unions,
that the "problems" going on in the plant now should
not concern Swartz . On 22 May, Berning initiated a
second conversation with Swartz . Here is how Berning
described the conversation:
And I talked to her, and I said , "Patty, I'm
shocked to think that you are really involved into a
union. I thought you were happy here, and I didn't
know you would want to be involved in this," and
she said , "Well, where I worked back east, they had
a union ," and she told me, she says , "They had
better benefits, and I really feel that a union could
give us more and better benefits." And I said,
"Patty, at this point, a union, all they could do is
promise you something , but they couldn 't guarantee
you a thing , and I thought you were really happy
here . I'm really surprised that you would have done
this to us." And I just walked away from her. [R.
1892]
Swartz' version of the conversation differed slightly. She
testified that Berning asked her flatly if she was for the
union . When Swartz said she was, Berning expressed
shock and dismay , including a rhetorical question to
Swartz, "Don 't you like working here?" About 30 min-
utes after this conversation, plant superintendent George
came up to Swartz and also referred to a "rumor" he
had heard about her which he didn't like. Then George
wished Swartz "Good Luck on her new job." When
Swartz asked for a clarification of that remark, "Does
this mean if I support the union , I'm going to lose my
job?" George did not respond.
On or about 7 October, Swartz was transferred to
torque tier , where she had previously worked, back
working with Oeader whom Swartz preferred to avoid. I
again find that General Counsel has proven a prima facie
case that the job transfer was based in part on Swartz'
support for the union . Louisiana Council No. 17,
AFSCME, supra at 883 . While many employees who did
more for the union remained undisturbed, Berning felt
particularly irked and possibly betrayed since she had as-
sisted Swartz ' to return to Respondent quickly and with
a minimum of red tape.
Respondent 's evidence shows that George was respon-
sible for deciding on the transfer , although he was ad-
vised by Berning that she'd manage somehow, to do
without the services of Swartz . There is no doubt that
the services of another employee were needed in torque
tier . The questions are why did it have to be a trans-
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ferred employee rather than a new hire and why did it
have to be Swartz instead of some other employee.
Berning testified that when Swartz was transferred,
her work on the slider line that she had been doing was
absorbed by remaining employees. This could be done
without difficulty as business had declined by late Octo-
ber. No evidence rebuts this explanation and I credit it.
Accordingly, Respondent would not be expected to hire
a new employee.
Perhaps more importantly, why was it necessary to
transfer Swartz, who so strongly desired to remain in her
current position. According to George, he considered
four other employees for torque tier before deciding on
Swartz. They were Bryan Kane, Yvonne Burke, Zinnia
Reyes, and Hazel Hays. These four and Swartz were the
only employees in the plant who had worked in torque
tier before. One, Hays, was clearly superior to all others,
but she didn't wish to be transferred. Hays testified in
the hearing as Respondent' s witness, but did not cover
this point. In any event, due to Hays seniority in excess
of 12 years, George eliminated her.
This left Kane, Burke, and Reyes. Of the three, only
Reyes, now named Lopez, testified and she did not
cover the point. However, George explained the basis
for his decision:
A. The biggest thing is they couldn't do the job
that she could do. And Patty's-Patty Swartz, she
picks up things really quick. I mean , she's the type
of person you can tell her something once and she's
got it. We were really far behind at the time, and I
needed somebody I could put in there and get it
done quickly. (R. 1728)
Although George' s answer suggests that his purely sub-
jective appraisal played a dominant role in his decision,
there is objective evidence to support his decision to
transfer Swartz over the others. For example, on cross-
examination , George testified that Swartz had much
more prior experience in torque tier than the others (R.
1771-1772). Not only was the length of her experience
greater, but the variety and depth of her experience was
also much greater (R. 1729).10
After reviewing all the evidence, I find a close ques-
tion is presented, one that is not free from doubt. On bal-
ance, however, I find that Respondent has carried its
burden and proven that Swartz would have been trans-
ferred, even absent her support for the Union, and absent
the perception of betrayal expressed by Berning. Accord-
ingly, I will recommend to the Board that this allegation
be dismissed.
d. The suspension of Linda DeHut
Linda DeHut has worked for Respondent for 7 years.
Her current job is that of framer in the slider line.
During the union campaign, DeHut signed a card for the
Union and wore a union T-shirt on one or more days.
10 Respondent offered Exh . 45 as a summary of the prior experience of
Swartz as compared to the other three employees On the grounds that
neither the document nor the information contained thereon was used by
George at the time he made his decision , I refused the exhibit at hearing
and affirm the decision here.
Sometime after participating in these concerted protected
activities, DeHut cut her arm on a piece of material at
work. This occurred during the second week in May. On
15 May, Berning delivered to DeHut the results of
Holm's investigation of this injury. Pursuant to company
policy, Holm had decided that DeHut's injury was due
to her own fault. Because DeHut went for medical treat-
ment by a physician paid by Respondent' s insurance
company, she was subject to discipline. In this case, a 1
day's suspension was ordered. However, because DeHut
had requested a half day off for personal reasons, which,
if granted, would have been without pay, Berning decid-
ed to run half the suspension on the half day DeHut de-
sired to be off anyway. The other half day suspension
was on a following day and would be without pay.
When Berning delivered Holm's decision, she told
DeHut that she didn't want to suspend her, because she
didn' t agree with the policy, but she was required to
follow orders.
Like Berning, I am reluctant to take the action re-
quired by the facts. However, I will recommend dismis-
sal of the allegation and find that the General Counsel
has failed to prove a prima facie case in this instance.
As a basis for my conclusion, I begin with a company
memorandum authored by Haws on 17 August 1982. It
reads as follows:
Date: August 17, 1982
To: R. Dexter
J. Collins
T. Parrish
G. Strain
All Plant Managers
From: Lyle Haws
Subject: Disciplinary Action Appropriate to Work In-
juries
It is apparent, from information relayed to me by
Harold Croghan, that the MH/RV Group policy
concerning disciplinary action related to work inju-
ries has not been presented sufficiently clear enough
to encourage plant management to take the neces-
sary steps toward accident reduction.
Therefore, this memo will spell out the conse-
quences of unsafe acts which result in personal
injury.
1. Any employee directly causing himself or
another to require a physician's treatment for in-
juries received at the work place, shall receive a
disciplinary suspension of not less than one day,
without pay.
2. Any employee who causes an injury to him-
self or another, through inadvertent violation of
known or posted plant safety or work rules, shall
receive a disciplinary suspension of not less than
three days, without pay.
3. Any employee who causes an injury to him-
self or another, through willful, and/or deliberate
unsafe actions, violating known or posted plant
safety rules, shall receive a disciplinary suspen-
sion of not less than five working days, pending
discharge for cause.
PHILIPS INDUSTRIES 729
4. Discipline shall be progressive , in that em-
ployees who continue to have or cause injuries of
the nature of #1 or #2 shall progress to #3 upon
the third incident in any twelve month period.
Such employees would indicate a tendency to be
accident prone, and are a potential liability to the
company, themselves , and others.
5. The above disciplinary action applies to
staff, supervisors , and management employees as
well as hourly factory employees . Any supervisor
failing to provide instruction , personal protective
equipment , or machine guarding , or to allow a
hazardous situation to go uncorrected, may be
found to be a cause of an incident by the Acci-
dent Review Committee , and may be subject to
the above disciplinary penalties.
We continue to have serious injuries in spite of
our significant efforts to eliminate them . It is obvi-
ous that the only sure way to get the attention of
our employees is to directly affect their earnings.
You now have specific, unambiguous instructions
for properly disciplining employees who cause inju-
ries, just as I know you would discipline employees
who caused damage to equipment or inventory. I
expect you to use these tools to see that we have
fewer injuries . . . . hopefully now!
/s/ Lyle C. Haws
Lyle C. Haws
Manager Industrial Relations
Copies : H. Smith
H. Croghan
N. Baileys
R. Wilkins
D. Skinner
[R. Exh. 36]
Respondent has presented sufficient evidence to reflect
application of this policy long before and outside of any
union campaign (R. Exhs . 37-42).
DeHut described a prior injury when she was a new
employee . She scratched her eye but was not suspended.
Though she did receive medical treatment , it was deter-
mined that she was not at fault since at that time , safety
glasses were not required . Accordingly , this evidence
does not support the General Counsel 's case. Further-
more, when Berning told DeHut of her suspension, she
also stated that three other employees were due to be
suspended for work injuries caused by their negligence.
In their brief, the General Counsel makes two points
which need to be addressed : First, that Respondent failed
to advise DeHut of the policy in question . I fail to see
how this omission , even if true, supports the General
Counsel 's case . However, Respondent 's handbook (G.C.
Exh. 37), page 21, reads, "Each employee is required to
work in a manner that does not jeopardize his own or
fellow employee's well being ." I must assume that
DeHut received a copy of the handbook and should be
familar with its contents . In this case, Holm decided that
DeHut did not work in a safe way. Even if DeHut had
been advised specifically of the policy after the injury
occurred, how would this knowledge have altered her
behavior . Would she have failed to see a physician and
thus endangered her health further . Would she have seen
her own physician at her own expense . One can only
speculate at this point . However, neither the questions
nor possible answers are material.
As to the injury of Ted Milstead for which he was not
disciplined , it was determined that he was not at fault be-
cause he had been using the wrong tool, apparently as-
signed to him.
In recommending dismissal of this allegation, I will
recommend to the Board that appropriate state (Oregon
attorney general) and Federal (Occupational Safety and
Health Administration) authorities be requested to deter-
mine whether Respondent 's policy violates public policy
or is otherwise unlawful.''
2. The alleged 8(a)(1) violations
In examining the allegations under this section of the
decision , I will be applying the following test : Whether
the supervisor 's conduct at issue, reasonably tends ' to
interfere with the free exercise of the employees ' rights
under the Act. Southwire Co., 282 NLRB 916 (1987).
a. Young 's "troublemaker" comment (par. 6a of
complaint)
According to Ray Sterett, as he climbed the stairs to
attend a group meeting on 24 March, Supervisor Bob
Young was at the head of the stairs and commented,
"Here comes one of the troublemakers now." At the
time in question , Sterett was wearing a union button and
carrying a large notebook with a union insignia clearly
visible.
No other employee testified that they heard this com-
ment . Several would have been in a position to hear it if
it had been said . For example, Rhonda Harsted was di-
rectly ahead of Sterett. She testified, but said nothing
about a comment from Young at the time in question.
Sterett's notebook containing minutes of the 24 March
meeting contains no mention of the remark (R. Exh. 10).
On the other hand, Respondent called Bob Young
who denied making the remark in question. He did admit
saying to his wife, Patricia Young, an hourly employee,
who attended the same meeting as Sterett, "Don 't cause
trouble now." This remark was heard by Mrs . Young,
who testified , by Berning, by Holm , and by Haws. I find
no merit whatsoever to this allegation and will recom-
mend that it be dismissed.' 2
II The issue to be decided in another forum , can be stated as follows:
Whether company policy permitting a plant manager , apparently without
formal training in industrial safety and health practices , to determine em-
ployee fault after an injury requiring medical attention by a physician
paid by the employer or employer's insurance company , and where said
investigation is conducted as the plant manager sees fit, and where a con-
clusion of fault is without any subsequent appeal or recourse by an affect-
ed employee who is subsequently at risk of discipline, again as the plant
manger sees fit, is such a policy as that lawful The issue is raised in the
context of a related company policy mandating that no employee is paid
for time lost due to illness or injury.
18 In light of this credibility resolution , it is unnecessary to determine
the context of the word "troublemaker" to see whether union activity is
connoted . United States Steel Corp ., 279 NLRB 16 fn 1 (1986).
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Interrogations of employees regarding their own or
other employees' union sympathies
I begin by stating the basic test for evaluating interro-
gations, "whether under all the circumstances the inter-
rogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act." Southwire Co., supra
at 917 fn. 4. Rossmore House, 269 NLRB 1176, 1177
(1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), the
Board explained that an important purpose of the Ross-
more House decision "was to signal disapproval of a per
se approach to allegedly unlawful interrogations in gen-
eral, and to return to a case-by-case analysis which takes
into account the circumstances surrounding an alleged
interrogation and does not ignore the reality of the
workplace." The specific Rossmore House standards by
which interrogations are to be judged are: the back-
ground involved; the identity of the questioner; the
nature of the information sought; and the place and
method of interrogation. It should be noted that merely
because an employee who is questioned is an open and
active union supporter, there is no automatic license for
supervisors to ask coercive questions. See, for example,
Atlantic Forest Products, 282 NLRB 855 (1987). With the
above legal principles in mind, I turn to the specific alle-
gations.
(1) Laura Berning and Bill George interrogations of
Patty Swartz (pars. 6b and 6i of complaint)
I find that on or about 28 March, about 10 days after
Swartz was rehired through the good offices of Berning
and about 1 week after Swartz had signed a union card,
Bernin came to Swartz and asked if Swartz had worked
in a union shop before. When Swartz answered that she
had worked both in a union and nonunion shop before,
Berning told Swartz not to be concerned with problems
going on now , not to worry about all this union business.
On 22 May, Berning again approached Swartz and
asked her about the rumor Berning had recently heard.
Both the March and May conversations have been previ-
ously mentioned above. I have credited Swartz' version
of the conversations because as a current employee,
Swartz is particulary believable. Moreover, as has been
clear throughout this decision , Berning expressed ani-
mosity toward the union and those associated with its or-
ganization.
I further credit Swartz' testimony regarding another
conversation on 22 May, this time between Swartz and
Bill George. About 30 minutes after Berning's conversa-
tion, George came up to Swartz who was working at her
machine. Using what came to be a common figure of
speech, George began by saying he had heard a rumor
about Swartz that he didn't like. Swartz made no re-
sponse. Then George said, "Good luck on your new
job." Swartz attempted to get clarification. "Does this
mean if I support the union, I'm going to lose my job."
After staring at Swartz for a period of time, George
walked away without answering. I find that this conver-
sation violates Section 8(a)(1) of the Act as George was
attempting to identify Swartz as a union supporter and
threaten possible retaliation against her. In addition,
George was suggesting that Swartz might be terminated
and need to find a new job.
I also find that Respondent violated Section 8(a)(1) of
the Act based on the two Berning interrogations referred
to above. In so finding, I must reject Respondent's con-
tention that under Rossmore and Clark Equipment Co.,
278 NLRB 498 (1986), no violations of the Act occurred.
Swartz was an open union supporter prior to the second
conversation when she wore a union T-shirt. But the
statements were clearly coercive whether Swartz was an
open and active union supporter or not.
Berning was Swartz' supervisor with power and au-
thority to affect her livelihood. The incidents seem cal-
culated to determine the extent of Swartz' support for
the Union and to coerce Swartz in the exercise of her
Section 7 rights to support the Union if she choose to do
so. See Asociacion Hospital del Maestro, 272 NLRB 853
(1984).
As to Respondent's claim in its brief (p. 28) that Bern-
ing and Swartz were on close personal terms, to the
extent that is true, it makes no difference in this case. In
Coach & Equipment Sales Corp., 228 NLRB 440 (1977),
the Board stated the following:
The Board has in the past noted that statements
spoken as a friend which convey a threat of severe
consequences are violative of Section 8(a)(1), adopt-
ing the reasoning that the impact of such state-
ments, coming from a "friend" who is part of man-
agement, is probably greater in view of the authen-
ticity and credibility of the source.
(2) Laura Berning interrogation of Vera Davis (par.
6d of complaint)
During the first week in May, employee Vera Davis
and other employees from slider line all wore a union T-
shirt to work to demonstrate support for the Union. A
few days after this, just before the election, Berning ap-
proached Davis at Davis' work station and asked Davis
if her husband would wear that T-shirt to work. Davis
described Berning's demeanor as angry and irritated.
Berning did not dispute this testimony. Here is how she
described the incident:
Well, there was one day there when everyone-I
think they called it, like, "Blue Monday," and a lot
of them all wore blue T-shirts, union T-shirts, and it
was sort of amusing in a way, but then if they
thought that was funny, I guess it's funny, but they
had a whole row of people walking in in the de-
partment and they all had their blue T-shirts on,
and I told Vera Davis, I said , "What do you think
your husband's boss, Mike Adams, would say, if he
saw your husband wearing a blue T-shirt like this at
work?" And we just sort of laughed about it and I
walked away.
Q. Did she make any response to that?
A. Well, she just kind of giggled a little bit and
she just didn't really say anything, just sort of-like
I said , we just sort of joked about it, because it
PHILIPS INDUSTRIES 731
seemed kind of amusing , but that was really all. (R.
1896)
I credit Davis' account that at the time of this encoun-
ter Berning appeared to be angry . I also find that Bern-
ing was being critical of Davis wearing the union T-shirt
by implying that Davis' husband might not be permitted
to escape criticism if he wore the same T-shirt. Accord-
ingly, I find that Respondent violated Section 8(a)(1) as
alleged , because the remark was coercive and part of a
continuing series of comments by Berning to erode sup-
port for the Union. Respondent's argument (Br. 27) that
at its worse, the remark was possibly careless , but not
coercive must be rejected. See South wire Co., supra.
(3) Laura Berning interrogation of Vera Davis
about another employee (par. 6p of complaint)
On the same day as the above incident occurred, Bern-
ing asked Davis if Davis knew how another employee
named Gerri Banks was going to vote . Banks did not tes-
tify, but she worked in the slider line and was the next
door neighbor and friend of Davis . In reply, Davis an-
swered that she had no idea how Banks intended to vote.
Berning flatly denied asking this question , but I credit
Davis' testimony and find that Berning did indeed ask
the question.
I find that Respondent violated Section 8(a)(1) of the
Act by attempting to discover the extent of Banks' sup-
port for the union, and, as such , could reasonably be
seen as a basis to initiate action against her. South wire
Co., supra.
(4) Bob Young interrogation of Marsha Leffler (par.
6h of complaint)
On 22 May, Young came up to Marsha Leffler at her
saw while she was working and said that he had heard a
rumor that he wanted to discuss with Leffler . He said
that he had heard that she was a union organizer . Leffler
responded that she participated in meetings and talked to
people in her group who desired to discuss the union. If
that made her an organizer , she said , then she was one.
Respondent does not dispute that the above conversa-
tion occurred , but contends that because Leffler was an
open union supporter , no unlawful interrogation oc-
curred (Br. 24-25). Assuming without finding that wear-
ing a union T-shirt on one occasion before the conversa-
tion in question makes one an open union supporter-no
other preconversation conduct can be cited-I find that
the conversation in question is nevertheless a violation of
Section 8(a)(1) of the Act. Asking an employee to con-
firm not merely that she supported the union , but was
helping to organize the union , is clearly coercive . This is
particularly true where plant management and higher
company officials made their opposition to the union
manifest . A/Z Electric , 282 NLRB 356, 366 (1986).13
131 have not discussed par. 6g of the complaint which alleges that on
or about 14 May 1986 , Respondent, through Laura Berning , at the facili-
ty, interrogated employees about their union sympathies . I am unaware of
any evidence to support this allegation , and I will recommend that it be
dismissed.
c. Granting employee pay raises prior to election (par.
6c of complaint)
In Atlantic Forest Products, supra at 858 , the Board
stated the pertinent general rule: "[a]n employer is re-
quired to proceed with an expected wage or benefit ad-
justment as if the union were not on the scene ." (Cita-
tions omitted). More specifically , granting benefits during
the pendency of a representation election is prima facie
evidence of intentional interference with Section 7 rights.
Such action is presumed to be for the illegal object of
influencing employees . NLRB v. Exchange Parts Co., 375
U.S. 405 ( 1964); Burnett & Co., 273 NLRB 1084 (1983);
Playboy Hotel & Casino, 281 NLRB 1181, 1187 (1986).
However, if the Respondent can prove the existence of
a well-established policy of periodic pay increases all oc-
curring about the same time as the challenged action,
this may constitute adequate rebuttal. Shulte's IGA Food-
liner, 241 NLRB 855 (1979).
Following a practice of at least 9 years, Haws began
to gather information in February as to the amount of
employee pay raises . Among other officials consulted rel-
ative to the amount was Holm so he could gather infor-
mation relative to production. In addition, corporate
headquarters had to approve the fact of the raise and the
amount, 25 cents per hour for employees with 3 years or
more seniority , and 50 cents per hour for group leaders.
To further elaborate on relevant issues , I turn to a few of
the General Counsel 's witnesses.
As to the timing of the raises , Hansen testified as fol-
lows on direct examination:
Q. During the time that you worked as a group
leader at Philips, had you ever received raises
before?
A. Yes, we had.
Q. When was that
A. The year before, and the year before that, and
normally . . . about the same time every year. They
give an annual raise.
(R. 1058)
In agreement with this aspect of Hansen 's testimony, Re-
spondent offered into evidence a 10-year summary of its
annual pay raises, all occurring about the same time each
year (R. Exh. 51).
As to the amount of the raise, Wellborn testified as fol-
lows on cross-examination:
Q. That raise was about the same amount that
you would receive on average year in and year out,
is that correct?
A. Well, we've received more and we've re-
ceived less. It varies.
Q. Would you say that was average?
A. Yeah.
[R. 893-894]
Davis, however, characterized her raise of 25 cents per
hour as not a normal raise . Normal would be 10 cents to
15 cents per hour. She did receive 25 cents per hour
about 4 years ago when she was voting for another
union (R. p. 939). Finally, Hansen recalled his raises as
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
between 5 cents to 25 cents per hour in the past . Howev-
er, everybody received the same, without a difference
between group leaders or production employees , without
a difference between old and new employees (R. 1059).
In their brief, pages 19-20, the General Counsel ob-
jects to the pay raise on the grounds that Haws was
present at the plant to announce it. This was his common
practice every other , or every third , year and there is no
evidence that he varied his routine this year . Next, the
General Counsel faults the group leader differential of 50
cents per hour . However, group leaders always have
maintained a pay differential between themselves and
other production workers, and there was nothing ex-
traordinary about the raise this year.
The single paragraph of argument in the General
Counsel 's brief, without even a single case citation, is not
persuasive . Based on the evidence reviewed above, to-
gether with the written text of Haws' 2 May speech to
employees (R. Exh . 53), as he announced the pay raise, I
find the pay raise was routine , periodic, and previously
scheduled . McCormick Longmeadow Stone Co., 158
NLRB 1237, 1242 ( 1966). Accordingly , this allegation
lacks merit and I will recommend that it be dismissed.
d. Production slowdown and Respondent 's effort to
stop it (pars. 6e and 6f of complaint)
I again begin with some basic principles of Board law
for guidance . First , a concerted plan to work at a pace
slower than normal is not "protected activity" under the
National Labor Relations Act. Elk Lumber Co., 91
NLRB 333 (1950). See also Polytech, Inc., 195 NLRB
695, 696 (1972). It follows that if concerted activity to
engage in a slowdown is not protected , then certainly in-
dividual efforts to engage in a slowdown are not protect-
ed. Cf. Meyers Industries, 281 NLRB 882, 887 fn. 42
(1986).
In this case , I have alluded above to various aspects of
a production slowdown occurring in the slider line. To
summarize , plant officials , Holms, George, and Berning
had reason to believe on 5 May that a production slow-
down was occurring . The General Counsel witnesses
corroborated Respondent 's officials in this respect. Thus
DeHut believed that Wellborn had slowed down and
was continuing to expend less than full efforts . Wellborn
admitted in the meeting of 5 May that she was not work-
ing as hard under the new standard as before because her
bonus had been reduced. To this evidence, I add Re-
spondent 's employee witness, Peggy Bagger who testi-
fied to a conversation between herself and Leffler. Al-
though the former was employed in the door line depart-
ment, Leffler said some employees in slider line had
slowed down as part of a concerted intentional protest of
Respondent's change in standards . I credit this testimony
and note that Leffler never denied the conversation in
question . I also note that Bagger was corroborated by
Respondent witness Myra Craig.
Finally, I note the hearsay testimony regarding an al-
leged message from Wellborn to Basl to Berning that
Tim Sterett had been trying to organize a concerted
slowdown . In his rebuttal testimony , Tim Sterett admit-
ted that he had slowed down after the standards had
been changed and further admitted discussing his behav-
ior with Wellborn . However, he denied any attempt to
organize other employees into a slowdown.
It is unnecessary in this case to determine whether the
slowdown was individual or organized , whether it ended
with the discharge of the Sterett brothers or is continu-
ing, or whether it is designed to protest the change in
standards or merely to conserve an employee 's energy
which is no longer compensated at the same bonus level
as before . In the final analysis none of these question
make any difference . It is important that none of the em-
ployees involved in the slowdown was engaged in a pro-
tected activity and that plant officials could not identify
with certainty all involved . Therefore , all employees at
the 5 May meeting were properly warned to stop the
slowdown . I will recommend to the Board that para-
graph 6e be dismissed . I will also recommend that para-
graph 6f be dismissed in part . However, the decision on
5 May to have Ray Sterett remain after the others had
left must be separately considered.
Only 8 employees out of the 23 in slider line were in-
volved in the 5 May meeting . All or most of these eight
had wore union T-shirts. However, other employees had
worn T-shirts and they were not at this meeting. I note
that prior to the 5 May meeting, Berning had held at
least one slider line meeting , the purpose of which was in
part, to warn employees to increase production levels
and to cease any slowdown.
There was no apparent reason to give a specific indi-
vidual warning to Ray Sterett while all others were
treated as a group . Moreover , he was the only one to be
told individually that if he failed to improve his perform-
ance within the next week , he would be terminated. I
note that Sterett never admitted an intentional slow-
down, but blamed lower production on new assignments,
while Wellborn candidly admitted to an intentional slow-
down during the 5 May meeting . However, only union
organizer Sterett was told to stay and given a specific
warning . I also note as discussed above that Ray Sterett
was never fired for a production slowdown , but for
other reasons which I found above to be pretextual. I
find the individual warning to Ray Sterett on 5 May to
be coercive and to have interfered with his rights, and
consequently Respondent has violated Section 8(a)(1) of
the Act.
e. Interrogation of Jerry Hansen by Mark Berning
(par. 6j of complaint)
Mark Berning , son of Laura Berning, is a statutory su-
pervisor whose proper title is fleet distribution manager.
Only 25 years old, Berning supervises two group leaders
and three other employees . On 22 May, Berning had a
conversation with Hansen. Although there is conflict as
to who initiated the conversation , I find that Berning ini-
tiated it, because it follows the same pattern set by other
supervisors such as Laura Berning and George . Further,
I found Hansen to be a very credible witness . Berning
asked Hansen how he felt regarding the Union . At this
time, Hansen was either wearing or had worn a union T-
shirt, union hat, and union button . Further, Hansen had
voluntarily assumed the role of primary union organizer
after Ray Sterett's termination.
PHILIPS INDUSTRIES
Hansen made no direct reply to Berning 's question, but
began to complain about the loss of certain privileges,
such as authority to enter the office so as to complete his
paperwork . Berning explained that Hansen had been
barred from the office by George , because management
was afraid that he'd hear something about the company's
strategy in the union campaign . Berning went on to refer
to a few years past when two other Respondent plants
had tried to go union . Then the Stayton plant had stock-
piled windows in case the other plants went union. How-
ever, if worse came to worse, Berning continued , his job
in the warehouse and shipping would be okay. Berning
concluded by remarking that since Hansen and Ray Ster-
ett never got along anyway , Berning couldn't understand
why Hansen was backing the Steretts up. They were
troublemakers, Berning added . Berning concluded by
stating if Hansen knew what was good for him, Hansen
would know how to vote.
Besides conflict as to who started the conversation,
Berning's account differed from Hansen's in virtually
every detail : Hansen asked Berning for details on the
union campaign , asked what was going on, and allegedly
tried to portray himself as neutral on the Union . I don't
believe any of this . Hansen was known as a strong union
supporter . As a current employee, albeit on disability, I
found him to be highly credible . On the other hand,
Berning did not make a good witness . I find that the
conversation , taken as a whole, constitutes a violation of
Section 8(a)(1) because the credited testimony is clearly
coercive under the Rossmore standards . Under the totali-
ty of the circumstances test, even though Hansen was an
active and open union supporter , Berning did more than
merely ask about Hansen's union sentiments. Rather,
using a series of thinly veiled threats, Berning attempted
to restrain and interfere with Hansen 's support for the
Union.
f. Taking of an employee poll and requesting
employees to wear company T-shirts (pars. k and g of
complaint)
In reviewing these allegations , I cannot find that the
General Counsel has discussed them at all in their brief.
This is evidence that these allegations have been aban-
doned . In any event , I find no evidence that Respondent
was polling employees on 28 May. I will recommend
that this allegation be dismissed.14
Turning next to the distribution of company T-shirts, I
find that prior to the election , George was distributing
these to employees who asked for them . I find no evi-
dence of coercion on employees. On one occasion,
George distributed company T-shirts to employees who
were in the company of open union supporter Leffler.
When Leffler requested a T-shirt, George gave one to
her later . See Farah Mfg. Co., 204 NLRB 173, 175-176
(1973).
14 I decline to discuss what Ron Chappel may have done since there is
no evidence to show supervisory status General Counsel witness Hansen
described Chappel as a group leader in 1981 and currently a subordinate
of purchasing agent Louie Brant. In addition , Chappel is in charge of
shipping
733
In Tappan Co., 254 NLRB 656 (1981 ), the Board found
an 8(a)(1) violation when a foreman requested employees
in his department to make an open choice when he stood
next to their machines with an armful of antiunion T-
shirts . The Board found that the foreman had been offer-
ing the T-shirts to employees in such a way as to pres-
sure them and to restrain their free choice in the elec-
tion . Compare also Great Western Coca Cola Bottling Co.,
256 NLRB 520 (1981 ). The above cases do not apply
here because George took no action to restrain or coerce
employees in the exercise of their Section 7 rights by
forcing them to choose T-shirts or not. Accordingly, I
will recommend that this allegation be dismissed.
g. Supervisors ' threats to employees regarding the
results ofa union victory
(1) The plant would close (pars . 1(11), in and o)
I begin with the case of Atlantic Forest Products , supra,
282 NLRB 855, where the Board had occasion to consid-
er allegations that a company official had threatened em-
ployees with plant closure if the union won the election.
At page 862 of its opinion , the Board first agreed with
the judge that the official never explicitly stated that the
plant would close if the union won the election. In the
instant case , I agree with union counsel (Br. 15), that the
supervisor here never said in so many words that the
Stayton plant would close if the Union won the election.
However, as the Board rejected the judge 's finding in At-
lantic Forest Products of implicit threats, I too reject
union counsel 's similar contention.
To consider the allegations relating to Speakes, Haws,
and Holm on 14 May and 24 May, I consider Speakes'
remarks of 24 March, when he first addressed employees.
The remarks of Speakes are summarized at Respondent
Exhibits 43 and 44. Compare these to notes of Ray Ster-
ett (R . Exhs . 10-11). Nowhere is there even a hint that
Speakes or Haws was threatening to close the plant. Em-
ployees were told that the plant would manage to sur-
vive and that management would rather have this group
of people and the union than not to have the union and
lose current employees.
On 22 May, the only official not employed in the plant
to address employees was Haws . Again , a written record
of his remarks has been preserved and I find it is reason-
ably accurate (R. Exh. 54). In part, Haws told employees
as follows:
Philips has some forty plants in eleven different di-
visions, making a wide varity of products. Some
have higher and some have lower wage rates, for
many different reasons . Two of these plants are rep-
resented by the United Steelworkers : One is in
Dayton, Ohio and the other is in Indianapolis, Indi-
ana. Both are part of the fan blower division, which
makes propeller and tangential fans for industrial
and commercial cooling applications . The Dayton
plant has been reduced from over 400 employees,
five years ago, to only 28 today, primarily due to
the inflexible attitude of the steelworkers toward
adjusting to changing market conditions . Compari-
sons of wage rates between our plant and either of
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the fan blower plants is very much like comparing
apples and oranges . You may as well compare our
wages with those in the auto or electronics indus-
try. We just don't compete in, or sell to, the same
market place . The job skills required , and age of
those plants also has a great influence on the rates
of pay they enjoy. I will say again , our plant has
the best wage rates in our industry . We also com-
pare favorably with similar manufacturing oper-
ations throughout the State of Oregon. Of course,
we compare most favorably with the local manufac-
turing industry here in Stayton , which is really
where it counts . But in the long run , our customers
and competitors dictate the level of wages we have
here; not conditions in other divisions or in other
products . I hope that I have clarified this issue for
you. [R. Exh. 54]
The type of remarks made by Haws is exactly the type
of remarks protected by Section 8(c) of the Act. In
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
the Supreme Court explained the tension between Sec-
tion 8(c) and 8 (a)(1) of the Act:
Thus § 8(c) (29 U.S.C. § 158(c)) merely implements
the First Amendment by requiring that the expres-
sion of "any views, argument , or opinion" shall not
be "evidence of an unfair labor practice ," so long as
such expression contains "no threat of reprisal or
force or promise of benefit" in violation of § 8(a)(1).
Section 8(a)(1), in turn , prohibits interference, re-
straint or coercion of employees in the exercise of
their right to self-organization.
For additional authority to support my conclusion that
Haws made no unlawful threats or promises in his re-
marks, see cases cited at pages 862-863 of Atlantic Forest
Products, supra . It should be noted that the union litera-
ture also raised the issue of plant closure, by saying that
if any rumors started about that subject, the same subject
comes up in every campaign and there was no substance
to it in this campaign (R. Exh . 8). Haws merely elaborat-
ed on this point . B. F. Goodrich Footwear Co., 201 NLRB
353, 354 ( 1973). I will recommend that this allegation be
dismissed.
(2) A strike was inevitable (par. 1(i))
After Haws completed his remarks on 22 May, he left
the room so that Berning and Young could talk to em-
ployees about subjects relating to the election , then less
than a week away . Berning did all or most of the talking
at this meeting.
The General Counsel witness Sharon Sevart, a current
employee of Respondent 's since 1969, testified on the
subject at hand. Berning discussed unions in general as
undesirable , strikes as inevitable , and the Dayton plant as
having been closed . The Dayton plant closing was con-
veyed to employees as an inevitable result of the union
strike weapon.
In analyzing this allegation , I begin with the departure
of Haws from the meeting . No valid reason was suggest-
ed and the reason was apparently to permit the two su-
pervisors to violate the standards set by Haws himself
(R. Exh. 13). While the departure of Haws under the cir-
cumstances is merely suspicious , I find that once again
Berning went too far.
In Allied/Egry Business Systems, 169 NLRB 514 (1969),
the Board states:
We cannot agree that an employer's expressed
views on the possible economic disadvantages fol-
lowing from strikes is irrelevant to a reasoned
choice.
In Agri-International, 271 NLRB 925, 926 (1984), the
Board stated that an employer is "under no obligation to
shield its employees from the `cold, hard facts' concern-
ing the detrimental effects of past strikes by the Union."
Here, however, Berning went further than the message
approved by the Board in the above cases . She attempt-
ed to coerce employees by connecting unions to strikes
and strikes to plant closings, each flowing inexorably
from the other. I find that Respondent violated Section
8(a)(1) of the Act.
(3) The Company would never agree to a pension
plan (par. 6n)
The subject of a company pension plan came up on
more than one occasion . According to Davis, Haws told
employees at one of the March ' meetings that there was
no way Respondent would have a pension plan. This
statement was allegedly made in answer to a question
raised by another employee . On cross-examination, Davis
was less certain about what was said , saying that Haws
failed to answer the question , "to our satisfaction" (R.
1002-1003).
What Haws did say was that only those plants ac-
quired by Respondent with pension systems already
intact had them . Those plants built by Respondent did
not have them . Haws recognized that employees were
concerned about pensions , but stated that Respondent
could not implement a plan at this time.
General Counsel witness Sevart also testified about
this subject . As to the meeting of 22 May, Haws stated
that a pension system was not feasible at this time. On
cross-examination, she recalled that Haws said a pension
system might be feasible later . At no time did he state or
imply that Respondent wouldn't bargain about a pension
plan if the Union were voted in (R. 798).
I find no violation of Section 8(a)(1) and will recom-
mend dismissal of this allegation . Haws' remarks cannot
be read to suggest that voting for a union was futile or
that Respondent would not bargain in good faith regard-
ing a pension or any other mandatory subject of bargain-
ing.
3. The objections to election
In a letter dated 3 June (G.C. Exh. 1c), the Union filed
certain objections to the election . The following objec-
tions are found to have merit based on the analysis of the
unfair labor practices above: Objection 3, telling Ray
Sterett on 5 May that he would need to increase produc-
tion or be fired ; Objection 4, discharging Ray Sterett;
PHILIPS INDUSTRIES 735
Objection 6, interrogating Swartz and Leffler about
union activities ; and Objection 15, making coercive state-
ments to Hansen relative to other Respondent plants
which had tried to go union . Certain other objections, 9-
12 and 14 , relate to the union's claim that the Company
took control of the 28 May election from the NLRB.
None of these objections were alleged as unfair labor
practices . However, they will be discussed briefly below
in the section relating to the bargaining order relief re-
quested by the General Counsel . I will recommend that
all other objections be dismissed.
The Board has held that conduct violative of Section
8(a)(1) of the Act is, a fortiori, conduct which interferes
with the laboratory conditions of an election . Life Savers,
233 NLRB 1257 ( 1982); Dal-Tex Optical Co., 137 NLRB
1782, 1786 (1962). The violations of Section 8(a)(3) and
(1) found in this case occurred during the critical period
between 25 March when the Union's petition was filed
and 28 May , the date of election . I will recommend to
the Board that a new election be held in light of the vio-
lations found.
4. The challenges to certain employees
The Union has withdrawn its challenges to the votes
of Ron Hornbeck and Geraldine Banks . 15 This leaves
challenges to the group leaders except Hansen and to
Barbara Inman . Respondent has challenged the vote of
Hansen.
a. Are group leaders supervisors
There are 12 group leaders whose status is in issue.
Before naming them and discussing the duties and re-
sponsibilities of each , I begin with some general princi-
ples of Board law with respect to distinguishing supervi-
sors from other employees.
Section 2( 11) of the Act states the following:
The term "supervisor" means any individual
having authority , in the interest of the employer to
hire, transfer , suspend , lay off, recall , promote, dis-
charge, assign , reward , or discipline other employ-
ees or responsibly direct them or to adjust their
grievances , or to effectively recommend such
action , if in connection with the foregoing the exer-
cise of such authority is not of a merely routine
nature or clerical nature , but requires the use of in-
dependent judgment.
The possession of any one of these criteria is sufficient
to establish that an employee is a supervisor within the
meaning of the Act. 16 The burden of proving superviso-
ry status rests on the party asserting that such status
exists . Bowne of Houston , 280 NLRB 1222 ( 1986).
15 Respondent has offered to stipulate that the challenge to Banks is
proper and that she should not be included in the bargaining unit (Br.
131) In light of the Union's withdrawal of its challenge , the offer to stip-
ulate is moot.
16 NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir.
1948) cert. denied sub nom. Foreman 's Assn . v Edward G. Budd Mfg. Co.,
355 U.S. 908 ( 1949), Sheet Metal Workers Local No. 85 (Suburban Sheet
Metal), 273 NLRB 523 (1984)
In reviewing relevant evidence , I am directed by the
Board to look for responsbile direction which does not
depend on the complexity or difficulty of the work, but
rather means that the alleged supervisors exercise inde-
pendent judgment without consultation with higher man-
agement . Dunkirk Motor Inn, 211 NLRB 461 (1974). Su-
pervisory status may not be determined on the basis of
title alone , but upon application of Section 2(11) stand-
ards . Southland Frozen Foods, 282 NLRB 769, 770 fn. 6
(1987).
The number of employees assigned to each group
leader in the present case varies from 23 in the case of
Basl to none in the case of Hansen . However, this factor
is not determinative , for it is the existence of supervisory
authority and not the exercise of it which is determina-
tive . NLRB v. Southern Seating Co ., 468 F.2d 1345, 1347
(4th Cir. 1972). See also NLRB v. Fullerton Publishing
Co., 283 F.2d 545, 550 (9th Cir. 1960).
The number of employees assigned to group leaders is
also important because the Board has held it will look to
the ratio between supervisors and employees in determin-
ing the supervisory status of an employee . Monarch Fed-
eral Savings & Loan, 237 NLRB 844 (1978). However,
this too is not determinative of supervisory status, or
lack of it . Washington Post Co., 254 NLRB 168, 193
(1981).
Although the number of employees assigned to group
leaders differs as indicated above, and the respective jobs
performed by the group leaders varies depending on the
department to which assigned , the essential functions of
group leaders remained constant . That is, supervisory
status of group leaders essentially will be determined by
examining their authority to transfer , to assign , to disci-
pline, to responsibly direct employees or to adjust their
grievances , or to effectively recommend such action. Ac-
cordingly, all group leaders will be found supervisors or
not as a group . To answer this question , I begin with a
short review of group leaders status.
(1) As perceived by other employees
Group leaders were a part of the unit beginning in the
early 1970s. They voted in the representation election
and in the decertification election without objection. The
Union involved then was a different union from the
Union involved in the present case . However, in the
early 1980s, the same union as involved herein was in-
volved in an unsuccessful campaign . Again, group lead-
ers participated fully and voted without objection by
anyone . Since there is no evidence that the duties of
group leaders changed over the years, this history of unit
involvement supports Respondent's theory.
When the current campaign began , group leaders at-
tended organizational meetings and signed authorization
cards like other production employees . No one objected.
This shows me that group leaders were for the most part
regarded by fellow employees as nonsupervisory in
nature.
(2) As perceived by employer
Respondent has always considered group leaders as
nonsupervisory:
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) First of all, as a general rule, group leaders do not
attend supervisor meetings . This practice of noninclusion
supports Respondent 's theory . Southern Indiana Gas &
Electric Co. v. NLRB, 657 F . 2d 878 (7th Cir . 1981);
Salant Corp ., 214 NLRB 171 ( 1974), enfd . 526 F.2d 585
(2d Cir . 1975).
There is evidence that on one occasion in 1986 group
leaders did attend a meeting with supervisors . The pur-
pose of this meeting was to explain certain procedures
for the election and does not detract from the strength of
the general rule.
(b) Group leaders are paid an hourly wage like other
production employees , although it is 50 cents per hour
higher . They earn bonuses on the production of the em-
plyees assigned to them rather than on their own work,
and they punch a timeclock.
Supervisors are paid a salary, do not earn a bonus
(unless specifically authorized for exceptional service)
and do not punch timeclocks.
(c) Group leader employee benefits track those of
other production employees . In the area of life insurance,
disability pay, savings and investment options, and profit-
sharing, group leader benefits are similar to production
employees and less generous than provided to supervi-
sors . The same dichotomy exists for vacations and sick
leave . Group leaders are, but supervisors are not paid for
overtime work.
(d) Supervisors are required to sign agreements with
the company by which the company receives any profits
from inventions created on company time and using
company materials . Group leaders are not required to
sign such an agreement.
(e) Supervisors are not required to supervise an unreal-
istic number of employees . I have referred above to the
ratio of employees to supervisors as a factor in evaluat-
ing supervisory status . Here Laura Berning supervises
about 30 employees in 3 departments ; Young supervises
about 14 employees in 3 departments ; George supervises
about 20 employees in 3 departments ; and Mark Berning
supervises 5 employees including 2 group leaders . I agree
with Respondent (Br. 113) that, given the highly routin-
ized nature of Respondent's operations , the ratio of su-
pervisors to employees is not unreasonable and does not
suggest that group leaders should be supervisors for that
reason.
(3) Group leader authority
(a) I find that group leaders do not have authority to
grant employees time off nor to permit employees to
leave work early . As discussed above, it was the custom
and practice in the plant for employees to tell either their
group leader or supervisor when they needed time off or
had to leave early . When the group leader was notified,
as was the case when Tim Sterett needed to leave early,
and told Basl , the group leader does not authorize the
employee . Rather the words "O.K." signify that the in-
formation has been received and that the supervisor
would be notified. See Hydro Conduit Corp., 254 NLRB
433, 439 (1981). In this case and others, the group leaders
merely act as conduits for Respondent by transmitting
notice back to the supervisors . As will be shown below,
in other cases, group leaders reverse the process and act
as conduits for Respondent by transmitting orders from
supervisors to employees . California Beverage Co., 283
NLRB 328 (1987 ); Wolff & Munier, 282 NLRB 150
(1986). In either case, group leaders act without exercis-
ing independent judgment . Thus , there is no evidence
that a group leader disapproved any employee 's request
to leave work early . Compare, H.S. Lordships, 274
NLRB 1167 ( 1985).
(b) I also find that group leaders do not exercise super-
visory authority to discipline employees. Absent some
showing of impact on employee job status, verbal repri-
mands do not constitute discipline within the meaning of
Section 2(11) of the Act. Hydro Conduit Corp., supra, at
437. In the instant case, Basl once told Ray Sterett to
stand by his table and admonished him for working
through lunch . However, the record does not show
credible evidence of real supervisory authority.
Nor does it show authority effectively to recommend
such action . On one occasion , group leader Hansen rec-
ommended that one of the Sterett brothers be discharged
over a work-related matter . Instead, Holm transferred
the Sterett brother to another department . Time and
again, the record shows group leaders merely bringing
matters to the attention of supervisors for further action,
as the supervisor sees fit.
(c) I find that at most group leaders exercise superviso-
ry authority in a routine, clerical , perfunctory , or sporad-
ic manner , which does not confer supervisory status on
an employee . Feralloy West Co., 277 NLRB 1063, (1985).
As noted above, group leaders exercise some little discre-
tion to assign employees to jobs within their department,
to transfer employees to other jobs within the same de-
partment , and to decide which work orders have priori-
ty. Giving minor orders or directives or supervising the
work of others does not necessarily make one a supervi-
sor within the meaning of the Act. Rather such employ-
ees are like leadmen or strawbosses . NLRB v. Doctors'
Hospital of Modesto, 489 F.2d 772, 776 (9th Cir . 1973).
For two cases very similar to the facts of the present
case regarding the authority of group leaders to super-
vise others , see Plessey Materials Corp., 263 NLRB 1392,
1395-1396 (1982), and Cal-Western Transport , 283 NLRB
453 (1987).
As to leadmen , I note the testimony of Hansen, a wit-
ness for the General Counsel . In his testimony , he fre-
quently substituted the word "leadperson " for "group
leader." At one point I asked him about the nomencla-
ture . "A leadman," he explained , "is the same as group
leader . It's somebody that has authority to tell their
people what to do, that's right underneath foreman. A
leadman is the next man down ." (R. 1127).
Finally, I note that group leaders may inspect win-
dows and other products and, if found to be defective,
order that the product be redone . This work as an in-
spector does not denote supervisory status . Hydro Con-
duit Corp., supra at 440.
(d) I find that group leaders do not have authority to
adjust grievances . Leffler testified that at one point, Su-
pervisor Young told her to take grievances to the group
leader; Hansen also dealt with this point to the effect
that he was the first rung on the chain of command. It
PHILIPS INDUSTRIES 737
would be unlikely that with all other indicia of supervi-
sory status pointing in the direction of nonsupervisors,
this factor would point differently . It does not. Again,
group leaders are authorized to adjust only routine griev-
ances dealing with production matters or machine mal-
functions , or insufficient materials to perform his or her
job. Nonroutine complaints must be referred to a super-
visor. See Hydro Conduit Corp., supra at 440. Any dis-
putes dealing with timecards which are clerical in nature
may be handled by a group leader . However, this does
not show supervisory authority.
(4) Group leaders identified
To ensure that no group leader has any specific duty,
not possessed by the others , which might indicate super-
visory status , I identify each by name and briefly relate
other pertinent information.
(a) Marlene Basl, an employee since September 1971,
works in slider line and 23 employees are assigned to
her. Throughout this case Basl has played a major role,
particularly in the discharges of the Sterett brothers.
Due to the large number of employees assigned to her,
Basl's main job is to provide material to the production
employees in slider line . Another material handler also
performs this job.
Basl also assigns work and transfers employees from
one work assignment to another within slider line. This
authority is exercised within certain broad parameters
dictated by Berning, her supervisor . She also has limited
authority to adjust grievances of a minor nature.
(b) Shirley McClelland, an employee since August
1971, works in trim and storm and has two employees as-
signed to her . McClelland did not testify , did not play a
major role in this case , and spends most of her time
doing production work.
(c) Sue Bales Dewar, an employee since June 1975,
works in insulated glass, and has eight employees as-
signed to her . This witness gave brief testimony for Re-
spondent denying that she had signed a card on which
her signature appeared . She did not testify regarding her
duties, did not play a major role in this case , and per-
forms mainly production work.
The above three group leaders are supervised by
Laura Berning.
(d) Linda Perlich , an employee since March 1979,
works in storm doors and has one employee assigned to
her. Perlich did not testify , did not play a major role in
the case, and does mostly production work with some
ordering of parts.
(e) Debbie Leseman , an employee since March 1976,
works in house doors, and has three other employees as-
signed to her . Leseman did not testify , did not play a
major role in the case , and does about 75-percent pro-
duction work and 25-percent providing materials to
other production employees.
(f) Milo Bechtold , an employee since April 1983, is as-
signed to axle line, and has five employees assigned to
him. He did not testify , did not play a major role in the
case, and does about 75-percent production work and the
remainder supplying parts to other employees or order-
ing parts for them.
The above three group leaders are supervised by Bob
Young.
(g) Kelly Jacobe and Clifford Williams, employees
since August 1980, work in shipping , and each has one
other employee working with him . Both employees
spend most of their day working on the docks loading
trucks . However, Jacobe also spends about 2 hours each
day on paperwork related to shipping . Only Williams
testified concerning the signing of a union authorization
card . Neither employee played a major role in this case.
Jacobe and Williams are supervised by Mark Berning.
(h) Carol Oeader, an employee since October 1977, is
assigned to torque tier and has five employees assigned
to her. Oeader did not testify, but did play a fairly signif-
icant role in this case . She was present at the initial orga-
nizing meeting at the Stayton Plaza Restaurant and is
presently group leader of Swartz, who prefers not to
work with her.
Oeader spends the great majority of her time perform-
ing production work. She also acts as a conduit for her
supervisor , Bill George, relaying his instructions relative
to job priorities to employees.
There is some evidence in the record that Oeader per-
formed certain minor disciplinary tasks. Swartz testified,
for example , that Oeader once warned Sue Bales about
missing too much work (apparently this was another em-
ployee not to be confused with group leader Sue Bales
Dewar). Neither the subject of the discipline nor Oeader
testified to first-hand accounts of this incident . I find that
this is insufficient evidence of supervisory authority to
discipline employees . See Chicago Metallic Corp., 273
NLRB 1677, 1693 (1985).
(i) Sharon Roth , an employee since May 1972, is as-
signed to mobile home doors and has 13 employees as-
signed to her . Roth did not testify, did not play a major
role in the case, and performs primarily production work
and also acts as a material handler.
Leffler gave certain testimony regarding Roth's au-
thority to authorize her to take time off or leave work
early . This subject has been dealt with above and the
analysis need not be repeated . It suffices to say that nei-
ther Roth nor any other group leader has supervisory
authority to authorize time off.
(j) Jerry Hansen, an employee since September 1980
(currently on disability), is assigned to self-storing storm
windows and trapezoid windows and has no employees
assigned to him . Hansen testified and played a major role
in this case . I have referred to his testimony above re-
garding certain 8(a)(1) violations . As the only employee
regularly assigned to his departments , Hansen does
mainly production work . However , he also performs sev-
eral hours a week of paperwork . Until he was barred
from the office in May by Bill George for allegedly
spending too much time there , Hansen was required to
make several trips every day to Respondent's plant office
to pick up or drop off certain production orders and re-
ports. He also used the Zerox machine to copy certain of
these documents . After he was barred from the office,
other persons, including George or Laura Berning, had
to perform some of this office work for him.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The above three group leaders are supervised by Bill
George.
(k) Bill McGee, an employee since May 1979, is as-
signed to receiving and has no employees assigned to
him. He did not testify nor play a major role in this case.
He is supervised by Louie Brant, purchasing agent. t 7
I find that none of the group leaders are statutory su-
pervisors . Generally, they are senior production employ-
ees who have limited authority . They should be part of
the unit permitted to vote in a second election and I will
so recommend.
b. Is Barbara Inman an independent contractor
In presenting evidence to challenge the status of
Inman , the Union did not call her as a witness . Rather it
called Sid Lampley , a staff representative of the Union.
On 28 May, Lampley participated in a preelection con-
ference at the plant with a Board agent, a company at-
torney named Wilkins , Haws, Speakes, and Holm and
certain election observers for the Union and the Compa-
ny.
Lampley told company officials that he intended to
challenge Inman on the grounds that she was a contract
employee, not drawing the same wages or benefits as
other employees . Holm then spoke up and said , "That's
right, she doesn 't receive hospitalization and medical, but
she works less than 20 hours per week ." To this attorney
Wilkins said to plant manager Holm, in front of the vari-
ous persons present, "You shut your damn mouth. You
don't know what's involved. Now you just shut your
damn mouth ." (R. 1135).
The Union cited no case or argument on this point. In
analyzing the evidence , I disregard the comment of Wil-
kins since the basis for his ill -advised outburst is unclear.
He did not testify . Essentially then, the Union's evidence
consisted of an "admission" by Holm that Inman is not
paid benefits and works less than 20 hours per week.
Other evidence shows the following . Inman has worked
for Respondent as a janitor for about 18 months. Her
hours of employment are 7 a.m.-11 a.m . on Monday,
Wednesday , and Friday . She is paid on an hourly basis,
slightly over $6 per hour (R. 1401-1402).
In Pierre's Vending Co., 274 NLRB 1219 , 1220 (1985),
the Board stated the following common law right of
control test for determining whether individuals are em-
ployees or independent contractors:
[a]n employer-employee relationship exists when the
employer reserves not only the right to control the
result to be achieved, but also the means to be used
in attaining the result. On the other hand , where the
employer has reserved only the right to control the
ends to be achieved, an independent contractor rela-
tionship exists . . . . In order to determine the
nature of the relationship , the Board analyzes the
17I note that McGee, Bechtel, Hansen , and Williams signed union au-
thonzation cards The General Counsel also offered a card purporting to
have been signed by group leader Sue Bales Dewar. However, Respond-
ent called Bales Dewar as a witness and she denied signing the card. I
refused the offer and find insufficient evidence to prove Bales Dewar
signed the card
facts presented in the particular case, balances them,
and arrives at a result.
Here the evidence does not require estensive analysis be-
cause Inman appears to be merely a part-time employee.
See VIP Movers, Inc., 232 NLRB 14 (1977). In any event,
I find that the Union has failed to produce sufficient
credible evidence to prove independent contractor status.
NLRB v. United Insurance Co., 309 U.S. 254, 256 (1968).
See also Carobe Hilton Hotel v. NLRB, 690 F.2d (2d Cir.
1982).
1 will recommend to the Board that the challenges to
the group leaders and to Inman be overruled and dis-
missed.
5. The bargaining order
Apparently disclaiming any interest in a new election,
the General Counsel asserts that a bargaining order is the
"sole remedy" which they seek (Br. 25). The Union ap-
pears to recognize the possibility that the case may be
undeserving of a bargaining order and may require only
a second election (Br. 2, 38).
In deciding whether a bargaining order is warranted in
this case , I begin with the Board's instruction in Koons
Ford of Annapolis, 282 NLRB 506, 507 (1986):
In ascertaining whether a bargaining order is
warranted to remedy the Respondent's misconduct,
we apply the test set out in NLRB v. Gissel Packing
Co., 395 U.S. 575 ( 1969). In Gissel, the Court delin-
eated two types of situations where bargaining
orders are appropriate: ( 1) "exceptional" cases
marked by "outrageous" and "pervasive" unfair
labor practices; and (2) " less extraordinary" cases
marked by "less pervasive" practices .5 Thus, the
Court placed its approval on the Board's use of a
bargaining order in "less extraordinary" cases
where the employer's unlawful conduct has a "tend-
ency to undermine [the union 's] majority strength
and impede the election processes ."5 The Court in-
dicated that when the unfair labor practices are less
flagrant and the union at one time had a majority
support among the unit employees the Board may
consider
the extensiveness of an employer's unfair prac-
tices in terms of their past effect on election con-
ditions and the likelihood of their recurrence in
the future . If the Board finds that the possibility
of erasing the effects of past practices and of en-
suring a fair election (or a fair rerun) by the use
of traditional remedies , though present, is slight
and that employee sentiment once expressed
through cards would , on balance, be better pro-
tected by a bargaining order, then such an order
should issue.7
5 Gissel, supra at 613-614.
6 Id at 614
7 Id at 614-615.
PHILIPS INDUSTRIES 739
I will evaluate Respondent 's unfair labor practices to
see whether the standards of the second Gissel category
have been met . It is clear that "outrageous" and "perva-
sive" unfair labor practices have not been committed in
this case . I have found that the General Counsel has pre-
sented prima facie proof of three out of four 8 (a)(3) alle-
gations . However, I have also found only a single 8(a)(3)
allegation has been committed , that of the discharge of
Ray Sterett , a principal union organizer . I have also
found various 8(a)(1) allegations involving unlawful in-
terrogations and other coercive statements . Many of the
more serious allegations have been dismissed . Thus, I
found no merit in allegations concerning an unlawful pay
raise , threats by higher management to close the plant if
the Union came in , or that Respondent would refuse to
bargain in good faith over pensions or other mandatory
subjects . Basically, I found a series of violations by first-
level supervisors . In trying to please Haws and Speakes
in resisting the Union in an agressive but legal strategy,
the supervisors such as Laura Berning, Young, and
George and Mark Berning , went too far and crossed the
line into illegality . Compare Long-Airdox Co., 277 NLRB
1157 (1985), noting the heightened effect of unfair labor
practices when committed by top management which is
not the case here ; Compare also Kona 60 Minute Photo,
277 NLRB 867 (1985), where the Board found serious
threats and conduct striking at the very core of the em-
ployees' organizational efforts by high company officials
dealing with a small unit of employees.
The violations found do not show a pattern of so-
called hallmark violations . As explained in Horizon Air
Services, 272 NLRB 243 (1984), enfd. 761 F.2d 22 (1st
Cir. 1985):
[T]hese "hallmark" violations include such employ-
er misbehavior as the closing of a plant or threats of
plant closure or loss of employment, the granting of
benefits to employees , or the reassignment, demo-
tion or discharge of union adherents in violation of
Section 8(a)(3) of the Act . In such cases the serious-
ness of the conduct , coupled with the fact that it
often represents a complete action as distinguished
from mere statements , interrogations or promises,
justifies a finding without extensive explication that
it is likely to have a lasting inhibitive effect on a
substantial percentage of the work force.
With the exception of the discharge of Ray Sterett,
most of the violations found herein were not of a very
serious or hallmark nature . Compare Fimco, Inc., 282
NLRB 653 ( 1987). (Within the first weeks of union activ-
ity, the employer made unlawful assignments , solicited
and promised to remedy grievances, granted benefits, in-
terrogated employees , and removed benefits from them.
The employer continued its antiunion activities by en-
couraging and aiding employees to withdraw from the
union and granting unlawful wage increases. Finally, the
employer discharged an employee seeking to enlist the
union in filing a grievance).
Furthermore , Respondent 's actions in allegedly taking
over the election process from the Board add nothing to
the case for the bargaining order . Essentially, Respond-
ent directed on 28 May that its employees work an hour
of overtime , stationed a supervisor at a closed front gate
during most of the afternoon , and caused the Sterett
brothers to vote about an hour later than they intended.
I fail to see how any of this conduct , not alleged as an
unfair labor practice , would support a case for a bargain-
ing order. I find that it does not.
Another recent case in which the Board granted a bar-
gaining order is Koons Ford of Annapolis, supra at 509.
Once again, the violations found were of a more serious
nature than those found in the present case . (Threats of
job loss because of union activity and other violations
made by the employer's top official and two department
supervisors .) The Board also noted the demonstrated
effect of Respondent 's unlawful campaign . (Union re-
ceived 38 signed cards; 4 weeks later union received 27
votes due to numerous unfair labor practices .) Compare
also Reno Hilton , 282 NLRB 819 fn . 3 (1987) (Repeated
threats to employees , two layoffs and discharge of union
organizer).
In finding that the nature of the violations found in
this case does not warrant a bargaining order, I rely on
certain other cases : L. M. Barry & Co., 266 NLRB 47
(1983), a case where a series of 8(a)( 1) violations were
found ; Sangaman Weston, Inc., 273 NLRB 256 (1984), a
case where the employer committed a single hallmark
violation and relatively few nonhallmark violations. Fi-
nally, I also note Mariposa Press, 273 NLRB 528 (1984),
involving several incidents of 8(a)(1) violations.
a. Size of the unit
Including the group leaders and Ingram, the size of
the unit is approximately 90 employees . I find this factor
does not support the issuance of a bargaining order.
Rather the effect of the violations can more easily be dis-
sipated than if the unit were smaller. Compare Fimco,
Inc., supra (unit of 27 employees).
b. Number of employees affected
During the course of this decision , I have referred to
certain employees such as Basl who might have been ex-
pected to testify. Many other employees were not called
for good reasons . They were simply unaffected by the al-
legations made and fewer still were affected by the alle-
gations found to have been committed . About 10 percent
of the unit employees could arguably be said to have
been involved . See Walter Garson , Jr. & Associates, 276
NLRB 1226 (1985). This factor does not support the is-
suance of a bargaining order.
c. Likelihood of recurrence
I find the likelihood of recurrence is small . Respondent
is a large corporation with several union and nonunion
plants . There is no history of hostility to unions national-
ly nor in the Oregon plant . Respondent runs its business
through the use of production quotas on supervisors and
employees . The supervisors in this case felt the same
kind of pressure to produce a victory in the election.
There is every reason to believe that supervisors will be
more restrained in the future.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition , I noted during the hearing a degree of in-
formality between supervisors and employees . For exam-
ple, first names are commonly used . The plant manager
goes home for lunch. This indicates to me that employ-
ees are not unduly restrained or coerced by the actions
of the first line supervisors found herein.
For all of the reasons stated , I will recommend to the
Board that a bargaining order not issue in this case. The
Board has stated that generally , a secret ballot Board-
conducted election is the preferred method of ascertain-
ing employee choice. EMR Photoelectric, supra at 257.
The facts of the present case require that this general
policy apply.
6. Union authorization cards
A remedial bargaining order requires a showing that a
union represented a majority of Respondent's employees
in an appropriate unit. Gourmet Foods, 270 NLRB 578
(1970). Unambiguous authorization cards are invalid be-
cause of misrepresentations only if employees are told or
intentionally led to believe that the sole purpose of the
card is to secure an election . Walgreen Co., 221 NLRB
1096 (1975). Although it appears that the General Coun-
sel has offered cards signed by a majority of employees,
I have found a bargaining order unwarranted . Accord-
ingly, I decline to rule on whether and when the Union
represented a majority of the unit employees based on
valid authorization cards. Wm. T Burnett & Co., 273
NLRB 1084 fn. 3 (1984).18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent , Philips Industries, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, United Steelworkers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent violated Section 8(a)(1) and (3) of
the Act by discharging Ray Sterett because of his union
activities.
4. The Respondent violated Section 8(a)(1) of the Act
by committing the following acts:
a. Laura Berning interrogating Swartz about union
matters and on another occasion telling Swartz that
union matters didn't concern her.
b. Bill George interrogating Swartz about her union
activities and telling her, "Good luck on your new job."
18 For the same reason, it is unnecessary to rule on the refusal-to-bar-
gain allegations (par. 10 of complaint) and I will recommend that they be
dismissed.
c. Laura Berning interrogating Vera Davis about a
union T-shirt she was wearing , and on another occasion
asking Davis how another employee planned to vote.
d. Bob Young interrogating Leffler regarding her
union activities;
e. Mark Berning interrogating Hansen about union ac-
tivities and implying that if the Union won, the plant
might close;
f. Laura Berning and Young telling employees that
unions lead to strikes , and strikes lead to plant closing.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent engaged in conduct which affected
the results of the election conducted on 28 May, in Case
36-RC-4856 and a second election is warranted.
7. Other than specifically found herein, Respondent
did not engage in any other unfair labor practices.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
As I have found that Respondent unlawfully dis-
charged Ray Sterett because he engaged in union activi-
ties, I shall recommend that the Respondent be ordered
to offer him immediate and full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent job, without prejudice to his se-
niority and other rights and privileges , and to make him
whole for any loss of earnings suffered as a result of the
discrimination by payment of a sum equal to that which
he would have earned absent the discrimination , with the
backpay and interest computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977); see generally Isis
Plumbing Co., 138 NLRB 716 (1962).
In accordance with Sterling Sugars, 261 NLRB 472
(1982), I shall also recommend that Respondent remove
from its files any reference to the discharge of Ray Ster-
ett and notify him in writing that this has been done and
that evidence of this unlawful action will not be used as
a basis for future personnel actions against him.
It is further recommended that appropriate state and
Federal authorities be notified of Respondent 's policy re-
garding disciplinary action for own fault plant injuries,
where medical attention is required so these agencies can
determine whether such a policy is lawful.
The General Counsel's request that the remedial order
include a visitatorial clause authorizing the Board to
engage in discovery under the Federal Rules of Civil
Procedure to enable it to monitor compliance with the
Board's order as enforced by the court of appeals is re-
jected on the grounds the Board does not provide for
discovery procedures in its proceedings and there is no
showing that under the circumstances presented here
such a clause is necessary.
Further, in Case 36-RC-4856 having found that a new
election is warranted , I shall recommend that the elec-
tion held on 28 May 1986 be set aside and the case be
PHILIPS INDUSTRIES 741
remanded to the Regional Director for Region 19 and a
new election shall be conducted. I shall further recom-
mend that all group leaders and Barbara Inman be per-
mitted to vote.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed19
ORDER
The Respondent , Philips Industries , Inc., Stayton,
Oregon, its officers , agents, successors , and assigns shall
1. Cease and desist from
(a) Interrogating employees about their own activities
or those of other employees , or telling an employee that
union activities are of no concern to her.
(b) Implying to an employee, she would be terminated
for engaging in union activity.
(c) Criticizing an employee for wearing a union T-
shirt.
(d) Suggesting to employees that a union victory
might bring a plant closure.
(e) Telling employees that unions lead to strikes and
strikes lead to plant closures.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Ray Sterett immediate and full reinstatement
to his former job and if his former job no longer exists to
a substantially equivalent position of employment with-
out prejudice to his seniority and other rights and privi-
leges and make him whole for any loss of earnings he
may have suffered by reason of the discrimination
against him in the manner set forth in the remedy section
of this decision.
(b) Expunge from its files any reference to the dis-
charge of Ray Sterett and notify him, in writing, that
this has been done and that evidence of his unlawful dis-
charge will not be used as a basis for any future person-
nel action against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records, and reports, and all other records nec-
essary to analyze the amounts of backpay due under the
terms of this Order.
(d) Post at its Slayton , Oregon facility copies of the at-
tached notice marked "Appendix." 20 Copies of said
notice on forms furnished by the Regional Director for
Region 19 shall after being signed by Respondent's au-
thorized representative be posted immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered , defaced , or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
19 If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
80 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 Nation-
al 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."