Picket Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1999

330 N.L.R.B. 90 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
Pickett Industries, Inc. and United Paperworkers In-
ternational Union, AFL–CIO. Cases 15–CA–
13903 and 15–CA–13048
November 23, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On July 10, 1998, Administrative Law Judge Keltner
W. Locke issued the attached bench decision.* The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and has decided to adopt the recommended Order as
modified and set forth in full below.3

* On July 23, 1998, the judge issued an Erratum to his decision. We
will attach the transcript pages 290–303 referred to in item 2 of the
Erratum. Items 1 and 3 are incorporated herein.
1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
Member Liebman would not rely on that portion of the judge’s
analysis of Keith Mason’s testimony which discusses its supposed
implausibility based on the assumption that a person who contrives a
false reason for an unlawful discharge “knows enough not to blurt out
evidence of his true intent.” In her view, the credibility resolutions are
amply supported by the record even without this speculation about the
implausibility of certain testimony. In this regard, she observes that the
judge specifically relied on demeanor and other factors in making
credibility findings.
2 Because a finding of an unfair labor practice would be cumulative
and would not affect the remedy, we find it unnecessary to pass on the
General Counsel’s exception to the judge’s dismissal of the allegation
that the Respondent threatened employee Clyde Fuller with loss of his
job on April 4, 1996. Member Brame would find no merit to the Gen-
eral Counsel’s exception.
Member Liebman would find merit in the General Counsel’s excep-
tion to the judge’s dismissal of the complaint allegation that Supervisor
Clyde Patterson unlawfully interrogated employee Clyde Fuller. In this
connection, Member Liebman observes that the Board has found em-
ployer interrogations to be coercive when they are accompanied by
unlawful threats. E.g., Christie Electric Corp., 284 NLRB 740, 741
(1987). Here, the judge specifically found that during the same conver-
sation in which Patterson questioned Fuller about a union meeting,
Patterson unlawfully threatened Fuller with termination by stating that
the Union “would end up costing all of them their jobs.” In the context
of this threat, Member Liebman would find that Patterson’s questioning
of Fuller would reasonably tend to interfere with, restrain, and coerce
him in the exercise of his Sec. 7 rights, and, therefore, constituted an
unlawful interrogation.
3 We modify the recommended Order to comply with the Board’s
decision in Indian Hills Care Center, 321 NLRB 144 (1996), as modi-
fied by Excel Container, 325 NLRB 17 (1997).
ORDER
The National Labor Relations Board orders that the
Respondent, Pickett Industries, Inc., Vidalia, Louisiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with termination if they en-
gage in activities on behalf of the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Natchez, Mississippi, copies of the attached
notice marked “Appendix B.”4 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 15, 1996.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
330 NLRB No. 24
PICKETT INDUSTRIES 91
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten you with termination of em-
ployment because you engage in activities on behalf of
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

PICKETT INDUSTRIES, INC.

Charles Rogers, Esq., for the General Counsel.
Price Barker, Esq., for the Respondent.
BENCH DECISION AND CERTIFICATION
[Corrections have been made according to an erratum is-
sued on July 23, 1998.]
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on June 3 and 4, 1998, in Vidalia, Louisiana. After the
parties rested, I heard oral argument, and on June 4, 1998, is-
sued a bench decision pursuant to Section 102.35(a)(1) of the
Board’s Rules and Regulations, setting forth findings of fact
and conclusions of law. In accordance with Section 102.45 of
the Board’s Rules and Regulations, I certify the accuracy of,
and attach hereto as “Appendix A,” the portion of the transcript
containing this decision. The conclusions of law, remedy, and
Order provisions, and notice to employees are set forth below.
CONCLUSIONS OF LAW
1. Respondent, Pickett Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act).
2. The Union, United Paperworkers International Union,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act, some time
during the latter part of February 1996, by threatening its em-
ployees with termination because they aided or assisted the
Union, as alleged in paragraph 7(a)(ii) of the complaint.
4. Respondent did not violate the Act in any other manner al-
leged in the complaint.
REMEDY
Having found that the Respondent has engaged in an unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act, including posting the notice to employees
attached hereto as Appendix B [omitted from publication].
In view of my findings that the Respondent did not discrimi-
nate against any employee, as alleged in the complaint, the
remedy does not include any reinstatement or make whole pro-
visions.
[Recommended Order omitted from publication.]
APPENDIX A
290
A F T E R N O O N S E S S I O N
(Time Noted: 1:55 p.m.)
JUDGE LOCKE: On the record.
The hearing will be in order.
First of all, I want to thank the parties for their patience; it
took me slightly longer to put this bench decision together than
I had expected it to.
And, also, I was advised by Concordia Parish—an official of
the parish that we will need to vacate the hearing room that
they have loaned us at 2:00 this afternoon. So I wanted to go
ahead and read you the decision.
BENCH DECISION
This is the bench decision in the Case of Pickett Industries,
Incorporated, which I will call the Respondent, and United
Paper Workers International Union, AFL–CIO, which I will
call the Union. It is issued pursuant to Section 102.35, sub-
paragraph 10, and Section 102.45 of the Board's rules and regu-
lations.
Respondent has admitted in its answer the allegations raised
in certain paragraphs of the General Counsel’s complaint.
Based upon those admissions and the record as a whole, I make
the following findings of fact.
The charge in Case 15–CA–13903 was filed by the Union on
June 3, 1996, and served on the Respondent on or about June 4,
1996. On July 25, 1996, the Acting Regional Director of Re-
gion
291
15 of the Board issued a complaint and notice of hearing in this
case. Thereafter, on August 5, 1996, the Union filed an
amended charge in this case and served a copy of it on the Re-
spondent on August 6.
The Union filed a charge in Case 15–CA–13948 on June 20,
1996, and served a copy on Respondent on June 24, 1996.
Cases 15–CA–13948 and 15–CA–13903 are the only unfair
labor practice matters to be decided in this proceeding.
On September 25, 1996, the Acting Regional Director of Re-
gion 15 of the National Labor Relations Board issued an order
consolidating cases, consolidated complaint and notice of hear-
ing which supercedes the earlier complaint in Case 15–CA–
13903. I will refer to this later pleading as the consolidated
complaint or, simply, as the complaint.
Respondent has admitted and I find that it is a Louisiana cor-
poration with an office and place of business in Natchez, Mis-
sissippi; that during the 12 months ending June 30, 1996, its
business operations performed services valued in excess of
$50,000 in states other than the state of Mississippi, and that at
all times material to this proceeding, it has been an Employer
engaged in commerce within the meaning of Sections 2(2), (6)
and (7) of the Act.
Respondent also has admitted that its General Manager,
Justin Patterson, and its Chief Financial Officer, Sandra More-
hart, who is now a Vice President of Respondent, are its
292
supervisors within the meaning of Section 2(11) of the Act and
its agents within the meaning of Section 2(13) of the Act. I so
find.
Respondent has denied the allegation in Paragraph 5 of the
complaint, that: “At all times material, the Union has been a
labor organization within the meaning of section 2(5) of the
Act,” stating in its answer that it lacks sufficient information.
The testimony of hearing establishes that the Board conducted
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
an election among the Respondent's employees, that the Union
won the election and that the Respondent has engaged in
collective bargaining with the Union. I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
Paragraph 9 of the complaint alleges that, “On or about June
5, 1996, the Respondent issued a written warning to employee
Clyde Fuller.” Respondent admits issuing such a warning to
fuller, but states it did so on June 9, 1996, not June 5. I find
that Respondent issued this warning on June 9, 1996.
Now I will address the disputed allegations raised by the
complaint. Paragraph 7(a) alleges that, “On or about the latter
part of February 1996, Respondent, by Justin Patterson at its
facility interrogated its employees about their Union member-
ship, activities and sympathies and the Union membership,
activities and sympathies of other employees.”
292
Clyde Fuller testified that sometime in February of 1996-that
is, a few weeks after the Union won the election-he had a con-
versation with general manager Patterson. Fuller believed that
another employee, Burlyn McLemore, was present. But
McLemore did not corroborate Fuller's testimony. According
to Fuller, the conversation began when Patterson asked him if
he had had a good meeting. Fuller understood the question to
refer to a Union meeting and told Patterson that it was very
informative. I credit Fuller's testimony.
Fuller testified that, before the election, he had talked with
people about the Union. Later, he became a member of the
Union’s negotiating committee. However, the record strongly
indicates that the Respondent and the Union had not yet had a
bargaining session when that conversation between Fuller and
Patterson took place. The evidence falls short of establishing
that Respondent definitely knew about Fuller’s support for the
Union at this time.
In deciding whether interrogation is unlawful, I am governed
by the Board's decision in Rossmore House, 269 NLRB 1176,
1984, enforced under the name of Hotel Employees and Res-
taurant Employees Union versus NLRB, 760 Fed. 2d 1006, (9th
Cir. 1985). In Rossmore House, the Board held, “The lawful-
ness of questioning by Employer agents about Union sympa-
thies and activities turns on the question of whether under all
circumstances the interrogation reasonably tends to restrain or
294
interfere with the employees in the exercise of rights guaran-
teed by the Act.”
In making such a determination, the circumstances may be
evaluated under the frame work described in Bourne Company
versus NLRB, 332 Fed 2d 47, (2d Cir. 1964). The following
factors are relevant:
1. The background; that is, is there a history of Employer
hostility and discrimination.
2. The nature of the information sought; that is, whether the
interrogator appeared to be seeking information on which to
base taking action against individual employees.
3. The identity of the questioner.
4. The place and method of the interrogation; for instance,
was the employee called from work to the boss' office, and was
there an atmosphere of unnatural formality?
5. The truthfulness of the reply.
In this case, the record does not show a history of Employer
hostility or discrimination. The evidence also falls short of
establishing that the interrogator was seeking information to
use in targeting employees for retaliation. Although Patterson
bears the title of General Manager of the Natchez facility, the
record suggests that his position is one of middle management,
although, at times, he also acts as a first-line supervisor.
Although the conversation took place at the Respondent’s
295
facility, it occurred casually. Patterson did not call Fuller into a
locus of management and authority. And I presume Fuller
answered truthfully. In all of these circumstances, I find that
the question by Patterson was an off-hand comment and was
not unlawfully coercive.
Paragraph 7(a)(ii) of the complaint alleges that, “On or about
the latter part of February 1996, the Respondent, by Justin Pat-
terson in its facility, threatened its employees with termination
because they aided or assisted the Union.” Fuller testified that
during this same conversation, Patterson said that Respondent’s
owner, Mr. Pickett, told him that he would spend more money
to keep the Union out, presumably meaning that the Company
would spend more opposing the Union than the Union could
afford to spend opposing the Company.
According to Fuller, Patterson said that there were only 16
[sic] employees in the Union, implying that they could not af-
ford to pay sufficient dues for the Union to oppose the Com-
pany successfully. Fuller testified Patterson said that it would
end up costing all of them their jobs and that he felt sorry for
the employees. I credit Fuller's testimony.
And, additionally, I find that this statement is coercive and in
violation of Section 8(a)(1) of the Act. It conveys both the
meaning that collective bargaining would be futile and, also,
that alliance with the Union could result in the termination of
employment. I find that this statement
296
interferes with, restrains and coerces employees in the exercise
of rights conferred by Section 7 of the National Labor Relations
Act.
Complaint Paragraph 7(b) alleges that, “On or about April 4,
1996, the Respondent, by Justin Patterson at its facility, threat-
ened employees with termination because they aided or assisted
the Union.” On or about that date, Fuller had another conversa-
tion with General Manager Patterson.
This conversation took place in the Respondent’s shop,
where Fuller had brought in a forklift he had been operating,
because of a problem with the brakes. Patterson came into the
shop and asked Fuller if he were taking a lunch break. Fuller
explained to Patterson that the brakes were bad. Fuller testified
that Patterson replied that if Fuller were not willing to do his
job, he had a number of non-Union people who would do it.
Fuller said in reply that he would drive the forklift, but that
he would also complain to the safety director. According to
Fuller, whose testimony I credit, Patterson did not require him
to drive the forklift with the faulty brakes.
In analyzing whether a statement violates Section 8(a)(1) of
the Act, the Board applies an objective standard. The fact that
Fuller did not act as if he were coerced by Patterson’s statement
does not affect whether or not the statement constitutes an un-
fair labor practice. In applying an objective
PICKETT INDUSTRIES 93
297
standard, however, I believe it is important to consider the total
context of the statement.
This is not a situation in which employees contemplating an
economic strike were told that if they ceased work, they could
be permanently replaced. Rather, in a discussion of another
matter, the supervisor interjected the comment about the Union,
which seemed both gratuitous and a non-sequitur.
The comment certainly is oblique and, coming at the start of
the Union’s relationship with the Respondent as the employees’
collective bargaining representative, it does sound of a some-
what ominous tone, which causes me concern. At the same
time, I do not find that a fair reading of the words articulates a
threat which violates Section 8(a)(1) of the Act, and, therefore,
I recommend that this allegation be dismissed.
Paragraph 7(c)(i) alleges that, “On or about May 28, 1996,
the Respondent, by Justin Patterson at its facility, threatened
employees with termination because they aided or assisted the
Union.” Paragraph 7(c)(ii) alleges that, “On or about May 28,
1996, the Respondent, by Justin Patterson at its facility, threat-
ened employees with unspecified reprisals because they aided
or assisted the Union.”
These allegations concern comments asserted to be made by
Patterson at the time he discharged Keith Mason. I will discuss
them in connection with Paragraph 8 of the complaint, which
alleges that, “On May 28, 1998 [sic], Respondent discharged
298
Keith Mason.” Respondent admits discharging him on this
date, but denies it acted unlawfully.
Mason was clearly the most obvious and active Union sup-
porter. He was the only witness at the representation hearing
before the National Labor Relations Board, and he was the
Union's observer during the election. He also campaigned for
the Union. I find that General Counsel has established both
that Mason engaged in protected activities and that Respondent
knew about those activities.
Patterson and Mason gave widely different accounts of the
circumstances leading to the discharge. Patterson stated that he
discovered Mason was asleep while on duty in his truck and
discharged him for that reason. Mason testified that he was not
asleep, but reading a newsletter. Thus, I must decide which
testimony represents the truth.
Mason further testified that, when Patterson later came to the
shop where Mason was working on his truck and terminated
him, Patterson made the comments which are the subject of
Complaint Paragraph 7(c). Mason testified that Patterson said,
quote, “I'm going to have to fire you for sleeping on the job,”
and Mason said, “I wasn't sleeping on the job.”
According to Mason, Patterson also said-and I quote—“You
Union mother-fuckers think you have some power; I’m going
to show you who has the power; You tried to get me fired, and
I'm going to get you fired.” Mason also quoted Patterson as
299
saying that if Mason hadn’t organized the Union, maybe things
would have been different. Another witness, Robert Dobson,
heard parts of this conversation, but not all of it. Dobson did
not corroborate any of the statements alleged to be violative.
Those statements, if credited, certainly would violate the
Act. Patterson denies making all of the statements alleged, and,
thus, the case turns on credibility.
I’ve observed the demeanors of the witnesses carefully and
also have considered all the circumstances and have decided
not to credit Mason. Some of Mason’s testimony sounded im-
plausible. For example, he said that the Respondent used the
two-way radio system to notify the driver when he had to make
a pick-up and, since he hadn’t been notified of an order, he was
free to park his truck under a shade tree for awhile.
However, the Respondent’s witnesses credibly testified that
the radio system is used for unusual situations, not for routine
dispatching. Moreover, the log which Mason had to fill out
showed his last pick-up shortly after 12:00 noon, with no more
activity that day. Patterson testified that he found Mason sleep-
ing about 3:20 that afternoon.
If I believe Mason, then there is a gap of more than two
hours which goes unexplained. However, there is another rea-
son why I am reluctant to credit Mason's testimony: Clearly,
the Government’s theory involves the most clear-cut kind of
pretext, what the mystery novelist would call a frame-up. Un-
der the
300
Government’s theory, Patterson is claiming he caught Mason in
an infraction which Mason did not commit and which Patterson
knew that Mason did not commit.
At first glance, the timing of events might be consistent with
such a setup theory. Thus, after supposedly discovering Mr.
Mason asleep in his truck, Patterson promptly faxed to higher
management other records which would show Mason in an
unfavorable light.
Additionally, the witness Robert Dobson testified that he
overheard the discharge conversation between Patterson and
Mason, at least some parts of that conversation, and, during this
interview, Patterson told Mason, in effect, that he could not
reverse the decision to terminate Patterson cause instructions
were coming from higher management. That certainly suggests
the possibility that management was out to get rid of Mason
perhaps because of his Union activity.
However, this theory leads to an inconsistency: If manage-
ment was involved in a plan to discharge Mason for an infrac-
tion he did not commit, it would also have instructed Patterson
to be very careful of what he said during the discharge inter-
view. Similarly, if Patterson were calculating enough to fabri-
cate a totally false story about Mason as a pretext for discharg-
ing him, he would also have taken care not to say anything
which would link the discharge with an unlawful motive.
301
By definition, a pretext is a false reason contrived to conceal
a true but unlawful motivation. A person who realizes that he
needs to have a pretext to cover up a wrongful act also knows
enough not to blurt out evidence of his true intent.
A rational person bent on breaking the law would not con-
coct an intricate but plausible story about how Mason was lying
asleep in his truck and then undo his cunning cover-up by mak-
ing 8(a)(1) statements attributed to Patterson; it would make no
more sense than the mystery novel in which the villain plotted a
crime of premeditation and coldness of blood, but then, after
the fact, waited for the police while holding a smoking gun in
his hands.
Obviously, people do not act rationally at all times, and emo-
tion may overcome judgment. However, if I am to believe
Mason's testimony, that means accepting the theory that Patter-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 94
son made up a wholly false story, which is an act of calculating
and cunning and not of emotion.
Moreover, the record does not establish any evidence that
there was a heated contest between the Union and the Em-
ployer, and it similarly does not establish that emotions were
running high. And it further does not establish the necessary
motivation for the link between the adverse action taken against
Mason and Mason’s protected activities.
For all these reasons, Mason’s story does not have the ring of
truth, and I do not credit his testimony. I find that the
302
General Counsel has not made a prima facie case. I find that
the events alleged in Paragraphs 7(c) and 8 did not occur. And
I recommend that these allegations be dismissed.
Paragraph 9 of the complaint alleges that, “On or about June
5, 1996, Respondent issued a warning to its employee Clyde
Fuller.” The warning has been admitted as being issued on
June 9.
Without dispute, the evidence establishes that the forklift
Fuller was driving that day suffered tire damage. In particular,
I credit the testimony of Robert Dobson, a mechanic with nine
years experience, as well as formal training. He impressed me
as a reliable and conscientious witness. He examined the dam-
age caused to the forklift and found that it was extensive.
I find that Fuller drove the forklift even though he knew it
had a flat tire and that this action caused damage to the rim of
the forklift. I find that this damage cost the Company $800.
Additionally, I note that Fuller did not have very much pro-
tected activity and find that the reason for the warning was the
exasperation which Respondent’s management felt at seeing a
forklift abused in that way. It was the same sense of exaspera-
tion that I seemed to sense in Mr. Dobson when he testified as a
mechanic regarding this equipment. In all of these circum-
stances, I recommend that the allegations in Paragraph 9 also be
dismissed.
303
I have been advised that we must leave this hearing room by
2:00 p.m. so that another meeting may be held by Concordia
Parish, which has loaned the Board the use of its facilities here.
And it is already after 2:00 p.m.
Upon receipt of the transcript, I will issue a certification of
bench decision which will include an order, a remedy and a
notice and the photocopy of the pages of the transcript that
involve this oral decision. When the parties are served with
this document, the time for filing an appeal will begin.
I really appreciate your courtesy and professionalism in con-
ducting this hearing, and the hearing is closed.
MR. BARKER: Just on the record, I wanted to show that I re-
turned the affidavit of Keith Mason.
JUDGE LOCKE: Very well.
And the hearing is closed.
Off the record.
(Whereupon, at 2:15 p.m., the hearing was concluded.)