Pillsbury Chemical Co.

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 261 (N.L.R.B. 1995)

261
317 NLRB No. 42
PILLSBURY CHEMICAL CO.
1 In adopting the judge’s finding that Sam Nowlin is a supervisor
within the meaning of Sec. 2(11) of the Act, we note that the judge
found that Nowlin not only possessed and exercised authority to as-
sign work to Charging Party Evanoff but also effectively to rec-
ommend pay increases. Thus, on both occasions that Nowlin partici-
pated in Douglas Evanoff’s annual evaluation, he recommended, and
Evanoff subsequently received, pay increases.
2 The Respondent excepts to the judge’s finding that Evanoff was
constructively discharged. It asserts that the General Counsel has not
met his burden of showing that the change in Evanoff’s working
conditions in retaliation for union activity has rendered those condi-
tions so difficult or unpleasant that it forced him to resign. We dis-
agree with the Respondent’s contention. The General Counsel met
his burden by establishing the demotion and the substantial reduction
in Evanoff’s base pay. See, e.g., Superior Forwarding Co., 282
NLRB 806 (1987) (imposition of a 60-percent increase in fuel costs
so distorted discriminatee’s terms and conditions of employment as
to render them intolerable); Holiday Inn of Santa Maria, 259 NLRB
649 (1981) (quit after a reduction of pay from $4.33 to $3.60/hr.
found to be a constructive discharge). Individual circumstances, such
as Evanoff’s testimony that his cut in pay could force him into fore-
closure of his recent home purchase (of which the Respondent was
aware), are also relevant. See, e.g., American Licorice Co., 299
NLRB 145, 148 (1990) (child care burdens affected discriminatee’s
availability for shift change); St. Joseph’s Hospital, 247 NLRB 869,
873, 880 (1980) (refusal to grant a request for change of hours to
attend college).
3 Alternate Union Steward Holly testified that he asked the Re-
spondent’s executive vice president, H. R. Vahle, whether Nicholes
could work part time. Vahle denied that any alternatives were raised.
Pillsbury Chemical & Oil Company and MSR
Trucking Company, Single Employers and
Douglas Evanoff and Local 299, International
Brotherhood of Teamsters, AFL–CIO. Cases 7–
CA–28730, 7–CA–28836, and 7–CA–28737
April 28, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On September 28, 1990, Administrative Law Judge
Russell M. King issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a response.
On November 6, 1991, the Board remanded the pro-
ceeding to the judge for further consideration regarding
certain 8(a)(3) and (4) allegations of the complaint and
for issuance of a supplemental decision. The Board de-
ferred consideration of the remaining complaint allega-
tions pending the judge’s supplemental decision.
On June 30, 1993, the judge issued the attached sup-
plemental decision. The Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and 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, the supple-
mental decision, and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings,1 and conclusions only to the extent
consistent with this Supplemental Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(1), (3), and (4) of the Act by demoting
employee Douglas Evanoff and Section 8(a)(1) and (3)
by constructively discharging Evanoff2 and laying off
employee Otis Nicholes. In finding that the Nicholes
layoff violated Section 8(a)(3), the judge reasoned that
Nicholes was laid off not because of his own support
of the Union, but to validate the Respondent’s dis-
cipline of Evanoff. That is, the Respondent laid off
Nicholes to lend an ‘‘aura of legitimacy’’ to the
Evanoff demotion. The General Counsel excepts to the
judge’s failure to find that the Respondent’s actions
vis-a-vis Evanoff and Nicholes also violated Section
8(a)(4) on the same basis.
We find merit in the General Counsel’s exception.
The animus directed at Evanoff stemmed from both his
union support and his having furnished affidavits in an
unfair labor practice proceeding that arose in the con-
text of the organizing campaign. In addition, the judge
found that the demotion of Evanoff violated Section
8(a)(4). In these circumstances, we conclude that the
constructive discharge of Evanoff, premised in part on
the demotion, violated Section 8(a)(4).
In addition, because the layoff of Nicholes was part
of the scheme to mask the 8(a)(3) and (4) actions
taken against Evanoff, we conclude that the layoff of
Nicholes violated not only Section 8(a)(3) but Section
8(a)(4) as well. We have modified the Order and no-
tice accordingly.
2. The General Counsel excepts to the judge’s rec-
ommended dismissal of the allegation that the Re-
spondent violated Section 8(a)(1) and (5) by refusing
to bargain collectively with the Union concerning the
Nicholes layoff and Evanoff demotion. The judge
found that the Respondent notified Evanoff and the
two stewards at the Respondent’s facility immediately
after making its decisions. The judge also noted that
other alternatives were discussed, and that the Union
failed to request further bargaining about these matters.
We find merit in the General Counsel’s exception.
The record shows that, after the Respondent decided
that it intended to lay off Nicholes and demote
Evanoff, it went directly to one of the affected em-
ployees, Evanoff, and informed him first. Evanoff then
related that information to the union stewards, one of
whom sought out management officials to confirm
what Evanoff had told him. Although there is conflict-
ing testimony on whether alternatives to these actions
were explored,3 it is undisputed that the Respondent
proposed no alternatives itself and that it had already
informed Evanoff of its decision before any discussion
with the Union had taken place. In these cir-
cumstances, it is clear that the Respondent did not give
notice to the Union of its decision and afford the
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In view of the finding that the Nicholes layoff and the Evanoff
demotion violated Sec. 8(a)(3) and (4), Member Cohen does not pass
on the 8(a)(5) allegations, as any such additional violations would
not substanially affect the remedy.
5 There is no exception to the judge’s finding that, as of May 8,
1989, Local 299 no longer represented the Respondent’s employees
and that Local 283 became the exclusive bargaining representative
for the unit. Accordingly, we shall order the Respondent to bargain
with Local 283.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Union an opportunity to bargain over that decision and
its effects. The Union acquired knowledge of the lay-
off and demotion only after the fact. The Respondent’s
unilateral action therefore violated Section 8(a)(1) and
(5) of the Act. See Plastonics, Inc., 312 NLRB 1045,
1048 (1993).4
ORDER
The Respondent, Pillsbury Chemical & Oil Com-
pany and MSR Trucking Company, Single Employers,
of Detroit, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Laying off its employees to validate, vindicate,
or to provide an aura of legitimacy to the demotion of
other employees because of their union support or ac-
tivities or because they testified in proceedings before
the Board.
(b) Demoting employees and causing them to termi-
nate their employment because of their union sym-
pathies, support, or activities, or because they testified
in proceedings before the Board.
(c) Laying off or demoting employees without af-
fording Local 283, International Brotherhood of Team-
sters, AFL–CIO5 notice and an opportunity to bargain
over these decisions and their effects.
(d) In any like or related manner interfering with,
restraining, 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) Offer Otis Nicholes immediate and full reinstate-
ment to his former janitor job in the maintenance de-
partment which he held before December 9, 1988, or,
if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him
in the manner set forth in the amended remedy section
of the administrative law judge’s supplemental deci-
sion.
(b) Offer Douglas Evanoff immediate and full rein-
statement to his former job in the maintenance depart-
ment which he held prior to December 9, 1988, or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him in
the manner set forth in the amended remedy section of
the administrative law judge’s supplemental decision.
(c) Remove from its files any reference to the un-
lawful layoff of Otis Nicholes, and to the unlawful de-
motion and resignation of Douglas Evanoff, and notify
them in writing that this has been done and that the
layoffs, demotion, and resignation will not be used
against them in any way.
(d) On request bargain with Local 283, International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative for unit employees, concerning the deci-
sion to demote and lay off employees on December 9,
1988, and the effects of that decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its office and plant in Detroit, Michigan,
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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 or-
dered 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
263PILLSBURY CHEMICAL CO.
1 Dates in January are in 1989 unless otherwise noted, and all
other dates are in 1988 unless otherwise noted.
2 The term ‘‘General Counsel,’’ when used, will normally refer to
the attorney in the case acting on behalf of the General Counsel of
the Board through the Regional Director.
3 The complaint alleges, and it is admitted, that both Companies
are affiliated businesses, thus throughout this decision they will be
treated as one business enterprise, designated by the term ‘‘Com-
pany.’’
4 The pertinent parts of the Act (29 U.S.C. § 151 et seq.) read as
follows:
Sec. 8(a) . . . It shall be an unfair labor practice for an
employer—
(1) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 7;
. . . .
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization . . . .
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under [the] Act;
(5) to refuse to bargain collectively with the representative of
employees . . . .
. . . .
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . .
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT lay off our employees in order to
validate, vindicate, or provide an aura of legitimacy to
the unlawful demotion of other employees because of
their union activities or support or because they pro-
vide testimony before the Board.
WE WILL NOT demote our employees, or cause their
departure, because of their union sympathies, support,
or activities, or because they provide testimony before
the Board.
WE WILL NOT lay off or demote employees without
affording Local 283, International Brotherhood of
Teamsters, AFL–CIO notice and an opportunity to bar-
gain over those actions.
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.
WE WILL offer Otis Nicholes immediate and full re-
instatement to his former job and WE WILL make him
whole, with interest, for any wages and benefits lost as
a result of our having laid him off on December 9,
1988.
WE WILL offer Douglas Evanoff immediate and full
reinstatement to his former job and WE WILL make him
whole, with interest, for any wages and benefits he lost
as a result of our having demoted him on December
9, 1988, and unlawfully causing him to resign on or
about January 20, 1989.
WE WILL remove from our files all references to the
layoff of Otis Nicholes and the demotion and resigna-
tion of Douglas Evanoff, and WE WILL notify them in
writing that this has been done and that the layoff, de-
motion, or resignation shall not be used against them
in any way.
WE WILL bargain in good faith with Local 283,
International Brotherhood of Teamsters, AFL–CIO as
the exclusive representative for unit employees, con-
cerning the decision to demote and lay off employees
on December 9, 1988, and the effects of that decision.
PILLSBURY CHEMICAL & OIL COMPANY
AND MSR TRUCKING COMPANY, SINGLE
EMPLOYERS
Michael R. Blum, Esq., for the General Counsel.
A. Read Cone III, Esq. and Eric J. Henning, Esq. (Dean &
Fulkerson, P.C.), of Birmingham, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. These
consolidated cases were heard by me on June 26 and 27,
1989, in Detroit, Michigan. The first (and original) charge in
Case 7–CA–28730 was filed by the individual Charging
Party Douglas Evanoff on December 15, 1988. The charge
in Case 7–CA–28737 was filed by Local 299, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO (the Union) on December 19,
1988, and the charge in Case 7–CA–28836 was filed by the
individual Charging Party Evanoff on January 24, 1989.1
Based on the charges, a consolidated complaint was issued
on May 9, 1989, by the Regional Director for Region 7 of
the National Labor Relations Board (the Board), on behalf of
the Board’s General Counsel.2 The complaint alleges that
Pillsbury Chemical & Oil Company and MSR Trucking
Company (the Company3) unlawfully demoted employee
Douglas Evanoff and unlawfully laid off employee Otis
Nicholes, in violation of Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (the Act). The complaint also
alleges that the demotion and layoff were unilateral on the
part of the Company, and thus violative of Section 8(a)(5)
of the Act. Finally, the complaint alleges the constructive
discharge of employee Douglas Evanoff also in violation of
Section 8(a) (1), (3), and (4) of the Act.4 The Company de-
fends the demotion, layoff, and discharge by alleging that
they were only and solely for economic reasons and not
based on any union or protected activity on the part of the
two employees involved. The Company also alleges that it
notified and discussed the matter with the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel and counsel for the Com-
pany, I make the following
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The facts found are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been
derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404,
408 (1962). Regarding those testifing in contradiction of the findings
herein, their testimony has been discredited either as having been in
conflict with the testimony of credible witnesses or because it was
in and of itself incredible and unworthy of belief. All testimony and
evidence, regardless of whether or not mentioned or alluded to here-
in, has been reviewed and weighed in light of the entire record.
6 At issue in the case is whether or not employee Nowlin was a
supervisor as defined by the Act.
7 The U.S. district court restraining order (or injunction) was dis-
solved February 10, 1989.
FINDINGS OF FACT5
I. JURISDICTION AND THE LABOR ORGANIZATION
The pleadings, admissions, and evidence in the case estab-
lish the following jurisdictional facts. At all times material,
the Company (both Pillsbury and MSR Trucking) has main-
tained its principal office and place of business in the city
of Detroit, Michigan, where it has engaged in the manufac-
ture, sale, and distribution of industrial chemicals, lubricants,
and related products. Regarding these products, MSR Truck-
ing has engaged in the transportation of the same in interstate
commerce. During the year ending August 31, 1988, a rep-
resentative period, Pillsbury’s gross volume of business ex-
ceeded $1 million. During the same period, Pillsbury, in the
course and conduct of its business operations, purchased and
caused to be transported and delivered at its Detroit facility
chemicals, oils, and other goods and materials valued in ex-
cess of $50,000, the goods and materials having been trans-
ported and delivered to the Detroit facility directly from
points located outside the State of Michigan. During the cal-
endar year ending December 31, 1988, MSR Trucking, in the
course and conduct of its business operations within Michi-
gan, derived gross revenues in excess of $50,000 for the
transportation of freight and commodities in interstate com-
merce pursuant to arrangements with and as agent for Pills-
bury. The gross revenues of MSR Trucking were received as
a result of the transporting of products manufactured by
Pillsbury to various States throughout the United States.
Thus, I find, as admitted, that Pillsbury and MSR Trucking,
both Michigan corporations, have been at all times material,
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Also, as admitted, and at all times material, Pillsbury and
MSR Trucking have been affiliated business enterprises with
common officers, ownership, directors, management, and su-
pervision. They have also formulated and administered a
common labor policy affecting employees of their operations,
have shared common premises and facilities, provided serv-
ices for and made sales to each other, have interchanged per-
sonnel with each other, and have held themselves out to the
public as a single integrated business enterprise. Thus, I find
and conclude that Pillsbury and MSR Trucking constitute a
single integrated business enterprise and a single employer
within the meaning of Section 2(5) of the Act.
Also, as alleged and admitted, I find that the Charging
Union has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief History
Sometime in early or mid-1988, the Union commenced an
organizational drive at the Company. The unit involved was
the Company’s production and maintenance employees, to-
gether with its truckdrivers. Employee Evanoff signed a
union authorization card and supported the Union. Evanoff
had worked for the Company for several years as a mainte-
nance employee. Much of this time he had worked with (or
under) employee Samuel M. Nowlin, who was senior to
Evanoff.6 Nowlin became ill about December 7, 1987, and
left the Company on medical leave, returning on December
5, 1988. During this time, Evanoff continued his duties of
maintenance employee, together with employee Otis
Nicholes, who was a janitor. Also during this period of time,
with some periodic exceptions, Evanoff and Nicholes were
the only maintenance employees at the Company. At some
point in the union organizational drive, the Union filed unfair
labor practice charges, and thereafter the Regional Director
issued a complaint as a result of these charges. The Union’s
organizational drive culminated in the filing of petitions for
representation with the Board (Cases 7–RC–18683 and 7–
RC–18700). A Board-conducted election was held August 26
and out of 22 eligible voters, 10 votes were in favor of the
Petitioning Union, 1 against, and 11 of the ballots were chal-
lenged. On September 2, objections to the conduct of the
election were filed by the Company. On September 23, the
Regional Director issued his Report on Determinative Chal-
lenges and Objections to the Election and consolidated this
case with the pending unfair labor practice complaint. By
virtue of certain actions and activities of the Company during
and after the election, a U.S. district court entered a restrain-
ing order on September 28. About October 25, the Company
and the Union settled all of their differences in both the rep-
resentation cases and the unfair labor practice case and pur-
suant to that settlement, on October 28, the Regional Direc-
tor issued his Report and Recommendation on Challenged
Ballots and Objections. Employee Evanoff was a potential
witness in the unfair labor practice case and gave an affidavit
in the district court injunction case. The settlement entered
into by the parties about October 25 was a formal Board set-
tlement, and pursuant thereto the Board issued its Decision
and Certification of Representative on November 29, 1988,
in which it certified the Union as the collective-bargaining
representative for the Company’s employees in the unit de-
scribed earlier.7 On employee Nowlin’s return to work after
his year-long illness, janitor Nicholes was laid off and em-
ployee Evanoff was placed in Nicholes’ job as janitor. The
Company contends that Evanoff’s ‘‘demotion’’ was nec-
essary by virtue of the return of Nowlin, who was consider-
ably senior to Evanoff in time of employment. Evanoff then
commenced to look for other employment and eventually ac-
cepted another position and left the Company. The General
Counsel alleges that employee (janitor) Nicholes was laid off
to facilitate Evanoff’s demotion and ‘‘to give an air of legit-
imacy’’ to Evanoff’s demotion, thus violative of Section
265PILLSBURY CHEMICAL CO.
8 At the commencement of the hearing, the General Counsel
amended the complaint to allege that Samuel M. Nowlin was main-
tenance supervisor and, accordingly, a supervisor as defined by the
Act. The Company amended its answer to deny this allegation. The
status of Nowlin is in issue in the case. Nowlin made several re-
marks to Evanoff that the Company alleges are hearsay and not ad-
missible into evidence. The Company made a timely objection to
these remarks on the record. I deferred a ruling on the Company’s
objection pending the entire testimony and evidence in the case. The
ruling was deferred to be handled in this decision. Later in the case
Nowlin did testify. The alleged hearsay statements will be contained
in the summary of the testimony and evidence in the case and a final
ruling will appear later in this decision.
9 Three such evaluations were admitted into evidence. They were
dated September 10, 1985, August 15, 1986, and September 1, 1987.
Out of 13 individual categories, Evanoff was rated ‘‘good’’ in 3 cat-
egories and ‘‘excellent’’ in 10 categories on the 1985 performance
report. In the 1986 and 1987 performance reports, Evanoff was rated
‘‘excellent’’ in all 13 categories. The bottom of the reports contained
a signature block identified as ‘‘supervisor’s signature,’’ and in that
block, Nowlin’s signature appeared on all three reports. Also on all
three reports, under the block ‘‘manager’s signature,’’ the signature
of Plant Manager Bushor appears. Evanoff, himself, also signed all
three reports.
10 Prior to this time Otis Nicholes had been a janitor also, and
Evanoff testified that at the same time he was demoted, Nicholes
was laid off (on December 9).
8(a)(1) and (3) of the Act. The General Counsel also alleges
that Evanoff’s own demotion also violated Section 8(a)(1),
(3), and (4) of the Act, and that his subsequent departure
from the Company for another job was a constructive dis-
charge, in violation of Section 8(a)(1), (3), and (4) of the
Act. Finally, the General Counsel alleges that the Company
violated Section 8(a)(1) and (5) of the Act by failing to first
bargain with the Union regarding the layoff of Nicholes and
the demotion of Evanoff. The Company defends on the
grounds that the layoff of Nicholes and the demotion of
Evanoff as a result of business necessity, and that the Union
was adequately notified of the decision and did in fact com-
ment on the same. The Company argues that Evanoff was
not actually demoted, but exercised his right to ‘‘bump’’
Nicholes, and that after this took place, Evanoff voluntarily
quit the Company.
B. The Testimony and Evidence
Former employee Douglas Evanoff worked for the Com-
pany for 5 years. He was hired on January 6, 1984, and left
the Company on January 20, 1989. Evanoff testified that
when he was hired in 1984, he was first interviewed by Plant
Manager Bud Bushor and by Sam Nowlin, who identified
himself as the maintenance supervisor.8 Evanoff indicated
that he was hired as a maintenance man and that his imme-
diate supervisor was Sam Nowlin. According to Evanoff, he
reported to Nowlin up until Nowlin’s leave of absence by
virtue of illness, which commenced on December 7, 1987.
Evanoff testified that up until then, he worked with Nowlin
who gave him job assignments. Evanoff indicated that he pe-
riodically purchased needed parts after receiving permission
to do so from either Plant Manager Bushor or Nowlin.
Evanoff testified that his initial pay was $5.50 an hour, but
that he did receive raises after Nowlin would recommend
merit increases for him, sometimes orally or sometimes in
writing. Evanoff added that Nowlin would periodically per-
form work evaluations on him.9
Evanoff testified that prior to Nowlin’s sick leave (Decem-
ber 1987) that Nowlin and Alan Ferry constituted the mainte-
nance department, although Ferry was a janitor. Evanoff re-
lated that he and Nowlin would fix machines, do pipefitting
and welding work, install boilers, and perform cement work.
In contrast, Evanoff indicated that the janitor would do such
things as sweep, empty trash, mop, and scrape floors.
Evanoff added that prior to Nowlin’s sick leave, Mike
Manucuso also worked as a janitor, and that in December
1987, when Nowlin went on sick leave, the Company hired
Joe Walowich to assist Evanoff as a maintenance helper.
Evanoff testified that after Nowlin went on sick leave Con-
sulting Engineer Jim Acker would occasionally help him
when installing equipment. Nowlin returned to work on De-
cember 5 and, according to Evanoff, he was slow and very
weak, and on occasion Evanoff would finally finish jobs that
Nowlin had started. Evanoff testified that on December 9,
Vice President Harris R. Vahle called him into his office and
told him he was demoted to the job of janitor, as the Com-
pany no longer needed two men in the maintenance depart-
ment. Evanoff indicated that he left Vahle’s office and told
Acting Union Steward David Holly what had happened,
whereupon he and Holly returned to Vahle’s office. Accord-
ing to Evanoff, Holly then asked Vahle if he had notified the
Union before demoting Evanoff, to which Vahle replied that
he had not, but further indicated that if Union Business
Agent Don Smith could find a better way of resolving the
situation, Smith should give him a call. Evanoff testified that
he then told Vahle that he ‘‘was going down to the NLRB
to give an affidavit.’’ Evanoff related that Vahle then said
that ‘‘he would not do that if I was him.’’ Evanoff then testi-
fied that he, Holly, and Otis Nicholes went down to the
union hall and told Business Agent Don Smith about the de-
motion.10 According to Evanoff, after he was demoted and
took over Nicholes’ janitorial job, Nowlin continued to per-
form maintenance duties but had problems with operating a
newly installed boiler and did not have a license to operate
this boiler as Evanoff did. Evanoff added that there were
some other maintenance duties that Nowlin failed to do, and
which were ultimately performed by outside contractors, add-
ing that other maintenance work involved at least two indi-
viduals. Evanoff related that during his employment with the
Company he received both annual raises and merit increases
in pay.
Regarding the Union, Evanoff identified his union author-
ization card that he signed on June 14, 1988. Evanoff testi-
fied that during a telephone conversation on June 20, Plant
Manager Bushor stated that he had union problems. Evanoff
further testified that later that same day he went to pick up
his paycheck (which included an unexpected raise), and at
that time Bushor asked him if he knew anything about the
Union, to which he replied, untruthfully, that he did not. The
election occurred on August 6 and Evanoff testified that he
did vote in the election, but that 15 minutes prior thereto, he
had a conversation with Company President Robert Rauth,
who asked him, ‘‘[I]f I knew what I was doing before I went
in there . . . [to vote].’’ Evanoff testified that later, and
sometime in September, Rauth asked him, ‘‘What happened
to you, Doug?’’ Evanoff indicated that he replied to Rauth
that I voted the only ‘‘No’’ vote, to which Rauth replied that
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Rauth did not testify in the case.
12 Nowlin’s remarks to Evanoff here were included in the Compa-
ny’s hearsay objection, handled later in this decision. It was stipu-
lated that Evanoff gave an affidavit to the Board on June 23, 1988.
Evanoff testified that the affidavit was given in a prior unfair labor
practice case, in which he had been subpoenaed as a witness on be-
half of the Board. Evanoff added that the Company knew this be-
cause he had told Bushor ahout these facts.
13 The letter of recommendation was notarized, signed by H. R.
Vahle as executive vice president, and was admitted into evidence.
The letter is complimentary and, at the end, it states that Evanoff
had approximately 16,000 hours of on-the-job experience under Mas-
ter Machine Repair Supervisor Sam Nowlin. In this letter, the last
name of Nowlin was spelled ‘‘Nowland.’’ Throughout the transcript,
however, the spelling appears as Nowlin, and Nowlin himself actu-
ally signed his name as ‘‘Nowlin.’’ Nowlin himself signed several
letters of recommendation on behalf of Evanoff and in one such let-
ter, his title appears as ‘‘maintenance supervisor.’’ This letter had
been typed by Evanoff’s wife.
14 Evanoff’s termination report was admitted into evidence. On this
report, he was rated in all respects as a ‘‘good’’ employee, and the
report indicates the Company would make a recommendation ‘‘with-
out reservation.’’ The termination report also indicates ‘‘voluntary
quit accept better job . . . .’’ Under additional comments Evanoff
wrote the language ‘‘could not make it after pay cut to make bill
meet.’’
15 This agreement was dated October 25, 1988, and was admitted
into evidence. The agreement provides that both the Company and
the Union would withdraw their challenges filed in the representa-
tion cases, for the Company to recognize the Union, and for the
Union to refrain from seeking contempt charges against the Com-
pany in the pending U.S. district court injunction case. Pursuant to
this agreement the Board certified the Union on November 29.
he did not because the sole ‘‘no vote’’ was that of Bruce
Neighbor. According to Evanoff, he then stated to Rauth that
Rauth did not know that for sure, as the election was a se-
cret-ballot election, to which Rauth replied that he did not
believe him.11 Evanoff testified that sometime later (after his
demotion to the position of janitor) he asked Vahle why the
Company had demoted him, to which Vahle responded that
‘‘he didn’t like liars.’’ Evanoff indicated he then told Vahle
he could not make it on a janitor’s pay, to which Vahle
made no response. Evanoff testified that several weeks after
he had been demoted he had a telephone conversation with
Nowlin and, according to Evanoff, Nowlin remarked that he
could not believe the Company had done that to him because
Vahle had told Nowlin that he had done such a good job
when Nowlin was in the hospital. According to Evanoff, dur-
ing this conversation Nowlin also told him that he learned
that Bushor and Vahle had seen affidavits that Evanoff had
given to the Board in a prior case and, according to Evanof,
Nowlin also related to him that Vahle and Bushor had told
Nowlin that Evanoff was demoted because he also voted for
the Union.12 Evanoff testified that when he was demoted he
received a cut in pay from $9.75 an hour to $6.44 an hour,
thus changing his weekly take-home pay by about $100. Ac-
cording to Evanoff, in January he took 5 days off to look
for a better job. Evanoff related that he had purchased a
house and that he was in fear of losing that house by virtue
of his cut in pay. Evanoff testified that the Company knew
the purpose of his leave, knew that he was looking for a new
job and, on January 9, signed a letter of recommendation on
behalf of Evanoff.13 Evanoff testified that he did find another
job and on January 20 he quit the Company.14 Evanoff testi-
fied that during his years of employment with the Company
he had never received any disciplinary action and had never
been written up, although he was ‘‘scolded’’ by his ‘‘boss’’
two or three times for not doing a job the way that Nowlin
told him to do it. Regarding his new job, after January 20,
Evanoff testified that he was making more than he did as a
janitor, but less than he was making as a maintenance em-
ployee with the Company, on a less desirable shift.
During cross-examination Evanoff indicated that prior to
coming to work for the Company, he had worked for an
automobile dealership and he conceded that he learned about
maintenance from Sam Nowlin, whom he also conceded was
a skilled maintenance worker. Evanoff indicated that during
Nowlin’s absence, he was helped on occasion by Joe
Walowich, who also performed janitorial duties. According
to Evanoff, Walowich had worked for the Company approxi-
mately 6 or 7 months and left the Company to return to
school before Nowlin returned to work. Evanoff conceded
that after Walowich left (shortly after the election in August),
he was not replaced by another employee. Evanoff added
that after Walowich left, he continued to perform all of the
maintenance work himself but claimed he had trouble keep-
ing up with the available work, further stating that it was
more work than one man could handle. Evanoff conceded
that prior to Nowlin’s return, that he and janitor Otis
Nicholes were the only two employees in the Company’s
maintenance department, and that Nowlin’s seniority was far
greater than his own, adding that Otis Nicholes had less se-
niority than either him or Nowlin. Also, in cross-examina-
tion, Evanoff indicated that Vahle told him that as far as the
Company was concerned, Nowlin could do the job, although,
according to Evanoff, there was some concern on the part of
the Company regarding Nowlin’s age (70 years). Evanoff
also related that Vahle remarked that if Evanoff stayed on,
if there was any maintenance work that needed to be done
and that Nowlin could not do, he would offer that work to
Evanoff at the maintenance department’s regular rate of pay.
According to Evanoff, he refused this offer after ‘‘talking to
the union.’’ Evanoff testified that when he left the Company
on January 20 he had already secured a job at Mobile, where
he went to work 2 days after he quit the Company. Evanoff
further related that when he left the Company, he told people
that he was going to make more money at Mobile than he
did working with the Company. Evanoff claimed that he was
told this by the people at Mobile before he went to work
there. Evanoff also conceded on cross-examination that other
employees had given affidavits to the Board, as he had done
in June. Evanoff added that not only was he summoned as
a witness on behalf of the Board, but a number of his fellow
workers at the Company were also summoned.
Donald Smith testified as a business representative for the
Union. Smith handled the union organizing drive that re-
sulted in the election of August 6 and ultimate certification
by the Board of the Union as the bargaining representative
for the production and maintenance employees and truck-
drivers at the Company. Smith testified that the certification
of the Union actually resulted from an agreement that he
helped negotiate and that disposed of all the parties’ dif-
ferences that had arisen both before and after the election of
August 26.15 Smith testified that the Union and the Company
commenced contract negotiations shortly after the agreement
267PILLSBURY CHEMICAL CO.
16 The record indicates that this charge was filed on December l9
(Case 7–CA–28737).
17 Smith testified that as of May 8, 1989, the Union no longer rep-
resented the Company’s employees, and at that time, apparently an-
other local (Local 283) became the bargaining agent for the employ-
ees in the unit involved. The record does not divulge the reason for
this fact or how it came about. Smith did volunteer, however, that
it was a jurisdictional matter between the two locals.
was signed, and it was stipulated that the first negotiating
session was on November 10. According to Smith, nothing
was stated during the first negotiation session regarding per-
sonnel changes, future layoffs, or demotions. Smith testified
that the first time he heard about the layoff and demotion re-
garding Nicholes and Evanoff was on December 9 when he
received a telephone call from Union Steward Jim Batronie.
Smith indicated that approximately an half hour after the
telephone conversation, employees Evanoff and Nicholes,
and Alternate Job Steward David Holly arrived at the union
hall, and they also discussed the matter, after which Smith
indicated that he called Company Vice President H. R.
Vahle. According to Smith, Vahle stated that he would have
to talk to the Company’s attorney before he answered any of
his questions. Smith testified that about an hour later, he re-
ceived a phone call from Attorney Read Cone, and that dur-
ing this conversation he expressed Smith’s concern about the
layoff and demotion, making it clear that the Union had not
had the opportunity to negotiate the matter. Smith testified
that he ultimately filed a charge regarding the matter, and
that he had no further contact with the Company regarding
the charge, the layoff, or the demotion.16 In cross-examina-
tion, Smith conceded that under the proposed union-contract
provision regarding seniority, that a senior employee who re-
turned from an extended illness would have the right to dis-
place a junior employee under normal circumstances. Smith
testified that the next negotiating session occurred in January
and conceded that the Company attempted to schedule a
meeting the week following December 9 but that the Union
was unavailable during that week for such a meeting. Smith
further indicated that he was scheduled to take a 2-week va-
cation at the end of December and indicated that the next
bargaining session (the second session) occurred on January
26. Smith was asked whether or not the Union proposed any
different treatment for Evanoff at the January 26 bargaining
session, to which he replied, ‘‘I don’t recall . . . I don’t be-
lieve we did.’’ Smith added, however, that the Union in-
tended to maintain Evanoff in his ‘‘current status’’ until such
time that they could ‘‘sit down and negotiate something dif-
ferent.’’ Smith further related that he could not recall wheth-
er or not he mentioned Evanoff’s bumping of Nicholes or
whether the Union ever complained to the Company about
Evanoff’s rate of pay as a janitor.17 Smith conceded that he
did not ask for any meetings with the Company during the
month of December and that the January 26 date for the next
negotiating session was an agreed-on date.
David Holly testified as a present employee of the Com-
pany, having been hired on June 20, 1986. Holly worked in
the Company’s shipping and receiving department and held
the union position of alternate job steward. Holly knew em-
ployees Evanoff and Nowlin and, in his testimony, Holly
characterized Nowlin as ‘‘maintenance supervisor.’’ Holly
was also familiar with Nowlin’s leave of absence for illness
from December 1987 to December 1988. Holly testified that
prior to Nowlin’s leave of absence, Nowlin and Evanoff
worked in maintenance, and that at the time there was one
other maintenance employee who was a janitor (Otis
Nicholes). According to Holly, after Nowlin went on sick
leave, Evanoff and Joe Walowich worked in the maintenance
department. According to Holly, Walowich was hired in De-
cember or January 1988 as a ‘‘maintenance helper.’’ Holly
added that janitor Otis Nicholes did remain in that position
during the same period. Holly testified that in February 1988,
Walowich and Nicholes were laid off leaving only Evanoff
in the maintenance department. Holly testified that he, after
the layoffs, spent approximately 4 hours a day as a mainte-
nance helper, adding that this lasted from 4 to 6 weeks. Ac-
cording to Holly, Walowich and Nicholes were subsequently
recalled to work, and again the maintenance department con-
sisted of Nicholes as janitor, together with Evanoff and
Walowich as maintenance employees. Holly testified that
after Nowlin returned to work in Decemher 1988 he was
weak, had lost a lot of weight, and was not as fast as he was
prior to his illness. According to Holly, in his opinion,
Nowlin was unable to perform all of the maintenance duties
that Evanoff had been performing during his sick leave ab-
sence. Holly testified that he was also present at the Novem-
ber 10 bargaining session, during which no personnel
changes were announced or discussed. Holly indicated that
he first learned of the layoff of Nicholes and demotion of
Evanoff on December 9, when Evanoff explained the same
to him. According to Holly, he then went to Nicholes and
they both went to Vahle’s office, whereupon Vahle explained
that due to the lack of sales and the return of Nowlin to
work, he was forced to lay off Nicholes and demote Evanoff.
Holly testified that he then asked Vahle if Nicholes could
work part time, to which Vahle replied that he could not.
Holly then related that he asked Vahle if he had contacted
Union Representative Smith about the layoffs, to which
Vahle responded that he had not, adding that if Smith had
any suggestions, to call Vahle. Holly testified that Vahle
later that day told him that he had no choice in the matter
because Nowlin had returned, and that the Company could
not discriminate against Nowlin because of his age, adding
that he had passed all of the Company’s physicals. Accord-
ing to Holly, sometime during this conversation Evanoff ap-
peared and threatened to call the city of Detroit because he
was the only one that had a boiler’s license and added that
he was calling the Union and was going to the NLRB. Holly
related that he then brought up the ‘‘court injunction’’ after
which he, Evanoff, and Nicholes went to the union hall and
talked with Union Representative Smith. Holly testified that
after Nicholes was laid off and Evanoff was demoted Nowlin
was unable to perform all of the maintenance duties, and that
some of these duties were performed by outside contractors
and by Jim Acker and Bill Merritt. According to Holly,
Acker was the Company’s consulting engineer and Merritt
was a company employee whose job was that of a
‘‘compounder.’’ Holly testified that he had also given an af-
fidavit to the Board and that thereafter Plant Manager Bushor
told him that the Company had ‘‘a whole thing of our affida-
vits upstairs.’’ Holly additionally testified that Production Su-
pervisor Dan Dobek ‘‘threatened to sue everyone of us who
gave testimony to the N.L.R.B.’’ In cross-examination Holly
conceded that December was a slow month for the Company
and that the Company asked employees to take vacation time
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 As of the date of the hearing no contract had been reached by
the Union and the Company.
19 The Company’s employee handbook contains a provision to that
effect that each employee’s supervisor was to perform an annual
‘‘Performance Analysis & Review’’ for their employees wherein
each employee is rated. The handbook also indicates that such re-
view and rating will be taken into consideration for wage and pay
adjustments.
during this period in order to avoid layoffs. Holly further in-
dicated that this situation was not discussed at the bargaining
table with the Union, and to the best of his knowledge this
situation was never brought to the attention of Union Rep-
resentative Smith.18 Holly also conceded that he made no al-
ternative suggestions for the treatment of Evanoff (regarding
the demotion) and that to the best of his knowledge no such
suggestions were made on behalf of the Union.
Samuel M. Nowlin has worked for the Company for 11
years and testified that throughout his employment his job
was ‘‘factory maintenance.’’ Nowlin indicated that in mid-
December 1987 he contracted meningitis and was out of
work for 1 year. Nowlin testified that on his return to work
in December 1988 he brought letters from three different
doctors indicating that he was eligible to go back to work
but that the Company additionally sent him to their own doc-
tor for evaluation. Nowlin related that the work he engaged
in on his return included climbing ladders, lifting heavy ma-
terials, welding work, machinery repair, electrical work,
plumbing, and pipefitting. Nowlin testified that when em-
ployee Evanoff was employed with the Company, he was his
‘‘helper.’’ Nowlin indicated that he would assign work to
Evanoff and did have the authority to permit Evanoff to
leave his shift early ‘‘to chase parts.’’ Nowlin conceded that
he did not have the authority to hire, fire, or discipline em-
ployees but did have the authority to recommend discipline.
According to Nowlin, when Evanoff was hired he knew very
little about maintenance and that Nowlin taught Evanoff ev-
erything. Nowlin further conceded that he has never laid off
or recalled employees, promoted employees, or granted pay
increases to employees, but related that he did recommend
Evanoff for pay increases. Nowlin also testified that he wore
a uniform and was an hourly employee and further that he
never attended management meetings. Nowlin testified that
since his return to work he has been able to keep up with
the maintenance work that needed to be done adding, how-
ever, that in maintenance work, ‘‘You never catch up.’’
Nowlin indicated that he did interview Evanoff when he ap-
plied for employment at the Company and conceded that he
thereafter recommended that the Company hire Evanoff.
Nowlin identified a letter of recommendation on behalf of
Evanoff, indicating that Evanoff’s wife typed the document
and inserted the language ‘‘maintenance supervisor,’’ but
Nowlin added that he did supervise Evanoff in that he told
Evanoff what he was going to do and how they were going
to do it. Nowlin also conceded that he did fill out evaluation
forms for Evanoff and signed these forms as ‘‘supervisor,’’
because Evanoff worked as his helper, and to that extent, he
was supervising Evanoff.19 Nowlin testified that for the pur-
poses of Evanoff’s annual evaluation, he was ‘‘his immediate
supervisor.’’ Nowlin indicated that he reported directly to
Plant Manager Bushor, as did the heads of other departments.
Nowlin related that in assigning work to Evanoff, he ex-
pected him to complete that work, and Nowlin conceded that
the refusal of an employee to follow an assignment was con-
sidered a serious offense in the employee handbook. Nowlin
testified that he had absolutely nothing to do with Evanoff’s
demotion and did not know why it occurred, conceding that
some of his work did fall behind ‘‘because of one man doing
it instead of two.’’
Harris R. Vahle testified as the Company’s executive vice
president for corporate operations. He had worked for the
Company for about 11 years and his job at the Company’s
Detroit facility was to oversee production, shipping, and
plant operations, including maintenance. Vahle testified that
he did not consider Nowlin as having supervisory authority
in the sense that he was a ‘‘foreman’’ or a ‘‘member of man-
agement.’’ Vahle added that Nowlin ‘‘would have only au-
thority by saying that one supervises a specific function or
job, much in the same manner that an inspector would super-
vise the result of a function.’’ Vahle testified that regarding
salary increases, Plant Manager Bushor would make a rec-
ommendation and would present the same to Vahle, and that
he in turn would present it to President Rauth (the owner of
the Company). Regarding Nowlin’s return to work, Vahle
testified that the return was governed by the release by
Nowlin’s doctors, and a certification by the Company’s own
doctors, that Nowlin was able to go back to work. Vahle
added that after all of the medical approvals were received
that he gave Nowlin a week of actually working to make
sure he could do his job as well as he had performed prior
to his illness. According to Vahle, during that week Nowlin
‘‘performed admirably.’’ Vahle testified that on concluding
that Nowlin could perform his job duties the Company start-
ed to make the moves that were necessary for Nowlin’s per-
manent return. According to Vahle, at that time, the Com-
pany did not have enough work in the maintenance depart-
ment for two men and Evanoff was told that he could exer-
cise his seniority rights and bump down within the depart-
ment or, in effect, he could replace employee Nicholes per-
forming janitorial work. Vahle added that Evanoff did exer-
cise his bumping rights and thus Nicholes was laid off.
Vahle testified that, at one point, Evanoff was given the op-
portunity to be voluntarily laid off to allow Nicholes to con-
tinue working but that Evanoff did not wish to do so. Vahle
testified that he notified Evanoff of the change on December
9 and, regarding the Union, he notified Holly and Union
Steward Jim Batronie, who were both involved in the demo-
tion discussion. Vahle indicated that Nicholes was laid off
because he was younger and less senior than either Evanoff
or Nowlin. Vahle testified that from a business point of view,
the Company had no choice but to allow Evanoff to bump
Nicholes, other than to ‘‘create a job to keep . . . [Nicholes]
. . . because . . . our current rate of requirements would not
allow that to take place.’’ Vahle indicated that he attended
the collective-bargaining sessions with the Union, and that
the Union’s proposed contract included a seniority clause
similar to that followed by the Company. Vahle added that
it was his understanding that seniority considerations would
guide the employment of people in that plant, that is,
‘‘whether they were there or they were not there, by reason
of seniority.’’ Vahle indicated that in his opinion the Union’s
approach was that strict seniority would be controlling in all
cases. Vahle testified that after his decision on December 9
he talked by phone to Union Business Agent Don Smith and,
although Smith did not like the fact that any employee was
269PILLSBURY CHEMICAL CO.
20 The testimony at issue is found on pp. 21, 60–62, and 71–72
of the transcript.
21 The General Counsel concedes, in his brief, that Nicholes was
not an active union supporter. Nicholes did not testify in the case.
laid off, according to Vahle, Smith made no other rec-
ommendation, adding that the Company was not disposed to
‘‘creating a job.’’ Vahle described the Company’s Detroit fa-
cility during December as being in a ‘‘lower state of activ-
ity.’’ Vahle added that orders had fallen off and were not at
their regular level, indicating that December was not usually
a busy month for the Company. Vahle testified that when
Evanoff replaced Nicholes his rate of pay was 44-cent-per-
hour more than Nicholes had received because Evanoff had
more years of service. Vahle testified that when there were
new installations in the plant that required new wiring and
plumbing, outside contractors were always called on to per-
form such work, because they were familiar with the city
codes and were licensed. According to Vahle, a good exam-
ple of this was the recent installation of a new boiler, but
Vahle added that on occasions, the Company’s own plant
personnel would aid the outside contractor. Vahle testified
that on January 20 Evanoff asked for a 2-week leave of ab-
sence to try out another job. Vahle related that he denied this
request because he did not think it would be fair to Nicholes,
especially if Evanoff did not like the new job and returned
to the Company. According to Vahle, Evanoff then volun-
tarily quit the Company. Vahle indicated that the Company
attempted to help Evanoff by writing letters of recommenda-
tion and that Evanoff had indicated that he had several job
offers. Vahle testified that in June the Company had a ‘‘sud-
den squeeze in allocation of raw materials’’ that ended in the
layoff of five employees. According to Vahle, these layoffs
resulted in ‘‘court proceedings’’ and ultimately those em-
ployees that had been laid off returned to work. Regarding
the decline of work, Vahle testified that the Company peaked
at some $14 million worth of volume in 1984 and that there-
after the Company went through a decline from that amount
down to the $10 million level that the Company was pres-
ently at. According to Vahle, with this decline of production
volume, there came also a decline in the maintenance re-
quirements of the Company. Last, Vahle conceded that
Evanoff was ‘‘a good man’’ and ‘‘[a]lways was.’’
C. Analysis of the Law and Evidence and
Initial Conclusions
1. The supervisory status of Samuel Nowlin
Section 2(11) of the Act defines the term supervisor as fol-
lows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
The Company in this case seeks to exclude certain portions
of Nowlin’s testimony on the grounds that it was hearsay.
The General Counsel seeks the admittance and usage of such
statements alleging that Nowlin was a supervisor within the
meaning of the Act. The testimony in controversy is that of
employee Evanoff, wherein he indicates that Nowlin told him
he was ‘‘maintenance supervisor.’’ Additionally, the Com-
pany seeks the exclusion of certain remarks made by Nowlin
to Evanoff during a telephone conversation several weeks
after Evanoff was demoted. Last, the Company seeks to ex-
clude Nowlin’s testimony regarding the signing of a letter of
recommendation on behalf of Evanoff.20 At the hearing, I al-
lowed the testimony but provided that the Company could
reargue the matter in its posthearing brief or in a motion. In
this connection, the Company has filed a motion to strike the
testimony and the General Counsel has filed an opposition to
the motion to strike. The evidence reflects that Nowlin had
no supervisory authority. He could not hire or fire any em-
ployee, much less Evanoff, nor could he promote or dis-
cipline any employee. Although Nowlin did evaluate Evanoff
for several years, the record does not show that the evalua-
tions constituted effective recommendations for promotions,
wage increases, or discipline. Although Nowlin did sign his
name as supervisor, his actual duties and responsibilities did
not support the title. Evanoff was merely an assistant or
‘‘helper,’’ assigned to Nowlin in the maintenance depart-
ment. Further, the evidence reflects that Nowlin was an hour-
ly employee who wore a normal employee uniform, and also
that he did not attend management meetings. Accordingly,
the Company’s motion to strike is granted and those objec-
tionable portions of Nowlin’s testimony are struck from the
record.
2. The layoff of janitor Nicholes and the demotion
of Evanoff
The complaint alleges that about December 9 the Com-
pany laid off janitor Otis Nicholes and demoted Evanoff to
the position formerly held by Nicholes because of their union
activity or sympathies, and also because they gave testimony
to the Board in the form of affidavits and they were subpoe-
naed to testify in a Board case, all in violation of Section
8(a)(4), (3), and (1) of the Act. There is no such evidence
in the record to support these allegations regarding Nicholes.
The theory, however, of the General Counsel regarding
Nicholes centers around Board law that the discharge of one
employee to validate or vindicate, or to provide an ‘‘aura of
legitimacy’’ to the termination of another employee, is viola-
tive of the Act.21
When discriminatory transfers or discharges are alleged,
the initial burden rests with the General Counsel who must,
by a preponderance of the evidence, make a prima facie
showing sufficient to support the inference that the union and
protected activity were a motivating factor in the transfer or
discharge. Once this is established, the burden then shifts to
the employer to demonstrate that the same action would have
taken place even in the absence of the union or protected
conduct. Wright Line, 251 NLRB l083 (1980); Wright Line
tests upheld in NLRB v. Transportation Management Corp.,
103 U.S. 2469 (1983). I find in this case that the General
Counsel failed to make a prima facie showing sufficient to
support the inference that union and protected activity were
the motivating factor in Nicholes’ layoff and Evanoff’s
tranfer. The litigation and related activity resulting from the
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 In my opinion, the record is unclear about whether Smith meant
that Evanoff should remain as Nowlin’s helper or as a maintenance
department employee (janitor). In any event, Evanoff was offered
and accepted Nicholes’ job.
Union’s initial organizing drive had occurred and ended in
a settlement a considerable amount of time prior to the layoff
and demotion. Nowlin did not return to work from his sick
leave until approximately a month after the first November
negotiating session. Additionally, there is unrebutted evi-
dence in the record that the Company’s overall business had
declined over the past several years and that December 1988
was a particularly slow period of time for the Company. Fi-
nally, Evanoff alone had performed the Company’s mainte-
nance duties for several months prior to the return of
Nowlin. It is further notable that at least five other employ-
ees had given affidavits in the injunction case in the U.S.
district court and the record contains no evidence that reflects
that Evanoff was more active in support of the Union than
any other employee. Evanoff chose, on his own, to initially
remain with the Company and bump Nicholes, and this pro-
cedure was sanctioned by the Company’s rules and by the
proposed contract provisions of the Union. I find that the
Company’s motive for the layoff of Nicholes and the so-
called demotion of Evanoff was motivated completely by
business and economic necessity, and was in no way influ-
enced by the earlier union and related activity of either
Nicholes or Evanoff. I thus find and conclude that the Com-
pany did not violate Section 8(a)(3), (4), and (1) of the Act
in laying off Nicholes and in placing Evanoff in the job for-
merly held by Nicholes. Having so found, I further find that
the General Counsel’s theory regarding the layoff of
Nicholes (to validate or vindicate, or provide an ‘‘aura of le-
gitimacy’’ to Evanoff’s transfer) to be without merit.
3. The alleged constructive discharge of Evanoff
The complaint further alleges that the Company construc-
tively discharged Evanoff or ‘‘caused’’ his termination. In
order to establish a constructive discharge two elements must
be proven by a preponderance of the evidence. First, it must
be shown that the burden imposed on the employee must
cause, and be intended to cause, a change in his working
conditions so difficult or unpleasant as to force him to re-
sign. Second, it must be shown that those burdens were im-
posed because of the employees’ union activities. Crystal
Princeton Refinery Co., 222 NLRB 1068 (1976). In this case
Evanoff resigned or quit the Company for what he alleged
to be economic reasons. Evanoff was reemployed imme-
diately in the job of his choosing. The record is unclear
about what if any financial losses were ultimately incurred
by Evanoff. No matter why Evanoff left the Company, I find
that any burdens that resulted in his ‘‘demotion’’ were not
imposed by the Company because of any union activity or
support on the part of Evanoff. I find that the Company did
not constructively discharge Evanoff as alleged in the com-
plaint.
4. The alleged refusal to bargain with the Union
The Union had been certified in November and the first
bargaining session had occurred soon thereafter (in Novem-
ber). There were no further bargaining sessions scheduled
and the next session was ultimately held in late January. The
decision to lay off Nicholes and offer the job to Evanoff was
made on December 9, 4 days after the return of Nowlin (and
after his trial period had ended). The Company Executive
Vice President Vahle almost immediately notified Evanoff
and the two union stewards at the Company’s facility. At
least one of the union stewards soon thereafter notified
Union Business Agent Smith. Union Steward Holly and
Evanoff himself then met with Smith at the union hall, after
which Smith contacted the Company and requested only that
Evanoff be kept in his job until the Union had time to look
into the matter. 22 Evanoff decided to initially take Nicholes’
job and ultimately thereafter decided to leave the Company
for a job at Mobile, departing January 20, prior to the next
(and second) bargaining session. No conference or negotiat-
ing session had been requested by the Union regarding the
layoff and demotion prior to Evanoff’s departure from the
Company. Additionally, several alternatives had been dis-
cussed by Vahle with Evanoff and at least one of the two
union stewards. Under these facts, and based on the entire
record, I cannot find that the Company violated Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Union. Smith, himself, apparently was unable to take any
further action regarding the situation because of his own hol-
iday plans, and further because of Evanoff’s abrupt and vol-
untary departure.
On these findings of fact and initial conclusions and on the
entire record, I make the following
CONCLUSIONS OF LAW
1. The Respondent Employer is an emplover engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. In laying off employee Otis Nicholes on December 9,
1988, and placing employee Douglas Evanoff in the position
formerly held by employee Otis Nicholes, the Respondent
Employer did not violate Section 8(a)(4), (3), and (1) of the
Act.
4. On January 20, 1989, employee Douglas Evanoff volun-
tarily left his employment with the Respondent Employer,
who did not cause the departure and, thus, who did not con-
structively discharge Douglas Evanoff.
5. In the actions described in paragraphs 3 and 4, above,
the Respondent Employer did not refuse to bargain collec-
tively with the Charging Union in violation of Section
8(a)(5) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]
Michael R. Blum, Esq., for the General Counsel.
A. Read Cone III, Esq. and Eric J. Henning, Esq. (Dean and
Fulkerson, P.C.), of Birmingham, Michigan, for the Re-
spondent Employer.
271PILLSBURY CHEMICAL CO.
1 The name of the Charging Union has been changed to reflect the
new official name of the International Union.
2 The National Labor Relations Act, 29 U.S.C. § 151 et seq.
3 Hereafter, dates in January are in 1989, unless otherwise noted
and all other dates are in 1988 unless otherwise noted.
4 The Respondent, Pillsbury and MSR Trucking, constitute a single
integrated business enterprise, and thus a single employer within the
meaning of Sec. 2(5) of the Act. In addition to the Detroit, Michigan
facility, the Respondent also maintained a similar facility in South
Carolina, which is not the subject of these consolidated cases. The
Respondent is engaged in the manufacture, sale, and distribution of
industrial chemicals, lubricants, and related products.
5 These facts, among others, were found by a U.S. district court
in a 10(j) proceeding in September. This proceeding is mentioned
below.
6 This finding was based on the Respondent’s maintenance of an
unlawful no-solicitation and no-distribution rule, as set forth in the
Respondent’s employee handbook. The finding of antiunion animus
was made notwithstanding the fact that the Respondent claimed it
had never enforced the rule, and that it had been modified in July.
7 The order issued on September 28 in the 10(j) injunction pro-
ceeding was dissolved on February 10.
8 The affidavit given by Evanoff was apparently also used in sup-
port of the Board’s 10(j) injunction case. Evanoff had signed a union
authorization card, but there is a controversy here as to whether the
Respondent knew that Evanoff supported the Union. This con-
troversy will be resolved later in this decision. As to the union senti-
ments of janitor Nicholes, such are unknown, as Nicholes did not
testify in the case. In his posthearing brief, the General Counsel con-
cedes that Nicholes was ‘‘not particularly active’’ regarding the
Union. Whether Nicholes supported the Union is another matter, the
resolution of which is unnecessary to the final outcome of the case.
9 The Respondent denies that Evanoff was demoted, and claims
that he actually exercised his ‘‘bumping’’ rights against Nicholes,
which then forced the layoff of Nicholes.
SUPPLEMENTAL DECISION
FINDINGS OF FACT
1. Brief history
RUSSELL M. KING JR., Administrative Law Judge. The ini-
tial decision in these consolidated cases1 (the case) was
issued by me on September 28, 1990. Thereafter, the General
Counsel filed exceptions and a supporting brief, and the Re-
spondent filed a response. By an order issued November 6,
1991, the Board remanded the case back to me for further
consideration regarding certain alleged violations of Section
8(a)(3) and (4) of the Act,2 and the issuance of a supple-
mental decision. The remand directed that I consider or make
explicit credibility resolutions regarding certain matters. I had
originally found that the General Counsel did not make a
prima facie case of discrimination, found no other violations
of the Act, and recommended dismissal of the amended con-
solidated complaint (the complaint).
In the spring of 1988,3 the Union commenced an organiza-
tional drive of the Respondent’s production and maintenance
employees at its Detroit, Michigan facility.4 In mid-June the
Union filed a representation petition with the Board request-
ing an election (Cases 7–RC–18683 and 7–RC–18700). On
June 17, the Respondent was notified of the Union’s petition.
In retaliation, on June 20 the Respondent laid off five em-
ployees and transferred a portion of its Detroit operations to
its South Carolina facility.5 As a result of these and other ac-
tions by the Respondent, certain unfair labor practice charges
were then filed with the Board. In connection with these
charges, employee Douglas Evanoff, among others, gave an
affidavit to the Board on June 23. On August 26, a Board-
conducted election was held at the Detroit facility. Twenty-
two employees voted in the election, 11 of which were chal-
lenged. Of the 11 remaining votes, 10 were for the Union
and 1 was against. On September 2 the Respondent filed ob-
jections to the conduct of election, and on September 23 the
Regional Director rendered his report on objections. On Sep-
tember 26, and pursuant to a petition for injunctive relief
under Section 10(j) of the Act, a hearing was held in the
U.S. District Court for the Eastern District of Michigan. The
court issued its written findings, conclusions, and order on
September 28, wherein the Court, inter alia, found antiunion
animus on the part of the Respondent,6 and ordered the Re-
spondent to reinstate the five laid-off employees, to restore
the work ‘‘illegally’’ removed to its South Carolina plant,
and to rescind its ‘‘illegal’’ no-solicitation/no-distribution
rule. On or about October 25, the parties settled the represen-
tation case (including the objections and pending unfair labor
practice charges), and on November 29 the Board certified
the Union.
Employee Samuel M. Nowlin was the senior employee in
the Respondent’s maintenance department. He had worked
for the Respondent for 11 years, and at the time of the hear-
ing, his age was 70. Employee Douglas Evanoff was hired
to work in the maintenance department in January 1984. For
most of the time relevant, the Respondent’s maintenance de-
partment consisted of Nowlin, Evanoff, and one Otis
Nicholes, who was a janitor. Nowlin became ill on or about
December 7, 1987, with meningitis, and was on medical
leave until December 5 (1988), when he returned condi-
tionally, pending final medical approval. During Nowlin’s
absence, Evanoff received periodic help from other employ-
ees, but for the last 2 months of Nowlin’s absence, Evanoff
was the only mechanic in the maintenance department.
Nowlin’s final medical approval from the Respondent came
on December 9, when janitor Otis Nicholes was laid off and
replaced by Evanoff, at a lower salary. On January 20,
Evanoff quit the Respondent for another job, claiming that
he could not get by on the reduced janitorial salary.7 In this
case, it is alleged that janitor Nicholes was discriminatorily
laid off in violation of Section 8(a)(3) of the Act, to add, as
the General Counsel argues, an ‘‘aura of legitimacy’’ to the
demotion of Evanoff. The demotion of Evanoff is alleged to
be a violation of Section 8(a)(3) and (4) of the Act, in that
it was because Evanoff supported the Union, and gave testi-
mony to the Board ‘‘in the form of affidavits and/or [was]
subpoenaed to testify in Board Cases Nos. 7–CA–28195 and
7–CA–28223.’’8 It is also alleged that in Evanoff’s leaving
the Respondent, he was constructively discharged by the Re-
spondent by his demotion to the position of janitor
(Nicholes’ former position), and the resulting reduction in
pay, in violation of Section 8(a)(3) and (1) of the Act.9 Fi-
nally, the complaint alleges that the layoff of Nicholes and
demotion of Evanoff were accomplished unilaterally by the
Respondent and without prior notice to the Union, thus pro-
viding the Union with an opportunity to bargain over the lay-
off and demotion, in violation of Section 8(a)(5) of the
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 This allegation is not the subject of the remand.
11 By his own testimony, Nowlin did have the authority to rec-
ommend discipline, but there is no evidence that he ever actually
made such a recommendation.
12 I basically credit the testimony of both in this case, although
there are some minor conflicts.
13 It was conceded by all in this case that Evanoff was a good em-
ployee. His annual evaluations were ‘‘excellent.’’
14 As indicated earlier, there is no testimony or evidence in the
case that Nowlin ever made such recommendations, or that the same
would have been followed if so made.
15 ‘‘To chase parts’’ apparently meant to go out and purchase parts
on the local economy, which were not kept in stock or were missing
from stock. The cost of these parts could be no more than $50.
16 These pay increases were recommended by Nowlin in his annual
evaluations of Evanoff on August 15, 1986 (50 cents per hour), and
on September 1, 1987 ($1 per hour).
17 The Respondent’s employee handbook contains a provision to
the effect that each employee’s ‘‘supervisor’’ was to perform an an-
nual ‘‘Performance Analysis & Review’’ for their employees where-
in each employee is rated. The handbook also indicates that such re-
views and ratings would be taken into consideration for wage and
pay adjustments.
18 As with Nowlin and Evanoff, I also credit the testimony of em-
ployee David Holly in this case. The testimony of Holly and Evanoff
conflicted with the testimony of Nowlin and Executive Vice Presi-
dent Vahle in respect to Nowlin’s working ability after he returned
from his year long leave of absence due to illness. Nowlin inferred
in his testimony that on his return he was up to par, and Vahle testi-
fied that on Nowlin’s return, and during his first week back (a trial
week) Nowlin ‘‘performed admirably.’’ Holly testified that on
Nowlin’s return, he was weak, had lost a lot of weight, and was not
as fast as he was prior to his illness. Evanoff testified that on
Nowlin’s return, he was slow and very weak, and on occasion he
(Evanoff) would finally finish jobs that Nowlin had started. Al-
though Nowlin may well have performed what Vahle considered to
be ‘‘admirably,’’ as Holly and Evanoff indicated I find that Nowlin
was in fact weak and slower on his return, and that Nowlin’s infer-
ence to the contrary involved, to some extent, his pride. Nowlin did
concede that after he lost Evanoff, his work did fall behind, which
also somewhat conflicts with Vahle’s testimony that during that pe-
riod, only one person doing maintenance work was required because
of a drop in business. Vahle’s contention that there was a drop in
business in December is supported by other testimony in the case.
I find, however, that there was no resulting drop of work in the
maintenance department as Vahle would infer from his testimony,
and to this extent, I discredit Vahle’s testimony.
Act.10 The Respondent denies any wrongdoing in the layoff
of Nicholes, the demotion and termination of Evanoff, and
alleges that on Nowlin’s return from his illness, the layoff
and demotion were accomplished solely for economic rea-
sons.
2. The supervisory status of Nowlin and his excluded
remarks to Evanoff
Section 2(11) of the Act defines the term supervisor as fol-
lows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgment.
I had earlier found that Nowlin was not a statutory super-
visor. As far as Evanoff was concerned, I was wrong.
Nowlin was not an ordinary or traditional supervisor, and
during his testimony he appeared in a soiled maintenance
uniform, with hands of one who had worked with oily ma-
chines and such for years. He did not have the authority to
hire, fire, or discipline employees,11 he always wore a uni-
form, was an hourly employee, and never attended manage-
ment meetings. Nowlin was also not consulted when Evanoff
was demoted to the position of janitor in the maintenance de-
partment. Nowlin, himself, was somewhat uncertain of his
position regarding Evanoff, testifying that ‘‘I supervised
Doug, my helper, on what we was going to do.’’
In addition to the above, and regarding the status of
Nowlin and the relationship between Nowlin and Evanoff,12
the record (including the testimony and exhibits) reflects the
following:
1. Plant Manager Bushor asked Nowlin to interview
Evanoff for employment, which he did, and effectively
recommended that Evanoff be hired.
2. Nowlin performed Evanoff’s annual evaluations as
his ‘‘supervisor,’’ which resulted in pay increases.13
3. On January 9, 1989, the Respondent’s executive
vice president for corporate operations, Harris Vahle,
wrote a letter of recommendation on behalf of Evanoff
indicating that he had 16,000 hours of job experience
‘‘under a master machine repair supervisor, Sam
Nowland.’’
4. On January 16, 1989, Nowlin himself wrote a let-
ter of recommendation regarding Evanoff and signed
the same as ‘‘Maintenance Supervisor.’’
5. Nowlin himself testified that he did have the au-
thority to recommend discipline.14
6. Nowlin testified that he would assign work to
Evanoff as his ‘‘helper,’’ and did have the authority to
permit Evanoff to leave his shift early ‘‘to chase
parts.’’15
7. Nowlin testified that he did successfully rec-
ommend pay increases for Evanoff.16
8. Nowlin testified that for the purposes of Evanoff’s
annual evaluation, that he was ‘‘his immediate super-
visor.’’
9. Nowlin testified that he reported directly to Plant
Manager Bushor, as did the heads of other departments.
10. Nowlin testified that in assigning work to
Evanoff, he expected him to complete that work, indi-
cating that the refusal of an employee to follow an as-
signment was considered a serious offense in the em-
ployee handbook.17
11. Employee David Holly had worked for the Re-
spondent since June 20, 1986, and in his testimony he
characterized Nowlin as ‘‘maintenance supervisor.’’18
Under Board law, one may be a supervisor without meet-
ing all the criteria of Section 2(11) of the Act, that is, the
enumerated functions of a supervisor are listed ‘‘disjunc-
tively’’ in Section 2(11) of the Act, but which requires that
273PILLSBURY CHEMICAL CO.
19 Regarding ‘‘affidavits,’’ Evanoff had testified regarding a tele-
phone conversation he had had with Nowlin several weeks after he
had been demoted. This was the conversation wherein Evanoff indi-
cated that Nowlin told him that Vahle and Bushor had stated to him
that Evanoff was demoted because he voted for the Union. In that
conversation, Evanoff indicated that Nowlin also mentioned affida-
vits, informing Evanoff that Bushor and Vahle had seen affidavits
that Evanoff had given to the Board. Neither Vahle nor Nowlin was
asked about this remark during their testimony. Evanoff testified that
he himself told Plant Manager Bushor that he gave an affidavit to
the Board, and it was stipulated in the case that this affidavit was
given to the Board on June 23. The affidavit was given in support
of charges of unfair labor practices which had been filed during the
union election campaign. Employee David Holly had also given an
affidavit to the Board and testified that at some point, Plant Manager
Bushor had told him that the Respondent had ‘‘a whole thing of our
affidavits upstairs.’’
20 In his testimony, employee Holly did concede that December
was a slow month for the Respondent, who asked employees to take
vacation time during this period in order to avoid layoffs. Holly,
however, was not in the maintenance department, but in the shipping
and receiving department, which would be directly and quickly af-
fected as a result of a slowdown in sales.
a supervisor must have authority to use independent judg-
ment in performing such supervisory function(s) in the inter-
est of management. From the creditable evidence and testi-
mony in this case, I now find that in the case of Evanoff,
Nowlin had the authority to assign work to him and control
his work through the use of his own independent judgment,
and that Nowlin also had the authority to effectively rec-
ommend, by using his own independent judgment, such as-
signment of work, together with pay increases and the pos-
sible discipline of Evanoff. Nowlin’s control over Evanoff
was not only derived from his superior experience in mainte-
nance, but in the use of his independent judgment to direct
Evanoff in his daily work assignments, notwithstanding the
fact that Nowlin, himself, often participated in accomplishing
Evanoff’s work assignments. As indicated, I now find that
Nowlin was a statutory supervisor over Evanoff in accord-
ance with Section 2(11) of the Act.
Evanoff testified that several weeks after his December 9
demotion he had a telephone conversation with Nowlin,
wherein Nowlin remarked that he had learned that Bushor
and Vahle had seen affidavits that he had given to the Board
and that Vahle and Bushor had told Nowlin that he was de-
moted because he also voted for the Union. The Respondent
objected to this testimony on the grounds of hearsay, con-
tending that Nowlin was not a supervisor under the Act. I
delayed ruling on the motion and chose to handle the same
in my initial decision, wherein I found that Nowlin was not
a supervisor, thus granting the motion and excluding the tes-
timony. Now having found that Nowlin is a statutory super-
visor, I withdraw that ruling and admit the testimony of
Evanoff regarding what Nowlin told him over the phone after
his demotion. During the hearing, Nowlin and Vahle curi-
ously were not asked about the phone conversation or
Nowlin’s remarks therein, and of course Plant Manager
Bushor did not testify in the case. Thus, this credited testi-
mony of Evanoff regarding Nowlin’s remarks during the
phone conversation is also unrefuted in the record.
3. Evanoff’s unrefuted testimony of Respondent’s bias
against him
The election occurred on August 6 and Evanoff testified
that he voted in the election, and that 15 minutes prior there-
to he had a conversation with the Respondent’s president,
Robert Rauth, who asked him, ‘‘[I]f I knew what I was
doing before I went in there . . . [to vote].’’ According to
Evanoff, after the election and some time in September,
Rauth asked him, ‘‘What happened to you Doug?’’ Evanoff
testified that he replied to Rauth that he voted the only
‘‘No’’ vote, to which Rauth replied that he did not because
the sole ‘‘no’’ vote was that of one Bruce Neighbor (who
did not testify). Evanoff then stated to Rauth that Rauth did
not know that for sure, as the election was a secret-ballot
election, and Rauth replied to Evanoff that he did not believe
him.
Evanoff was demoted December 9, and testified that some
time after the demotion he asked Executive Vice President
Harris Vahle why the Respondent had demoted him, to
which Vahle responded, ‘‘[H]e didn’t like liars.’’ Evanoff
testified that on the day of his demotion, he told Vahle that
he ‘‘was going down to the NLRB to give an affidavit’’ re-
garding his demotion, to which Vahle replied that ‘‘he would
not do that if I was him.’’ In his testimony, employee David
Holly confirmed that Evanoff mentioned he was going to the
NLRB. Although Vahle testified in the case, he was never
asked about any of these remarks to Evanoff.19 I find that
the Respondent knew of Evanoff’s union support, and con-
sidered that he had lied when he told Rauth that his was the
only ‘‘no’’ vote at the election. I find that the Respondent
wanted to retaliate against Evanoff because of his union sup-
port, but could not disguise the fact that Evanoff was a good
employee. Thus, the Respondent devised a plan to in effect
punish Evanoff for what the Respondent considered to be his
misdeeds, and that punishment was his demotion to the posi-
tion of janitor, with the resulting displacement and layoff of
janitor Nicholes. Part of the plan was the use of the Re-
spondent’s declining December sales to falsely maintain that
there was also not enough work in the maintenance depart-
ment for two men, thus extending bumping rights to Evanoff
over janitor Nicholes.20 The Respondent also reasoned that
this plan would afford a good cover as far as the Union was
concerned, as during the ongoing contractual negotiations,
the Union had stressed a strict seniority system where layoffs
were concerned. In describing the Respondent’s slowdown in
December, Vahle, in his testimony, used somewhat mystical
terms such as ‘‘flow-volume’’ and ‘‘current rate of require-
ments.’’
Concluding analysis
After a complete rereading of the record (including the tes-
timony and evidence), and after carefully considering the
points made and the language contained in the Board’s re-
mand here, I now find and conclude that the Board’s layoff
of janitor Otis Nicholes and the demotion of maintenance
employee Evanoff were violative of Section 8(a)(3) and (1)
of the Act, and further, in the case of Evanoff, also violative
of Section 8(a)(4) of the Act. From the findings of the
United States district court in the Board’s 10(j) proceeding,
together with the employee handbook, the unfair labor prac-
tices committed during the union organizational campaign,
and the unrefuted antiunion remarks made by the Respond-
ent’s management (including Rauth, Bushor, Vahle, and
Dobek), I find that the Respondent strongly opposed any
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 The Respondent’s handbook referred to by the U.S. district
court, under ‘‘Employee Relations,’’ recites that ‘‘Pillsbury’s man-
agement is convinced that you prefer to deal directly with manage-
ment rather than through a union.’’
22 It should also be noted that the testimony of Holly reveals that
after Evanoff was demoted, Nowlin was aided by the help of outside
contractors, Consulting Engineer Jim Acker, and employee
(compounder) Bill Meritt, who worked on maintenance with Nowlin
on an occasional and part-time basis.
23 Evanoff had asked for a leave of absence to try out the job, but
this request was denied, contrary to the past practice of the Respond-
ent.
24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983).
union organization or representation and outwardly displayed
strong antiunion animus.21 Constant reference was made to
employee affidavits given to the Board and to the fact that
Respondent had them all. The Respondent zeroed in on em-
ployee Evanoff because, contrary to the knowledge of the
Respondent, Evanoff lied when he maintained that his vote
was the only ‘‘no’’ vote against the Union in the election on
August 26. As indicated earlier, the Respondent had a par-
ticular problem with disciplining Evanoff for his union sup-
port, because Evanoff otherwise was a competent employee.
Thus, the Respondent devised a plan or scheme whereby
they could get back at Evanoff by laying off janitor Nichols
and demoting Evanoff to his janitorial position. This was
done under the guise that the December slowdown in busi-
ness resulted in the reduction of maintenance work, which
the Respondent maintained that Nowlin could handle alone.22
Janitor Nichols’ layoff was occasioned not by his union sup-
port, but I find it was accomplished to validate or vindicate,
or to provide an aura of legitimacy to the demotion of
Evanoff, under the guise of affording him ‘‘bumping’’ rights.
Under Board law, such a layoff (or discharge) is also a viola-
tion of Section 8(a)(3) and (1) of the Act, and I find such
was the case here. I also find that Evanoff’s demotion caused
him to search for and obtain what he thought was a higher-
paying job and quit the Respondent on January 20.23 Thus,
I now find that the General Counsel presented a prima facie
case sufficient to support the inference that Evanoff’s union
support, including his Board affidavit, was a motivating fac-
tor in his demotion, ultimately causing his leaving the Re-
spondent. I further find and conclude that the Respondent
failed to demonstrate that the demotion of Evanoff would
have taken place notwithstanding his union support, as re-
quired in the Board’s decision in Wright Line.24
On the foregoing findings of fact, and on the entire record,
I now find and make the following
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Pillsbury Chemical & Oil Company
and MSR Trucking Company, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Charging Union, Local 299, International Brother-
hood of Teamsters, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. In laying off employee Otis Nichols on December 9,
1988, and the placing of employee Douglas Evanoff in the
position formerly held by employee Nichols, the Respondent
violated Section 8(a)(3) and (1) of the Act.
4. In the actions described in paragraph 3, above, and re-
garding Douglas Evanoff, the Respondent violated Section
8(a)(4) and (1) of the Act.
5. On January 20, 1989, the Respondent constructively dis-
charged employee Douglas Evanoff in violation of Section
8(a)(3) and (1) of the Act.
6. In the unlawful and discriminatory actions above de-
scribed regarding employees Otis Nichols and Douglas
Evanoff, the Respondent did not refuse to bargain collec-
tively with the Charging Union in violation of Section
8(a)(5) of the Act.
THE AMENDED REMEDY
Having now found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(3)
and (1) and Section 8(a)(4) and (1) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent unlawfully laid off its
employee Otis Nichols, and unlawfully demoted employee
Douglas Evanoff, and thus unlawfully causing his departure
from his employment with the Respondent, I shall rec-
ommend that the Respondent be ordered to offer Otis Nich-
ols immediate and full reinstatement to his position as a jani-
tor in the Respondent’s maintenance department, and to also
offer Douglas Evanoff immediate and full reinstatement to
his former position in the Respondent’s maintenance depart-
ment before he was demoted or, if these positions no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges. I shall further
recommend that the Respondent be ordered to make Otis
Nichols and Douglas Evanoff whole for any loss of earnings
they may have suffered as a result of the discrimination
against them, and that the Respondent remove from its
records any reference to the layoff of Otis Nichols on De-
cember 9, 1988, or to the demotion of Douglas Evanoff on
December 9, 1988, and to his departure on or about January
20, 1989, and notify them in writing that the Respondent’s
unlawful conduct will not be used as a basis for further per-
sonnel action. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 189 (1950), with interest as
described in New Horizons for the Retarded, 293 NLRB
1173 (1987).
[Recommended Order omitted from publication.]