Richardson Bros. Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 534 (N.L.R.B. 1993)

534
312 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Richardson Brothers South, a Division of Richard-
son Brothers Company and Furniture Workers
Division, I.U.E., Local 282, AFL–CIO. Cases
26–CA–14655, 26–CA–14846, 26–CA–15107,
and 26–RC–7387
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 30, 1992, Administrative Law Judge
Robert T. Wallace issued the attached decision and er-
rata dated January 14, 1993, which has been incor-
porated into the judge’s decision. The Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
We agree with the judge’s conclusion that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing to give union activist Rawls an opportunity to
return to work. In so doing we note that although find-
ing that Rawls had indeed quit his employment on the
night of the election, the judge concluded that when
Rawls called to get his job back the Respondent would
have overlooked his emotionally inspired resignation,
as it had in the past with other employees, absent his
activity on behalf of the Union. In agreeing with the
judge, we do not rely on the judge’s alternative theory
that the Respondent may have exercised unwarranted
haste in filling Rawls’ position. Instead, we rely on the
judge’s finding that the Respondent had not in fact re-
placed Rawls by the time he called on Monday morn-
ing to ask for his job back. In this regard, the judge
effectively rejected as pretextual the Respondent’s con-
tention that an applicant for Rawls’ job happened to be
on the premises Monday morning, was hired before
Rawls’ telephone call, and yet was then told to leave
and report for work the next day. Thus, particularly in
light of the judge’s rejection of the Respondent’s stated
explanation for refusing to rehire Rawls when he
called on Monday, the finding that the Respondent’s
true motive was an unlawful one is warranted. See
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966).
Additionally, we note that the judge’s analysis is
fully consistent with Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1966), approved
in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). In this regard, the General Counsel
carried his burden of proof in putting forth a prima
facie case of unlawful motivation by establishing, inter
alia: (1) Rawls was a known union activist; (2) the Re-
spondent’s union animus based, inter alia, on numer-
ous other violations of the Act, including threats of
plant closure and a threatened refusal to bargain and
other violations of Section 8(a)(1), (3), and (4); (3) the
Respondent’s discriminatory treatment of Rawls in
comparison to other employees’ emotionally inspired
resignations in the past; and (4) the Respondent’s lack
of a plausible lawful motive for failing to allow Rawls
to return to work. (See Heritage Manor Convalescent
Center, 269 NLRB 408, 413 (1984), where in deter-
mining whether the General Counsel met his burden of
establishing a prima facie case of unlawful motivation,
the Board considered, inter alia, whether the Respond-
ent’s explanation was truthful.) In light of the judge’s
further rejection of the Respondent’s proffered reason
for its action, the Respondent clearly failed to carry its
burden of showing that it would have taken the same
action with respect to Rawls absent his union activity.
In this regard, we note that the judge was warranted
in discrediting the testimony of Plant Superintendent
Koenig regarding the hiring of Tony Burt as Rawls’
replacement, given the inconsistency of the documen-
tary evidence with Koenig’s testimony and the failure
of the Respondent to call as witnesses either Burt or
anyone else who could explain the discrepancies in the
documents. Therefore, the inference of unlawful mo-
tive stands. See, e.g., Bardaville Electric, 309 NLRB
337 fn. 3 (1992).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Richardson Brothers South,
a Division of Richardson Brothers Company, Winona,
Mississippi, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Margaret Brakebusch, Esq., for the General Counsel.
Kevin J. Kinney, Esq. (Krukowski & Costello, S.C.), of Mil-
waukee, Wisconsin, for the Respondent Company.
Ida Leachman, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Winona and Grenada, Mississippi, on
March 24–27 and April 14, 1992. The original charges in
Cases 26–CA–14655 and 26–CA–14846 were filed on Au-
535RICHARDSON BROS. CO.
1 All dates are in 1991 unless otherwise indicated.
2 Another employee, Robert Rawls, claims he saw Koenig peeping
around a corner of the motel while bending down with a pad and
pencil in hand and Parrish standing over him grinning. The em-
ployee who assertedly called his attention to the scene, Curtis Blake,
did not testify.
3 The credibility of the Respondent’s witnesses was not enhanced
by disparities and improbabilities in testimony on this matter. Koenig
states that he heard numerous ‘‘rumblings’’ of union activity 2 or
3 days prior to June 25, including a ‘‘rumor’’ there was to be a
union meeting, and that he shared his information with Gillis. How-
ever, he denies having had prior knowledge of the time and place
of the meeting; and he claims not to have advised Udouj of rumored
union activity until the morning of June 26 when he went with Gillis
to Udouj’s office and reported his ‘‘accidental’’ presence at the
motel. Gillis claims he did not learn of the June 25 meeting until
‘‘around’’ July 1. For his part, Udouj states that he discussed the
meeting at a gathering of supervisors in Koenig’s office on June 26.
He does not mention any report of intrusion being made by Koenig
and claims that ‘‘unfortunately’’ the supervisors were unable to tell
him how many employees attended. He promptly called the owners
Continued
gust 21 and December 19, 1991,1 respectively; and the com-
plaints issued thereon, together with factual issues presented
in election Case 26–RC–7387, were the subject of a consoli-
dated complaint issued on January 24, 1992.
Subsequent to trial, the Union on June 4, 1992, expressed
a desire to proceed to another election at the earliest possible
time and, to eliminate any bar thereto, moved to withdraw
its: (1) objections and challenges to the election held on Au-
gust 16, (2) request for issuance of a bargaining order, and
(3) charges of unlawful unilateral actions by the Company.
In my Order dated June 26, 1992, I granted the unopposed
motion, dismissed paragraphs 30 through 39 and paragraph
41 of the consolidated complaint, and authorized an election
notwithstanding a remaining alleged discharge in violation of
Section 8(a)(3) as well as numerous alleged independent vio-
lations of Section 8(a)(1) of the National Labor Relations
Act. The Order elicited no objections.
Pursuant to a new charge filed on June 17, 1992, an addi-
tional complaint issued in Case 26–CA–15107 on July 27,
1992. Therein, the Respondent is alleged to have discharged
an employee in violation of Section 8(a)(3) and (4) and to
have issued warnings to seven others in violation of Section
8(a)(3). By order dated August 10, I granted a motion of the
General Counsel for reopening and consolidation. Trial of the
new issues was held on September 22–23, 1992, at Winona.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs and
supplemental briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
The Respondent, a corporation, produces furniture at its
facility in Winona, Mississippi, where it annually purchases
and receives materials valued in excess of $50,000 directly
from points outside the State of Mississippi. The Company
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent’s original plant is in Sheboygan Falls,
Wisconsin; and another local of the Union represents em-
ployees there, having won that right after a hotly contested
campaign extending over 3 years. On June 1, it began oper-
ations in Winona, having purchased facilities from a local
concern, Whitaker Furniture Company. The Union promptly
began a campaign to organize the Winona plant and that ef-
fort culminated in an election on August 16 which the Union
lost by a close margin. At all pertinent times, Richard Udouj
was in overall charge of operations at Winona as president
of that division. Under him, in turn, were Plant Manager
Marion Gillis and Plant Superintendent Joseph Koenig. As of
August 16, approximately 51 hourly workers were employed
there.
III. CONSOLIDATED COMPLAINT
Paragraphs 5 and 15, Surveillance. The Union scheduled
its first organizational meeting for June 25 at a local motel
shortly after the 3:30 p.m. plant closing time. Earlier that
day, Koenig saw leadman Jerome Lindley in the front office
area and asked whether he knew of the meeting. When
Lindley said ‘‘No,’’ Koenig volunteered that he and leadman
Timothy Parrish ‘‘were thinking about going out there and
see who all is there.’’
At about 4 p.m. Koenig, with Parrish driving, rode into the
motel parking area in a white company-owned pickup truck.
They were seen by employee William Ford who was stand-
ing on the sidewalk outside the meeting room smoking and
talking with another employee, R. L. Flowers. He observed
them cruising through the parking lot and they appeared to
be looking at tag numbers on parked cars. Employee Tony
Richardson also was outside. On seeing Koenig and Parrish,
he immediately retreated inside to avoid being recognized.2
On the following day, Koenig visited Lindley at his work-
place and told him that he and Parrish had indeed gone to
the site of the union meeting; and, in response to Lindley’s
question: ‘‘Were there many people there?’’ he replied:
‘‘There was quite a few.’’ Also on that day in the super-
visors’ breakroom and in the presence of Gillis and Koenig,
Parrish talked about the meeting to hourly employee Jerry
Woods and told him he knew who was there.
Parrish did not testify. For his part, Koenig concedes to
being in the motel area at the time in question but claims
his presence was accidental. He explains that he and Parrish
were on their way to a ‘‘beer joint’’ a few miles down the
road from the motel, that Parrish suddenly veered into the
motel area on seeing employees there, and that Koenig im-
mediately realized that this was the place where the rumored
meeting was being held. He states that he yelled at Parrish
telling him to back up and get the hell out of there, that they
were there no more than 30 seconds, and that he was so
‘‘ticked’’ by Parrish’s blunder that he went directly home
without going to the beer joint. He denies making the re-
marks attributed to him by Lindley.
I credit Lindley and Ford. They continue to be employed
by the Respondent and testified at some risk to themselves;
and they gave their accounts with apparent candor.3 Accord-
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in Sheboygan Falls and advised them of the union activity, and set
up a meeting with them in Memphis on July 10 to counter that de-
velopment.
4 In March, while the plant was still being operated by the former
owner, Gillis recommended Rawls for a 50-cent increase. Rawls was
then given a 25-cent raise and promised the remainder at a later (in-
definite) time.
5 Leadman Lindley testified that immediately after Udouj’s ‘‘no-
raises’’ speech on June 10, Koenig invited him into Gillis’ office
and showed him the same schedule of proposed increases referred
to by witness Woods. Lindley goes on to say that sometime after
the campaign began Koenig told him that the schedule was ‘‘frozen
and nobody gets nothing until this is over with.’’ There is no credi-
ble evidence that the Respondent adopted the schedule before the
campaign began or later promised to implement it. Lindley’s account
appears contrived and I decline to credit it. Indeed, it is not even
mentioned in the General Counsel’s argument relative to par. 12 of
the complaint.
ingly, I find that Koenig and Parrish went to the motel area
to determine how many employees attended the meeting and
also to convey to attendees that management was aware of
their presence. Such conduct tends to inhibit employees in
supporting unionization and thereby constitutes unlawful sur-
veillance, as alleged in paragraph 7 of the complaint. See
Tartan Marine Co., 247 NLRB 646 (1980).
Further, Parrish’s comment to Woods on the day after the
meeting was intimidating in that it conveyed an impression
of surveillance; and since Parrish was a leadman and known
to have accompanied Koenig to the motel, employees reason-
ably could view him as an agent of management, and this
regardless of whether he was a statutory supervisor. I find
the incident to be a separate violation, as alleged in para-
graph 15 of the complaint.
Paragraph 8, Interrogation, Promise of Benefits. Accord-
ing to employee Robert Rawls, the former owner of the plant
(Whitaker President Robert Thompson) appeared at Rawls’
work station on June 26 and asked ‘‘what is going on here?’’
When Rawls inquired as to what he meant, Thompson re-
plied: ‘‘What is this union talk out here?’’ Then, to avoid
plant noises, Thompson suggested that he and Rawls go into
the supervisors’ office. There, Thompson again inquired:
‘‘Well, what is this I hear about a union?’’ Rawls explained
that the employees were trying to organize to get better
wages and benefits. Thompson responded by asking: ‘‘Well,
haven’t I treated you fair? Why didn’t you come and talk to
me?’’ When Rawls explained that the employees were frus-
trated, Thompson asked if there was anything he could do
to stop unionization. When Rawls seemed dubious, Thomp-
son inquired as to what should be done ‘‘to get this thing
turned around?’’ Without waiting for an answer, he then
asked if Rawls was willing to talk to Manager Gillis. When
Rawls hesitated, Thompson phoned Gillis and said: ‘‘Marion,
I’m going to bring him up.’’ When they arrived at Gillis’ of-
fice, Thompson departed. There is no allegation that the en-
suing conversation between Gillis and Rawls was unlawful.
Rawls’ account is not contradicted since Thompson did
not testify. I credit Rawls and conclude that the conversation
involved unlawful interrogation, as alleged in paragraph 8(a)
of the complaint. Through its surveillance on June 25, I infer
that the Respondent was aware that Rawls had attended the
union meeting. I also infer from Thompson’s inquiry to
Gillis: ‘‘Marion, I’m going to bring him up? [emphasis
added],’’ that Gillis commissioned Thompson to enlist Rawls
in a counterunion campaign. In these circumstances, Thomp-
son’s questions and accompanying invocation of Gillis were
inherently coercive and unlawful as alleged in paragraph
8(a). There is no evidence that the conversation also involved
promises of increased wages and benefits and, accordingly,
paragraph 8(b) will be dismissed.
Paragraphs 9 and 10, Promises. Paragraph 9 alleges that
Gillis from early July to just after the election on August 16
promised an employee wage increases in return for rejecting
the Union. The allegation derives from Rawls’ statement that
Gillis came by his work station ‘‘basically everyday’’ to
offer him raises if he would ‘‘go anti-union.’’ The statement
is too lacking in specifics for a finding to be made thereon.
A similar conclusion applies to Rawls’ claim that Gillis at
an unspecified time offered him an hourly rate increase of
50 cents. Gillis denies having offered Rawls any increases
during the campaign.4 Paragraph 9 will be dismissed.
Rawls also claims that President Udouj often came to his
work station trying to change his mind about the Union and
that on July 9 he whispered into his ear: ‘‘There’s a super-
visor’s job coming open . . . put in for it and you’ll get it.’’
Also he asserts: ‘‘I think, at one point, you know, he offered
me a 25-cent raise, 75, it goes up.’’ Here, too, I see no rea-
son for crediting Rawls’ testimony over Udouj’s denial and,
accordingly, paragraph 10 will be dismissed.
Paragraphs 11 and 12, Promises and Threats. Gillis is al-
leged in early July to have promised an employee a wage in-
crease if unionization was rejected and to have threatened an
employee with delay in wage increases if the Union was
voted in. The only testimony in this regard was provided by
hourly employee Woods. He states that after President Udouj
told the assembled employees on June 10 there would be no
raises until at least August or September, he went to Gillis’
office and complained. He claims Gillis, after assuring him
that there had been plans to raise wages and showing him
a schedule of increases, told him that the Union’s petition for
an election tied their hands and stopped everything. For his
part, Gillis admits showing Woods a schedule of increases on
June 10 or 11 but only as something he and Koenig had in-
tended to recommend to the new owners. He denies making
any reference to the Union stating he had not heard anything
about it at that time.
I find it hard to believe that Woods refrained from com-
plaining about Udouj’s statement until on or after June 28
when the union petition for an election was filed; and since
there is no evidence of any union activity at or around the
time (June 10 or 11) when Woods probably complained to
Gillis, the allegations in paragraph 11 are unfounded and will
be dismissed.
Paragraph 12 contains the same allegations as in paragraph
11 except that Koenig is cited instead of Gillis as the wrong-
doer. Here, too, the only testimony was supplied by Woods,5
who states that sometime during the campaign Koenig told
him he couldn’t promise anything but that if the Union was
voted down ‘‘good things would happen.’’ Even assuming
the latter comment was made, it is too vague to rise to the
level of an unlawful promise of benefits. National
Micronetics, 277 NLRB 993 (1985). The allegations will be
dismissed.
Paragraphs 13 and 18, Soliciting Grievances, Promises,
Threat. Tom Dulin, George Harris, and Tom Tardy are all
537RICHARDSON BROS. CO.
6 Richardson II is chairman of the Respondent while his son Rich-
ardson III is president.
7 The list contains five items, as follows: an immediate 10-cent
raise for all hourly employees, reduction of health insurance cost to
$20 per week, a new (seventh) holiday on the day before Christmas
plus a possible floating holiday, profit sharing, and a commitment
to fill supervisory positions from within and by blacks whenever
possible.
8 Rawls states that he ‘‘probably’’ agreed to drop the Union in re-
turn for the benefits. But he characterizes his dealing with the coun-
cil as ‘‘dilly-dallying because he viewed the entire effort as illegal.
9 Earlier that day, Woods had observed Rawls and Flowers leaving
early without punching out.
10 Lindley was probably in error in placing the date of the meeting
with Udouj on July 11. I have no reason to doubt Udouj’s claim of
being out of town on July 11 through 15.
members of the Economic Development Council for the
county in which Winona is located. One of their principal
functions is to attract industry; and prior to the June 1 take-
over, they had met with the Respondent’s owners (Joseph
Richardson II and III6) to persuade them to buy the Winona
plant. They are alleged in paragraph 13 of the complaint to
have acted as the Respondent’s agents on July 10 in solicit-
ing employee complaints and grievances, promising them in-
creased wages/benefits and improved terms and conditions of
employment.
Sometime during the first week of July, a former principal
of the local high school phoned Rawls at home and asked
if he’d meet with Dulin, Harris, and Tardy within the hour
‘‘about my union activities.’’ Rawls agreed but, wary of talk-
ing to them alone, brought along another union supporter,
employee Norman Small. The meeting lasted about 20 or 30
minutes and amounted to a lecture on how real economic de-
velopment was dependent on having a union-free environ-
ment in the county.
About an hour before the 3:30 p.m. quitting time on July
10, Manager Gillis went to Rawls at his work station, handed
him a memo containing a phone number, a name (Tom
Dulin), and the message ‘‘call at 3:30,’’ and told him to
make the call right away using a phone in the supervisors’
office. When he dialed the number, Rawls reached Dulin
who asked him to come to the high school to again meet
with members of the Economic Council. After Rawls pointed
out that he was working, Dulin inquired: ‘‘What if I can get
you off right now?’’ Rawls answered: ‘‘Fine.’’
At about that time, leadman Lindley was in Gillis’ office
checking on an order. Koenig entered and told Gillis that
‘‘George Harris just called me and wants to meet with Rob-
ert Rawls and R. L. Flowers.’’ Gillis replied that only Udouj
could authorize them ‘‘to go talk to him,’’ and when Koenig
asked: ‘‘Well do you want me to call him [Udouj]?’’ Gillis
replied ‘‘Yeah.’’ Koenig left the office. He returned several
minutes later and told Gillis that Udouj approved, whereupon
Gillis told him to let them go. Koenig then asked if he
should tell them to punch out. Gillis replied: ‘‘No, let them
go on the clock.’’
Shortly thereafter, Koenig went to Rawls’ work station and
told him Gillis had approved his going ‘‘to the meeting.’’
Rawls asked if he would be paid for the remainder of the
day and if Flowers also could go. Koenig replied yes to both
questions. They left immediately and were paid for a full
day.
At the high school they met with Dulin, Harris, and Tardy.
Harris opened the meeting and did most of the talking. He
asked Rawls and Flowers what it would take to avoid union-
ization. After mentioning a number of employee concerns,
Rawls asked for a 50-cent raise for everyone, reduction of
their $30-per-week payment for health insurance, and a holi-
day schedule comparable to the 9 days allowed in the Re-
spondent’s contract with its unionized workers in Sheboygan
Falls. He also urged appointment of a black supervisor. At
one point, after Rawls questioned whether employees really
had health insurance coverage, Dulin left the room. He re-
turned moments later to announce that the named insurer dis-
claimed having the Respondent as a client. After making a
note to that effect, he told the employees: ‘‘Well, what we
need to do is go and talk to the Richardsons . . . and find
out it they’ve got a legitimate insurance.’’ The meeting
ended with Rawls and Flowers each being given a copy of
a list (in Dulin’s handwriting) of benefits7 which they would
recommend for adoption by the owners Richardson in return
for employees’ repudiation of the Union.8
On leaving, Rawls and Flowers went directly to a pre-
viously scheduled union meeting and there told the approxi-
mate 25 employees present, including Woods,9 what had
happened and showed them the written proposals.
On the following day, Koenig again came to Rawls at his
work station, gave him a slip of paper bearing a phone num-
ber and the name ‘‘Dr. Tom Dulin,’’ and told him to call
the number. Rawls did so, and Dulin told him that the agree-
ment had been approved. When pressed by Rawls, Dulin al-
lowed that he had talked with President Udouj rather than the
Richardsons, adding: ‘‘I’m not suppose[d] to be telling you
that I talked to Mr. Udouj, because . . . its against the law
. . . but I talked to him and he said it was okay. He ap-
proved everything.’’ After the conversation ended, Rawls had
no further contact with any member of the Economic Coun-
cil.
On July 12, employee Woods was shopping in a local
hardware store and, by happenstance, Dulin was there.
Woods told him he was extremely upset that the Economic
Council had intruded into the organizing campaign. Dulin de-
fended the intervention arguing that the employees hadn’t
given the Richardsons a fair chance, and he went on to state
that ‘‘the proposal was fair to start off with, and . . . if we
accepted . . . it would come about.’’ Also, he opined that
‘‘if we did not drop this union petition Richardsons would
leave . . . [as] they had nothing invested in the plant.’’
At a meeting in Udouj’s office on or about July 16,
leadman Lindley asked Udouj about the proposals made to
Rawls and Flowers by the Economic Council. Udouj told
him he knew nothing of the matter.10
No member of the Economic Council testified.
Gillis admits giving Rawls and Flowers permission to
leave the plant early for the purpose of meeting with individ-
uals (Dulin, Harris, and Tardy) he knew to be members of
that council; and he claims to have had no idea of what
would be discussed at the meeting. He makes no mention of
Lindley’s account of the conversation overheard in Gillis’ of-
fice on July 10.
Koenig claims to be the one who gave the ‘‘call Dulin’’
note to Rawls on July 10. He recalls being told by Gillis at
about 3 p.m. to let Rawls and Flowers go to the high school
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Udouj denies having any conversation with Lindley about the
Economic Council on July 11 or at any other time.
12 Udouj assertedly made no effort to learn from Rawls, Flowers,
or anyone else about what went on at the meeting, heard no rumors,
and had no curiosity about the matter.
13 During the same week, a black employee (Willie McLendon)
was appointed to a newly created supervisory position.
14 Udouj claims that during the course of a meeting with employ-
ees on July 23, he addressed a rumor that townspeople, through the
Economic Council, were acting against their interests by trying to
keep wages low, and that he tried to allay their concern by telling
them that ‘‘we’re going to run it [the company], with no outside in-
terference . . . the townspeople don’t run the company.’’ This gen-
erality falls short of a repudiation of the negotiations by council
members. A similar conclusion applies to a statement ‘‘that the Eco-
nomic Development Council had no say in the running of the Wi-
nona plant’’ assertedly made to employees by Chairman Richardson
1 day before the August 16 election. See Star Kist Samoa, Inc., 237
NLRB 238 (1978); Cagle’s Inc., 234 NLRB 1148 (1978).
15 See fn. 10.
16 Contrary to the Respondent’s contention on brief, Richardson
did not state that Udouj made the employees aware of the grit prob-
lem at the meeting in question (Tr. 520).
right away and telling them they were to meet ‘‘with some
guy by the name of Dulin.’’ He disclaims knowing then (or,
indeed, at any time prior to trial) why they went to the
school. Also, he denies giving any written message to Rawls
on July 11 involving Dulin or that he ever spoke to Gillis
about a request from Harris pertaining to Rawls and Flowers.
Udouj states that on July 10 he left Winona at about 7:30
for the Memphis airport to confer with the Richardsons about
the unionization effort, that he did not return until about 4
p.m., and that he could not recall having communicated with
anyone at the plant while he was away. Also, he claims to
have left Winona directly from home at 6:30 on the morning
of July 11 to attend a furniture show in Dallas, Texas, and
that he did not return to the plant until Tuesday, July 16,11
at which time he first learned that Gillis had allowed Rawls
and Flowers to meet with members of the Economic Council
on company time without loss of pay.12 Also, on that day
he found on his desk a message that a ‘‘Dr. Tom Dulin’’
wanted to talk to him. He recognized the name as being ‘‘on
the high school building,’’ and so surmised Dulin was ‘‘a
man of some substance.’’
When Udouj returned the call later in the day ‘‘or some-
time that week,’’ Dulin asked him to meet with Harris,
Tardy, and himself. Udouj agreed, and at the meeting assert-
edly learned for the first time about the wage/benefit propos-
als. In Udouj’s words, he told them ‘‘it sounds doable, I
don’t see anything unreasonable, although I’ll have to talk to
the Richardsons . . . [but he cautioned them that] our hands
are tied . . . its just not possible, period.’’ He states he met
with them again on the next day, thanked them for their help,
and told them ‘‘this is a no-no. We can’t do it.’’13
Weighing the probabilities, I have resolved conflicts in tes-
timony in this matter by crediting employee over manage-
ment witnesses. I doubt that Gillis, during an election cam-
paign, would have authorized two known union supporters to
meet on companytime with members of the Economic Coun-
cil without prior approval of Division President Udouj. I con-
clude that the Respondent, through Udouj, authorized the
members to negotiate with a view to eliminating the threat
of unionization and approved their recommendations. I fur-
ther find that Respondent created conditions which reason-
ably led employees to believe that the council was speaking
for it. General Metal Products Co., 164 NLRB 64 (1967).
And even if that were not the case, tacit acceptance is found
in its failure promptly to repudiate the handiwork of the
members; and in this respect, having in mind its keen interest
in the unionization effort, I have no doubt that the Respond-
ent had early knowledge of the ‘‘deal’’ since over half its
work force knew about it by 4:30 p.m. on July 10.14
Accordingly, I find that the Respondent, with the council
members acting as its agent, unlawfully solicited grievances
and promised increased benefits as alleged in paragraph 13.
Also, I find that Dulin, on July 12 and acting as an apparent
agent of the Respondent, unlawfully threatened plant closure
unless employees abandoned the unionization effort.
Paragraph 14, Promises. According to Lindley, Rawls and
R. L. Flowers were to see Udouj in his office on July 11.15
At the last minute Rawls asked Lindley to substitute for him.
The meeting focused principally on Flowers’ problems in
getting health insurers to pay his medical bills. Lindley
claims that at one point Udouj told them ‘‘You guys don’t
need a union. A union is no good for you, it never has been
for anybody . . . . Let’s get the union business out of the
way, and we can work on getting y’all better benefits and
wages.’’ Flowers did not testify about the incident; and while
Udouj recalls meeting with Lindley and Flowers about the
latter’s insurance problems, he denies making an reference to
unionization or benefits at that time. Assuming the quoted
statement was made, I find it too general to support a finding
of unlawful promises of benefits. The allegation in paragraph
14 will be dismissed.
Paragraph 16, Threat, Statement of Futility. In this para-
graph Gillis is alleged to have informed an employee in mid-
July that unionization would be futile and to have threatened
loss of a wage increase if the employees did not reject the
Union. No specific evidence is cited in support of the allega-
tion; and I have found none. It will be dismissed.
Paragraphs 17 and 19, Soliciting Grievances, Promises. In
late July, Udouj met in the breakroom with the Respondent’s
six furniture finishers and their supervisor Clyde Cork. Ac-
cording to credited testimony of finishers Elmer Durham and
Tony Richardson, the meeting lasted approximately 10 to 15
minutes and consisted principally of Udouj and Cork taking
turns urging employees to voice their complaints. The com-
mon concern expressed was that the large specialized filters
in spray booths had been clogged for 2 to 3 months with the
result that spraying caused lacquers, sealers, and stains to
splash back into their faces. Cork was aware of the problem
and told Udouj that he had put in an order for replacement
filters, whereupon Udouj told him to air freight the items im-
mediately. New filters were installed within a few days.
Udouj and Cork concede that the problem of clogged fil-
ters was discussed and that replacements were promptly ob-
tained. Udouj, however, claims that the focus of discussion
was not employee complaints about safety but rather cus-
tomer rejection of furniture because flecks of sandpaper or
dust (‘‘grit’’) were found under the finish, and that the
prompt replacement of clogged filters was intended to correct
that defect. Cork did not support that claim, and neither did
employees Durham and Richardson.16
539RICHARDSON BROS. CO.
17 Lehrke states that he had no responsibility for personnel/safety
matters at the Winona plant during July and August.
18 The fans were removed a few days after the August 16 election.
19 Since the Union lost the election, Rawls, in effect, conceded that
he owed Gillis two rather than one six-pack.
20 Contrary to General Counsel’s contention, Curtis Flowers did
not testify that Richardson conditioned the offer on their voting
Continued
The Respondent’s solicitation of grievances and prompt
action in redressing the filter complaints, coming as it did in
the context of an organizing drive and in close proximity to
a scheduled election, patently had the effect of undermining
employees’ efforts to act collectively and constitute unlawful
conduct as alleged in paragraph 17. Blue Grass Industries,
287 NLRB 274 (1987).
On July 30, the personnel and safety director at the Re-
spondent’s plant in Sheboygan Falls (James Lehrke) came to
Winona and spoke to the assembled employees about health
insurance coverage in an effort to resolve employee mis-
understandings in that regard.17 Later in the day he spend
about 2 hours walking about the plant, yellow pad in hand,
talking to employees one-on-one at their work stations.
Among others, Lehrke spoke to Woods, Lindley, Curtis
Flowers, and Medgar Baskin asking each whether they had
any complaints. He recorded their responses and gave assur-
ances that their concerns would be given appropriate atten-
tion. Lindley and Woods had complained about excessive
heat in the plant. They also expressed resentment about hav-
ing their pay period extended from 1 to 2 weeks, without no-
tice, when the management turnover occurred in June.
Lehrke promptly conveyed both concerns to Udouj.
A day or so later, Supervisor Cork and leadman Parrish
approached Woods as he was clocking out for the day and
invited him to ride with them. They drove to a facility—the
‘‘Hereford Ranch,’’ owned by Economic Development Coun-
cil member Harris—and there obtained three large fans
which they brought back and placed in the ‘‘rough mill’’
section of the plant where Woods frequently worked.18 On
August 9, employees again began to be paid on a weekly
basis.
Here, too, I find unlawful solicitation of grievances and
conferring of benefits, as alleged in paragraph 19. R. Dakin
& Co., 284 NLRB 98 (1987).
Paragraph 20, Threat of Plant Closure. According to
Woods, Manager Gillis appeared at his machine on or about
August 1 and told him ‘‘I don’t blame them if they pick up
their shit and went back home.’’ Aside from his subjective
observation that Gillis was ‘‘pretty upset . . . because it ap-
peared that the Union was starting to gain support,’’ Woods
provides no detail as to what else, if anything, Gillis said at
that time. Even assuming (over Gillis’ denial) that the state-
ment was made, it is too ephemeral to constitute a threat of
closure. In the absence of any factual context, I am left to
speculate even as to whether Gillis was referring to the Com-
pany. The allegation will be dismissed.
Paragraph 21, Promise of Raises and Threat of Closure.
On August 13, 3 days before the scheduled election, Super-
visor Cork asked two of his finishers (Elmer Durham and
Thomas Chesteen) to accompany him. He led them to a
small outbuilding, the ‘‘Paint House,’’ where he told them
that without the Union their hourly rate would be increased
from $4.25 to $7.25 in three increments; and he emphasized
the point by making three marks on a barrel. Cork also
opined that if the Union was voted in the Company might
have to close down.
Chesteen did not testify. Cork denies having any conversa-
tion in the Paint House with just Durham and Chesteen
present, adding (illogically and incredibly) that he never has
one-on-one conversations with employees. However, he re-
calls being in the Paint House on an occasion when four em-
ployees (Durham and Chesteen as well as Paul Purnell and
Tony Richardson) were ‘‘wondering where they had been
with [former owner] Whitaker, and where they were going
with Richardson.’’ He claims the conversation had nothing to
do with the union campaign, that they did most of the talk-
ing, and that his role was ‘‘mostly just an adversary.’’
I credit Durham over Cork and find an unlawful induce-
ment and threat, as alleged.
Paragraph 23(a), Threat of Termination. Also on August
13, Rawls had a conversation at his machine with Manager
Gillis about who was going to win the election. He claims
that Gillis, with whom he ‘‘always had a good rapport,’’ be-
came testy and told him ‘‘you’d better win this election. If
you don’t, you’ll be out of here. I personally will not have
anything to do with it, but you’ll be gone . . . you definitely
will be gone.’’
On the other hand, Gillis testified that the conversation
was friendly with Rawls bragging the Union would win with
85 percent of the vote and he (Gillis) venturing the result
would be determined one way or the other by as few as two
votes; and that they each wagered a six-pack of beer on
whether Gillis’ view would prevail. He denied telling Rawls
he would be gone or terminated.
I accept Gillis’ account. Later in his testimony, while de-
scribing what happened after the vote, Rawls digressed and
volunteered a comment to Gillis who was seated in the court-
room. Rawls said:
It was two six packs, Marion, it wasn’t one, you ain’t
gonna weasel out of that, it was two.19
That comment persuades me that the conversation was
friendly rather that threatening. The allegation will be dis-
missed.
Paragraph 25, Offer of Inducements and Benefits. Em-
ployees Curtis and Archie Flowers planned to attend a wed-
ding on August 17 in Chattanooga, Tennessee. In order to
drive to an evening wedding rehearsal there on August 16,
they needed the day off and that meant they would be unable
to vote in the scheduled election. Although leadman Claude
Ware had approved the leave, on August 15 he asked them
to go to Gillis’ office and meet with Owner Joseph Richard-
son II. There, and with Curtis Flowers wearing a union hat,
Richardson offered them a late afternoon ride to Chattanooga
in his private airplane on August 16, with caviar and cham-
pagne, if they would vote in the election. Concerned about
air sickness and lack of return transportation, they declined
the offer and drove to the wedding as planned.
I find no violation. While Richardson undoubtedly hoped
his offer would induce them to vote against the Union, it did
not hinge on the election outcome; and there is no evidence
it was contingent on their voting against unionization.20 He
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘against the Union.’’ While verifying that such a statement appears
in his prior affidavit, his actual testimony was that he understood
(interpreted) the offer to be so conditioned. The distinction is empha-
sized by the fact that the quoted words were stricken by him at the
time he read the affidavit.
21 One of the employees (Woods) heard Richardson II say that the
Company had decided to stay in Winona and had begun to invest
over half a million dollars in new equipment.
22 The cited excerpts (G.C. Br. at 25–26) are as follows: ‘‘Don’t
sent us home tomorrow feeling like we’ve made a mistake coming
down here and buying this plant‘‘—Richardson III, R. Exh. 6—and
‘‘We came here to grow and our future is here if we can stay
nonunion‘‘—Richardson II, R. Exh. 5.
23 Woods also claims Richardson told them that minimum wages
would be the starting point for any negotiations. There is no cor-
roborating evidence relative to that claim and it is not credited.
24 Even if Tony Richardson and Ford were credited, the statements
cited by them are too vague to constitute unlawful promises of bene-
fits in return for rejection of the Union.
25 Earlier that day, as Gillis escorted Rawls, Lindley, Ford, and
union organizer Robert Spann out of the plant after the election,
Rawls, visibly upset about the result, turned and told Gillis ‘‘You
don’t have to worry about me being back to work because I’m not
going to work with a bunch of G.D. people that lied to me about
how they was going to vote for the Union.’’
neither asked for or received promises in that regard. Indeed,
the logo on Curtis Flowers’ hat implied a predisposition to-
ward the Union. And since Board elections are by secret bal-
lot, he had no way of knowing how they would vote.
Paragraph 24, the ‘‘24-hour Speech.’’ It is here alleged
that on August 15 Richardson II, in an address to assembled
employees, promised a wage increase if they rejected the
Union as their bargaining representative, informed them it
would be futile to select the Union, and threatened plant clo-
sure if that result obtained.
The meeting lasted less than a half hour with Udouj,
Lehrke, Richardson III, and Richardson II speaking in turn.
Employee testimony relative to these allegations was elic-
ited from Rawls, Lindley, Woods, Ford, Curtis Flowers, and
Tony Richardson. Rawls asserts generally that ‘‘they’’
(Udouj and the owners Richardson) offered ‘‘raises . . .
throughout the meeting’’ in return for a ‘‘No’’ vote; and he
claims President Udouj assured employees that rejection of
the Union would mean a ‘‘surprise’’ for them on the follow-
ing Monday and a raise within 10 days. Curtis Flowers and
Richardson state that Richardson II told the assembled em-
ployees they would get a raise in a week or 10 days if the
Union lost the election. And Ford recalls one of the Richard-
sons saying ‘‘if we would give them another chance, then we
all would get a small raise.’’ In light of denials by the Re-
spondent witnesses and employee lack of corroboration of
each others’ accounts, I decline to credit the employees.
None of the employees testified to any threat of plant clo-
sure;21 and I find two cited excerpts from outlines of speech-
es given by the Richardsons22 too vague to establish such a
threat.
Concerning futility, several employees (Lindley, Woods,
Tony Richardson, and Curtis Flowers) heard Richardson II
say that if the Union won he would be a tough negotiator,
that a contract might not be signed for years, and that in the
meantime wages and benefits would be frozen at present lev-
els.23 For his part, Richardson did not contradict their testi-
mony. Indeed, he confirmed and enhanced their accounts by
testifying that he told them (as stated in his speech outline)
it took another local of the Union 10 elections over an 11-
year period to organize employees at its facility in Sheboy-
gan Falls, that when the local finally achieved a majority the
election remained inconclusive for 15 months until his voting
challenges were resolved by the Board with ‘‘NO IN-
CREASES OR IMPROVEMENTS [emphasis his]’’ in wages
or benefits during that period, that negotiations for a first
contract took 20 months with ‘‘NO INCREASES OR IM-
PROVEMENTS [emphasis his]’’ during that period, and that
a total of 3 years elapsed between the election and the con-
tract with ‘‘NO INCREASES [in wages] OR BENEFITS
[emphasis his]’’ during that period. He also told them that
‘‘if the Union wins Friday how long do you think it will take
to get a contract? Look at our track record. We’re not going
to be in any hurry.’’
Richardson’s remarks convey more than an intention to
engage in hard bargaining. Patently, and contrary to an obli-
gation to bargain in good faith, he was telling employees he
would adopt a regressive bargaining position in reprisal for
their choosing to be represented by a union. That message,
coupled with the clear implication they might have to wait
years for an agreement without any interim increase in wages
and benefits, unlawfully creates an aura of futility, as al-
leged.
Paragraphs 22, 26, and 27, Promises. The election took
place in late afternoon on August 16. During the morning pe-
riod, various managers and supervisors visited employees at
their work stations urging them to reject the Union.
Tony Richardson recalls that the Richardsons, Udouj,
Lehrke, Gillis, and Koenig came to the finishing department
conveying the same message, i.e., that a ‘‘No’’ vote would
‘‘make things happen.’’
Tarryon Daniels states that Supervisor Cork came to the
assembly department and told him and another employee
(Kevin Stovall) that he knew ‘‘definitely’’ they would get a
raise if the Union was voted out.
Employee Ford was approached at his machine in the
Rough Mill by Richardson II. He claims Richardson told him
that if the vote was against the Union ‘‘things would look
up for him.’’
No other testimony was presented in support of the viola-
tions alleged in the cited paragraphs; and the officials in-
volved denied making the remarks attributed to them. In light
of those denials and the absence of corroboration, I decline
to credit the three employees.24 The allegations will be dis-
missed.
Paragraph 29, Alleged Unlawful Termination. Rawls was
the first employee to wear a union hat and T-shirt at work
and he openly solicited union memberships throughout the
organizing campaign; and he openly claimed to be the cam-
paign leader.
The election was held in late afternoon on August 16 and,
as noted, the Union lost. About six managers and supervisors
lingered in the front office. At about 6:15 p.m., the phone
rang. Koenig answered. Rawls was on the other end and
asked to speak to Gillis. Looking at Gillis, and with others
(including Udouj) listening, Koenig said ‘‘Rawls wants to
talk to you.’’ Gillis picked up the phone and Rawls in a calm
voice told him ‘‘I’m quitting because I don’t want to come
back to a plant where I’ll be harassed.’’25 Gillis states that
despite his assurance there would be no harassment, Rawls
541RICHARDSON BROS. CO.
26 According to Koenig, Ricky Mooney after quitting on a Friday
to work for another company called in at 11 a.m. on the next Mon-
day and was allowed to continue his employment. He also acknowl-
edges that employee Curtis McPherson walked off the job in anger
on one and possibly two occasions and was allowed to return.
27 In light of President Udouj’s recollection (Tr. 596) that after
Rawls called in and resigned on Friday evening ‘‘they’’ (i.e., one
or more of the managers/supervisors then present in the front office)
said, ‘‘We’ve got to have a replacement on Monday morning,’’ I
view as highly improbable Koenig’s assertion that no effort to obtain
a replacement was made during the weekend and that the individual
hired just happened to appear at the plant door at 7 a.m. on Monday
morning.
28 Although Koenig claims to have hired Rawls’ replacement on
the spot at 7 a.m. on Monday, he offered no reason for then telling
him to leave and return on Tuesday morning. Further, as Koenig
makes no mention of asking the individual to sign documents, I con-
clude that a receipt purportedly signed by him on Monday, August
19, for an employee information and reference guide was executed
later, as is admitted to be the case with other entries in R. Exh. 11.
29 Koenig states that Gillis wore Purnell’s hat around the plant
later in the day ‘‘for a few minutes.’’
30 From this point all dates are in 1992 unless otherwise indicated.
31 Johnny Brown, Curtis Flowers, Jerome Lindley, Tony Richard-
son, Darrell Sizemore, and Claude Ware.
persisted, saying ‘‘I just don’t feel I could come back and
work there no more.’’ Gillis hung up and told the others that
Rawls had just quit.
On the following Monday the workday began as usual at
7 a.m. Rawls was absent. He called in at about 8 a.m., talked
to Koenig, and told him he wished to take a day of accumu-
lated annual leave and return the next day. Koenig, after re-
minding Rawls that he had quit, told him ‘‘we’ve already
hired someone else.’’ And when Koenig suggested he might
reapply, Rawls answered ‘‘No’’ and hung up.
Although Rawls denies phoning in and quitting on the Fri-
day evening, I find that he did so. A number of employees
testified he was distraught after the election and talked of re-
signing; and I have no reason to doubt Manager Gillis’ ac-
count of the phone call, especially since it occurred while
five other supervisors where present at the time. Also, Rawls
did not contradict (contemporaneously or in his testimony)
Koenig’s statement that on the following Monday Koenig re-
minded Rawls that he had quit. Neither do I find the resigna-
tion was involuntary and, therefore, a constructive discharge.
There is no credible showing that Rawls was harassed or
threatened in any way.
But the matter does not end there. Admittedly, Rawls was
a conscientious and capable worker; and his job assignment
(running the glue clamp) is characterized by President Udouj
as the ‘‘heart and soul of the factory.’’ In the past, the Re-
spondent overlooked rash or emotionally inspired resigna-
tions;26 and I am persuaded that it would have accorded
similar treatment to Rawls absent his activism on behalf of
the Union. In this respect, I find the Respondent’s haste to
hire a replacement was motivated by a desire to act before
Rawls had time to reconsider.27 Alternatively, I am not per-
suaded that a replacement was hired before Rawls called in
on Monday morning.28
I conclude that by failing to give Rawls an opportunity to
return to work, the Respondent discriminatorily terminated
his employment on August 19 as alleged.
Paragraph 28, Coercion. On a day in October, Paul
Purnell was at his machine in the finishing department wear-
ing a union cap. Superintendent Koenig came by and, after
commenting that the cap was dirty, told Purnell he needed
another; and he tendered him a new one embossed with a
company logo. Purnell replied, ‘‘No. I’d rather keep the
union cap.’’ Koenig tried to remove the hat but couldn’t be-
cause Purnell firmly grasped it. When Koenig kept ‘‘bug-
ging’’ him, Purnell finally relinquished it and accepted the
company cap. No other employee in the department was of-
fered a company hat by Koenig around the time the incident
occurred.
Koenig testified that the incident took no more than 30
seconds and that Purnell was a willing participant in the ex-
change of caps. He gives two reasons for offering the ex-
change. He claims demand for company hats exceeded sup-
ply; so he ‘‘told people that, you know, I’ll trade or what-
ever, but you know, I just can’t give them away.’’ Also, and
despite his description of Purnell’s cap as ‘‘filthy,’’ he ex-
plains he wanted to give the cap to Manager Gillis for his
cap collection.29
I accept Purnell’s version and find Koenig’s conduct un-
lawful in that it coercively impinged on his right to manifest
his prounion stance at an appropriate time and place and in
a proper manner.
Paragraph 23(b), Threat. On March 23, 1992, employee
Jerry Woods, concerned about whether he would be assessed
a point under the Respondent’s attendance policy for testify-
ing under subpoena on the next day in the initial trial in this
proceeding, went to the office where he was assured by
Manager Gillis that his absence would be excused. Gillis
availed himself of the occasion to ask Woods about any re-
newed organizing efforts in the plant. Woods told him he’d
seen a lot of union cards circulating in the last couple of
weeks. Gillis responded ‘‘that was all right . . . [because]
the company would win, and when . . . [it] won, the instiga-
tors would be gone.’’
For his part, Gillis claims that earlier in the morning he
had asked Woods to sing at a benefit sponsored by Gillis’
wife, that in the afternoon Woods came to his office and,
after saying he thought he could do so, volunteered that
‘‘people are still signing union cards out in the plant.’’ He
quotes himself as responding: ‘‘Well, I don’t really care what
they’re doing out there. . . . When this is over with, the
union will go away.’’
As between the two accounts, I have credited Woods, find-
ing it more probable. Since, in my opinion, the phrase ‘‘insti-
gators would be gone’’ reasonably can be interpreted as say-
ing that employees who were leading union supporters would
be in jeopardy, I find that Gillis communicated an unlawful
threat as alleged.
IV. ADDITIONAL COMPLAINT
As noted, the Union on June 4, 1992,30 sought permission
of the Board to remove all bars to another election; and a
copy was simultaneously sent to all parties. The request was
unopposed, and a grant meant that a new election did not
have to await conclusion of these proceedings and could take
place as early as August 17. On June 11, 1 week after the
request was made, an employee (Jerry Woods) left the Com-
pany and written warnings were issued to six others;31 and
another employee (Michael Campbell) received a written
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Woods was absent for postal work for whole or portions of days
on 5 occasions during the last 3 months of 1989, 25 times in 1990,
21 in 1991, and 13 to June 11, 1992.
33 Woods’ account of this incident is not contradicted.
34 In the absence of any countervailing data from the Respondent,
these findings are based entirely on Woods’ recollection.
35 Woods then earned $5.35 an hour at the plant and $12.20 plus
mileage expenses as a substitute letter carrier. Also, he had hopes
of obtaining permanent status with the Postal Service in the near fu-
ture.
36 At the time, Woods had accumulated only 2-1/2 points under
the Respondent’s attendance policy.
37 This credited testimony shows that Woods, far from being a dis-
satisfied employee intent on leaving, pleaded to retain his job, a cir-
cumstance which plainly distinguishes this case from the situation in
Pacesetter Corp., 307 NLRB 514 (1992).
warning on the following day. Those actions are claimed to
have been prompted by the Respondent’s anger at the pros-
pect of an early election and/or general antiunion animus.
The Severance. Woods was hired by a Respondent prede-
cessor company in July 1987 and developed into a specialist
in sharpening and fashioning woodcutting knives. He also
became adept at operating most of the saws and machinery
used in fashioning furniture; and in response to his sugges-
tion and with 2 days’ training, he began in March to sharpen
carbide tip knives in-house, thereby effecting a substantial
cost saving. Within a short time he had passed on his tech-
niques to another employee (George Hill) and, on occasion,
the latter performed all in-house sharpening operations on his
own.
Since late 1988, beginning with the Respondent’s prede-
cessor, Woods was allowed time off as needed to work as
a substitute letter carrier at a local branch of the Postal Serv-
ice under an arrangement as follows: He would tell the Com-
pany, usually on short notice, of his need to serve as a sub-
stitute carrier and he agreed to, and did, make himself avail-
able on evenings and Saturdays whenever a need for his
knife sharpening talents arose during any absence. He in-
stalled a telephone answering machine in his home in order
to obviate any communications problems. He was never ad-
vised of any difficulties arising under the arrangement.32
In January, the Respondent implemented an attendance
policy whereby employees were assessed points for unex-
cused absences or tardiness. An accumulation of 4 points
over a 6-month period resulted in discipline, while 10 points
meant discharge. Before the new system went into effect,
Woods asked Manager Gillis whether it would alter his ar-
rangement. After ascertaining that other employees had no
objection, Gillis advised Woods that his absences for postal
work would be excused.
Woods did not sign a union authorization card. Nor did he
manifest, through wearing insignia or otherwise, any support
for the Union. On March 24, he appeared in the courtroom
to testify in this proceeding pursuant to a subpoena from the
General Counsel. While waiting for the trial to begin he was
seated with another employee (Mike Jones) on the company
side just behind Manager Gillis and Chairman Richardson II.
Both employees were manifestly nervous. Responding to the
situation, Richardson II turned and offered advice: ‘‘Well,
just get up there and tell the truth and everything will be
okay.’’ After a brief pause, he turned again and added: ‘‘But,
your best two answers are always ‘I don’t know and I don’t
remember.’’’33 According to my assessment, Woods did not
follow the latter advice but, instead, testified to the truth as
he saw it in connection with at least 10 alleged acts of
wrongdoing by the Company.
On at least six occasions in between March 24 and June
11 Woods asked Gillis and Superintendent Koenig for a
change in his work assignments so that he could spend more
time sharpening blades, thereby to remedy operators’ com-
plaints about dull knives. No significant adjustment was
made.
During the 2 weeks preceding June 11, Hill did most of
the sharpening because Woods was required to spend vir-
tually all his time ‘‘out on the floor,’’ and for the imme-
diately preceding weeks he spent on average about 32 hours
of his workweek operating machines and the remaining 8
hours sharpening knives.34
On Thursday, June 11, Woods punched in at 7 a.m. and
began to operate a machine. About 15 minutes later his su-
pervisor (James Mooney) told him to report to the office.
There he met Gillis and Koenig and the latter handed him
a document faxed from the Sheboygan plant and dated June
10 reading as follows:
NOTICE
TO: ALL RBC SOUTH EMPLOYEES
FROM: JIM LEHRKE
RE HOURS OF WORK (EFFECTIVE IMMEDIATELY)
ALL EMPLOYEES ARE REQUIRED TO WORK A NORMAL
SCHEDULED WORK DAY AND WEEK, WHICH WILL CON-
SIST OF 40 HOURS. TO START ON MONDAY.
THE COMPANY WILL SET THE TIME OF WORK SHIFTS.
THE PURPOSE OF THIS IS TO TREAT ALL EMPLOYEES
FAIR AND EQUAL.
Woods was the only employee affected by the notice; and
there is no indication that any employee objected to his ex-
cused absences for postal service.
When Woods finished reading, Gillis told him: ‘‘You have
two options open to you. You can either quit the Post Office
or quit the plant.’’ After a moment of reflection,35 Woods
told them he would not choose, adding that they had to de-
cide whether to fire him.36 Neither Gillis nor Koenig made
any audible response. Instead, they proceeded to tell him
about severance pay, including an allowance for earned vaca-
tion time, and when he could pick up his checks. The meet-
ing ended with Woods telling them he would go home and
then return at 4:30 p.m. to retrieve personal belongings.
Gillis agreed, stating ‘‘Its been nice working with you . . .
I’ll give you a reference [if you need one].’’
Woods returned at 4:30 p.m. and took the occasion to
again speak to Gillis. He offered to forgo any vacation,
health insurance, and all other benefits if he could continue
on the job under the same arrangement as before.37 Gillis de-
clined stating that the matter ‘‘was out of my hands . . .
over my head . . . [and that] it wasn’t my decision to
make.’’ Leaving to get his belongings, Woods met his super-
visor, Mooney, on the plant floor. During the course of a 15-
minute discussion, Mooney told him he was sorry about what
happened, and he went on to tell Woods: ‘‘You were not
543RICHARDSON BROS. CO.
38 Saw operators were only expected to push debris away from
their machines; and they were allotted 5 minutes to do so at the end
of the workday.
fired because of any complaint that I made against you. I
was perfectly satisfied with your work.’’
On the following day Woods received a letter from Gillis,
dated June 11, reading as follows:
Dear Jerry:
We hope you will reconsider your position and stay
with us. Your decision will need to be made in the next
couple of days because we are in the process of looking
for a replacement. We have plenty of work to keep you
employed for 40 hours, Monday through Friday. We
need someone in the knife sharpening room constantly
to keep up with the demand of the plant. Please contact
me if you change your mind.
Woods promptly returned to the plant, arriving at about
noon. He told Gillis he was confused about the letter because
he had assumed he was fired. Gillis replied by asking if
Woods heard him use the words ‘‘You’re fired?’’ Woods
thought for a moment, answered ‘‘No,’’ and then volunteered
to go back to work. Gillis said, ‘‘No . . . you can’t work
here anymore.’’ After telling Gillis he saw no difference be-
tween that phrase and ‘‘you’re fired,’’ Woods again went
home.
Gillis and Koenig state that the decision to end Woods’
exception to the attendance policy was made jointly by them
and Director Lehrke in a conference call on June 10 and was
based on a pressing need to have someone sharpening blades
full time, that there was no mention of severance pay on
June 11, and that they expected him to return to work when
he left the office. They claim to have been surprised when
he chose to ‘‘quit’’ by going home, having assumed he
would continue working at least until he accumulated 10
points under the attendance policy; but they concede that that
option was not expressly mentioned on June 11. Gillis also
claims he told Woods on June 11 that he needed a full-time
sharpener, but Koenig did not corroborate that statement.
Gillis denies having told Woods that the severance decision
was not his or that it was out of his hands. He also denies
having told Woods on June 12 ‘‘you can’t work here any-
more.’’ Instead he claims to have invited Woods to go back
to work, but only if he agreed to work a regular 40-hour
shift.
Three weeks elapsed before the Respondent found and
hired a person with knife sharpening skills; meanwhile the
knives, including those with carbide tips, were sharpened by
Hill.
I find probable and credit Woods’ account; and I draw the
following conclusions.
The decision to sever Woods’ employment was made
‘‘over [Gillis’] head’’ (i.e., at the Sheboygan Falls plant);
and the ‘‘Notice’’ faxed from there announcing the end of
his postal service exemption was expected to achieve sever-
ance by causing him to leave voluntarily. Nonplussed when
Woods declined to choose between the only two options
given him, Gillis effected the desired severance by firing him
on June 11. Later that day, and fearing that the only reason
given for the termination (‘‘to treat all employees fair and
equal’’) would not bear scrutiny, the Respondent sent Woods
a letter in which it attempted to negate the firing and supply
a new reason for ending his postal service exemption, i.e.,
‘‘We need someone in the knife sharpening room constantly
to keep up with the demand of the plant.’’
I regard both reasons for termination as pretextual. The
Respondent provides no reason why an exception agreeable
to other employees in January became unfair in June. Neither
does it explain (1) why it needed a full-time knife sharpener
as of June 11 while during the immediately preceding several
weeks it assigned Woods to other duties for well over half
his worktime, and (2) why it precipitated Woods’ immediate
departure when, according to Gillis, no qualified knife sharp-
ening replacement was available.
Woods’ discharge occurred a few days after the Union
filed its unopposed request for permission to hold a new
election notwithstanding pendency of this proceeding; and
approval meant that the election could take place as soon as
August 17. In view of the proximity of the discharge to the
Union’s request, the Respondent’s animus toward unioniza-
tion as reflected on this record, and Chairman Richardson’s
probable chagrin when Woods, ignoring his advice, testified
candidly in this proceeding, I conclude that the discharge
was intended as retaliation for doing so and to prevent his
voting for the Union in the forthcoming election; and to deter
other employees from doing either or both of those things.
S & S Screw Machine Co., 288 NLRB 235 (1988). Accord-
ingly, I find the discharge, as well as the change of policy
relative to his absences for postal service, coercive and dis-
criminatory in violation of Section 8(a)(1), (3), and (4) of the
Act.
The Warnings. Under the Respondent’s discipline policy
‘‘less serious offenses’’ (i.e., those not specified in its em-
ployee handbook as warranting immediate termination) are
dealt with as follows: When oral reminders fail to remedy an
offense such as maintaining a messy work area, a formal
verbal warning is issued and memorialized by a written
memorandum. The next two offenses lead to formal written
warnings; and a fourth results in termination.
Six formal verbal warnings were issued by supervisors to
as many employees on the day Woods was discharged; and
another employee was given such warning on the following
day.
Of those, three were for not cleaning up around cutting
machines, and were issued to Jerome Lindley, Curtis Flow-
ers, and Darrell Sizemore, respectively. As shown in an ex-
hibit received in evidence at the earlier trial, all three had
signed union authorization cards; and Lindley and Flowers
were witnesses for the General Counsel during that phase of
the case.
The incident for which Lindley received his warning oc-
curred on June 10. According to his uncontradicted and cred-
ited testimony, on that day it had become impossible for him
to push wood debris from the area immediately around his
machine because of knee high accumulations. Normally a
janitor removed the trash daily but he had not appeared for
at least a day and a half.38 Although Lindley complained
about the situation to Manager Gillis at about 2 p.m., neither
the latter nor Lindley’s immediate supervisor (James Moon-
ey) instructed him to remove the debris, and nothing was
done to alleviate it that day. Promptly on his arrival at work
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Ware and Campbell do not appear to have had any involvement
with the Union. Brown was listed in an early exhibit as having
signed a union authorization card.
40 An inference of unlawful motivation is not negated by the cir-
cumstance that two of the warned employees appear not to have
manifested support for the Union. See Northwestern Publishing Co.,
144 NLRB 1069 fn. 14 (1963), enfd. 343 F.2d 521 (7th Cir. 1965).
41 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
on June 11, Lindley’s supervisor (James Mooney) handed
him the warning. After reading it Lindley looked up and
said, ‘‘Man, this is bullshit!’’ Looking uncomfortable, Moon-
ey replied, ‘‘I’m just doing what I’m told to do. They told
me to write it up.’’
Flowers and Sizemore also received their warnings on
June 11 for alleged cleanup dereliction on June 10. Prior to
June 11, no employee had ever been written up for a similar
offense. While Flowers was called as a witness for the Re-
spondent and admitted fault and Sizemore did not testify, I
conclude that their warnings were for the unusual debris pile-
up described by Lindley and that their supervisors (who, like
Mooney, did not testify) were told to write them up.
Under the Respondent’s policy earplugs were required to
be worn by employees only while they were actually operat-
ing machines; and it was permissible for them to remove
plugs while talking to each other and supervisors on business
matters in close proximity to functioning machines.
Although employees often were orally reminded to use
earplugs, no one had ever been written up for failing to do
so prior to June 11. On that day, Supervisor Ralph Borden
issued such warnings to machine operators Claude Ware and
Johnny Brown; and another on the following day to operator
Michael Campbell.39 All three employees concede that at
times they they had not worn plugs while standing near func-
tioning machines. Campbell claims that he had slipped up
only one time. Ware recalled an occasion when he just for-
got. Brown states that the only time he removed his plugs
on June 11 was for a 2-minute period to respond to another
employee’s request for a pair of vise grips. Here, too, the
issuing supervisor did not testify; and his written memorials
do not show when the violations occurred and provide no de-
tails as to circumstances which prompted the warnings.
Tony Richardson is shown to have signed a union author-
ization card and he testified at the earlier trial against the in-
terest of the Respondent as a witness for the General Coun-
sel.
On June 5, Richardson had just cleaned his area on Super-
visor Cork’s instruction when an employee (Anotile Archie)
from another department dumped a quantity of clean rags in
a corner near his machine. Unused rags normally were stored
in the ‘‘Pump House.’’ Richardson complained to Cork with-
out result. At about 9:30 a.m. on June 11 the rags were still
there and Cork again asked Richardson to clean up his area.
In a reaction described by Richardson as ‘‘flying off the han-
dle’’ and by Cork as ‘‘hostile,’’ Richardson replied, ‘‘I will
clean up my . . . area, but I’m not picking up those rags,’’
and he reminded Cork of his prior complaint. Cork left the
area without replying. He returned about 20 minutes later
and noted that the rags were still there. Shortly thereafter an
uneasy Richardson persuaded Archie to help him pick up the
rags, and together they accomplished the task.
About an hour and a half later (around lunchtime) Cork
escorted Richardson to the office where he gave him a writ-
ten warning for having ‘‘an attitude.’’ At that time he knew
that the rags had been removed. In his view Richardson sim-
ply had taken advantage of an opportunity to be disagreeable
with a supervisor. He adds: ‘‘I can’t see someone getting
upset over a few shop towels.’’ Cork claims that neither
Gillis nor Koenig instructed him to issue the warning or had
prior knowledge that he had done so.
There is no indication that Richardson had been a discipli-
nary problem in the past. Indeed, the writeup by Cork was
the first Richardson had received during his 3 years at the
plant.
I find the warnings pretextual. All issued contempora-
neously with Woods’ discharge and involved infractions for
which formal writeups theretofore had not been used. And,
based on Mooney’s admission, I am persuaded that he and
the other issuing supervisors were acting on instructions from
above. I am also persuaded that, like Woods, the employees
received such discipline because the Respondent, reacting to
the Union’s petition and anticipating an early new election,
meant to convey to its entire work force its intent to continue
vigorously to oppose unionization.40 Accordingly, I find the
warnings coercive and discriminatory in violation of Section
8(a)(1) and (3), as alleged.
CONCLUSIONS OF LAW
The Respondent violated Section 8(a)(1), (3), and (4) of
the Act in the particulars and for the reasons stated above,
and it is not shown to have violated the Act in any other re-
spect. Those unfair labor practices and each of them have af-
fected, are affecting, and unless permanently restrained and
enjoined will continue to affect, commerce within the mean-
ing of Section 2(6) and (7).
Pursuant to my order dated June 26, 1992, the proceeding
in Case 26–RC–7387 will be dismissed.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees Robert Rawls and Jerry Woods, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). Because of
the Respondent’s numerous and overall egregious violations,
demonstrating a general disregard for the employees’ fun-
damental rights, I find it necessary to issue a broad Order
requiring the Respondent to cease and desist from infringing
in any manner on rights guaranteed employees by Section 7
of the Act. Regency Manor Nursing Home, 275 NLRB 1261
(1985); Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended41
545RICHARDSON BROS. CO.
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
42 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.’’
ORDER
The Respondent, Richardson Brothers South, a Division of
Richardson Brothers Company, Winona, Mississippi, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting Furniture Workers Division, I.U.E.,
Local 282, AFL–CIO or any other union.
(b) Issuing disciplinary warnings to inhibit, deter, or pre-
vent employee support for Furniture Workers Division,
I.U.E., Local 282, AFL–CIO or any other union.
(c) Engaging in surveillance or creating an impression of
surveillance so as to inhibit, deter, or prevent union organiza-
tional efforts.
(d) Coercively interrogating any employee about their
union activities or sympathies.
(e) Soliciting and promising to remedy employee griev-
ances in order to undermine union organizational efforts.
(f) Offering, promising, or providing wage increases and
benefits to employees in order to undermine union organiza-
tional efforts.
(g) Threatening plant closure, discharges, or other reprisal
to inhibit, deter, or prevent employees from supporting Fur-
niture Workers Division, I.U.E., Local 282, AFL–CIO or any
other union.
(h) Informing employees it would be futile to select Fur-
niture Workers Division, I.U.E., Local 282, AFL–CIO or any
other union as their collective-bargaining representative.
(i) Preventing or attempting to prevent employees from
wearing union hats or insignia or otherwise manifesting sup-
port for Furniture Workers Division, I.U.E., Local 282,
AFL–CIO or any other union at appropriate times and places
and in a proper manner.
(j) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert Rawls and Jerry Woods immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Restore to Jerry Woods the absentee policy exemption
accorded him for work performed as a substitute letter carrier
for the Postal Service, thereby to enable him to continue
such work as in accordance with the pattern established prior
to his unlawful discharge.
(c) Rescind all adverse personnel actions issued to the
above-named employees and to Johnny Brown, Michael
Campbell, Curtis Flowers, Jerome Lindley, Tony Richardson.
Darrell Sizemore, and Claude Ware as a result of the dis-
criminations here found to have been practiced against them,
and remove from its files any reference thereto and notify
these employees, in writing, that it has done so and that the
expunged material will not be used as a basis for any future
personnel actions against them or made reference to in any
response to any inquiry from any employer, prospective em-
ployer, employment agency, unemployment insurance office,
or reference-seeker.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its plant in Winona, Mississippi, copies of the
attached notice marked ‘‘Appendix.’’42 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaints are dismissed
insofar as they allege violations of the Act not specifically
found; and that the proceeding in Case 26–RC–7387 is dis-
missed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
you for supporting Furniture Workers Division, I.U.E., Local
282, AFL–CIO or any other union.
WE WILL NOT issue disciplinary warnings to inhibit, deter,
or prevent you from supporting Furniture Workers Division,
I.U.E., Local 282, AFL–CIO or any other union.
WE WILL NOT spy on you or give an impression of doing
so in order to deter or prevent you from supporting union or-
ganizational efforts.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively question you about your union
activities or sympathies.
WE WILL NOT inquire about grievances or promise to rem-
edy them in order to undermine union organizational efforts.
WE WILL NOT offer, promise, or provide wage increases
and benefits in order to undermine union organizational ef-
forts.
WE WILL NOT threaten to close the plant, end your em-
ployment, or otherwise punish you in order to deter or pre-
vent you from supporting Furniture Workers Division, I.U.E.,
Local 282, AFL–CIO or any other union.
WE WILL NOT tell you it would be futile to select Fur-
niture Workers Division, I.U.E., Local 282, AFL–CIO or any
other union as your collective-bargaining representative.
WE WILL NOT prevent or try to prevent you from wearing
union hats or insignia or otherwise showing support for Fur-
niture Workers Division, I.U.E., Local 282, AFL–CIO or any
other union at appropriate times and places and in a proper
manner.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Robert Rawls and Jerry Woods immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from their un-
lawful discharges, less any net interim earnings, plus interest.
WE WILL restore to Jerry Woods the absentee policy ex-
emption accorded him for work performed as a substitute let-
ter carrier for the Postal Service, thereby to enable him to
continue such work as in accordance with the pattern estab-
lished prior to his unlawful discharge.
WE WILL rescind all adverse personnel actions issued to
the above-named employees and to Johnny Brown, Michael
Campbell, Curtis Flowers, Jerome Lindley, Tony Richardson,
Darrell Sizemore, and Claude Ware as a result of the dis-
criminations here found to have been practiced against them,
and remove from or files any reference thereto and notify
them, in writing, that we have done so and that the removed
material will not be used as a basis for any future personnel
actions against them or made reference to in any response to
any inquiry from any employer, prospective employer, em-
ployment agency, unemployment insurance office, or ref-
erence-seeker.
RICHARDSON BROTHERS SOUTH, A DIVISION
OF RICHARDSON BROTHERS COMPANY