Simmons Industries

National Labor Relations Board - Board Decisions

May 20, 1996

321 N.L.R.B. 228 (N.L.R.B. 1996)

228
321 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There are no exceptions: to the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) and (2) by dominating, interfering with, and
assisting the Jay plant TQM/Fast Food Committee; to any of the
judge’s recommended dismissals of 8(a)(1) allegations; to the rec-
ommended dismissals of 8(a)(3) allegations concerning the discipli-
nary warnings to employees McKinley and Ward and the denial of
the swing crew job to employee Rice; or to the recommended dis-
missal of 8(a)(2) allegations concerning the Jay Plant Corrective Ac-
tion Team and the Southwest City plant ad hoc employee participa-
tion corrective action group.
2 The Respondent and the Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Drywall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by selectively and disparately prohibiting access
of nonemployee union representatives to the Jay plant breakroom,
we rely on the judge’s findings that the Respondent permitted
breakroom access to a wide range of for-profit and charitable enti-
ties. We need not pass on the judge’s suggestion that access pro-
vided to food vendors, standing alone, is sufficient evidence of dis-
parate treatment.
3 Chairman Gould and Member Browning affirm the judge’s
8(a)(2) findings and refer, for further discussion of the Board’s inter-
pretation of Sec. 8(a)(2) as it relates to employee committees or
councils, to Keeler Brass Co., 317 NLRB 1110 (1995); Webcor
Packaging, 319 NLRB 1203 (1995), and Dillon Stores, 319 NLRB
1245 (1995).
For the reasons set forth in Chairman Gould’s separate concurring
opinion in Keeler Brass, he agrees with his colleagues and the judge
that the Respondent’s Safety Committees are labor organizations
within the meaning of Sec. 2(5) and that the Respondent violated
Sec. 8(a)(2) by dominating, assisting and supporting these commit-
tees.
In adopting the judge’s 8(a)(2) findings, Member Cohen notes that
no exceptions were filed to the judge’s findings that the Respondent
unlawfully assisted and dominated its Safety Committees. As to the
judge’s further finding that the Safety Committees were Sec. 2(5)
labor organizations, Member Cohen agrees that, in the specific cir-
cumstances of this case, 2(5) status was established.
4 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
5 We have amended the judge’s conclusions of law to include
those violations of Sec. 8(a)(1) and (3) that the judge found but
failed to include in that section of his decision.
Simmons Industries, Inc. and United Food and
Commercial Workers Union Local 340 and
Plant Safety Committees and Total Quality
Management Committees, Parties in Interest.
Cases 17–CA–16850, 17–CA–17015, and 17–CA–
17086
May 20, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On March 29, 1995, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The Re-
spondent and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed a brief in
reply to the Charging Party’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order as
modified and set forth in full below.4
AMENDED CONCLUSIONS OF LAW5
Insert the following conclusions of law 4, 5, and 6
and renumber subsequent conclusions in the judge’s
decision accordingly.
‘‘4. The Respondent has engaged in unfair labor
practices in violation of Section 8(a)(2) and (1) of the
Act by dominating, assisting, and supporting the Plant
Safety Committees at its Jay, Oklahoma, and South-
west City, Missouri plants, and the Jay, Oklahoma
plant Fast Food Committee.
5. The Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(1) of the Act by:
(a) Interrogating employees about their union mem-
bership, activities, and sympathies of other employees.
(b) Telling employees that they can quit if they do
not like its discriminatory denial of overtime.
(c) Telling employees that it would be futile for
them to select United Food and Commercial Workers
Union Local 340 or any other union as their bargaining
representative and impliedly threatening them with un-
specified reprisals if they select that or any other union
as their bargaining representative.
(d) Creating an impression among employees that
their union activities are under surveillance.
(e) Telling employees that a former employee would
not be hired, in part because of union activities of the
former employee’s spouse.
(f) Threatening employees with violence by any of
its supervisors or other agents if they engage in union
activities.
(g) Selectively and disparately enforcing a rule regu-
lating public access to its Jay, Oklahoma plant em-
ployee breakroom by prohibiting access to that
breakroom by union representatives.
229SIMMONS INDUSTRIES
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.’’
6. The Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(3) and (1) of the Act
by removing employees from their job positions and
assigning them to a lower paying position, and denying
them hours of work opportunities.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Simmons Industries, Inc., Siloam Springs,
Arkansas, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Interrogating its employees about their union
membership, activities, and sympathies of other em-
ployees.
(b) Telling employees that they can quit if they do
not like its discriminatory denial of overtime.
(c) Telling its employees that it would be futile for
them to select United Food and Commercial Workers
Union Local 340 or any other union as their bargaining
representative and impliedly threatening them with un-
specified reprisals if they select that or any other union
as their bargaining representative.
(d) Creating the impression among its employees
that their union activities are under surveillance by Re-
spondent.
(e) Telling employees that a former employee would
not be hired, in part because of union activities of the
former employee’s spouse.
(f) Threatening employees with violence by any of
its supervisors or other agents if they engage in union
activities.
(g) Removing employees from their job positions
and assigning them to lower paying positions, denying
to them hours of work opportunities because of their
membership in, activities on behalf of, or support of
the above-named Union or any other union, or because
of any of their concerted activities otherwise protected
by the Act.
(h) Selectively and disparately enforcing a rule regu-
lating public access to its Jay, Oklahoma plant employ-
ees’ breakroom by prohibiting access to that
breakroom by union representatives.
(i) Dominating, assisting, and supporting the Plant
Safety Committees at its Jay, Oklahoma, and South-
west City, Missouri plants, and the Jay, Oklahoma
plant Fast Food Committee.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Southwest City employee Ronnie Rice, who was un-
lawfully removed from the box room lid machine job
and assigned to a lower paying job, full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Ronnie Rice and Andrea Coffee, who
were unlawfully denied work opportunities, whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(c) Immediately disestablish and cease giving assist-
ance or any other support to the Plant Safety Commit-
tees at its Jay, Oklahoma, and Southwest City, Mis-
souri plants and refrain from reestablishing, assisting,
or supporting the Jay, Oklahoma plant Fast Food Com-
mittee in the manner it had done so from early 1993
through summer 1993.
(d) Allow access by the Union’s representatives to
its Jay, Oklahoma plant employee breakroom to the
same extent and manner permitted other nonemployee
visitors and solicitors.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its Jay, Oklahoma, and Southwest City, Missouri fa-
cilities copies of the attached notice marked ‘‘Appen-
dix.’’6 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
employed by the Respondent at any time since July 19,
1993.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attesting to the steps that the Respondent has taken to
comply.
(h) All allegations in the complaint not found viola-
tive of the Act in this decision are dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate our employees about their
union membership, activities, and sympathies of other
employees.
WE WILL NOT tell employees that they can quit if
they do not like our discriminatory denial of overtime.
WE WILL NOT tell our employees that it would be
futile for them to select United Food and Commercial
Workers Union Local 340 or any other union as their
bargaining representative and impliedly threaten them
with unspecified reprisals if they select that or any
other union as their bargaining representative.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveil-
lance by us.
WE WILL NOT tell employees that a former em-
ployee would not be hired, in part because of union
activities of the former employee’s spouse.
WE WILL NOT threaten employees with violence by
any of our supervisors or other agents if they engage
in union activities.
WE WILL NOT remove employees from their job po-
sitions and assign them to lower paying positions, deny
to them hours of work opportunities because of their
membership in, activities on behalf of, or support of
the above-named Union or any other union, or because
of any of their concerted activities otherwise protected
by the Act.
WE WILL NOT selectively and disparately enforce a
rule regulating public access to our Jay, Oklahoma
plant employees’ breakroom by prohibiting access to
that breakroom by union representatives.
WE WILL NOT dominate, assist, and support the
Plant Safety Committees at our Jay, Oklahoma, and
Southwest City, Missouri plants, and the Jay, Okla-
homa plant Fast Food Committee.
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, within 14 days from the date of this
Order, offer Southwest City employee Ronnie Rice,
who was unlawfully removed from the box room lid
machine job and assigned to a lower paying job, full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Ronnie Rice and Andrea Coffee,
who were unlawfully denied work opportunities, whole
for any loss of earnings and other benefits suffered as
a result of our unlawful conduct, plus interest.
WE WILL immediately disestablish and cease giving
assistance or any other support to the Plant Safety
Committees at our Jay, Oklahoma, and Southwest City,
Missouri plants and refrain from reestablishing, assist-
ing, or supporting the Jay, Oklahoma plant Fast Food
Committee in the manner we had done so from early
1993 through summer 1993.
WE WILL allow access by the Union’s representa-
tives to our Jay, Oklahoma plant employee breakroom
to the same extent and manner permitted other non-
employee visitors and solicitors.
SIMMONS INDUSTRIES, INC.
Stephen E. Wamser, Esq., for the General Counsel.
Hugo Swan Jr., Esq. (McGlinchey, Stafford, Lang, A Law
Group), of Fort Smith, Arkansas, for the Respondent.
Renee L. Bowser, Esq., of Washington, D.C., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. Based on
charges filed in Cases 17–CA–16850 and 17–CA–17015 on
July 19, 1993, and October 18, 1993, respectively, by United
Food and Commercial Workers Union Local 340 (the
Union), the Regional Director for Region 17 issued a con-
solidated complaint and notice of hearing on November 22,
1993, against Simmons Industries, Inc. (Respondent). The
Union thereafter in Case 17–CA–17086 on November 30,
1993, charged that Respondent has been engaging in further
unfair labor practices as set forth in the National Labor Rela-
tions Act (the Act). On January 27, 1994, the Regional Di-
rector issued an order consolidating all the foregoing cases
and a second consolidated complaint and notice of hearing.
The second consolidated complaint (the complaint), alleged
that the Respondent interfered with and coerced its employ-
ees’ organizing efforts on behalf of the Union at two of its
plants located in Jay, Oklahoma, and Southwest City, Mis-
souri, by 11 separate acts of coercion, including interroga-
tions, promises of benefits, and other coercive statements to
employees at the Southwest City plant and one coercive
statement at the Jay plant from June 1993 through December
1994, in violation of Section 8(a)(1) of the Act.
The complaint alleges that during the same period, Re-
spondent discriminated against six of its employees at those
plants by seven different adverse actions, including one dis-
charge, a reduction in work hours, two denials of job oppor-
tunities to one employee, and three pretextual written dis-
ciplinary warnings, because those employees joined or as-
231SIMMONS INDUSTRIES
1 Although notified of the pending charges and complaints, no rep-
resentatives of either the Plant Safety Committee or the Total Qual-
ity Management Committee chose to appear at the trial.
2 The Respondent’s unopposed posttrial motion to correct the tran-
script with respect to numerous obvious minor errors is granted.
sisted the Union, thus violating Section 8(a)(1) and (3) of the
Act.
The complaint alleges that Respondent disparately en-
forced a rule prohibiting public access to its Jay plant
breakroom in a manner that prohibited access to non-
employee union representatives but permitted access to other
nonunion nonemployees in violation of Section 8(a)(1) of the
Act.
Finally, the complaint alleges that Respondent maintained
at its two plants Safety Committees and committees known
as Total Quality Management or ‘‘TQM’’ committees, which
it recognized and dealt with as employee bargaining rep-
resentatives for certain conditions of employment and man-
datory subjects of bargaining and that it dominated and inter-
fered with in violation of Section 8(a)(1) and (2) of the Act.
Respondent filed an answer that denied the commission of
any unfair labor practices. With respect to the Safety Com-
mittees and TQM committees, Respondent asserts that they
are not labor organizations within the meaning of the Act nor
are they dealt with as such but that they were developed and
are maintained by it ‘‘to serve the essential purpose of pro-
moting, and communicating, workplace safety, quality of
product and efficiency.’’
At the trial, the parties were given full opportunity to ad-
duce relevant testimony as well as the opportunity to intro-
duce relevant documentary evidence. All three parties elected
to file posttrial briefs that were received at his office on No-
vember 14, 1994.1
On the entire record in this case, including my evaluation
of documentary evidence, the testimony of witnesses, and my
evaluation of their demeanor, and in consideration of the
briefs, I make the following2
I. JURISDICTION
At all material times Respondent, a corporation with cor-
porate offices in Siloam Springs, Arkansas, and various fa-
cilities in Missouri, Arkansas, Oklahoma, New Mexico, and
Minnesota, including facilities located in Southwest City,
Missouri, and Jay, Oklahoma, has been engaged in the pro-
duction, processing, and distribution of poultry. During the
12-month period ending July 31, 1993, Respondent, in con-
ducting its business operations, sold and shipped from its
Missouri facilities goods valued in excess of $50,000 directly
to points outside the State of Missouri. During the 12-month
period ending July 31, 1993, Respondent, in conducting its
business operations, sold and shipped from its Oklahoma fa-
cilities goods valued in excess of $50,000 directly to points
outside the State of Oklahoma.
It is admitted, and I find, that at all material times United
Food and Commercial Workers Union Local 340 has been a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
The two chicken processing plants operated by Respondent
that are involved in this proceeding are located at Jay, Okla-
homa, and Southwest City, Missouri, where it employs about
300 to 400 employees and about 600 employees, respec-
tively. Each plant operated under its own set of managers
and personnel directors. Both plants were subject to overall
direction and policy formulated at Respondent’s headquarters
staff located at its corporate headquarters in Siloam Springs,
Arkansas.
The operations at both plants involve the sequential clean-
ing, eviscerating, cutting, packaging, and shipping of chick-
ens to customers, the most prominent of which was the Ken-
tucky Fried Chicken enterprise (KFC). At one point, Re-
spondent’s KFC operations involved the initial implementa-
tion of the processing incidental to the KFC rotisserie chick-
en product that involved the rapid injection of a marinade
fluid by a machine fitted with thousands of injection needles
at a certain point in the production process. KFC’s quality
concerns strongly influenced Respondent’s institution of the
Total Quality Management Committees known as TQM.
In the spring and summer of 1993, the Union commenced
an as-yet unsuccessful effort to organize the employees at the
Jay and Southwest City plants. The institution of the Safety
and TQM Committees had preceded the organizing efforts
and necessarily fell beyond the 10(b) period set forth in the
Act with respect to timeliness. Evidence preceding that pe-
riod, however, was adduced not for the purpose of establish-
ing prior violations, but rather for understanding the nature
and functions of the committees as manifested during the
10(b) period. The General Counsel’s theory of violation does
not rest on argument or evidence of union animus with re-
spect to the institution or maintenance of the committees.
Initial organizing efforts started at the Southwest City
plant in early June according to Union Representative Carl
Ariston. According to him, organizational meetings were
held with employees in June and he visited employees’
homes to solicit their signatures on union authorization cards,
and the Southwest City plant was handbilled. Union author-
ization cards were given to employees who, in turn, solicited
other employees’ signatures on and off Respondent’s prop-
erty. Ariston testified that in mid-June 1993, he gave six
black T-shirts with prounion legends printed thereon to the
‘‘main’’ Southwest City employee supporters of whom he
named Peter Inda, Randy Nicholson, Karla Burrel, and James
Jackson. Later, other such shirts were distributed to other
employees.
Ariston testified that he distributed red-colored, prounion
T-shirts in July. In early October 1993, a leaflet purporting
to be a statement of prounion employees was distributed in
the Southwest City plant by prounion employees. The Re-
spondent made no effort to prevent the distribution and
placement of prounion literature by employees in its
breakroom facilities in the plants. The October leaflet bore
the purported signatures of 19 employees, including signa-
tures of alleged discriminatees Inda and Nicholson.
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Clearly, Rice is incorrect as to the date because Rockrohr did not
transfer to the day shift until September 1 and had no occasion to
visit the box room on the day shift before then.
B. Independent 8(a)(1) Violations—Southwest City
Plant (Complaint par. 8)
Eleven of the twelve allegations of specific coercive inter-
ference with the employees’ Section 7 rights relate to the
Southwest City plant. The remaining allegation, paragraph
8(a), is related to paragraphs 9(a) and (b) allegations of dis-
criminatory disciplinary warnings at the Jay plant.
1. Conduct of Superintendent Gary Rockrohr
Gary Rockrohr had been the Southwest City plant night-
shift manager from May 1 through August 1993 when he
then became, on September 1, the day-shift superintendent of
second processing. His jurisdiction on day shift covered 126
employees engaged in the processes of chilling, grading,
KFC saw operation, food craft lines, spice injection, box as-
sembly (box room), packaging, and stacking. He is alleged
as an admitted agent of Respondent to have been responsible
for 6 of the 11 alleged 8(a)(1) violations at the Southwest
City plant. The remainder are attributed to six other Re-
spondent agents. Rockrohr’s testimony conflicts with four
General Counsel witnesses to the underlying incidents. Two
of these are alleged discriminatees Inda and Nicholson. The
other two are box room employees Ronnie Rice and Melvin
Killian. All four of them claimed to have been openly active
union advocates, i.e., all except Inda, hand-billed employees
at the plant, and all wore union T-shirts. Rice, Nicholson,
and Killian were employed by Respondent at the time of the
trial and thus risked their employer’s displeasure by testify-
ing adversely to its interests. Killian had nothing to gain ex-
cept the vindication of the Union’s position. Rice was al-
leged to have been discriminated against with respect to job
assignments, and Nicholson is alleged to have discrimin-
atorily received a formal disciplinary warning. Thus their tes-
timony arguably tended to indirectly support a remedial order
that would have benefited them. Such possible bias would
have been less of a factor with Nicholson who would gain
at most removal of a written warning in his personnel file.
Rockrohr, on the other hand, had only been employed by
Respondent for about 2 years and, as a seemingly upwardly
mobile manager, had much more to gain by testifying favor-
ably in his employer’s interest. None of the foregoing factors
alone is dispositive of credibility. However, these and other
factors, including demeanor, lead me to credit the General
Counsel witnesses’ testimony, much of which was mutually
corroborated and given in a clear, convincing, essentially
consistent manner. Inda admittedly had a poor recollection
with respect to dates, and Rice placed a conversation in July
when it clearly must have occurred in September.
Overall, I conclude that the General Counsel’s witnesses
exhibited a more spontaneous and convincing demeanor than
the Respondent’s witnesses. Rockrohr proved himself to be
an evasive, calculating, and disingenuous witness in cross-ex-
amination, particularly with respect to the distribution of Re-
spondent’s campaign literature opposing union representation.
This literature was distributed by Rockrohr and other super-
visors to employees in the plant hallway. Rockrohr distrib-
uted this literature on two occasions to 126 employees.
Rockrohr refused to even concede the innocent fact that Re-
spondent’s position on that literature opposed unionization.
He incredulously testified that he did not even read what he
had distributed and, furthermore, that he was unable to esti-
mate whether or not Respondent’s own literature may have
even actually promoted the Union. Rockrohr thus gave the
impression that in an area where he was uncertain whether
his truthful testimony would adversely affect the Respondent,
he would rather respond with evasions and absurdities. Thus
he undermined his credibility. Except where seriously
flawed, as will be noted hereafter, I find the General Coun-
sel’s witnesses to be more credible with respect to the para-
graph 8 allegations and find that the following conduct was
engaged in by Rockrohr.
a. Union hat and T-shirt prohibitions (complaint par.
8(b) as amended at trial)
On his return to the day-shift position on September 1993,
Rockrohr’s duties entailed indirect supervision of Inda and
Rice in the box room that Rockrohr periodically inspected.
It is undisputed that USDA sanitation rules required Re-
spondent to mandate certain rules regarding employee attire
in production areas, including the box room. These rules re-
quired such things as hair nets and company-provided
smocks.
Rice testified in direct examination that the first time that
Rockrohr saw him wearing a union soft hat in the box room
and the first occasion he had worn one there, he was told
to remove it, i.e., early July just after he received the shirt.
Rice complied. They were alone. A week later, Rice testified
that he again was seen by Rockrohr in the box room and was
again told by him to remove his hat.3 Rice testified that em-
ployee Kenny Perdue was present but was not told to remove
his hat. In the next breath, Rice testified that Rockrohr told
all employees present to ‘‘take off our caps.’’ According to
Rice, the only employee of five present wearing a union hat,
he removed it, but claimed nothing was said to Perdue who
continued to wear a dirty, nonunion soft baseball cap within
2 feet of Rockrohr. He testified in direct examination that
Inda was present but did not wear a hat. In cross-examina-
tion, he testified that Inda wore a union hat and removed it.
This is inconsistent with his testimony that only he and
Perdue wore hats and that Rockrohr told employees to re-
move ‘‘our hats.’’ He failed to testify whether Rockrohr lin-
gered to observe whether his orders were obeyed.
In mid-September, Inda and Rice both wore union T-shirts
but had removed their company smocks and hung them on
the door, allegedly because they felt that the room was too
warm. Rockrohr entered and told them to ‘‘get your smocks
on.’’ In direct examination, Rice testified that all employees
in the room had removed their smocks because of the heat.
Thus he implied that if it were not for the heat, his proper
attire would have been a covering smock. In cross-examina-
tion, Rice testified that he, Inda, and Perdue had removed
their smocks but that a box maker named Janell wore her
smock. Rice testified that he and Inda put on their smocks,
but he could not testify with certainty whether or not Perdue
failed to put on a smock within Rockrohr’s point of observa-
tion.
Inda corroborates the smock incident to a very cryptic ex-
tent, testifying only that Rice was asked to put on a smock.
He, however was confused at first whether it involved a hat
233SIMMONS INDUSTRIES
or a smock but appeared to settle on a smock. He was not
asked whether he was present and also asked to remove a
hat.
Rockrohr testified that soft caps are generally prohibited
because of sanitation conditions. Neither Rice nor any other
General Counsel witness contradicted Rockrohr as to the
sanitation-apparel rules, except Rice testified that Perdue fre-
quently wore his baseball cap. It was not clear that Perdue
always did so in the presence of a supervisor. The General
Counsel’s witnesses are silent about whether any of the other
600 employees wore caps or removed smocks because of
heat except for some unfounded speculation and as to inci-
dents unobserved by Rockrohr.
It is undisputed that Respondent distributed to its employ-
ees 10 printed rules regarding attire, one of which required
the wearing of smocks over street clothes. The only rule re-
ferring to headgear requires the wearing of hair nets in pro-
duction areas. The rules are silent as to hats. Rockrohr testi-
fied that he interpreted these rules to preclude the wearing
of caps over the hair net except for the hard plastic caps
issued by Respondent. He testified without specific detail and
without corroboration that he had ordered an indeterminate
number of unidentified employees to remove soft ball caps
on unspecified dates. Rockrohr admitted the hat removal and
smock wearing order but denied awareness that Perdue dis-
obeyed.
The General Counsel cites Republican Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), for the proportion that employ-
ees have the right to wear union insignia without inter-
ference. He also cites Burger King Corp., 265 NLRB 1507
(1982), for the proposition that an employer must dem-
onstrate special circumstances to warrant a prohibition of
union insignia. The General Counsel, while acknowledging
Respondent’s assertion of USDA sanitation rules, argues that
Respondent failed to justify its disparate enforcement of
those rules.
I conclude that the General Counsel has failed to establish
sufficiently clear evidence of discriminatory application of
the smock wearing rule. With respect to the not-soft-hat rule,
Rockrohr testified that contaminants are liable to fall from
such hats onto the food processed or packed. He was
uncontroverted. With respect to the hat wearing incidents, the
only evidence of disparate enforcement of Respondent’s
headgear rule rests on the testimony of Rice with respect to
his own experience, i.e., 1 of 600 employees. I find Rice’s
testimony as to this incident improbable as to date,
uncorroborated in essential detail by Inda who was present,
and internally inconsistent. With respect to these incidents, I
found his demeanor less certain and spontaneous than that of
Rockrohr whom I credit despite his flawed credibility. Ac-
cordingly, I find evidence insufficient on which to conclude
disparity of enforcement of a facially reasonable sanitation
rule. I conclude that paragraph 8(b) of the complaint is with-
out merit.
b. October interrogation by Rockrohr (par. 8(d))
This allegation, like that in complaint paragraph 8(b), was
amended at trial to conform with the testimony of Rice, the
witness on whose testimony the allegation is founded. Be-
cause of the flawed credibility of Rockrohr, particularly as
to this incident, I credit the more certain and convincing tes-
timony of Rice and employee Andrea Coffee.
On a Friday in early to mid-October, Rice walked up to
a point in the plant hallway between the personnel office and
the employee breakroom where Rockrohr was handing to
employees Respondent leaflets that discouraged union rep-
resentation. Rockrohr asked Rice, ‘‘Do you want this?’’ Rice
replied that he did not and that he was already aware that
it was antiunion literature, which he told Rockrohr that he
did not want to ‘‘listen to.’’ Rockrohr then asked Rice when
he thought that the Union ‘‘was coming in here.’’ Rice re-
plied, ‘‘probably around November.’’ Rockrohr then asked
Rice how many union cards he had employees sign. Rice tes-
tified that he could not recall the number of cards but he told
Rockrohr that he, in fact, had employees sign them. At that
point, deboner Andrea Coffee walked up and Rockrohr asked
her whether she wanted the leaflet. Coffee declined and told
him that she did not want more Respondent lies and kept
walking.
I conclude that despite the fact that Rice had openly pub-
licized his support of the Union, inter alia, by wearing union
hats and T-shirts and by rejecting Respondent’s literature,
there was no justification for a high ranking manager to
question Rice as to the precise extent of union support
among his coworkers by asking when he thought they would
succeed in their representation efforts and precisely how
many of them signed union cards. I find the conversation
tended to coerce Rice with respect to his continued union ef-
forts by pointedly signaling to him that Respondent was fo-
cusing on his individual involvement with the Union without
simultaneous assurances against reprisals. Moreover,
Rockrohr’s conduct occurred in the context of other unlawful
conduct to be discussed hereafter. I find that Respondent vio-
lated Section 8(a)(1) of the Act as alleged in paragraph 8(d).
c. Threats of futility of protected activity and reprisals
(par. 8(f))
Employee Randy Nicholson signed a union card in early
summer and joined other employees and union agents in
handbilling other employees outside at the entrance to the
Southwest City plant. At least once a week, he wore a union
T-shirt and union hat. Shortly after receipt and wearing of
his red union shirt in August 1993, Rockrohr engaged him
in an almost daily ongoing series of confrontations up
through November at a variety of locations in the plant, in-
cluding the breakroom, the trash dumpster, the drydock, or
the work area. Rockrohr on these occasions peppered Nichol-
son with remarks and questions as to his union sympathy and
involvement, including such questions and comments as
‘‘How about that union of yours?’’ ‘‘Why are you trying to
get the Union in?’’ ‘‘It won’t affect me one way or the other
but it’s not good for you.’’ ‘‘It’s not going to be any good,
and it’s not going to help you, there’s no way the Union will
get in.’’
Arguably, some of these comments, had they been isolated
and in response to Nicholson’s prounion statements, might
have been innocent. But here, a high level manager daily
confronted and questioned a low-level employee who had
chosen to publicly display union support. I conclude that the
continual expression of futility and promise of negative re-
sults to the employees formed a reasonable basis for the em-
ployee to understand that he was being warned to expect un-
specified reprisals if he successfully persists in his attempts
to convince the employees to choose union representation. I
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conclude that the complaint allegation 8(f) is meritorious and
Respondent violated Section 8(a)(1) of the Act by telling em-
ployees that designation of the Union as bargaining agent
would be futile and that they could suffer unspecified repris-
als as a consequence. See Medlin Realty Corp., 307 NLRB
497, 502–503 (1992), wherein employees were told that they
would ‘‘lose in the end’’ and their representation would ‘‘go
no where.’’
I further find that the same series of confrontations con-
stituted unwarranted, inherently coercive interrogations as to
Nicholson’s prounion motivations and, as such, were viola-
tive of Section 8(a)(1) of the Act and that in the context of
a clearly vigorous opposition by Rockrohr, his statements of
futility of union representations were coercively enhanced.
Compare Alterman Transport Lines, 308 NLRB 1282, 1285
(1992).
d. Late November interrogations, impressions of
surveillance, and threats of unspecified reprisals
(Complaint pars. 8(g) and (h))
I have already concluded that Rockrohr’s daily interroga-
tions and threats of unspecified reprisals that continued
through November violated Section 8(a)(1) of the Act.
Rockrohr continued to confront Nicholson. He also turned
his attention to another Southwest City production employee
who had hand-billed for the Union and periodically wore the
red, union T-shirt, Melvin Killian. Despite some minor diver-
gencies, particularly as to the first incident, Killian and Nich-
olson were essentially mutually corroborated. However,
where differences exist, I have accepted Nicholson’s account
as more accurate. Nicholson’s testimony was more deliberate
and detailed and internally consistent. Both of them were
more certain and convincing than Rockrohr.
On a date between November 18 and 22, Killian, Nichol-
son, and employee Gilstrap were seated together at about 1
p.m. eating lunch in the breakroom. Gilstrap was not seen to
have worn any prounion insignia. Rockrohr, who had been
sitting at a table behind them, arose, walked up behind them,
sat down and joined them in conversation. Rockrohr raised
the subject of the Union by asking them ‘‘how was the big
get together, your union meeting.’’ He asked them whether
300 or 400 employees attended but then amended his ques-
tion by saying, ‘‘never mind, what I can’t find out, I can find
out from Randy [Nicholson]. He’s our company stooley.’’ At
that point, Rockrohr got up and walked away without waiting
for a response.
On the evening of November 22, the Union held another
meeting with employees. One of the things discussed at that
meeting was a rumor that purported union activist, swing
crew employee Karla Burrel had given to the Respondent
union cards signed by employees. Union Agent Ariston and
two employee activists later that day visited her at her home
to confront her with the rumor.
At lunch time, Nicholson, Killian, and Gilstrap were again
similarly approached by Rockrohr at their lunch table.
Rockrohr came up from behind them and placed his hands
on the shoulders of Nicholson and Killian. Rockrohr asked
them how their ‘‘big union meeting went.’’ He said, ‘‘Well
Melvin [Killian] beware, Randy [Nicholson] is our stooley,’’
and that what Rockrohr would not discover on his own he
would get from Nicholson. Further, Rockrohr told them that
he did not need Burrel as an informant anymore. Rockrohr
started to walk way, hesitated and said, ‘‘By the way Randy,
I don’t appreciate you making my swing group girl [Burrel]
cry.’’
I conclude that Rockrohr’s comments to Nicholson and
Killian were calculated to and were reasonably interpreted by
the recipient to conclude that the Respondent was engaging
in surveillance of their protected activities and constituted
coercion. It is no defense that those employees, or two of
them, were open union advocates. See United Charter Serv-
ice, 306 NLRB 150 (1992), and also Medlin Realty Corp.,
supra.
The timing of those statements on the heels of the union
meeting and the flagrant attempt to create suspicion and divi-
siveness amidst prounion employees aggravates the severity
of the coercion, as it does the coerciveness of the interroga-
tion with which it was coupled. Accordingly, I find Respond-
ent unlawfully interrogated its employees, implied surveil-
lance of their union activities, and threatened employees with
unspecified reprisals (i.e., the ongoing confrontation with
Nicholson discussed above) as alleged in paragraph 8(g) and
(h) of the complaint.
e. Threat of violence (complaint par. 8(j))
The final episode involving Rockrohr’s apparently deep-
seated proclivity toward union related confrontation occurred
in December on about December 6. Nicholson was in the
breakroom in the plant and about to start his shift when
Rockrohr confronted him and excitedly told him that he had
just finished talking to Cecil Vaughn, the shift manager at
the Southwest City plant and admitted supervisor. Rockrohr
told Nicholson that Vaughn said that if he ever caught em-
ployee Virgil Luff in Vaughn’s trailer court residence solicit-
ing union card signatures, that Vaughn ‘‘would kick his
[Luff’s] f—ing ass.’’
Any discussion of this incident is unnecessary as it is
clearly and palpably coercive for a high-level manager to tell
an employee that another employee will be subject to assault
and battery by another manager if he engages in protected
activity at a trailer court where that manager is one of many
residents. Accordingly, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by threatening employees with vio-
lence if they engage in union activities as alleged in para-
graph 8(j).
2. Conduct of Plant Manager Bridges and Supervisor
Roark (complaint par. 8(c))
Paragraph 8(c) alleges that in July, Southwest City Plant
Manager Paul Bridges and Supervisor Jerry Roark solicited
employees’ complaints and grievances, remedied same, and
promised increased benefits and improved terms and condi-
tions of employment if they rejected the Union.
Evidence in support of this allegation rests on the testi-
mony of KFC deboning department employee Andrea Coffee
whose tenure dates back to 1987. Paul Bridges has been the
plant manager since January 1993 when his tenure com-
menced. Jerry Roark was hired 15 years ago and has been
a KFC department supervisor for 6 years. All three persons
are employed on the day shift.
Coffee testified that she began wearing a union T-shirt in
July. The precise date is not clear. In early June, she claims
to have had a conversation with Plant Manager Bridges. She
235SIMMONS INDUSTRIES
4 Although at that time Smith was a trainee supervisor, his status
as a statutory supervisor on that date is admitted.
even, according to her, initiated a complaint with him. He
did not solicit her complaint. She complained that a new girl,
Sandy, had been hired and that Sandy was now doing
deboning work whereas Coffee was helping her and she did
not like it. She did not explain why she did not like it. Ac-
cording to her, Bridges claimed ignorance of the situation but
promised to ‘‘look into it.’’ Coffee then volunteered to him
the observation that the employees need a union because se-
niority meant next to nothing. She testified that she encoun-
tered him several times after that with the same prounion
statement and he told her to ‘‘calm down’’ and that he would
look into it and take care of it without the Union. Two
weeks later, she and Sandy were assigned reverse positions.
Bridges’ recollection was uncertain as to conversations
with Coffee but generally tracked that of Coffee. He testified
that he told her to give him a chance to look into the situa-
tion and she did make the remark about needing a union to
which he did not respond. He admitted that at some time he
did tell her that he would talk to the department supervisor
and would ‘‘try to take care of’’ her problem. He could not
recall making other remarks and was thus unable to categori-
cally deny them. Bridges testified that he did talk to her su-
pervisor, Roark, and was told that because of the repetitive
nature of deboning, it was necessary to periodically inter-
change the functions of the laborer and the person who col-
lects miscut parts and brings them to the deboner by means
of pushcarts. He had no recollection of giving the supervisor
any instructions regarding her complaint nor of changing any
assignment that Roark made.
Roark testified to a conversation he had with Coffee prior
to her complaint to Bridges. She neither contradicted him nor
rebutted his testimony, which I accordingly credit. Initially,
Coffee complained to Roark that it was not fair for her to
collect the chicken parts for deboning, and he explained to
her the necessity to periodically trade off assignments be-
tween the deboner and collector of parts the way it had al-
ways been done and it would not be fair to the new em-
ployee to discontinue that practice. His characterization of
past practice was never disputed. Apparently, Coffee did not
like the idea of a new employee benefiting from the periodic
exchange. Roark explained to Bridges that it was only fair
to switch employees who were paid the same wage and not
to compel one employee to perform the heavier task of lift-
ing up to 25-pound parts while keeping the other at the sta-
tionary repetitive deboning job. He testified, without rebuttal
contradiction, that he and Bridges went and explained his
fairness objective to Coffee and she then agreed with it. He
testified, without rebuttal, that Coffee’s specific complaint
was that she wanted to sit on a stool and debone all the time.
He was not contradicted that the deboner and collector had
traded functions every 30 minutes throughout the summer of
1993 and thereafter.
Based on the unrebutted and thus uncontradicted testimony
of Respondent’s witness, Roark, there had been and contin-
ued to be a tradeoff of job functions between deboner and
collector. I therefore conclude that Respondent solicited no
complaints from employees and remedied no complaint but
continued to do what it always had done with respect to the
job tradeoff in question. It is therefore unnecessary to evalu-
ate whether it would have been unlawful for Respondent to
investigate employee complaints in absence of evidence that
it had not been its past practice to do so, and in the face of
allegations that Respondent’s preexisting practice in part had
been to respond to employee suggestions via the TQM and
safety committees. Accordingly, I find no merit to complaint
paragraph 8(c).
3. Conduct of Southwest City Plant Employee
Coordinator Frank Crosby (complaint par. 8(l))
It is alleged that on November 25, Crosby, an admitted su-
pervisor, told an employee that a former employee would not
be rehired in part because of that former employee’s spouse’s
union activities.
The General Counsel witness in support of this allegation
is currently employed by Respondent, i.e., Virgil Luff, who
had been its night-shift personnel manager from September
1992 to November 22, 1993. For personal reasons, he trans-
ferred from that managerial position to that of a forklift oper-
ator on November 22. His new job took him outdoors for a
substantial part of his workday. Both Crosby and Luff
worked the day shift. I found that Luff possessed greater flu-
ency, spontaneity, certitude, and conviction in demeanor than
Crosby. He was also more detailed. Furthermore, he was tes-
tifying against the interests of his employer to no advantage
to himself except for the vindication of his prounion sym-
pathies, i.e., he espoused the union cause and wore a union
insignia on his jacket during late 1993. I credit the testimony
of Luff and find that the following events occurred.
On November 24, shortly after Luff had started his new
job duties, and after he had left the breakroom, he stopped
by the personnel office to chat with Crosby. They discussed
his enjoyment of his outdoor job. Luff commented that he
noticed that a former employee and had been seeking reem-
ployment at the plant. Crosby told Luff that Respondent did
not want his kind in the plant because he had tested high for
drug abuse a year earlier ‘‘and besides that his wife supports
that union crap.’’ Luff then returned to work and the con-
versation ended.
Clearly, Crosby realized or should have realized that Luff
was no longer a managerial employee (if indeed he had ever
exercised statutory supervisor authority) and was not subject
to protection of the Act. I agree that it is inherently coercive
for an employee to be told that employment rights are jeop-
ardized by the protected activities of their spouses. I find that
Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 8(l) of the complaint.
4. Statements of Supervisor-Trainee Tim Smith and
Supervisor Bud Gow on December 9 and 10, 1993, to
Forklift Driver Luff (complaint pars. 8(k) and (l))
These two complaint allegations arise out of incidents that
occurred on December 9 and 10, 1993, in a small room near
the shipping office where the outside drivers such as Luff
took their breaks. On December 9, Luff was taking his break
there with truckdriver Benny Claxton and shipping employee
Chris Moreland and other unidentified hourly paid employ-
ees. Supervisor Trainee Tim Smith allegedly entered and
made a statement to Luff.4 A credibility resolution between
Luff and Smith is difficult. Luff was an employee at the time
of trial, but Smith was not employed by Respondent and ap-
peared to be a disinterested and also an uninterested witness.
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Both suffered from poor recollection of what was said and
both admitted difficulty in recalling precisely what was said.
It is undisputed that Luff was wearing an outdoor jacket, pre-
viously given to him as a manager, onto which he had af-
fixed a union insignia. It is alleged that Smith coercively in-
terrogated Luff. However, even if Luff’s testimony is cred-
ited, Smith merely angrily expostulated at the sighting of the
union insignia on the former manager jacket:
[W]hy do you have that f—ing Union patch on your
jacket? You’re not stupid enough to support that f—ing
Union.
Although it is not entirely clear from Luff’s testimony, it
appears that without waiting for a response, Smith asked
whether Luff worked at Hudsons, a nearby poultry plant
where employees are represented by the Union. The room
immediately fell silent and Luff went outside back to work.
Luff’s general demeanor and certitude were very good, but
uncharacteristically his testimony with respect to the Decem-
ber 9 incident was very poor. He hesitated and had to be
prompted by counsel and responded in a monotone sugges-
tive of a memorized answer. Despite Smith’s also uncertain
responses, I cannot comfortably credit Luff on this point. In
any event, I find that Smith’s conduct appeared to consist
more of an angry rhetorical outburst, wherein no answer was
actually expected from an openly proclaimed union sup-
porter. I find no merit to paragraph 8(k).
On the following day in the same room, at his breaktime,
wearing the same jacket and union insignia, Luff encountered
Shipping Supervisor Gow who, on noticing the union patch,
also reacted with a statement that is alleged to constitute co-
ercive interrogation and a threat of wage reduction. The two
witnesses’ recollective certitude improved somewhat as to
this incident but, again, neither proved to be entirely con-
vincing. Gow admitted that his recollection was vague, and
Luff could not recall some incriminating things that I find
Gow admitted were said. Based on the relative strength of
certitude regarding parts of the conversation and admissions
of Gow, I find the following conversation occurred.
When Gow looked at Luff’s union patch, he exclaimed,
‘‘you’re not crazy enough to support that lazy Union are
you?’’ Without waiting for the obvious answer from the self-
proclaimed union sympathizer, Gow went on to say: ‘‘It
makes no difference to me but it would cause problems.’’
Luff responded, ‘‘I hope so.’’ Gow then stated it really
didn’t make any difference but it could affect wages [be-
cause] wages could go down because everything starts [from]
ground zero from what I understand.’’ I find that he also
stated, ‘‘and [it could affect] our salaried people.’’ To that,
Luff merely shrugged and departed.
I find that Gow merely uttered rhetorical expostulation to
an openly self-identified union adherent that called for no re-
sponse. I further find that the balance of his statement would
have clearly been understood by the former night-shift per-
sonnel manager as a reference to the possibilities inherent in
collective bargaining and did not tend to be construed as a
threat of vindictive retaliation. I therefore conclude that there
is no merit to paragraph 8(l).
Paragraph 8(e) relates to an alleged coercive statement to
Andrea Coffee to the effect that she could quit if she did not
like the denial of overtime alleged to be discriminatory and
violative of the Act in Section 9(g) of the complaint. Para-
graph 8(e) will be discussed in the context of 9(g) below.
Paragraph 8(a) of the complaint is related to alleged dis-
criminatory disciplinary warnings to two employees at the
Jay plant in paragraph 9(a) and will be discussed hereafter.
C. Alleged 8(a)(1) and (3) Interference and
Discrimination at the Jay Plant—Sexual Harassment
Paragraphs 9(a) and (b) allege that Jay plant employees
Earl McKinley and Danny Ward were issued discriminatory
disciplinary warnings on November 15 and 16, respectively,
because of their union activities or sympathies. Paragraph
8(a) alleges that one of them was told that the discipline was
unlawfully motivated. Respondent’s proffered defense is that
the two employees were reprimanded in proportionate sever-
ity to their participation in what Respondent perceived to be
was sexual harassment of coworker Michelle Van Buskirk on
November 11, 1993, or at least for their creation of a hostile
environment conducive to sexual harassment.
The underlying facts regarding the November 11 incident
are not essentially disputed. What occurred on that day was
that Ward and McKinley had engaged in some horseplay that
escalated into conduct toward Van Buskirk that reasonably
could be construed as sexual harassment. The General Coun-
sel’s theory of violation rests on an argument of disparity of
treatment toward known union activists Ward and McKinley
and toward known outspoken antiunion employees, i.e.,
Michelle’s husband, Shane Van Buskirk, whom it is argued
displayed sexually offensive remarks on his hand-scribbled,
antiunion sloganed work apron 1 month earlier. The General
Counsel also relies on the alleged admissions that constitutes
the paragraph 8(a) allegation. Ward and McKinley openly
wore prounion T-shirts to work once or twice a week. They
both solicited signatures for union cards, sometimes in the
breakroom. At some unknown date late in 1993, McKinley
distributed leaflets outside the plant entrance. Moreover, with
respect to the Shane Van Buskirk incident, it was McKinley
who complained to Jay Plant Manager Robert Stauber about
the antiunion apron, thus disclosing his own prounion senti-
ments.
The incident of Thursday, November 11, arose at a saw
table tended to by Ward, McKinley, Michelle Van Buskirk,
and Art Adams. The four were positioned in a square pattern
as they cut chicken parts that were mechanically conveyed
to them. Even Michelle Van Buskirk admitted that in the
past, her male coworkers threw scrap animal parts about, al-
though contrary to their testimony, she claimed that she had
not before been the target. Their past horseplay is irrelevant
because she had never complained before and it was not
proven to have been known to Respondent to have involved
sexual references.
On the day of November 11, ice chips were thrown down
the front of Van Buskirk’s blouse that became saturated with
melted water. None was thrown by McKinley who formed
the northeast point of the square and looked north, away
from Buskirk who was the southwest point facing north and
Ward who was the southeast point facing north. Adams
formed the northwest point facing south to Van Buskirk. Van
Buskirk testified that only Ward threw the offending ice
chips down the front of her blouse but that Ward and
McKinley joked about the effect on her cold wet breasts, i.e.,
that Ward said that he bet that it hardened her nipples to the
237SIMMONS INDUSTRIES
extent that it interfered with her ability to saw and that
McKinley said that her ‘‘headlights’’ had shone so brightly
that they could not see. She testified that she later com-
plained about this conduct to Respondent. In an interview
with its four managers on Monday, the November 15, she
signed a statement. Present were Stauber, personnel director
at Jay; Vernon Holland, Jay plant second processing super-
intendent; Wayne Dunham; and Corporate Human Resource
Director Roger Brune who was called in from headquarters
by the local managers. That document recited that she had
been afraid to say anything to the offending males because
they would ‘‘get mad’’ at her.
Ward testified that it was Adams who threw the ice and
made the ‘‘headlights’’ comment but admitted that he made
the hard nipples comment, at which all four employees
laughed. In cross-examination, he admitted that he had
thrown ice down her blouse repeatedly, laughed, and made
the comments while McKinley faced away from them.
McKinley testified that Ward was behind him and that he
faced away from Ward and heard only ‘‘bits and pieces’’ of
the comments that he testified went on ‘‘for a couple of
hours.’’ Ward testified it lasted only 10 minutes. McKinley
testified that ‘‘someone’’ made the headlight comment but
that he and Ward were too busy with work to pay attention
to Adams who continued picking on Van Buskirk because
the line of chickens was too full. Yet, McKinley earlier testi-
fied that it was a slow day and the four of them had joked
together. McKinley testified that when he was called to the
office on Monday and interviewed by the four managers, he
admitted laughing but accused not only Adams but Ward of
throwing ice. Later, when examined by union counsel, he
claimed that it was Adams who made the headlight remark
and had done so three or four times earlier as well. He iden-
tified Adams as a close friend of Shane Van Buskirk, of
whose antiunion conduct he took earlier offense. In cross-ex-
amination, he admitted that he actually saw Ward throw the
ice down Van Buskirk’s blouse three or four times and that,
contrary to Ward’s testimony, it was Ward who made the
‘‘headlights’’ comment, not Adams. However, he insisted
that Adams made the ‘‘hard nipples remark,’’ although he,
McKinley, admittedly laughed. Ward, however, admitted it
was he who made that remark.
Clearly, Ward and McKinley have given self-contradictory
and mutually inconsistent testimony regarding the incident.
Having testified that they gave these versions to Respondent,
I conclude that Respondent reasonably concluded, as I do,
that Van Buskirk gave the more accurate and credible ver-
sion of what occurred. I also credit the testimony of Stauber
and Holland as to admissions made to them in those inves-
tigative interviews. Clearly, Ward and McKinley falsely tried
to incriminate Adams either to exculpate themselves or be-
cause Adams was perceived to be allied with Shane Van
Buskirk who had persuaded his wife to complain personally
about the incident on Monday, after his own hearsay com-
plaint was rejected by Stauber on Friday.
When Ward received his warning on November 16 at a
meeting with Stauber and Holland, Ward protested to them
that the discipline that he and McKinley received in the form
of a written warning for sexual harassment was simply the
result of an attempt at revenge by Shane Van Buskirk against
Ward and the Union for his participation with McKinley in
earlier protesting to Stauber Shane Van Buskirk’s antiunion
apron.
Ward testified that Holland made a damaging admission to
him at a point after Stauber had left the room momentarily,
thus providing himself with the lack of a corroborating wit-
ness. According to Ward, it was then that Holland told him
in response to the revenge accusation, ‘‘I know it, but that’s
just between you and me. I’m getting pretty tired of the
union business.’’ Even if credited, argument can be made
that the statement does not constitute a clear-cut admission.
Respondent may have suspected that Shane sought revenge,
but it may also have concluded that regardless of her hus-
band’s motives, the treatment toward his wife warranted dis-
ciplinary action. In any event, I do not credit Ward because
of the above-noted contradictions and inconsistencies. Sec-
ondly, Holland was more certain and convincing in de-
meanor. Finally, I find it highly improbable a high-ranking
manager would have blithely admitted the pretextual nature
of an unlawfully motivated action. I find Holland’s version
more probable and convincing, i.e., he told McKinley, not
Ward, that he was getting tired of all this ‘‘family business,’’
i.e., McKinley’s earlier protest was premised on his belief
that Shane Van Buskirk’s hand-scribbled, antiunion apron
was directed at his wife. The apron had written on it 10 rea-
sons not to support the Union, one of which was ‘‘if it
wasn’t for the Union, we wouldn’t have to look up these
union skirts.’’ Another listed reason argued by the General
Counsel to be sexual innuendo was the statement, ‘‘Union
supporters sleep with animals.’’
For reasons noted above, I discredit the testimony of
McKinley and Ward wherever it conflicts with Respondent’s
witnesses. I find that Respondent had reasons to believe that
the two prounion employees had engaged in conduct that
tended to constitute sexual harassment or a sexually hostile
environment for which Respondent might have been liable
under pertinent Federal statutes. Respondent reasonably con-
cluded that Adams’ participation was of a lesser extent and
warranted only a verbal warning. With respect to sexual har-
assment, Respondent had issued written warnings previously.
With respect to the argument of disparity of treatment, the
earlier incident involving McKinley’s protest resulted in the
corrective action of an order issued to Shane Van Buskirk
confiscating his apron. Unlike the conduct toward Michelle
Van Buskirk, it was not patently aimed at one particular vic-
tim nor directed at another person’s body in her presence, re-
gardless of whether or not such conduct actually led to a
generally sexually hostile environment. No direct victim
complained about the apron, whereas Respondent refused to
act upon Shane Van Buskirk’s complaint until his wife com-
plained. I reject as conclusionary and incompetent limited
testimony of General Counsel’s witnesses that of 300–400
employees in the Jay plant, only McKinley wore a skirt. I
credit Holland that there were others. I do not find that Re-
spondent’s interpretation of sexual harassment regarding the
offensive apron with respect to a definition of sexual harass-
ment is correct or not. It is enough that there are sufficient
differences in the two factual situations that preclude me
from finding that prounion employees were disparately treat-
ed.
Accordingly, because of the foregoing finding, I conclude
that there is no merit to complaint paragraphs 8(a) and 9(a).
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The handbill included the signatures of Kenny Perdue, the al-
leged favored box room employee who was supposedly allowed to
wear a dirty hat, Karla Burrel, and Joe Whitney who will be dis-
cussed below.
D. Alleged Discrimination at the Southwest City Plant
The balance of paragraph 9 of the complaint, subsections
(c) through (g), alleges discriminatory conduct involving
Southwest City employees Peter Inda, Andrea Coffee, Randy
Nicholson, and Ronnie Rice, all of whom openly proclaimed
themselves as union supporters who wore union shirts and
hats.
1. The alleged October 20, 1993, discharge of Peter
Inda (complaint par. 9(e))
Inda was employed as a box machine operator in the
Foodcraft area. In the spring of 1993, he solicited fellow em-
ployees to sign union cards and distributed union shirts to
them in the plant breakroom. There is no specific identifica-
tion of any supervisor who actually saw him do it although
supervisors also use the breakroom, which at times can be-
come fairly crowded. Although he wore a red union T-shirt,
so did all the employees in his area that also included fellow
alleged discriminatee Rice. However, Inda was one of the 19
employees who signed the union handbill that he testified
was distributed about 1 month before his discharge. Actually
the handbill was distributed in mid-October during a week
when Inda was absent for illness.5 Inda admitted his inability
to recall dates of events.
Since 1988 at the Southwest City plant, Respondent main-
tained an attendance disciplinary point system whereby an
accumulation of 12 points resulted in discharge. Incidents of
tardiness and absence are weighted by points. However, 2-
week periods of perfect attendance result in a weighed point
reduction. According to both Clark and Luff, as a matter of
practice, the Respondent converted a ‘‘pointing out’’ termi-
nation as a leave of absence retroactive from the date that
the employee subsequently presents a written medical state-
ment, provided that the statement set forth a medically ex-
cused absence of at least 5 days. Preprinted requests for
leave of absence forms were available to employees for such
purpose. The bottom of the form entitled ‘‘approval’’ pro-
vides for the signatures of the supervisors and the nurse. Luff
testified that as night-shift personnel manager he approved of
retroactive medical leaves of absence several times. He testi-
fied that the applications were tendered to himself or the
nurse. He did not explain further. The plant nurses review
the medical appropriateness of the medical releases submitted
by the employees.
Southwest City Plant Personnel Manager Malcom Clark,
corroborated by Luff, testified that the 12-point dischargee is
entitled to rehiring on application after 90 days. Luff testified
to a ‘‘90 day rehire waiting period.’’ Inda admitted that he
had been aware of past instances when employees who point-
ed out, i.e., employees discharged for 12 points or more were
rehired. Malcom testified further that Respondent, at a time
of a shortage of employees, waived the 90-day waiting pe-
riod for 60 days. He testified that the point system had other-
wise been generally employed for at least during the 6 years
of his experience. He further testified that there had been no
limit on the medical reasons proffered and he had in three
instances allowed employee leaves of absence for personal
reasons. At present, Respondent’s policy comports with the
Federal Family Leave Act. Former Night-Shift Personnel
Manager Luff admitted to the existence of a retroactive med-
ical leave policy. He also testified that there were occasions
when employees who had pointed out were given a ‘‘second
shot’’ at their jobs without any break in service. He named
Teresa Robbins who had six such chances in less than 1 year
and James Poe who was allowed to work down his points
without a break in service. In later direct examination by the
Union, he then testified that Robbins pointed out two or
three times in 1993. He gave no further details as to cir-
cumstances or dates, nor reference to periods of employee
shortage. Nicholson testified that employee Pam Jones had
pointed out but had been allowed to continue working with-
out a service break.
Clark testified that 40–50 employees point out each month,
of whom 40 percent are rehired after 90 days. He admitted
that there were exceptions to the practice often in hardship
cases and in times of employee shortage. He cited the case
of Mr. and Mrs. Jones who had both walked out of the plant
in protest of having been given a disputed point, which thus
pushed Mrs. Jones beyond the limit with one more point.
After consultation with the supervisors involved and in con-
sideration that the circumstances involved an on-the-job in-
jury, Mrs. Jones was put on probation and allowed to work
off her points without a break in employment. Clark contra-
dicted Luff’s generalized, unfounded testimony regarding
Robbins by testifying that during a 6-year employment his-
tory interspersed with 12-to 24-month periods of nonemploy-
ment, there was no single year where she was reemployed
six times in 1 year. Clark similarly contradicted generalized
testimony regarding James Poe, i.e., that he had accumulated
18 points before being given a leave of absence.
The General Counsel adduced the testimony of Luff re-
garding an alleged toughening of Respondent’s policies to-
ward prounion employees. Luff testified to a conversation he
had with Clark at a time in July 1993 when Luff was still
the night-shift personnel manager and Clark was his imme-
diate supervisor. This occurred in a meeting concerning the
scheduling of employees in a supervisor’s office with several
other supervisors and managers. According to Luff, Clark
testified that certain known prounion employees would not
be given ‘‘non-scheduling’’ to go to a union meeting, i.e.,
sent home without points. He did not name the employees.
Luff went on to testify that Clark also stated at the meet-
ing and individual conversations with Luff that with respect
to the attendance point system as it applied to prounion em-
ployees, that there would be no tolerance for union support-
ers. Luff explained that they were told to be given points
‘‘for any reason if they were a minute late or a minute early,
and that no tardiness could be tolerated one way or the
other’’ if they were union supporters. He gave no context for
this selective account. In further examination, Luff explained
that ‘‘non-scheduling’’ occurred at times when employees
were sent home without points because an excess of employ-
ees reported for work.
Clark admitted to some conversation with Luff regarding
a situation where Clark observed Karla Burrel leaving for
home on nonscheduling in mid-week. Clark explained that
nonscheduling occurred usually at weekend to avoid over-
time. Luff purportedly denied that he had nonscheduled her.
Clark asked Burrel to explain and was told that she had done
239SIMMONS INDUSTRIES
excessive work earlier in the week and was leaving to avoid
overtime at the end of the week. Thus some kind of context
for the aforedescribed conversation appears to have been a
reasonable springboard for the topic. However, Clark denied
making any reference to denying nonscheduling time to
prounion employees.
Clark admitted to having had a discussion with managers
regarding tolerance of the point system. He testified that it
had been his past standing policy, which he reiterated in an-
swer to a question from a supervisor, that there could be no
toleration of even 1 minute’s tardiness. He denied however,
that any distinction was made with respect to prounion em-
ployees and he categorically denied the statements Luff at-
tributed to him. Luff was not called to rebut the context as
testified to by Clark.
I find Luff to be the more convincing witness. Luff was
more fluent, spontaneous, and certain. Clark’s testimony was
rendered in a machine-like, hesitant monotone frequently
interspersed with pauses. Clark was the more interested wit-
ness. Luff, as an employee, had little to gain by testifying
adversely to Respondent. However, he assisted the Union at
the counsel table throughout the trial.
Despite the higher credibility of Luff, I find much of his
testimony conclusionary, unfounded, and of impaired pro-
bative value. With respect to the toleration conversation, I
credit his version of it as far as it goes. However, since there
is no evidence as to whether or not Clark’s past practice gen-
erally involved ‘‘zero toleration’’ for point accumulation, his
testimony as to such is uncontroverted. Thus, even if he did
tell his subordinates that prounion employees would be given
no toleration for point accumulation, it is not clear that he
was announcing a policy of disparity of treatment or whether
he was merely telling them that engagement in union activi-
ties did not earn prounion employees immunity from his on-
going zero toleration policy. Similarly, the nonscheduling
reference is ambiguous. It is not clear that Clark’s statement
was that prounion employees would be denied nonscheduling
on occasions when they would otherwise be granted same,
or whether it would be denied them when asked for simply
to attend a union meeting and when they were not otherwise
entitled to it.
All of this background now takes us to the events of
Inda’s pointing out for absence in mid-October 1993.
On Tuesday, October 12, Inda fell ill at work. After noti-
fying his supervisor of his progressive illness and with prop-
er notification, he left the plant at 3 p.m. and remained ab-
sent for the balance of the week. He did not call in on Octo-
ber 13. On October 14, prior to the opening of the personnel
office, he left a message with the plant guard that he was
too ill to report to work. On Friday, October 15, he failed
to call in. He testified that he received a telephone call that
day from recently hired safety coordinator Larry Stephens, an
admitted supervisor in the personnel office, who asked him
if he could predict a return date. Inda answered that he
would try to report on Monday, October 18. Stephens pur-
portedly told him that it would be a good idea to obtain a
medical release before he returned. Inda admitted that each
time he talked to Stephens, he understood the need for a
medical release. Thus Inda implicitly admitted awareness that
his tenure was in jeopardy and that a medical release was
necessary for the retaining of employment.
On Monday, October 18, according to Inda, he was exam-
ined by a Dr. Crosby who diagnosed acute bronchitis and
who recommended 2 more days of no work. Inda testified
that he preferred to return to work and later telephoned Ste-
phens whom he told of his medical diagnosis and his inten-
tion to ‘‘try’’ to return to work Tuesday, October 19. On
Tuesday, October 19, he testified that he again called Larry
Stephens and told him that he still was too ill and would re-
port Wednesday. According to Inda, Stephens told him that
if he did come in on Wednesday that he ought to see Gary
Rockrohr first, early before Inda’s shift start time.
Inda testified that he arrived at the plant between 5 and
6 a.m., Wednesday, October 20, and that while waiting in the
breakroom 30 minutes later, he observed Rockrohr enter at
the opposite end of the room that contained other employees,
look in his direction, turn, and depart. Inda did not know
whether Rockrohr actually saw him waiting there. Inda made
no effort to meet with Rockrohr.
Inda testified that while he continued to wait, he observed
Stephens go to the personnel office, where Inda followed and
approached him and asked what to do. Inda testified that he
was told to wait in the breakroom and to wait for Southwest
City’s day-shift personnel manager, Kent Johnson, who
would talk to him. While Inda was waiting, a number of em-
ployees told him that his job had been posted as open for
bid. Somewhat later, according to Inda, Stephens came and
told him that Johnson was not there yet and he should con-
tinue to wait. Stephens returned to the personnel office where
Inda later followed him and asked if he had been terminated
and was told yes.
Inda testified that he returned to the breakroom and waited
until 9 a.m., at which time Stephens came and told him he
did not know when Johnson would arrive, which might be
late afternoon, and that he might as well go home. Inda testi-
fied that he showed his medical release to Stephens who
looked at it and nodded. Inda thereupon departed the
breakroom at 9 a.m. Charles McClellan, Inda’s supervisor,
testified credibly and without contradiction that he encoun-
tered Inda at breaktime at 9:30 a.m., in the superintendent’s
office when Inda walked up and asked if it were true that
he had pointed out. McClellan told him it was true but that
Inda needed to talk to Clark or to the complex manager,
Gary Murphy. Inda testified that his only contact with Re-
spondent thereafter occurred at some unspecified date when
he called about some money he claimed was due to him. De-
spite his admitted awareness of Respondent’s rehiring policy
of pointed-out employees, of which there is no dispute that
he had become by October 13, Inda never sought reinstate-
ment.
Personnel Director Malcom Clark testified without con-
tradiction that Day Shift Personnel Manager Kent Johnson
terminated his position in June 1993 and was partially re-
placed by Stephens. Johnson transferred to the night shift.
Stephens fulfilled some of Johnson’s duties on an interim
basis, however, not under the designation as personnel man-
ager but rather as personnel clerk. The remainder of John-
son’s duties were assumed by Clark. Johnson worked on the
night shift until August 1993 when he terminated his em-
ployment.
The General Counsel argues that Inda surely must have
meant to refer not to Personnel Manager Johnson but to Per-
sonnel Director Clark, and that his reference to Johnson is
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a mere minor discrepancy. However, in cross-examination,
Inda was insistent that Stephens did not refer to ‘‘the person-
nel director,’’ but rather explicitly stated that it was ‘‘John-
son’’ to whom he was to speak. Clearly, as with dates, Inda
possessed a faulty recollection at least with respect to names
as well. However, because Stephens did not testify, I am
constrained to credit him that he was told that he may as
well return home. However, I conclude that the most that
Inda could reasonably conclude was that the necessary inter-
view, whether with Johnson or Clark, was to be postponed
but not canceled, i.e., the burden was still upon Inda to do
something to obtain approval for a medical leave of absence
or to apply for reinstatement 90 days later.
Respondent’s personnel records reveal that Inda pointed
out on October 13, 1993, and was terminated on that date.
The underlying documentation for his point accumulation is
not disputed. Clark never was presented with a medical re-
lease for Inda and never was contacted by him for reemploy-
ment. Clark testified that on Wednesday, October 20, he was
told by Stephens that Inda wanted to see him with respect
to a medical leave of absence, that Stephens asked whether
he should send Inda to the plant nurse or tell him to wait
to see Clark. Clark asked how long Inda had been absent and
was told 4 or 5 days. Clark testified that he informed Ste-
phens that because of the length of time, Inda should be in-
structed to wait and see Clark. However, Clark had to attend
a meeting that lasted until 10 a.m. After the meeting, Clark
went to the breakroom but Inda had departed, did not return
and left no message.
The General Counsel’s theory of disparity of treatment of
Inda rests on his contention that other employees had been
permitted to submit their medical releases directly to the
plant nurse, but Inda, who had not asked to do so, was not
permitted to do so in the expectation that Inda would just go
away if he had to wait too long to see Clark. There is no
evidence that any of the actual points accrued by Inda were
due to the alleged zero tolerance policy or whether they were
for clear-cut, nonmarginal attendance violations. The points
accrued for his absence the week of his discharge are not
disputed as nonmeritorious or the result of the alleged zero
tolerance policy. Rather, the zero tolerance attitude of Clark
is argued to explain his instruction that Inda see him and not
the nurse.
There is no evidence as to when and under what cir-
cumstances employees may apply directly to a plant nurse
for a retroactive medical leave of absence without having to
be interviewed by a supervisor. Even Luff testified that it
was he who, as manager, approved of retroactive medical
leave requests that were either tendered to him or to the
nurse. The General Counsel relies entirely on an admission
by Clark that plant nurses ‘‘review’’ medical releases for ap-
propriateness tendered to them, sometime directly by em-
ployees. There is no evidence that plant nurses have had sole
and exclusive discretion to approve retroactive medical
leaves of absence, nor is there evidence that supervisors or
managers ordinarily do not participate in such application re-
views. The form application provides space for a supervisor’s
signature.
I conclude that at best the General Counsel has proven Re-
spondent animus toward the Union mainly through the con-
duct of Supervisor Rockrohr; that the Southwest city person-
nel director intended to apply a zero toleration policy to
prounion employees; and that Inda was a known union sup-
porter. It is undisputed that Inda pointed out pursuant to past
attendance disciplinary policy and did not pursue the avenue
held out to him for either retroactive medical leave of ab-
sence or for 90-day delayed reemployment. It was not shown
that the zero toleration policy deviated from past practice nor
that requesting Inda to see a manager first, rather than a
plant nurse, constituted disparate treatment, nor that such re-
quirement was so onerous that it would reasonably be con-
strued by Inda to be an act of futility.
I conclude that the General Counsel has failed to adduce
sufficient evidence to support an inference that Respondent
was at least partially motivated by Inda’s union activities
when it requested that he present his medical release to the
personnel director in the expectation that Inda would aban-
don his medical leave application. I conclude the General
Counsel thus did not sustain its burden of proof under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Further-
more, assuming the disparity of the zero tolerance policy, I
do not conclude that Respondent placed such an onerous bur-
den on Inda that it constituted a constructive discharge by
virtue of Inda’s refusal to bear that burden, i.e., to wait and
present his medical release directly to the personnel director
is itself a very simple and undemanding task for a person
slowly recuperating from a debilitating illness. By virtue of
Inda’s abandonment of a retroactive medical leave of absence
request and/or 90-day waiting period reemployment entitle-
ment, Respondent’s motivation was never really put to the
test. According, I find no merit to complaint allegation 9(e).
2. October 27, 1993 disciplinary warning to Randy
Nicholson (complaint par. 9(f))
Nicholson started work for Respondent on December 28,
1992, on the Foodcraft department where the continued
thereafter. He performed such duties as trash removal to the
dumpster at the drydock and the washing down of that area.
His union activity included handbilling and insignia wearing.
Respondent’s awareness of it and animosity toward it were
manifested by the coercive conduct in the form of interroga-
tions, threats, and statements of implied surveillance by Su-
perintendent Gary Rockrohr as found above. Nicholson was
one of the 19 employees who signed the prounion handbill
distributed at the Southwest City facility in mid-October.
Nicholson was issued a written disciplinary warning dated
Wednesday, October 27, 1993, for ‘‘use of profanity,’’ which
set forth as follows:
Randy was cussing and yelling in the hall at shift
change about the poor management in this facility.
This conduct is unacceptable and will not be toler-
ated.
This is a written warning. Any future incidents of
this nature will be cause for further disciplinary action.
The document was signed by Personnel Director Clark, Shift
Manager Rick Smith, and Supervisor Ron Horn, all admitted
supervisors and agents of Respondent. The form indicated
that Nicholson had refused to sign it.
According to Nicholson, he had built himself up to a state
of emotional agitation over a 2-week period because of his
perception that his night-shift counterparts, the trash han-
241SIMMONS INDUSTRIES
6 The General Counsel’s argument that because Smith was not spe-
cifically named in the warning does not detract from the fact that
that was whom Nicholson had in mind, and that it was he who
would reasonably be understood to be the target of the complaint.
7 Smith identified several employees whom he had disciplined for
intemperate outburst of cursing.
dlers, were not doing their jobs, i.e., trash was left over when
he started the morning shift. He complained about it several
times to the night-shift manager, Rick Smith, who promised
to correct the problem but who allegedly did not. On the
morning of October 27, Nicholson concluded that the prob-
lem continued and he became upset. He walked out of the
processing area and walked down the plant hallway where he
loudly proclaimed.
I see how this [f—ing] night shift management gets
things down, they can’t even get trash taken care of;
how can they get product shipped out the back door.
Manager Smith’s description of the scene is uncontradicted
and credited. Smith had been standing in his office doorway
that opened to the hallway. At that time, there were three or
four persons in the area. Employees were in the office get-
ting written order forms. Nicholson had stopped immediately
in front of Smith’s office. Smith testified that he said nothing
to Nicholson. However, Nicholson testified that he had been
unaware of any manager’s presence. He testified that after
his remark, Smith approached him and, with a liberal use of
the same ‘‘F’’ word, admonished Nicholson for criticizing
his night shift and how he supervises that shift and how he
get things out the back door and didn’t want to hear ‘‘stuff
like that again.’’
Smith later summoned Nicholson to the office where he
reported to Clark and Nicholson’s day-shift foreman, Horn,
what Nicholson had said in the hallway. Nicholson essen-
tially admitted the foregoing version of what he said. Clark
told him that he was to receive the written warning for the
use of profanity. According to Nicholson, he protested that
Clark should do the same to Smith for his profanity against
Nicholson, but Clark retorted that Nicholson precipitated the
incident. Smith claimed that Nicholson asserted that he
should be reprimanded for the use of profanity by virtue of
quoting Nicholson. This version is, on its face, absurd and
uncorroborated by Clark. Horn’s account more clearly cor-
roborates Nicholson whom I credit as to the reprimand inter-
view. Clark was the only witness to claim that Smith pointed
out that women were present in the hallway. I discredit him.
In any event, Clark testified that the concern that he enter-
tained, which motivated the issuance of reprimands for pro-
fanity, was whether it constituted abusiveness toward fellow
employees or to supervisors. Thus such evidence as to the
use of profanity, vulgarity, and cuss language by employees
and supervisors at the plant was irrelevant because Nichol-
son’s conduct consisted of a loud, clear, public, profane dis-
paragement of management, i.e., Manager Smith.6 On the
face of such conduct which verges on insubordination, a rep-
rimand of some sort appears to be reasonable unless it be
shown that other nonprounion employees’ similarly known
conduct went undisciplined.
General Counsel witness Luff admitted that when he was
a manager he had discharged a female employee for the re-
peated abusive use of profanity. He also testified to instances
where he had issued disciplinary warnings for aggravated use
of profanity by employees to one and another.7 From this in-
consistent testimony, I can only conclude that profanity be-
tween employees was liable for discipline only in aggravated
situations when it constituted abusiveness or according to the
tolerance level of different supervisors.
The only incident comparable to the severity of Nichol-
son’s conduct is found in the testimony of Luff. According
to him, on an unspecified date when he was night-shift man-
ager, as he walked in the door, he overheard employee Wil-
liam Howe utter to himself, ‘‘I don’t know how we can get
a f—ing thing done when the superintendent doesn’t even
known what’s going on.’’ Luff testified that Smith was about
6 feet away. His testimony is silent as to whether Smith gave
any indication of having heard the remark and, if so, whether
or not Howe was reprimanded. Luff does not explain why
he tolerated the remark despite having disciplined employees
for abusive profanity toward other employees. Smith testified
without controversion that he never supervised Howe. He
also denied having heard Howe or another employee make
that remark. In any event, the mitigating factors are that
Howe uttered the remark to himself, not loudly in a public
hallway in front of coworkers. Furthermore, there is no evi-
dence that Smith or Howe’s actual supervisor heard the re-
mark or should have heard it, because there is no evidence
of what the noise level was or what Smith may or may not
have been preoccupied with at the time, nor is there evidence
of context wherein the remark necessarily meant to refer to
Smith.
Based on the record evidence, I cannot conclude that Re-
spondent had a history of toleration of loud, public, profane
disparagement of managers by their subordinates in instances
where the managers formally complained of such conduct so
as to justify a conclusion that Nicholson was reprimanded
even in part because of his union activities. Accordingly, I
find paragraph 9(f) of the complaint to be without merit.
3. The mid-August 1993 reduction of hours of work of
Andrea Coffee (complaint par. 9(g)); invitation to quit
(par. 8(e))
These allegations relate to KFC chicken deboner Andrea
Coffee who was involved in the preceding discussion of
paragraph 8 allegations. Throughout the summer of 1993, she
actively and outspokenly supported the Union, in the pres-
ence of supervisors wore union shirts, and contemptuously
refused Rockrohr’s distribution to her of Respondent’s
antiunion literature that she characterized to him as ‘‘lies.’’
I discredit Rockrohr’s claim that he did not hear Coffee’s
characterization. For reasons already set forth above, I dis-
credit Rockrohr’s testimony where it conflicts with Coffee or
other General Counsel witnesses except where otherwise
noted.
The day following Coffee’s caustic dismissal of
Rockrohr’s distribution efforts, she testified that she was ap-
proached by him at her work station. As he pointed at her,
Rockrohr ordered her supervisor, Ron Horn, not to assign to
her more than 8 hours of work. Horn denied the incident and
denied having been ordered by Rockrohr to limit Coffee’s
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Because Rockrohr did not transfer back to the day shift until
September 1, the incident either occurred later than mid-August or
the distribution incident occurred in late August.
worktime to an 8-hour day.8 She testified that the next morn-
ing, Horn instructed Coffee that she was no longer to start
her workday at 7:30 a.m. but was to start at 8 a.m. She testi-
fied that thereafter, she worked an 8-hour day, i.e., from 8
a.m. to 5 p.m. and ‘‘no more and no less.’’ She testified that
she was dismissed at 5 or 4:30 p.m. to wait in the breakroom
for her fellow carpool member to finish. While she waited,
she observed other employees continue with work that was
performed at her work station until 6 p.m. She named the
twins, Wendy and Cindy, as well as Melissa Gault and
Donnie Williams as some of those who continued with her
work. She admitted, however, that some of those employees
did not necessarily always receive overtime pay because
many times, some of them would not arrive at work until
noon because of tardiness. She also admitted that there was
a period of time that she left work early for medical appoint-
ments.
Coffee testified that when Rockrohr ordered Horn to re-
strict her overtime, he explained that he did not have the
work for deboning.
Coffee testified that in September or October, she con-
fronted Clark in his office and demanded to know why she
could not work the same hours as other employees and he
told her that there was no longer KFC deboning, i.e., just
regular deboning. She testified that she approached Day-Shift
Manager Dan Henderson a week after that change at the con-
veyor belt and asked him the reason for the change in her
work hours but got no response. She testified that she con-
fronted him three different times thereafter with the same
questions and got no answer. During this time in October,
she claimed that she had been assigned to a rework team that
would have entailed overtime but Ron Horn told her she had
to leave at 5 p.m. while others assigned to it continued to
work. The next day, she cornered him at the Foodcraft line
as they were forming a work crew in early October. She
asked him why she was not allowed to work until 6 p.m. Al-
legedly, Henderson told her that if she did not like it, she
could quit.
Coffee explained that she and Melissa Gault were the two
regular deboners. Donnie Williams was a parts’ person who
brought chicken parts to the deboner. She testified that Gault
regularly started at 8 a.m. but, because of a babysitter prob-
lem, she often arrived at noon and worked until the job was
finished. The twins, Cindy and Wendy, often came late at
noon or 2 p.m. Coffee testified that she often observed swing
crew employee Stoffer, as well as other nonregular deboner
Tina Burton and Pam, a grader, deboning after Coffee
switched to the 8 a.m. start time. Coffee explained that dif-
ferent employees variously performed her work. She admit-
ted that she was not present at 7:30 a.m. However, when she
arrived at the deboning station, these employees were ob-
served by her already in progress of deboning work. When
deboning was heavy, some of them continued to help the
regular deboners. In this testimony, she is uncontradicted.
Thus, according to her uncontradicted testimony, there was
abundant deboning work that justified the augmentation of
the deboning staff. Yet, according to her testimony, she was
told to start work one-half hour later and she was dismissed
at 4:30 or 5 p.m. Her testimony is uncontradicted that the
summer of 1993 experienced the heaviest deboning in recent
history.
Coffee was returned briefly to a 7:30 a.m. starting time
after 2 or 3 weeks and again switched back to the 8 a.m.
start time until January 1994, when she was restored to the
former 7:30 a.m. starting time that would appear to be the
nadir of the chicken processing season that did not start to
pick up again until April.
Coffee’s payroll records disclosed that in 1992, she aver-
aged 141.06 regular hours and 6.76 overtime hours per
month. For the last 4 months of 1992, she averaged per
month 149.18 regular hours and 8.35 hours of overtime. In
1993 from January through August, Coffee averaged a
monthly 145.54 regular hours and 10.84 hours of overtime.
For the last 4 months of 1993, she had a monthly average
of 146.88 regular hours and 4.98 overtime hours. The payroll
records show that Coffee did not sustain an immediate reduc-
tion of overtime in August 1993. Rather, for 2 of the 3
weeks that she worked 40 hours or more, she earned substan-
tial overtime. She worked only 23.9 hours in the last week
of August. Respondent adduced undisputed testimony that its
business is seasonal. A high is reached in summer because
of a demand for KFC products that usually slacks off in the
fall. For the last 4 months of 1993, Coffee worked only 2.30
less monthly regular hours but 3.36 less monthly hours of
overtime than she did in 1992. The General Counsel refers
to the overtime reduction as a halving. Actually, it is 40.23
percent less overtime hours, on the face of it a proportion-
ately high figure. However, we are talking about a period of
time which involved about 600 hours of regular work and a
reduction of overtime from about 33.40 overtime hours in
1992 to very slightly less than 20 hours, or a totality of
about 13-1/2 hours. However, the payroll records reveal that
from the second week of October 1993 to the end of Decem-
ber, she received no overtime except for .4 of an hour the
first week of November. In 1992, she worked 16.2 hours in
the month of October, 6.10 hours in November, and 6.3
hours in December. Thus, if the same pattern had been fol-
lowed in 1993, she would have had a much higher amount
of overtime. We do not have any documentation as to prior
years and thus have no way of evaluating whether the figure
is statistically significant in comparison to past fluctuations
that occurred at seasons’ end. However, the loss would be
more significant if we knew the totality of deboning hours
worked by all employees for that comparable period, whether
regular deboners or those doing it on an ad hoc basis. Such
a comparison would have been more meaningful in making
a more definitive determination that Coffee lost a significant
amount of available deboning overtime work to other
deboners, including nonregular deboners whom she testified
were called in to perform her work while she was restricted
to a shorter workday than was available in deboning work.
Only the work hours of regular codeboner Melissa Gault for
the months of September through November 1993 were sub-
mitted by Respondent who points to the comparability of
overtime worked between Coffee and the other regular
deboner, Gault, i.e., 422.2 regular and 4.9 overtime hours for
Gault and 464.8 and 19.9 overtime hours for Coffee. Yet, it
is undisputed that Gault had a severe tardiness problem
which led to her ‘‘pointing out’’ on December 17.
243SIMMONS INDUSTRIES
Respondent adduced record evidence as to the relative ab-
senteeism of Gault and Coffee for the period of September
through November 1993, which it argues discloses a com-
parable absenteeism record. (Gault had pointed out on De-
cember 17 and was dismissed.) For that period, Gault
worked only two 40-hour weeks with 2 hours of overtime
each week. Coffee worked 40 hours 5 of the 13 weeks plus
2 more within a fraction less than 40 hours. The hours
worked of both Coffee and Gault for those 3 months in
1993, including overtime, are as follows:
1993 Coffee Gault
9/5 40/14.2 35/0
9/12 38.3/0 24.8/0
9/19 32.2/0 39.3/0
9/26 40/0 40/2
10/3 40/2.4 40/2
10/10 34.4/0 39.2/0
10/17 39.7/0 29.9/0
10/24 40/0 31.2/0
10/31 33.8/0 26.8/0
11/7 40/.4 31.2/0
11/14 26.2/0 38.2/0
11/21 29.6/0 30.2/0
11/28 30.6/0 16.1/0
Coffee’s payroll records from September 1 through De-
cember 31, 1993, show that she worked 5-1/2 regular hours
more per month than her monthly average of regular hours
worked in that period in 1992, and slightly more than 1 hour
per month than her monthly average for the first 8 months
of 1993. Thus the General Counsel argues that Coffee did
not appear to lose overtime because of an increase in absen-
teeism argued by Respondent. However, the General Coun-
sel’s calculation includes partial weeks of less than 40 hours
for which no overtime is earned.
Payroll records indicate that in September 1992, Coffee
worked only 1 week of at least 40 hours. She was absent the
first week. She worked 3 of 4 weeks in October 1992 with
overtime for each week. In November 1992, she worked 3
of 5 weeks for 40 hours with overtime each of those weeks.
The first week of December 1992, she worked 35.5 hours
with no overtime. She did not work the second week but
worked 40 hours in each of the last 2 weeks, the first of
which she received 6.3 hours of overtime. Thus, in 1992
from September 1 through December 31, Coffee worked nine
40-hour weeks of a total of 15 weeks worked. (She did not
work at all the first week of September 1992.) That com-
pares to 5 of 16 weeks worked for the same period in 1993.
She worked 39.7 hours the third week in October and 38.3
hours the second week in September. She was absent the
third week in December 1993. Focusing a bit more closely
to the period when Coffee’s overtime drastically fell off the
second week in October through December 1993, Coffee
worked only two 40-hour weeks of 11 weeks worked to
qualify for overtime.
Coffee did not testify nor did the General Counsel argue
that Coffee was reduced in regular hours worked that were
available for her. Indeed, she complained that her hours were
fixed at an 8-hour workday. It was the loss of overtime about
which she complained. The inordinately high ratios of less
than 40-hour weeks worked might be due to the fact that
Coffee voluntarily chose to work less than the maximum 40-
hour week she complained that Respondent had imposed on
her or that she was precluded from a full day by being sent
home earlier. Coffee’s ‘‘track sheet,’’ or record of absentee-
ism, tardiness, and early departures, discloses that from Sep-
tember 1, 1993, to December 31, 1993, Coffee was absent
3 days and left early 3 days and was tardy once. Because
of overlapping incidents, this record only accounts for 6 trun-
cated weeks, thus leaving 6 weeks of less than 40 hours un-
accounted for by voluntary workday curtailment. One ab-
sence occurred on September 15 but all other incidents were
subsequent to October 8, 1993, i.e., the period of greatest of
overtime deprivation.
In any event, the total hours of regular work by Coffee for
the last 4 months of 1993 were virtually the same as 1992.
Respondent’s production records might have provided some
meaningful comparison to relative amounts of total KFC or
even deboning work between 1993 and past years, but none
were submitted into evidence.
Rockrohr and Horn deny any plan or scheme to restrict
Coffee’s overtime hours at Rockrohr’s instructions. Rockrohr
testified that he had issued outstanding orders to reduce over-
time generally at the end of the summer season because of
the seasonal depression in business, but no documentation
was provided. They both contradict the finger-pointing sce-
nario described by Coffee that occurred after the rejection of
Rockrohr’s leaflet distribution.
Horn testified that he changed the starting time of both
Gault and Coffee for efficiency purposes. He explained that
the meat that is to be deboned must accumulate as bad parts
accumulate as they are rejected by the graders after the saw-
ing operation of four saws. The graders thereafter take the
rejected parts to the deboners. He testified that although the
shift started at 7:30 a.m., it took ‘‘5 to 10 minutes’’ before
the sawing got going.
He testified that it took 30 minutes before enough parts ac-
cumulated for the two deliveries. Horn did not testify as to
whether or not unfinished deboning work carried over from
the night shift. Rockrohr testified that shortly after he re-
turned to days as superintendent on September 1, 1993, from
his daily tour on the night shift, he concluded that it was in-
efficient for two deboners to sit around for ‘‘15 to 20 min-
utes’’ before there was any need for them and he instructed
Horn ‘‘to look into it.’’ It is undisputed, however, that
Wendy and Cindy had tardiness problems and that Gault had
a babysitter problem and was persistently tardy.
Horn testified that he explained to Coffee that her starting
time was being changed because of the foregoing efficiency
explanations. He denied that he ever instructed her to leave
precisely at a fixed time regardless of the state of her work.
Rather, he told her to start at 8 a.m. and to work until all
the accumulated parts are deboned, which he testified usually
occurs 15 minutes after the KFC saws stop operating. Horn
testified that everyone in his department was scheduled to re-
work functions on a rotating team basis at certain times of
the week, including Coffee, and that he never ordered her to
leave earlier than any other member of her rework team. He
explained that there were about 40 KFC department employ-
ees consisting of five teams of about eight employees, each
who were assigned rework and that Coffee did such work 3
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Actually, the essence of Coffee’s complaint was that she was
being restricted to a shorter day and other employees like Gault,
Wendy, and Cindy, who were consistently tardy, were permitted to
work until 6 p.m. Technically, the tardy employees would not have
recorded overtime compensation on the days of tardiness if they
worked less than 8 hours.
days a week for at least part of the day. It is unknown
whether Respondent maintains production records of the
amount of rerun work performed either generally or by em-
ployees. No such documentation was submitted.
With respect to the number of employees used as
deboners, Horn testified that during the busy season starting
in April, there may be times when three deboners are used
and sometimes extra persons also are assigned. Rockrohr tes-
tified that there is a drastic reduction in KFC work after
labor day. No production records were submitted for the year
1993.
Horn transferred to the night shift on October 25, 1993,
and had no supervision of Coffee thereafter until April 1994,
when he returned to the day shift.
Shift Manager Daniel Henderson admitted that Coffee en-
countered him in his office and protested that she was not
receiving overtime whereas the other deboner was receiving
more overtime. He promised her that he would look into it.
He testified that a couple of days later when Coffee was put-
ting away her tools, he told her that he had checked her time
sheets and concluded that she worked more overtime than the
other deboner, i.e., Melissa Gault.9 Coffee protested that
other KFC department workers were receiving more overtime
than she was. She named one female worker whose name
Henderson had forgotten. He testified that he checked the
records and found that Coffee had more overtime. He testi-
fied that he explained to Coffee that overtime is based on the
specific job being done and that her job did not entail over-
time.
Henderson testified that in another confrontation between
himself and Coffee in front of other employees in the plant
hall, he told her that they had already discussed the issue but
if she insisted, they could do it in the office but she refused.
Henderson denied that he told her that she could quit if she
did not like it.
Supervisor Jerry Roark testified that in the summer of
1993, he crossed over between the day and night shifts to
supervise KFC work and later switched to the day shift
where he supervised Coffee. He testified that KFC deboners
were not needed for the first 15 months of sawing oper-
ations. The discrepancies as to whether deboners were not
needed for the first 5, 10, 15, or 30 minutes described by
various Respondent witnesses was never fully explained.
Roark testified in a slow, hesitant, uncertain, halting de-
meanor that when he returned to the day shift, Coffee’s com-
plaint to him was that she wanted to work an 8-hour day
from 7:30 to 4:30 p.m. ‘‘and just go home.’’ Horn, however,
testified that Coffee had never told him that she wanted to
end her shift at 4:30 p.m. Roark claims he permitted her to
work from 7:30 to 4:30 p.m. until he obtained ‘‘approval’’
and ‘‘worked it out with the other KFC deboner, Gault,
whom he testified had been complaining that she had to
work as late as 5:15 p.m. According to Roark, Gault
inexplicably complained about the later starting time despite
her tardiness record. Horn was silent as to any such request
by Gault. Thus, according to Roark, the later deboning start
time caused the deboning for Gault to extend beyond 5 p.m.
Implicit in his testimony is the admission that the deboning
work could be finished earlier with an earlier starting time.
If that is so, there necessarily was work available earlier than
7:30 p.m. Indeed, in consequence, Roark testified that he
thereafter instructed both Gault and Coffee to start their
shifts at 7:45 a.m., which he estimated was 15 minutes after
KFC operations began. Inasmuch as he was not dispensed
from efficiency considerations, there clearly was deboning
work available at least by 7:45 a.m. Roark testified that at
one point, Coffee actually complained to him about being
compelled to work beyond 4:30 p.m. but that he ordered her
to stay until the work was done, i.e., she insisted on a 7:30
to 4:30 p.m. shift. He denied ever having restricted her to
an 8-hour day. In cross-examination, Roark’s description of
the nature of Coffee’s complaint shifted drastically. Now he
admitted that Coffee persistently complained to him and to
Henderson that she was being cheated out of overtime work.
Clearly, this clashes with her alleged desire to end the day
at 4:30 p.m. Roark failed to explain this inconsistency. Fur-
thermore, Horn failed to corroborate his testimony that Cof-
fee merely wanted an 8-hour day from 7:30 a.m. to 4:30 p.m.
Henderson testified that Coffee’s complaint was deprivation
of overtime. Coffee’s testimony that she was permitted to re-
sume a 7:30 a.m. starting time is uncontradicted. Given that
fact, it was incumbent on Respondent to adduce some expla-
nation of why that had been permitted, particularly during
the so-called depth of the season as compared to October
when, according to Roark, deboning work just started to de-
cline by ‘‘a little bit.’’
Clearly, the issue of who worked how many regular and
overtime hours in KFC work and deboning work and when
it was worked could have been resolved by Respondent’s
records. Yet, the only documentation adduced by Respondent
was that which compared Coffee with Gault. The latter was
undisputedly afflicted with a tardiness record. Respondent’s
documentation does not conclusively establish that Coffee
had a comparable tardiness or early leave record. Records do
establish that Coffee experienced a decline in 40-hour or near
40-hour workweeks compared to 1992, and the reduction
cannot be fully explained by her absenteeism and tardiness
track sheet.
The General Counsel has the burden of proving that Re-
spondent was at least partially unlawfully motivated in taking
an adverse action against Coffee. If he sustains that burden,
the Respondent must sustain its burden of demonstrating that
such adverse action would have occurred in any event, re-
gardless of the protected activity of Coffee. Wright Line,
supra.
The General Counsel has adduced the testimony of Coffee
that was contradicted by Respondent witnesses Rockrohr,
Horn, and Roark. Coffee was obviously interested in the
Union’s vindication. She also had to gain some minor
amount of lost overtime compensation. On the other hand,
she risked the displeasure of her employer by testifying ad-
versely to its interests. I found her to be a certain, sponta-
neous, and convincing witness. Rockrohr’s lack of credibly
was discussed above. Horn did not fully corroborate Roark.
Horn’s testimony was given with a diminished certitude.
Roark’s demeanor was very poor with respect to certitude
and conviction. Inconsistencies and lack of full corroboration
erode their credibility. Henderson’s denial of the ‘‘quit and
245SIMMONS INDUSTRIES
look elsewhere’’ statement was half-hearted and unconvinc-
ing. I credit Coffee as to any inconsistencies with Respond-
ent witnesses. All Respondent’s witnesses testified with inad-
equate documentation to support this assertion.
Based on credited testimony, and to some extent docu-
mentation, the General Counsel has established the following
facts. Coffee was an outspoken supporter of the Union and
a critic of Respondent’s policies. She strongly directed her
sentiments toward Rockrohr who was primarily responsible
for most of Respondent’s acts of interference as found above,
including threats. Coffee had contemptuously rejected
Rockrohr’s distribution of antiunion literature. Shortly there-
after, Rockrohr transferred to the day shift. He ordered the
denial of overtime work to Coffee. Very shortly thereafter,
Coffee’s overtime work dropped off drastically. 1993 was
one of Respondent’s busiest KFC seasons in many years, in-
cluding 1992. KFC work only started to decline a ‘‘little bit’’
in October. Yet compared to 1992 that had experienced a
slower KFC season, Coffee’s overtime work shriveled up at
a more drastic rate than in 1992. Had the 1992 pattern of
overtime work continued, Coffee clearly would have been as-
signed much more overtime from mid-October through De-
cember.
The General Counsel has adduced evidence of known out-
spoken union sympathies and activities by Coffee, specific
animosity toward union activity by Rockrohr, the manager
responsible for most of Respondent’s acts of interference’s
with employees’ Section 7 rights, and an order by Rockrohr
to reduce overtime assignments to Coffee on the heels of her
most recent confrontation with him. Thus the General Coun-
sel has shown the classic elements of a violation, i.e., knowl-
edge, animosity, and timing. With respect to adverse action,
the General Counsel has established a comparative decline in
overtime for Coffee in the busier year of 1993 than she re-
ceived in 1992. Furthermore, other employees performed
deboning work at times before and beyond the shift limita-
tion placed on Coffee. I conclude that this evidence is suffi-
cient to base a finding that Respondent was at least partially
motivated to change and restrict Coffee’s worktime and over-
time because of her union activities.
I conclude that the burden shifted to Respondent to prove
that Coffee’s shift start time and actual hours of work, inclu-
sive of overtime, would have been the same regardless of her
union sentiments and activities. The evidence as to the effi-
ciency motivation with respect to starting time is inconsist-
ent. There was no explanation as to why it was efficient to
allow Coffee to start at 7:30, then 8, then 7:45 a.m. and then
in January, 7:30 a.m. when KFC work supposedly was the
least busy. Respondent’s comparative data is too limited and
inconclusive. I conclude that the General Counsel, having
proven a prima facie violation, it has then become incumbent
on Respondent to submit conclusive documentation within its
control that might have definitively shown either that Coffee
had not been adversely affected or that she was not
discriminatorily treated with respect to the distribution of
overtime work to regular or irregular deboning employees,
e.g., documentation as to the work performed by the other
employees Coffee claimed to have performed deboning work
before and beyond her restricted shift time. Accordingly, I
conclude that Respondent has failed to sustain the burden of
proof shifted on it. Alterman Transport Lines, 308 NLRB,
supra. I therefore conclude that Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily reducing the
work hours of Andrea Coffee as alleged in paragraph 9(g)
of the complaint.
4. Discrimination against Ronnie Rice
a. Denial of swing crew job (complaint par. 9(c))
Rice has been employed on the day shift at the Southwest
City plant in September 1991. Rice testified that he signed
a union card on May 12, 1993. He testified that he solicited
and obtained the union card signatures of fellow workers. He
also participated in 20 union handbillings at the Southwest
City plant entrance in the presence of union representatives.
This activity, he testified, occurred from May 12, 1993,
through December 1993. It is clear that his union sympathies
and activities were known by Respondent by September 1,
when Superintendent Gary Rockrohr transferred back to the
day shift and became exposed to Rice’s wearing of union
shirts and hats in the box room described above. The evi-
dence is not so clear as to the precise date Respondent had
become aware of the extent of Rice’s protected activities and
the intensity of his union support relative to the operative
date of the alleged discriminatory swing shift job refusal.
However, it is undisputed that Rice openly wore a union hat
to the plant in July 1993 and, since some indeterminate date
in May, probably May 12, solicited union card signatures in
the breakroom at times when supervisors were present. There
is no evidence of supervision reaction or actual awareness of
what he was doing. Certainly, Rockrohr did not have occa-
sion to observe it before September 1.
Until early June 1993, Rice was employed as a day-shift
hand-saw operator. From May through August, Rockrohr was
on the night shift and had no supervision over Rice. How-
ever, before May 1 and after September 1, 1993, as second
processing day shift superintendent in charge of 126 employ-
ees, Rockrohr had responsibility with respect to the selection
of swing crew members of which there were about 40 to 50
such jobs in the second processing areas, 18 of which were
in the KFC area. The swing crew job is sort of a jack-of-
all-trades position which calls for an employee to have
enough diversified skills and experience to substitute for
temporarily opened positions or those that need temporary
augmentation. It is undisputed that the swing crew job is not
subject to Respondent’s open job, seniority bidding proce-
dure. Rather, swing crew openings are filled on merit at the
discretion of the superintendent from a standing file of writ-
ten application forms which employees may file at any time.
The job offers upward mobility potential and 25 cents hourly
more than Rice’s class 6 hand-saw job.
Rice testified that he applied for a swing crew job shortly
before a date in June 1993. His written, signed, and dated
application of March 5, 1993, again exposed Rice’s faulty
recollection as to dates. Rice testified that before the open-
ing, he asked and was told by Rockrohr that there was to be
an opening and was invited by him to file an application.
Clearly, this had to have been before March 5. Rice testified
that he heard nothing thereafter. He later learned that em-
ployees Rick Ledford and Joan (or Priscilla) Edwards got the
open jobs. He testified that on an unspecified date, he asked
the reason and Rockrohr explained to him that those two em-
ployees stepped down from higher positions to take the jobs.
One was a supervisory trainee and another was in personnel
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work. In cross-examination, Rice amended that testimony by
testifying that Rockrohr explained to him that those two can-
didates had more seniority and that is what they talked about.
Again, this must have occurred before May 1, when
Rockrohr went to the night shift.
Rice testified that he had performed every job in the KFC
department and several jobs in the Foodcraft area and had
been given ‘‘gold sheets’’ for four jobs. Gold sheets indicate
an employee’s qualification at line speed for a particular job
for payroll purposes. Contrary to his testimony, Rice’s appli-
cation claimed possession of only three gold sheets and
knowledge only of ‘‘several other jobs throughout the
plant,’’ and stated that he currently does ‘‘several jobs.’’
The selection of Ledford and Edwards occurred in the
spring of 1993. Clearly, it must have occurred before
Rockrohr transferred to the night shift and thus preceded
Rice’s union activities. Moreover, according to Rockrohr’s
uncontroverted testimony, those two candidates had pre-
viously been swing crew members. Ledford had been swing
crew member in 1992 and at the end of 1992 had moved into
a superintendent trainee position for 4 months when he re-
quested a voluntary demotion back to swing crew. It is also
his uncontroverted testimony that Edwards was returned to
the swing crew from a trainee position in the personnel de-
partment because of the lack of need for her services there.
Moreover, a trainee’s function, by virtue of its position, re-
quires knowledge of the jobs to be trained for. It is undis-
puted that Rockrohr also passed over other applications for
swing crew positions who had more diverse experience than
Rice. On these uncontroverted facts, it is clear no discrimina-
tory conduct was engaged in against Rice in the spring of
1993.
From May 1 to September 1, Rockrohr did not supervise
Rice nor did he appoint applicants to swing crew positions.
On an indeterminate date in early June, Rice transferred to
the box room where he was appointed to the position of box
lid maker by Supervisor Roark. This assignment, at Rice’s
request, was made because Rice, who had injured his elbow,
had received a medical certification that prohibited elbow
movement and repetitive motions and he was therefore given
the box room job as light duty. The job opened because the
incumbent, Paul Hatmon, was on vacation. In that job, Rice
made lids for 40-pound and 70-pound capacity boxes and
folded 40-pound capacity boxes and dropped them down a
chute. His coworker, Peter Inda, made the 70-pound boxes.
Rice admittedly retained his higher paid grade 6 hand-saw
rate of pay. He admitted that he was assigned to the box
room because of his medical restrictions and that it was con-
sidered to be a light duty assignment. He testified that the
repetitive motion restriction continued thereafter and was not
lifted although the elbow restriction was removed imme-
diately before he began the box room job.
In July, Rice and Inda started wearing union shirts in the
box room, but the confrontations with Rockrohr did not
occur until after September 1. I have discredited Rice’s testi-
mony above that he had his first confrontation with Rockrohr
in July. That was impossible.
It is undisputed that the next swing crew position opening
was filled by the appointment of employee Joey Whitney by
Malcom Hernandez, the superintendent of second processing,
apparently in August 1993 during a 2-week period when
Rockrohr had transferred to the day shift but acted only as
a day-shift manager. Whitney’s swing crew request form was
dated August 4, 1993. It was approved by Hernandez. Whit-
ney’s employment dated to October 11, 1990. He claimed
therein the ability to work ‘‘any jobs’’ but one in Foodcraft
and also experience in the box room and ‘‘stackoffs.’’ It is
Rockrohr’s uncontradicted testimony that at the time, Whit-
ney periodically wore the red union shirt. Whitney was one
of the later signatories of the prounion, mid-October
handbilling. Unlike Inda, Rice did not sign the mid-October
handbill. There is no competent evidence of any antiunion
activities by Superintendent Hernandez nor knowledge by
him of Rice’s activities.
When Rockrohr assumed his day-shift second processing
superintendent job on September 1, he appointed Mark Lewis
and Karla Burrel to swing crew positions. They had applied
on August 5 and September 1, respectively. With respect to
Lewis, Rockrohr testified without corroboration that he acted
on the representation of the KFC supervisor to him that the
job had been promised to Lewis; and that Lewis’ record was
an overall ‘‘good employee.’’ With respect to Burrel, it is
Rockrohr’s uncontroverted testimony that she had performed
at different times 10 different positions, had college credits
close to degree status and was a good employee. Her appli-
cation reflected this and also claimed that she had super-
visory experience elsewhere. Rockrohr testified that he ap-
pointed her despite her display of union insignia. Rice admit-
ted that at that time Burrel was openly prounion. There is
no competent record evidence about whether she, in fact,
thereafter became disloyal to the Union. The only indication
of possible disloyalty to union effort is based on nonpro-
bative hearsay rumor and relates to a later date in time.
Ariston identified her as one of his main organizers. Her
name is entered in large script as the first employee signature
on the mid-October, prounion handbill. It should be noted
that rumors as to her disloyalty occurred in the context of
Rockrohr’s efforts to sow suspicion and divisiveness among
union supporters as he tried to do with Nicholson.
It was only subsequent to these swing crew appointments
of Lewis and Burrel that Rockrohr focused his attention upon
Rice as a prounion activist. The first occasion came when he
observed Inda and Rice wearing the union shirts and/or hats
in the box room during one of his inspection tours. On one
occasion, Rockrohr jokingly asked Rice and Inda whether he
was safe amidst the prounion box room employees. It was,
however, not until mid-October, that Rockrohr openly identi-
fied Rice as an activist who might have inside information
as to the status of the union organizing effort by interrogat-
ing him. Even then, Rice was not one of the mid-October
union handbill signatories. About that time, Rice, like Cof-
fee, but not so caustically, had rejected Rockrohr’s proffered
‘‘anti union’’ literature. Prior to these confrontations, the evi-
dence at best identifies Rice as a publicly self-proclaimed
union supporter as had been Lewis and Burrel.
I conclude that the evidence fails to establish that Re-
spondent was motivated unlawfully with respect to the swing
crew selection of September 1, as there is a lack of the ele-
ments of specific animosity toward Rice or awareness of
greater union loyalty by him than either Lewis or Burrel at
that time or evidence that Rice was, in fact, clearly more
well qualified than either of them. Certainly, Burrel’s quali-
fications were geared to the upward mobility aspect of the
job.
247SIMMONS INDUSTRIES
10 Rice testified that because of his elbow restriction, he was not
operating the regular handsaw but was running a one-handed saw.
I conclude that with respect to the foregoing swing crew
appointments, the General Counsel has failed to sustain his
burden of proof under Wright Line, supra.
One more appointment to the swing crew was made by
Rockrohr which bypassed Rice in fall or early winter of
1993, i.e., the appointment of Pedro Rodriguez to replace
Lewis who quit. Having concluded that Rice had been pre-
viously passed over by Rockrohr for nondiscriminatory rea-
sons, i.e., his belief that Rice was only nominally qualified
in comparison to the others, I conclude that the burden is on
the General Counsel to demonstrate disparity of treatment
with respect to Rodriguez.
Rockrohr testified that he considered Rodriguez to be the
superior candidate. He testified without controversion that
Rodriguez had demonstrated the ability to perform six or
seven job functions, had received good recommendations
from his supervisors and had an employment record of 3
years’ service. On the face of it, Rodriguez thus had claim
to greater expertise than what Rice had set forth in his ongo-
ing application. Rice then joined several other rejected appli-
cants who possessed similar or better qualifications. One of
those also dated back to March 1993.
Based on the foregoing facts, I do not find that the Gen-
eral Counsel has adduced sufficient evidence to establish that
Respondent was actually motivated, at least in part, by its
union animus when it failed to appoint Rice to the swing
crew job in the fall of 1993, despite evidence of knowledge
of and hostility toward Rice’s union loyalty. There is no evi-
dence of disparity of treatment but, rather, a past history of
bypassing Rice for the swing crew job even predating his ac-
tual, and later specifically known or suspected, union activi-
ties. Accordingly, I find no merit to paragraph 9(c) of the
complaint.
b. The October 20, 1993 posting of the lid machine job
and appointment of Rice to another lower paying job
Rice testified that despite the fact that the lid machine
transfer in early June 1993 was a light duty assignment to
accommodate his medical restriction, he was entitled to the
job permanently.10 This conclusion, advanced in argument by
the General Counsel, is premised on Rice’s testimony regard-
ing a conversation with his supervisor, Roark, in mid-June
on about only 2 weeks after he was put in the box room job.
According to Rice, he merely asked Roark if the job was
permanent and Roark immediately said ‘‘sure.’’ No context
for the conversation was given. Roark testified that he trans-
ferred Rice from the hand-saw to the lid machine job be-
cause of a directive from the nurse to put Rice on light duty
and Rice’s request for the box room job. He denied telling
Rice anything about the length of the job. He did not flesh
out this cryptic testimony with an explanation as to why he
tolerated such an extended light duty assignment if, in fact,
it were not permanent. Indeed, he did not actually deny that
he considered it so. However, he testified that that box room
job ‘‘is not a full fledged job all the time.’’ In cross-exam-
ination, Rice admitted that Roark did not, in haec verba, say
the job was ‘‘permanent.’’ He testified that the entire con-
versation was as follows: ‘‘when Hatmon [the vacationing
employee] did not return, I asked [Roark] if I can have the
job and he said, ‘yes.’’’ It is undisputed, however, that
Hatmon did not quit his employment until July 6. Thus
Rice’s second version of the conversation is subject to some
ambiguity as to the date and duration of the assignment, par-
ticularly since Rice was continued to be paid at the higher
handsaw rate, suggestive of a temporary situation, and Rice
continued with his medical restriction.
On October 18, Inda’s job had been posted as open to se-
niority priority, competitive job bidding process. On October
19, Rice’s lid machine job was also posted for bidding.
About that time, a lower paying ice room job also opened
up and was posted for bid. In the process of arranging for
the posting of Inda’s 70-pound box job, Rockrohr, who had
been on the night shift all summer, ascertained, in a sus-
piciously roundabout manner, that Rice was being paid a
higher rate than was due the lid machine job. He testified
that Roark explained to him that it was because Rice had
been on temporary light duty. Rockrohr testified that he
ascertained from the plant nurse that the medical restriction
had been lifted. He did not specify the date nor which medi-
cal restriction, i.e., elbow or repetitive motion. Rice testified
that the restriction upon his elbow movement had been lifted
even before he started his job but the repetitive motion re-
striction remained thereafter.
Rockrohr testified that he then confronted Rice and told
him he could bid on the posted lid job or return to the higher
paying handsaw job and remain at the class 6 rate but that
Rice stated he did not want to get his hands dirty or to touch
chickens anymore. Rockrohr testified that he had concluded
that when the vacationing employee, Hatmon, had failed to
return to his lid-making job, it became open for bidding,
which would have occurred had it not been temporarily filled
as light duty. He explained that when he discovered the light
duty need had terminated, he posted the job for bidding.
Rice admitted to the awarding of posted jobs according to
seniority. Those who were thereafter awarded the lid ma-
chine and 70-pound box job over the bids of Rice in both
jobs had higher seniority. Rice received the grade 3 or 4 ice
room job.
Rice testified that when he first saw the posting of his lid
machine job, he confronted Roark who disclaimed any
knowledge as to why it was posted, protested that he had
nothing to do with it and referred Rice to personnel clerk
Cindy Carpenter. Roark did not contradict Rice and did not
corroborate Rockrohr’s account of their alleged conversation.
Rice testified without contradiction that Carpenter, whom he
confronted, could give him no explanation but referred him
to Rockrohr. Rice testified that he confronted Rockrohr in his
office and asked for an explanation as to why almost 5
months went by before the job had been posted but received
no explanation. Rockrohr did not contradict this aspect of
Rice’s testimony. If Rockrohr truthfully testified as to the
reasons why he suddenly posted the lid job, it would have
been inexplicable that either Roark, Carpenter, or Rockrohr
himself would have failed to explain that to Rice at the time.
Rice demanded an explanation. Because of the uncon-
tradicted aspects of Rice’s testimony as to these events and
the lack of corroboration of Rockrohr by Roark, Carpenter,
the plant nurse or some documentation as to the lifting of
Rice’s medical restriction at that time, I must discredit
Rockrohr who already suffered from a credibility vulner-
ability as described above.
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Casting further doubt upon Rockrohr’s explanation is the
failure of Roark to testify as to just why he knowingly per-
mitted Rice to continue working for almost 5 months at the
lid job at a grade 6 rate until Rockrohr took action imme-
diately after having focused his identification of Rice’s activ-
ist union role and made him the subject of his unlawful coer-
cive conduct. There was no evidence that Roark was such an
incompetent supervisor as to have been guilty of such mana-
gerial negligence. Subsequent to the posting of the lid ma-
chine and 70-pound box jobs and openings thereafter, Re-
spondent assigned employees there on light duty without re-
course to open bidding. Furthermore, it is undisputed that
Rice’s predecessor on the job, lid machine employee Paul
Hatmon, had obtained it without bid and had held it for 6
or 7 months thereafter until he quit. This comports with
Roark’s description of the lid machine job as not a ‘‘full
fledged job.’’
I find that the General Counsel has established a prima
facie showing of unlawful motivation and sustained the
Wright Line burden of proof by virtue of having proven pro-
tected activity, specific animus toward it by a supervisor
chiefly responsible for virtually all Respondent’s acts of in-
terference, and timing of adverse action almost immediately
following thereafter. I conclude that the burden shifted to Re-
spondent to demonstrate that it would have taken the same
action against Rice had it not been for his protected activity
and Rockrohr’s animosity toward of it. The explanation for
Respondent’s conduct rests upon the uncorroborated, undocu-
mented testimony of a discreditable witness. I find that such
otherwise unsupported evidence is unconvincing and insuffi-
cient to sustain Respondent’s burden of proof. Accordingly,
I find that Respondent violated Sections 8(a)(1) and (3) of
the Act by the October 1993 posting of Rice’s lid machine
job and his assignment thereafter to a lower paid job, as al-
leged in paragraph 9(d) of the complaint.
E. Jay Plant Access Issue
Paragraph 7 of the complaint alleges that Respondent
maintained a rule prohibiting public access to the employee
break room at the Jay, Oklahoma, plant. It further alleges
that on about October 6, 1973, Respondent’s Jay plant com-
plex manager, Merle Larson, selectively and disparately pro-
hibited access to that breakroom by nonemployee union rep-
resentatives while permitting nonunion, nonemployees ac-
cess. Respondent admits that in October, Larson did prohibit
access to the Jay breakroom to nonemployee union organiz-
ers but avers that it did so in enforcement of a rule against
public access to that area. The Respondent denies that it had
engaged in disparate enforcement of its no-public access rule.
The General Counsel adduced evidence which he asserts
demonstrates past nonenforcement of that rule to a variety of
public solicitations, including both profit and nonprofit food
vendors, jewelry sales, auction notifications, an automobile
repairman, and sales of hunting knives and raffle tickets.
It is undisputed that the Respondent has never reduced to
written form its alleged no-public entry policy nor has it
posted upon the breakroom bulletin board or elsewhere such
prohibition. At best, Respondent’s evidence establishes a
haphazard or casual monitoring of solicitation in the
breakroom despite the fact that supervisors and managers
take breaks and lunch with employees in that same room.
The Jay plant employs from 300 to 400 employees on two
shifts. The breakroom measures 20 feet by 125 feet. One
long windowed wall forms part of the plant exterior facing
Dial Street. The parallel interior wall has an entrance into a
plant hallway leading to the production area. One short end
wall exits into the hallway leading from the public front
door. The other parallel hallway wall has entrance from the
hall into the office areas at which the plant receptionist sits.
The interior of the breakroom can be viewed from the recep-
tion area but only from an awkward angle. Upon entry, a vis-
itor first encounters to his right the door to the breakroom.
A few steps beyond to the left is the reception clerk and the
office door. Entry to the interior plant hallway is at the end
of the entry hall. Thus public access to the breakroom by vir-
tue of the physical layout is almost open by implicit invita-
tion in the absence of posted signs to the contrary or an ef-
fective monitoring system.
Respondent admittedly permitted food vendors entry to the
breakroom. One vendor provided food vending machine serv-
ice by written agreement. Others were simply allowed entry
by implicit approval. These include nonemployee Mel’s
Diner who catered breakfasts, lunches, and dinners there by
telephone order; and Sara Feather who for 10 years solicited
sales of, and sold to employees at morning breaks, her pri-
vate brand of cinnamon rolls. Charity sales, largely benefit
programs for native American organizations, involving tacos,
soup lunches, and peanuts were also very common and
undisputedly known to and permitted by Respondent.
Jay Complex Manager Larson, Manager Stauber and Jay
Personnel Director Holland all testified that at one time or
other that nonemployee food vendors’ solicitations and so-
licitations of employees by employees are permitted in the
breakroom, but no other nonemployee access is permitted,
i.e., if a noneligible person is caught, they are supposed to
be ejected. Such unwelcome visitors are used car salesmen,
real estate solicitors, and political candidates. However, Hol-
land admitted that friends and relatives of actively employed
persons have free entry to the room to eat there or to wait
for employees to end their shift. Furthermore, I credit the tes-
timony of several employee witnesses that former employees
and nonemployees also solicited services for automobile re-
pairs, performed them just outside the building on the park-
ing lot, sold and displayed jewelry and knives, all in the
presence and observation, or in the case of auto repairs with
actual involvement, of supervisors. Disclaimers of awareness
by Respondent’s managers were unconvincing. I conclude
that by virtue of lack of posting and efficient monitoring, the
physical layoff of the room, the prevalence of food vending,
and employee or employee relative vending going on in
there, that the solicitation constituted an open invitation for
a variety of nonemployee violations which were not consid-
ered on an ad hoc basis too controversial to the managers.
I conclude that the General Counsel has proven that if the
Respondent even maintained a consistent no-public access
policy, of which I find there was none, that the Respondent
applied it in a disparate fashion against nonemployee union
representatives by prohibiting their entry into the breakroom.
Respondent’s own version of its policy alone constitutes an
admission of disparity of treatment, i.e., nonemployee food
vendors and employee related charitable vendors and solicita-
tions were permitted entry whereas union representatives
were not. Furthermore, Respondent failed to adduce evidence
249SIMMONS INDUSTRIES
11 For a discussion of an employer’s posting against the solicita-
tion by nonemployee union representatives directed to customers, see
Loehmann’s Plaza, 316 NLRB 109 (1995); Riesback Food Markets,
315 NLRB 940 (1994); Leslie Homes, 316 NLRB 123 (1995).
that actual entry into the breakroom by the food vendors in-
stead of restriction to the parking lot served a direct, legiti-
mate, business related interest or accommodation to Re-
spondent rather than an employee convenience which indi-
rectly serves a business interest.
With respect to a union’s right of access to an employer’s
premises by nonemployee representatives for purpose of
communicating with employees, the Board’s traditional ac-
commodation analysis was rejected by the Supreme Court in
Lechmere, Inc. v. NLRB, 499 U.S. 918 (1991). However, the
Court left intact its statement in Babcock & Wilcox Co., 351
U.S. 105, 112 (1956), that an employer’s right to ‘‘post his
property against nonemployee distribution of union lit-
erature’’ is conditioned upon nondiscriminatory application
of that policy. The Board has thereafter applied the ‘‘dispar-
ate treatment’’ analysis and found violations where a wide
variety of commercial and charitable activity unrelated to the
operation of the business was permitted but union activity
was prohibited. Great Scot, Inc., 309 NLRB 548 (1992), and
case cited therein; Richards United Super, 308 NLRB 201
(1992), citing therein Davis Supermarkets, 306 NLRB 97
(1992).11 Thus the Board has adhered to the ‘‘disparate treat-
ment’’ analysis. As the Charging Party points out, the Board
has found violation even where the exempted solicitation was
that of food vendors’ trucks that were permitted into an em-
ployee area so that employees could take lunch on the prem-
ises and thus reduce the possibility of tardiness. Knogo
Corp., 262 NLRB 1346, 1362 (1982). In that case, the em-
ployees could have had ready access to the food vendor
trucks either on the outside parking lot or on the street front-
ing the breakroom area. As in that case, I find that here, the
exception was not sufficiently business related despite the
employer’s derivation of a potential benefit.
Thus Respondent’s exception of food vendors above is
sufficient evidence upon which to find an unlawful disparate
treatment against union activities of nonemployees directed
at access to employees. However, the foregoing facts also
disclose a wide range of other profit and charitable entities
that were permitted access to the breakroom at Respondent’s
sufferance. Accordingly, I find Respondent violated Section
8(a)(1) of the Act by selectively and disparately prohibiting
access to the Jay plant breakroom by nonemployee union
representatives while permitting a variety of nonunion, non-
employee access for charitable and business solicitations of
its employees therein, as alleged in paragraph 7 of the com-
plaint.
F. The Safety and TQM Committees and the
‘‘Electromation’’ Issue (complaint pars. 5 and 6)
The complaint alleges, and the Respondent admits, that it
has since January 19, 1993, maintained Safety Committees at
both Jay and Southwest City plants which it has supported
by establishing policies and agendas. The complaint alleges,
and Respondent admits, that since January 19, 1993, it has
at its Jay and Southwest City plants maintained Total Quality
Management (TQM) Committees regarding the fast food de-
partment concerning quality of production which it has sup-
ported by establishing policies and agendas. Respondent oth-
erwise formally denied complaint allegations that these com-
mittees are labor organizations within the meaning of the Act
with which it has bargained or dealt with, with respect to
mandatory bargaining subjects, and which it has thus unlaw-
fully dominated or assisted. Respondent affirmatively an-
swered that the committees are: ‘‘periodic meetings of Re-
spondent’s supervisory and administrative personnel and Re-
spondent’s employees which are developed for, and continue
to serve, the essential purpose of promoting and communicat-
ing, workplace safety, quality of product, and efficiency
. . .’’ which have been formed more than 6 months prior to
the filing of the underlying unfair labor practice charge. The
underlying facts are not disputed. All committees involved
were conceived of, created, and assisted by the Respondent
well prior to the union activity.
1. The Safety Committees
The Safety Committees were created in 1989 by Respond-
ent as part of its overall safety program. They include em-
ployees ‘‘for their input into a safety program.’’ The overall
safety program included incentives and gifts prior to the limi-
tation period in Section 10(b). The announced purpose of the
employee Safety Committee was to assist the Respondent in
meeting safety goals it promulgated in a ‘‘corporate state-
ment on safety’’ by ‘‘identifying employee and safety risks’’
and by communicating ‘‘facets of company health and safety
programs.’’
The nature and operation of the Safety Committees de-
scribed hereafter relate to the period on and after January 19,
1993, i.e., within the 10(b) limitation period during which
violative conduct may be premised.
Safety Committees function on each of two shifts at both
of Respondent’s plants. Committee composition selection
may vary somewhat between plants, but both follow rules
determined by the Respondent’s managers. Both committees
consist of hourly paid employees representative of all or
most departments, a plant nurse, supervisors or personnel de-
partment managers, i.e., admitted supervisors as defined by
the Act. The voluntary employee membership is selected and
solicited by Respondent by the director of personnel either
directly or through supervisors. Meetings are held during
work hours without loss of pay, and in a supervisor’s or
manager’s office. All minutes or other memoranda are pre-
pared and supplied by Respondent. The employee members
are instructed to and, in fact, do solicit their coworkers for
specific employee concerns regarding plant safety hazards;
which they in turn then present to the full committee at regu-
larly held monthly meetings. The Southwest City members
are given worktime to tour their areas to solicit employee
concerns prior to each meeting.
The committee meetings are presided over by Respond-
ent’s managers or supervisors who ‘‘facilitate’’ or direct the
course of the discussion. Thereafter, the members, including
employee members, cite employee-perceived safety hazards
in the plant which they have directly observed or which have
been identified to them by coworkers. The nature of the
complaint is discussed and explained and its need explicated
by the employee members who, on occasions, are questioned
by manager participants. Employee members not only iden-
tify safety hazards, real or potential, but they also make rec-
ommendations. The identified safety hazards and proposals
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for corrections are thereafter memorialized in a formal
minute or memorandum which is forwarded to the appro-
priate manager for consideration, implementation or rejec-
tion, depending upon feasibility. Pursuant to management di-
rective, the Southwest City Safety Committee is limited to a
maximum of four safety deficiencies to be selected for cor-
rection. The committee then reaches a consensus as to the
four most hazardous conditions to be reported.
Many cited problems have been corrected, others were not.
The types of safety hazards that employees have complained
about through the employee committee members cover a va-
riety of physical plant conditions, including but not limited
to slippery floors, slippery catwalks, contaminated air due to
presence of some toxins or due to poor ventilation, exposed
or uncovered floor drains, placement of either personnel or
machinery in such a manner as to cause undue proximity to
dangerous tools, e.g., knives, the failure of some employees
to wear protective mesh gloves, poor lighting, the condition
and placement of fire extinguishers, the need for certain
product conveyors to avoid accident, hazardous placement of
equipment or supplies, better protective sleeves for sanitation
workers, holes in trailer floors, congested internal mobile
traffic patterns, frayed electrical wire connections, sidewalk
and parking lot conditions, equipment shields, excessively
hot or cold ambient air, broken entry doors, accumulation of
food scrap, and worker safety related misfeasance or horse-
play. There was no discussion of incentives or gifts after Jan-
uary 19, 1993.
Respondent’s higher level managers evaluate what they
believe to be the severity of the safety complaint and the en-
gineering feasibility for correction. Actual corrections and the
status of intended corrections are reported back to the com-
mittee, with particular formality at the Jay plant.
The minutes of the safety meetings, however, also disclose
some interaction between managerial members and employee
members during which employee members identified certain
perceived hazards and management representatives responded
with counterproposals to correct the perceived hazard. Such
interaction was particularly evident at the Jay plant night
shift. Superintendent Terry Graham actively proffered coun-
terproposals and suggestions to alleviate the identified haz-
ard. There were also occasions when management representa-
tives explained why the perceived problem was in reality not
a real hazard and thus, in effect, rejected the employee pro-
posals for correction at the committee meeting level. There
were also occasions when management representatives ex-
plained that the problem was already being remedied by a
predecided course of action. This local proposal and counter-
proposal and resulting resolution also occurred at the Jay
plant committee level so that, in effect, a consensus of real
problems was achieved upon which higher management
would consider, much as a consensus was reached at South-
west City as to the four high priority hazards.
Upper management either rejected the committee’s propos-
als or acted upon them without direct interaction with the
committee per se, except for individual consultation with a
managerial safety personnel participant. However, in one
sense, there was some interaction or reaction on a formal
level because the minutes reveal that employees complained
that ongoing preidentified problems had not been remedied
or not sufficiently remedied as promised. These reiterations
were memorialized in the subsequent minutes which were
duly forwarded to higher management.
Some of the safety problems proposed for correction that
were documented as having been accepted by Respondent,
which in turn were corrected or correction-attempted, related
to floor drain hole covers, electrical wiring grounding, a wide
variety of certain equipment corrections or modifications, air
toxins or pollution, equipment repairs, neatness and cleanli-
ness of floors, sidewalk, parking lot congestion, snow re-
moval, fire drills, installation of windows, increased illumina-
tion, correction of identified unsafe employee behavior or
nonfeasance in safe work practices, installation of a conveyor
line safety device, and slippery floors due to scrap product.
There were other areas of admitted safety correction of an
unidentified nature which occurred in response to the Safety
Committees’ proposals.
2. The TQM Committees
a. Jay plant
The genesis of the Total Quality Management, i.e., TQM
concept, was the Respondent’s principal customer, KFC,
which had urged its adoption by Respondent and monitored
its progress. The Jay City TQM commenced as a managerial
group in 1992. By late fall of that year, Jay plant employees
were folded into the committee membership for the purpose
of, as testified to by Jay Complex Manager Larson, provid-
ing information upon which Respondent would make certain
operational decisions related to efficiency and product qual-
ity.
(1) Jay Fast Food Committee
Employee involvement actually occurred by incorporation
of employee members into a subcommittee known as the
Fast Food Committee, herein called FFC. It was composed
of employees and managers. Four employees were selected
by Plant Manager Brent Butler from the day-shift four tables
in the fast food department which incorporates 6 or 7 saws
and support personnel and a totality of at least 10 employees
per table. Butler’s selection was approved by Larson. Joining
those employees on the Fast Food Committee were Super-
intendent Wayne Dunham, Sales Manager Jon Thompson,
Fast Food Supervisor Ron Rogers and Supervisor-Trainee
Jamie Murphy. Subsequent meetings of that committee were
held either in the superintendent’s office or in the plant con-
ference room during working hours, at no loss of pay for
time attended by employees.
Prior to the FFC meetings within the statutory limitation
period, the managerial TQM had discussed and devised a po-
tential employee bonus plan, about which Larson commu-
nicated by memo with the FFC. These communications con-
tinued into the limitation period. On February 3, 1993,
Larson and Butler jointly authored a memorandum to the
FFC, self-purportedly responding to a prior FFC request of
Respondent for a ‘‘basic structure for an incentive program’’
in the fast food department. Attached thereto was a proposed
incentive structure inclusive of a weekly bonus pool for cer-
tain fast food department employees. The memorandum indi-
cated that safety would be factored in and solicited ideas
from the FFC as to how it could be done, i.e., the stated ob-
ject was that the bonus pool would be reduced in proportion
to a rise in plant accident costs. The FFC was advised that
251SIMMONS INDUSTRIES
it would be questioned further and was instructed to study
the proposal and assist Respondent to formulate a policy to
be effective March 1993. The FFC was also advised that fur-
ther ‘‘refinements’’ would be sought from it thereafter, albeit
management would ‘‘retain the final authority on all policy
and changes.’’
The FFC responded via a memo from Butler to Larson
dated February 16, wherein the results of its February 10
meeting discussion were delineated and a variety of proposed
options were conveyed, including, inter alia, method of
bonus money disbursement, eligibility for bonuses, and three
options relative to the safety factor. With respect to safety,
the FFC was reported by Butler to be looking for ‘‘direction
from management,’’ but he recommended the second option
proposed by the FFC, i.e., certain percentage deductions for
recordable and lost time accidents. Larson responded to But-
ler by memorandum dated February 19, advising that Re-
spondent had considered the FFC safety factor proposals and
had, in consequence, decided to adopt a formula for set dol-
lar amount deductions from the bonus pool for every acci-
dent day of lost time.
On April 8, the FFC met to discuss ways of successfully
absorbing an anticipated increase in summer production de-
mand. The minutes, prepared by Respondent, reflect that
three options were discussed, but a ‘‘consensus’’ was
reached to set a maximum 9- to 9-1/2-hour workday because
it was concluded that a longer day would unduly burden the
employees. Employee member Sandy Becton is noted therein
as having made a suggestion as to saw realignment to in-
crease productivity, which was agreed to by the FFC as fea-
sible and to be presented by Butler for approval by the ap-
propriate authority. On May 21, the FFC met and general
employee questions were proffered by employee members
with respect to aspects of the incentive plan, and suggestions
by employee members were proffered as to job time meas-
urements and employee malingering.
Robert Stauber became plant manager at the Jay plant on
June 1, 1993, and attended the July 8 FFC meeting for the
first time as plant manager. He had attended earlier meetings
as a quality assurance manager. Stauber testified that at prior
meetings employee members had complained about tardiness,
absenteeism, and excessive breaks taken by other employees
which impacted adversely upon other employees bonuses by
decreased efficiency. Stauber raised those topics at the July
8 meeting. He thereupon led a discussion of all employees
soliciting in the process proposals of the employee members.
Upon reaching an agreed-upon consensus, the FFC agreed to
a statement of Respondent policy, i.e., rules relating to tardi-
ness, unexcused absence from work stations and ‘‘courtesy’’
breaks. After subsequent consultation with Larson, Stauber
made a revision but thereafter effectuated the policy. After
July 8, The FFC was disbanded and never reassembled.
(2) Jay Plant Corrective Action Team
At the April 27 managerial TQM meeting, the idea of Cor-
rective Action Teams was discussed by Stauber, i.e., standing
teams consisting of representatives of first processing, second
processing, sanitation ‘‘with 1 superintendent and some hour-
ly people’’ to resolve ‘‘repetitive problems.’’ They discussed
the idea of a nonsupervisory facilitator so that employee
members would ‘‘open up and talk.’’ On June 15, Stauber
authored a Corrective Action Team statement of policy. It set
forth that the Corrective Action Team (CAT) would provide
for an interchange of ideas between all members, suggestions
from all members, identification and analysis of recurring
problems and causes, and recommendations of preventative
actions. Those recommendations were to be implemented
upon decision of the appropriate management team members,
in turn to be reviewed by another managerial committee
known as the Design Team which reviewed and approved the
CAT minutes. Finally, the plant’s statistical process control,
i.e., error monitoring and correction procedure, was itself to
be monitored by the CATS and the appropriate management
team member.
By written memo of September 14 and 22, Stauber solic-
ited volunteer membership from ‘‘all members of the Fast
Food Department.’’ He stated the CAT purpose was the so-
licitation of ideas to reduce improperly cut product which
caused rework, to reduce other production floor problems
and high product temperature (i.e., it was critical to maintain
low chicken product temperature) and to improve overall
product quality. A variety of employees, including former
members of the FFC, thereafter participated in the Fast Food
CAT along with Managers Stauber, Dunham, Rogers, Super-
visor-Trainee Mundy, Quality Control Manager David Jack-
son, and Quality Control Supervisor Eric Wrede. The meet-
ings preceded the shift start time, but employee members
were paid their regular rate of pay. Meetings were held in
the Jay plant conference room.
A CAT meeting was first held on September 16 and was
attended by Stauber, Rogers, and one employee. The amount
of miscut parts was discussed. The employee offered ideas
as to how to involve employee interest in the corrective ac-
tion effort and she relayed the opinions of her coworkers as
to their interests in it. She offered ideas as to improved em-
ployee training. They agreed to meet again in 1 week. There-
after, meetings were held on September 23, October 6, 20,
November 4, 11, December 2, 9, and 16, 1993, and March
31, 1994. There is no evidence of any meetings thereafter.
Stauber was unaware of any.
The minutes of these meetings reflect a wide range of pro-
posals resulting from CAT members’ discussion. It is not en-
tirely clear as to just how the employee members participated
in these discussions. Thus there is an absence of what kind
of employee-manager interaction at this level, if any, other
than the offering and discussion of efficiency and product
quality ideas. At the October 6 meeting, Stauber informed
the group of unspecified ‘‘ground rules’’ for discussion.’’
‘‘Brainstorming’’ occurred thereafter, according to the min-
utes. Quality control manager Jackson was the ‘‘facilitator.’’
The recommendations set forth in the minutes consisted of
suggestions related to improved efficiency of operations and
quality of product in accord with the stated objective. They
included, inter alia, increased employee training, proper
equipment maintenance, punishment for employees prone to
work errors, reduction of employee horseplay, length of em-
ployee breaks, posting of customer complaints, proper adjust-
ment of saw blades, proper cutting instructions (to which re-
sponse was subsequently made in the form of copies of cor-
rect cuts and procedures), improvements in the quality of the
product itself, more information regarding customer speci-
fications, and development of a method of equalizing work
between tables, i.e., that all tables cut to the same specifica-
tions.
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As the meetings progressed, observations as to improve-
ments in cutting quality were noted in the minutes. With re-
spect to employee excessive breaks, it was simply noted that
the members themselves would encourage coworkers as to
proper conduct. Unlike the experience with the FFC, there is
no evidence that Respondent or its managers implemented
any recommendations of the CAT with respect to employee
discipline or with respect to the subject of tardiness, absence
or excessive breaks. A brochure was developed by Stauber
which descriptively and graphically explained proper product
cutting.
b. Southwest City TQM committees
As with the Jay plant, KFC was the instigating factor for
the formation of the TQM process at the Southwest City
plant in 1992. The original Southwest City TQM Committee
commenced life as a strictly managerial entity, and it evolved
under guidance from KFC, which periodically audited its
progress. In neither plant did KFC demand employee in-
volvement. From that committee, there evolved a ‘‘master
design team,’’ or ‘‘steering committee’’ as it was more re-
cently characterized, which remained composed of manage-
rial persons. At the Southwest City version of the TQM con-
cept, an employee participation committee similarly evolved
and was active by at least February 1993. Unlike the Jay em-
ployee participation committees, the Southwest City commit-
tees were not given any specific name nor were they con-
stituted as a standing or ongoing committee. Rather, the
Southwest City employee participation committees were cre-
ated for the purpose of implementing corrective action in the
same manner as at the Jay plant but, however, only for spe-
cific problems identified by management. Each Southwest
City employee participation Corrective Action Team’s life
span lasted no more than several meetings. The format or
procedure of the corrective action process was determined
and promulgated by the plant manager. He also devised a
preprinted form or outline of procedure which the
‘‘facilitator’’ would follow and make entries in the appro-
priate spaces. The facilitator or committee was appointed by
the plant manager, his superior, or a managerial member of
the design team. The facilitator was held responsible for the
development of the proposed corrective action and was
obliged to report it back to the plant manager or the design
team. For each committee, one employee was selected from
each of the four tables. Employee Michele Richison testified
that she was selected by her coworkers at her table to be
their ‘‘captain,’’ i.e., representative at committee meeting. As
such, she attended three to five meetings between February
1993 to March 1994 which were also attended by super-
intendents, maintenance supervisors, and quality control per-
sons. They met in the supervisor’s office during worktime
without loss of pay. Before each meeting, Richison met with
her coworkers to ascertain the problem and solicited their
suggestions. At the meetings, she exchanged these ideas with
other ‘‘captains.’’
Not all problems were subject to corrective action, nor did
the corrective action always involve employee participation.
To be subject to the corrective action process, the problem
had to be persistent and it had to be related to plant produc-
tion efficiency and product quality. Employee committee par-
ticipation was limited to such problems that were pertinent
to the employees’ job function and where the employee
would have specific knowledge of the job and, accordingly,
of the problem. In practice, the ad hoc Corrective Action
Committees normally entailed employee participation. In
fact, as explained by personnel director Malcom Clark, em-
ployee involvement was one of the purposes for the creation
of these committees.
The Corrective Action Teams were designed and in-
structed to discuss openly the nature of the problem and to
discuss possible solutions and select, by vote, the proposed
solution. There is no evidence of weighting of votes. The
proposed corrective action was thereafter communicated to
‘‘everyone who may be directly or indirectly affected,’’ by
verbal or written instructions. Responsibility for recordation
of minutes, communication, and evaluation of corrective ac-
tion implementation was placed on the facilitator, i.e., a non-
employee.
One prime example of employee involvement in the Cor-
rective Action Committee process cited by the General
Counsel related to the mid-April 1973 development and insti-
tution of KFC’s new Colonel’s Rotisserie Gold (CRG) proc-
ess which involved implementation of new, high-tech, high-
speed marinade injection machines. The Corrective Action
Committee consisted of 10 persons including the plant man-
ager and four employees. ‘‘Input’’ was solicited and obtained
from the employee members as to machine location. How-
ever, the entire process was chiefly directed by representa-
tives of KFC who were present to answer employee ques-
tions as to KFC’s diagram for employee and machine place-
ment. Plant manager Bridges described the entire process as
‘‘educational.’’ However, minutes dated June 20 reveal that
the committee discussed and proposed changes which were
thereafter accepted after ‘‘lengthy discussion’’ between the
plant manager, ‘‘corporate engineering’’ and two other man-
agers. These changes involved modifications in the design of
the Foodcraft department machine positioning, intersecting of
conveyors, and scale relocation. The purpose of the changes
was to facilitate product flow and to allow for the KFC-CRG
equipment placement. Another minor change to the KFC pro-
posed plan was made upon the committee’s suggestion, i.e.,
the relocation of the deboning table by a few feet. The pro-
posed changes were implemented or attempted by Respond-
ent.
The General Counsel adduced evidence of one other inci-
dent. Employee Richison testified that at the first meeting
she attended, Superintendent Rockrohr had announced the
object problem as how to keep the saw running properly. It
was then discussed whether the saw should be shut down
whenever a problem arose in order to maintain good product
quality. Employees suggested that maintenance to the saw
might be accelerated without having to resort to the public
address page system. In consequence thereafter, Respondent
installed a switch-activated red light maintenance signal at
the saw table in order to summon immediately maintenance
personnel. The maintenance problems discussed by employ-
ees were dull saw blades and machine malfunctions.
3. Analysis and conclusion—Safety and TQM
Committees
Both the General Counsel and Respondent have centered
their arguments around the Board’s widely noted and dis-
cussed decisions in Electromation, Inc., 309 NLRB 990
(1992), enfd. 35 F.3d 1148 (7th Cir. 1994); and E. I. Du
253SIMMONS INDUSTRIES
Pont & Co., 311 NLRB 893 (1993), and numerous cases
cited and analyzed therein.
The facts in this case with respect to assistance and domi-
nation are undisputed. If the employee participation commit-
tees herein constitute labor organizations, then they would
most certainly constitute organizations dominated and as-
sisted by Respondent. These entities were created, formed,
funded, directed, and constituted by Respondent. Their con-
tinuance is at the sufferance of Respondent. Their employee
membership depends on the method chosen by Respondent,
i.e., direct appointment by Respondent as in the Safety Com-
mittees and Jay TQM Committees or by election of cowork-
ers at the Southwest City correction ad hoc committees.
Their functioning format and agenda are determined by Re-
spondent.
The real issues here are whether these employee participa-
tion teams are for all effective purposes de facto labor orga-
nizations. As discussed in the Electromation case, the con-
cept of ‘‘labor organization’’ as contemplated by the Act is
extremely broad and includes very loose, informal,
unstructured, and irregular meeting groups. Such a loose or-
ganization will meet the statutory definition if:
(1) employees participate, (2) the organization exists,
at least in part, for the purpose of ‘‘dealing with’’ em-
ployers, and (3) these dealings concern ‘‘conditions of
work’’ or concern other statutory subjects such as
grievances, labor disputes, wages, rates of pay, or hours
of employment.
The Board added:
Further, if the organization has as a purpose the rep-
resentation of employees, it meets the definition of
‘‘employee representation committee or plan’’ under
Section 2(5) and will constitute a labor organization if
it also meets the criteria of employee participation and
will constitute a labor organization if it also meets the
criteria of employee participation and dealing with con-
ditions of work or other statutory subjects.
[Electromation, Inc., supra 994.]
The facts reveal that all the employee participation com-
mittees herein were designed by the Respondent to be rep-
resentational, i.e., to reflect a cross-section of employees in
the departments from which they were selected. With respect
to both safety and Jay Fast Food Committees, the employee
members solicited the opinions, conclusions, desires and/or
needs of coworkers and relayed them to the employer agents
on the committees and, in turn, by various methods of min-
utes or reports to higher management on reaching a consen-
sus.
Whether the Safety and all TQM Committees ‘‘dealt
with’’ the Respondent concerning work conditions is where
the difficulty of analysis begins.
a. Safety committees
The Board held in the E. I. Du Pont, supra, that employee
health and safety were conditions of work which are manda-
tory subject of bargaining. The Board noted that a committee
might exist solely for the purpose of imparting information
to the employer and thus no ‘‘dealing’’ would be involved.
Similarly, a ‘‘brainstorming’’ session does not constitute
‘‘dealing.’’ The Board stated in Du Pont that if the commit-
tee makes no proposals to the employer who, in turn, simply
gathers information and ‘‘does what it wishes with such in-
formation,’’ there is no dealing and therefore no labor orga-
nization status. E. I. Du Pont, supra, at 894 and 895. Re-
spondent argues that this is the instant situation, i.e., em-
ployee members simply act as observers and monitors of po-
tential hazards and identify them. Member Devaney noted in
his concurring opinion in footnote 3, page 898, that he did
not view the Board’s decision as a broad ban ‘‘on an em-
ployer’s bringing employees together with managers in other
circumstances, to tackle the nuts and bolts of safety issues
or any of the myriad technical decisions involved in main-
taining a safe, efficient physical plant and in quality con-
trol.’’ In Electromation, Member Devaney, in concurrence,
stated that he, however, would be ‘‘inclined to interpret
‘dealing with’ as involving a process more bilateral in nature
than soliciting and/or accepting employee suggestions or
ideas’’ (supra at 1002).
The line drawn between where reporting safety hazard in-
formation and an employer doing with it what it wishes and
where employees report and discuss with managers safety re-
lated working conditions and make proposals can be indis-
tinct and troublesome. In E. I. Du Pont, the Board suggests
that it may be lawful for employee committees to report safe-
ty problems. However, to do so, they may make decisions
as to what is a safety problem that affects coworkers and the
very reporting of such might very well, by the very mecha-
nism of reporting safety hazards, imply a request for redress
regardless of a formal, explicit recommendation for action.
Furthermore, for what purpose does an employer solicit these
ideas if not for consideration to accept or reject. In
Electromation, at 994, fn. 21, supra, the Board stated:
. . . we view ‘‘dealing with’’ as a bilateral mecha-
nism involving proposals from the employee committee
concerning the subjects listed in Sec. 2(5) coupled with
real or apparent consideration of those proposals by
management.
In the E. I. Du Pont case, the Board, at page 894, citing
the Supreme Court’s holding in NLRB v. Cabot Carbon Co.,
360 U.S. 203 (1959), again made the distinction that the term
‘‘dealing with’’ is not limited to the definition of ‘‘bargain
with’’ but rather involves a ‘‘bilateral mechanism’’ which
‘‘entails a pattern or practice in which a group of employees,
over time, makes proposals to management, management re-
sponds to these proposals by acceptance or rejection by word
or deed, and compromise is not required.’’ However, the
Board further stated that isolated instances of ‘‘ad hoc’’ re-
sponse thereto by managerial acceptance or rejection by
word or deed do not effectuate the necessary element of
dealing.
In the E. I Du Pont case, the Board found a pattern of
dealing concerning safety in working conditions whereby the
employee committee members made proposals to manage-
ment in different ways. Sometimes proposals were made to
management representatives outside of the committee which
were responded to and corrected. At other times, the commit-
tee discussed proposals with management representatives
within the committee proceedings. The Board found that the
employee and employer representatives ‘‘interacted’’ under
the rules of consensus decisionmaking whereby under man-
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agement’s procedural definition, all members of the group
‘‘were willing to accept a decision.’’ There, the management
representatives discussed proposals with employee represent-
atives and had the power to reject any proposal, which the
Board found constituted ‘‘dealing’’ just as if it had occurred
between the committee as a whole and outside the committee
management,
Respondent argues that the core purpose of both Safety
and TQM Committees is the sharing, i.e., input of informa-
tion, and that in only isolated instances had ‘‘the relations
even approached a proposal and response made.’’ Therefore,
Respondent argues that none of the committees were labor
organizations.
With respect to the Safety Committees at both plants, the
facts disclose the contrary to that suggested by Respondent.
There, a regular pattern and practice existed whereby em-
ployee committee members in a representational capacity
sought out, by direct observation and by consultation with
coworkers, the identification of safety hazards for which em-
ployees desired correction. Furthermore, like the E. I. Du
Pont committees, by a consensus process, proposals for cor-
rection were regularly reported to higher management which,
upon consideration, accepted proposals and modified some
plant working conditions and rejected other proposals. All
proposals affected the physical safety and health needs of all
employees working in those identified areas. As in the E. I.
Du Pont case, the employee members frequently interacted
with management members at committee meetings by dis-
cussing in depth the nature of the employee safety complaint.
The management members responded by agreement or by
suggesting alternative courses of action or by explaining why
the perceived problem was in reality not a problem
I conclude that under the definition of dealing set forth in
the E. I. Du Pont case regarding safety related working con-
ditions, the employee participation Safety Committee herein
exceeded the function of safety hazard identifiers and hazard
reporting automatons. Rather, they acted as representational
presenters of safety complaints and recommendation makers
whose proposals were considered and accepted or rejected by
management either at an interactive committee level or upon
report from the committee. By fulfilling such function, I find
that the Safety Committees of both plants constituted the
kind of representational committee that constitutes a labor or-
ganization under the definition of the Act. By dominating,
interfering with the operation of, and assisting these em-
ployee representational Safety Committees, I find that Re-
spondent violated Section 8(a)(1) and (2) of the Act.
With respect to the Jay plant TQM/Fast Food Committee,
the employee members were representative of each table
grouping of employees. Within the limitation period, the
committee discussed and made proposals solicited by Re-
spondent with respect to the formulation and implementation
of an incentive bonus pay program, clearly a mandatory bar-
gaining subject. The Respondent accepted some of the com-
mittee’s proposal and guided itself by others in formulating
the bonus plan. This was an ongoing interaction and was not
limited to an isolated meeting. At one point, committee pro-
posals were accepted regarding hours of work. Furthermore,
the Fast Food Committee continued on through the summer
of 1993, before it was disbanded, to discuss and make pro-
posals with respect to employee discipline, attendance and
punctuality problems and employee courtesy breaks. On rec-
ommendations based in large part on employee member
complaints, the plant manager issued a set of rules that clear-
ly affected these conditions of employment and mandatory
bargaining subjects. Thus the Fast Food Committee, during
its existence from early 1993 through summer of 1993, effec-
tively constituted a representational employee committee, in
effect a labor organization, which was unlawfully dominated,
interfered with in operation and administration, and rendered
unlawful assistance to by Respondent in violation of Section
8(a)(1) and (2) of the Act.
With respect to the Jay plant Corrective Action Team and
the Southwest City ad hoc employee participation corrective
action groups, I come to a contrary conclusion and find that
they came within that area of informational mechanism
which is limited to questions of quality of product and effi-
ciency of operation such as found to be lawful in Sears, Roe-
buck & Co., 247 NLRB 230 (1985), and excluded from con-
sideration by the Board in the Electromation decision in page
997, footnote 28. In the Sears case, recommendations as to
efficiency might impact working conditions, but the imme-
diate prime purpose was the employee informational input to
‘‘help resolve managerial problems’’ and to remedy manage-
ment needs. Although how to cut a bird properly affects the
actual way a worker is expected to perform his task, the
prime purpose is the quality of product and not the needs or
convenience of employees. The Respondent herein, in effect,
solicited information from employees so that management
would more effectively make managerial decisions, e.g.,
where machines should be placed for better product flow,
how to accomplish fewer cutting errors and how to adhere
more frequently to customer specifications, matters which
would have been of relative indifference to employees in ab-
sence of management informational solicitation. There is also
an absence of the kind of employee-manager interaction in
the Corrective Action Teams that occurred in the Safety
Committees where proposals and counterproposals were
made to satisfy employee concerns, needs or desires.
I do not find it to be a controlling factor that the Sears
case involved a rotational selection of employee representa-
tives whereby all employees participated. Clearly, not all
served on the same time, and efficiency recommendations
made by the acting employee representatives in Sears im-
pacted upon working conditions of employees beyond that
representative.
Furthermore, the Jay Corrective Action Committee and
Southwest City ad hoc committees did not regularly or by
habit deal with conditions of employment or with mandatory
subjects of bargaining. There were isolated recommendations
by the Jay committee for Respondent action relative to em-
ployee discipline or employee breaks, but they were referred
back to employees for self-correction which effectively sig-
naled that this was not a matter directly related to efficiency
or quality of product
To conclude that any managerial decision directly related
to efficiency of operation and quality of product which might
somehow impact the production employee and involve phys-
ical working conditions would preclude by definition any
employee participating committee that failed to meet the
strictures of an independent labor organization as defined by
the Act because all managerial decisions can be construed as
ultimately affecting the employee in some respect, e.g.,
where and how he performs his tasks. Clearly, the Board
255SIMMONS INDUSTRIES
went out of its way in Electromation and in E. I. Du Pont
to disclaim such intent.
Accordingly, I find the complaint allegations with respect
to the Jay Corrective Action Committees and the Southwest
City employee participating Corrective Action Teams to be
unmeritorious.
CONCLUSIONS OF LAW
1. As found above, Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. As found above, at all materials times, the Plant Safety
Committees at Respondent’s Jay, Oklahoma, and Southwest
City, Missouri, facilities have been and are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. As found above from early 1993 until its disbanding in
the summer of 1993, the Fast Food Committee at Respond-
ent’s Jay, Oklahoma, facility was a labor organization within
the meaning of Section 2(5) of the Act.
4. As found above, Respondent committed unfair labor
practices which I find affect commerce within the meaning
of Section 2(6) and (7) of the Act.
5. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (2), and (3) of the
Act, I recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the purposes of the Act.
Having found that Respondent unlawfully removed South-
west City, Missouri employee Ronnie Rice from the box
room lid machine job in October 1993 and assigned him to
a lower paying job, and having found that it unlawfully re-
duced the work hours opportunities of its Southwest City,
Missouri employee Andrea Coffee, I recommend that Re-
spondent be ordered to offer Rice immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges, and to
make him and Andrea Coffee whole for any loss of earnings
suffered as a result of its unlawful conduct by payment of
a sum equal to that which they would have earned absent the
discrimination against them, with backpay and interest com-
puted in accordance wit the formula set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest thereon
to be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent discriminatorily and un-
lawfully prohibited the Union from access to its Jay, Okla-
homa facility employee breakroom, I recommend that Re-
spondent be ordered to permit access by the Union’s rep-
resentatives to the same extent and manner permitted other
nonemployee visitors and solicitors.
Having found that Respondent unlawfully dominated, sup-
ported, and assisted the Plant Safety Committees at its Jay,
Oklahoma, and Southwest City, Missouri facilities, I rec-
ommend that it be ordered to disestablish and cease all sup-
port to them. Inasmuch as the Jay, Oklahoma plant Fast Food
Committee no longer exists, a disestablishment order is un-
necessary.
[Recommended Order omitted from publication.]