Southern Plasma Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1223 (N.L.R.B. 1979)

SOUTHERN PLASMA CORPORATION
Southern Plasma Corporation and Betty Ann Lock-
wood. Case 12-CA-8084
June 18, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On January 17, 1979, Administrative Law Judge
Michael 0. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, Southern
Plasma Corporation, Tallahassee, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied.
I. Substitute the following for paragraph 2(a):
"(a) Offer Dennis Huguley, Karen Amodio, Betty
Lockwood, Abigail Williams, Joanne Godwin,
Glenda Baker, and Melanie Parker full and immedi-
ate reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Respondent attempts to distinguish Textile Workers Union ofAmerica v.
Darlingron Manufacturing Co., 380 U.S. 263 (1965), on its facts, concluding
that, because in the instant case there was no attempt to chill organizational
activity at other locations, Darlington is inapplicable. Its contention is not
well founded. Darlington also holds that an employer may permanently close
for any reason it chooses. including union animus. Consequently, as found
by the Administrative Law Judge, when, on September 2, 1977. Respondent
"permanently" closed its facility and terminated the employees because they
engaged in protected concerted activity, there was no violation. However, on
September 8, 1977, when Respondent reopened, without reinstating the em-
ployees, there was a violation, and the violation occurred within the IOCb)
period.
without prejudice to their seniority or any other rights
or privileges previously enjoyed."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Act
and has ordered us to post this notice. We intend to
abide by the following:
The Act gives the employees the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such ac-
tivities.
WE WILL NOT discharge or refuse to recall or
reinstate our employees or temporarily close our
facilities because our employees engage in union
or other protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their statutory rights, as listed above.
WE WILL offer Dennis Huguley, Karen Amo-
dio, Betty Lockwood, Abigail Williams, Joanne
Godwin, Glenda Baker, and Melanie Parker im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or any other rights and privileges
previously enjoyed, and WE WILL make each of
them whole for any loss of pay suffered as a re-
sult of the discrimination, with interest.
SOUTHERN PLASMA CORPORATION
DECISION
STATEMENT OF THE CASE
MICHAEL 0. MILLER, Administrative Law Judge: Upon a
charge filed on March 3, 1978, by Betty Ann Lockwood, an
individual, which was served upon Southern Plasma Corpo-
ration, herein called Respondent, by registered mail on
242 NLRB No. 171
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 3, 1978;' an amended charge filed by Lockwood on
April 13, 1978, and similarly served upon Respondent; and
a complaint issued by the Acting Regional Director of Re-
gion 12 of the National Labor Relations Board, herein
called the Board, on April 14, 1978, a hearing was held
before me on September 18, 1978, in Tallahassee, Florida.
At issue was whether Respondent violated Section 8(a)(1)
and (3) of the Act by closing its plasma lab facility: termi-
nating the employment of the front office and blood donor
lab employees on September 2, 1977; and reopening its
plasma lab facilities on or about September 8, 1977. while
refusing to rehire or reinstate the terminated employees,
because those employees had engaged in union or other
protected concerted activities. Respondent contended that
the complaint was barred by Section 10(b) of the Act 2 and
denied the substantive allegations of the complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed by General Counsel and
Respondent.
Upon the entire record, including my careful observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Florida corporation with an office and
place of business located in Tallahassee. Florida, where it is
engaged in the production and wholesale distribution of
blood plasma. Jurisdiction is not in issue. The complaint
alleged, Respondent admitted, and I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The Facts
The portions of Respondent's Tallahassee facility in-
volved herein were the front office, or processing room,
where blood donors were received and had their vital signs
taken and their medical charts prepared, and the donor
room, where blood was drawn from the donors. This por-
tion of Respondent dealt with "bulk plasma" and "every-
day donors." The laboratory manager was Valaree Peck,
and the assistant lab manager was Patricia Mobley.3 Em-
ployed in the front office were Melanie Parker, Betty Lock-
wood, Karen Amodio, Debbie Blanchard, and Joanne
Godwin. Employed in the donor room were Glenda Baker,
I The Board's rules, sec. 102.1 13(a) provides that "the date of service shall
be the day when the matter served is deposited in the United States mail or
is delivered in person .... " Both the Postal Service return receipt and the
affidavit affixed to the charge evidence that the charge was mailed on March
3. See also, Rule 102.112 regarding the Postal Service return receipt as proof
of service.
I Sec. 10(b) provides in part "that no complaint shall issue based upon any
unfair labor practices occurring more than 6 months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person
against whom such charge is made .... "
Respondent admitted the supervisory status of Peck and Mobley.
Dennis Huguley, Abigail Williams, and Calvin Thomas.
The employees were medical technicians, trained to take
histories, prepare charts, draw blood, and prepare the
equipment and materials incidental thereto. At least some
of the employees had received their training in this work
from Respondent.
Respondent contended, and I agree, that both Baker and
Parker were supervisors within their respective depart-
ments. Each bore the title of supervisor. At $3 and $3.25
per hour, they were paid from 25 to 75 cents per hour more
than the other employees. Baker was responsible for mak-
ing up the employees' duty rosters and was in charge of the
donor room in the absence of Mobley, with whom she
shared a split shift. Baker admitted that she had the author-
ity to report poor work to Mobley and had prepared warn-
ings to employees threatening them with discharge for such
derelictions as tardiness and absenteeism. Baker had been
told by Peck that she had the authority to discharge an
employee if she was unable to work with that employee,
and on one occasion she actually discharged an employee
whom she had previously warned. Similarly, Parker was
asked for her opinion of the work of the employees under
her when those employees were evaluated, recommended
discharges of employees, and caused the discharge of one
employee by her recommendation. Contrary to the conten-
tion of the General Counsel, the exercise of these statutory
indicia of supervisory status was not isolated, at least in the
context of Respondent's limited number of employees and
the short period in which both Baker and Parker functioned
as the supervisors of their respective departments.
In addition to the front office and bulk plasma lab, Re-
spondent had a separate section known as the antibody lab.
This lab processed antibodies from donors who carried rare
blood types and subtypes.
In about the last week of August 19774 Lab Manager
Valaree Peck distributed employment agreements prepared
by Respondent to its employees. 5 Peck told Mobley to pass
the agreement forms and have the employees sign them by
September 8. Huguley was merely told, by Peck, to read,
sign, and return the form.
Respondent's employment agreement stated in part as
follows:
This agreement entered into this ----- day of
, 19- , by and between Southern
Plasma Corporation, Florida Plasma Corporation and
American Biologics of Florida, Incorporated, hereinaf-
ter referred to as "employer" and ----- , herein-
after referred to as "employee."
In consideration of the continued employment of the
employee by the employer, and in consideration and
recognition of the highly specialized and technical na-
ture of the employer's business, the extensive special-
ized training given to the employee by the employer,
4All dates herein are 1977,
The approximate date of distribution of these agreements is derived from
the mutually corroborative testimonies of Baker. Huguley, and Mobley.
While Respondent's president, Harr) Gurley, initially testified that he gave
these agreements to Peck some 2 months prior to September 2 and subse-
quently modified his testimony to indicate that he had done so a month or 6
months prior to that date, his testimony was not corroborated by that of
Peck. Peck did not contradict the testimony of Baker, Huguley, and Mobley
as to when they first received the contracts.
1224
SOLUTHtRN PI.ASMA CORPORATION
and in recognition that the employee shall he exposed
to and shall utilize the confidential procedures, donor
histories. and records. which are the exclusive property
of the employer. the employer and the employee agree
as follows:
I. That the employee shall be employed at one of
the facilities of the employer until such time that either
the employee is terminated upon reasonahle grounds
or voluntarily terminated.
2. That the employee agrees for a period of at least
three (3) years from the date of his termination that he
shall not engage in. participate in, or become interested
in, directly or indirectly, with or without his fault, in
any business that is in competition with the employer.
and the surrounding areas of the employer, as deter-
mined by those areas which are within a radius of
(100) miles of any facilities of the employer. whether
such participation is as an employee. agent. employer.
principal, partner, stockholder, corporate officer. cor-
porate director. or in any other individual or represent-
ative capacity whatsoever. The employer and the em-
ployee hereby agree that the restriction of three (3)
years and an area within one hundred (100) miles of
any cities of the employer are reasonable restrictions
given the highly specialized nature of employer's husi-
ness which relies on highly technical procedures and
donor lists and records.
*
5. In the event that this agreement is breached by
the employee, the employer shall be entitled to bring
injunctive proceedings for the enforcement of this
agreement and shall further be entitled to all other
remedies granted by law. All costs including reason-
able attorney's fee incurred in the enforcement of this
agreement, shall be the obligation and responsibility of
the employee.
Upon receipt of Respondent's proposed employment
agreement, and having received no explanation or reasons
why they should sign,6 the employees and firstline supervi-
sors began to discuss among themselves the question of
whether they should sign. Most, if not all. indicated at least
a great reluctance to do so. On about September I they
decided to seek legal advice and to share the costs thereof.
On September I Patricia Mobley. Melanie Parker. and
Glenda Baker consulted a lawyer, who referred them to
another lawyer, more experienced in labor relations mat-
ters. They made an appointment with the second lawyer for
the morning of September 2. and these three individuals
met with him on that morning. Upon his advice then
formed the Southern Plasma Corporation Employees Asso-
ciation and prepared a petition for signature by all of the
employees, authorizing that association to represent the em-
ployees for collective-bargaining purposes. They also pre-
pared a counterproposal to Respondent's emplo meitnt
, According to Respondent's president. Harry (;urle. it was he identities
of the antihody labs rare donors which he was haiicall seeking to proerLt
by insisting upon the exeuion ,if the noncompetition agreements tie ietii-
fied that he normally had to pay uhstantal umrn of nione" 1to ich pe ple as
hospital technicians to learn the dentity io Iee son, hearing rre hi,l ,uh-
types
agreement. That counterproposal. tracking the language ot
Respondent's proposed agreement, substituted "just and
sufficient cause" fo'r "reasonable grounds" for termination.
More significantly, it proposed to reduce the period of re-
striction to I year from the date of an. voluntary termina-
tion and the radius within which the restrictions would ap-
ply to 50 miles around Tallahassee. Florida. It further
eliminated the provision that the employee would pay the
costs of legal actions to enforce the contract and provided
certain guarantees of job security. Finally. a statement in
the nature of' a demand for collective bargailning. to be read
to Respondent. was prepared.
Following the meeting with the attorney. Baker. Parker.
and Moble, returned to the lab. There thex secured the
signatures of five employees upon the petition authorizing
the Southern Plasma Corporation Emploees Association
to represent them for collective-bargaining purposes and
secured the signatures of the donor lab and front office em-
ployees on their alternative employment areements.
That noon Mobley. Parker. and Baker went to lunch
with Valaree Peck. the laboratory manager. Baker read her
the prepared statement. as follows:
We represent a majority of the employees in allahas-
see. We want to bargain collectively with the Corp.
o\er the terms and conditions of the contract. This is
the contract.
They gae Peck the signed proposed emplo\mient agree-
ments. Peck told them that she did not understand what it
was they were doing. and they explained that the\ had
formed a union and wanted to bargain collecti elb w ith Mr.
Gurle. Peck told them that they would hase to sign the
contract as proposed b CGurle>.
Following this meeting Peck called Flarry (;urley and
told him that the emplohces had prepared a counterpro-
posal to his emplo'ment agreement. She denied mentioning
the formation oft a union, and Giurley corroborated her tes-
timony that she did not do so. Gurley told Peck to come
over to his office.
Shortly thereafter. Mobley and Peck went to Giurles's
office. There. as Patricia Mobley testified, she placed in
front of Gurle) a stack of the employees' signed agree-
ments, told him that a union had been formed. and asked
him to read their proposal, Gurleb picked up the folder full
of contracts, flung them across the room. and stated. "I
don't hase to put up with a damned union: I'll close the lab
first." He then proceeded to ask her how the! had formed
the union and who the lawyer involved was. When she told
him. he responded: "Well. I'm not gonna put up with a
union. I never liked the union, and I don't have to put up
with it: I'll close the business first." She told him that all of
the problems could be avoided if' he would only come to the
lab and explain the reasons for his contract to the employ-
ees. indicating that eer)one would prohabl sign if the,
had an explanation. Giurle\ protested that he had it man-
ager. \Valaree Peck. for such matters. After some further
discussion. Mohles convinced (urley to conme over to the
lab and address the employees.'
(iuric, aldl Peck admitl that (urlc. uipon rcip ol I he oinIcrpropo,-
;l.. threw the elmplo! ees' COlllrils a r, ss a i the r, m I' lck di ed he.ring
(iurleNs .X .anlhing aholt .i unio h sa, nt a.ked i did n I i[ deIns that
I ,xIIt.dtt.'.d)
122
I)( ISIONS OF NA IONAL LABOR RELATIONS BOARI)
Gurley called Parker and told her that no more donors
should be started, as he had closed the lab. He said that he
would be over later to discuss it. Parker passed his instruc-
tions on to the other employees?
Gurley came to the lab and met with the employees late
in the afternoon of September 2. Nine witnesses testified in
regard to that 20-to 30-minute meeting, none in great detail.
The versions vary considerably. Piecing those versions to-
gether, with due consideration having been given to the
demeanor of the witnesses and other factors affecting their
credibility. the corroboration of some portions by different
witnesses, and the inherent probabilities of the situation. I
conclude that the meeting took the following course:
Gurley opened the meeting with a statement that the lab
was closed and that the employees had brought the closing
upon themselves.' Gurley's contract was discussed. with
Gurley claiming by way of explanation that he needed the
signed agreements because he was securing a substalntiall
bank loan. According to Huguley, someone stated that if
Gurley had explained it earlier, they probably would have
signed it. Gurley responded by telling them that he did not
have to explain it, that he had a manager to handle matters
such as that. In the course of Gurley's explanation. Ilugu-
ley disputed part of the contractually claimed consideraton
for the employees' execution of the noncompetitive agree-
ments, "the extensive specialized training given to the em-
ployee by the employer." and pointed out that they learned
to draw blood through trial and error on live donors. Al-
though he gave some explanation of the contract. (jurle
did not specifically offer the employees an opportunity to
sign at that meeting. '
Mobley told him that a union had been formed. (iurley admitted being er
upset when Mobley gave him the revised contracts and claimed that the
employees had had an opportunily over the past 2 months to sign his agree-
ment. He further claimed that he had set a September 2 deadline lfr the
signing of the contract. No other evidence of such a deadline was adduced.
Gurley gave no reason why the) had to he signed hb that date. and neither
Peck nor the employees made reference to a September 2 deadline. Noting
the extent of (;urley's anger, as demonstrated by his physical reaction It
receiving the proposed alternative agreements; his exaggeration as to length
of time that the employees had to sign the agreements: his contrived imposi-
tion of an alleged deadline for the signing of his agreements: and Peck's
professed lack of understanding as to what the employees meant by designat-
ing themselves as a union and her professional lack of concern with this
union activity, and considering Mobley's superior testimonial deneanor. I
credit the testimony of Patricia Mobhle to the extent that it conflicts with
that of Gurley and Peck.
I The credibly offered testimony of Melanie Parker, as corroborated by
Mobley and Dennis luguley.
Mobley, Parker. Huguley, and Baker (whose testimony I would only
believe when corroborated by other witnesses) so testified 01 Responden's
witnesses, only Peck specifically denied that Gurley opened the meetig in
this manner, and I find her less than fully credible. The t stimony ot Mobley.
Parker, Huguley, and Baker is, moreover, consistent with the statements
made by Gurley to Parker in his office and in the telephone cmlsersaion
preceding the meeting. regarding closing the lab.
'o Baker, Parker, and Mobles so testified, Of Respondent's il, messes, only
Stephen Balchuck. formerly a sales representative lfr (;urlei and now a
partner with him in another business enterprise. testified that (;urley asked
the employees to sign his contract. Both Gurley and Peck were vague and
unresponsive when asked whether the emploees were given a chance to
sign. and I must conclude from the way the responded to uch questions
At the conclusion of' this acrimonious meeting. Gurlev
repeated that he was closing the lab. lie told the employees
that he had not been making any money with it and made
a reference to getting rid of the "troublemakers and pot-
heads."'' The donor or bulk plasma lab was closed, and the
donor lab and front office employees were terminated. One
front office emploee. D)ebbie Blanchard who had signed
the contract, swas kept on the paxroll: the record does not
indicate what, i anything, she did for Respondent in the
following week. Ihe employvees of' the anbihody lab had all
signed, or promised to sign. Gurley's noncompetition agree-
ment prior to the meeting. That lab was not closed.
On September 8 Giurlev reopened the closed portions ofi
the business with new employees. Two of the discharged
individuals sought reemployment around that time. Patricia
Mohley was rejected "under the circumstances." ('alvin
I-hoinas wa;s rehired. None of the others were oflered the
opportunitN to return to Respondent's employ. In Novem-
ber. when Dennis Htuguley returned to the lab as a donor,
Peck asked him i he was interested in returniiin to work if
she could arrange it. ie said that he was and Peck told him
that she vwould speak to Ciurley. Gurle refused to rehire
him, because he considered luguley to he a "trouble-
maker." This appellation was applied to luguley in large
part, Gurley admitted, because of Iugule's conduct at the
September 2 meeting.
Respondent's answer set out, as an affirmative defense to
the complaint, a contention that it had temporarily ceased
operations on September 2 "because of diminished business
conditions which were usual occurrences during this time ot
the year" and reopened it on September 8 "due to improv-
ing business conditions." Respondent did not support this
contention at the hearing. Rather, (iurley testified that he
decided to reopen the fitcilit after he had some time to
think about what he had done. Respondent's brief asserts
without support in the record, that the business "was closed
for it period of days . . . solel due to the reason that the
employees necessarN to operate the lab had been fired and
new ones had to be hired and trained to replace them....
B. ,I4a/i 'is ad ( tiom lu.vison
I. he I (b) issue
The initial charge herein having been filed on March 3,
1978, Section 10(b) of the Act bhars the complaint as to any
acts occurring prior to September 3, 1977 (absent a tolling
of' the limitations period). Environmental (ontrol .. v'1.s. (I
Dii.vion of the Pall C(orporation, 190 NLR B 594 ( 1971 1: he
Bailtmore Tran.qIc'r ('ompanv /' Baltimore ('i, Inc., 94
that no opportuniitiy was gien. Addiltinally. the absence oflsuch n opportu-
nit t sign is cnsistent with hoth (urle's relucta nce t attend any such
meeting a all nd the manner in which he opened the meeting.
Parker and Huguley both testified that Gurley rejected a request or tter
hb Mobley that the employees sign his contract it the meeting touweser, I
calnnot so find Mobley did not crroboralte their testiony ,on this pint, and
iurltey. Peck. and Robert Dator.r. mniainager iof the antihtbod lab, all testified
Ihat they culd recall n such request or ofler being made.
i~ Huguley's estiUony as this concluding remark is unconlradicted and
is cnsistent with GurleNy's adnission that he subsequlentl, retused t rehire
iHuguley because he cnsidered Huguley a "troiublemaker." at least in part
because iof his cnducl at this meeting. Respndent did nt cntend that any
emplosees were discharged or use of mnarijuana (pot.
1226
SOl I llIRN PLASMA (ORPORAII()ON
NLRB 168() (1951). Respondent contends that the employ-
ees herein were discharged on Septemher 2, 1977. and that.
therefore, their right to initiate proceedings was extin-
guished on March 2. 1978. The complaint alleges. and Gen-
eral Counsel contends. that the cause of action arose, and
the limitations period began to run. not when Respondent
closed its facility hut when it reopened with new employees.
General Counsel's position is well founded.
The statutory limitations period hegins to run when the
acts alleged to be violative are consummated, not necessar-
ily when theN are first initiated. Mack TrucvAs, Inc.. 230
Nl RB 993 (1977): ( hauflturv. 7ser. er aT ,Wtnl, er ¥ "Gn'-''
eral" Local No. 20() etc. (tate Sand and ( rarel ( onipatn).
155 NLRB 273 (1965). In the instant case Respondent did
not merel\ discharge its employees on September 2: it pur-
ported to close the portions of its business in which those
employees had worked. ostensibly on a permanent basis.
and so stated to its supervisors and employees. he l)arlng-
ton casel 2 teaches that:
]'he permanent closing of part of an emploqer's
business is not an unfair labor practice proscribed h
Section 8(a)(3) of the Act unless evidence is elicited to
support two findings. First, the closing must be moti-
vated, at least in part. bh a purpose to chill unionism in
an 5 of the remaining faiicilities of the single emploser.
Second. it must be fkound that the emploser could rea-
sonably have foreseen such an effect.'
In this case Giurley made no mention of the union activit!
during the September 2 meeting. and there was no other
evidence that his purpose was to "chill" unionism or the
exercise of protected concerted activities in other portions
of this facilits or in his other businesses. Thus, not until he
reopened the closed parts of the business did it become
apparent that this was other than a permanent closing sanc-
tioned by Darlington. At that time the alleged violation was
consummallted, and a cause of action fr the terminations
arose.
Moreover, it may reasonabl be assumed roml the speed
with which Gurley reopened the plasma lab and replaced
the employees: from the length of time he had been in busi-
ness prior to the "closing": front his retention of both
Debbie Blanchard and Valaree Peck. who had signed his
agreement; and from Respondent's shifting statements of
reasons as to why the lab had been closed and wh it was
reopened that Gurley never really intended to permaentlN
close that lab. By stating that he was closing the lah when.
in fact, he had no such intention, (iurle pre ented the
affected emplobees from being a are of the nature of the
violation committed against theim. Such deception operates
to toll the statute of limitations until the deception is dis-
covered, in this case bs the emploNecs' ohbser ations that
Respondent was resuming operati ms. sormetiie alter Sep-
tember 8. See itolnlhrg v . rmlrclht. 327 I. S. 392. 397
(1946).
I therelore conclude that the statutors limitations period
did not begin to run until September 8, at the earlies.
12 7 xl 1 s ,reri t .of tI mer a . tD/rlilvt, lt1 lafsll irliig ( 380
I S. 263 1 96)
sw A f ,sr s )nan ( o. I 231 Nt RB 1243 1977
Therefore, the charge. having been filed less than 6 months
from thie alleged unfair labor practices. wUas timel'.
2. 8(a)( 1) and (3) violations
A careftil review of all of the flregoing es idence con-
vinces me that Respondent's front office and donor lab em-
ployees were discharged. replaced. and not recalled in sub-
stantial part. i' not entirels. because the! had concertedt
acted for their own mutual aid and protection and because
GurleN believed that the, were engaged In union activity. '
In this case it is besond argument that the employees
were engaged in protected actd it! hen the! acted to-
gether to formiulate, present. and negotiate terms less oner-
ous than had been proposed to them in Gurle!'s noniconpe-
tition agreementl All that remainis at issue is (iurtle's
motivatio. Respondent contends that each individual was
terminated for his or her individual refusal to sign the con-
tract rather than f()r engaging in concerted protest. The
facts belie this contention. Thus. when confronted with the
emploees' counterproposals and hb Mohble\'s statement
that a unioIn had been formed. CGurlev literall> exploded.
He expressed his rage bh throwing the emplo ees' contracts
across the room. cursing the ULnion, and threatening to
close his business before he would put uIp with a union. He
repeated his statemenits regarding closing the busiless when
he called Parker and again when he met with the enmplo\ees
at the lab. And when he met with the emplosees he gave
them no real opportunitl to sign his contract.
Of particular importance in determining his motivation. I
find, is G(urle's belated assertion ot'a Septenmber 2 deadline
for the signing oft his contracts. No such deadline had previ-
ousl been announced: indeed, such a deadline was incon-
sistent with the requested return date of September 8 previ-
ousl\ menitioned to Mobley bh Peck. Similarly significaint is
Gurlex's total in;abilit to explain wh! his agreements had
to he signied hb Septeimber 2. All that remrnains is the coniclu-
sion that (iurle imposed the deadline on Septeitmber 2 in
order to rid hiniself otf all employees who w ould concertedl
seek It) thu;art his uilaterallx determined will.'
(urles's aIlltiunion, anti-concerted-activits motivation is
further resealed hb his subsequent independentl, unIlafutil
rel'usal to rehire Dennis IHugule because IuguleN's partici-
pation in the September 2 meeting rendered him a "''trouble-
maker" in iul-les's eves. Clearl. that September 2 meeting
,as an exercise of protected concerted actix its. and nothing
HluguleC said or did in that meeting was "so) offensise, de-
finliator\ or opprobrious as to rem ove [him] from the pro-
' the rote i stIpersors In Ilrmilng Ihe SolIthern P'liMll.a (orporation
I lllpI/o~es' \Nssssioin ould .appea.r to tlint the .associl.ltionl'xs satuor
labor org.lilldtionl sttS tt, eer. it matrs not hether the .lhisItion is
l llhtr orgnliollil it(hin the me.lning o Sec 2(s) ol he \l. ais Sec
8(13) is iol.tited when an emrploser acts ag.ilnlt empipl ?ees n the hel ct th.t
tlles are engaged in itlilin tel ties. hether the .atIu.ll .tIr2 t nlot
RB 1s,. F.h tr p. 311 t I S 584, 5' 59tl 141L ) Ih sns 1 t i
( 'hcaidi . I, 212 N I.RB 77h I 1974)
AI , Respoinlldle'1s .cnce.lllent oi il nlenton nol to pernilanenll, c/os
the tIlheli e C tolled the pelbitsin ol lie it It 1111 lllis. itl ot he tore-
goineg Ci\ldence lie, 'illhn the hin llhonlls pellid ten It ioutside the I()h)
period. ho,cer. nill. he considered to deterllilne Respondent rmlltisl-
lll o , ll l/ od14¢ 'so , 4. intlerl lltldl 4 ,iillol .O.! i ,!thinstit. -11l.
( 0 , i fatl / in 'i ullsiltlts ltrltn g (, f l 1. 1R .t 16r2 t S 411. 416 19h(l)
See ilso 4Ar %/ Nulele tianuiutrsrig ( omptun. 224 NI RB I 998 19761
1227
DI)i('ISIONS Of NAII()NAII LABO)R RIA'IIONS BOARD
tection of the Act." Ben PeAi (iTnooratlion, 181 N I.RB 1025
(1970()) enid. 452 f:.2d 205 (7th Cir. 1971).
F:inally, Respondent contends that Baker and PIarker, as
supervisors, are outside he abit of the Act's prolections.
Ordinaril. thi', w, uld he so. 7iTe olietoiru, r :ofliiIi o.
d/h/a B a M rh ,o 'A Momlret-p. 174 NRB 10)60 (1969).
However. in this case, s i KrhAcs aintl King 1 voia, 1I..
197 NLRB 462 (1972). "the discharge of the supervisors
was an integral part of a pattern of conduct aimed at penal-
izing thile employees for their union [and protected con-
certed] activities" and was thus iolative of Section 8(a) I)
of the Act. See also Pioneer Drilling (-o.. Inc., 162 N RB
918. 923 (1967), enfd. 391 F.2d 961 ( IOth Cir. 1968).
C(ON I.A SIO()NS (1 I.\Vw
I. Southern Plasma (orporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. B purporting to close its plasma lab facility on Sep-
tember 2. 1977, and discharging employees Dennis Hugu-
ley. Karen Amodio Betty Lockwood. Abigail Williais.
and Joanne Gjodwin and by thereafter reopening those
plasma lab facilities on or about September 8 1977, while
failing and refusing to reinstate those same employees. and
by subsequently refusing to hire Dennis Huguley, because
said employees engaged in union or other protected con-
certed activities or hecause Respondent believed that they
had engaged in union activities, Respondent has violated
Section 8(a)( I) and (3) of the Act.
3. By discharging and refusing to reinstate or recall su-
pervisors Glenda Baker and Melanie Parker as part of an
integral pattern aimed at penalizing its employees for en-
gaging in union or protected concerted activities. Respon-
dent has violated Section 8(a)( I ) of the Act.
4. The unfair labor practices enumerated above are lln-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
Itt. ilt 1:IF-1( I I. il1 UNI AIR l.ABOR PRAt I( IS tUPIT IN
( MMI R( I
The activities of the Respondent set forth in section II1
above, occurring in connection with Respondent's opera-
tions described in section 1. above have a close, intimate,
and substantial relationship to trade, traffic. and comlmerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. 1111t RMI)lY
It having been found that Respondent has engaged in
unfliir labor practices in violation of Section 8(a)(3) and I )
of the Act. it will be recommended that Respondent he
required to cease and desist therefrom and take certain al
firmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminatorily
discharged andor refused to recall or reinstate Dennis
fluguley, Karen Amodio, Betty Lockwood. Abigail Wil-
liams, Joanne G(odwin, Glenda Baker. and Melanie Parker.
Respondent shall offer them immediate and full reinstate-
ment to their former or substantially equivalent positions.
without prejudice to their seniority or other rights and
privileges, and shall make thern whole for any loss of pay
the' mnay have suffered by reason of the discrimination
against them. Any hackpa tfound to be due shall be com-
puted, with interest. in the manner prescribed in 1 U4.
I ooli/orh lir (tompativ. 90) N. RB 289 (1950() and Florida
Si'c/('l Corporation. 231 NI.RB 651 (1977).'"
As the unt;ir labor practices were of a kind which go to
to the very heart of the Act I shall recommend an order
requiring Respondent to cease and desist from infringing in
a/ni ohlier mtnlrler upon the rights of emploees guaranteed
bh Section 7 of the Act.
Upon the basis of the entire record, the findings of fact.
anti the conclusions of law, and pursuant to Section IO(c) of
the Act. I hereby issue the following recommended:
OR)ER"
Respondent, Southern Plasma (Corporation Tallahassee,
Florida. its officers. agents. successors. and assigns. shall:
1. (ease and desist from:
(a) I)ischarging or refusing to reinstate or recall its em-
ployees and supervisors, or temporarily closing its facilities.
because the employees engage in union or other protected
concerted activities.
(b) In any other manner interfering with. restraining, or
coercing its employees in the exercise of' their rights of self-
organization: to form or assist any labor organization; to
bargain collectively through representatives of their own
choosing: to engage in concerted activities for the purposes
of mutual aid or protection: or to refrain from any or all
such activities.
2. Take the liolloing ahirnlative action, which is
deemed necessary to etlcctuate the policies of the Act:
(a) Ofler l)ennis IluguleN, Karen Amodio, Betty ILock-
wood Abigail Williams. Joalnne Godwin, Glenda Baker.
and Melanie Parker immediate and full reinstatement to
their former jobs or. if' those jobs no longer exist, to sub-
stanti;ally equivalent pos:tions. without prejudice to their
seniority or ther rights and privileges.
(b) Make l)ennis flugule. Karen Amodio, Betty l.ock-
wood. Abigail Williams. Joanne (iodwin. Glenda Baker.
and Melanie Parker whole ftr any loss of earnings sutifered
as a result of the discrimination against them, in the man-
ner set forth in the section of this I)ecision entitled "The
Remed.."
(c) Preserve and, upon request. make available to the
Board or its agents. tfor examination and copying. all pay-
roll records, social securitS records. timecards. personnel
records nd reports. and all other records necessary to ana-
6See. generally. I Plumbhig & It-niItg (. 138 NRB 716 (19621.
(eneral Cunilsel's request hai I a ard re medial inleresl t 9 percent is
dellied. It the Inleres rte is to he raised. li must he dlnme bh he Board 'Ihe
Board on Llinue, ti, adhere tol Its I ,rieli SI deCl.ision See. for example. St
Regi Paper (rnp,,,,,,. 239 N I.RB 688 (1978)
0 In the even n excepion, ;Ire filed as pros idedl b Sec. 102.46 o,1 Ihe
Rules anld Regulahlh,n, ot he Nationall I.ahor Relations Board. the indings.
conciuiSllsns. and recommended Order herein shll as provided in Sec 10248
oft he Rules rlali Regulaltions. he adopled h the Boa;lrd a;nd heconle its
tindings. c01nclulslils. ad Order. nd all ojectlion, thereto shall he deemed
;ised olr I ll purposes
1228X
SOUTHERN PLASMA CORPORATION
lyze and compute the amounts of backpay due under the
terms of this Order.
(d) Post at its facility at Tallahassee, Florida, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
"l In the event that 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."
gion 12, after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered. defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 12 in writ-
ing, within 20 days from the date of this Order, what steps
have been taken by Respondent to comply herewith.
1229