Sunbelt Mfg., Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1992

308 N.L.R.B. 780 (N.L.R.B. 1992)

780
308 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct the judge’s typographical error concerning the election
results. The parties stipulated that the tally of ballots shows 63 for
the Petitioner, 128 against the Petitioner, with 29 nondeterminative
challenged ballots.
3 In adopting the judge’s finding that the Respondent’s videotaping
of employee handbilling activity at the front gate violated Sec.
8(a)(1) of the Act, we find it unnecessary to rely on his finding that
the Respondent’s conduct ‘‘necessarily tends to interfere with, re-
strain or coerce employees in the exercise of Section 7 rights.’’ It
is a reasonable tendency under the circumstances which governs the
inquiry in each case. Here, the Respondent’s videotaping, at the cul-
mination of the election campaign, during which we have found that
the Respondent unlawfully expressed antiunion animus by threaten-
ing to close the plant and reduce wages and unlawfully discharged
a known union adherent, specifically revealed whether certain em-
ployees accepted or rejected campaign literature. In these cir-
cumstances, even though some employees actively sought publicity
as a memento, this purpose had not been explained to other employ-
ees, and we find that the Respondent’s videotaping reasonably tend-
ed to interfere with, restrain, and coerce employees in the exercise
of Sec. 7 rights.
Sunbelt Manufacturing, Inc. and Amalgamated
Clothing and Textile Workers Union, AFL–
CIO. Cases 15–CA–11527 and 15–CA–11572
September 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 7, 1992, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sunbelt Manufacturing,
Inc., Monroe, Louisiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Ronald K. Hooks and Dwana King, Esqs., for the General
Counsel.
James B. Irwin and Lawrence G. Pugh III, Esqs. (Montgom-
ery, Barnett, Brown, Read, Hammond & Mintz), of New
Orleans, Lousiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard
these cases in trial in Monroe, Louisiana, on January 27, 28,
and 29, 1992 (all dates below are in 1991 unless I indicate
otherwise). The cases arose when Amalgamated Clothing and
Textile Workers Union (the Union) filed charges against
Sunbelt Manufacturing, Inc. (the Company), on May 10, in
Case 15–CA–11527, and on July 5, in Case 15–CA–11572.
After investigating the charges, the Regional Director for Re-
gion 15 of the National Labor Relations Board (the Board)
issued an order consolidating cases, consolidated complaint
and notice of hearing (the complaint) on August 30. The
complaint, as amended at trial, alleges the Company dis-
charged its employee Lamon Holmes (Holmes) on April 23,
because of his union activities, thereby violating Section
8(a)(3) and (1) of the National Labor Relations Act (the
Act), and that on specified dates in April and May, specifi-
cally named company supervisors/agents threatened employ-
ees with reduction in wages, plant closure, relocation of the
plant, and loss of benefits if the employees selected the
Union as their collective-bargaining representative. It is also
alleged the Company engaged in surveillance of its employ-
ees’ union activities. All of the above is alleged to have
tended to interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed by Section 7 of the Act
thereby violating Section 8(a)(1) of the Act.
The Company admits its operations are in and affect com-
merce, that the Board’s jurisdiction is properly invoked, and
that the Union is a labor organization within the meaning of
the Act. The Company denies all alleged wrongdoing and as-
serts Holmes was discharged for insubordination—calling his
immediate supervisor a ‘‘goddamn liar’’—in accordance with
past practice.
All parties were afforded an opportunity to call, examine,
and cross-examine witnesses, and to present relevant evi-
dence. I have considered the entire record including briefs
filed by counsel for the General Counsel and counsel for the
Company. I carefully observed the demeanor of the witnesses
as they testified. Based on the above, and more particularly
on the findings and reasonings set forth below, I will find
the Company violated the Act when it discharged Holmes
and when it, through Supervisor James Williams (Supervisor
Williams), threatened employees with a reduction in wages
and that the plant would close if the employees selected the
Union as their collective-bargaining representative. I will also
find the Company violated the Act when it, through Super-
visor Paul Perkins (Supervisor Perkins), videotaped certain of
its employees’ union activities. I will conclude Company
President David Cattar (President Cattar) did not violate the
Act in any manner alleged in the complaint.
781SUNBELT MFG., INC.
1 Supervisor Adams testified but was not questioned about this
meeting. Plant Manager McMullen did not testify. Counsel for the
General Counsel does not contend that Caldwell’s actions on this oc-
casion violated the Act in any manner.
FINDINGS OF FACT
I. JURISDICTION
The Company is a Louisiana corporation with an office
and place of business in Monroe, Louisiana, where it is en-
gaged in the manufacture of plastic products. During the 12-
month period ending May 31, which is a representative pe-
riod, the Company, in the course and conduct of its business
operations, sold and shipped from its Monroe, Louisiana fa-
cility products, goods, and materials valued in excess of
$50,000 directly to customers located outside the State of
Louisiana. It is alleged in the complaint, the parties admit,
the evidence establishes, and I find the Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION STATUS
It is alleged in the complaint, the parties admit, the evi-
dence establishes, and I find the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. A BRIEF OVERVIEW
The Union commenced an organizing campaign at the
Company in the early spring and filed a representation peti-
tion in Case 15–RC–7603 on April 1. An election was con-
ducted by, and under the supervision of, the Board among
the production and maintenance employees at the Company
on May 16 and 17. The results of the election were that 63
employees voted for the Petitioner (the Union), 28 employees
voted against the Petitioner (the Union), and the ballots of
29 employees were challenged. A certification of election re-
sults was issued by Region 15 of the Board on May 28. The
unfair labor practice allegations arose during and grew out of
the organizing campaign.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
In attempting to establish or defend against the claims set
forth in the complaint, the parties called some 12 witnesses
and presented numerous documents. The testimony and re-
sponses thereto are set forth below with the allegations relat-
ed to Supervisor Williams and the discharge of employee
Holmes addressed first and then the allegations related to Su-
pervisor Perkins and President Cattar are addressed.
A. Allegations of Section 8(a)(1) Coercion Attributed to
Supervisor Williams
The allegations involving Supervisor Williams are de-
scribed at paragraphs 7(a) and (b) of the complaint. In these
subparagraphs, it is alleged that on or about April 11, the
Company, acting through Williams, threatened employees
with a reduction in their wages and with plant closure if they
selected the Union as their bargaining representative.
1. The facts
I have intertwined with the evidence on these allegations
Holmes’ work history and certain of his union activities as
well as the Company’s reactions thereto.
Holmes, a 6-year employee, worked as a machine operator
on lines 11 and 12 under the direct supervisor of B shift lead
operator, Supervisor Williams. Holmes worked for Williams
for approximately 2-1/2 to 3 years before he was suspended
on April 23, and subsequently discharged on April 27.
Holmes first became involved with the Union in March after
a union organizer visited him at his home. Holmes signed a
union card and thereafter attended union meetings that were
held at a local motel. Holmes solicited several employees to
sign cards for the Union and estimated approximately five
did so at his request. Holmes stated he ‘‘mostly’’ approached
employees between workshifts about signing union cards;
however, he said he asked one or two employees to sign
cards at their workstations while they were working.
Holmes testified that ‘‘around’’ the first week in April,
management asked him about his solicitation efforts for the
Union. Holmes explained that Shift B Supervisor Randy
Adams (Supervisor Adams) came to line 11 and asked him
to report to the training room. Holmes said he accompanied
Supervisor Adams to the training room where Company Vice
President Bryan Caldwell (Vice President Caldwell) and
Plant Manager Russell McMullen (Plant Manager McMullen)
already were. According to Holmes, Vice President Caldwell
‘‘asked me was I going around the plant passing out union
cards.’’ Holmes denied doing so and testified ‘‘[Caldwell]
told me that they was aware of me passing out union cards,
but since I said I wasn’t, that if I was he wanted me to stop
because it was unlawful for me to do that during working
hours.’’ Holmes again told Caldwell he ‘‘wasn’t passing out
no union cards’’ that he ‘‘didn’t know nothing about it.’’
That ended the meeting.
Vice President Caldwell testified Supervisor Adams told
him in April that an employee was soliciting for the Union
at work during working time. Caldwell said he verified
Adams’ report with Supervisor Williams and then instructed
that employee Holmes be brought to the training room for
a meeting. Caldwell said he asked Holmes if he knew what
he was doing was in violation of the Company’s no-solicita-
tion rule set forth in the Company’s handbook. Caldwell said
he wanted to ensure Holmes understood so he read the por-
tion of the employee handbook that pertained to solicitation.
Caldwell stated he still did not believe Holmes understood
what solicitation meant so he told Holmes ‘‘[i]t’s my under-
standing that you were up and down the shop floor distribut-
ing cards in reference to union activity.’’ According to
Caldwell, Holmes denied engaging in any such conduct. Vice
President Caldwell testified:
I explained to him that the issue simply was that we
could not do that on company time at company work.
If he desired to do something like that, it’s perfectly all
right to do that in the break area if he was on break,
or if other people were on break, but he could not do
it at any other location in the plant.
Caldwell said Holmes was ‘‘incensed’’ so he explained to
him that he should consider their meeting ‘‘a verbal warn-
ing’’ and that if he did it again, ‘‘there would be a written
warning.’’1
Holmes testified that starting around April 11, Supervisor
Williams had approximately three conversations with him
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Davidson is reflected as Davis at some places in the record.
3 Holmes said three other employees were in the area at the time
of this exchange, namely, Glenda Moy, Monica Culpepper, and
Carrie Russell.
4 Williams testified he first learned of union activity about 3 to 5
weeks before Holmes was terminated on April 23.
about the Union. Holmes said the first one took place at his
machine. Holmes testified:
Oh, we was on graveyard, and [Supervisor Williams]
came up to me and he said that the company was going
to shut the plant down. He said the company was going
to drop wages to four twenty-five an hour if the union
got in.
Holmes told Williams, ‘‘No, they can’t do that. I don’t be-
lieve that.’’ According to Holmes, Williams responded, ‘‘All
right, I’m telling you.’’ Holmes said he did not respond.
Holmes said Supervisor Williams next spoke with him
about the Union in front of line 9 where he and fellow em-
ployees March Davidson2 and Jeff Killebrew were talking
about the advantages and disadvantages of the Union.
Holmes said Davidson mentioned that his (Davidson’s) father
had worked in a ‘‘union shop’’ and wages had been cut and
the facility eventually closed. Holmes testified:
And by this time [Supervisor Williams] walked up and
he said, ‘You all still don’t believe [President] Cattar
is going to drop wages to four twenty-five an hour?’’
According to Holmes, Davidson responded: ‘‘He said that he
was just trying to tell me that, that you all could do that, he
can even shut the plant down.’’
Holmes testified Supervisor Williams stated: ‘‘[President]
Cattar was going to cut the wages to four twenty-five or shut
the plant down and move somewhere else.’’
Holmes testified Supervisor Williams’ only other comment
about President Cattar at the time was ‘‘This man has got
money.’’
Holmes testified Supervisor Williams had a third conversa-
tion with him at about this same time. Holmes testified Wil-
liams stated, ‘‘You still don’t believe the company can drop
wages to four twenty-five an hour?’’ Holmes answered no to
which Supervisor Williams responded:
I’ll tell you what, why don’t you bring me something
in writing proving that the company can’t drop your
wages to four twenty-five an hour.
Holmes laughed and told Williams he would do so. Williams
gave Holmes 3 days to come up with something.
On or about April 19, Williams asked Holmes if he had
the information that wages could not be reduced. Holmes
said he told Williams he could not get the information. Su-
pervisor Williams asked Holmes again the next day (April
20) if he had the requested information. Holmes again told
Williams he did not. Holmes said Supervisor Williams asked
him again on April 22, if he had the information. Holmes
said he was going about his job and did not respond to Wil-
liams this time. Holmes testified that later during that same
shift, Supervisor Williams came to his (Holmes’) desk and
told Holmes he had let him down. Holmes asked how, and
Williams said ‘‘I thought you was going to bring me that in-
formation.’’ Holmes asked Williams ‘‘where am I supposed
to get that information from’’ to which Williams responded,
‘‘Your union man.’’ Holmes responded, ‘‘My union man’’
and Williams said ‘‘Let me rephrase that. The union man.’’
Holmes told Williams he didn’t know any union man but
that what he was saying—that wages could not be reduced—
was just ‘‘common sense.’’3 Holmes said that as he left his
workdesk Supervisor Williams followed and stated, ‘‘I’ll tell
you if the union comes in, wages are going to be cut to four
twenty-five an hour.’’ Holmes told Williams he did not be-
lieve that. Williams then asked Holmes if he had ever heard
of collective bargaining. Holmes told Williams he ‘‘had read
a little about it in a book that [Supervisor Adams] had let
[him] read.’’ Holmes testified Williams responded that ‘‘all
[President] Cattar had to do was sit across from the union
lawyers and state that he wanted the wages to be four twen-
ty-five.’’ Holmes testified:
I told him that’s not bargaining. I told him that—when
I told him that that’s not bargaining, I told him that that
don’t mean we’re going to get four twenty-five. I told
him bargaining is going from one point to the next
point.
I told him the book that I read in say that you must
bargain in good faith.
Holmes testified Williams challenged him to show him
‘‘that’’ in the book. According to Holmes, they went to Su-
pervisor Adams’ office where Supervisor Williams unlocked
a file cabinet and ‘‘pulled out the National Labor Relation-
ship book that I told him I had read about [the meaning of]
. . . bargaining.’’ Williams gave the book to Holmes.
Holmes said he located the part on bargaining and handed
the book back to Supervisor Williams. Williams then asked
Holmes to underline the part on bargaining. Holmes told
Williams he would not, but that Williams could. Holmes tes-
tified that at that point employee Culpepper appeared at Su-
pervisor’s Adams’ office and said there was a problem on
the line so Holmes left to look into the problem. Holmes de-
scribed the meeting with Supervisor Williams as one involv-
ing ‘‘everyday talk’’ and denied any profanity was used.
Although Supervisor Williams could not recall exactly
when he learned of union activity at the Company, he said
it was in late March or early April.4 Williams’ said his first
knowledge of union activity came when he was given a
prounion leaflet at the main gate to the plant. After learning
of union activity at the plant, he said he handed out various
memorandums prepared by and that explained the Compa-
ny’s position on the Union. Supervisor Williams testified he
knew Holmes was for the Union:
Just by the way he presented hisself toward me.
. . . .
Just simply that no matter what literature I brought
him to get him to understand how the process went, he
was totally against it. He didn’t want to believe none
of it.
Supervisor Williams testified he felt it was his responsibility
to try and make Holmes better informed on the Company’s
position about the Union because ‘‘[Holmes] was just naive
783SUNBELT MFG., INC.
5 He said the meeting, which dealt with the union situation and the
positions the Company would take with respect to the Union and
collective bargaining, was announced in a memorandum distributed
to all employees around April 17. Williams said Holmes did not at-
tend the meeting.
6 Williams said it was his understanding Holmes had been seeking
an appointment with Cattar. Holmes denied seeking any such ap-
pointment.
7 Williams identified Bendix Corp. v. NLRB, 400 F.2d 141 (6th
Cir. 1968), as the case he showed Holmes.
to the situations that were actually real and what really took
place.’’ Williams estimated he talked to Holmes about the
Union four or five times prior to April 19, and that he did
so in conjunction with handing out company memorandums
on the Union. Williams said he never actually stated what
the Company’s position on the Union was prior to President
Cattar’s April 19 speech to the employees outlining the
Company’s position. Supervisor Williams said that prior to
April 19, he and Williams talked about:
Just different things like how unions have shut compa-
nies down, little shop talk stuff like that. And about a
company like Gaylord Bag had all their employees—
When the union moved in there and that guy decided
he was going to leave town, then they all said, ‘‘Well,
we’ll drop the union. Just bring us our jobs back.’’
Supervisor Williams said that prior to President Cattar’s
speech on April 19, all he knew about collective bargaining
was what he had learned from a week-long television special
hosted by CBS Evening News Anchor Dan Rather that aired
during that same timeframe. He said he tried to get the em-
ployees under his supervision to watch Rather’s reports be-
cause the reports were ‘‘very informative.’’ Williams de-
scribed what he learned from Rather’s reports:
Just overall mainly of how many plants and companies
are closing down, which is basically all I got off the
Dan Rather specials.
Supervisor Williams testified about President Cattar’s
April 19, shift-wide meeting with employees.5 Williams said
Cattar asked two employees to role play as union and com-
pany negotiators in order to demonstrate what happens in
collective bargaining. Williams said Cattar told the employ-
ees the Company would bargain in good faith and did not
threaten to lower wages, close the plant, or refuse to bargain.
Williams stated President Cattar did say that wages could go
up, down, or remain the same.
Supervisor Williams testified that after President Cattar’s
April 19, meeting with shift employees, he spoke with
Holmes two or three times (on April 20) about the Union
and the negotiating process. He said Holmes was the only
employee who did not hear Cattar’s speech. Williams said
Holmes ‘‘was really kind of in the dark as far as the [bar-
gaining] procedure and how it went.’’ Williams explained
that if Holmes ‘‘had been there he could have seen how it
actually went into effect when people sit down to negotiate
like that.’’ Williams said he explained the bargaining process
to Holmes by telling him that both sides sit down together
to talk about ‘‘whatever,’’ ‘‘negotiate,’’ and the like. Wil-
liams stated Holmes still did not believe his (Williams’) ver-
sion of how ‘‘negotiations’’ went and continued to state that
negotiations started ‘‘from where you’re at and go up.’’ Wil-
liams said he tried to explain to Holmes that whatever bene-
fit was being negotiated could result in that particular benefit
going up, down, or staying the same. Williams testified he
also explained to Holmes how President Cattar had described
good-faith bargaining. Williams testified:
I told him that [President] Cattar stated that they would
bargain in good faith which meant that they would defi-
nitely be wherever they set up to have a negotiation at,
that they would definitely be there.
Williams denied telling Holmes that President Cattar would
cut wages to $4.25 an hour.
Supervisor Williams testified that during his several meet-
ings with Holmes on April 20, he showed, but did not read,
to Holmes a portion of a booklet that described collective
bargaining. The portion Williams said he showed Holmes
reads as follows:
Collective bargaining is defined in the Act. Section 8(d)
requires an employer and the representative of its em-
ployees to meet at reasonable times, to confer in good
faith about certain matters, and to put into writing any
agreement reached if requested by either party. The par-
ties must confer in good faith with respect to wages,
hours, and other terms or conditions of employment,
the negotiation of an agreement, or any question arising
under an agreement.
The obligation does not, however, compel either party
to agree to a proposal by the other, nor does it require
either party to make a concession to the other.
Williams said he attempted again to explain collective bar-
gaining to Holmes but that Holmes ‘‘didn’t agree’’ that the
way he explained was ‘‘the way it worked.’’ Williams said
Holmes told him he could get proof that Williams’ expla-
nation was not the way it worked. Williams gave Holmes 3
days to get that proof.
Supervisor Williams recalled that his third meeting with
Holmes on April 20, was ‘‘mainly to get him to . . . under-
stand what collective bargaining was about.’’
Supervisor Williams said he did not speak with Holmes on
Sunday, April 21, but that he did so on Monday, April 22.
Williams said his first conversation with Holmes that day
was simply to tell him President Cattar would be able to see
him if he wanted to speak with President Cattar.6 Williams
said Holmes told him he had all the answers he needed and
did not wish to speak with President Cattar. Williams said
he next spoke with Holmes that Monday at around 5 p.m.
when he gave him a copy of President Cattar’s 1-page cam-
paign letter (dated April 22) addressed to all employees. Wil-
liams said he also showed Holmes a copy of the Bendix
case7 and read Holmes the following:
Neither United States Government nor National Labor
Relations Board guarantee employees that, if they
unionize, the collective-bargaining process starts from
‘‘where you presently are in wages, insurance, pen-
sions, profit sharing and all other conditions of employ-
ment.’’
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Williams explained Holmes said ‘‘god-damn’’ rather than just
‘‘g—d.’’
Williams said he again spoke with Holmes that day (April
22) ‘‘trying to get him to understand what was going on so
far as bargaining in good faith and what that actually
meant.’’ Williams stated Holmes still insisted bargaining
started at where you were and went up. Williams said he
kept telling Holmes that benefits could go up, down, or stay
the same. Williams said he then asked Holmes ‘‘if he had
gotten his proof . . . that bargaining in good faith meant that
you started where you were at’’ and that Holmes said he had
proof in a book that was in Supervisor Adams’ office. Wil-
liams said that as they started toward Adams’ office, he
asked Holmes:
If he really thought we were lying to him about all the
information we were trying to give him. And that’s
when he turned to me and stuck his finger in my face
and called me a g—d8 liar.
Williams told Holmes he was being insubordinate. Williams
stated they were not angry and added ‘‘my feelings were a
little hurt because I didn’t deserve that, just by trying to let
him know the truth of what reality was.’’ Williams said they
proceeded to Supervisor Adams’ office where Holmes
showed him something about bargaining in good faith but
that what he showed him pertained to a union’s obligations
not an employer’s obligations. He said an employee (either
Moy or Culpepper) came to the office and told Holmes they
had a problem back on the production line and that Holmes
immediately left the office.
Supervisor Williams testified that after Holmes left the of-
fice, he underlined the portion Holmes referred to in describ-
ing collective bargaining and then telephoned Plant Manager
McMullen. Williams said he left the following message on
McMullen’s voice mail:
That in talking with Lamon Holmes about the collective
bargaining and what he showed me in the book was
more or less—was about the union position not the em-
ployer position, and that before we come in there and
talked to that that he called me a g—d liar right there
in front of A die on line 12.
2. Credibility resolutions and conclusions
In attempting to resolve the conflicts between Williams’
and Holmes’ version of their April exchanges, I have set the
exchanges forth in far greater detail than would have been
necessary if supporting or corroborating testimony had been
presented for either or both versions. Both Williams and
Holmes were presentable witnesses. Both testified for the
greater part in a thoughtful and conscientious manner, how-
ever, at various places in their testimony, both witnesses ap-
peared to vary from giving a full, correct, and accurate ac-
count of what had taken place. I carefully observed their
mannerisms and gesticulations and noted when voices
dropped or when they seemed less eager to testify or when
they appeared to be less sure of what they were testifying
about. From all of the above, I am fully convinced of the
following. I am persuaded Supervisor Williams told Holmes
on occasions before April 19, the Company would drop
wages to $4.25 an hour if the Union got in or would shut
the plant down and move elsewhere. Williams acknowledged
that prior to April 19, he learned about unions and the bar-
gaining process through a series of television reports pre-
sented by CBS News Anchor Dan Rather. Williams im-
pressed me that he was pleased with what he had learned
from Rather about unions and collective bargaining. He ex-
plained he tried to have each of the employees under his su-
pervision watch Rather’s special series. Williams described
Rather’s series as ‘‘very informative’’ but stated he mainly
learned ‘‘how many plants and companies’’ closed down.
From Williams’ admissions, and even aside from my de-
meanor observations, it is reasonable to conclude that Wil-
liams told Holmes, as Holmes testified, that the Company
could be shut down or moved somewhere else if the Union
got in. Williams felt a special responsibility to ‘‘make’’
Holmes, who in his opinion was a ‘‘naive’’ worker, better
informed on the effects of unionization and collective bar-
gaining.
Based on the above-credited facts, I find the Company,
through Supervisor Williams, on or about April, threatened
Holmes that employees’ wages would be reduced and the
Company would close or move elsewhere if the employees
selected the Union as their bargaining representative. Such
violates Section 8(a)(1) of the Act and I so find.
Williams continued throughout the organizing campaign
and specifically after President Cattar’s April 19 speech to
have Holmes understand his (Williams’) version of what bar-
gaining in good faith meant. I find it unnecessary to deter-
mine which, if either, version of the various conversations
Williams and Holmes had after Cattar’s April 19 speech is
correct. It is clear that during that time period, Supervisor
Williams continued to try to persuade this ‘‘naive’’ employee
to come around to his views on collective bargaining. It is
just as clear employee Holmes held fast to his views about
collective bargaining. Supervisor Williams even challenged
Holmes to prove that his (Holmes’) views on collective bar-
gaining were correct. There were various exchanges between
the two on April 22, with Holmes finally agreeing to show
Supervisor Williams in a publication in Supervisor Adams’
office that his understanding of the bargaining process was
correct. I am persuaded Williams asked Holmes if he thought
he was lying to him and that Holmes responded that Super-
visor Williams was a ‘‘goddamn’’ liar. I make this finding
even though Holmes denied making any such comment be-
cause Holmes’ denial was extremely unpersuasive. I need not
decide if the emotion of the moment and/or other work-relat-
ed distractions blurred Holmes’ memory or if he just per-
ceived it would be in his best interest to deny calling Wil-
liams a ‘‘goddamn liar.’’ Simply stated, I am persuaded he
made the comments attributed to him. It is undisputed that
Supervisor Williams left word on Plant Manager McMullen’s
voice mail system that Holmes had made such a comment
to him. I note Williams said the exchange was not an angry
one but rather that his (Williams) feelings ‘‘were a little
hurt.’’
B. The Suspension and Discharge of Holmes
1. Allegations
It is alleged at paragraph 10 of the complaint that on or
about April 23, the Company terminated Holmes because he
joined, supported, or assisted the Union and/or because he
785SUNBELT MFG., INC.
9 Plant Manager McMullen did not testify.
engaged in concerted activities for the purpose of collective
bargaining or mutual aid or protection, and in order to dis-
courage employees from engaging in such activities or other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Facts
Holmes testified that on April 23, at around 3 p.m., Super-
visor Adams came to his work area and told him Plant Man-
ager McMullen wanted to see him in McMullen’s office.
Holmes asked what it was all about and Adams told him it
pertained to something that happened the day before between
him and Supervisor Williams. Holmes told Adams nothing
had happened between him and Williams. Holmes testified
that when he and Adams arrived at McMullen’s office,
McMullen and Supervisor Williams were already there. After
Holmes sat down, Plant Manager McMullen told him Super-
visor Williams had said he called him a ‘‘goddamn liar.’’
Holmes said he laughed and started to leave the office be-
cause he thought they were joking. McMullen told Holmes
‘‘If you go out that door, don’t come back. We’re serious.’’
Holmes said that when he realized they were serious, he sat
back down and told McMullen ‘‘Okay. Let me tell you what
happened.’’ According to Holmes, McMullen responded say-
ing Williams had reported Holmes had ‘‘cussed him out’’
and that he was going to lay Holmes off for 3 days. Holmes
protested and stated he had not told his side of the story.
Holmes then told McMullen he had not called Supervisor
Williams that. Supervisor Adams testified Holmes told Plant
Manager McMullen he did not remember calling Williams a
‘‘goddamn liar’’ but that if he did, he was just ‘‘joking.’’ Su-
pervisor Williams testified Holmes said to him ‘‘Man, you
ought to quit. That was a conversation between you and I
and then you run up here behind my back and tell these peo-
ple.’’ Williams said he and Holmes ‘‘bickered back and
forth’’ at the meeting until Plant Manager McMullen told
both of them ‘‘to shut up, that he was going to take care of
this, [that] he was ready to go home.’’9 At the end of the
meeting, Holmes was escorted from the plant.
Holmes testified he returned to the plant on Friday, April
26, to pick up his paycheck and while there asked to speak
with Plant Manager McMullen. Holmes asked McMullen if
he was to return to work on Saturday, April 27, or Sunday,
April 28. McMullen told Holmes not to return to work.
Holmes reminded McMullen he had only been suspended for
3 days. McMullen told Holmes to remain at home that
evening and someone would contact him.
Holmes did not remain at home that evening. However,
his mother relayed a message the Company was attempting
to reach him. Holmes telephoned the plant and spoke with
Supervisor Pete Malta. Malta provided Holmes with Plant
Manager McMullen’s home telephone number. Holmes
called and McMullen instructed him to meet him the next
day, April 27, at the plant at 9 a.m.
Holmes met, as requested, with Plant Manager McMullen
as well as Supervisor Adams. McMullen told Holmes the
Company had reached a decision to terminate him. Holmes
immediately left the plant.
On Monday, April 29, Holmes telephoned for an appoint-
ment with President Cattar. Cattar met with Holmes on May
1. Holmes explained to Cattar what happened between he
and Supervisor Williams. Holmes testified he explained to
Cattar:
That Junior [Williams] wanted me to bring him some
information in writing proving that the company
couldn’t drop wages and that Junior [Williams] had told
Russell [McMullen] that I called him a god-damn liar,
but I didn’t.
Cattar asked Holmes why he thought Williams would accuse
him of such. Holmes told Cattar it was ‘‘simply because I
didn’t agree with what he had to say.’’ President Cattar
called Vice President Danhert to his office and asked him to
meet with Holmes. According to Holmes, Danhert arranged
to meet with him the next day.
Holmes said he met with Danhert at around 9 a.m. on May
2, at which time Danhert told him the only reason he was
meeting with him was that President Cattar had directed him
to do so. Holmes related to Danhert the same thing he had
told Cattar. Danhert also asked Holmes why he thought Wil-
liams would accuse him of such. Holmes gave Danhert the
same answer he had given Cattar. Danhert told Holmes he
wanted to get with Williams to see why their stories were
so totally different. Holmes suggested Danhert immediately
bring Williams in so the three of them could ‘‘discuss this
and get it over with.’’ Danhert declined saying he didn’t do
things that way and that he would telephone Holmes the next
day.
Holmes testified that because he had not heard from Vice
President Danhert by the following Monday, he telephone
Danhert. Danhert apologized for not calling and said he had
talked ‘‘to several people’’ and they had one witness that
heard Holmes curse Williams. Holmes disputed Danhert’s
claim and hung up the telephone. Holmes had no further
contact with company officials after that.
Vice President Caldwell testified he made the ultimate de-
cision to terminate Holmes. Caldwell said he learned on
April 23 about the incident between Williams and Holmes.
He said Plant Manager McMullen either told him personally
about the incident or left a message on his voice mail.
Caldwell said McMullen wanted to discuss the incident.
Caldwell testified that as soon as the various supervisory
functions were performed that day, he asked Plant Manager
McMullen, Supervisors Adams and Williams to meet with
him. Caldwell had Williams tell what had taken place the
day before. Caldwell testified:
[Williams] said he had a conversation with Mr. Holmes
on the night before, or the day before, which would
have been Monday. There were two or three conversa-
tions, one about a book, one about collective bargain-
ing.
And somewhere around ten o’clock or so, there was an
issue regarding bargaining and that Mr. Holmes put his
finger in his chest and he called him a liar.
After that they went to the production office. And
shortly thereafter a bubble went down, shift change.
That was the end of that night.
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Caldwell stated he specifically understood that the exchange
between Holmes and Williams grew out of a discussion relat-
ed to collective bargaining.
Caldwell said Holmes was at first suspended for 3 days in
order to give the Company time to investigate the incident
and to see if it could be determined what had really oc-
curred. Caldwell said the Company also needed to see how
situations like this one had been handled in the past.
Caldwell testified the Company’s investigation did not reveal
any verification for either Holmes’ or Williams’ version of
their encounter. Caldwell said he did not personally interview
Holmes but that with no verification of either story, he ac-
cepted his supervisor’s version.
Caldwell testified it was discovered that an employee, Jef-
frey Brown, had been discharged as a result of an incident
involving profanity between Brown and Supervisor Malta.
Caldwell said his decision to terminate Holmes was in no
way motivated by any union activity on Holmes’ part. He
said he would have taken the action he did even in the ab-
sence of any union activity on Holmes’ part. Caldwell said
Holmes was discharged simply for insubordination.
As testified to by Vice President Caldwell, the Company’s
employee handbook addresses insubordination. The following
is reflected starting at page 10 of the employee handbook:
Any violation of these rules may constitute grounds for
immediate discharge for the first offense.
. . . .
(3) Disobedience and/or insubordination, including
offensive conduct toward a supervisor or refusing to
follow instructions given by a supervisor.
Regarding past practice at the Company, Supervisor Malta
testified he terminated employee Jeffrey Brown on December
12, 1988. Malta said Brown was terminated ‘‘[b]ecause he
questioned my authority in front of everybody and cursed
me.’’ Malta’s written account of the incident follows:
12/8/88
Jeffrey Brown, was told to give breaks on line #2
and he ignore the order and went about doing what he
wanted to do, which was labeling boxes on line #4. I
had a talk with Jeff before about his attitude on line #5,
for not doing what he was told. He assured me that it
wouldn’t happen again. I went to Jeff while he was on
line #4 and asked why he didn’t do what he was told.
And he wanted to know why everyone was picking on
him. I told him that nobody was picking on him and
that it was part of his job, and that Karl Washington
did the same things that he was told to do, when he
worked the floor on lines #1 thru #4. He tried to argue
about the job and I told him to go give the break on
line #3 or else. He then told me that I was full of shit.
And when I asked him what did he say, and he then
said that we all were full of shit, meaning me, T. C.
Flowers, Toby Cagle, and Tommy Washington. So I
told him to go home and that I would let him know
later if he would be terminated or not, for disobedience
and insubordination to a superior.
Supervisor: Peter D. Malta
On cross-examination, Malta acknowledged that the fact
Brown cursed him was not the sole reason for his discharge,
that part of the reason was that Brown refused a direct order.
From testimony given at trial by Holmes, the Company
learned employee Ronnie Rayford had been discharged for
insubordination. Vice President Caldwell testified that after
learning about the Rayford situation, he researched the Com-
pany’s files and discovered Rayford had in fact been dis-
charged for insubordination. The Company’s records related
to Rayford’s termination were received in evidence. The
records reflect Rayford was terminated in mid-August 1989
for ‘‘offensive conduct toward supervision.’’ Rayford’s su-
pervisor, Frank Marcello, wrote on Rayford’s termination no-
tice ‘‘[Rayford] told me ‘I swear on my mother’s and fa-
ther’s graves I will fuck you up.’’’ Vice President Caldwell
said he was not involved in Rayford’s discharge but that
from his review of the records, he would conclude Rayford
was terminated for profanity and making a threat to his su-
pervisor.
3. The Wright Line test
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Board set forth its causation test for
cases alleging violations of the Act that turn on employer
motive. First, the General Counsel must make a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the employer’s decision.
Once this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action even
in the absence of the protected conduct. An employer cannot
simply present a legitimate reason for its actions but must
persuade by a preponderance of the evidence that the same
action would have taken place even in the absence of pro-
tected activity. The classic elements commonly required to
make out a prima facie case of union-discriminatory motiva-
tion under Section 8(a)(3) of the Act are union activity, em-
ployer knowledge, timing, and employer animus.
4. Analysis and conclusions
Examining the instant facts in light of the principles out-
lined above, I am persuaded counsel for the General Counsel
established a prima facie case. Holmes was an active sup-
porter of the Union. He attended union meetings, signed a
union authorization card and solicited fellow employees to
sign union cards and support the Union. Holmes engaged in
union activities at and away from the plant. The Company
knew of Holmes’ support, or perceived support, for the
Union. In early April, Vice President Caldwell summoned
Holmes to his office and in the presence of Plant Manager
McMullen and Supervisor Adams advised Holmes to stop so-
liciting for the Union during working time. Caldwell even
told Holmes to consider the admonishment a verbal warning.
Holmes’ immediate supervisor, Williams, testified he knew
Holmes was for the Union. In that regard, Williams noted
that Holmes was ‘‘totally against’’ every piece of company
literature he gave him during the union campaign. Supervisor
Williams, as noted elsewhere in this decision and need not
be repeated here, spent a great amount of time with Holmes
trying to convert Holmes to his (Williams’) and the Compa-
787SUNBELT MFG., INC.
10 I note no evidence was presented that any action was taken
against Milletello.
ny’s views on collective bargaining. Simply stated, the Com-
pany knew of Holmes’ support for the Union. The timing of
Holmes’ suspension and discharge is clearly suspect.
Holmes’ discharge occurred in the middle of a very active
union campaign and his discharge grew out of a discussion
with Supervisor Williams about the effects of unionization
and how the collective-bargaining process worked. There is
evidence of the Company’s antiunion animus in that Super-
visor Williams unlawfully threatened that the plant would
close and wages would be reduced if the employees selected
the Union to represent them. Williams’ threats were specifi-
cally directed at Holmes.
I am, for a number of reasons, persuaded the Company
failed to demonstrate it would have taken the same action it
did in the absence of any protected conduct on Holmes’ part.
First, the Company tolerated in others the type of conduct for
which it discharged Holmes. The record is quite clear the
Company has, and continues to, tolerate profanity in the
work place between employees and supervision and/or in the
presence of supervision. Employee Culpepper credibly testi-
fied she cursed ‘‘all the time’’ at work and ‘‘ a whole lot’’
in the presence of supervisors. She said employee Tony
Milletello, who wore antiunion T-shirts and handed out
‘‘vote no’’ literature during the union campaign cursed in
Supervisor Williams’ presence. Culpepper testified about a
specific incident that involved the late arrival of the outside
food orders for the employees. Culpepper testified Milletello
commented in Supervisor Williams’ presence ‘‘Why didn’t
they go get the goddamn food on time?’’ and told Williams
‘‘[y]ou could have let me went and got it.’’ Culpepper testi-
fied Supervisor Williams was ‘‘laughing’’ at the time. Cul-
pepper testified that recently Milletello was again unhappy
with the time it took an employee (Ann Church) to bring the
outside food orders to the plant and ‘‘holler[ed]’’ at Super-
visor Adams and used the term ‘‘motherfucker’’ and stated
they needed to let ‘‘somebody responsible’’ get the food.
Perhaps the most telling testimony that the Company treat-
ed Holmes differently was given by employee Moy. Moy
credibly testified that the day the Company removed Holmes
from his job (for using profanity) she heard Milletello tell
Supervisor Williams near lines 9 and 10 ‘‘Man, I’m tired of
this fucking shit. Y’all are always fucking over me.’’ Moy
testified Supervisor Williams’ responded ‘‘Tony, what’s all
the cursing about.’’10 Moy said it was not uncommon for
Milletello to use profanity. She testified: ‘‘if his machine
[was] running poorly, he’s upset and he’s cursing . . . that’s
normal . . . for Tony.’’ Supervisor Williams acknowledged
that Milletello and ‘‘everybody out there’’ used profanity but
he denied employees ever directed profanity specifically at
him or supervision.
Supervisor Malta acknowledged ‘‘cursing’’ was common
place at the plant.
Employee Ike Byrd credibly testified that employees use
profanity at work and stated it was an ‘‘everyday’’ occur-
rence ‘‘between some employees and some supervisors.’’
Byrd specifically recalled that employees used profanity in
the presence of Supervisors Adams, Malta, and C shift Su-
pervisor Frank Marcello. Byrd candidly acknowledged using
profanity daily during his 8 years at the Company and said
he had done so in the presence of supervision.
Employee Culpepper testified she overheard employee
Milletello say to Supervisor Adams regarding the work hab-
its of a specific employee that the Company ‘‘ought to do
something about that mother fucker back there.’’ She said an
employee even asked Supervisor Adams if he was ‘‘going to
let him talk to you like that’’ and that Supervisor Adams re-
sponded ‘‘Aw, just let him blow off some steam.’’
I reject the Company’s contention that Holmes’ use of pro-
fanity was different in that it was directed specifically at Su-
pervisor Williams. I find this contention of the Company to
be nothing more than an attempted distinction without a dif-
ference. Prounion employee Holmes called Supervisor Wil-
liams a ‘‘goddamn liar.’’ Antiunion activist Milletello told
Supervisor Williams, on the very same day Holmes was re-
moved from the job for using profanity, that Supervisor Wil-
liams was ‘‘always fucking’’ him and that he was tired of
‘‘this fucking shit.’’ I also reject the Company’s contention
that Holmes’ ‘‘goddamn liar’’ comment was an attempt to
injure and insult Williams in a personal manner because Wil-
liams is a minister. I note no such contention is made regard-
ing Milletello’s comment to Supervisor Williams that the
Company needed to select someone to get ‘‘the goddamn
food’’ to the plant on time.
The two situations involving discharged employees
(Brown and Rayford) that the Company relies on to dem-
onstrate the validity of its action against Holmes involved
more than the use of profane or vulgar language. Supervisor
Malta, who discharged employee Brown, acknowledged that
part of the reason for Brown’s discharge was that Brown
questioned his authority (refused to do a job he was specifi-
cally asked to perform) in front of other employees and
cursed him (told Malta he was ‘‘full of shit’’). In Holmes’
situation, no employees or anyone else for that matter over-
heard Holmes intemperate remarks and his remarks did not
involve the performance of any work-related tasks. Further-
more, I note Holmes was continually confronted by Super-
visor Williams with Williams’ views on collective bargain-
ing. It was in that context that Holmes, perhaps provoked,
made his profane remarks.
Vice President Caldwell testified employee Rayford’s ter-
mination played no part in his decision to terminate Holmes.
However, the facts surrounding Rayford’s discharge were
presented at trial to demonstrate the Company’s consistent
practice with respect to discharging employees for using pro-
fanity at or toward supervisors. Company records reflect
Rayford was discharged for telling his supervisor ‘‘I swear
on my mother’s and father’s graves I will fuck you up.’’
Vice President Caldwell acknowledged that from his reading
of Rayford’s file, Rayford was discharged for the use of pro-
fanity as well as for making a threat against his supervisor.
In Holmes’ case, no threats were involved. In fact, Super-
visor Williams described the incident as one where only his
feelings were a little hurt.
It is clear from the circumstances surrounding the above
two incidents that both involved more than just employees
directing profanity at their supervisors.
Thus, I conclude the Company has failed to demonstrate
it would have discharged Holmes, an admittedly good em-
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 An employer cannot carry its Wright Line burden simply by
showing it had a valid reason for its actions, rather, it must ‘‘per-
suade’’ by a preponderance of the evidence that the action would
have taken place even in the absence of the protected conduct. This
the Company herein has failed to do.
12 Perkins described the AAAUC as ‘‘basically an anti union com-
mittee formed by Sunbelt employees.’’
13 Perkins stated the video equipment (camera and film) was
owned by the Company and he obtained both from then Personnel
Manager Hosea McNew.
14 A composite videotape prepared by Perkins was received in evi-
dence as R. Exh. 22. Perkins acknowledged prounion employee Byrd
as well as the union organizers appear in that segment of his com-
posite videotape.
15 Union Representative/International Organizer John Cunningham
testified that ‘‘at times [the prounion and antiunion handbillers] were
standing shoulder to shoulder on the apron on the driveway on either
side of the driveway, so there wasn’t necessarily a distance between
them.’’
16 Cunningham described Perkins’ activities on this occasion as
generally covering the entire area and videotaping all activity in the
area.
17 Union Representative and International Organizer Cunningham
estimated Perkins was present for 30 minutes on this occasion.
18 It is undisputed that the union representatives as well as the
prounion employees from the other local company appear on the
videotaped May 17 segment of handbilling at the main gate.
19 Perkins videotaped a local TV station’s account of the
handbilling and a celebration party held immediately after the Board-
conducted election. Those two segments also appear in the compos-
ite videotape prepared by Perkins and received in evidence as R.
Exh. 22.
ployee, in the absence of any protected conduct on his part.11
This conclusion is buttress by the fact that Vice President
Caldwell, who made the ultimate decision to terminate
Holmes, never interviewed or questioned Holmes. Such sug-
gests a pre-determined course of action by the Company.
C. The Videotaping
1. Allegations
It is alleged at paragraph 9 of the complaint that on or
about May 16 and 17, the Company acting through Quality
Control Manager Paul Perkins engaged in surveillance of its
employees’ union or concerted activities in violation of Sec-
tion 8(a)(1) of the Act.
2. Facts
The facts related to this allegation are for the most part
undisputed.
Quality Control Manager Perkins testified he has been
with the Company for approximately 12 years and has, dur-
ing that time, videotaped a number of activities at the Com-
pany. In that regard, Perkins testified:
I do a lot of filming of Christmas parties, birthday par-
ties and just around the office just filming things as re-
quested.
Perkins testified that antiunion employee Hal Rice asked him
to videotape certain activities of the AAAUC12 during the
union campaign. Perkins explained he sought and obtained
Vice President Caldwell’s permission to do the videotaping
of the antiunion committee’s activities.13
Quality Control Manager Perkins testified he first
videotaped AAAUC activities on May 15, the day before the
Board-conducted election was scheduled to start at the Com-
pany. He said on that occasion he videotaped at the front
gate entrance to the plant where approximately 8 to 10 mem-
bers of the antiunion committee were handing out flyers to
employees coming to work. Perkins said he did not observe
any prounion employees or union organizers handbilling on
that occasion.
Perkins testified the next occasion he videotaped AAAUC
activities was at around 7 a.m. on May 16, at the front gate.
He said on that occasion, approximately five to six union or-
ganizers as well as employee Byrd were handbilling for the
Union.14
Employee Byrd testified it was easy to distinguish the
antiunion employees from the prounion representatives on
May 16 because the antiunion employees were wearing
antiunion hats and T-shirts. Byrd said the prounion and
antiunion handbillers were 5 to 6 feet apart15 and that em-
ployees entering the plant gate first stopped for prounion lit-
erature and then for antiunion literature. Byrd stated Perkins
‘‘walked around the area that we were standing’’ and
videotaped ‘‘signs the anti union people had posted along the
side of the street.’’16 Byrd estimated Perkins videotaped on
this occasion for approximately 15 minutes.17
Quality Control Manager Perkins testified he next
videotaped AAAUC activities during the afternoon (approxi-
mately 2–3 p.m.) on May 16. He stated a local television sta-
tion was also videotaping the handbilling activities at the
main gate on that occasion and that he even videotaped the
television station doing its videotaping. Perkins testified he
did not observe any prounion employees handbilling on this
occasion but stated union representatives were present for
part of his videotaping activities.
Perkins testified he videotaped AAAUC employees
handbilling at the front gate on May 17, from approximately
2 to 3 p.m. He said the election polls were open at the time.
According to Perkins, no prounion employees were at the
gate but he said several employees of another company in
the area that the Union was attempting to organize were
present as well as a number of union representatives.18
With respect to his videotaping activities, Quality Control
Manager Perkins acknowledged ‘‘he . . . video taped wheth-
er employees . . . took the [AAAU committee] handbills or
didn’t take the handbills.’’19
3. Positions of the parties
The Company argues Quality Control Manager Perkins’
videotaping was justified in that he was simply recording the
activities of the antiunion committee at the request of and as
a memento for that committee. The Company asserts it had
no intention of videotaping the prounion employees or union
representatives/organizers and that the inclusion of non-
antiunion committee members on the videotape was ‘‘merely
incidental.’’ The Company asserts the union organizers
and/or prounion employees that appear in the videotape did
so eagerly and even positioned themselves in such a manner
as to insure their appearance in the videotape. The Company
also points out that prounion employee Byrd, who appears on
the videotape, admitted he was not discouraged from his ac-
tivities by Perkins’ videotaping and that he understood the
789SUNBELT MFG., INC.
20 Byrd did not recall Cattar saying the plant would close or would
refuse to bargain if the employees choose the Union as their collec-
tive-bargaining representative.
21 Russell stated President Cattar never at any time said the Com-
pany would close if the employees selected the Union to represent
them.
22 She wasn’t sure if he said they could remain the same.
videotape was to serve as a momento for the antiunion com-
mittee.
Counsel for the General Counsel argues the fact the
antiunion committee may have requested that a company of-
ficial videotape its activities is of no moment because such
conduct, by its very nature, is coercive. Counsel for the Gen-
eral Counsel argues the videotaping allows the Company to
determine who is supporting its position and as such reason-
ably tends to coerce employees entering and leaving the
plant. Counsel for the General Counsel argues in summary
fashion ‘‘videotaping an employee accepting or rejecting
handbills would necessarily tend to interfere with, restrain,
and coerce employees in the exercise of their rights guaran-
teed by Section 7 of the Act in violation of Section 8(a)(1)
of the Act.’’
4. Analysis and conclusions
In agreement with counsel for the General Counsel, I find
that the videotaping activities of Quality Control Manager
Perkins violated Section 8(a)(1) of the Act. It is well estab-
lished that absence legitimate justification an employer’s
photographing its employees while they are engaged in pro-
tected, concerted activities constitute unlawful surveillance.
See, e.g., Certainteed Corp., 282 NLRB 1101 at 1114
(1987). There is no record evidence that the Company, and
more specifically that Quality Control Manager Perkins, ever
explained to the general work force the purpose of the
videotaping at the front gate. The fact prounion employee
Byrd may have understood the videotaping was to create a
momento for the antiunion committee does not establish the
general work force knew such was the stated purpose.
Knowledge among the employees that whether they accepted
or rejected antiunion handbills was being videotaped by a
company official necessarily tends to interfere with, restrain,
and coerce employees in the exercise of their Section 7
rights. Accordingly, I find Quality Control Manager Perkins’
videotaping activities at the front gate violated Section
8(a)(1) of the Act. See, e.g., Tennessee Packers, 124 NLRB
1117 at 1123 (1959).
D. President Cattar’s Meeting
1. The allegations
It is alleged at paragraph 8 of the complaint that the Com-
pany, acting through President Cattar, on dates between May
6 and 9, threatened to relocate the plant and threatened em-
ployees with loss of benefits if the employees selected the
Union as their collective-bargaining representative.
2. The facts
Employee Ike Byrd testified that approximately 3 to 4
days after Holmes was terminated in late April, President
Cattar held shift wide employee meetings at which the union
was discussed. Byrd testified:
He told us that the union representatives had told us
that we would start from where we were in bargaining,
but the fact of the matter is during bargaining, you start
with a blank sheet of paper and you go from there. You
could get higher wages; your wages could be lower or
they could remain the same.
Byrd testified President Cattar said the Company would bar-
gain in good faith with the Union.20
Employee Carrie Russell testified that after employee
Holmes was terminated, but before the Board-conducted
election was held, she attended a number of shift wide em-
ployee meetings at which Moy and Culpepper among others
were in attendance. Russell testified:
[President Cattar] gave an example of—two employees
to give us a little outlook of how they would start bar-
gaining at the bargaining table. He had two of the em-
ployees to sit down at the table, and in front we had
a tablet or a big folder of white paper. He said we
would start from a blank sheet of paper.
. . . .
We were told all the benefits that we already have, it
consisted of also the wages. And he said it may change
or it may not change. And concerning the wages, he
said that, you know, they may vary, may go . . . stay
the same, you know, just according to whichever way,
you know, the union went.
. . . .
We were told that there were several companies that
closed because of the union.
. . . .
That they had closed down and that . . . you know.
They closed down and they later on relocated and
opened up.
On cross-examination, Russell could not recall the names of
companies she contended President Cattar said had closed
and relocated elsewhere.21
Employee Monica Culpepper testified that approximately 1
to 2 weeks after Holmes was terminated, President Cattar
held a shift-wide meeting at which the Union was discussed.
Culpepper stated Cattar had employees ‘‘pretend like we
were going to go to the bargaining table.’’ Culpepper testi-
fied Cattar said, ‘‘bargaining would start from a blank sheet
of paper.’’ She stated Cattar said wages could go up or
down,22 and that he ‘‘just let us know that . . . [n]othing
that the Union tells us is concrete . . . [w]e have to go to
the bargaining table and negotiate and talk about it.’’ Cul-
pepper acknowledged during cross-examination that President
Cattar said some good things about the union that ‘‘it could
help us and it could hurt us.’’
Employee Glenda Moy testified that at a meeting about a
week after Holmes was terminated, President Cattar said:
Basically we discussed the benefit package that we
had. I remember him saying that if the union got in, we
wouldn’t be guaranteed that we would keep everything
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Cattar explained it was necessary to hold meetings over a 2-day
period because the Company operates on a four-shift system and
every effort was made not to inconvenience or interrupt company
operations. 24 I also credit his testimony as to when the meetings took place.
that we had, that the union could not guarantee us we
would keep our same amount of pay.
He said we could gain some things, we could lose
some things. He said that if they had to go to the bar-
gaining table, he would bargain in good faith.
I know I remember him saying something about re-
location, but I don’t remember exactly what was said.
. . . .
He said that if they did go to the bargaining table,
that the bargaining could start from a blank sheet of
paper.
On cross-examination, Moy acknowledged Cattar said ‘‘that
if the Union is selected and if you go to the bargaining table,
that wages could go up, could go down, or stay the same.’’
Moy also recalled Cattar saying the Union could ‘‘promise
everything’’ but could not ‘‘guarantee everything.’’ Moy said
President Cattar went over a list of benefits and wages the
employees and Company had gotten without a union and
stated that if the Company went to the bargaining table, the
employees could gain here or lose there. Moy recalled:
I remember him saying stuff like if you get more of
this, then you could lose of that, or if you get that, you
could lose this. I guess that’s what you call bargaining,
trading.
President Cattar testified, without contradiction, that the
Company has for a number of years held what he described
as presidential round table meetings with employees. Cattar
said the purpose of these meetings was to allow a free ex-
change of ideas between management and the employees on
any issue or issues which the employees desired to address.
President Cattar stated that a series of such meetings were
scheduled for and held on April 4 and 5. President Cattar
stated that although the Company had learned that a petition
had been filed by the Union on April 1, it was decided the
meetings would be held without discussing the Union. Cattar
said he decided it would be ‘‘business as usual’’ and he
‘‘made it very clear’’ that the purpose of the meetings was
not to discuss the Union. Cattar said he did not want to dis-
cuss the Union at the April 4 and 5 meetings because he was
unaware of what the issues related to the Union might be.
President Cattar testified that the next shift wide employee
meetings at which he spoke were held on April 18 and 19.23
President Cattar said the purpose of these meetings was to
address the issues that had been brought up in the union
campaign. According to President Cattar, he started the meet-
ings off by informing the employees a union petition had
been filed and that the employees alone were the ones to
make the decision of whether the Company would be union-
ized or not, that management did not have a vote. Cattar tes-
tified he explained to the employees that his purpose was
simply to assist them in having a full understanding of the
facts surrounding the issues in the campaign but that the ulti-
mate decision was up to the employees. Cattar said he
showed the employees a list of some 29 benefits the employ-
ees had accumulated over the course of the 11 years the
Company had been in business. Cattar said he then explained
that benefits could go up, down, or stay the same in the col-
lective-bargaining process. Cattar said he explained that if
they chose the Union to represent them, the Company would
bargain in good faith. President Cattar stated that from em-
ployee questions he realized some of them did not under-
stand how the collective-bargaining process worked. Accord-
ingly, he said he set up a play acting session to demonstrate
how it worked. Cattar said he had one individual sit at a
table to represent the Union and another to represent the
Company. He said he explained that this was an over sim-
plification of the bargaining process. President Cattar testi-
fied he had an easel at the front of the room and turned to
a blank sheet of paper and asked the individual selected to
represent the Union to list the demands the Union would
make in collective bargaining. According to Cattar, the em-
ployee representing the Union stated they wanted the best in-
surance plan in America. Cattar said he wrote that on the
blank sheet of paper. The union representative then indicated
they wanted superior wages, so Cattar placed that on the
paper. The employee play acting as the union representative
then asked for sick leave and various other benefits, all of
which were listed on the paper. The employee play acting as
the union representative indicated they wanted all of those
benefits plus the 29 benefits the Company already provided.
President Cattar said he then asked the employee play acting
as the company representative what his response would be to
the union representative’s demands. The employee re-
sponded, ‘‘give them everything.’’ Cattar said he explained
that the company representative would have to be more re-
sponsible than that and pointed out that through the give and
take of the bargaining process, some benefits might be in-
creased, others might remain the same, and some might be
decreased. President Cattar stated he explained that in the
give and take of negotiating, that the ‘‘pie’’ was only so
large and that while it could be divided into many different
segments, there was only so much the Company could do
and remain viable. Cattar testified that during the exchange,
an employee asked how high or low wages could go if the
Union was selected. Cattar said he responded that legally
wages could go as low as minimum wage which was pointed
out to be $4.25 per hour.
Cattar testified he never at any time said or suggested that
if the Union was selected as the employees collective-bar-
gaining agent that wages would go down to $4.25 an hour.
Cattar denied saying at any time during the employee meet-
ings or otherwise that the plant would close if the Union
came in.
3. Credibility resolutions
President Cattar was a forthright and candid witness. His
sincere expression while testifying convinces me that he tes-
tified truthfully with respect to his comments at the em-
ployee meetings at which the Union was discussed.24 In
crediting President Cattar’s testimony, I note a good portion
of his testimony was borne out by witnesses called by coun-
sel for the General Counsel.
791SUNBELT MFG., INC.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4. Analysis and conclusions
The Board has, for an extended period, been dealing with
‘‘bargaining from zero [scratch, nothing, clean sheet of
paper, blank sheet of paper, etc.]’’ -type explanations of the
give and take in the collective-bargaining process. Adminis-
trative Law Judge Michael O. Miller noted in Shaw’s Super-
markets, 289 NLRB 844 at 848 (1988):
Of such statements, the Board has held:
As the Board and the courts have recognized in other
cases, in the course of organizational campaigns, state-
ments are sometimes made of a kind that may or may
not be coercive, depending on the context in which they
are uttered [fn. omitted.] ‘‘Bargaining from scratch’’ is
such a statement. In order to derive the true import of
these remarks, it is necessary to view the context in
which they are made.
Wagner Industrial Products Co., 170 NLRB 1413
(1968). See also Campbell Soup Co., 225 NLRB 222,
229 (1976), and cases cited therein. Statements that
‘‘accurately reflect the obligations and possibilities of
the bargaining process . . . which do not contain any
threats that Respondent will not bargain in good faith
or that only regressive proposals will result’’ will not
be found violative. Clark Equipment Co., 278 NLRB
498 (1986). Statements that ‘‘effectively threaten em-
ployees with the loss of existing benefits and leave
them with the impression that what they may ultimately
receive depends in large measure upon what the Union
can induce the Employer to restore’’ are objectionable
(and violative of Sec. 8(a)(1)), Plastronics, 233 NLRB
155, 156 (1977), and cases cited therein; Belcher Tow-
ing Co., 265 NLRB 1258, 1268 (1982).
First I find, as reflected in President Cattar’s credited testi-
mony, that he did not threaten employees with plant closure,
relocation, or loss of benefits if they selected the Union as
their collective-bargaining representative. It is acknowledged
President Cattar advised the employees the Company would
meet and bargain in good faith with the Union if the employ-
ees selected the Union as their collective-bargaining rep-
resentative. As noted by employee Culpepper, President
Cattar even pointed out some good things about the Union.
I am fully persuaded President Cattar’s remarks were nothing
more than permitted expressions of opinion as to the natural
and normal hazards of collective bargaining. The clear im-
port of his comments was that although the Union could
promise, it could not guarantee precisely what benefits might
be increased, remain the same, or be reduced. As employee
Moy noted about President Cattar’s comments in that regard
‘‘that’s what you call bargaining, trading.’’
Accordingly, I shall dismiss the allegations that President
Cattar violated the Act in any manner alleged in paragraph
8 of the complaint.
CONCLUSIONS OF LAW
1. Sunbelt Manufacturing, Inc. is an employer within the
meaning of Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By engaging in the following conduct, the Company
violated Section 8(a)(1) of the Act: threatening employees
with a reduction in their wages if they selected the Union as
their collective-bargaining representative; threatening em-
ployees with plant closure if they selected the Union as their
bargaining representative; engaging in surveillance of their
employees’ union or other concerted activities conducted for
the purpose of collective bargaining or other mutual aid or
protection.
4. By discharging its employee Lamon Holmes on or
about April 23, 1991, and thereafter refusing to reinstate him
because of his union, concerted, and protected activities, the
Company engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found the Company has engaged in violations of
Section 8(a)(1) and (3) of the Act, I shall recommend it be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that the Company discriminatorily dis-
charged employee Lamon Holmes, I shall recommend
Holmes be offered immediate and full reinstatement to his
former position of employment or if his former position of
employment no longer exists to a substantially equivalent po-
sition without prejudice to his seniority or rights and privi-
leges previously enjoyed, and that he be made whole for any
loss of earnings he may have suffered by reason of the dis-
crimination against him, with interest. Backpay shall be com-
puted in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest, as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I also rec-
ommend the Company be ordered to expunge from all files
any reference to Holmes’ discharge and notify him in writing
this has been done and that evidence of the unlawful actions
will not be used as a basis for any future personnel actions
against him. Finally, I recommend the Company be ordered
to post an appropriate notice to employees, copies of which
are attached hereto as ‘‘Appendix’’ for a period of 60 days
in order that employees may be apprised of their rights under
the Act and the Company’s obligation to remedy its unfair
labor practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Sunbelt Manufacturing, Inc., Monroe,
Lousiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with a reduction in wages
if they selected the Union as their bargaining representative.
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 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.’’
(b) Threatening its employees with plant closure if they se-
lected the Union as their bargaining representative.
(c) Engaging in surveillance of its employees’ union ac-
tivities or their other concerted activities conducted for the
purpose of collective bargaining or other mutual aid or pro-
tection.
(d) Discharging or otherwise discriminating against em-
ployees because their membership in or activities on behalf
of the Union or because they engaged in other protected con-
certed activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Lamon Holmes immediate and full reinstatement
to his former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision and
expunge any reference to his discharge from his work record.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Monroe, Louisiana, facility copies of the at-
tached notice marked ‘‘Appendix.’’26 Copies of the notice,
on forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees with a reduction in
wages if they select the Union as their bargaining representa-
tive.
WE WILL NOT threaten our employees with plant closure
if they select the Union as their bargaining representative.
WE WILL NOT engage in surveillance of our employees’
union activities or their other concerted activities conducted
for the purpose of collective bargaining or other mutual aid
or protection.
WE WILL NOT discharge employees because their activities
on behalf of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Lamon Holmes immediate and full rein-
statement 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 previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of our unlawful conduct, with inter-
est.
WE WILL notify Lamon Holmes that we have removed
from our files any reference to his discharge and that the dis-
charge will not be used against him in any way.
SUNBELT MANUFACTURING, INC.