Talsol Corp.

National Labor Relations Board - Board Decisions

May 8, 1995

317 N.L.R.B. 290 (N.L.R.B. 1995)

290
317 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreeing with the majority that the Respondent violated Sec.
8(a)(1) by discharging employee Darryl Denham because of remarks
concerning employee safety that he made at a safety meeting also
attended by other employees, Chairman Gould does not rely on Mey-
ers Industries, 268 NLRB 493 (1984) (Meyers I); Meyers Industries,
281 NLRB 882 (1986) (Meyers II).
2 The General Counsel filed limited exceptions to the judge’s deci-
sion requesting that the conclusions of law, remedy, Order, and no-
tice conform to the findings made by the judge. We find that the
exceptions have merit and will amend the conclusions of law and
remedy accordingly and provide a new Order and notice.
3 The judge, inadvertently or otherwise, did in fact list McNew
with other employees whom he found had been unlawfully trans-
ferred (sec. III,F,3, last paragraph).
Talsol Corporation and United Steelworkers of
America, AFL–CIO–CLC and Darryl Denham.
Cases 9–CA–28466–1, 9–CA–28517–1, –2, –3,
–4, 9–CA–28624, 9–CA–28665, 9–CA–28725, 9–
CA–28887, 9–CA–28974, 9–CA–29114, 9–CA–
29183, 9–CA–29351, 9–CA–29459, and 9–CA–
29895–2
May 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On December 30, 1993, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent and the General Counsel each filed excep-
tions and supporting briefs.
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order as
modified and set forth in full below.2
1. The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to follow
its past practice of granting wage increases to certain
employees. The Respondent had a policy of evaluating
employees in the spring of each year and subsequently
granting raises to certain unit employees later in June.
On May 31, 1991, after a May 10 representation elec-
tion but before the Union’s certification as representa-
tive, the Respondent advised the Union that it did not
want to give the June increases because of its ‘‘legal
obligation to maintain the status quo pending negotia-
tions.’’ In its June 5 response, the Union urged the Re-
spondent to continue its past practice of granting the
June increases. The Respondent then proposed in a
June 7 letter that the June increases be postponed
‘‘pending negotiations for a contract.’’ The Union did
not respond.
In addition, on June 24 the Respondent advised the
Union that it planned to increase the wages of certain
paintmakers. By June 27 letter the Union rejected the
Respondent’s proposed increase and advised the Re-
spondent that it was willing to negotiate the wages for
all employees.
The judge found that the June wage review program
was a term and condition of employment and that the
Respondent’s unilateral change in that term and condi-
tion of employment was a violation of Section 8(a)(5)
and (1). The Respondent had a preexisting practice of
reviewing employee performance in the spring of the
year and awarding raises to worthy employees in June.
By letter dated May 31, 1991, the Respondent in-
formed the Union that it would not be awarding the
raises in June 1991. In our view, this belated letter did
not give the Union reasonable notice and opportunity
to bargain, and, a fortiori, was prior to impasse. Ac-
cordingly, a violation exists under either of the views
expressed in Daily News of Los Angeles, 315 NLRB
1236 (1994).
Accordingly, we find that the Respondent’s dis-
continuance of its customary wage increases in June
1991 violated Section 8(a)(5) and (1) of the Act.
2. The General Counsel has excepted to the judge’s
finding that there was no complaint allegation that em-
ployee Pam McNew had been unlawfully transferred to
the aerosol line and his statement that he would make
no finding on the transfer.3 We agree with the General
Counsel. On May 27, 1992, at the hearing, the judge
allowed the General Counsel to orally amend para-
graph 7(e) of the sixth consolidated amended com-
plaint to allege McNew’s unlawful transfer. In his de-
cision, the judge made findings of fact consistent with
the legal conclusion that McNew’s transfer violated
Section 8(a)(3) and (1). In that regard he found that
McNew was transferred a few days after the Respond-
ent received the Union’s April 15, 1991 letter identify-
ing McNew as an in-plant organizer. The judge further
found that other union activists were unlawfully trans-
ferred to the aerosol line and that the aerosol room
‘‘lent itself to use as a kind of insulated holding pen
to prevent the spread of unionism among its employ-
ees’’ (sec. III,F,2, 11th paragraph) and that ‘‘it follows,
then, that the assignment to the aerosol line was a pun-
ishment for union activities, and a separation of known
union activists.’’ (Sec. III,F,2, 12th paragraph.) Thus,
we find merit to the General Counsel’s exception and
we conclude that McNew was unlawfully transferred.
We shall modify the conclusions of law, remedy,
Order, and notice accordingly.
3. The judge found, inter alia, that the Respondent
violated Section 8(a)(1) by imposing more onerous
working conditions on employee Curtis Compton, issu-
ing a warning and suspension to employee Geraldine
Broadus, issuing a disciplinary warning to employee
Sue Brewer, transferring Brewer and employee Velvie
291TALSOL CORP.
4 All dates are 1991 unless otherwise indicated.
Wood to second shift, discharging Brewer and Wood,
and restricting employees Tina Pendergrass and Teresa
Kee to their work areas. The General Counsel has ex-
cepted to the judge’s failure to find that, by all of
these actions, the Respondent also violated Section
8(a)(3). Again, we find merit to the General Counsel’s
exceptions. In each instance the judge made specific
findings that the above-noted actions were taken
against the employees because of their union activities.
Accordingly, we find that the Respondent violated Sec-
tion 8(a)(3) and (1) and will modify the conclusions of
law, remedy, Order, and notice accordingly.
AMENDED CONCLUSIONS OF LAW
1. Talsol Corporation is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC
is a labor organization within the meaning of Section
2(5) of the Act.
3. Since August 12, 1991, the Union has been the
certified bargaining agent for a unit of the Respond-
ent’s employees, described as follows:
All full-time and regular part-time production and
maintenance employees employed at Talsol’s
Union Township, Ohio, facility, including all
warehouse employees, shipping clerks, packers,
shippers/pickers, paintmakers and color matchers,
but excluding all office clerical employees, mana-
gerial employees, technical employees, laboratory
employees, salesmen, temporary employees, and
all professional employees, guards and supervisors
as defined in the Act.
4. By physically and verbally threatening employees,
threatening retaliation, threatening to reduce wages,
threatening or predicting loss of benefits, plant closure,
loss of jobs, more onerous working conditions, dis-
ciplinary actions, assignments to harder jobs, interro-
gating employees, imposing restrictions, rescinding
privileges, denying union representation to employees
during disciplinary interviews, creating the impression
that employees’ union activities were under surveil-
lance, promulgating rules, and harassing employees,
the Respondent has violated Section 8(a)(1) of the Act.
5. By issuing the April 8, 1991 warning/reprimand
to Sue Brewer; the July 23 and 29 and September 9
and 11 warnings/reprimands to Betty Bates; the July
19 and August 13 and 30 warnings/reprimands to Tina
Pendergrass; the September 9 warning/reprimand to
Elaine Jones; the October 30 warning to Al Isaac; the
April 14 suspension to Sue Brewer; the May 22
warning/suspension to Geraldine Broadus; the August
2 suspension to Betty Bates; the August 19 suspension
to Pam McNew; the reduction of Curtis Compton’s
wages; the docking of Betty Bates’ pay on November
1 and Al Isaac’s on August 19; the April transfer of
Pam McNew; the transfer to second shift of Sue Brew-
er and Velvie Wood; the transfers of Betty Bates on
April 24, Tina Pendergrass, Treasure Chestnut, Teresa
Kee, and Vicki Maxfield on April 29 and Al Isaac,
Elaine Jones, and Debbie Middleton on September 4;
and the discharges of Teresa Greene, Ernest Fultz,
Curtis Compton, Darryl Denham, Sue Brewer, Velvie
Wood, and Pam McNew, the Respondent has violated
Section 8(a)(3) and (1) of the Act.
6. By the September 1991 layoffs of employees
from the aerosol line, by subjecting employees includ-
ing Tina Pendergrass and Teresa Kee to isolated and
oppressive working conditions and undue restrictions,
by changing employee working conditions and by im-
posing more onerous working conditions on employees
including Curtis Compton, the Respondent has violated
Section 8(a)(3) and (1) of the Act.
7. By requiring employees to take physical examina-
tions and drug tests, by punishing an employee for al-
legedly failing a drug test, by failing to follow its past
practice of annually evaluating employees and granting
wage increases, by unilaterally implementing new job
quotas, by unilaterally imposing a new system of lay-
offs and changing work hours, and by failing and re-
fusing to give notice and bargain with the Union be-
fore implementing changes in terms and conditions of
employment, the Respondent has violated Section
8(a)(5) and (1) of the Act.
AMENDED REMEDY
Having found that the Respondent has committed
numerous unfair labor practices we shall order that it
cease and desist, and that it take certain affirmative ac-
tions designed to effectuate the policies of the Act.
Having found that the Respondent has violated the
law by unlawfully predicting loss of benefits, plant
closure, and loss of jobs; threatening employees to re-
duce wages; threatening employees with reprisals, dis-
ciplinary action, and assignment to harder jobs; interro-
gating employees; imposing restrictions on employees;
creating the impression of surveillance; imposing more
onerous working conditions on employees including
Curtis Compton; rescinding the privileges of Curtis
Compton including depriving him of his parking space;
physically threatening employees; denying union rep-
resentation to employees during disciplinary inter-
views; and subjecting employees to oppressive work-
ing conditions and restrictions, we shall order that it
cease and desist.
Having found that the Respondent has violated the
law by issuing Employee Discipline Reports to Sue
Brewer on April 8;4 Betty Bates on July 23 and 29 and
September 9 and 11; Tina Pendergrass on July 19 and
August 13 and 30; Elaine Jones on September 9; and
Al Isaac on October 30, we shall order that all such
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reports be removed from the Respondent’s files, and
all records of such discipline be expunged.
Having found that the Respondent has violated the
law by transferring Sue Brewer and Velvie Wood to
second shift, transferring Pam McNew in April, trans-
ferring employees Betty Bates on April 24, Tina
Pendergrass, Treasure Chestnut, Teresa Kee, and Vicki
Maxfield on April 29, and Al Isaac, Elaine Jones, and
Debbie Middleton on September 4 to other depart-
ments and other shifts, we shall order that it offer any
employee so transferred immediate transfer back to the
shifts or departments from which they were trans-
ferred.
Having found that the Respondent has violated the
law by suspending employees Geraldine Broadus, Sue
Brewer, Betty Bates, Tina Pendergrass, Pam McNew,
Elaine Jones, Alan Isaac, and Mike Vanney, we shall
order that the records of those suspensions be removed
from the employees’ files, and that the employees be
made whole for any wages lost due to those suspen-
sions.
Having found that the Respondent violated the Act
by docking the pay of Betty Bates on November 1 and
Al Isaac on August 19 and having found that the Re-
spondent reduced the wages of Curtis Compton, we
shall order that the employees be made whole for such
losses.
Since we have determined that employees working
on the Respondent’s aerosol line on various dates in
September 1991 were unlawfully laid off, we shall
order that those employees working on those days, to
be determined at the compliance stage of these pro-
ceedings, be made whole for the wages they lost on
those days.
Having found that the Respondent has unlawfully
discharged employees Teresa Greene, Ernest Fultz,
Curtis Compton, Darryl Denham, Sue Brewer, Velvie
Wood, and Pam McNew, we shall order that these em-
ployees be offered immediate and full reinstatement to
their former positions or, if those positions are no
longer available, to substantially equivalent positions,
together with all seniority and other rights and privi-
leges to which they would have been entitled, but for
the discrimination against them, and that they be made
whole for any wages and other benefits they may have
lost by reason of the discrimination against them, less
any interim earnings, with the amounts due and inter-
est computed in accordance with the formulas in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), respec-
tively.
Having found that the Respondent has withheld
wage increases to which bargaining unit employees
were entitled and would have received but for the Re-
spondent’s unilateral conduct in violation of Section
8(a)(5) of the Act, we shall order that each of the af-
fected employees in the bargaining unit be made whole
for the increases they would have received since May
31, 1991, by payment to them of the difference be-
tween their actual wages and the wages they would
have otherwise received, as prescribed in Ogle Protec-
tion Service, 183 NLRB 682 (1970), with interest com-
puted as described above.
Having found that the Respondent has unilaterally
required employees to take physical examinations, in-
cluding drug tests, we shall order that it rescind this
requirement and also rescind all punishments adminis-
tered to employees for alleged failure to pass a drug
test, removing from those employees’ files all ref-
erences to such discipline. We shall also order the Re-
spondent to make employees whole for any losses they
may have suffered as a result, with interest computed
as described above.
Having found that the Respondent has violated the
law by unilaterally implementing new job quotas, a
new system of layoffs, and changing work hours and
by failing and refusing to give notice and bargain with
the Union before implementing such changes, we shall
order it to rescind these changes and bargain with the
Union before implementing such changes in the future.
In this case the violations we have found are of such
grievous and aggravated nature as to show a calculated
disregard for the statutory rights of employees and
have caused employees to be deprived of their rights
since April 1991. In these circumstances, we conclude
that a broad remedial order is warranted. Hickmott
Foods, 242 NLRB 1357 (1979).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Talsol Corporation, Union Township,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Physically and verbally threatening employees,
threatening retaliation, loss of employment, plant clos-
ing, wage reductions, loss of benefits, harder job as-
signments, discipline, and more onerous working con-
ditions because of the employees’ union sympathies or
activities, or their protected, concerted activities.
(b) Giving the impression of surveillance of employ-
ees’ union activities.
(c) Refusing employees union representation during
disciplinary interviews.
(d) Imposing restrictions on employees, changing
their working conditions, and subjecting employees to
isolated and oppressive working conditions and undue
restrictions.
(e) Rescinding privileges from employees including
Curtis Compton because of their union activities.
293TALSOL CORP.
5 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
Continued
(f) Transferring employees from one shift to another,
or from one department to another, lowering their pay,
or docking their pay, because of the employees’ union
activities.
(g) Suspending employees because of their union ac-
tivities.
(h) Laying off employees because of their union ac-
tivities.
(i) Discharging employees because of their union ac-
tivities.
(j) Imposing requirements that employees observe
certain subjective standards of conduct and punishing
employees for violating those standards because of
their union activities, or because of the union activities
of other employees.
(k) Unilaterally discontinuing its past practice of an-
nually evaluating employee performance and awarding
wage increases and unilaterally instituting new safety
rules, new work quotas, a new system of layoffs, and
new work hours, and by instituting a new requirement
for employees to take physical examinations and drug
tests.
(l) Punishing employees who fail to meet these new
quotas or who fail to pass drug tests.
(m) Failing and refusing to bargain with the certified
union with regard to terms and conditions of employ-
ment for unit employees.
(n) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from the personnel files of individual
employees all warnings found in this decision to have
been unlawfully issued and expunge from all corporate
records any reference to these warnings including the
April 8 warning to Sue Brewer; the July 23 and 29 and
September 9 and 11 warnings to Betty Bates; the July
19 and August 13 and 30 warnings/reprimands to Tina
Pendergrass; the September 9 warning to Elaine Jones;
and the October 30 warning and August 19 ‘‘point’’
to Al Isaac.
(b) Remove from the personnel files of individual
employees including Sue Brewer, Geraldine Broadus,
Betty Bates, and Pam McNew, records of layoffs or
suspensions found in this decision to have been unlaw-
fully imposed, expunge from all corporate records any
references to such suspensions, and make these indi-
viduals whole for any wage and benefit losses they
suffered by reason of the discrimination against them,
with interest, as set out in the amended remedy, above.
(c) Transfer back, to the extent it has not already
done so, the employees including Pam McNew, Betty
Bates, Sue Brewer, Velvie Wood, Tina Pendergrass,
Treasure Chestnut, Teresa Kee, Vicki Maxfield, Al
Isaac, Elaine Jones, and Debbie Middleton, who were
unlawfully transferred to the aerosol room during April
through September 1991.
(d) Offer to Teresa Greene, Ernest Fultz, Curtis
Compton, Darryl Denham, Sue Brewer, Velvie Wood,
and Pamela McNew immediate and full reinstatement
to their former positions or, if those positions no
longer exist, to substantially equivalent positions with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, with inter-
est, as set forth in the amended remedy.
(e) Make whole employees Betty Bates, Al Isaac,
and Curtis Compton for lost wages suffered by them
by reason of the discrimination against them, with in-
terest, as set forth in the amended remedy.
(f) Make whole each of the employees in the bar-
gaining unit for the increases they would have received
since May 31, 1991, by payment to them of the dif-
ference between their actual wages and the wages they
would have otherwise received, with interest, as set
forth in the amended remedy.
(g) Rescind the unilaterally imposed requirement for
physical examinations and rescind all references to
punishment meted out to employees for allegedly fail-
ing drug tests administered as a part of such physical
examinations. If any employees suffered financial
losses because of failing to pass these drug tests, the
employees shall be made whole, with interest, as set
forth in the amended remedy.
(h) Rescind all unilateral changes unlawfully im-
posed, including the change in work quotas, working
hours, and safety rules, and rescind all references to
punishment and revoke all disciplinary actions issued
pursuant to any of the above-noted unilateral changes.
(i) Restore the working conditions and privileges
available to employees prior to their discriminatory
change and rescind the unlawful restriction of em-
ployee movements.
(j) Bargain, on request, with the certified collective-
bargaining representative of the employees in the unit
about wages, hours, and terms and conditions of em-
ployment, including work quotas, working hours, and
safety rules.
(k) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(l) Post at its Union Township, Ohio facility copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(m) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT physically and verbally threaten em-
ployees, threaten retaliation, loss of employment, plant
closing, wage reductions, loss of benefits, harder job
assignments, discipline, or more onerous working con-
ditions because of their activities on behalf of United
Steelworkers of America, AFL–CIO–CLC, or any
other union, or activities they engage in for their mu-
tual aid or protection.
WE WILL NOT give employees the impression that
their union activities are under surveillance.
WE WILL NOT refuse employees union representation
during disciplinary interviews.
WE WILL NOT impose restrictions on employees,
change their working conditions, or subject them to
oppressive and isolated working conditions because of
their union activities or activities for their own mutual
aid or protection.
WE WILL NOT rescind privileges from employees be-
cause of their union activities.
WE WILL NOT transfer employees from one shift or
department to another, reduce or dock the wages of
employees, suspend or lay off employees because of
those employees’ union activities or activities for their
own mutual aid or protection.
WE WILL NOT discharge employees because of their
union activities or activities for their own mutual aid
or protection.
WE WILL NOT impose requirements that employees
observe certain subjective standards of conduct or pun-
ish employees for violating those standards because of
their union activities.
WE WILL NOT unilaterally discontinue our past prac-
tice of annually evaluating employees and giving wage
increases and WE WILL NOT unilaterally institute new
safety rules, new work quotas, a new system of lay-
offs, and new work hours.
WE WILL NOT unilaterally require employees to take
physical exams and drug tests in order to keep their
jobs.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL remove from the personnel files of indi-
vidual employees all warnings found to have been un-
lawfully issued and expunge from all corporate records
any reference to those warnings including the April 8
warning to Sue Brewer; the July 23 and 29 and Sep-
tember 9 and 11 warnings to Betty Bates; the July 19
and August 13 and 30 warnings/reprimands to Tina
Pendergrass; the September 9 warning to Elaine Jones;
and the October 30 warning and August 19 ‘‘point’’
to Al Isaac.
WE WILL remove from the personnel files of indi-
vidual employees including Sue Brewer, Geraldine
Broadus, Betty Bates, and Pam McNew, records of
layoffs or suspensions found to have been unlawfully
imposed, expunge from all corporate records any ref-
erences to such suspensions, and make those individ-
uals whole for any wage and benefit losses they suf-
fered by reason of these actions against them, with in-
terest.
WE WILL transfer back, to the extent we have not
already done so, the employees including Pam
McNew, Betty Bates, Sue Brewer, Velvie Wood, Tina
Pendergrass, Treasure Chestnut, Teresa Kee, Vicki
Maxfield, Al Isaac, Elaine Jones, and Debbie Middle-
ton, who were found to have been unlawfully trans-
ferred to the aerosol room during April through Sep-
tember 1991.
WE WILL offer to Teresa Greene, Ernest Fultz, Cur-
tis Compton, Darryl Denham, Sue Brewer, Velvie
Wood, and Pamela McNew immediate and full rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE WILL
295TALSOL CORP.
1 And others where the underlying charges were withdrawn or dis-
missed, and do not concern us here.
2 This document is referred to throughout as ‘‘the Complaint.’’
Other complaints are identified by their dates of issuance.
3 The hearing had opened on January 27, 1992.
make them whole for any loss of earnings and other
benefits suffered as a result of the actions against
them, with interest.
WE WILL make whole employees Betty Bates, Al
Isaac, and Curtis Compton for lost wages suffered by
reason of the actions against them, with interest.
WE WILL make whole each of the employees in the
bargaining unit for the increases they would have re-
ceived since May 31, 1991, by payment to them of the
difference between their actual wages and the wages
they would have otherwise received, with interest.
WE WILL rescind the unilaterally imposed require-
ment for physical examinations and rescind all ref-
erences to punishment meted out to employees for al-
legedly failing drug tests administered as a part of such
physical examinations. If any employees suffered fi-
nancial losses because of failing to pass such a drug
test, their losses shall be reimbursed.
WE WILL rescind all unilateral changes in working
conditions, including the change in work quotas, work-
ing hours, and safety rules and WE WILL rescind all
references to punishment and revoke all disciplinary
actions issued pursuant to any of the above-noted uni-
lateral changes.
WE WILL restore the working conditions and privi-
leges available to employees prior to the unilateral
changes and rescind the restriction on employee move-
ments.
WE WILL bargain, on request, with the certified col-
lective-bargaining representative of the employees in
the unit about wages, hours, and terms and conditions
of employment, including work quotas, working hours,
and safety rules. The unit is:
All full-time and regular part-time production and
maintenance employees employed at our Union
Township, Ohio, facility, including all warehouse
employees, shipping clerks, packers, shippers/-
pickers, paintmakers and color matchers, but ex-
cluding all office clerical employees, managerial
employees, technical employees, laboratory em-
ployees, salesmen, temporary employees, and pro-
fessional employees, guards and supervisors as
defined in the Act.
TALSOL CORPORATION
Engrid Emerson Vaughan, Esq. and Deborah R. Grayson,
Esq., for the General Counsel.
James A. Mills, Esq. (Denlinger, Rosenthal & Greenberg), of
Cincinnati, Ohio, for the Respondent.
Peter M. Fox, Esq. (Kircher, Robinson, Cook, Newman &
Welch), of Cincinnati, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge. This
case is based on a number of charges filed against Talsol
Corporation (Talsol, the Company, or Respondent) by the
United Steelworkers of America, AFL–CIO–CLC (the
Union) at various dates between April 17, 1991, and Septem-
ber 1, 1992.
After investigation of these charges,1 the Regional Director
for Region 9 of the National Labor Relations Board (the Re-
gional Director and the Board) issued a series of complaints
as follows:
1. Complaint in Case 9–CA–28466–1 on May 15,
1991
2. Amended consolidated complaint in Cases 9–CA–
28466–1, 9–CA–28517–1–2–3–4, and 9–CA–28624 on
June 28, 1991
3. Second amended consolidated complaint in Cases
9–CA–28466–1, 9–CA–28517–1–2–3–4, 9–CA–28624
and 9–CA–28665 on July 24, 1991
4. Third amended consolidated complaint in Cases
9–CA–28466–1, 9–CA–28517–1–2–3–4, 9–CA–28624,
9–CA–28665, and 9–CA–28725 on August 15, 1991
5. Fourth amended consolidated complaint in Cases
9–CA–28466–1, 9–CA–28517–1–2–3–4, 9–CA–28624,
9–CA–28665, 9–CA–28725 and 9–CA–28887 on Octo-
ber 31, 1991
6. Fifth amended consolidated complaint in Cases 9–
CA–28466–1, 9–CA–28517–1–2–3–4, 9–CA–28624, 9–
CA–28665, and 9–CA–28725, 9–CA–28887, and 9–
CA–29114 on November 29, 1991
7. Sixth amended consolidated complaint in Cases 9–
CA–28466–1, 9–CA–28517–1–2–3–4, 9–CA–28624, 9–
CA–28665, and 9–CA–28725, 9–CA–28887, and 9–
CA–29114, and 9–CA–28974 on January 8, 19922
8. Complaint in Case 9–CA–29183 on February 14,
19923
9. Amended consolidated complaint in Cases 9–CA–
29183 and 9–CA–29351 on March 20, 1992
10. Order by administrative law judge, consolidating
Cases 9–CA–29183 and 9–CA–29351 with Cases 9–
CA–28466–1 et al.
11. Complaint in Case 9–CA–29459 on May 7, 1991
12. Order by administrative law judge consolidating
Case 9–CA–29459, on the record of the reopened hear-
ing, May 26, 1992, with Cases 9–CA–28466–1 et al.
13. Complaint in Case 9–CA–29895–2 on October
14, 1992
14. Order by administrative law judge consolidating
Case 9–CA–29895–2 with Cases 9–CA–28466–1 et al.
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On February 18, 1993, the General Counsel moved to correct the
transcript. There was no opposition to this motion, and as the pro-
posed corrections comport with my recollections, the motion is al-
lowed, and the corrections are incorporated into the record.
5 Located just outside the city limits of the city of Cincinnati.
6 There is no evidence that Betty Bates was promised anything, but
I do note that she received a raise of $1.30 an hour, or 23 percent
of her hourly rate in June 1989, and a further raise of $.50 in Sep-
tember 1989. Her June raise that year was the highest, but one, of
all raises given at that time.
The Respondent filed timely answers to all of these com-
plaints, denying the commission of any unfair labor prac-
tices.
The hearing opened on January 27, 1992, and continued
through January 31, recessed until May 26 and 27, then re-
cessed again, resuming on December 7, 1992, and finally
concluding on December 9. At the hearing all parties were
represented by counsel, and had the opportunity to present
testimony and documentary evidence, to examine and cross-
examine witnesses, to make motions and raise objections,
and to argue orally.
After the hearing was concluded, all parties filed briefs,
which have been carefully considered.4
Based on all of the evidence here, including my observa-
tions of the witnesses, and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Talsol Corporation, an Ohio corporation, is a wholly
owned subsidiary of RPM, Inc., of Medina, Ohio, an Ohio
corporation. Talsol maintains a plant in Union Township,
Butler County, Ohio5 where it is engaged in the manufacture,
packaging, and sale of paints and related chemical products
mainly to automobile dealers, repair shops, auto parts dis-
tributors, wholesalers, and retailers throughout the United
States and Canada. During the 12-month period ending No-
vember 1, 1991, Talsol sold and shipped from its Union
Township (Cincinnati) location goods valued at over $50,000
directly to points outside the State of Ohio.
The complaints allege, the answers admit, and I find that
Talsol is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (the Act).
II. THE LABOR ORGANIZATION
The complaints allege, the answers admit, and I find that
United Steelworkers of America, AFL–CIO–CLC is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The events which make up the allegations in the several
complaints issued in this case arose out of an organizational
campaign begun by the Union about March 12, 1991, and
continuing through an election conducted by the Regional
Director for Region 9 in Case 9–RC–15872, on May 10,
1991, which resulted in a majority for the Union of 20 votes
to 16. The Union was certified as the collective-bargaining
representative of a unit of Talsol’s employees on August 12,
1991. The unit so certified is:
All full-time and regular part-time production and
maintenance employees employed at the Employer’s
Union Township, Ohio, facility, including all warehouse
employees, shipping clerks, packers, shipper/pickers,
paint makers and color matchers, but excluding all of-
fice clerical employees, laboratory employees, sales-
man, temporary employees, and all professional em-
ployees, guards, and supervisors as defined in the Act.
The Respondent admitted in its answers that this is an appro-
priate unit.
As part of the background to these cases, I note that there
was evidence here of a prior campaign, by the Teamsters
Union, in late 1988 and early 1989. Betty Bates, an em-
ployee who had been with Talsol from May 1982 down to
the time of this hearing, testified that during this organiza-
tional campaign she served as an intelligence agent or, in her
own words, a ‘‘snitch’’ for the Company. Bates testified that
she approached her supervisor, Rich Memoli, about obtaining
information about the union campaign for the Company, and
that Memoli referred her to Dave Blizzard, the Company’s
vice president for research and development. She then talked
to Blizzard and Company President Terry Merrill about her
going to union meetings and checking them out. Bates went
to all of the union meetings and then told Blizzard and Mer-
rill what went on, who was there, who were union support-
ers, and what literature was distributed. She also participated
in discussions with Blizzard in which he told her that he was
going to put all the troublemakers in one building, so that
company people would be protected against union supporters.
Blizzard also mentioned that there had been sabotage going
on and he felt that they (union people) were causing prob-
lems.
There is, of course, nothing wrong with obtaining informa-
tion voluntarily proffered by an employee without fear of re-
prisals or promises of benefit.6 Counting of votes in a
preelection situation is a uniform practice for unions and
management. It is a risky business, particularly for manage-
ment, but can be valuable in formulating legitimate, as well
as unlawful, election strategy.
Blizzard did not deny Bates’ story, but put a little different
twist on it, describing Bates as ‘‘always trying to bring infor-
mation to us about what she heard at meetings and who was
union members and who was against it and all kinds of stuff
like that.’’ He did admit that this information was not forced
on the Company, and that they did listen to it. Blizzard was
not asked about his comments to Bates that the Company
would quarantine union ‘‘troublemakers’’ in one building,
nor about his fears of union-generated ‘‘sabotage.’’ Bates’
version of these aspects of the incident stands undenied.
I have set out this incident because I believe it is instruc-
tive as to the attitude of Blizzard in particular, and the Com-
pany in general, when faced with another organizing cam-
paign in 1991.
Another part of the background in this case is the inves-
tigation of the Company’s safety and health conditions and
practices by the Occupational Safety and Health Administra-
tion (OSHA), an agency of the United States Department of
Labor. The OSHA investigation is integral not because that
297TALSOL CORP.
7 See sec. III,B,2,d, below.
8 See secs. III,B,2,b, and c, below.
agency and the Board serve identical purposes, but OSHA,
like the Board is an investigative agency of the Federal Gov-
ernment, charged with finding and providing remedies for
problems in employer-employee relationships prescribed by
the Congress. Here, the substance of the OSHA investigation
does not really concern us, except in one area, the discomfort
level of the Company’s aerosol room, but what happened
during the investigation gives us some insight into this Com-
pany’s attitude toward its employees and their rights.
Pam McNew, an employee, testified that the subject of
safety in the plant was discussed in at least one union meet-
ing. As a result of this, McNew filed a formal complaint
with OSHA on May 15, 1991.
Joan Gates Gearden, an investigator employed by OSHA,
testified that she participated in almost all phases of the in-
vestigation beginning with a visit to Talsol on May 15, and
other visits and meetings on 13 additional days in May, June,
August, and October.
On the first day, May 15, Gearden met with John
MacLeod, the Company’s vice president, and someone
named Steve Medlock, otherwise unidentified. MacLeod told
Gearden that the Company requested that OSHA obtain a
warrant for this inspection, and instructed Gearden to leave
the plant.
She didn’t leave for long. OSHA obtained a warrant from
an administrative law judge, and Gearden returned that same
afternoon with the warrant and another OSHA investigator,
Ralph Cannon, to initiate their inspection with a ‘‘walk-
around’’ of the premises. OSHA’s practice is to have an em-
ployee representative (as well as company representatives, I
assume) accompany them on this tour of the premises,
Gearden requested Pam McNew. MacLeod said no, that
McNew was biased because she was a union sympathizer.
The OSHA representatives then walked around the property
without an employee representative.
Two days later, on May 17, OSHA polled the employees
to select a representative to work with the the agency. Al
Isaac, an employee with some 14 years of service was cho-
sen. On the May 18, Gearden came to the plant alone. She
was told that Isaac was not working that day. Gearden testi-
fied that she heard Dave Blizzard, vice president and director
of research and development, say to Teresa Case that she
was to give OSHA Mary Robinson as an employee ‘‘and let
them deny her.’’ Gearden checked with her office, then said
she wanted Elaine Jones, another employee. Blizzard said no,
that she was a union sympathizer and would be biased. Bliz-
zard then asked Gearden if she was a member of a union.
She said she was, and Blizzard charged that she would be
biased and would not give the Company a ‘‘fair shake’’ be-
cause she was a union member. Gearden explained that
OSHA was not there to look at union or nonunion issues,
but, rather, safety and health issues.
There was a meeting on May 20 between Gearden and
Cannon for OSHA, Al Isaac, as employee representative, and
Company President Terry Merrill, Blizzard, MacLeod, and
Safety Director Teresa Case for the Company. They went
over the items in the OSHA complaint. Merrill said that
some of the items had no validity. Gearden disagreed, and
started to go over them, item by item. One item concerned
hearing protection for employees on the aerosol line. Bliz-
zard said that they couldn’t get employees to wear hearing
protection. Gearden replied that you can have safety and
health programs, and, with fair and equitable enforcement,
can have employees wear safety equipment, but you cannot
use safety and health to punish and harass employees. Bliz-
zard replied, ‘‘[W]hy not? They filed the OSHA complaint
to punish us.’’ Blizzard again brought up the issue that
Gearden and Cannon were union sympathizers and could not,
thereby, be fair to the Company.
On May 23, there was another meeting at the Company
between Gearden, Cannon, and Isaac and Merrill, Blizzard,
MacLeod, and Case. There was a lot of discussion about
heat-related problems. Merrill said that the prounion people
were working themselves ‘‘out of a job’’ because they
couldn’t do the work. He also said that the prounion people
were having heat-related problems, and others were not. At
another point in this meeting Cannon was talking about stor-
age problems with flammable liquids. Gearden was looking
at Isaac. Merrill interrupted, saying to Isaac, ‘‘Al, Joan keeps
looking at you. If you have something to say, say it!’’ Isaac
didn’t answer.
Blizzard accused another employee, Betty Bates, of ‘‘bul-
lying’’ the Company into opening the doors in the aerosol
room.7 He felt that the heat-related claims (by employees)
were not valid.
In a discussion of internal labeling problems Teresa Case
tried to explain the internal labeling situation, but Merrill cut
her off by saying ‘‘shut up! These people are not your father
confessors!’’ Merrill also brought up, more than once, his
opinion that his employees were overweight, uneducated, and
heavy smokers.
On May 29, Gearden had completed monitoring of tem-
perature and humidity in the aerosol room. Merrill had asked
her to stop by at his office before she left. She went to aero-
sol line Supervisor Pete Burnside and told him that she was
finished, that Merrill had asked her to see him in his office,
and would Burnside like to accompany her back there. He
said no. She knew her way, and started for Merrill’s office.
She ran into Al Isaac and told him what she had been doing
and said she would let him know the results. She continued
walking when Blizzard and Case came up to her. Blizzard
was ‘‘extremely upset,’’8 and accused her of walking through
the plant and talking to employees. He again accused her of
being a union supporter and not being fair. He was upset and
yelling at her to get out of his plant. She explained where
she was going, and went on to Merrill’s office.
On May 30, there had been an explosion in the aerosol
room when a can of adhesive blew up. In discussing the
cleanup with Blizzard on June 10, Gearden said that Blizzard
commented that he had had paint and solvent on himself and
in his eyes, but he washed it off, and wasn’t a union person
‘‘trying to start something.’’
This background gives an overall view of a Company
whose chief officers are hostile to union activities, sym-
pathies or membership, no matter who is involved, employee
or nonemployee; suspicious of malingering without cause;
contemptuous of employees; accusatory of the motives of
those employees who may be ill, or may have been injured
on the job, and ready to retaliate for union activity, against
those who may have filed complaints with OSHA, or, it goes
without saying, charges with this Board. This ‘‘siege’’ neu-
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Robinson was hired in 1989, was injured May 15, 1991, and
fired on October 3, 1991. She filed a charge with the Board over
this dismissal, but the charge was dismissed.
10 ‘‘Points’’ are demerits given for absence, tardiness, or leaving
work early. An accumulation of nine points means discharge.
trality permeates all of the issues here, militant and implac-
able, and completely intolerant of the rights of employees
under OSHA, or under Section 7 of the National Labor Rela-
tions Act.
As a final note as background to the instant case, the Re-
gional Office sought and obtained a temporary injunction
from the United States District Court for the Southern Dis-
trict of Ohio, Western Division, Speigel, J., on March 6,
1991, in Case C–1–91–916, ordering Talsol to cease and de-
sist from assigning known union supporters to the aerosol
line in disproportionate numbers and from assigning workers
to tasks that far exceed the scope of their typical job duties.
So far as the record shows, this injunction is still in effect,
but no allegations of failure by the Company to observe its
provisions have surfaced in this proceeding.
Turning back to the 1991 campaign, James C. Newport,
organizing coordinator for the Union’s District 30, testified
that he directed the campaign at Talsol in the spring of 1991.
Following an initial employee meeting on March 12, New-
port sent a letter to Company President Terry Merrill on
March 19 demanding recognition, and on the same date filed
the petition in Case 9–RC–15872. Newport sent Merrill an-
other letter on March 25 identifying employees Sue Brewer
and Curtis Compton as members of an in-plant organizers
committee. On April 15, Newport sent Merrill another letter,
adding to the in-plant organizers the names of Velvie Wood,
Judy Quillen, Pamela McNew, Betty Bates, and Tina
Pendergrass. On April 23, Newport sent a third letter to Mer-
rill, naming Teresa Kee, Treasure Chestnut, and Victoria
Maxfield, to the in-plant organizing committee.
B. Alleged Violations of Section 8(a)(1)
1. Terry Merrill
a. The greeting card issue
The complaint alleges in paragraph 5(a)(ii) that the Re-
spondent, by President Terry Merrill, impliedly threatened to
close the plant. Employee Connie Robinson9 testified that, in
late March, she was at her work station. Mary Robinson
Gruenemeier (another employee, no relation to Connie) was
working 5 or 6 feet away, on the other side of a table, Terry
Merrill came by and stood at the end of the table and ad-
dressed Gruenemeier, telling her that Sue Brewer was one of
the ringleaders, adding that Brewer had eight points10 and
would never last until the election. Merrill said that the em-
ployees could go back to minimum wage, and they could
lose their vacation time, and that the doors could close, ‘‘just
like the greeting card company.’’
Mary Robinson Gruenemeier stated that she had a con-
versation in the spring of 1991 with Merrill about the Union,
but she said the talk resulted from her concern about what
would happen to her job if there was a strike. She had
friends who worked at U.S. Playing Card Company and there
was a strike at that company, employees were replaced and
lost their jobs. So she spoke to Merrill about strike replace-
ments and working during a strike. Gruenemeier said she
was alone with Merrill and that he said nothing about Sue
Brewer, negotiations, or collective bargaining, wages going
back to minimum wage, or closing the plant and that he used
no one’s name in connection with the Union.
Merrill denied that he had any conversations with Mary
Robinson Gruenemeier about any ‘‘greeting card company.’’
He denied conversations with Gruenemeier about vacations,
minimum wage, or vacation time. In answer to a question as
to whether he knew of a greeting card company, Merrill an-
swered ‘‘Yes, Hallmark, Kansas City Missouri. I buy cards
there all the time.’’
This issue presents kind of a three-sided question of credi-
bility. All of the witnesses to this incident had selfish reasons
for wanting this case decided for or against the Company.
Connie Robinson is not an alleged discriminatee, so she can-
not get her job back through a decision in the case, but she
may resent being fired by the Company for missing work
while she is claiming that she missed that work because of
an injury suffered on the job. Moreover, the injury happened,
at least in part, because of a company speedup alleged in this
case to be unlawful harassment of employees.
Mary Gruenemeier, on the other hand, is a company loyal-
ist with 14 years of service and a dedication to the Compa-
ny’s interest to the extent that she filed a decertification peti-
tion to have the Union removed as collective-bargaining rep-
resentative at Talsol.
Terry Merrill is the company president, but also, as he de-
scribed himself, the Company’s chief salesman. As president,
his testimony is laced with references to production, good
business practices, no interference with production goals, de-
manding performance from all, and fielding complaints. As
a salesman he was trying to keep all customers happy in a
highly competitive field. Both of these things are admirable,
good business, and successful salesmanship. But Merrill also
had throughout his testimony a tendency to exaggerate, to
dissemble, and perhaps even to fabricate. The idea that he re-
peated ‘‘4000’’ or 10,000’’ times a litany about all benefits
depending on negotiations, or that an employee who received
one warning (Sue Brewer) was warned ‘‘many, many
times,’’ or another (Curtis Compton) was the subject of
many, many complaints; or another was ‘‘1000 percent’’ in-
subordinate, tends to light up a warning signal in the mind
of the finder of fact who observed Merrill very, very closely
as he testified here.
In respect to this incident I found Connie Robinson to be
straightforward in her testimony and by her demeanor she
appeared to be candid and truthful.
With Mary Gruenemeier and Merrill I noted a lack of can-
dor in their answers to questions. This was particularly true
in regard to the greeting card company point. Connie Robin-
son testified that Merrill and Gruenemeier talked about a
greeting card company. Gruenemeier testified that she did
have a conversation about unions with Merrill and expressed
her concerns to him about her job and her status in case of
a strike. She also testified that she talked to Respondent’s
counsel about this conversation 4 or 5 months before she tes-
tified at this hearing on December 9, 1992, the last day of
the hearing.
Merrill’s testimony, I find, contained a series of evasive,
or dissembling answers, particularly on the greeting card
point. Because of this factor, as well as my confidence in the
299TALSOL CORP.
11 Despite her obvious, but understandable mistake in substituting
‘‘greeting’’ for ‘‘playing’’ in describing the card company.
12 I do not mean in these findings concerning Merrill’s testimony,
and his anecdotal responses, to disparage an intelligent, forceful, and
successful businessman. Merrill is likeable and personable, and, I am
sure, a very successful salesman. I have had, and still have, friends
with those qualities, and I had clients who possessed an aggressive
pursuit of excellence and success in business, just as Merrill dem-
onstrated in his testimony here. But I must temper personal feelings,
of liking or disliking witnesses who come before me, and I must rec-
ognize, as does Merrill, that there are things you cannot do, and
things you cannot say under this law which governs some of the re-
lations between employers and employees, even when overriding
business considerations may dictate actions in a union campaign
which are close to the line of illegality.
13 Again there may have been some confusion in her mind about
dates, but I do not find that to impair the effectiveness of her testi-
mony on the events of the meeting.
credibility of Connie Robinson,11 I conclude that the testi-
mony of Merrill and Gruenemeier was designed to avoid the
truth, and that, in fact, Merrill said what Connie Robinson
recalled that he said.
Further, I do not believe that Merrill’s predictions, as re-
called by Robinson, and to a lesser extent by Gruenemeier,
are protected by Section 8(c) of the Act. I therefore find that
by predicting loss of benefits, plant closure, and loss of jobs,
Merrill’s statements to Gruenemeier constitute a violation of
Section 8(a)(1) of the Act. Benjamin Coal Co., 294 NLRB
572 (1989); Outboard Marine Corp., 307 NLRB 1333
(1992).
b. The remarks to the building A employees
The complaint alleges in paragraph 5(a) that Merrill threat-
ened employees that Respondent would close the plant if the
employees selected the Union as their bargaining representa-
tive.
Betty Bates testified that about April 23 she was working
in building A with employees Teresa Kee, Connie Robinson,
Mary Robinson Gruenemeier, Linda Scarborough, and Tina
Pendergrass. Supervisor Larry Parsons called these employ-
ees to a meeting where he read from some company lit-
erature about the union campaign. Tina Pendergrass raised
some questions about what had been said and Terry Merrill,
who happened to come by, made some comments to the
group. According to Bates, Merrill said they (the employees)
were all going to be in for a rude awakening if they thought
they were going to ‘‘get anything.’’ Everything was going to
go his way because ‘‘no damn union was going to come in
there and run his company because he had been there too
many years to see this happen.’’ He pointed to Bates and
said that ‘‘You, of all people know I’m one hundred percent
anti-union. I want you organizers [Bates and Pendergrass] to
hear this from the horse’s mouth.’’ He said that ‘‘I can take
you down to minimum wage or I can take holidays away,
no pensions, only myself can give raises or I cannot give
raises. It’s up to me, not the Union. And if Mr. Newport
[union organizer James Newport] tells you this, he’s a dirty
liar.’’
While Bates’ testimony is substantially corroborated by
Tina Pendergrass, I do not rely on Pendergrass’ testimony in
this instance. Pendergrass was caught in an egregious lie
through careful detective work by Talsol’s counsel. As a re-
sult, an allegation in the complaint concerning her discharge
was withdrawn. The General Counsel argues that this should
not operate to cancel out her testimony on other issues, and
I agree, but I found Pendergrass to be a witness who in-
dulged in speculation and exaggeration, and I will carefully
examine her testimony, in each instance where that testimony
is cited in support of a complaint allegation, to determine
whether she has indulged in fancy instead of fact. In this in-
stance, I do not find Pendergrass’ testimony, where it goes
beyond the limits of Bates’ version of events, to be reliable.
There is one instance where Pendergrass’ account is cor-
roborated to some extent by Terry Merrill. She stated that
during his remarks to employees at this meeting Merrill
‘‘threw’’ his sunglasses down onto a table. Merrill denied
that he threw the glasses down, but, archly, described the
glasses as $120, ‘‘Serengettis,’’ adding that he didn’t slam
‘‘those babies’’ down. ‘‘I don’t slam $120 glasses down.’’
For the rest of Bates’ description of his remarks, Merrill
denied that he said anything except that ‘‘in collective bar-
gaining, you may get more, you may get less, but basically
everything may remain the same.’’ He added, characteris-
tically, that he had said that before ‘‘about 4,000 times at
least. Maybe 10,000.’’12
Other than that, Merrill denied making any threats that
benefits would be withdrawn or that collective bargaining
would be a futile exercise for employees. Larry Parsons cor-
roborated Merrill’s version of what he said at the April meet-
ing, although he limited Merrill to 50 repetitions of the same
theme rather then 4000 or 10,000. Parsons’ testimony was
mirrored in the testimony of Mary Robinson Gruenemeier,
but Linda Scarborough, another employee called as a com-
pany witness, did say that Merrill did speak about the fact
that he would do nothing to hurt the Company, and that there
were things employees could win or lose, and benefits like
wages, or insurance, could go up or down. There was no real
corroboration of Bates’ testimony, but Scarborough’s testi-
mony shows clearly that there was more to Merrill’s remarks
than that collective bargaining could go both ways.
I find here that Betty Bates told the truth;13 that Merrill
did not, and that the Company has violated Section 8(a)(1)
of the Act by Merrill’s threatening to reduce wages and ben-
efits; by his stating that he would set wages and other condi-
tions of employment; and that if the Union’s organizer said
anything else, that organizer was a ‘‘damn liar.’’ See, e.g.,
Overnite Transportation Co., 296 NLRB 669 (1989).
2. David Blizzard
Blizzard, who, as vice president for research and develop-
ment had much more day-to-day contact with employees than
did Merrill, was named in the complaint as having done and
said a number of things which allegedly violated the Act.
a. The April 15 incident
The Company alleges in paragraph 5(b)(i) that on April
15, 1991, Blizzard impliedly threatened an employee with
unspecified reprisals if the employee continued to associate
with known union adherents. There is no evidence in the
record concerning this allegation. There was testimony by
employee Teresa Greene that her supervisor, Teresa Case,
warned her about associating with hourly employees, but that
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 His problems with the Company around the latter date will be
discussed below in sec. III,D,2 of this decision.
15 Shortly after that Blizzard talked to Compton outside of the sup-
ply room. Blizzard said he knew that Compton was in with the
Union but he wasn’t going to stand for any sabotage or slowdowns.
This was not alleged as a violation in the complaint, but it does
show Blizzard’s preoccupation with what the Union or its supporters
might do in the plant or to company property.
16 The Reed-Zimmerman situation also figures in the discharge of
Teresa Greene. See sec. III,C,2, below.
17 With respect to the earlier conversation about sabotage and
slowdown, Blizzard did admit that he criticized Compton for being
slow on a job, and told him he was a ‘‘lazy bum.’’
was in March, and is not alleged as a violation in the com-
plaint.
The Respondent has moved in its brief to dismiss this alle-
gation. In view of the fact that there is no evidence to sup-
port it, and no argument in the General Counsel’s brief on
the point, the motion is granted and paragraph 5(b)(i) of the
complaint is dismissed.
b. The April 26 incident (Compton)
In paragraph 5(b)(ii) of the complaint, the General Counsel
alleges that on April 26, 1991, Blizzard threatened an em-
ployee with unspecified reprisals because of his union or pro-
tected concerted activities. The employee concerned was
identified by the General Counsel as Curtis D. Compton.
Compton had applied for a job as a warehouseman, but was
hired by the Company as a paintmaker on August 20, 1990.
He continued to work as a paintmaker until June 10, 1991.14
Compton was one of the earliest supporters of the Union
from the first meeting on March 12, and he was identified
as a member of the in-plant volunteer organizing committee
in a letter from Jim Newport to Terry Merrill dated March
25, 1991.15
Compton testified that on April 26, Blizzard called him
outside of the plant building to talk. Blizzard then said he
was sick of Compton’s ‘‘bullshit’’ and his ‘‘getting people
to’’ sign or file charges. There were more obscenity-laced
statements by Blizzard, and Compton asked if he was threat-
ening him. Blizzard asked if this conversation was being re-
corded, he pulled up Compton’s shirt and noted that he had
no wires under the shirt. Blizzard then told Compton that he
was not to stand next to any other Talsol employees while
on company time and that he wasn’t to leave his work area
without permission even to go to the bathroom.
Later that day Compton was working and he saw Blizzard
standing and staring at him. Compton said, ‘‘What did I do
now?’’ and Blizzard replied, ‘‘Nothing, I’m just watching
you.’’
Still later, Compton needed material outside the building,
and while he was walking out, Blizzard was walking beside
him, saying nothing, but just looking at him. When they got
out to where the needed material was, Blizzard told Super-
visor Jim Zimmerman, who also was out there, that Compton
‘‘is not to stand next to anybody or go to the bathroom or
talk to anybody or leave his work area without you giving
him permission.’’
On cross-examination, counsel for the Company brought
out in his questions a problem between Supervisor Jim Zim-
merman and a paintmaker named Dan Reed. As far as this
is important to us here, Reed had apparently gone to man-
agement complaining about a relationship between Zimmer-
man and Laboratory Director Teresa Case. One thing led to
another, and there apparently was a meeting between Reed,
Merrill, and Blizzard at which (again I am inferring what
happened at the meeting from counsel’s questions to Comp-
ton about what happened afterward), Reed said that Compton
would back him up in his position.16 Then, following this
meeting, Blizzard had his April 26 set-to with Compton.
Counsel also cited a statement from Compton’s affidavit to
the Board stating that Blizzard said he was tired of Comp-
ton’s ‘‘bullshit,’’ getting people to file complaints (referring
to Dan Reed). With this, Respondent argues that Blizzard’s
tirade at Compton arose out of the Reed affair and had noth-
ing to do with any union or protected concerted activity. The
affidavit was not introduced, but on redirect examination the
General Counsel did introduce a handwritten statement, the
first part of which Compton stated he had written on April
26, 1991, soon after the meeting with Blizzard. In this state-
ment, Compton referred to the meeting between Reed and
the management people and went on to describe Blizzard’s
approach to him and the conversation, substantially the same
as to which he had previously testified.
Blizzard testified flatly that he never talked to Compton
about Dan Reed, nor about filing charges or stirring things
up. He did talk to him about leaving his work area, and told
him to stay there.17 Blizzard denied that he told Compton
that he couldn’t go to the bathroom, or get a drink of water,
but did not deny that he told Compton that he had to ask
permission of his supervisor to go to the bathroom or get a
drink.
Jim Zimmerman was not asked directly about a directive
from Blizzard to him to require that Compton ask permission
to leave his work area. But he did say that he never heard
anyone tell Compton that he could not talk to other employ-
ees, and never heard anyone tell Compton that he couldn’t
use the restroom or get a drink of water without permission.
Blizzard is not an engineer or scientist by way of back-
ground, but he has 32 years of experience in the paint busi-
ness and had owned his own company for about 4 years. He
was and is a hands-on manager, familiar with every detail of
Talsol’s operations, and ready, as it appears from testimony
here, to involve himself in employee problems, illnesses,
shortcomings, and disciplinary problems. He was character-
ized by Compton, speaking of a time before the Union come
on the scene, as ‘‘rude’’ and demanding. His attitude toward
the Union is plain from the testimony of a number of wit-
nesses here including that of Joan Gates Gearding, an OSHA
inspector whose experiences with Blizzard were described
above, see sec. III,A. His preoccupation with slowdowns,
sabotage, and threats led him to make decisions such as ac-
cusing several employees of a slowdown on no evidence ex-
cept that production was slow; shutting the doors to the aero-
sol room and turning off the ventilating fans on the basis of
imagined threats; and his attitude toward employees who be-
came ill or were hurt on the job. These are all indications
of a real hostility toward the Union and those employees
whose names were revealed to him as working actively in
the plant for the Union.
Blizzard’s reaction to the Dan Reed situation is reflected
more clearly in his reaction to Teresa Green’s actions after
Reed had quit. But from that incident it is clear that the Reed
situation had worked him up to a fury, which he blamed on
301TALSOL CORP.
18 He described Reed as their best paintmaker.
19 Compton testified, credibly, that he had never been so restricted
during his employment at Talsol.
20 Blizzard admittted reading a letter in a loud voice to employees,
but his testimony did not connect that up with the April 29 incident.
21 According to Compton the letter recounted how Newport Steel
had a contract with this Union and had had a substantial layoff.
22 See the circumstances of Compton’s reassignment and resigna-
tion, below.
Compton. On the basis of his demonstrated hostility toward
the Union, and employees who supported it, his preoccupa-
tion with the Reed case,18 his demeanor while testifying,
which I found to be defensive, hostile, and less than candid,
and, finally, from the fact that, like Merrill’s testimony on
his talk to employees in April, the questions propounded to
Blizzard about his talk with Compton appeared to avoid one
of the main points in that discussion, that Compton had to
get permission to go to the bathroom or to get a drink. I find
Blizzard to be, generally, an untrustworthy witness, and I do
not credit his testimony on this incident.
Blizzard’s corroborating witness, Zimmerman, did not spe-
cifically back up Blizzard’s denials, but he too was not asked
specifically whether Blizzard had said the things claimed by
Compton, but rather whether ‘‘anyone’’ had said them.
I found Compton, generally, to be a candid and credible
witness. While his testimony on this incident is not corrobo-
rated, I do note that key elements in the complaint allegation,
the prohibition against leaving one’s work station, requiring
supervisory permission to attend to personal needs, and at-
tempted isolation within the plant of known union activists,
are seen throughout this case. Compton’s account of his con-
versation with Blizzard is logically consistent with the testi-
mony of other credible witnesses on these same subjects, re-
strictions on movement and contact with other employees.19
Accordingly, I find that by imposing more onerous work-
ing conditions on Compton, in a context which showed that
the imposition of such conditions was the result of Comp-
ton’s union activity, I find that Respondent has violated Sec-
tion 8(a)(1) of the Act. See, e.g., Adscon, Inc., 290 NLRB
501 (1988); Heartland of Lansing Nursing Home, 307 NLRB
152 (1992).
c. The April 29 incidents (Compton)
Paragraph 5(b)(iii) of the complaint alleges that Blizzard
had threatened to assault Compton because of his union ac-
tivity.
There was no dispute over the fact that Blizzard did threat-
en to strike Compton. Nor is there any difference in the ver-
sions of each participant as to the immediate cause of the
threat, that Compton had touched Blizzard during the course
of a conversation.
The differences arise over what preceded the threat, and
what happened afterwards. Blizzard stated that he saw
Compton working on a job taking 50 gallons of paint out of
one container, pouring it into 1-gallon paint cans, and ham-
mering down the lids. According to Blizzard, the job should
have taken 40 minutes, but that Compton had already been
at it for over 2 hours. Blizzard then called him aside and told
him that he didn’t want him to slow down on that job. Bliz-
zard admitted that he called Compton a ‘‘lazy bum’’ during
this conversation, but denied that Compton’s union activities
had anything to do with his reprimanding him about his
work performance. The incident involving the threat hap-
pened during this conversation as Compton stood to Bliz-
zard’s left and put his arm around Blizzard’s shoulder and
on his neck. Blizzard moved away but Compton put his arm
back on the shoulder. At that point Blizzard said that if he
did it again Blizzard would ‘‘slap the shit out of you.’’
Compton’s version of the day’s events included several
different incidents. In the morning Blizzard came into Comp-
ton’s work area and read aloud20 a letter from management
to employees concerning a company called Newport Steel.21
After reading it, he held up the letter, and said to employees
gathered there that ‘‘this is what Curtis Compton wants for
you.’’
Later, as Compton was walking toward the timeclock to
punch out for lunch, Blizzard followed him, calling him a
‘‘shit ass,’’ and a ‘‘lazy bum.’’ Blizzard continued berating
Compton as they walked along.
After lunch, Blizzard came up to Compton again and had
a conversation. Compton said that Blizzard said that it was
‘‘a shame’’ about what the Union did to Dan Reed, calling
his house and getting his wife upset. He said that union peo-
ple are ‘‘scum, just like you, scum.’’ Compton said he
laughed and said, ‘‘we’re all scum’’ and patted Blizzard on
the back. Blizzard then said ‘‘don’t touch me again’’ or he
would punch Compton in the jaw. He clenched his fist and
they looked at each other. Compton then said that he had no
time to play ‘‘silly games’’ and walked away.
On the next day Compton was told that he could not leave
his car in the front parking lot, but had to move it around
to the back of the buildings. Compton said that he was the
only one who had to move his car at that time.
As in the previous incidents on April 26 (sec. III,B,2,d,
above) I credit Compton over Blizzard. In the only one of
these April 29 incidents where any one else was present,
Compton identified Jim Zimmerman as being there when
Blizzard read the Newport Steel letter, that person was not
questioned about what happened. Based on my findings on
the April 26 incidents, I credit Compton over Blizzard.
I find that the threat by Blizzard was the result of Bliz-
zard’s own antiunion statements, because of a touching by
Compton in the course of a furious diatribe by Blizzard,
blaming Compton and the Union for the Dan Reed situation,
calling them ‘‘scum,’’ and acting, according to Compton’s
description, almost irrationally. Compton’s reaction, to evade
the confrontation by touching Blizzard, is understandable,
and it may be that he shouldn’t have touched Blizzard in his
excited state. But he did, and the excited state was the result
of Blizzard’s intemperate and insulting attack on Curtis
Compton because of, not in spite of, Compton’s union activi-
ties. I find that Blizzard’s reaction was the result of his own
verbal assault, or, possibly, as a device to provoke Compton
into a counterattack, which could have resulted in his dis-
charge.22 I find this to be a violation of Section 8(a)(1) of
the Act, Pepsi-Cola Bottling Co., 301 NLRB 1008 (1991).
In addition to the physical threat, I find that Respondent’s
action is depriving Compton of his customary parking place,
is an additional violation set out in section 7(m) of the com-
plaint, a violation of Section 8(a)(1) of the Act. Adscon, Inc.,
supra.
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Sec. III,A, above.
24 If, indeed, a lawsuit filed in a state court on the same issues
as in this Labor Board case has any legal viability.
d. Incidents on April 26 and 29 (Bates)
The General Counsel has alleged that the allegations in
paragraph 5(b)(ii) of the complaint apply to conduct directed
against Betty Bates as well as against Curtis Compton. There
are two separate sets of facts in these two situations which
are alleged to have occured on April 26, but since these mat-
ters were fully litigated at the hearing, I will treat the allega-
tion as to Bates as a separate incident, but covered by the
same complaint allegation.
As noted above, Betty Bates volunteered her services as
a company agent at the 1988 Teamsters union campaign at
Talsol. For this service she apparently received two pay
raises during the next year.23 Later, however, she was de-
moted and her salary was cut. This angered her, and, when
the new union campaign began in March 1991, Bates at-
tended meetings, signed a union authorization card, and her
name was listed as an in-plant organizer in a letter of April
15 from Jim Newport to Terry Merrill. This change of loyal-
ties caught the attention of Merrill who, at the meeting of
April 23, pointed his finger at Bates, saying ‘‘You, of all
people, know I’m 100 percent anti-union.’’
Then, on April 24, Bates and Teresa Kee were moved to
the aerosol line. On April 26 Bates was working in the filler
room on the aerosol line.
Blizzard saw her there, and told her that she had had it
easy, but now she was going to work. He then said that he
couldn’t understand why she went from the Company to the
Union. She told him that she had been demoted after being
so loyal to the Company, and she had money taken away
from her, so why else wouldn’t she go the Union. He re-
plied, ‘‘That’s not all we’re going to do to you.’’
Blizzard placed this conversation on April 29, but admitted
that he asked Bates at that time why she changed sides, and
she replied that it was because the Company had cut her pay.
Blizzard denied that there was any more conversation at that
time.
Here, again, we are faced with a direct issue of credibility.
Looking first at Blizzard’s credibility, I have found serious
questions on that point. His testimony was found to be less
than credible in the incidents involving Curtis Compton. One
of the points on which that determination turned was Bliz-
zard’s emotional and personal hostility toward the Union and
its adherents. Even before this Union came on the scene at
Talsol, however, Curtis Compton described Blizzard’s per-
sonality as flighty, changeable, and many times rude, angry,
or both. After all, Blizzard’s job was not easy, trying to get
production out, to maintain quality, to check employees’ per-
formance, absences, illnesses, and idiosyncrasies, and to an-
swer management demands, some perhaps, difficult or unrea-
sonable. With an excitable and defensive nature, with the
coming of the Union, and with what I think I can reasonably
infer was pressure from Merrill to take care of the union
problem, I can understand Blizzard’s frustrations with events.
Understanding, however, does not mean that I can condone
outbursts, threats, reassignments, groundless accusations, and
forcing work under novel and burdensome conditions, all to
try to halt or slow down the union campaign. If Blizzard’s
words and actions have violated the law, I must find these
violations and attempt, insofar as the law allows me, to rec-
ommend remedial actions for such violations.
All of this is preparatory to looking at Blizzard’s con-
versation with Betty Bates on April 26.
At the same time, I must also look at Bates’ credibility,
because she was a witness to many of the events alleged in
the complaint as violations of the Act.
Bates’ credibility was attached by Respondent on a num-
ber of points. As noted above, Bates engaged in espionage
for the Company during a 1988 union election campaign. For
reasons which are not explained on the record, but which
may reasonably give rise to an inference that her services to
the Company in that election were a contributing factor,
Bates was given a raise of $1.30 an hour, or 23 percent of
her then current hourly rate, in June 1989, and a further 50-
cent raise in September 1989.
Respondent points to a series of five warnings given Bates
in the period before the current union campaign to portray
her as having a ‘‘history of discipline for performance prob-
lems’’ in 1989 and 1990, resulting in her demotion in Sep-
tember 1990 with a loss in pay. The first of these warnings
was an Employee Disciplinary Report dated March 15, 1989,
for returning 10 minutes late from lunch, some months be-
fore her two pay increases in 1989. The other alleged dis-
ciplinary reports were dated on November 7 and 9, 1989,
dealing with the need to request approval for overtime work;
and two other reports involving two errors in shipping dated
December 14, 1989, and July 13, 1990.
There is no other documentation for Bates’ demotion, and
it is hard to imagine this Company demoting an employee
and lowering her pay for 10 minutes of tardiness 18 months
earlier; two admonitions about the need to ask permission in
advance to work overtime 10 months earlier; a reprimand for
a shipping error 9 months earlier; and finally, a reprimand
for a shipping error 2 months before the demotion. I do not
know what the reasons were for the demotion, but in the ab-
sence of legitimate business reasons, I cannot accept these
disciplinary actions by the Company as grounds to discredit
Bates’ testimony.
Respondent in its brief also relies on the fact that ‘‘Bates
has a financial interest in her crusade against Talsol. She has
filed a lawsuit seeking $1 million in damages from Talsol,
Merrill, Blizzard, Burnside and Parsons for the same allega-
tions involved in this case.’’ Respondent’s brief omits the
facts that Bates’ direct testimony here began on January 31
and concluded on May 26, 1992, almost 2 months before the
lawsuit was filed in July 1992. At the time of her testimony
(until recalled by Respondent as its witness in December
1992), she had no current financial interest in any lawsuit.24
I have no doubt that Bates felt herself ill-used by the
Company in her demotion, and in the treatment she (and oth-
ers) received during the period of the union campaign in
1991, but I do not think that those feelings in and of them-
selves are causes to discredit her testimony.
Several additional instances of ‘‘duplicity’’ are put for-
ward by Respondent to attach Bates’ credibility. The first re-
fers to Bates’ experience as a company ‘‘fink,’’ or ‘‘snitch’’
in the 1989 Teamsters campaign. Bates admitted this, admit-
ted that she expected this activity to further her own inter-
ests, and expressed her disappointment that it didn’t work out
that way, except in the short run. I have already considered
303TALSOL CORP.
25 As alleged in par. 5(b)(iv) of the complaint.
26 The Company had hired city police to guard the premises on the
day of the election because of a claimed fear of violence.
this in my evaluation of Bates’ credibility. It is not the first
time that an employee has switched sides in ongoing labor-
management conflicts. The switching is always done for per-
sonal motives, and I see no reason to discredit any witness
for this kind of conduct, unless something else tips the
scales.
Second, is an accusation that Bates agreed to corroborate
a story by Tina Pendergrass that the latter had called the
Company to report that she would be absent. Bates did not
include a conversation with Pendergrass in a journal which
Bates kept during the union campaign. But the portion of the
transcript included in Respondent’s brief to prove Bates’
mendacity does not include the full exchange between Bates
and counsel, in which Bates did try to explain what she had
done, with a separate piece of paper not included in her jour-
nal. Bates did not, as I see it, admit her ‘‘complicity to
Pendergrass’ perjury.’’
A third allegation made by Respondent is that when Ernest
Fultz’ claim of union discrimination was ‘‘failing’’ because
there was no evidence that the Company knew anything
about his supposed union activities, it was Bates who ‘‘sud-
denly’’ remembered a conversation with Blizzard and pro-
vided the evidence needed for the case. The basis for this al-
legation is that Bates had omitted the conversation in one af-
fidavit she had given. The statement that ‘‘she made it up’’
is not warranted by the record in this case.
Finally, a more serious charge is that Bates falsified her
employment application at Talsol by omitting references to
her prior employment at Kroger (a grocery chain), from 1980
to 1984. When she applied for a job at Talsol on April 9,
1986, she did not put down her previous employment with
Kroger. When asked by counsel for Respondent, she admit-
ted that she had worked for Kroger from 1980 to 1984. Dur-
ing the latter part of her employment with Kroger she was
the restaurant manager at Kroger’s Fairfield store. In Novem-
ber 1984, Bates was suspended from her employment under
the following circumstances: She had ordered two party plat-
ters (sliced cold cuts, potato salad, etc.) and when she paid,
she told the cashier to charge her for the food only and not
for the labor used in making up the platters.
A result of this, when it was discovered by Kroger’s man-
agement, was that Bates was suspended and, according to
her, she was told to write a statement that what she had done
was wrong.
On the basis of this recounting of the evidence the Re-
spondent argues that by signing her application at Talsol
without mentioning this, or any reference to Kroger, she cer-
tified her application was ‘‘true and complete—a bold face
lie’’ in a situation where the application itself states that any
false ‘‘statement shall be grounds for dismissal.’’
Respondent has not told the whole story in its argument.
Omitted were Bates’ testimony that she did not consider
what she did at Kroger to be wrong; that she and others had
done the same thing before; that she was coerced into sign-
ing the statement admitting guilt; that she and her union rep-
resentative discussed the matter and they decided that rather
than pursue the matter (presumably through the grievance
procedure) she would resign; and that she gave a statement
to the union covering the incident as I have described it here.
With respect to her application, she testified that she con-
sidered her resigning from Kroger, and the circumstances
surrounding it, a ‘‘bad experience’’ and she didn’t feel it
necessary to put it down on her application at Talsol.
I can understand Bates’ reluctance to reopen an unpleasant
chapter in her life, but I certainly cannot condone, or explain
away, what must have been a conscious effort, not at lying,
but at dissimilation. I observed Bates carefully, however,
during direct examination, and vigorous, even bruising,
cross-examination, and I am convinced based on her de-
meanor while testifying, by the logical consistency of her
testimony with other employee witnesses I have credited, or
will credit, and the inherent probabilities of her testimony as
weighed against, or with, all the other testimony here, that
in spite of her attempt to avoid embarrassment by not includ-
ing the Kroger employment on her Talsol application, that
she was a credible witness.
Accordingly, crediting Bates’ testimony against that of
Blizzard, I credit her version of that April 26 conversation
and find that by Blizzard’s threats to retaliate against Bates
for her support of the Union, Respondent has violated Sec-
tion 8(a)(1) of the Act.
Since Bates testified that Blizzard repeated the same or
similar threats to her on April 29,25 and since, in regard to
this incident, Blizzard did admit that he asked Bates why she
switched and she replied that it was for the money, and since
I credit Bates over Blizzard, I find a further violation of Sec-
tion 8(a)(1) of the Act.
e. Incidents on May 10
The complaint alleges in paragraph 5(b)(v) that about May
10, Blizzard created an impression of surveillance on an em-
ployee; to the effect that the employee’s actions were under
surveillance by the Company; that he coercively interrogated
an employee regarding union activities; and that he impliedly
threatened an employee with unspecified reprisals if the em-
ployee filed unfair labor practice charges.
All of this arose out of a conversation between Blizzard
and Connie Robinson on the morning of the union election,
May 10. Robinson testified that on that morning Blizzard
came by her work station and sat down. He said that he un-
derstood she was for the Company until she saw the police
and then changed her mind.26 Robinson told Blizzard that
she had told nobody how she was going to vote. He then
called her a ‘‘damn liar.’’ She repeated that she never said
how she was going to vote. Blizzard then accused her of
starting ‘‘all this shit’’ so the Union could get in and she
could cause trouble. By this time Robinson was crying, but
Blizzard continued on, accusing her of saying that the Com-
pany had phoned and threatened her. She denied this, and he
said that Supervisor Larry Parsons had told him. She replied
that she did not remember telling Parsons, but she did tell
her sister, Bonnie Wilson.
Later, Robinson asked Parsons if he had told Blizzard that
she had said these things. Parsons said no. Blizzard then
came up and called her a ‘‘dirty, low-down, low-life.’’ Later,
Parsons told her that he ‘‘had things all straightened out.’’
Robinson’s testimony was corroborated by her sister,
Bonnie Wilson. Wilson testified that on May 10 she and
Robinson were in building A doing shrink wrapping. Bliz-
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 As stated in Respondent’s brief.
28 As it turned out, she went back to the same job she had when
she was injured.
29 The record says ‘‘Erie Parson,’’ but that is an obvious error.
zard came by and sat about 5 feet from where Wilson was
working. Addressing Robinson, Blizzard said to Robinson
that she had started ‘‘this shit’’ so the Union could come in.
She said that she didn’t know what he was talking about, and
he said that Larry Parsons had told him that she had pre-
tended to be for the Company so the Union could come in.
She denied this. Blizzard called her a ‘‘damn liar’’ and
added that if she or anyone else tried to bring charges against
him they ‘‘would be very sorry.’’
Blizzard testified about his May 10 conversation. He said
he had heard Robinson was telling people that management
officials were calling her house all night to harass her. He
told her she was lying. She said she didn’t say that, and he
called her a ‘‘damn liar.’’ Replying to a series of questions
as to whether Robinson’s union activities were mentioned or
the election or accusations that she made up statements to
stir things up so the Union could get in, or daring her to file
charges or anything about charges, Blizzard answered each
issue with a monosyllabic ‘‘no.’’
Blizzard did not say who had told him that Robinson was
telling people that management was harassing her. Larry Par-
sons, who had a conversation with Robinson earlier that day,
testified about some other things he and Robinson had said
to each other, but there was no mention of threatening tele-
phone calls.
If Blizzard had talked to anyone about this incident, he
should have told us who it was. If he was basing his attack
on Robinson based on rumor,27 then his reaction seems of
a piece with his frenzied responses to other manifestations of
union activity or activities not clearly in favor of the Compa-
ny’s position on unionization. In any case, I credit Richard-
son’s story, and I believe Blizzard only to the extent that he
admitted calling her a ‘‘damn liar.’’
I, therefore, find that Respondent violated Section 8(a)(1)
of the Act by (1) giving the impression of surveillance by
accusing Robinson of being prounion while feigning an
antiunion attitude and by accusing her of making anti-
company statements; (2) in this same conversation, Blizzard
coercively interrogating Robinson by accusing her of chang-
ing her mind about the Union; and (3) by threatening her
with unspecified retaliation if she filed charges against him.
f. Incident on May 15
Paragraph 5(b)((vi) alleges that about May 15 the Re-
spondent impliedly threatened an employee with discharge
because of the employee’s union or protected, concerted ac-
tivities.
Tina Pendergrass testified that she was on her way to the
timeclock when she exchanged a few words with Curtis
Compton. She then punched in and went to work on the box-
ing end of the aerosol line. Blizzard, Pete Burnside, and
Larry Parsons came over to where she was working and
Blizzard said he had heard what Compton said to her, to let
the cans back up until they fell on the floor. Pendergrass
tried to explain, but Blizzard said she was covering up for
the Union and if one can fell on the ground, she would be
fired. He told Burnside to start and watch her. If one can
fell, take her into the office and take care of her.
Blizzard denied ever having this conversation. As noted
above, I have real problems with Pendergrass’ credibility. It
may have been noted that I have had problems with Blizzard
as well on that score. In this situation, therefore, since there
is no corroboration or denial by any of the other people in-
volved, Compton, Burnside, or Parsons, I do not feel that a
preponderance of the credible evidence will allow me to find
a violation. I will recommend that paragraph 5(b)(vi) be dis-
missed.
g. The May 24 incident
Paragraph 5(b)(vii) of the complaint alleges that the Re-
spondent threatened an employee with more onerous working
conditions because of the employee’s union activity.
An employee named Treasure Chestnut, who had been ac-
tive on the in-plant organizing committee, testified that she
was transferred to the aerosol room on April 29. On May 15
she tripped over an electrical cord and was injured. She was
released by her physician and came to the plant to arrange
her return to work on May 24. She met with Blizzard and
Larry Parsons in the Company’s conference room. After
some conversation about her date of return, Blizzard told her
that she had to come back on May 28 and would have to
schedule any continuing therapy before or after work. Bliz-
zard then told Chestnut that he was going to give her some
advice: her friends could get her in trouble. He said, for ex-
ample, if she was walking down a street with them and one
of them pulled a gun and she was with them, that she could
go to prison for the same thing. He then told Chestnut that
she would go back to the job she had been doing, or a harder
one, and it probably would be a harder one.28
Blizzard testified that he talked to Chestnut with Larry
Parsons29 present, in the conference room late in May. He
maintained that he told Chestnut that she would come back
to the same job she had before she was hurt. He denied that
he talked about a harder job, or warned Chestnut about her
friends or associations, or about friends committing crimes.
Parsons did not testify on this incident.
I found Chestnut to be a frank and candid witness. She
was open and truthful, so far as I could discern from her de-
meanor while testifying. The Respondent in its brief main-
tains that it ‘‘makes no sense’’ for Blizzard to tell Chestnut
she would come back to a harder job, and that since com-
pany policy provides that injured employees return to their
old job, ‘‘it would make no sense for Blizzard to say any-
thing different.’’ My own impressions of Blizzard are that a
lot of what Blizzard said or did during the period of the
union campaign was angry almost hysterical, and, indeed,
made little sense during the campaign in helping the Com-
pany win the election, and not much sense afterward, even
if intended to wear down the employees’ loyalties to the
Union. I reject this argument by Respondent, and I find that
Blizzard did threaten Chestnut with assignment to a harder
job, and did warn her that her friends, I infer that those
‘‘friends’’ were union friends, could get her into trouble. I
find that this conduct violated Section 8(a)(1) of the Act.
305TALSOL CORP.
30 The Company is concerned about the quantities of volatile sol-
vents and other flammable materials in the plant and under the
ground outside the plant. Therefore smoking is not permitted any-
where in the plant or on the grounds. Those who want to smoke take
their breaks across the street or somewhere else off the premises.
31 Burnside did not testify about this incident.
h. The incident of May 29
In paragraphs 5(b)(vii) the complaint alleges that on May
29 the Respondent threatened an employee because of the
employee’s union or protected concerted activities.
Blizzard testified that on May 28 Bonnie Wilson was
working in the aerosol room and she became overheated.
Blizzard saw her and took her to his air-conditioned office,
gave her some water, and allowed her to stay for an hour
or so. On the next day, May 29, Blizzard came by about
1:30 in the afternoon and saw Wilson sitting on a pallet. Her
face was red and she was holding a wet towel up against her
head. He asked her if she was ill or if she wanted to go to
the clinic. She said no and he asked Burnside to watch her
for signs that she was ill.
Wilson admitted Blizzard’s kind treatment on May 28, but
on May 29, her story was different. On May 29 Wilson testi-
fied, she was having lunch out at her car, parked on the
street opposite the plant entrance.30 She was talking with
Treasure Chestnut, Curtis Compton, and Linda Page, a union
organizer. Terry Merrill and Dave Blizzard drove by them
and pulled into the parking lot. According to Wilson, Merrill
pointed his finger at her and the people with whom she was
conversing. After the car was parked, Blizzard got out,
walked out to the curb on the plant side of the street, and
stood for 5 minutes or so with his arms crossed looking at
the employees.
Wilson went back into the plant, washed her face, and
went to the aerosol room waiting for the buzzer to ring. She
said nothing about holding a towel or whether she felt hot,
or her face was red. Wilson then said that Blizzard said to
her, ‘‘Oh, poor little sick girl. I saw you and your union
friends out on the street, plotting.’’ He then told her that
‘‘little girl’’ (referring to OSHA investigator Joan Gates
Gearding) was coming back that day. Blizzard then told Pete
Burnside to watch Wilson and not take his eyes off her that
she was up to something and they would take care of her
later. After the OSHA investigator arrived, Blizzard called
Wilson over to Burnside’s desk and told her that ‘‘they’’
were watching her and warned her not to talk to the OSHA
investigator. Later Wilson was sent to the file room.31
I credit Wilson’s testimony that Blizzard accused her of
‘‘plotting’’ and told Burnside, in Wilson’s presence, that they
would ‘‘take care of her’’ later. Blizzard was certainly con-
siderate to Wilson on May 28 and might have been on the
May 29 as well, but his actions, when Wilson announced on
May 29 that she was all right, are completely in character
with his treatment of employees and with his admitted hos-
tility toward OSHA, its employees, and Talsol employees
who may have been responsible for calling down OSHA on
the head of the Company. I find a violation of Section
8(a)(1) of the Act in Blizzard’s threat to Wilson that ‘‘they’’
would ‘‘take care of her later.’’
i. Incidents of surveillance on the street opposite
the plant
The complaint alleges in section 5(l) that on various dates
in late April and May, Dave Blizzard engaged in surveillance
of employees’ union activity on Devitt Drive near the plant.
In section 5(f), it is alleged that Blizzard, Terry Merrill, John
MacLeod, and Teresa Case engaged in unlawful surveilance
on May 29 on Devitt Drive across from the plant. These two
allegations are treated together here.
I have already recorded in section III,B,2,h, above, Bonnie
Wilson’s description of the actions of Blizzard and Merrill
on May 29. I also note the testimony of Velvie Wood that
she observed Blizzard standing at the end of the driveway
and looking up and down the street for several minutes while
employees and union agents were there. Treasure Chestnut
said she saw Blizzard standing in the driveway and looking
at employees and union agents in or around cars parked
there. Blizzard was also observed going between buildings
on the Company’s property while employees were out on the
street.
The General Counsel has correctly stated the Board’s
views on this are that employees who choose to engage
openly in union activities cannot be heard to complain if
management observes them. EDP Medical Computer Sys-
tems, 284 NLRB 1232 (1987). There would be no violations
here unless the management observers did something ‘‘out of
the ordinary.’’ Here, according to employee witnesses, Bliz-
zard varied his usual routine only by walking down to the
end of the driveway and standing, with folded arms, while
employees and union agents were across the street. I see
nothing ‘‘out of the ordinary’’ in this, company officials
could see all this from inside the plant and the employees
made no effort to conceal their actions from management. I
recommend that these allegations of the complaint be dis-
missed.
j. The April 29 incident
The complaint alleges in paragraph 5(i) that Blizzard
impliedly threatened an employee with unspecified discipline
if the employee continued to talk to a known union adherent.
Betty Bates testified that on April 29, before she became
ill and had to leave the plant, she was pulling a fully loaded
skid (or pallet) out of the aerosol room with a skid jack. Cur-
tis Compton was out in the area where she was taking the
skid. Bates said nothing to Compton, but when she came
back to the aerosol room, Blizzard accused her of ‘‘talking
to Curtis,’’ told her to stay in the aerosol room, and that she
was not to come out of there. In his testimony Blizzard said
nothing about this conversation.
Again I credit Bates. There was no business reason ad-
vanced by Respondent why Bates, in the course or her em-
ployment, could not encounter and talk to another employee
in the course of his employment. From the testimony it was
clear that neither employee interrupted their work. If work
had been interrupted, Blizzard’s reaction, looking at his ac-
tivities here, would have been much more excitable than
merely giving a warning not to talk. I find this action, forbid-
ding one employee to talk to another, even though they were
both known union adherents, a violation of Section 8(a)(1)
of the Act.
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Unexcused absences give employees a ‘‘point’’ for each full
day. Accumulation of nine points results in discharge.
k. The late April incident
Paragraph 5(j) of the complaint alleges that the Company
through Dave Blizzard promised an unspecified benefit to an
employee if that employee voted against the Union.
Pam McNew testified that about 2 or 3 weeks before the
election, Blizzard came up to her while she was working on
the aerosol line night shift. He started helping her with her
work and said to her: ‘‘What can I do to change your mind,
to make you come over to the Company side?’’ She replied,
‘‘Nothing.’’
Blizzard did not mention this conversation in his testi-
mony, although Respondent, in its brief, points to his state-
ment that he ‘‘couldn’t talk about changing jobs within the
Company.’’ He also said that he and she had teased each
other many times during her employment.
I could not find any reference to this allegation in the
General Counsel’s brief.
I have had problems, as noted, with Blizzard’s credibility,
and I think McNew honestly reported what he had said to
her. But in the circumstances, where Blizzard and McNew
had had a little fun in their relationship, and because of the
vague nature, neither threatening or promising, of Blizzard’s
statement as reported by McNew, I will recommend that this
allegation be dismissed.
3. Larry Parsons
Larry Parsons is the packaging superintendent for build-
ings A and B. He had worked for Talsol for 4-1/2 years at
the time of the hearing. Parsons is alleged in the complaint
to have been involved in several violations of the Act.
a. The May 10 incident
The complaint alleges in paragraph 5(c) that the Company
violated Section 8(a)(1) of the Act about May 10 by threat-
ening an employee with loss of a job if the employees se-
lected the Union in that day’s election.
Connie Robinson testified that, on May 10, that she told
Parsons, who was her supervisor, that she had made her
mind up (as to the way she was going to vote). (See sec.
III,B,2,e, above.) About an hour later Parsons called her out-
side the building. They were alone. Parsons said to her that
he hoped she had made up her mind for the Company. She
said it was her own private right how she was going to vote.
He told her she could be ‘‘the hero,’’ that she should think
of Linda Scarborough and Mary Robinson because they both
needed their jobs.
Parsons said in his testimony that Robinson had told him
that when her two married sons had children, she would quit
her job at Talsol to babysit for her grandchildren. She had
also said earlier in the year that her two daugthers-in-law
were pregnant. Parsons said he was referring to her intention
to quit when he told her that she ought to weigh the issue
of her vote differently from other employees. She would not
be there to ‘‘reap benefits or consequences’’ of a union vic-
tory. She should decide on what was best for her fellow em-
ployees, mentioning Mary Robinson, Linda Scarborough, and
Betty Dishion. Parsons denied that he said that Mary Robin-
son or Linda Scarborough, or any employees, might lose
their jobs.
In this case we do not have the total contradictions in tes-
timony that we observed with the incidents above involving
Blizzard and Merrill. Robinson and Parsons are in substantial
agreement about almost everything—the conversation took
place, Parsons spoke to her about her vote but did not ask
her how she was going to vote; he did attempt to persuade
her, because of her (undenied) wish to leave the Company
voluntarily when her grandchildren were born, to vote for the
Company since her coworkers would still be employed after
she was gone.
The one thing she said he said, and which he denied say-
ing, was that Linda and Mary needed their jobs, a statement
denied by Parsons.
This is a close call, but I have found Robinson to be a
candid and frank witness and I find that Parsons did say, as
she testified, that Linda and Mary needed their jobs. I find
this to be an implied threat and a violation of Section 8(a)(1)
of the Act.
b. Another May 10 incident
The complaint alleges in paragraph 5(d) that the Company,
through Parsons and Jim Zimmerman, coercively interrogated
an employee concerning that employee’s union sympathies.
Employee Elaine Jones had worked at Talsol since No-
vember 1987. There is no indication that she worked for or
was active in the union campaign before the election. Jones
testified that Parsons came up to her late in April and asked
her how she thought the vote was going to go. She said she
had no comment and he said he thought the Union would get
in this time.
About a week before the election Parsons called Jones out-
side and said he thought she would be a good observer for
the Company at the election and that she would be honest
and fair. She agreed to serve and Parsons told her that she
should see Company Vice President John MacLeod on elec-
tion day to receive her instructions.
When election day came, however, Jones was again called
outside, this time by Parsons and Jim Zimmerman. Parsons
said to her that since she hadn’t told them that she was 100
percent for the Company, ‘‘we’re going to get someone who
has.’’ Jones accepted this, adding that she didn’t have to tell
them anything. Parsons agreed with this.
Parsons placed the conversation on May 8, but his testi-
mony is in substantial agreement with that of Jones. Parsons
testified that he told her he did not want to hear how she
intended to vote, and Jones agreed with this in her testimony.
Neither party has cited me any authority for its respective
position on this issue. The General Counsel argues that Par-
son’s comments to Jones that she hadn’t told the company
people that she was 100 percent for the Union is implied in-
terrogation of her. I don’t agree. It seems to me that the
Company is entitled to have an observer whose sympathies
are 100 percent with the Company. If this Company does not
want someone who, in Parson’s words, is ‘‘fair and honest’’
they are entitled to reject that person. I will recommend that
this allegation in the complaint be dismissed.
c. Incident of August 19
The complaint alleges in paragraph 5(n) that, on August
19, Larry Parsons threatened an employee with a ‘‘point’’
under the Company’s attendance policy32 for attending a
307TALSOL CORP.
33 See above, sec. III,A of this decision for more on the OSHA
investigation and its ramifications affecting this case.
34 Respondent has represented in argument and in its brief that it
has removed the point and paid Isaac what he would have earned
if he had remained at work on August 19. My findings here do not
depend on this action, however, and questions of backpay should
await the compliance stage of the proceeding. On December 4, how-
ever, Isaac was fired for excessive absentee points, one of which was
this one he received in August. He was immediately reinstated and
that discharge is not alleged in the complaint as a violation of law.
meeting called by OSHA, and in paragraph 7(z) that the
Company proceeded to issue the employee a point and dock
his pay for attending the OSHA meeting.
At the time of this hearing, Al Isaac had worked for the
Company for 14 years. He was an all-round employee who
could perform most jobs in the plant. Isaac had not partici-
pated in any union activity, but in April he was transferred
from day to the night shift, where he remained until after the
election. On the day of the election, Dave Blizzard men-
tioned to Isaac that he heard Isaac wanted to go back on first
shift. Blizzard also asked Isaac if he had voted for the Com-
pany. Isaac said he had, but Blizzard, characteristically, re-
plied by calling Isaac a ‘‘lying ass.’’ After further discussion,
when Isaac said he would sign a sworn affidavit that he had
voted for the Company, Blizzard said they would see about
getting him transferred back to first shift. He was later trans-
ferred back to the day shift.
On May 16, during the OSHA33 investigation, Isaac was
selected as an employee representative to participate in the
OSHA investigations and conferences concerning this inves-
tigation.
In August Isaac was notified by OSHA that there was to
be a meeting at the OSHA office in Sharonville, Ohio, about
3 or 4 miles by road from the plant. Isaac presented the letter
to Parsons and asked if he would get a ‘‘point’’ if he left
the plant to attend the meeting. Parsons told him that com-
pany rules allow an excused absence for response to a sub-
poena, but since this was a letter and not a subpoena, that
the rule did not cover it and Isaac would get a point. Isaac
went to the meeting, was given a point, and was not paid
for the time spent at the OSHA meeting.34
It is my understanding that this allegation involves a viola-
tion of Section 8(a)(1) of the Act, and not Section 8(a)(4).
There is no dispute about what happened here, and I find
that the statement by Parsons that Isaac would receive a
point if he attended the meeting. The award of the point and
the nonpayment of wages are all violations of Isaac’s right
to engage in protected concerted activity under Sections 7
and 8(a)(1) of the Act. Unico Replacement Parts, 281 NLRB
309 (1986).
4. Jim Zimmerman
Zimmerman has been the superintendent of manufacturing
since December 1990, and held that position throughout the
events which make up this case.
a. The March 12 incident
The complaint alleges in paragraph 5(h) that Respondent
threatened an employee that any knowledge of union activity
could cost the employee his job.
Ernest V.C. Fultz was employed by the Company first in
September 1990 as an apprentice paintmaker. He quit in Jan-
uary 1991, but came back later in that month and was re-
hired as a general laborer and janitor. Fultz attended the first
union meeting on March 12, signed a card, and took cards
for others to sign. He ate lunch every day with Curtis Comp-
ton in Compton’s van parked across the street from the plant
(the smokers’ side of the street).
On March 12 Fultz had a conversation about the Union
with Jim Zimmerman. According to Fultz, Zimmerman had
approached him while he was cleaning the blades of a mix-
ing tank. Zimmerman asked him if he knew anything about
the Union, and Fultz replied that he did not ‘‘at that point
in time.’’ Zimmerman then said, ‘‘Keep it that way. If not,
it could cost you your job.’’
Zimmerman’s version of the incident was that he had one
conversation about the Union with Fultz sometime before
April. Zimmerman said that Fultz started the conversation by
saying to Zimmerman that he wanted Zimmerman to know
that he wasn’t the least bit interested in the Union. Zimmer-
man replied that it was up to him, it was his choice. Zimmer-
man denied that he ever asked Fultz whether he knew about
the Union, or that he told Fultz that if he did not know about
the Union he should keep it that way, or that knowledge
about the Union could cost him his job.
Fultz is young but his demeanor gave an impression of
sincerity. He had left the Company and was hired back,
which speaks well for the quality of his work. Blizzard, who
rehired him, told Fultz that he liked his work performance.
I have a problem with Fultz’ recollection that the conversa-
tion with Zimmerman took place on the day of the first
union meeting, which must have occurred late in the after-
noon or in the evening, but I can and do infer that there was
union talk around the plant even before that first meeting.
There must have been some notice of the March 12 union
meeting distributed, if only by word of mouth, so that people
would know where and when the meeting was going to be
held. I have another problem with Fultz’ statement that he
had his lunch daily in Compton’s van. I recall that Compton
was upset, and the General Counsel has made an allegation
in this complaint about Compton parking his van at the side
of the plant and being forced to move it down to the back
of the plant. But this incident happened in March, and
Compton was not required to move the van until April 19.
Zimmerman was not a credible witness. He appeared to
me to have a furtive, less than frank manner, and like other
company witnesses seemed to confine his answers to mono-
syllabic yeses or nos in response to (unobjected to) leading
questions. If the question is not objected to, the answer cer-
tainly can go into the record, but the weight accorded such
answers is traditionally, and is here, much less than if the an-
swers were not suggested in the questions.
I find that Zimmerman’s remarks to Fultz on March 12
constitute a threat in violation of Section 8(a)(1) of the Act.
b. The April 15 incident
The complaint alleges in paragraph 5(e) that Zimmerman
threatened an employee with discharge if the employee en-
gaged in union activities.
Fultz testified on another conversation with Zimmerman at
some time before his discharge, which occurred on April 18.
I accept the General Counsel’s assertion that this conversa-
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Since there is so much in this case which arises out of the his-
tory and functions of the aerosol line, the transfer of employees to
the line, and the treatment of employees working on the line, includ-
ing the allegations in par. 5(k) of the complaint, I will discuss all
of the issues arising out of these events in one section, III,F, below.
The two items discussed in this section can be separated from the
overall treatment of employees on the aerosol line.
36 The Union was certified on August 12, 1991, and stewards had
been elected or appointed.
tion was about April 15. According to Fultz, he was talking
to Zimmerman about some company literature involving the
Union. He asked Zimmerman why the literature had only
what the Company wanted them to hear. He added ‘‘at least
the Union doesn’t lie to us,’’ and said that he wasn’t sure,
but he was looking for another job. Zimmerman asked him
who paid him, the Company or the Union? Fultz replied that
the Company did, ‘‘but just barely.’’
Zimmerman did not testify about this conversation.
On the basis of Fultz’ testimony alone, I do not believe
that there is any showing that Zimmerman said anything
which would constitute a threat, as alleged in the complaint.
All Zimmerman asked was who paid Fultz. There is no
threat in this question, certainly no threat of discharge. I,
therefore, recommend that this allegation of the complaint be
dismissed.
5. Conrad (Pete) Burnside
Pete Burnside was the supervisor over the aerosol line. He
was employed when the line was installed in mid-1990 and
was still there when he testified here on December 8, 1992.35
a. The August 30 incident
Paragraphs 5(m)(i) and (ii) allege that on August 30 Re-
spondent, by Pete Burnside, denied a request by Tina
Pendergrass to be represented by the Union during an inter-
view, and that Pendergrass had reasonable cause to believe
that discipline would result from the interview.
Pendergrass testified that on August 30 she was working
on the aerosol line and she had to use the restroom. She told
the quality control employee (who filled in for emergencies
on the line when employees felt ill or had to go to the rest-
room) of her problem and that person looked for Burnside,
couldn’t find him and returned, relieving Pendergrass and
asking her to look for Burnside. Pendergrass couldn’t see
him after looking all over the aerosol room. She returned and
told the quality control person, and the latter told her to go
ahead to the restroom.
When Pendergrass came out of the restroom, there was
Burnside, yelling at her and saying that he was ‘‘going to
get rid of my ass.’’ He told her again that he was going to
get rid of her ‘‘ass’’ she wasn’t allowed to use the restroom;
that he ran that place; and she was going to be written up.
She replied that she was going to tell OSHA and the Union.
Pendergrass went back to work. Burnside came by and
told her to go to the foreman’s office. Before she went in
to the office she asked for union representation36 and was re-
fused. Burnside told her that the Union didn’t run this place,
they did, and that things were not going to change. Larry
Parsons, who was in the room, told Burnside to wait a
minute. Pendergrass said she heard Parsons calling John
MacLeod over the intercom. Parsons then came back and
said she wasn’t entitled to union representation. This was
not, Parsons said, an investigation. She had already been
found guilty.
On the next day, Pendergrass got a written warning. She
disagreed with the conclusion and wrote her dissent in the
warning. The matter then went, according to company proce-
dure noted in this case, to Terry Merrill. Merrill agreed with
the finding of violation of leaving the work area without per-
mission, and ordered a 3-day suspension for Pendergrass.
Burnside testified about this incident. He was shown a
copy of the Employee Discipline Report (G.C. Exh. 44) and
his entire testimony about the incident was as follows:
Q. (By Respondent’s counsel) I’ll show you General
Counsel’s Exhibit 44. Can you identify that?
A. Yes, I can.
Q. What is that?
A. This is a disciplinary report for Tina
Pendergrass—also leaving work area without permis-
sion.
Q. Is this the same problem you had with her before
that led to the earlier discipline?
A. Yes, it is.
Q. Did her union activities or sympathies have any-
thing to do with your Decision to issue that?
A. No, they did not.
Burnside did not testify about Pendergrass’ request for
union representation, nor did he mention what he had said
to her before bringing her into his office. Neither Parsons nor
MacLeod testified about this incident.
In its brief Respondent admits that ‘‘a technical violation
probably occurred’’ in this interview. The Company’s brief
asserts that ‘‘although the Company had finished its inves-
tigation, the interview might have been technically investiga-
tory because the Company asked Pendergrass to sign the dis-
ciplinary form and gave her the opportunity to write her
comments.’’
My own feeling is that the interview was investigatory be-
cause the form which was used by both Burnside and, the
next day, by Pendergrass was not even prepared at the time
of the interview. Thus, the interview was a forum for the lay-
ing of a charge, in this case, leaving the work area without
permission and an opportunity for the charged employee to
make an explanation. Moreover, no discipline was ever im-
posed, from my viewing of the forms introduced in this hear-
ing, until Terry Merrill determined what discipline would be
imposed. Thus, any stage up to Merrill’s decision can be
considered merely part of the investigation. I find that in
these circumstances, the mere statement by a supervisor that
an employee is going to be written up does not constitute a
decision to discipline, and the employee in such a situation
is entitled to union representation during a subsequent inter-
view. NLRB v. Weingarten, 420 U.S. 251 (1975); Baton
Rouge Water Works Co., 246 NLRB 995 (1979). The dis-
ciplinary action taken, and the denial of union representation,
are both violations of Section 8(a)(1) of the Act.
b. The November incident
The complaint alleges in paragraph 5(o) that the Respond-
ent, through Pete Burnside, threatened an employee with dis-
309TALSOL CORP.
37 In fact, based on my findings, below, that the Company did ma-
nipulate the speed of the line, I believe that Broadus, who, after all,
had over 7 months of experience working on this same line from
August 1990 to April 1991, could estimate the relative speed of the
line by her experienced observation.
charge because the employee was a known union sym-
pathizer.
Betty Bates, after some adventures which will be re-
counted below, was back working on the aerosol line in No-
vember 1991. She was the last of the 10 employees named
as in-plant organizers in letters from Jim Newport to the
Company in March and April. Every one except Bates was
gone by this time.
Bates did not remember the exact dates in November, but
she said that on Fridays before the weekends Burnside, ‘‘al-
ways’’ said to her that over the weekend he suggested she
buy the Cincinnati Enquirer and find herself another job be-
cause ‘‘you’re just not going to make it around here.’’
Burnside did not recall whether Bates was working in the
aerosol room in November, but denied he ever told her to
look for want ads in the newspaper.
I credit Bates in this instance. Burnside is not very reliable
on what he might have said to Bates in November, if he did
not know whether she was working for him at that time. As
far as Bates is concerned, I have tried to lay out my views
on her credibility above, in section III,B,2,d. I found her
credible then, and I find her credible now. I find that
Burnside’s remarks were threatening and coercive and vio-
lated Section 8(a)(1) of the Act.
C. Loyalty and False Statements
1. Discipline of Geraldine Broadus
Paragraph 5(g)(i) of the complaint, as amended at the
hearing, alleges that Respondent has had, since March 1,
1991, a rule prohibiting employees from making false or ma-
licious statements about the Company, a company product,
or an employee. Paragraph 5(g)(iii) alleges that enforcement
of that rule since May 22, 1991, was intended to discourage
employees from union activities or other protected concerted
activities.
Geraldine Broadus went to work for Talsol in August
1990. She worked in the aerosol room for about 7 months,
then transferred out to the hardening line and towel strip. She
returned to the aerosol line in May 1991, working on the be-
ginning of the line, putting valve stems in, and on the end
of the line, putting finished cans in cartons. Vicky (last name
unknown to the witness) was putting value stems in the cans
at one end, and Pam McNew was working the other end of
the line, putting cans in cartons. On May 22 Broadus said
she noticed that the line was running ‘‘really fast.’’ McNew
became ill and was replaced by an employee named
Michelle. Broadus continued working back and forth from
the beginning to the end of the line. She noticed that the line
was running slower than it had been when McNew was
working.
About the time that Michelle took Pam McNew’s place on
the line, Blizzard came to Broadus and asked her if she was
ready to learn the job of putting cans in boxes. Broadus told
him, ‘‘yes, at that speed.’’ Blizzard, as was his habit, reacted
defensively. He asked Broadus, ‘‘Are you trying to say the
line is moving slower now?’’ She said it was and he asked
how she could tell. She told him that she could tell by look-
ing at the line.
Blizzard then took Broadus over to the beginning of the
line and asked Charles (Bailey), the mechanic, Debbie, the
quality control person, and Pete Burnside, if the line had
slowed down. They all said no. Blizzard then told Burnside
that Broadus would have to be disciplined.
At the end of the day Broadus was called into Burnside’s
office. He read from a disciplinary report that Blizzard had
said she was spreading ‘‘malicious lies’’ about the Company
in violation of company rules (group 2, number 14). This
rule provides for counseling or, depending on circumstances
and an employee’s prior record, more serious disciplinary ac-
tion, up to and including discharge, for a number of offenses
including number 14, ‘‘making or publishing of deliberately
false or misleading statements about the Company, a Com-
pany product or an employee.’’ She was suspended for 3
days.
Subsequently, Broadus, or someone acting in her behalf,
filed a complaint of some kind with OSHA which was then
conducting an investigation of company safety practices. As
a result, a settlement was reached by OSHA and the Com-
pany, the suspension was removed from her file, and she re-
ceived backpay for the days she was off.
There does not appear to be any disagreement that the rule
is a permissible exercise of management authority. Any em-
ployer has a right to maintain plant discipline and to bar in-
flammatory material from its premises, NLRB v. Electrical
Workers Local 1229 (Jefferson Standard Broadcasting Co.),
346 U.S. 464 (1953); Maryland Drydock Co. v. NLRB, 183
F.2d 538 (4th Cir. 1950).
Further, the facts here show that Broadus had not partici-
pated in any union activity. There is no evidence that the Re-
spondent knew or suspected she had participated in union ac-
tivities. In response to a question on cross-examination
Broadus admitted that she was not acting in concert with
other employees, or for the benefit of other employees.
Well, why did Blizzard get so excited about what appears
to be an innocuous opinion, casually stated in response to
Blizzard’s question as to whether Broadus could handle the
job of taking cans off the end of the line and packing them
in boxes? There does not appear to be anything malicious
about the statement. If Broadus was mistaken about the line
speed, her comment was not deliberatly false.37
It seems to me that Blizzard overreacted here, as he did
in so many other instances, and I think it can properly be
inferred that the target of his overreaction was not primarily
Broadus, who saw what was happening, but, more impor-
tantly, to try to head off any speculation about the speed of
the line and to discourage any employee from making any
comments, public or private, about variations in line speed.
Therefore, I conclude that Blizzard’s order of a warning
and suspension against Broadus was really designed as a
warning against any union activity or protected, concerted
activity arising out of Respondent’s manipulation of the
speed of the aerosol line, and constituted a violation of Sec-
tion 8(a)(1).
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 I do not believe this assertion, given in response to a leading
question, is entitled to much weight. There was no indication of
when, or where, or under what circumstances the statement was
made, if it was made at all. There is no evidence that Greene was
anything more than a laboratory technician.
39 The conclusion in Respondent’s brief that Greene ‘‘knew that
the Company considered her part of management’’ is not borne out
by the record here. Nor does the record indicate that she was either
a managerial or a confidential employee, PTI Communications, 308
NLRB 918 (1992).
40 See sec. III,B,2,b, above. The day Greene was fired was the
same day Blizzard had a verbal row with Curtis Compton over some
connection Compton had with Reed and a complaint by Reed about
some relationship between Zimmerman and Teresa Case. Since nei-
ther Reed nor Case testified we will never know the details of this
complex and mysterious set of events.
2. Discharge of Teresa Greene
The complaint alleges in paragraph 7(r) that Teresa Greene
was discharged on April 26 because of her protected con-
certed activities.
Teresa Greene was hired in September 1990 as a salaried
quality control technician. She worked in the laboratory
under Teresa Case, a chemist, who also acted as the Compa-
ny’s safety director. Greene’s functions involved the testing
of batches of paint made by the Company’s paintmakers.
In her work in the laboratory, she was in a position to hear
conversations between people who came into the laboratory,
Teresa Case, of course, and also Blizzard, and the super-
visors, Zimmerman and Parsons. I do not doubt that some of
these conversations concerned paintmakers, and possibly
other employees, and I am sure that these conversations
which she could overhear concerned personnel matters. At
one point during the union campaign Greene testified that
Zimmerman and Parsons were discussing a management
meeting which they had just come from, and she recalled
that Zimmerman commented to Parsons that ‘‘now they want
us to press down on the people and write them up whenever
we can.’’ Parsons replied, ‘‘Yeah, it’s just something we got
to do.’’
Blizzard admitted that Greene was in a position to hear
conversations about personnel matters but he said that he be-
lieved she was part of management, and that he had told her
he expected her to keep these conversations confidential.38
Blizzard also said that she shouldn’t take news of personnel
matters she had heard in the lab to employees.39
Greene made friends with the paintmakers, whose work
she checked, and with whom she must have had numerous
contacts during the workday. In late February or early
March, Greene was planning to go out after work for a drink
with paintmakers Rick Ward, Dan Reed, Curtis Compton,
and another employee identified only as ‘‘Pam.’’ Teresa
Case asked Greene if she was going. Greene asked Case if
she was going and asked her if she wanted to join them.
Case replied that it was not a good idea, that it showed a
lack of ‘‘leadership ability’’ to associate with hourly paid
employees and that it could jeopardize future raises or her
job. Greene said that what she did after 5 o’clock was her
own business.
Rick Ward was fired about March 20 for excessive absen-
teeism. He had earned nine points in the Company’s absen-
teeism calender. Greene stated that she began dating Ward
after that, and Ward would come by to pick her up or drop
her off at the plant. At one point Zimmerman commented to
her that they had seen Ward dropping her off. Then a couple
of days later, she received a copy of a memorandum ad-
dressed to ‘‘all hourly employees’’ that no former employees
were to be on company property; there was to be no drop-
ping employees off on the property; this had to be done on
the street.
During April, Greene checked a batch of paint made by
Dan Reed and noted that it was ‘‘off’’ in its color. The rem-
edy for this error was to double the batch using the correct
amount of color. Greene asked Case what she should do, and
Case told her that she should take care of it with Reed.
Before Greene went out to the plant with instructions for
Reed, Zimmerman came into the lab. He asked if Reed had
‘‘messed up’’ the batch on purpose. Greene said no, it could
easily have happened because of the proportions in the mix-
ture. Zimmerman then said if Reed had done it on purpose
he would write him up. Greene then went out and told Reed
to be more careful ‘‘because they’re looking to write you
up.’’
About 2 weeks later, on April 26, Reed was resigning and
Greene was summoned to Blizzard’s office. Teresa Case was
also there. According to Greene, Blizzard asked her what she
had said to Reed. Greene said she told him to be more care-
ful. Blizzard then said that he could no longer trust her and
that he was going to write her up and give her a 3-day sus-
pension.
Later that day Greene was called back to Blizzard’s office,
where Teresa Case was also present, and Blizzard told
Greene that he was going to fire her. She was a company
employee and should be for the Company and not for the
plant people. He couldn’t trust her and she ‘‘probably single-
handedly made the Union election go for the Union.’’
Greene asked Blizzard how he had found out about all this
and he told her that Reed had filed some kind of a discrimi-
nation suit against Jim Zimmerman for the incident.40
Blizzard denied that the Union had anything to do with the
discharge of Greene, and he denied he mentioned anything
about her causing the Union to win the election.
The record here shows that Greene was a rank-and-file
employee. Even though she was salaried and not a member
of the bargaining unit I have found to be appropriate here,
she possessed none of the indicia of management or super-
visory employees and none of the indicia of a confidential
employee. She was not part of the personnel department and
had no functions which confidential employees commonly
share, such as maintenance of records or participation in dis-
ciplinary or evaluation procedures. Thus, unless there were
particular circumstances in her position as a lab technician
which would require her to keep certain information such as
trade secrets, formulas, or personnel matters secret, there
would be no reason why she should not have alerted Dan
Reed to be careful in his work. There appear to be no such
special circumstances. Case’s warnings, whether they came
before or after the advent of the Union, seem to be more of
an implied imposition of a military-style no-fraternization
ban between officers and enlisted personnel, an elitist view
of the relationship between staff employees in the office and
line employees in the plant. There was nothing in that warn-
ing to establish no-talking, as opposed to no-fraternization
barriers.
311TALSOL CORP.
41 Teresa Case, who could have answered these questions, was not
called as a witness.
42 Blizzard denied that this conversation took place. He pointed out
that he didn’t talk to Bates during this union campaign because she
had been a ‘‘snitch’’ for the Company last time and he was afraid
to say anything to her. I note that I have found that he did talk to
her on at least one occasion about the Union and I note, further, that
Bates placed the conversation about Fultz at a time before the Com-
pany was notified that she was working for the Union. I do not cred-
it Blizzard’s denial that the Fultz remark was made.
43 Fultz’ job included cleaning around the area where paintmakers
were working. He knew the paintmakers because he had been a
trainee paintmaker in his first tour of duty at Talsol.
Similarly, Blizzard’s rote responses to leading questions
give no indication that Greene may have had explained to
her, either on hire or during training or at any other time
during her tenure, that the Company had any feelings at all
that she should have kept her knowledge of conversations or
decisions confidential.41
In the absence of probative and credible evidence that
Greene was made aware that talk in the lab was confidential,
Blizzard, Zimmerman, Parsons, or Case have only them-
selves to blame if they talked indiscreetly in the lab where
Greene could hear them, and Greene then reported what they
said about people in the plant to those people.
I found Greene to be a candid and credible witness. She
was straightforward with Blizzard as he testified that she
was. She did not think she had done anything wrong. If any-
thing, an admonition to a paintmaker to be more careful in
his formulation of paint would seem to be helpful rather than
harmful to the Company. If she told Reed that the Company
was looking to write him up, then Zimmerman and Parsons
should not have aired their instructions from management
openly in the lab.
Having found that Greene was not a confidential em-
ployee, PTI Communications, supra, and that she was under
no policy or directive from the Company to restrict her talk-
ing about things she heard in the lab, I now have to answer
the question of whether her discharge, unfair as it may have
been, was a violation of the Act.
The answer to this lies in Blizzard’s outburst at the dis-
charge meeting on April 26. Reed’s resignation sent a shock
wave through management. I have noted Blizzard’s frenzied
encounter with Curtis Compton on the same day, after a
meeting with Reed and Terry Merrill. I do not know whether
the latter meeting took place after the morning session be-
tween Blizzard, Case, and Greene and their afternoon ses-
sion, but I do know from the Compton situation that Blizzard
was very disturbed, blaming Compton and, later, Greene, for
Reed’s resignation. In considering all of Blizzard’s testi-
mony, I know how deeply he felt about this union situation,
and I find it completely logical that he would couple
Greene’s activity with the Union’s election campaign. I find
that he fired Greene for her activity, as he considered it, in
favor of the Union, and I find that the discharge violated
Section 8(a)(1) and (3) of the Act.
D. Some Discharges
1. Ernest Fultz
The complaint alleges in paragraph 7(d) that the Respond-
ent discharged Ernest Fultz because he joined or assisted the
Union and engaged in protected concerted activities.
As I have already found in section III,B,4,a, above, Ernest
V.C. Fultz had been rehired by Talsol in late January 1991.
He was employed there from September 1990 through early
January 1991, during which period he acquired three attend-
ance points. I have also found that Fultz engaged in union
activity, attending meetings, signing a union authorization
card, and handing out cards to other employees. I have also
found that in March, Jim Zimmerman threatened Fultz with
loss of his job if he became involved with the Union.
In another complaint allegation, I did not find a violation
of law in a conversation between Fultz and Zimmerman on
April 15, but I do find, now, that Fultz’ remarks in that con-
versation: ‘‘at least the Union doesn’t lie to us’’ during a dis-
cussion of Company literature; and Fultz’ response to Zim-
merman’s question of whether Fultz was paid by the Com-
pany or the Union, that the Company did, ‘‘but just barely’’
gave Zimmerman a clear indication that Fultz’ sympathies
lay with the Union and not the Company.
Reinforcing the evidence that the Company was aware of
Fultz’ union activity is a report by Betty Bates of a conversa-
tion she had with Dave Blizzard, significantly, occurring be-
fore Bates’ name was included in a list of in-plant union sup-
porters on April 15. In this conversation Blizzard told Bates
that the Union was going nowhere, and that the only people
he believed who were active in manufacturing were Comp-
ton, Fultz, and Brewer. He went on to say that all three of
these had problems with the point system and would prob-
ably be ‘‘gone on points before it gets off the ground, and
Fultz, he’s kind of crazy, nobody pays him any attention,
anyway.42 I find that Fultz did engage in union activity and
that Blizzard not only knew about it, but was assuming that
Fultz would remove himself as a union supporter in the
Company by accumulating enough points to warrant dis-
charge under company rules.
In fact, Fultz did accumulate seven points (three from his
prior time at the Company, and four more from the end of
January to mid-April), a circumstance which triggered an
automatic disciplinary warning from management that if he
got two more points he would be discharged. Zimmerman
prepared the warning and handed it to Fultz on April 17. At
the same time Zimmerman sent a copy of the warning to
Blizzard in accordance with company practice.
Fultz was, at this time, still a probationary employee, ac-
cording to Blizzard. Fultz had served a probationary period
in his first period with the Company, but he had to serve an-
other in the second employment. Blizzard noted Fultz’ seven
points and the fact that he was a probationary employee. He
called Zimmerman in and asked him if there were any prob-
lems with Fultz. Zimmerman said there were, Fultz was
interfering with the paintmakers.43 So Blizzard and Zimmer-
man decided to ‘‘use our prerogative’’ to discharge him.
Zimmerman testified that he had problems with Fultz con-
versing with other employees and keeping the paintmakers
from their work. Zimmerman said Fultz was not performing
his own job. He had talked to Fultz about this, telling him
to do his job and leave other people alone, or he would dis-
cipline him. Both Blizzard and Zimmerman denied that they
knew of Fultz’ union activity or that union activity had any-
thing to do with his discharge.
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), affd. in principle NLRB
v. Transportation Management Corp., 462 U.S. 383 (1983).
45 There would have been very little logic in issuing a warning if
Fultz was going to be discharged for having accumulated the seven
points.
46 Respondent may have broad discretion to discharge a probation-
ary employee for any reason, or no reason, but not for a discrimina-
tory reason.
47 See, above, sec. III,B,2,b and c.
48 Compton testified that he discussed his paintmaking abilities
with Zimmerman several times, the latest in May and that Zimmer-
man had told him there were no problems with his abilities as a
paintmaker.
Fultz testified that he had received no complaints from
Zimmerman and no unfavorable comments about his work.
But, on cross-examination Fultz did admit that Zimmerman
angrily told him not to attempt to work with the paintmakers
and also threatened to fire Fultz if he saw him talking to the
paintmakers again. There is, however, no evidence that Zim-
merman ever observed Fultz, after that warning, talking to
paintmakers.
I have found, based on Fultz’ conversations with Zimmer-
man, and on Blizzard’s admissions to Betty Bates, that the
Company was aware of Fultz’ union sympathies. Fultz’
union activities are undenied. Given the strong expressions of
hostility to the Union and the numerous findings of threats
and coercion which I have found, I find that the General
Counsel has established a prima facie case that Fultz’ dis-
charge was made in retaliation for his union sympathies and
activities under the Board’s Wright Line doctrine.44
Respondent’s defense to this allegation depends in part on
an argument that Fultz was not a credible witness. I had
some problems with that, but I find that he was credible even
though, as with many witnesses here, there are minor dis-
crepancies between what they said in their affidavits, and
their testimony at the hearing. I have generally resolved these
discrepancies in favor of my impressions of the witnesses as
they testified. This has led to my crediting of Fultz based on
his demeanor on the witness stand. I have considerable doubt
about Blizzard and Zimmerman.
In this case, Fultz’ attendance was not good. In line with
company procedure he was warned that two more absences
would result in his discharge. Beyond that, there is the ques-
tion of Fultz’ work performance. He had worked as a helper
or trainee to the paintmakers before and Blizzard apparently
had no problems with his work when he rehired him. Fultz
assumed, maybe mistakenly, that he was being rehired in that
same job. He was disabused of that idea when Zimmerman
ordered him to stop helping the paintmakers. But I find it
difficult to understand how Zimmerman could reasonably ex-
pect Fultz to do cleanup and janitorial work around the
paintmakers’ work area without being allowed to speak with
them. The order not to talk could more logically have arisen
out of the Respondent’s policy, as expressed to Compton,
Brewer, Bates, and others, to prevent talking between known
union adherents and other employees.
If the seven points, in themselves, would not have war-
ranted discharge,45 then the talking to other employees must
have been the deciding reason. Since I have found the Com-
pany’s rules on talking between employees were imposed
during the union campaign to discourage union activity, I
find that that reason, in itself is discriminating, and the dis-
charge of Fultz based on that reason is discriminatory and a
violation of Section 8(a)(1) and (3) of the Act.46
2. Curtis Compton47
The complaint alleges in paragraphs 7(i) and (j) that the
Respondent transferred Compton to the warehouse on June
10 and on June 25 reduced his pay and caused his termi-
nation.
Compton was hired as a paintmaker on August 20, 1990.
According to his testimony he was given little training. Once
when he had a problem he asked Dave Blizzard what to do,
Blizzard curtly informed him to see one of the other
paintmakers and not to bother him. Toward the end of Octo-
ber, Compton was mixing a batch of hardener and apparently
did something wrong, because the mixture turned hard and
waxy. He went to two other paintmakers, Louis Clough and
Dan Reed, and they managed to fix it, but Blizzard found
out about it and gave Compton a 3-day suspension.
After that Compton served out his probationary period and
received a raise. In March 1991, he became active in the
Union, and was identified as an in-plant organizer on the
first letter from Jim Newport to Terry Merrill dated March
25. I have recounted, above, the anger that Blizzard dis-
played toward Compton and the encounters between them on
April 26 and 29. Despite Blizzard’s allegations about Comp-
ton’s taking more than 2 hours to do a 45-minute job, and
being a ‘‘lazy bum,’’ there are no disciplinary warnings in
Compton’s file after the November 1990 suspension.48
Compton acted as the Union’s observer at the election held
on May 10.
On June 10 Jim Zimmerman and Chris Dixon called
Compton in to the office and told him he was being reas-
signed to the warehouse, a few minutes walk around the cor-
ner on State Route 747. They told him they needed help in
locating and putting materials in an orderly fashion, as in a
regular warehouse. His pay would remain the same. Comp-
ton agreed—and no other reason for the move was men-
tioned. On June 17 Dixon, who was in charge of the ware-
house told Compton that he would be there permanently, at
least until they got the warehouse in order. His wages would
remain the same.
Then, on June 25, Dixon and Larry Parsons came to
Compton who was working on a towmotor. They took him
back to the main warehouse area and Dixon read from a
sheet of paper that Compton’s wages had been cut $2 per
hour because that was warehouseman’s rate, that he had
messed up some batches of paint and that they had put him
in the warehouse until they figured out what they could do
with him.
Compton said this wasn’t right, that he hadn’t messed up
any paint. Compton and Dixon discussed whether or not the
Company could do that, Parsons said nothing, and Compton
walked away. About 15 or 20 minutes later Compton again
discussed this matter with Dixon. Parsons had left by that
time. Dixon merely said that he did what he was told to do.
Compton again complained that it was unfair, that he
couldn’t work for $6 an hour, and finally, announced that he
quit and that he would ‘‘see them in Court.’’ He left at 10:09
a.m.
313TALSOL CORP.
49 In view of the fact that this case has become one of Compton’s
‘‘future endeavors,’’ Merrill might like to revise his valediction.
50 An abbreviation for diabutyltindilorate.
51 The formulas are calculated by Blizzard, or by Tom Miller, de-
scribed as a paint formulator.
52 In preparing Glow there is a total of 12 ingredients in the mix-
ture.
53 Blizzard testified that these notations are unreliable, but they do
not concern us here.
54 Blizzard testified that this number, rather than the computer
printed number, is the number the Company uses to identify the
batches and the batch tickets. The computer code is used when ref-
erence to the computer in necessary.
About 3 p.m. that day Compton had some second thoughts
about quitting and he called Dixon, telling him that he had
been upset, but he had a change of heart and would like to
come back. He had been upset and he’d like to come back
to work. Dixon said that he couldn’t tell him yes or no, but
he had to check with management and for Compton to get
in touch the next day. Dixon did say that they had not re-
placed him yet.
The next day, June 26, Compton arrived at the warehouse
about 7 o’clock. Dixon got there soon after and had a young
man in his truck. Compton asked if he could go back to
work, and Dixon said no, they had already replaced him.
Under date of June 26, Dixon wrote to Compton ‘‘con-
firming our conversation on Tuesday, June 25, 1991, you
have quit your position and your quit is accepted.’’ Comp-
ton, in turn, wrote a letter to Dixon dated June 28 outlining
the facts as listed above, his quitting, his call back that after-
noon and his reporting to work on June 26. Concluding,
Compton stated that since the Company refused to take him
back on June 26, he considered himself fired, but he re-
mained ready to return to work at the Company’s conven-
ience.
This letter brought an answer from Terry Merrill dated
July 1. Merrill recapitulated Compton’s actions on June 25,
including Compton’s farewell, that he would see them in
court. Merrill then stated, ‘‘Mr. Compton, no coercion or
threats were made to you; you simply quit, clocked out, and
left Talsol’s premises. Mr. Compton, your position has been
filled and all of us at Talsol wish you well in all future en-
deavors.’’49
Aside from the question of whether Compton just quit, or
whether his resignation was the result of a constructive dis-
charge caused by company action, which will be discussed
later in this section, the critical issue is whether Compton’s
work as a paintmaker was so deficient as to render him unfit
to continue in that position.
Dave Blizzard testified that he was responsible for moving
Compton out of paint making in June 1991. Blizzard become
involved when the Company received complaints from cus-
tomers about company products not drying according to
specification.
The products involved were a clear coat sold with the
trade name of ‘‘Glow,’’ and a companion product ‘‘U-2
Hardener.’’ These products are used primarily by auto body
shops to paint automobiles. After the surface to be painted
is cleaned and primed, equal parts of Glow and U-2 are
mixed together and applied to the car. This treatment is de-
signed to supply a deep gloss, and resistance to the sun, to
chemicals of various kinds and to gasoline, insects, or bird
droppings. Glow contains a product referred to as ‘‘tin’’50
accelerator or catalyst which is designed to work with the U-
2 hardener to dry like a baked-on product, to a hard, clean
finish.
Glow is made in batches of 300 gallons, using what Bliz-
zard described as 100 percent tin catalyst. U-2 is made in
batches of about 165 gallons. Both these products are made
by paintmakers. The paintmakers receive a formula51 from a
supervisor, together with any verbal instructions necessary.
The formula is printed on a paper called a ‘‘batch ticket’’
prepared by computer. The ticket contains a list of different
chemical substances and quantities of the substances to be
used in preparing the mixture.52 The computer also prints be-
side the names of each material a notation if the supplies of
product need to be checked, or held, or are in order.53 When
the batch ticket is given to the paintmaker there is a series
of numbers, one to the left of each substance, showing the
paintmaker the exact order for adding that substance to the
mix.
Each batch ticket is imprinted with a batch number in the
upper righthand corner. There is also a date code using the
total number of days in the year for the first three figures
and the last numeral of the current calendar year for the
fourth number. For example, a batch made on October 28,
1990 (R. Exh., p. 4) would have a handwritten number 2710
standing for the 271st day of the year 1990.54 The
paintmaker’s name is also written on the upper right-hand
corner and the date the batch was made, in uncoded num-
bers, such as ‘‘9-28-90.’’
The Company also uses what is called a shipping code or
packaging date code, which is placed on the outside of each
container of paint shipped out of the plant.
When the batch is completed, the paintmaker takes a sam-
ple of the batch as prepared to the laboratory. The sample
is tested and, if approved, it is retained in the lab. The batch
ticket is kept in a book in the foreman’s office next to the
lab.
On May 30, 1991, the Company received a complaint
from a customer in Florida, a wholesaler of Talsol’s prod-
ucts. The complaint alleged that two shops had complained
that after using some of the Glow, U-2 mixture, the result
was still tacky after 4 days, when it should have dried over-
night. The batch numbers referred to in this complaint were
the packaging numbers. According to Blizzard, they could
back track from these packaging numbers to locate the origi-
nal batch samples in the lab. Doing this, the manufacturing
batch number for the Glow would be 451, manufactured on
February 14, 1991, and for the U-2, 0661. Then they com-
pared the drying qualities of the batch samples with standard
samples maintained in the lab to see if they could see what
the problem was. These tests indicted no problems either
with the Glow or the hardener.
Two other complaints were received about this same time.
One, undated, was introduced as two pages of illegible notes
in Blizzard’s handwriting, but was identified by Blizzard as
being from a customer named Don Rocco in Boston com-
plaining about hardening times in what Blizzard identified as
batch No. 431 (manufacturing number) of Glow which would
have been made on February 12, 1991. The second complaint
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 His area code is shown on the complaint as 319 which is in
eastern Iowa.
56 This was, as Blizzard admitted, an ‘‘educated guess.’’ There
were two versions of the tin catalyst, one, the 100 percent tin, was
used for Glow, and the other, a 10 percent tin, for other products.
57 Which really refer to four separate batches. Part of the problem
here is that Blizzard shifted from using manufacturing numbers to
using packaging numbers to refer to the batches he was talking or
writing about. For example, after referring to manufacturing batch
numbers to show how he made his tests, Blizzard switched to pack-
aging batch numbers in his note to Merrill on June 13.
58 This was the batch that caused Compton’s suspension.
came from a customer named Terry Bloomquist,55 dated
June 5, 1991, and merely advised Talsol that he had com-
plaints on Glow and U-2, no specifics given. The batches
were identified as 431 for the Glow (manufacturing number)
and 3219 for the U-2. Batch 431 of Glow would have been
made on February 12, 1991.
Facing these two new complaints, Blizzard tried to figure
out what was going wrong. As he put it
knowing the product, the only thing that, in the product
that could slow down the curing time would be the
shortage of catalyst. So I presumed probably the most
likely way to be short of the catalyst was for someone
to have made a mistake and used the 10 percent cata-
lyst rather than the 100 percent catalyst in making the
product.56 I got the batch, I got the gallon out of stock
and I poured a quart of it and I presumed that the quart
had the 10 percent version of catalyst and doctored it
till it would have been correct if it did have (the 100
percent) version.
After Blizzard ran this test on batch 431, he checked the
batch ticket and determined that Compton had made the
batch. He guessed, again, that Compton had probably added
the 10 percent solution instead of the 100 percent. Based on
this evidence, Blizzard composed a memo to Terry Merrill
on June 6 requesting that Compton be reasigned to another
job. He did not, however, limit his complaints against Comp-
ton to this bad batch of Glow. Rather he included a catalog
of misdeeds, as follows:
As you know, we are receiving complaints from cus-
tomers on our Glow-U-2 system. As I pointed out to
you, Curtis made mistakes on 6 batches of U-2. One
was shipped before it was corrected and others were ad-
justed to spec before shipping. On one batch Curtis
poured resin into a batch tank and spilled 4 gallons on
the floor. This caused us to correct the batch for the
second time.
We are now testing the Glow that was made during
the same time frame. Early indications show that some
batches do not have enough tin accelerator. We are set-
ting up a test program to test the last 9 batches of
Glow. The complaints from the customer indicate that
the trouble started with the last 4 batches that were
made by Curtis.
He has previously been suspended for making a bad
batch and trying to correct it himself and hiding the
mistake from management.
We cannot afford the damage that he is causing in
the Paint Manaufacturing Department. We certainly do
not need the customer complaints.
I do not intend to allow him to make any more paint.
Please find another job for him to do. I do not want
him in the Paint Manufacturing Department.
Blizzard attempted to explain the reference to batches of
U-2 in the first paragraph of this memo, and it appears from
the memo that the matter was discussed with Merrill before
the memo was written. This would indicate to me that they
were proceeding very carefully with this touchy issue, or that
they were using a paper trail to support the actions they were
taking. In the memo, Blizzard stated that Compton commit-
ted mixing errors on six batches of U-2 at some unknown
time but no discipline or reprimand was given to him. This
does not jibe with Respondent’s reactions to errors back in
November 1990 when Compton was suspended for 3 days,
and the problems arising out of the May and June 1991 com-
plaints, which resulted in Compton’s transfer out of the paint
department. Blizzard’s explanation of why Compton was not
disciplined was hesitant and unconvincing, ‘‘other than the
unreliability of it, it wasn’t, it didn’t seriously hurt the prod-
uct. It cost us time, it cost us money, but, as far as damaging
the product greatly, it did not.’’ Despite this, these incidents
were brought out in the lead paragraph of Blizzard’s memo
to Merrill of June 6, and constituted a part of Blizzard’s ra-
tionale for moving Compton out of paintmaking.
After writing this memo, Blizzard continued his investiga-
tion into Compton’s work, examining the last nine batches
of Glow which had been made. He said that he used the
same test he had with the 431 batch, described above, but
he did not bring the tin accelerator content up to 100 percent.
He left the samples as they had been made, then observed
the drying times. This revealed, according to Blizzard, that
four batches were slow drying. The conclusion was that the
last four batches made failed the test, and they were all made
by Compton.
Blizzard then wrote another memorandum to Merrill, dated
June 13, outlining the results of these tests. I note that, while
he described four batches made by Compton as ‘‘clearly de-
ficient,’’ he listed five different batch numbers57 under the
heading of ‘‘bad batches,’’ manufacturing numbers 421 (Feb.
11), 431 (Feb. 12), 441 (Feb. 13), 491 (Feb. 18), and 911
(Apr. 2).
The batch tickets submitted in evidence show batch 1990
(Oct. 5, 1990, R. Exh. 24, pp. 1 and 2); batch 2710 (Oct.
28, 1990, R. Exh. 24, p. 3); batch 3050 (Nov. 1, 1990, R.
Exh. 24, p. 5);58 batch 3330 (Nov. 29, 1990, R. Exh. 24, p.
7); batch 431 (Feb. 12, 1991, R. Exh. 29); batch 241 (Jan.
24, 1991, R. Exh. 32, p. 1); batch 451 (Feb. 14, 1991, R.
Exh. 32, p. 2); and batch 771 (Mar. 18, 1991, R. Exh. 32,
p. 3).
The first four numbers are for batches made in 1990,
which do not concern us at this point. The other four batches
found wanting are 241, made by Compton on January 24,
1991 (R. Exh. 32, p. 1); 431, made by Compton on February
12 (R. Exh. 29); 451, made by Compton on February 14 (R.
Exh. 32, p. 2); and 771, made by Compton March 18, 1991
(R. Exh. 32, p. 3).
I think that the General Counsel has established a prima
facie case for a violation of law in Compton’s transfer on
315TALSOL CORP.
59 See Wright Line, 251 NLRB 1083 (1980).
60 Merrill stated that 95 percent of all the hundreds of complaints
received were not due to Talsol’s mistakes, but improper use by cus-
tomers.
61 Note that Blizzard described Rocco as being from ‘‘the Boston
area’’ and my own observation of Bloomquist’s telephone number
on his complaint as being from eastern Iowa.
June 10, 1991, based on Blizzard’s demonstrated and re-
peated expressions of hostility toward the Union in general,
and Compton in particular, one of the first two in-plant orga-
nizers made known to Respondent, and the attempted quar-
antine of Compton during and after the union campaign.59
The question, now, is whether the Respondent had valid
business reasons to effect the transfer of Compton out of the
paint manufacturing department.
The Respondent’s response to this, arguing that Compton
made serious mistakes as a paintmaker, if it is borne out by
credible evidence, would certainly justify a reassignment
from paintmaker duties, despite the background of hostility
and discriminatory treatment.
Looking first at the complaints which started the whole
process of testing and questioning of Compton’s work as
paintmaker, it appears that the first complaint, from Florida
Wholesale Distributors, was not legitimate. It was checked
by Tom Miller, a paint formulator, and is fairly detailed on
the problem presented. This complaint was checked out, the
batch complained of was checked out by Miller, or at least
by someone other than Blizzard. The batch was found to be
satisfactory, and the complaint was held to be not valid.60 In
a note on the face of the complaint (R. Exh. 25), Tom Miller
wrote that the customer was not satisfied with the results of
Talsol’s tests, and said he would contact Terry Merrill. There
is nothing further in the record about that development, we
don’t know whether the customer contacted Merrill, or what
happened if he did.
The next complaints came in from a customer named
Rocco in Boston. The notes allegedly taken by Blizzard on
this one are completely illegible, and furnish no information
on the date, the nature of the complaint, or what was done
about it (R. Exh. 26). We are left with Blizzard’s testimony.
The third complaint came in on a fax dated June 5, 1991,
from Terry Bloomquist indicting only that he had received
complaints from his customers on certain products.
On these complaints, Blizzard determined to check the
paint batches himself, with the results I have outlined above.
He did not, so far as I can gather from his testimony, discuss
with or work with Miller, who had performed the first tests,
or with the quality control person in the lab. He presented
no records of his tests, and the only written record of what
he did is in his two notes to Merrill.
Merrill testified that he received ‘‘many, many com-
plaints,’’ mentioning the specific complaints from ‘‘Florida
Wholesale, Bloomquist from St. Louis and Big Dominic
Rocco out of Philadelphia.’’61 Merrill then went on to say
he ‘‘received another 20 or 30 phone calls from all over the
country.’’ This last statement did not go any further. Counsel
led Merrill away from any complaints other than the three
we have been talking about, and there is no mention any-
where else in the record of any other complaints. This is sig-
nificant, because if Blizzard’s analyses of the samples of the
4 ‘‘bad batches’’ were correct, there would have been more
than 20 or 30 complaints from all over the country and, most
certainly, more than 3 complaints. Blizzard’s note to Merrill,
dated June 13, shows a total of 1,184 gallons of paint pro-
duced in those 4 bad batches, 1,076 gallons of this had been
sold, and, according to Blizzard’s June 13 note, 108 gallons
were rectified and returned to inventory.
I have already noted the serious problems I have with
credibility both with Merrill and Blizzard. I have doubts
about any unsupported statement by either of them made
about critical issues in this case when those statements are
unsupported by physical or undocumentary evidence, or
uncorroborated by other testimony of more credible wit-
nesses. Here the entire weight of Respondent’s defense to the
General Counsel’s prima facie case depends on Blizzard’s
unsupported claim that he found serious defects in four
batches of Glow made by Compton between January 24 and
March 18, 1991 (R. Exh. 28). Tom Miller, who worked on
the first complaint, dealing with batch 431 was not called on
to testify. Teresa Greene, whose initials appeared as approv-
ing all of these batches, was fired by Blizzard on April 24,
but her successor was not called on to testify about Bliz-
zard’s alleged changes in testing procedures. There is no
record at all of what happened to the 3 complaints which
started the whole thing off, or of the 20 or 30 other ‘‘com-
plaints’’ from all over the country about defective Glow
paint. There is nothing on any of the batch tickets, or any
document, other than those prepared by Blizzard to justify
his analysis of the paint batches, to show that there were bad
batches made, and what was done about it internally with
quality control or externally with customers, among whom
1,076 gallons of flawed Glow clear coat could have caused
an awful lot of problems.
All of this convinces me that Blizzard’s testimony, and the
exhibits offered and received to show Compton’s incom-
petence, was a show designed solely to justify a continuation
of the discriminatory treatment meted out to Compton, and
to provoke him to quit, as he did, later. I find that by trans-
ferring Compton out of the paintmaking department and into
the warehouse Respondent has violated Section 8(a)(1) and
(3) of the Act.
Having moved Compton over to the warehouse, the next
step was to reduce his wages. This was done on June 25.
There is no dispute that it was done, but there are no busi-
ness reasons shown, other than the testimony of Merrill and
Blizzard, that $6 was warehouseman’s rate of pay, and since
this was done to a person whose transfer out of the
paintmaking department I have found to be violation of Sec-
tion 8(a)(1) and (3), I find that the lowering of his wage rate
from $8 to $6 was a further violation of Section 8(a)(1) and
(3) of the Act.
I find further that under Board precedent Respondent in-
tended to and did create such a negative atmosphere and in-
tolerable working conditions for Compton that it construc-
tively discharged him in violation of Section 8(a)(1) and (3)
of the Act. Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976); T. & W. Fashions, 291 NLRB 137 (1988).
3. Darryl Denham
The complaint alleges in paragraphs 6(c), (d), and (e) that
Darryl Denham engaged in protected concerted activity by
complaining about working conditions at Talsol, and that he
was discharged because of this.
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 See Curtis Compton’s discharge, sec. III,D,2, above.
Denham was hired on September 16, 1991. He had read
an advertisement in a newspaper, responded, and filled out
an application. He was interviewed by Larry Parsons late in
August. During this interview Parsons told Denham that the
Union had been voted in, by just one vote, and that the Com-
pany’s president had taken it personally. The president was
‘‘a little unhappy’’ that the employees went union after being
treated so well over the years.
About 2 weeks later Denham was called in for another
interview with Parsons. Later, Parsons called Denham to tell
him he was hired, and he reported on September 16 as a
shipping clerk. He was given training on using forklifts and
ladders and on retrieving merchandise.
When he started work, Denham took note of an ‘‘OSHA
report’’ posted over the timeclock. He was concerned and
asked several other shipping department employees about the
OSHA report, how safe the plant was, and what he should
look out for. He expressed his concerns about safety to other
employees, the way things were stored and placed on
shelves, which were almost impossible to reach. Denham
also expressed his opinion that the equipment used to re-
trieve those items was not safe. He discussed these things
with other shipping department employees, but he did not
know if Parsons knew about these discussions.
On September 24, Parsons told Denham that there would
be a safety meeting that day. The meeting was conducted by
a woman, identified on cross-examination as Teresa Case,
the Company’s safety director and an admitted supervisor
within the meaning of the Act. There was another, unidenti-
fied, woman present, and Tom Miller, the Company’s paint
formulator,62 who was there to answer technical questions
about materials on the premises.
The meeting opened with a slide show, and distribution of
what Denham described as a ‘‘cartoon magazine’’ about
safety. After this presentation was finished, Denham asked
several questions. He had had experience with some of the
chemicals used at Talsol on a previous job, and he took issue
with company explanations concerning the health hazards of
chemicals which he identified as Zylene, Zylow, and
Telulene, an ‘‘array of chemicals.’’ Denham also asked about
the OSHA report, and the company people said they dis-
agreed with OSHA’s findings, that they were disputing those
findings, and that Talsol provided a safe workplace. Denham
kept it up, questioning the type of training in handling and
storage of merchandise, and the lack of posted fire evacu-
ation plans. Denham described Case as very pleasant at the
start of the meeting, but becoming irritated, and then visibly
angrier as he continued to question her and the company ex-
planations. No other employees said anything during the
meeting. None of them were identified. The meeting ended
without further comment or incident, and the employees re-
turned to work.
The next day, September 26, was described by Denham as
a normal workday, but on September 27, Larry Parsons came
up to him about 2 o’clock in the afternoon, told Denham he
was leaving early because he had a cold, and said he would
see him the next day.
Later that afternoon, about 20 minutes to 6, Denham was
called into Jim Zimmerman’s office. There, Zimmerman,
who was alone, told Denham that his employment was termi-
nated, to get his personal belongings, leave Talsol’s property,
and not come back. Denham asked him why, and Zimmer-
man ‘‘angrily’’ repeated that he was to get his things and
leave. Denham persisted, saying that there had to be some
reason. He asked this three or four times. Zimmerman at first
replying that he didn’t have to give him a reason, then, be-
coming very angry, telling Denham that it was a ‘‘manage-
ment decision.’’ Denham then picked up his personal belong-
ings, clocked out, and left.
The next day Denham called the plant and spoke to Par-
sons. Denham explained that he was surprised by his dis-
charge; that, as far as he knew he was doing a satisfactory
job and he had no indication from Parsons that he was doing
otherwise. Parsons replied that it was a management deci-
sion; that he should just leave it alone and get on with his
life. As usual, Denham persisted, saying that it was hard to
tell his family that he was fired and didn’t know why.
Denham then indicated that he would have to go to the
Labor Board. Parsons repeated that Denham should leave it
alone and get on with his life.
Denham testified that in his 11 or so days with Talsol Par-
sons had told him, ‘‘on a daily basis,’’ that he was ‘‘doing
fine, good work.’’ Denham had not been late or tardy in his
short time there, and had never been warned about any defi-
ciency in his work.
Larry Parsons denied that he ever told Denham that the
company president had taken the election loss personally.
Parsons described Denham as a slow worker. He said
Denham was not as good on the towmotor as he had thought,
and that he took corners too close, bumping into cases and
racks at the corners. Parsons did say that he thought that
Denham would work out of these bad habits.
Jim Zimmerman testified that he heard Denham giving or-
ders to one of his employees, and that, as a result, he told
Denham to take up any such matters with his own super-
visor, Parsons. Then Zimmerman went to Blizzard with this
complaint against Denham. Blizzard told Zimmerman to fire
Denham. Since this was the day Parsons, who would ordi-
narily handle the discharge, had gone home sick, Zimmerman
was deputized to tell Denham he was being fired. Since it
was company policy not to inform probationary employees
of the reasons for their discharges, Zimmerman did not tell
Denham why he was being fired. Both Parsons and Zimmer-
man denied that the discharge had anything to do with
Denham’s complaints about safety, nor did Zimmerman
admit he was aware of any such complaints.
There are, as noted in the General Counsel’s brief, discrep-
ancies between the statements of Blizzard, Zimmerman, and
Parsons in the record. For one thing, there was no identifica-
tion by these witnesses, or Denham, of the date when
Denham allegedly tried to order Zimmerman’s employees
around, the immediate occasion for the discharge. The only
clue we have is Zimmerman’s statement that he went to Bliz-
zard and complained about Denham a week or two before
the latter was fired. Two weeks is not possible, because
Denham worked only 9 days (if Saturday, September 23 is
included) for the Company. If it was a week, then Blizzard’s
testimony that he talked to Parsons about Denham’s work,
after talking to Zimmerman, is logical as well as consistent
with Parsons’ testimony that he was consulted about
Denham’s work before the discharge.
317TALSOL CORP.
63 Blizzard testified that he did not remember who, if anyone, was
told to effectuate the discharge.
64 Zimmerman could not remember this person’s name. He ex-
plained that he has temporary employees in and out of his crew, and
he does not remember their names at all.
65 That, it seems to me, is acting like a supervisor.
66 See, e.g., Meyers Industries, 268 NLRB 493 (1984) (Meyers I);
Meyers Industries, 281 NLRB 882 (1986) (Meyers II); Amelio’s, 301
NLRB 182 (1991).
67 Respondent’s answer of January 22, 1992, to the sixth amended
consolidated complaint, admits that she is a supervisor within the
meaning of the Act. There is no indication in the record that she
left Respondent’s employ, or was unavailable to testify here.
68 Consumers Power Co., 282 NLRB 130 (1986).
69 See the cases of Compton, Teresa Greene, and Geraldine
Broadus, above.
70 Company rules, referred to throughout this record, were entered
as R. Exh. 1 and contain two general categories: group one offenses,
involving serious misconduct and almost always resulting in dis-
charge, and group two offenses, giving rise to counseling, or more
severe discipline, up to and including discharge. Brewer’s offense
here is number 16 of the group two offenses.
The problem with this state of facts is why, if Blizzard
talked to Zimmerman and Parsons about Denham’s inadequa-
cies some days before September 27, was the discharge de-
layed. The decision to discharge must have been made some-
time on September 27. Indeed, it must have been some time
after 2 o’clock in the afternoon. Zimmerman testified that he
was directed by Blizzard to actually do the firing because
Parsons had gone home sick.63 Since Parsons was gone,
Zimmerman had to perform this task alone, an exception to
Respondent’s usual practice of having at least two super-
visors present in disciplinary matters.
This leads to another question, which is, why did Blizzard,
after hearing the charges against Denham, wait until Parsons,
Denham’s supervisor, and as such, as we can see throughout
this case, responsible for discipline and discharges of em-
ployees under his supervision, was gone, requiring Zimmer-
man, alone, without a witness, to do the firing.
This doesn’t make much sense, particularly since the inci-
dents allegedly giving rise to the decision to discharge are
really petty matters. Zimmerman, on cross-examination, testi-
fied that Denham had told Zimmerman’s driver64 that there
were pallets of stock he wanted moved so that he could get
to some other stock behind it. This doesn’t indicate to me
that Denham was attempting to ‘‘order’’ people around or,
certainly not in the words of a supervisor directing actions
of an inferior. Yet Zimmerman said he was ‘‘irritated,’’ and
did not give Denham any opportunity to explain what he was
doing or what he wanted done. Zimmerman ‘‘cut him off’’
and ordered him back to his department.65 Parsons’ com-
plaints about Denham also seen minor, slow working and
some sharp cornering on a towmotor. It is also a concern that
Parsons had never told Denham to speed up his work and
slow down on his corners.
This discharge does not seem logical, even under this
Company’s draconian disciplinary procedures. The General
Counsel argues that Denham’s discussions with his fellow
employees concerning safety, during his first few days of
work, and his persistence in questioning Company Officials
Case and Miller at the safety meeting on September 25 con-
stituted protected concerted activities, and his discharge on
September 27 was ordered in retaliation for his exercise of
his Section 7 rights.
Reviewing Denham’s testimony, while I can find that
Denham’s conversations with his fellow, unnamed, employ-
ees may have constituted concerted activity dealing with
safety and other working conditions, there is no evidence that
these conversations ever came to the attention of manage-
ment.66 The safety meeting is something different. There is
no question that Denham made statements at that meeting in-
dicating his concern with matters which affected not only
himself but all other employees, most certainly protected,
concerted, activity. See Meyers I and II, below. There is no
question that Teresa Case was a supervisor within the mean-
ing of the Act.67 Therefore, her knowledge of Denham’s
statements is company knowledge. Her reaction to Denham’s
refusal to accept company explanations, and his allegations
of physical peril from chemicals pronounced relatively safe
by the Company, gave rise, as Denham pointed out, to in-
creasing irritation and anger on Case’s part.68
Blizzard testified on cross-examination that Case reported
back to him on safety meetings and, responded affirmatively
to a question which asked if Case would report employee
complaints made at safety meetings back to him. This record
justifies a finding, which I make, that Case reported to Bliz-
zard that Denham had raised serious questions about the
Company’s safety program at the meeting, and persevered in
his questioning to the point where she became angry. Bliz-
zard, whom we have seen could become very angry himself
when the Company’s motives and practices were ques-
tioned,69 would have been faced with a situation very similar
to Broadus’ comments about the speedup of the aerosol line
(see sec. III,C,1, above). Moreover, Blizzard’s anger over the
recently completed OSHA investigation would, no doubt, be
revived by the prospect of renewed complaints and investiga-
tions by OSHA. I think it is proper to infer that Blizzard’s
reaction to Denham’s remarks about safety would be similar
to as his reaction to Broadus’ remarks about the aerosol line.
That reaction was to order the suspension of one offending
employee and the discharge of the other. I find here that
Blizzard ordered the discharge of Darryl Denham because of
his remarks at the safety meeting, which I have found to be
concerted activity protected by Section 7 of the Act. I find
that Denham’s discharge violated Section 8(a)(1) of the Act.
4. Sue Brewer and Velvie Wood
a. Discipline of Sue Brewer
Paragraphs 7(a) and (b) of the complaint allege that Sue
Brewer was first warned (7(a)) and then suspended (7(b)) on
account of her activities on behalf of the Union.
Sue Brewer was an early union activist. Her name, along
with that of Curtis Compton, appeared in the first letter from
Jim Newport to Terry Merrill on March 25 alerting the Com-
pany to the identities of in-plant union organizers. She re-
ceived a counseling warning on April 8 for using a company
telephone without permission.
Respondent maintains that Brewer was an habitual violator
of a company rule prohibiting personal phone calls unless a
supervisor’s permission is obtained.70 There are no public
phones on the premises, the nearest ones being at a store on
the other side of a busy road 2 to 3 minutes away from the
plant. Brewer testified that the company rule was in effect
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Apparently there is no vending machine available in the Compa-
ny’s restrooms, and a trip to the store would have cost Brewer at
least a half a point and a loss of pay. As Blizzard had put it to
Connie Robinson, Brewer could not afford many additional points to
those she had in April 1991.
72 Brewer testified that antiunion speeches were a daily occurrence
during April.
73 He was over in building A, on the telephone.
before the union campaign early in 1991, but that she had
permission from her supervisor, Larry Parsons, to use the
company phone call to check on her children before 7:30 in
the morning. Both Brewer and Betty Bates, who also testified
on this point, stated that before April 1991, if there was no
supervisor around to ask, they could use the company phones
without express permission. On this occasion, on April 8,
Brewer felt that she needed to check on a sick child at home.
Parsons had gone to lunch and she could not find another su-
pervisor. There were no lights illuminated on the phone she
used, indicating that lines were not busy. So she used the
phone, she said, for 5 minutes. Later that day she was called
into the office where Larry Parsons and Jim Zimmerman
gave her the warning.
The Company’s version of this incident was given by
Terry Merrill, Dave Blizzard, and Larry Parsons. Parsons
said that the telephone policy before April 1991 was that em-
ployee use of company phones had to be in an emergency,
and ‘‘they always had to have the permission of the super-
visor to use the phone.’’ Parsons indicated that he had prob-
lems in the past with Brewer receiving calls from a boy
friend. He stated that on the morning of April 8 he talked
to Merrill who asked him if Brewer had permission to use
the phone. Parsons said no. There was nothing further said
about this conversation, and apparently nothing was done
about it. Later, at noon, Blizzard said he had caught Brewer
on the phone and asked Parsons if she had permission to use
it. Parsons again said no, and proceeded to write her up be-
cause Blizzard said that being caught twice in one day ‘‘defi-
nitely’’ warranted discipline.
Blizzard testified that he saw Brewer on a company phone
at 12:10 p.m. on April 8. He went to Parsons and asked him
to discipline her for that. Blizzard said that he had also
talked to Merrill, who had seen Brewer using a phone earlier
in the day. Blizzard also said that Parsons had given Brewer
two verbal warnings for making and receiving calls.
Merrill testified that on the morning of April 8 he saw
Brewer on the phone in building A. He asked her what she
was doing and she said she was talking to building B about
components. Merrill didn’t believe her and he walked over
to building B, where there was no one on the phone. He
went back to building A and saw Brewer still talking on the
phone. Merrill then said that he called Larry Parsons and
said, ‘‘Larry, this lady’s back on the phone again.’’ He said
that he had heard of earlier problems with her on the tele-
phone ‘‘many, many times,’’ because of calls from a boy
friend, and a child. With all this, Merrill did not say that he
was directly involved in the disciplinary action of April 8,
saying only that he was ‘‘indirectly’’ involved in it. There
was no explanation of what ‘‘indirectly involved’’ might sig-
nify.
On the basis of all this, I find that Brewer did make a call
around noon on April 8, and that she looked for Parsons and
couldn’t find him, but she had a sick child and needed to
check on him. Blizzard saw her on the telephone and asked
Parsons if she had permission. When Parsons answered in
the negative, Blizzard told him to issue the warning. I do not
believe Merrill at all. His story was not corroborated by any-
one. Parsons did not say that Merrill had called him. If Mer-
rill in fact had called Parsons that morning, why wouldn’t
the discipline have been effected then? Further, Merrill’s
usual exaggeration about the ‘‘many, many’’ reports of
Brewer’s abuse of the telephones makes his whole story
seem a similar exaggeration.
I think, that the discipline imposed, as may be seen from
Blizzard’s notes on the warning form (G.C. Exh. 23) was im-
posed as much because of calls into the plant, which Brewer
could not be responsible for, as for the April 8 incident itself.
Moreover, I credit the testimony of Brewer and Betty Bates
that the policy before April was to allow the calls to be made
when supervisory permission could not be obtained. This, I
find, was a change in policy, and, in view of my findings
here on the hostility of management, particularly Blizzard’s,
is attributable in this case to Brewer’s identification with the
Union and the election campaign. I find that this warning
violated Section 8(a)(1) of the Act.
A second incident occurred on April 14. Brewer testified
that after she arrived at work that day, her menstrual period
started. She needed a tampon but didn’t have one.71 She
asked the women in her work area, but none of them had
any tampons. Brewer then went over to building A where
Teresa Kee and Tina Pendergrass were working. Larry Par-
sons was there also, talking on the telephone. Brewer whis-
pered to Kee and Pendergrass, asking them for a tampon, but
they didn’t have any either. At this point Parsons got off the
phone and asked Brewer what she was doing there in build-
ing A. She answered that it was ‘‘personal,’’ and Parsons
said ‘‘on my time?’’ Brewer then told him what it was for
and he said ‘‘okay.’’ Brewer then went to the other side of
building A and asked Mary Robinson (Gruenemeier). Robin-
son had one, but they had to go to building B to get it from
where Robinson’s personal possessions were located. Parsons
followed them, at least until they got into building B. Brewer
then went to the restroom and returned to work. She esti-
mated that the whole thing took 5 to 10 minutes. Brewer did
not feel that this absence interfered with production. She set
up her machine when she returned and she produced 227
bottles of a product called ‘‘one-step’’ that day as compared
with 230 the day before. There were other interruptions to
production that day, including one for an antiunion speech.
At the time the line stopped for the speech, about 10:30 a.m.,
Brewer testified that Parsons apologized for the earlier inci-
dent. The speech lasted 35 to 40 minutes.72
Later that day Brewer was called into the office with Par-
sons and Jim Zimmerman and given a disciplinary notice that
she was suspended for 3 days for being away from her work
station. When she was writing her response on the form she
asked Parsons if she should put in the part about the tampon.
He told her to ‘‘tone it down a bit.’’ The disciplinary notice
states that Brewer had violated ‘‘Group Two, Rule 3 (leaving
work area without permission) production of 1 step rust con-
verter (qt. size) was totally stopped. We are presently in the
height of our selling season and are in a back order position
of this product.’’
Brewer’s reply was that she ‘‘had a personal need that
needed immediate attention. Larry could not be found.73
319TALSOL CORP.
74 Aside from discounting Merrill’s customary exaggerations, I just
cannot believe, and I am no expert in these personal matters, that
a woman in Brewer’s urgent and embarassing position was ‘‘wan-
dering aimlessly around’’ the plant. I think this statement was just
Merrill throwing gasoline on the coals of his anger over lost produc-
tion.
75 I note that both Wood and Brewer testified that about 3:30 p.m.
on April 24 they heard Parsons and Zimmerman paged over the
loudspeaker, and directed to come to the office ‘‘and bring the list,
repeat, bring the list.’’ Tina Pendergrass said that she was transferred
to the Tal-strip line ‘‘a couple days till the accident of Betty Bates’’
(April 29), when she saw a list on Parsons’ desk entitled ‘‘break
down list’’ which had on it all the names of the in-plant organizers,
and jobs to which they were to be transferred. I do not believe
Pendergrass and I cannot see where the fact that supervisors were
summoned to the office makes much difference to the issues here.
Without immediate attention I could not have continued to
work.’’
Parsons stated the facts of the incident pretty much the
same way as had Brewer. He said he saw her talking to em-
ployees in building A. He was out of one-step gallons, and
they were in a back order situation. He told her to get back
to her work area. She said she had a personal problem and
needed to take care of it. She did not go back to work, but
went to another person in building A and talked to that em-
ployee. Parsons did state that he ‘‘pressed her’’ on her rea-
son for being out of her work area and said that she told him
her menstrual cycle had began and she was trying to borrow
‘‘a Kotex.’’ He did feel that it was uncomfortable for her to
tell him that, that ‘‘it was sure uncomfortable for me to hear
it,’’ and that he told her that he did not mean to embarrass
her, but he denied that he apologized to her for asking the
reason.
According to Parsons, the matter went to the highest level
in the Company. The suspension was decided on by Presi-
dent Terry Merrill, Vice President John MacLeod, Vice
President Dave Blizzard, and Parsons. Blizzard and MacLeod
were not asked about this incident, but Merrill was. He start-
ed out a bit confused, mixing up this April 8 and 12 inci-
dents. After being straightened out by counsel, Merrill re-
called that Brewer was working on the one-step filling line.
Merrill then, characteristically, embarked on a discussion
about ‘‘many many’’ orders for this product, and they were
out of it, in a back-order position. He then stated that ‘‘I’m
walking through again, and I find out that Ms. Brewer has
left her filling machine in the middle of a shift while she’s
filling the product and wandering aimlessly74—in my opin-
ion aimlessly—around.’’ He said he ‘‘saw her out of her
work area, number one, and I was told by Mr. Parsons.’’ He
was ‘‘instantly furious,’’ again talking about back-orders, try-
ing to fill the orders ‘‘and she is off her work station wan-
dering through the buildings.’’ Merrill continued this ha-
rangue, mentioning double freight costs, competitors filling
orders, never getting customers back again and becoming
‘‘furious’’ about the whole 10-minute absence by Brewer.
Mary Robinson Gruenemeier not only witnessed the inci-
dent, but joined in, to the extent of leaving her own work
station and helping Brewer ease her problem. Gruenemeier
testified, but, significantly, was not asked about this situa-
tion. I do not draw any inferences from this, but the absence
of testimony on Gruenemeier’s part indicates to me that
Brewer’s version of the incident was correct. I note also that
the record does not mention that Gruenemeier, identified as
a company loyalist, was disciplined in any way for leaving
her own work station to obtain the tampon for Brewer.
Based on this evidence, I find, as has been stated before,
that Brewer was a principal activist for the Union, identified
to the Company as such just a little over 2 weeks before. She
was disciplined on April 8 for reasons I have found to be
discriminatory. The April 8 discipline was used, in part, to
justify the 3-day suspension imposed for this rule violation.
I cannot and do not make decisions based on working condi-
tions which social scientists might find demeaning or primi-
tive. No public telephones, no water in some buildings, no
provision in women’s restrooms to aid women caught short
like Brewer. None of these things is a violation of the Na-
tional Labor Relations Act. What I am concerned about here
was the effect of the prior reprimand on this discipline; the
fact that the decision, instead of being administered at the
shop level by Parsons, was bucked up the ladder to include
the whole high command of the Company, two members of
which, Merrill and Blizzard, harbored strong antiunion senti-
ments; the fact that Parsons testified that the short fall in
one-step was in gallons, where as Brewer, as alleged in the
disciplinary notice, was assigned to quarts; the disparate en-
forcement of discipline as between Brewer, the union activ-
ist, who got a 3-day suspension, and Mary Robinson
Gruenemeier, the company loyalist, who did not even get a
warning; and, finally, Merrill’s rage over a 10-minute pro-
duction loss by one employee, when later the same day, he
ordered a 35- to 40-minute antiunion speech be given to all
the employees in Brewer’s department.
All of this convinces me that the discipline of Brewer was
excessive, considering the offense, and designed to retaliate
against her for her activities on behalf of the Union, in viola-
tion of Section 8(a)(1) and (3) of the Act.
b. The discharges of Brewer and Wood
Paragraphs 6(a) and (b) and 7(e) and (f) allege that Sue
Brewer and Velvie K. Wood were discharged on April 25
while engaged in protected, concerted activity.
On April 24, Brewer and Wood (also referred to in the
record as Kathy Wood) were called separately into the office
with Larry Parsons and Jim Zimmerman at 4:30 p.m. Parsons
told each of them that they were transferred to the second
shift effective the next day. They were to report at 4 p.m.
They did not demur at the transfer, but both Brewer and
Wood had problems with babysitters and had to make ar-
rangements which would be hard to do with less than 24
hours’ notice.75 Parsons merely replied that all he was in-
structed to do was to tell them to be at the plant at 4 p.m.
the next day. Wood protested that her husband began work
at 5 p.m. and it would cost a lot of money to get a baby-
sitter. She also reminded him that she had said the same
thing to him when she was hired, and he had replied that the
job (day shift) was perfect for her. Parsons responded, as he
had before, that all he was instructed to do was to tell her
‘‘to be there at 4:00 o’clock tomorrow.’’
Brewer also protested and asked if she could speak to
Blizzard. Parsons picked up the phone and called someone,
saying to that person that ‘‘Susan Brewer wanted to change
her mind if she could’’ then hung up and told Brewer that
Blizzard had said ‘‘no.’’
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
76 Parsons testified that an advertising campaign for the product
was underway at that time.
77 I note also the timing of this discontinuation of the night shift.
Pam McNew was assigned to the night shift after Brewer and Wood
were discharged. Then, when the election was over, the production
crisis requiring Brewer and Wood to transfer to nights must also
have ended. This timing does not seem to corroborate Respondent’s
stated reasons for the transfer of Brewer and Wood. If, on the other
hand, McNew was assigned to the aerosol line on the night shift,
as her testimony indicates, then why was she not assigned to the
night shift to replace Brewer and Wood, supposedly to fill primer
surfacer.
After these interviews Brewer and Wood talked to Betty
Bates and Jim Newport. It was decided (I cannot tell from
the record who made the decision) that the two women
would come to the plant the next day at their former starting
time and see what they could do.
The next day Brewer and Wood arrived at the plant at 7
a.m. They were accompanied by about 10 other employees,
including Betty Bates and Tina Pendergrass (who were all
scheduled to work at that time). As they walked up to the
door of the plant the group was met by Parsons and Zimmer-
man. The supervisors asked what they were doing there, they
were there 8 hours to soon and should leave. Brewer said at
some point in this conversation that they wanted to see Mer-
rill or Blizzard in order to ask for time to make arrangements
to start on the second shift. Brewer asked if they were fired,
Parsons said no, and she said that they were there to work;
they could not come in at 4 p.m. because they had not been
given time to prepare. She then read out of a ‘‘Union book’’
something about the Company not being allowed to change
hours in order to get rid of employees.
Parsons and Zimmerman apparently became concerned
that all this was going on in front of other employees. They
then told Brewer and Wood to come inside the plant. They
went in to Blizzard’s office (he was not there through all of
this). No sooner had they gotten there, however, when Par-
sons again asked them to leave, then demanded that they
leave. There was some more conversation, Parsons and Zim-
merman left for periods to set up the day’s work, and finally
Parsons called Blizzard. Merrill, however (probably after
consulting counsel) called back and told Parsons to ask them
again to leave, if they did not, then to discharge them. Then
if they didn’t leave, to call the sheriff (Merrill’s version) or
the police (Parsons’ version). Parsons did ask them again to
leave. They would not, and they were discharged. After that
they left without requiring a police escort.
The Company’s version of this incident was fairly consist-
ent. Merrill testified that at the end of April he made the de-
cision to increase the production of a product called primer
surfacer. Sales were good76 and they needed more product.
The manufacturing process was lengthy, taking 8 to 10 hours
to mix and another 8 hours to fill containers. Thus, in an or-
dinary 40-hour week, the Company could make only 2-1/2
batches. Merrill ordered that a second shift be set up to do
the filling, so that the day shift could make five batches,
which would then be filled by the night shift each week,
doubling their production.
Merrill did not make the determination as to who was
going to be transferred to the second shift to implement the
filling part of the increased production. This was left up to
Blizzard. Blizzard testified that there were four employees
who were qualified for the filling operation. Brewer, Wood,
Pam McNew, and Al Isaac. Of these Isaac was the most ver-
satile, McNew had the most seniority, so Brewer and Wood
were left to be transferred. All the management people who
testified about this said that union activity had nothing to do
with the selection. By this time Brewer, Wood, and McNew
were all named as in-plant organizers. Isaac was still main-
taining to management that he was antiunion.
Parsons and Zimmerman testified that they were at the
plant when Brewer and Wood came up to the entrance. Par-
sons told them they were not scheduled to be there until the
evening shift and asked them to leave. Brewer read some-
thing from a book, or a ‘‘union book,’’ according to Zim-
merman, and refused to leave. Parsons told Brewer that if
she had been wronged there was a way to address it, but to
leave the property. They still did not leave, and the other em-
ployees were standing looking at this confrontation. Zimmer-
man suggested that he and Parsons take Brewer and Wood
inside. Again Parsons requested that they leave and they
would not. After some minutes of this Parsons called Bliz-
zard at his home and advised him of the problem.
It is probable that Blizzard called Merrill, but Blizzard did
not mention this in his testimony. Instead Merrill stated that
Parsons called him that morning, and he told Parsons to tell
them to leave and if they didn’t, to call the sheriff’s office
and ‘‘haul them off.’’ He ordered their discharge because
they were ‘‘totally, 1000 percent, insubordinate!’’
I believe the General Counsel has established a prima facie
case here under Wright Line, supra, that the Respondent has
demonstrated open hostility to the Union and to its adherents.
Both Brewer and Wood had been identified as in-plant union
organizers by letters from the Union to the Company prior
to April 25. The Company’s antiunion hostility has been ex-
pressed, as I have found, directly to Brewer in her warning
and suspension discussed just before this section of this deci-
sion. The assignment to the night shift was made with less
than 24 hours to obtain babysitters and make other domestic
arrangements and in a manner which permitted no appeal of
management’s decision, Parsons merely repeated that he had
been instructed to inform them of their transfer.
I have noted this treatment, as contrasted with the solic-
itous treatment given to people on the night shift on the day
after the election, May 11. Pam McNew testified that Chris
Dixon and Blizzard came to the night-shift employees to tell
them that the night shift was being discontinued and they
were going back to days. Pam McNew testified that Blizzard
and Dixon gave them 2 to 3 days to take care of babysitters
‘‘or anything,’’ to go to the day shift.77
I believe that on these facts I could find that General
Counsel has established a prima facie case that the short no-
tice for the transfer with no opportunity to make domestic ar-
rangements was a ploy to force these employees to miss
work (which would have been serious for Brewer, who had
a number of attendance points) or to quit.
The Respondent’s defense to this is based on its assertions
through the testimony of Merrill, Blizzard, and Parsons that
there was a demand for the production of primer which could
be satisfied by moving the filling part of the operation to the
night shift. This is logical enough, and it presents me with
no problems but there was nothing in the testimony of any
321TALSOL CORP.
78 Respondent’s citation of Carolina Freight Carriers Corp., 295
NLRB 1080 (1989), is not on point. That case involved a discharge
over a disputed point in a collective-bargaining agreement where the
discharged employee had recourse to a grievance an arbitration pro-
cedure. In the present case there were no such procedures. Indeed
Brewer and Wood were asking for some kind of appeal to higher
authority, but this request was not granted.
79 Jones had not been active in the Union, but Blizzard viewed her
as a union supporter when he talked to OSHA investigators in mid-
May. After the election she was elected to the negotiating committee
by the membership, and on August 28, Jim Newport wrote to the
Company, informing them of this fact. There is no indication that
she was refused overtime after August 28, and no indication that she
participated in union activity before that time. Respondent’s position
is that this allegation should be dismissed because timecards intro-
duced into evidence (G.C. Exh. 95 G) show that Jones did work
overtime on the date of the election. Since the complaint uses that
date, this allegation has not been proven. I reject this argument, part-
ly because the complaint uses ‘‘about May 10,’’ rather than just the
date; and also because the Respondent had the opportunity to litigate
the allegations in Jones’ testimony that the loss of overtime contin-
ued though the month of June.
80 Merrill did this to several other employees, including Pam
McNew.
81 As noted, I feel that I need corroboration to any substantive tes-
timony by Pendergrass. Kee impressed me as a credible witness, and
Continued
of these management officials, or any where else, to justify
the summary movement of employees from days to nights.
There was no indication in any of the testimony to denote
an emergency or a crisis in turning out larger quantities or
primer. No reason has been shown that this was a business
necessity or that it was a customary business practice.
I, thus, find that by transferring Brewer and Wood abrupt-
ly and with no opportunity to take care of personal affairs,
Respondent was retaliating against them for their activities
on behalf of the Union, and this action by Respondent vio-
lated Section 8(a)(1) of the Act.
As can be seen from the testimony, Brewer and Wood did
not quit, nor did they absent themselves from work. When
they showed up at the plant the next day to protest the Com-
pany’s actions in transferring them, I find that, as a matter
of law, they were protesting the Company’s unfair labor
practice. The employees who accompanied Brewer and
Wood were also engaging in concerted activity with them in
protect against the Company’s action.
We cannot speculate about what might have happened if
Brewer and Wood had remained at the plant entrance, but it
is evident that Parsons and Zimmerman were upset that other
employees were watching this scene at the entrance, and that
they invited Brewer and Wood into the office, rather than
continue a possibly embarrassing scene outside. Having in-
vited them in, Parsons and Zimmerman then invited, or or-
dered, them to leave. Brewer and Wood insisted that they
wanted to work, and that they wanted to talk to Blizzard and
Merrill about the lack of time given them by Parsons on the
previous afternoon. At no time did the two women say that
they were refusing, or would refuse, to work that evening,
but the Company gave them no chance to do that. They con-
tinued to refuse to leave and were summarily discharged.
There is no evidence here that any employee lost time
from work, or that the workplace was in any way disrupted.
While Parsons and Zimmerman said that their work was
interfered with by Brewer and Wood, Brewer stated that each
of the supervisors left the office from time to time to set up
the day’s work. I do not believe that there was any loss of
production that day because of this incident.
There was no shouting, no hysteria, no obscenities, no
physical threats or violence here. Brewer and Wood did
refuse to leave, but their complaint was concerted and legiti-
mate. I believe that this activity, occurring as a result of Re-
spondent’s unfair labor practices, was protected by Section 7,
and I find that these discharges violated Section 8(a)(1) of
the Act. See NLRB v. CER Inc., 762 F.2d 482 (5th Cir.
1985).78
E. Allegations Under Section 8(a)(1) and (3)
1. Denial of overtime to Elaine Jones
The complaint alleges in paragraph 7(o) that about May
10, the Respondent denied Elaine Jones the opportunity to
work overtime.
As I have found above, in section III,B,3,b, an allegation
involving alleged interrogation of Jones by Parsons and Zim-
merman should be dismissed. The alleged violation of para-
graph 7(o), here, rests on assumptions that Jones was en-
gaged in union activity, and that the Company was aware of
it. As of the date of the election, May 10, the date on which
the alleged denial of overtime began, the only substantial
evidence to warrant those assumptions was Blizzard’s com-
ment to OSHA that Jones was a union sympathizer.79
As to the availability of overtime, the General Counsel has
introduced a number of timecards intended to show that oth-
ers received overtime in the weeks following the election of
May 10 and Jones did not. However, the mere entering of
timecards, without testimony showing the relationship of em-
ployees, except for one Joyce Smith, a short-time employee,
and with no differentiation as to who was doing what job,
does not make a strong case. Since there was some doubt
whether the Company had knowledge of union activities, and
in view of the less than substantial evidence presented by the
timecards, I do not feel that the General Counsel has made
a prima facie case on this allegation, and I shall recommend
that it be dismissed.
2. Restrictions to work area
Paragraph 7(c) of the complaint alleges that about April 17
the Company restricted Tina Pendergrass and Teresa Kee to
their work area.
Pendergrass worked in the department called ‘‘Canadian.’’
This was a reference to products being packaged for sale in
Canada, requiring labels in French and, presumably, pack-
aged in metric sizes. Pendergrass was an early union sup-
porter and was named as an in-plant union organizer in the
Union’s letter to Merrill dated April 15. A day or so after
that, Pendergrass said that Merrill came up to her with a
copy of the April 15 letter and asked her if that was her
name which appeared on it.80 She admitted that it was, and
he walked away.
On the same afternoon Parsons informed her and Teresa
Kee, who was her partner in the same area, that they were
restricted to their work area, and could no longer leave the
area to get cans, boxes, or other things they used in their
jobs. Kee corroborated this,81 pointing out that when they
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I accept her version, and Pendergrass’ version, which is in agree-
ment with it.
82 Kee also became a union in-plant organizer, but the Company
was not notified of this until a letter of April 23 from the Union
to Terry Merrill.
83 David Randolph, M.D., who later testified as a company wit-
ness, at first denied having an ongoing relationship with Talsol, later
admitting that he saw patients ‘‘periodically’’ for Talsol. I found his
responses to these questions less than candid, and, frankly, evasive.
84 I have disregarded most of Pendergrass’ testimony in this issue.
I do believe that she went to Dr. Randolph, that he refused to release
her, and that she then went to another doctor to obtain a release to
return to work.
85 See Dr. Randolph’s testimony in Pam McNew’s situation,
below; illustrating the different opinions physicians may have about
the same physical complaint by a patient.
needed cans to replace broken or damaged ones, they now
had to call shipping to have cans sent over.
Looking back on the restrictions applied to Curtis Comp-
ton, and forward to restrictions placed on employees in the
aerosol room, to Merrill’s reaction to news of his employees’
union activities, and to the timing of the new restrictions, I
find that this change in working conditions was effected in
retaliation for Pendergrass’ union activities,82 and a violation
of Section 8(a)(1) of the Act.
3. Health forms and physical examinations
a. Tina Pendergrass and Teresa Kee
Paragraph 7(p) of the complaint alleges that about May 21
the Company required Tina Pendergrass and Teresa Kee to
sign medical release forms in order to return to work after
being injured. Paragraph 7(g) alleges that about May 21, the
Company refused to permit Tina Pendergrass to return to
work.
Both Kee and Pendergrass were transferred to the aerosol
room in April. On May 15, both became ill during the work-
day and were sent home. On the following Monday they re-
turned and attempted to go back to work. They met with
Pete Burnside and Larry Parsons, who first accused them of
‘‘faking,’’ then told them they had to sign forms agreeing to
be examined by a physician chosen by the Company, con-
senting to whatever examinations that physician required, and
consenting to release to the Company the results of any such
examinations by the Company’s physician, or any other phy-
sician, for use by the Company for almost any purpose.
Kee testified that she and Pendergrass at first refused to
sign. Parsons and Burnside called them in and told them they
had 24 hours to think about it, and if they didn’t sign, they
would be fired for insubordination. They went home, thought
it over, and returned to the Company the next day and signed
the forms. They were then told to go home and call John
MacLeod later for appointments to see ‘‘one of their doc-
tors.’’ Kee did this, went to see a company doctor about a
week later, then returned to work.
Pendergrass testified that Parsons and Burnside accused
her of faking and wanted her to see a company doctor. They
asked her to sign the form and she refused. She testified that
she talked to Jim Newport and told her to go ahead and sign
it. She did sign it, and called John MacLeod, who got her
an appointment with a Dr. Randolph.83 Dr. Randolph would
not give her a release, so she saw a specialist, who examined
and released her. She returned to work after that.84
No company witnesses testified as to these incidents.
I have no quarrel with the Company’s argument that it
had, and has, the right to attempt to verify the reasons for
absences, and the right to insist on medical examinations for
employees returning from sicknesses or industrial accidents.
People must be well, and physically able to perform their
jobs, for their own safety and the safety of others. If the
Company had told Pendergrass and Kee that they could not
come back to work until they signed the release forms, I do
not think I would have found a violation. However, we had
here a concerted refusal on the part of Kee and Pendergrass
not to sign the releases. I believe that such refusal was pro-
tected, and that the Company’s response, that if they did not,
they would be fired for insubordination, was a violation of
the rights of these employees, and I find in paragraph 7(p)
a violation of Section 8(a)(1) of the Act.
After signing the forms, Kee got her appointment with a
company doctor, was released, and returned to work.
Pendergrass, on the other hand, had some kind of thyroid
condition. Dr. Randolph may have been legitimately con-
cerned with this and properly wanted to have Pendergrass ex-
amined by a specialist. If all this took a few more days than
Kee’s situation, I do not see how the Company itself can be
held to blame for this.85 I will recommend, in these cir-
cumstances, that paragraph 7(g) be dismissed.
b. Betty Bates
Paragraph 7(s) of the complaint alleges that Betty Bates,
returning to work on July 8 after being absent because of ill-
ness, was faced with the same requirements, and that she
signed the form, but was not allowed to return to work until
July 16. There is no evidence here that she was threatened
with discharge for refusal to sign the form. I do not believe
that the mere requirements to sign forms or be examined by
company doctors constitute violations of Section 8(a)(1) and
(3) and I recommend that this paragraph 7(s) be dismissed.
F. The Aerosol Room
1. Background and operation
Conrad Burnside, known throughout this record as ‘‘Pete’’
Burnside, was Respondent’s supervisor of warehousing and
assembly line (the aerosol line). Terry Merrill testified that
the Company had for some years contracted out the canning
and packaging of aerosol products sold under Talsol’s brand
names. Merrill was not satisfied with the speed of this proc-
ess, nor the cost, or the quality. In 1990, the Company in-
stalled its own aerosol canning and packaging line, and hired
Pete Burnside to run it.
This line was located in its own separate area, known as
the aerosol room. While there is no direct evidence of the
separation between the aerosol room and other manufacturing
areas, I note that the operation had separate ventilation
equipment, was separated from other facilities, and had its
closed-in construction. These characteristics, do, in fact sepa-
rate this area distinctly from other areas of the plant.
Up until early 1991 the line was run on what was called
a ‘‘single indexing’’ system, that is, only one can was filled
at a time. In 1991 the filling machine was modified to fill
323TALSOL CORP.
86 The paint is made in another part of the plant and is moved to
a fill room outside of the aerosol room itself, then cans are filled
by gravity from the supply.
87 Some products are packed six to a box. When this occurs an-
other person is assigned to unloading.
88 Therefore, figures such as those submitted by the General Coun-
sel can be misleading. I have made my findings on line speeds on
the basis of credible testimony of employees who were familiar with
the line through their own experience.
89 I noted that there is no allegation in these complaints that Pam
McNew was transferred to the aerosol line, but she was transferred,
according to her testimony, a few days after the Company received
the April 15 letter from the Union to Merrill identifying McNew as
an in-plant organizer. She was, however, transferred to the aerosol
line on the night shift. I note, in this connection, that she was not
transferred to the job of filling primer, the job to which Blizzard
transferred Brewer and Velvie Wood on April 24, leaving McNew,
who ‘‘had more seniority’’ on the day shift. This is just another in-
consistency in which the Respondent has tangled itself. Since this
transfer is not mentioned in the complaint. I will make no finding
on it.
90 See sec. III,B,1,b.
91 See secs. III,B,2,d and j.
92 All of the employees who were transferred to the aerosol line
at this time testified that they had some experience working there,
either on overtime or filling in when people were absent for short
periods.
two cans at a time, ‘‘double indexing.’’ Along the way other
parts of the process were automated.
At the start of the operation, the cans are loaded on the
line. Then a steel ball is automatically dropped into each can.
The cans move to the fillers, where they are filled with what-
ever product, paint, striper, finish is being processed.86 After
filling, valves are installed manually in each can, the cans are
automatically crimped and checked for proper vacuum. Tips
are automatically installed, the cans move to the ‘‘gas
house’’ to be loaded with propellant, they go through a warm
water bath to check for weaknesses or leaks, they are auto-
matically labeled and manually capped, then, finally, reach
the end of the line, where an employee boxes them, moves
the boxes onto a belt to be sealed, and moves the sealed
boxes off the line onto skids (or pallets).
With this more automated system, only four employees are
required; one loading cans on the line, one installing valves,
one capping, and one person boxing and unloading the line.87
This figure of four employees does not include a mechanic
and a quality control person, both of whom participate in the
running of the operation.
A film clip was shown at the hearing, and entered into
evidence as Respondent’s Exhibit 40, showing the operations
substantially as testified to by Burnside, with the exception
that all phases of the operation are not shown in the film.
I have viewed the film several times and I find from the
film, as well as all the testimony about the aerosol operation,
that the jobs on the line are not skilled or even semi-skilled
in content. The tasks are repetitious, not difficult and not
heavy, except for the removal of sealed cases from the line
to skids. I note that Burnside testified that all of the workers
on the film clip were temporary employees (hired by the
Company on a contract basis). Burnside estimated that em-
ployees needed 3 to 6 weeks to be trained for these jobs, but
my observation of at least some of those jobs being per-
formed on the film convinces me that only minimum training
would suffice.
Burnside also testified that the line holds 285 cans from
one end to the other. The speed of the line is determined by
how many cans per minute (cpm) can be filled by the auto-
matic fillers. He stated that when they were operating under
a single index system, the line production never exceeded
26–30 cpm. On double indexing, they could run as high as
70 cpm, but actually averaged only 45–50 cpm. Burnside es-
timated that on an 8-hour shift, he got only 455 work min-
utes, 7 hours and 36 minutes, out of his workers. Many fac-
tors contributed to slowdowns on the line, equipment failure,
accidents, jammed machines, or human error. I note that line
speed may vary considerably in those circumstances, and
speeding up or slowing line speed will not result, necessarily,
in increase or decreased cpm figures.88
2. Transfers to the aerosol line
Paragraph 7(g) of the complaint alleges that Betty Bates
was transferred to the aerosol line on April 24, 1991. Para-
graph 7(k) alleges that Tina Pendergrass, Treasure Chestnut,
Teresa Kee, and Vicki Maxfield were transferred to the aero-
sol line on April 29, 1991; and paragraph 5(a) of the com-
plaint in Cases 9–CA–29183 and 9–CA–29351, issued on
March 20, 1992, alleges that Al Isaac, Elaine Jones, and
Debbie Middleton were transferred to the aerosol line on
September 4, 1991.89
All of these transfers are alleged to be in retaliation for
the transferees’ union or concerted activities.
Betty Bates was working in building A on Canadian prod-
ucts on April 24, the day after Merrill had spoken to the
building A employees.90 Larry Parsons told her to get her
personal belongings, that she was going to be ‘‘cross-
trained.’’ She worked in the aerosol room until she collapsed
on April 29 and was taken out of the plant by ambulance.91
Tina Pendergrass testified that she was transferred to the
aerosol line on the same day that Betty Bates became ill.
Pendergrass did not say that anyone told her she was to be
cross-trained in the aerosol room.92
Treasure Chestnut testified that on the morning of April
29, Terry Merrill asked her if she was on the in-house orga-
nizing committee. She said she didn’t know what he was
talking about. He went and got a letter of April 25 to him
from Jim Newport, naming Chestnut as an in-plant organizer.
He had John MacLeod with him and he said he was not in-
terrogating her but was just confirming something. He asked
if that was her name on there, saying ‘‘the Union can lie but
we can’t.’’
After lunch that same day, Larry Parsons came to Chestnut
and told her to go to the aerosol room. He gave her no rea-
son, and she reported as ordered.
Teresa Kee had an experience similar to Chestnut’s. After
the Union’s April 25 letter was received, Terry Merrill and
John MacLeod came up to Kee. Merrill asked if that was her
name on the letter (as an in-plant organizer). She asked
‘‘what does it say?’’ Merrill replied that sometimes people
lie when they put things on paper. Later that day she was
sent to the aerosol line. As with Bates, Parsons told Kee that
she was being cross-trained.
Victoria (Vickie) Maxfield testified that she was working
on the hardener line when she was confronted by Merrill
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 At this point, the afternoon of April 29, out of the 10 employees
named by the Union as in-plant organizers, Sue Brewer and Velvie
Wood had been discharged on April 25, Betty Bates, Tina
Pendergrass, Treasure Chestnut, Teresa Kee, and Vickie Maxfield
had been transferred to the day shift on the aerosol line, and Pam
McNew had been transferred to the aerosol night shift. This left only
Curtis Compton, who was still a paintmaker, but restricted in his
movements. The only in-plant organizer who was not fired, reas-
signed, or restricted was Judy Quillen, about whom not a word ap-
pears in this record.
94 See sec. III,C,1, above.
95 See sec. III,C,1, above.
96 Pete Burnside estimated the speed of the line as shown on the
film clip, made in December 1992, at 48 cpm. He based that esti-
mate not on statistics, but on his count of the number of thumps,
audible in the film clip, made by the filler machines filling cans with
product. As Burnside stated, the speed of filling determines the
speed of the line.
97 She was moving fast on her return from stacking boxes on a
skid to the boxing area at the end of the line. The film did not show
her moving from boxing to stacking, but I infer that she had to move
fast there also.
98 She had had an exchange with Blizzard on May 10, see sec.
III,B,2,e, above.
99 The noise level in the aerosol room was high. Burnside said it
was louder than it seems to be on the film clip, and Joan Gearden
testified that she spoke to management about hearing protection for
aerosol employees.
With her name on the Union’s April 25 letter. She said it
was. That occurred about 11 or 11:15 in the morning. That
afternoon Maxfield was told by Parsons that she was being
sent to the aerosol line for cross-training.93
Merrill testified about these transfers, saying that ‘‘directly
or indirectly’’ it was his idea. He said that he told people
he needed ‘‘some cross-training on everybody. Start training
everyone’’ He told Blizzard to start this program, but it had
nothing to do with the Union.
Blizzard said, in his testimony, that Merrill wanted to add
versatility to people who worked in the aerosol room and he
told Blizzard to transfer these people to packaging jobs. Ger-
aldine Broadus, Debbie Middleton, Ruth Edmondson,
Michelle Smith, and Lois Phillips were transferred out to
make room for the other employees named above.
Broadus and Middleton testified about their experiences in
and out of the aerosol room94 but neither they, nor anyone
else who testified here, mentioned one word about receiving
any training, ‘‘cross’’ or otherwise. As I indicated above,
concerning my impression from the film clip of the aerosol
operation, and my conclusions from other testimony here, the
jobs in this plant are essentially unskilled, mechanically re-
petitive tasks which require no training other than basic in-
structions and experience to gain competence in these simple
functions. There is no evidence of any sort of training in this
plant, and no demonstrated business reason for the transfers
of five in-plant organizers, within days of the Company’s re-
ceiving notice of their union activities, to the aerosol line
where, as will be seen, they suffered harassment, discomfort,
injuries, warnings, and suspensions, and, ultimately, either
disability discharge or resignations. In this separated area,
apart from the plant and other workers, the Union in-plant
organizers could be quarantined off from other employees.
The Company’s ‘‘siege mentality,’’ and its angry, even fren-
zied, reactions to the exposure of knowledge about its proc-
esses and practices, lead to my conclusion that the aerosol
room lent itself to use as a kind of insulated holding pen to
prevent the spread of unionism among its employees. I find,
therefore, that by transferring Pendergrass, Chestnut, Kee,
Maxfield, and Bates to the aerosol line, Respondent was re-
taliating against them for their union activities in violation of
Section 8(a)(1) and (3) of the Act.
It follows, then, that the assignment to the aerosol line,
was a punishment for union activities and a separation of
known union activists, and the assignments of Al Isaac,
Elaine Jones, and Debbie Middleton to the line in September
are further violations of Section 8(a)(1) and (3).
3. Conditions of the aerosol line
Paragraph 7(l) of the complaint alleges that, about April
29, the Company intentionally speeded up the aerosol line,
closed doors and shut off fans, and denied employees the
right to take breaks to use restrooms or use drinking foun-
tains. Paragraph 7(gg) alleges that the Company, from mid-
September to mid-November 1991, imposed more onerous
working conditions on employees in the aerosol room, in-
cluding menial tasks not part of their regular duties. Para-
graph 7(hh) alleges that, about November 5, the Company re-
quired employees Al Isaac, Betty Bates, Elaine Jones, and
Debbie Middleton to submit to physical examinations and
suspended Middleton because of the results of her examina-
tion.
Before considering the allegations here, I will first con-
sider the question of the speed of the line. Both the General
Counsel and the Respondent have submitted statistics and
claim that those figures are favorable to their respective posi-
tions. As in the incident involving Geraldine Broadus,95 I
rely here on the testimony of those working on, and familiar
with, the line.96 Charles Bailey, the aerosol line mechanic,
did not testify, but I do not read any significance into that.
It is too easy to manipulate the speed of the line even for
short periods where production figures, or cpm numbers,
would not reflect a speedup or slowdown. Any statistics
based on hours of operation, or raw production numbers,
could be distorted and inaccurate. In the film clip (R. Exh.
40) when the line speed was estimated at 48 cpm, I noted
that the temporary employee at the end of the line in the
boxing and stocking operation was obviously hurried.97
As to the speed of the line and its effect on employees,
a number of employees testified.
Connie Robinson was transferred in to the line on May
15.98 She had worked on the line before, on overtime, when
necessary, but was given no ‘‘cross training’’ in May 1991.
She was assigned to the beginning of the line, installing
valve stems. Burnside yelled at her that if valve stems were
not installed properly, they would float up in the can, would
stop the machine and shut down the whole line. He told her
that the line was ‘‘only’’ moving at 51 cpm, it was going
to go faster and she would keep up. She did manage to keep
up, but at breaktime she was moved to the beginning of the
line, putting the empty cans on the line. While she was doing
this she tripped on a skid that was ‘‘too close to the ma-
chine’’ and fell down. Robinson’s sister Bonnie Wilson, who
was also working on the aerosol line, ‘‘hollered99 to
Burnside that Connie was hurt. He would not stop the line,
and would not help Robinson up off the floor. He finally
came over and told her either to go to the clinic or get back
325TALSOL CORP.
100 A medical facility used by the Company.
101 She testified that she filed a charge with the Regional Office,
concerning her discharge, but that charge was dismissed.
102 The Respondent supplied, for this record, a chart published by
the National Oceanic and Atmospheric Administration (NOAA),
more commonly referred to as the Weather Bureau, showing tem-
peratures and humidity for the Cincinnati area for April 1991. The
chart shows that April 29 was the hottest day of the month with a
high of 77 degrees Fahrenheit, 12 degrees Fahrenheit above normal
for the date (R. Exh. 64).
103 For her interview with Blizzard that day, see sec. III,C,2.
104 Chestnut also filed a charge with the Regional Office, which
was dismissed.
105 There was no water fountain in the aerosol room. Employees
had to go to another building to get a drink.
106 Later that day Wilson had another talk with Blizzard. See sec.
III,B,2,h.
107 Wilson also filed charges, which were dismissed.
108 See sec. III,E,3,a, above.
109 McNew said the line was running fast. Geraldine Broadus ob-
served that after McNew left, the line slowed down. See sec. III,c,1.
to work. Finally Teresa Case helped Robinson into a chair,
and then drove her to Bethesda Clinic.100
Robinson testified that she had not worked since May and
was discharged by Respondent on October 3, 1991.101
Treasure Chestnut reported to the aerosol room on April
29. She said it was hot, the fans were off, and the (outside)
doors were closed.102 Chestnut stated Burnside had denied
her request to open the doors and turn on the fans, but after
Betty Bates had to leave he said, ‘‘I guess you girls want
the fans turned on and the doors opened.’’
Chestnut also said that while she was working, on May 8,
she heard Burnside say to mechanic Charles Bailey to
‘‘speed up the line until she couldn’t keep up.’’ Chestnut
then observed that the line was going faster. Burnside did
say to Chestnut, between April 29 and May 15, that the line
was being run faster because the Company wanted a 3-month
supply of products for ‘‘when us people went on strike.’’
Chestnut mentioned another incident on May 13 when she
was inserting valve stems in cans containing a solvent called
‘‘towel strip.’’ The solvent was splashing out of the cans and
burning her skin, so she put a household-style rubber glove
on the hand that was used to insert the stems. Burnside came
up and told her that the glove was slowing her up, and to
take it off.
On May 15, Chestnut tripped over a wire and was hurt.
She returned to work on May 24.103
On May 29, Chestnut was shifted to the end of the line,
where she received a stream of abuse from Burnside over her
work at boxing and stocking. She was then assigned to the
gas house (where the propellant is inserted into the cans).
She was instructed by Bailey to take the tips out of the cans.
One of the cans exploded and Chestnut was injured. She was
later discharged.104
Victoria (Vickie) Maxfield was transferred to the aerosol
line on April 29. She had worked there once or twice before
when some one was out sick or they were short-handed. She
was given no training, but was told by Burnside to move
faster. That first week was hot and humid the whole week.
She asked Burnside if she could get a drink of water and he
replied she could get it on her break.105 Maxfield confirmed
Chestnut’s story about Burnside telling Bailey to speed up
the line so they couldn’t keep up.
Maxfield resigned at the end of June because they were
put on a mandatory 12-hour day and she could not work that
much.
Bonnie Wilson, Connie Robinson’s sister, was assigned
with her to the aerosol line on May 15. She recalled
Burnside’s statements that they would get production out,
‘‘no matter what,’’ and his remarks, after their break, that the
line was going ‘‘very, very, fast’’ and that they would keep
up ‘‘no matter what.’’ When he was asked how fast it was
going, he said 52 but he could turn it up to 62. Burnside also
told them, that day, that they could not leave to go to the
bathroom without his permission. This applied whether the
line was running or not.
After that they were running stripper and Wilson got some
splashed into her eye. She left and did not come back until
May 28. On that day she got overheated and Blizzard took
her to his (air-conditioned) office.106 That afternoon Blizzard
took her to his office again and told her that they were
watching her, and she was not to talk to the OSHA inves-
tigator Joan Geaden. Later Wilson was injured while working
with Chestnut in the gas house. She had not returned to work
at the time of this hearing, but she had been fired as of Octo-
ber 3, 1991.107
Teresa Kee was transferred in to the aerosol room on April
24. It was hot, the doors were shut, and the fans turned off.
Kee asked Burnside to turn on the fans and open the doors.
He said he couldn’t because the Company was trying to save
electricity.
After lunch Kee was putting stems in cans. Burnside said
that they were going to turn the line up to 55 cpm. The line
was going extremely fast and Kee ended up missing some
stems, some cans exploded in the gas house, and Burnside
turned off the line.
On May 15 Kee, along with Tina Pendergrass, got sick
and went home. Kee returned a week or so later108 and quit
in June.
Pamela R. (Pam) McNew had worked on the aerosol line
night shift from around April 24 until after the election on
May 10.
On May 22 it was very hot. The fans were on but they
did little good. McNew went to the restroom feeling ill.
When she came out Blizzard and Burnside were there. They
asked her if she was all right. She said she thought so, but
Burnside said she couldn’t work. Blizzard brought her to the
office and gave her some water. She then went home and
saw the Company’s doctor.109
She came back on May 28. Blizzard met with her and ac-
cused her of lying. He said he didn’t send her to the com-
pany doctor that she lied about it, and he fired her. As she
had been the person who filed the complaint with OSHA,
she went to that agency. She was then reinstated on June 3
by an agreement between the Company and OSHA. When
she came back she was assigned to the solvent line for 2
weeks then back to the aerosol line.
Betty Bates was transferred to the aerosol line on April 24
with Teresa Kee. On April 26 Bates became nauseated from
fumes. She went to the restroom and met Blizzard when she
came out. He asked her if she wanted to go to a doctor. She
said no, the day was almost over, and she would stick it out.
That morning, Blizzard came up to Bates at the aerosol line.
He said, ‘‘You’ve had it easy up to now, but now you’re
going to work.’’ He said he couldn’t understand why she
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
110 Counsel’s words. I note that almost all of Burnside’s testimony
was elicited by series of leading questions, questions which clearly
suggested the answer. There was no objection, but this method of
questioning does have a bearing on the weight I give to the answer
derived.
111 The five named by Burnside, plus Teresa Kee, who was moved
into the aerosol room on April 24.
went from the Company to the Union. She said it was be-
cause she was demoted after being so loyal to the Company
and had money taken away from her. Why else wouldn’t she
go to the Union? Blizzard said: ‘‘That’s not all we’re going
to do to you.’’
On April 29, Bates said the aerosol room was ‘‘like a
sauna.’’ She asked Burnside if they could open the doors and
turn on the fans, and he said no. She was sweating, her
glasses were steamed up, and her face flushed. She felt that
the line was running faster than she had experienced before.
Blizzard came up to her and told her she would have to
pick up her pace. He again mentioned that she was on the
wrong side, but now she was going to work. She said she
had nothing against the work, but please open the doors and
turn on the fans. Blizzard answered that they couldn’t open
the doors, and told Bates to tell Newport to quit making
threats against the lives of himself and Merrill. That was the
reason the doors weren’t open. She asked about the fans and
he said, ‘‘I guess they’re broken.’’ Soon after that Bates col-
lapsed and was taken to a hospital.
She remained in the hospital for 5 days, diagnosed as a
near heat stroke. She remained out until July 16. She went
back to the aerosol line. While working on that day or the
day after, she asked Debbie, the quality control person there,
to relieve her while she went to the restroom. When she got
back Burnside told her not to do that again, that Tina
Pendergrass had been written up and suspended for the same
thing.
About September 4, Al Isaac, Elaine Jones, and Debbie
Middleton were transferred to the aerosol line. Isaac had
been elected employee representative in the OSHA investiga-
tion, Elaine Jones was an elected union shop steward, and
Debbie Middleton had been accused by Blizzard of having
been ‘‘corrupted’’ by Pam McNew.
Tina Pendergrass testified about some of these matters.
While I do not credit her testimony generally, I find that she
was subject to the same discriminating treatment as others
whose testimony I do credit.
Pete Burnside testified that he never ordered the line
speeded up to retaliate against employees. He did say that
with the double indexing of the aerosol line, they were able
to eliminate the second shift in April and handle all produc-
tion on the first shift. He claimed that the line speed was not
increased in May, but had been increased at the time double
indexing was started, and was running in the 40 cpm range
in May.
Paragraph 7(l) of the complaint alleges that the Company
speeded up the aerosol line and denied employees the right
to use restrooms or get water to drink.
Burnside denied that people were not allowed to go to the
restrooms or drinking fountains, but he did admit he changed
his policy in April. He claimed that people were abusing his
policy, and he ‘‘started losing control of where the people
were at.’’ Two people were causing problems, Pendergrass
and Bates, and their disappearances from the work area were
interfering with the work. Burnside then required all the em-
ployees to obtain Burnside’s permission before leaving the
department. Before, when the line was running, people could
contact him, the quality control person, or the line mechanic
to be relieved to go to the restrooms or drinking fountains.
He changed that to require that the employees see him per-
sonally to be relieved.
Burnside denied speeding up the line or telling Charles
Bailey to speed it up. He admitted that he is a strict manager,
admitted yelling, but denied he called employees stupid or
yelled any more than necessary to be heard over the noise
of the line. Burnside denied keeping the door closed to create
an ‘‘oppressive work environment.’’110 He remarked some-
thing about security and said he didn’t mind the atmosphere
in the aerosol room.
Burnside was also led into commenting on the numbers of
people taken ill and injured during this time.
The circumstances here, where a group of six111 employ-
ees transferred into the aerosol room in April and May alleg-
edly for cross-training, all of whom were members of the in-
plant organizing committee, replacing five employees, none
of whom were members of any in-plant committee, or other-
wise identified (up to then) as union supporters, and who
also were allegedly destined for cross-training, are certainly
suspicious. The more so because there is no evidence of any
cross-training for anybody, or any business reason for such
training in this low-skilled atmosphere, beyond Terry
Merrill’s expressed desire to move and cross-train people.
So people were moved around, in the middle of a closely
fought union campaign, moving six in-plant organizers into
a separate manufacturing location within the plant, where,
perhaps they could organize each other. Two other in-plant
organizers, Brewer and Wood, had been fired on April 24,
leaving only two still outside the aerosol room, Compton,
who was restricted in his movements, and the unknown Judy
Quillen.
The evidence is also clear that, when these employees ar-
rived in the aerosol room, their movements were restricted,
first, by the confining nature of the work, and, second, by
Burnside’s orders that, whether the line was running or not
they must seek his permission to go to the restroom, or get
a drink. Burnside’s explanation, that Pendergrass and Bates
abused the prior system, is not credible. There is no evi-
dence, apart from Burnside’s bare assertion, that anyone
abused the system.
The employees were also subject to cruel and oppressive
working conditions. The statements by Blizzard that Bates
was ‘‘really going to work now,’’ and Burnside’s remarks
that the line was going to be speeded up and the employees
would ‘‘keep up, regardless’’ were warnings that conditions
were going to be harder. Closing the outside doors and turn-
ing off ventilating fans on the hottest day thus far in the
year, on a flimsy excuse that a threatening telephone call had
been received by a secretary in the office, shows an intention
to impose oppressive working conditions on these union sup-
porters.
Moreover, in an atmosphere loud with the noise of ma-
chinery, and with the shouts and abuse coming from
Burnside, in a hot, humid, environment with a speeded-up
production line, it is little wonder that employees became ill
or injured. I am sure that Connie Robinson did not purposely
fall over a misplaced skid. Burnside’s comment to her, when
327TALSOL CORP.
she was laying on the floor of the plant, to get up and go
to the clinic, or go back to work, is particularly cruel. Bonnie
Wilson did not intentionally splash solvent into her eye, even
though Blizzard may have, as he said, gotten solvent on him-
self, washed it off, and continued to work, unlike ‘‘Union
troublemakers.’’ Treasure Chestnut did not purposely trip
over an electric cord, and Bates, Kee, McNew, and
Pendergrass did not willfully sicken themselves from fumes,
heat, and humidity.
On the basis of all these findings, I find that Respondent
did move Bates, Kee, McNew, Pendergrass, and Maxfield
into the aerosol room in retaliation for their union activities,
that Respondent subjected these employees there with iso-
lated and oppressive working conditions, and undue restric-
tions on their movements, and in their use of restrooms and
drinking facilities, all to prevent their engaging in union ac-
tivities in violation of Section 8(a)(1) and (3) of the Act.
4. Layoffs on the aerosol line
Paragraph 7(aa) of the complaint alleges that on Septem-
ber 4, 5, and 10, 1991, employees in the aerosol room were
laid off. By the end of the summer in 1991, Maxfield and
Kee had quit; Robinson, Wilson, Chestnut, and McNew were
out on sick or injured leave; and Pendergrass and Betty Bates
were the only survivors of the original group transferred into
the aerosol room in April and May. Pendergrass was fired
on September 13. But before that on several earlier dates,
September 4, 5, and 10, the employees in the aerosol room
were sent home early, around 9 or 9:30 a.m. by Burnside,
who told them that there was no work.
This had never happened before, according to Al Isaac,
who had 13 or so years’ experience with the Company in
1991. Isaac said that in his years of experience no employees
had been sent home in the middle of a shift. If work ran out
they were reassigned to another job to finish up the day.
Burnside told the employees this was a new policy and from
now on they were going to be sent home whenever there was
no work on the aerosol line.
5. More onerous working conditions for
aerosol employees
The complaint alleges in paragraph 7(gg) that employees
in the aerosol room were given more onerous working condi-
tions from September to November 1991.
After September 10, there was another change. Instead of
being sent home, the aerosol employees were assigned to
cleaning tasks in the aerosol room and throughout the plant.
They were given wire brushes, putty knives, solvents, and
strippers and were set to cleaning paint off the floors of the
plant. They were also told to clean what were described as
‘‘filthy’’ restrooms, to shovel or sweep snow, to pull weeds,
and do a number of tasks that, according to Isaac and Bates,
production employees had never done before.
In regard to this last, I note that there was testimony from
Teresa Kee about similar work done in April, and from Cur-
tis Compton about nonproduction work assigned in May and
June. I do not think there is enough evidence that this kind
of work, difficult and menial though it may be, was so dif-
ficult than what would be reasonably required almost contin-
ually in a paint factory to find that it was imposed in retalia-
tion for union activities.
On the layoffs, however, I find that this constituted a new
and changed condition of employment, and because of the
extensive retaliatory practices by Respondent, I find that the
purpose of this, too, was to punish employees for having
chosen the Union as their representative, in violation of Sec-
tion 8(a)(1) and (3) of the Act.
6. Disciplinary actions in the aerosol room
The complaint alleges a number of instances of discipline
meted out to employees in the aerosol room in the period
from July through November 1991, as follows:
Paragraph 7(t) Reprimands to Betty Bates, July 23,
29, September 9 & 11.
Paragraph 7(u) Suspension of Betty Bates, August 2.
Paragraph 7(v) Imposed more onerous work on Tina
Pendergrass, July 10.
Paragraph 7(w) Issued reprimand to Tina Pend-
ergrass, July 10.
Paragraph 7(x) Disciplinary warning to Geraldine
Broadus, July 26.
Paragraph 7(y) Suspension of Pam McNew, August
19.
Paragraph 7(bb) Reprimand to Elaine Jones, Septem-
ber 9.
Paragraph 7(cc) Suspension of Tina Pendergrass, Au-
gust 30.
Paragraph 7(ee) Reprimand of Al Isaac, October 30.
Paragraph 7(ff) Docked pay and issued point to
Betty Bates November 1
5(a) February 14, 1992 complaint, Discharge of Pam
McNew, December, 1991.
5(b) March 20, 1992 complaint. Discharge of Pam
McNew, December 1991
5(a) October 14, 1992 complaint. Transfer of Isaac
and Bates.
a. Betty Bates, paragraphs 7(t), (v), and (ff)
After her collapse and hospitalization on April 29, Bates
returned to work on July 16. Things had not changed. On her
first day back in the aerosol room Blizzard said to Burnside,
in Bates’ presence ‘‘I wonder how she’s doing without her
buddy here, Curtis, now that he’s gone.’’
On July 19, Bates was warned for improperly installing
valves. Her problem was a new rule that employees had to
wear safety glasses. She wore the safety glasses, but she had
to continue to wear her own glasses. As a result of the safety
glasses worn over her bifocals, her own glasses steamed up
and she couldn’t see well enough to put the valves in the
cans properly. (Apparently no one there knew about the
availability of prescription safety glasses.) She told Burnside
of her problem, but he told her to speed up, constantly called
her a liar, and said she was trying to trick him.
On July 19 Bates was issued a warning, for a group one,
rule 14 offense. Group one is defined as ‘‘serious misconduct
and will almost always result in discharge.’’ Rule 14 is ‘‘In-
tentional interference with production, or the work of another
employee.’’ This shows that Burnside thought that Bates was
intentionally slowing down. I don’t know what Terry Merrill
was thinking when he wrote his comments on this warning.
He wrote ‘‘Ms. Bates is a packer and must perform her
packer duties satisfactorily.’’
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
112 Because of my doubts about Pendergrass’ testimony, I do not
find the alleged refusal by the Company to allow union representa-
tion here to be a violation of law.
Bates got a second warning on July 26. This time it was
for a group two, rule 1 violation, ‘‘poor work performance’’
but arose out of the continuing problem Bates was having
with seeing because of the requirement to wear non-
prescription safety glasses. On July 29, she was warned again
for the same thing. Finally, Bates was transferred from the
valve stem job to the end of the line, boxing and stocking
finished product. While she was working on this some boxes
fell off the line. Burnside issued her another warning on Au-
gust 1, and Merrill authorized a 3-day suspension from Au-
gust 5 through 8. When Burnside handed Bates the suspen-
sion notice she claimed she was being harassed. Burnside
told her that if she didn’t like it, she could use her time on
suspension to find another job.
After her suspension Bates returned and things went along
well until September 6 when she was written up for ‘‘run-
ning in the work area,’’ a violation of group two, rule 10,
failure to follow safety procedures. As far as I can tell from
this record, there is no rule against running. Indeed, I noted
in the film clip (R. Exh. 40) that the employee at the end
of the line was nearly running the short distance from stack-
ing boxes to the place where she was boxing cans.
Bates received another warning on September 11. This one
was for violation for group two, rule 5, ‘‘conducting personal
business during work hours without authorization.’’ Bates ex-
plained that another employee named James Hunter asked
her a question and she didn’t answer him. She was not sus-
pended for this violation.
On November 1, Bates and Elaine Jones were assigned to
scrub the floor in the gas house. While they were working
with a solvent Bates noticed that the whole sole of her shoe
fell off. She went and showed the shoes to Burnside. She
said she needed a new pair of shoes. Burnside replied for her
to do what she had to do. She left the plant, went and bought
a new pair of shoes, and came back to work. Burnside said
to her, ‘‘now see if you can’t keep them a little cleaner.’’
He also told her to put pieces of cardboard under her feet.
Bates testified that the solvent ate through the cardboard, and
part of Jones’ shoe was eaten by the solvent. Bates was
docked 1 hour’s pay for going to buy the shoes, and she re-
ceived one-half an attendance point.
Burnside’s testimony merely reflects his comments on the
various warnings. He mentioned nothing about safety glasses.
It is obvious from all of the facts I have found here that
it was the intention of this Company to rid itself of these
union activists, one way or another. Bates and Tina
Pendergrass were the only survivors of the in-plant commit-
tee group indentified to the Company in March and April.
There is no indication that the attitudes of top management
had changed with the certification of the Union in August.
In fact, a reading of the warning notices, charges of inten-
tional interference with production, of physical problems, to
charges of ‘‘running’’ in a department where speed of the
line and urgency of production were the only important fac-
tors for Pete Burnside, shows that Burnside was reaching
anywhere he could to harass and intimidate Bates. His rea-
son, as he urged her to find another job while she was on
suspension, was obvious—to get rid of Bates, one way or an-
other. I find all of these disciplinary notices, Bates’ suspen-
sion, the docking of her pay on November 1, and the half
point to be violations of Section 8(a)(1) and (3).
b. Tina Pendergrass
Pendergrass testified that she received a written warning
on July 9 for a violations of group two, rule 3, leaving her
work area without permission. She refused to give any expla-
nation to the Company at the time she received the notice,
but she testified at this hearing that she had gotten some sol-
vent on her hand and went to the restroom to wash it off.
While I have doubts about her story, I still believe, in the
light of all the Company’s actions in this case, that discipli-
nary warnings were issued to union activists and sympathiz-
ers, regardless of the fault of the individual and without con-
sideration of any extenuating circumstances.
Similarly, I find that Pendergrass’ warning and a 3-day
suspension on August 30 were a part of a continuing cam-
paign of harassment and retaliation for employees’ union
sympathies and activities.112
I therefore find that by issuing warnings to Tina
Pendergrass on July 9 and August 30, and the 3-day suspen-
sion from September 9 through 11, are violations of Section
8(a)(1) and (3) of the Act.
c. Geraldine Broadus
Broadus was transferred back to the aerosol line in July.
On July 26 she was given a disciplinary warning for poor
work performance. She was charged with failure to keep up
with the line while installing valve stems. Broadus was sus-
pended back in May for alleged disloyalty, but there is no
indication that she was a union activist or sympathizer. I,
therefore, cannot find that this isolated warning was the re-
sult of the campaign which I have found was directed against
more prominent union adherents. I do not find a violation of
law in this instance.
d. Pam McNew
McNew returned to work after having been reinstated by
agreement between OSHA and the Company on June 3. She
was assigned to the solvent line for a couple of weeks, then
sent back to the aerosol line. She testified, credibly, that
Burnside’s attitude had changed completely after the Union
started its campaign. He would stand behind the employees
while they were working and call them names. She said it
was completely different from the way it was before the
Union.
On August 19, McNew was keeping Bates supplied with
boxes and trying to keep the boxes from falling off the con-
veyor belt. Two boxes did fall off, and Burnside looked at
McNew and told her that if it happened again he would write
her up. McNew said ‘‘Okay’’ and continued to work. Later
that day Burnside came to her and said she was being sus-
pended for 3 days because of the box incident. McNew stat-
ed that boxes had fallen many times before, and employees
had merely been told to be more careful and they would
check the boxes for damage to the contents.
I find this to be a further case of harassment of a union
activist and a violation of Section 8(a)(1) and (3) of the Act.
329TALSOL CORP.
113 ‘‘That,’’ presumably meaning whether to allow the leave to
continue, or not.
114 R. Exh. 43.
115 Although we know, from this record, that Treasure Chestnut,
Connie Robinson, and Bonnie Wilson were all injured.
116 Including service on the Union’s negotiating committee through
late 1991 and all of 1992.
After this McNew continued on the aerosol line. Her arm
had begun to pain her before the suspension and got worse
after she came back to work.
The condition worsened until, around August 26, she was
in severe pain, particularly when she was required to place
boxes of product on the skids. She was putting cans on the
line shortly after August 26, when there was a skid on top
of the cans she needed. She asked Pete Burnside to have the
skid removed because the line was moving fast and she
couldn’t get at the cans. He did not do it, so she moved it
herself. After that her arm hurt so bad she could not continue
working. Burnside sent her home, saying that if she couldn’t
do the work, she had to go home.
She was under a physician’s treatment for what was diag-
nosed as tendentitis. She spoke to John MacLeod about this,
and she said she had filed a claim under workers’ compensa-
tion. However, the Company apparently had not received any
notice of the workers’ compensation claim by September 9,
so MacLeod wrote McNew a letter telling her she was dis-
charged because of excess absentee points. This was recog-
nized as an error, and McNew was reinstated. But this was
only temporary. She remained out on disability, and on De-
cember 19 MacLeod fired her again, saying that since she
had not reported to work since August 26 they could no
longer hold her job open.
McNew was examined by two different physicians, her
own physician and a physician recommended by the Union,
but she did not keep appointments made for her with com-
pany selected physicians. Her compensation case was still
pending as of the day she testified, May 26, 1992.
The Respondent maintains that it is entitled under its pre-
existing policy to discharge anyone who has been absent for
any reason for longer than 13 weeks without some idea when
that person is going to return.
Beyond this, the Respondent maintains that McNew should
have reported the injury before she did, that she did not work
at all in the aerosol room from June 6 to July 24, worked
only 8 days from July 24 to August 2, on August 16, 23,
and 26, when she went home because of her alleged injury.
To document this, Respondent presented through Pete
Burnside a list of people allegedly working in the aerosol
room from June 6 to August 26, 1991. Respondent thus
claims that McNew’s injury could not have been caused by
overwork on the aerosol line.
Respondent also brought in an expert witness, a physician
named Dr. David Randolph. Dr. Randolph was asked his
opinions on whether boxing and packing cans could have
caused McNew’s claimed injury, and whether either or both
of the diagnoses she received from doctors who examined
her were correct. To both of these questions he gave negative
answers. He said she could not have received the injury she
described from the work that she did, and the two other doc-
tors had made incorrect diagnoses.
With regard to the Company’s argument that it had a pol-
icy governing employees on ‘‘leave of absence,’’ John
MacLeod testified that the Company allows 13 weeks for a
leave of absence, then, if there was a written estimate of a
return time, they ‘‘would consider that.’’113 If there was no
written estimate, then the employee was discharged. A list114
was presented allegedly showing all employees ‘‘discharged
after extended leaves of absence.’’ There was no timespan
given, but the first discharge on the list is given as July 15,
1988. There is no indication on this document that it in-
cluded those employees absent because of work-related inju-
ries115 nor was there any testimony, nor any record concern-
ing employees who had not been discharged for being on
leave of absence, or work-related injury leave.
I have found in this case that figures and statistics pre-
sented by the Respondent should be examined very carefully,
and I have noted, with respect to the direct testimony of
Merrill and Blizzard, that artfully phrased questioning can
permit testimony which skirts or avoids areas which could
bring out facts contrary to the positions taken by Respondent.
I draw no inference from that state of things here, but the
claim that Company has a firm policy on this point is not,
in my opinion, supported by substantial evidence.
I also have problems with Respondent’s figures on
McNew’s employment in the aerosol room. I have already
indicated that I do not trust Burnside’s testimony. Likewise
I do not trust the figures allegedly showing aerosol line staff-
ing.
To the argument that McNew was tardy about reporting
her problem, I can respond by noting that she thought it was
just a strain and would go away and that she kept going until
it got too severe for her to continue. I would have thought
that the Company would have applauded such dedication to
her job.
Finally, I have problems with Dr. Randolph’s objectivity
here. He was less than candid in responding to questions
about his association with the Company, and I think that his
opinions regarding the reports made by other physicians indi-
cate that his differences are with those doctors, not with
McNew. Reasonable men (and women) can differ, and dif-
ferences of opinion among famous as well as just ordinary
doctors are widespread and notorious.
Summing up, I do not think that the Respondent has over-
come the prima facie case presented by the General Counsel
showing McNew’s union activity,116 and Respondent’s ac-
tions against her and others, including that very assignment
which apparently brought about her injury and absence for
the 13-week period.
I therefore find that the Respondent has not established its
policy to discharge employees after the 13-week period de-
scribed above, by a preponderance of the evidence and that
it has violated the law in discharging McNew. Wright Line,
251 NLRB 1083 (1980); Merrillat Industries, 307 NLRB
1301 (1992); W. F. Bolin Co., 311 NLRB 1118 (1993).
e. Elaine Jones
Jones was disciplined on September 9 for a violation of
group two, rule 1, poor work performance. She testified that
she was putting cans in boxes and running the boxes into
machine that glued the boxes. When the boxes are pushed
into the machine, there are two clamps that grasp it and pull
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
117 If she was not being observed, how did he know she was twist-
ing the boxes, rather than there being some other reason for the
boxes not going correctly through the glue machine?
118 Isaac testified that Bates was suspended on her third night on
the shift, and had not returned at the time he was testifying, on De-
cember 7, 1992.
119 In its brief, the General Counsel states, without further expla-
nation, that Elaine Jones, the other steward, had been fired ‘‘a cou-
ple of months before.’’
it through evenly. What was happening to Jones that day was
that one clamp would catch the box and the other wouldn’t.
This twists the box and can tear the box and, sometimes,
damage the cans inside. Burnside observed this and came up
to Jones, yelling that she was deliberately putting the boxes
in crooked. He stood there ‘‘yelling and yelling.’’ She told
him if she wasn’t doing it right, to get someone who could.
He said that she was going to do it right or go home. At
3:45 that afternoon he gave her a warning report, stating that
when she was ‘‘not being observed she is twisting
boxes.’’117
Burnside testified that Jones was not pushing the boxes so
that the dogs (clamps) would grab them properly. This expla-
nation may be more logical, but that is not what Burnside
wrote on Jones’ disciplinary warning. I believe that by
issuing Jones a warning that she was intentionally twisting
the boxes was done in retaliation for her union activity. By
September Jones was a shop steward and a member of the
Union’s negotiating committee. I find this to be a violation
of Section 8(a)(1) and (3) of the Act.
f. Al Isaac
Isaac testified that on October 30, 1991, he was scraping
out tanks. He was wearing protective gear, rubber gloves,
safety glasses, and a respirator. On his break he had gone to
the restroom. He was there when he heard the first buzzer
indicating the end of the break, but he did not come out of
the restroom until after the second buzzer, 1 minute later.
Burnside accosted Isaac when he emerged from the restroom.
He asked Isaac where he had been and Isaac told him he had
to use the restroom. Burnside then said that he was late from
his break and would be written up.
Isaac testified, credibly, that people were always allowed
to use the restroom, and if they returned late from their
breaks no supervisors had ever said anything to them.
Burnside did not testify about this incident. Respondent in its
brief refers to a prior incident on May 3, 1989, almost 2-1/2
years before, when Isaac was warned for talking to a former
employee on company time, and to an instance when another
employee had been reprimanded for ‘‘returning late from a
break.’’ In fact, this warning, which was issued to Tom
Franklin on March 31, 1989, over 2-1/2 years before, was for
overstaying his lunch hour for 38 minutes. I do not feel that
either of these instances are applicable to an employee, load-
ed down with safety equipment, walking out of a restroom
just after the second warning.
Isaac had not been a union supporter, but he had been in-
volved as an elected employee representative during the
OSHA. In view of all the circumstances, and particularly the
Company’s hostility to OSHA and its investigation, I find
that this warning was in retaliation for Isaac’s participation
in the OSHA investigation and a violation of Section 8(a)(1)
of the Act.
g. Al Isaac and Betty Bates
On Monday, August 24, 1992, Al Isaac testified that he
and Betty Bates were called into Burnside’s office. Larry
Parsons was there. Isaac and Bates were told to report to the
night shift on August 27 at 4 p.m. Betty Bates asked if the
Union knew about this. Burnside said that the Company
knew what it was allowed to do and that the two employees
just had to show up.
When they reported, they were the only two permanent
employees on that shift. All the others were agency (tem-
porary) employees.118
The General Counsel alleges that these transfers were mo-
tivated primarily because Bates was the only union steward
left on the job.119 No reason is advanced for the transfer of
Isaac.
The Company did not address this incident either through
testimony or in its brief.
I find that, in the light of what is now a weighty accumu-
lation of discriminating actions, that the only logical expla-
nation for this transfer is that Bates was a union steward, and
on the night shift, with no other regular employees but she
and Isaac, she was completely neutralized as a union officer.
Isaac went along, I find, because of the Company’s hostility
to his role in the OSHA investigations. I find that these
transfers are further violations of Section 8(a)(1) and (3) of
the Act.
7. Physical examinations for aerosol room employees
The complaint alleges in paragraph 7(hh) that employees
were required to submit to physical examinations and that
the Company suspended Debbie Middleton for allegedly fail-
ing a drug test. Paragraphs 11(g) and (h) allege that these
drug tests were implemented without bargaining with the
Union.
On November 5, 1991, Al Isaac said that he and Debbie
Middleton were working, scraping, outside the buildings.
Pete Burnside came out and told Isaac that he had to go to
the Bethesda Clinic, used by the Company for medical serv-
ices, for a breathing test.
When he got to the clinic, a woman who worked there
told him that he was there for a physical. They took his
pulse, checked breathing, gave him a urine test and a drug
test and weighed him.
Betty Bates testified that Burnside told her on November
5 that she had to take a breathing test. As in Isaac’s case,
she ended up with a complete physical. She had not been re-
quired to take a physical while working for the Company,
except for a preemployment examination.
Elaine Jones and Debbie Middleton told basically the same
story. Middleton ran into a complication, however, because
a few weeks later she was called into the office with Chris
Dixon, Larry Parsons, and Dave Blizzard. Blizzard told her
that she had failed the drug test and would be suspended
until she could pass. She said she was shocked, but she
agreed to take another test that day, which she passed. She
missed 2 days of work.
The Company relies on an excerpt from OSHA regula-
tions, which was not introduced during the hearing, but was
included as an appendix to Respondent’s brief, without any
331TALSOL CORP.
120 I note also that Isaac, for one, was using a respirator on Octo-
ber 30, the day he was reprimanded for coming out of the restroom
late. He certainly had not had a physical at that time, and the record
does not reveal how long he had been wearing the respirator, or how
many other employees had been wearing them and for how long.
121 McNew is not named in these sections of the complaint.
opportunity to examine witnesses concerning this regulation,
which seems to require that employees using respirators
‘‘shall be physically able to perform the work and use the
equipment.’’ Assuming that these examinations were given to
those who were required to use respirators in the course of
their work, I do not, and cannot, know on the basis of this
record what kinds of tests are appropriate under the regula-
tion.120 The Company made no effort to show the relation
of these tests to the regulation.
Moreover, the testing of Isaac and the others was the first
such test they were required to take. There is no question
that the Company did not discuss the requirement to take the
test with the Union. This requirement, therefore, is unlawful,
and a violation of Section 8(a)(1) and (5) of the Act. Any
adverse results of this unlawfully implemented policy are the
responsibility of the Respondent. Therefore the suspension of
Middleton is likewise unlawful under Section 8(a)(1) and (5),
Boland Marine Mfg. Co., 225 NLRB 825 (1976); Lockheed
Ship Building Co., 273 NLRB 171 (1984); Newark Morning
Ledger Co., 311 NLRB 1254 (1993).
G. The Allegations of Violations of Section 8(a)(4)
The complaint alleges in paragraphs 7(jj) and 14 that Re-
spondent violated Section 8(a)(4) of the Act, by discharging
Sue Brewer and Velvie Wood as alleged in paragraph 6(b);
by transferring Brewer and Wood as alleged in paragraphs
7(e) and (f); and by transferring, then downgrading, Curtis
Compton as alleged in paragraphs 7(i) and (j).
The General Counsel’s theory for these violations is con-
tained in their brief as follows:
Integral to General Counsel’s theory concerning the
individual allegations is the context of Respondent’s
overall course of conduct in which they arose. Both
Blizzard and Merrill expressed deep rooted and ongoing
attitude(s) of extreme animus toward employees’ union
and other protected concerted activities. It is clear from
the record that both harbored and exhibited a paranoid
fear that unionism led to many ills including slow
downs, sabotage, death threats along with OSHA in-
spections and NLRB charges. It is further clear that
Merrill and Blizzard blamed the union activists for the
complaints with Federal agencies and persisted in
equating the Union with the NLRB as well as OSHA.
Given the prevasive merged animus toward the employ-
ees’ union/NLRB/OSHA activities, the complaint al-
leges that certain of Respondent’s conduct also violated
Section 8(a)(4) of the Act. In other words based on
Merrill’s and Blizzard’s expressed assumptions that
NLRB charges were part of the ‘‘harassment’’ by the
Union, it is submitted their animus toward both were a
motivating factor in their conduct toward Brewer,
Compton, and McNew121 as alleged in the complaint.
[Footnotes omitted.]
Section 8(a)(4) makes it an unfair labor practice for an
employer ‘‘to discharge or otherwise to discriminate against
an employee because he has filed charges or given testimony
under this Act.
It may stretch the point to accuse Blizzard and Merrill of
‘‘paranoid’’ reactions, but the rest of this description of the
actions of these two executives is certainly accurate and re-
flects my findings throughout this decision.
However, in this case, the record shows that all of the
charges which were filed with the Board were filed by the
Union, either signed by James C. Newport, the coordinator
of this campaign, or by Attorney Peter M. Fox. Further, I
find no evidence that Brewer or Wood or Compton gave any
testimony before the commencement of this hearing, long
after the events applicable to this section. It seems to me, as
I have repeated many times in this decision, that the attitudes
of Merrill and Blizzard, as implemented by them and by
other, lower level supervisors, were the result of the employ-
ees’ action not in filing charges or testifying before the
Board or OSHA, but because they were union activists and
sympathizers. That was enough, and the mere fact that they
may have been named in Board charges or complaints would
not have made one iota of difference in their treatment.
I will recommend that this allegation of violation of Sec-
tion 8(a)(4) of the Act be dismissed.
H. Refusal to Allow Union Representation
Paragraphs 5(a) and (b) of the complaint which issued on
May 7, 1992, alleges that Respondent refused to allow union
representation for employees during disciplinary interviews.
Pamela Willinsky testified that she had worked at Talsol
for over 2 years. She had been a shipping clerk, or a shipper,
since August 1990.
In March 1992, Willinsky was called in to Supervisor
Chris Dixon’s office twice to discuss and receive employee
discipline reports. The first of these disciplinary proceedings
concerned charges by the Company that Willinsky had made
three shipping errors in the last 2-1/2 months before March
17, 1992.
Willinsky testified that she asked for union representation,
and Elaine Jones, then a steward, came in to discuss the dis-
cipline with Dixon, Jim Zimmerman, and Willinsky.
Willinsky testified that Jones was told by Dixon that she was
just there as an observer. The same thing occurred on the
next day when Willinsky was given a warning that she had
accumulated seven and a half attendance points. Jones was
there and Jones was told the same thing.
Jones testified that she was called in to a meeting between
Willinsky, Dixon, and Zimmerman. Dixon said to her that
she was there as a witness only, and she was not allowed
to say anything. Jones also testified that she was called in
as steward to another meeting that same day for a discipli-
nary meeting involving another employee, Ruben Harris. She
testified that she was told the same thing by Dixon, she was
just there as a witness.
A third meeting occurred when Willinsky was being writ-
ten up again. And again Jones was told she was just there
as a witness.
Dixon and Zimmerman both testified about the meetings
with Willinsky and Jones. Both insisted that Jones was not
forbidden to speak. They said that she was told she could ask
questions of the employee, but could not interrupt the super-
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
visors when they were going over the discipline involved. I
note also an exhibit, a memorandum from Merrill to super-
visors, including Zimmerman and Dixon (R. Exh. 53) which,
in its final paragraph states that
If the Union steward does attend, she may freely par-
ticipate in the meeting. However, the steward cannot in-
sist on speaking for the employee; the employee may
be required to answer legitimate work-related questions.
The steward’s presence should be documented, either
on the discipline report of (sic) separately. If the stew-
ard interferes with or obstructs the investigation, report
it to me. This should also be documented.
This little paragraph strikes me as an instruction which
could very easily be misconstrued by either the supervisors
applying it in a disciplinary meeting or the steward and the
employee present at the meeting.
I have found Jones to be an intelligent and candid witness.
I think she reported to us just what she heard, and I think
that any misunderstanding of Merrill’s memorandum was on
the part of Dixon and Zimmerman. I find that Dixon’s in-
structions to Elaine Jones in the March 17 and 18 meetings
violated the rights of the employee here, Willinsky, to be
represented at these disciplinary meetings; and a violation of
Section 8(a)(1) of the Act. NLRB v. Weingarten, 420 U.S.
251 (1975); San Antonio Portland Cement Co., 277 NLRB
338 (1985).
I. The Allegations of Violations of Section 8(a)(5)
1. The June pay raise
Paragraph 11(a) of the complaint alleges that the Respond-
ent unilaterally failed to follow its past practice of perform-
ing job evaluations and granting wage increases to unit em-
ployees.
There is no dispute that the Respondent had a practice of
reviewing employee performance in the spring of each year,
and awarding raises to those considered worthy. Figures sub-
mitted by the Company show that 24 employees received
raises in June 1990; 15 in June 1989, and employees re-
ceived raises at times other than in June in the period from
1987 to the time of this hearing. While I have commented
here that I do not trust unverified figures produced by this
Company, I think these particular statistics comport with the
testimony of employees that evaluations were made and
raises given in June.
As previously noted, the election here was held on May
10, 1991, at which time there were 17 votes for the Union,
16 votes against, and 4 challenged ballots. One of these was
found to have resigned on March 26, and the challenge to
his ballot was sustained by the Regional Director. The other
three challenges were of Ernest Fultz, Sue Brewer, and
Velvie Wood, whose cases are discussed in this decision.
The Regional Director recommended that the ballots of these
three be opened and counted. The Board, in a decision dated
July 23, 1991, agreed, and ordered the ballots of Fultz,
Brewer, and Wood to be opened and counted. The revised
tally of ballots then showed 20 votes for the Union and 16
against representation. The Union was certified as bargaining
representative for Talsol’s employees on August 12, 1991.
On May 31, Attorney Gary Greenberg wrote to Jim New-
port announcing that his firm would be representing Talsol
in negotiations. He assumed that the Union would be cer-
tified and stated that he was ‘‘acting accordingly.’’ Green-
berg stated with regard to the June pay increases, that ‘‘this
year, the Company believes it should not do so at this time
because of its legal obligation to maintain the status quo
pending negotiations. If you wish to discuss this, please let
me know.’’
Newport responded on June 5, urging that the Company
continue its past practice of granting increases in June.
On June 7, Greenberg wrote Newport again, proposing
that the June wage reviews be postponed ‘‘pending negotia-
tions for a contract.’’ On June 24, Greenberg wrote and dis-
cussed the Company’s plan to increase the wages of three
paintmakers by $2 per hour. Again he asked Newport to let
him know if he wanted to discuss this matter.
On June 27, Newport answered, rejecting the Company’s
plan to raise the paintmakers’ wages, and indicated that he
was willing to negotiate wages for all employees.
Greenberg replied to this on June 28, advising that the
Company was going to go ahead with the raises to the
paintmakers.
There was some conversation between Newport and
Greenberg on this issue, but no resolution was reached.
Greenberg did not testify here.
The problem with the Company’s position here is that the
Union was not certified in June and, while it may have
seemed likely to both Greenberg and Newport that the Union
would be certified, there was no certainty. If either the Com-
pany or the Union had entered into negotiations in June over
these discretionary pay raises, or over the paintmakers’
wages, they would have been in danger of violating the law,
just as the Company would have been in danger of violating
the law if it unilaterally made changes in terms and condi-
tions of employment before the challenges were determined,
and if, in fact, the determination of challenges resulted, as
it did here, in the certification of the Union. Mike O’Connor
Chevrolet-Buick-GMC Co., 209 NLRB 701 (1975); Allis-
Chalmers Corp., 286 NLRB 219 (1987).
As claimed by the General Counsel, the wage review pro-
gram was a term and condition of employment, and a unilat-
eral change in that condition of employment, despite the cas-
uistry of an offer to bargain with a noncertified union, was
a violation of Section 8(a)(1) and (5) of the Act. Daily News
of Los Angeles, 304 NLRB 511 (1991), and cases cited there-
in. Anaconda Ericson, Inc., 261 NLRB 831 (1982), is not
really applicable here since the situation in that case involved
a wage increase during the actual course of negotiations.
2. New safety rules
The complaint alleges in paragraph 1(b) that the Company
issued a new set of safety rules on June 3, 1991. Here, there
was no contact with the Union. Certainly safety rules are
terms and conditions of employment, and unilateral changes
of safety rules, as with the wage increases discussed in the
previous section, may violate Section 8(a)(5). Here, there
was an ongoing OSHA investigation, but there is no claim
on the part of the Company that these new rules were pro-
mulgated pursuant to that investigation. Moreover, I cannot
agree with the Company’s position that these rules were only
333TALSOL CORP.
122 Peerless Food Products, 236 NLRB 161 (1978).
123 A case with which I had some slight connection in younger and
happier days.
124 I have serious doubts about Pendergrass’ credibility in this as
well as other matters.
125 Parsons testified that the new quotas were ordered by Terry
Merrill because the latter thought employees were ‘‘laying down on
the job.’’
clarifications of existing policy,122 since they set out entirely
new policies in the area of punishments for employees’ not
observing safety rules. This is substantive, rather than merely
procedural, and was a material change which, as noted
above, Respondent initiated in that time period at its peril.
I find that this change in rules violated Section 8(a)(1) and
(5). Herman Sausage Co., 122 NLRB 168 (1958); Little
Rock Downtowner, 168 NLRB 107 (1968).123
3. Change in restroom policy
Paragraph 11(c) of the complaint alleges that about July
10, the Respondent implemented a new procedure under
which employees could temporarily leave their job stations.
The General Counsel maintains that this change in policy oc-
curred about July 9 in a conversation between Pete Burnside
and Tina Pendergrass.124 I have found (sec. III,F,6,b) that the
discipline against Pendergrass at about this time violated
Section 8(a)(1) and (3) of the Act. My recollection of the
facts in this case shows that the rules restricting employees
in the aerosol room were instituted long before July (see
secs. III,F,3 and 5) and while enforcement may not have
been consistent there were restrictions similar to those com-
plained of here, not only in the aerosol room, but elsewhere
in the plant (see secs. III,B,2,b and c) as early as mid-April.
I therefore do not find that the General Counsel has
estalished that restroom rules were changed in July 1991.
4. New work quotas
The complaint alleges in paragraphs 11(d), (d)(i), and
(d)(ii) that about August 2 the Respondent unilaterally imple-
mented new work quotas for employees in the shipping de-
partment. Thereafter it issued a disciplinary warning to em-
ployee Mike Vanney pursuant to those new work quotas, and
later suspended Vanney.
The facts show that the shipping department had operated
for some time with a production goal of 20 orders per day
for the whole department.
Early in August, Supervisor Larry Parsons announced to
employees a new quota of 60 cases per employee per
hour.125 No notice was given to the Union.
Under this rule an employee named Randy Stevens was
warned by an employee discipline report on August 19, and
employee Mike Vanney was suspended for 3 days on August
9 and for an additional 6 days on September 20.
Here, as with the pay raises, and the safety rules discussed
in this section, the Company unilaterally, imposed, new
working conditions, and issued discipline to employees under
those unilaterally imposed conditions. I find that the Com-
pany has further violated Section 8(a)(1) and (5) by these ac-
tions Mike O’Connor Chevrolet-Buick-GMC Co., supra.
5. Layoffs in the aerosol department
Paragraph 11(e) alleges that, about September 4, the Re-
spondent instituted a system of laying off employees for
parts of workdays. This has been discussed above in section
III,F,4. There was no notice to the Union about this change
in policy and such change is a further violation of Section
8(a)(1) and (5) of the Act. San Antonio Portland Cement,
277 NLRB 309 (1975).
6. Change in working hours
Paragraph 11(f) of the complaint alleges that, about Au-
gust 7, Pete Burnside changed the hours of work on the aero-
sol line day shift from 7:30 a.m. to 4 p.m. to 6:30 a.m. to
3 p.m. Burnside testified that he changed the hours at em-
ployees’ request to spend less time working in the hottest
parts of the days.
This may be true, but work hours are still a condition of
employment and, even though the Union had not yet been
certified, the Respondent violated the law by such a unilat-
eral change. I find this to be another violation of Section
8(a)(1) and (5) of the Act. San Antonio Portland Cement,
supra.
7. Physical examinations and drug testing
These matters have been considered above in section
III,F,7 of this decision.
IV. THE REMEDY
Having found that the Respondent has committed numer-
ous unfair labor practices I shall recommend that it cease and
desist therefrom, and that it take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that the Respondent has violated the law by
issuing employee discipline reports to a number of employ-
ees, I shall recommend that all such reports be removed from
the Respondent’s files, and all records of such discipline be
expunged.
Having found that the Respondent has violated the law by
transferring employees to other departments and other shifts,
I shall recommend that it offer any employees to transferred
immediate transfer back to the shifts or departments from
which they were transferred.
Having found that Respondent has suspended employees
Geraldine Broadus, Sue Brewer, Betty Bates, Tina
Pendergrass, Pam McNew, Elaine Jones, Alan Isaac, and
Mike Vanney, I shall recommend that records of those
supensions shall be removed from the employees’ files and
that the employees be made whole for any wages lost due
to those suspensions.
Since I have found that employees working on Respond-
ent’s aerosol line on various dates in September 1991 were
unlawfully laid off, I shall recommend that those employees
working on those days, to be determined at the compliance
stage of these proceedings, shall be made whole for the
wages they lost on those days.
Having found that Respondent has unlawfully discharged
Teresa Greene, Ernest Fultz, Curtis Compton, Darryl
Denham, Sue Brewer, Velvie Wood, and Pam McNew, I
shall recommend that these employees be offered immediate
and full reinstatement to their former positions or, if those
positions are not available, to substantially equivalent posi-
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions, together with all seniority and other rights and privi-
leges to which they would have been entitled, but for the dis-
crimination against them, and that they may be made whole
for any wages and other benefits they may have lost by rea-
son of the discrimination against them, less any interim earn-
ings, with the amounts due and interest thereon computed in
accordance with the formulas in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987); F. W. Woolworth Co., 90
NLRB 289 (1950).
Having found that Respondent has withheld wage in-
creases to which bargaining unit employees were entitled and
would have received but for the Respondent’s unilateral con-
duct in violation of Section 8(a)(5) of the Act, I shall rec-
ommend that each of the affected employees in the bargain-
ing unit be made whole for the increases they would have
received since May 31, 1991, by payment to them of the dif-
ference between their actual wages and the wages they would
have otherwise received, with interest there on computed as
described above.
Having found that the Respondent has unilaterally imposed
a requirement on employees to take physical examinations,
including drug tests, I shall recommend that it rescind this
requirement and also rescind all punishments administered to
employees for alleged failure to pass a drug test removing
from those employees’ files all references to such discipline.
In this case the violations I have found are of such griev-
ous and aggravated nature as to show a calculated disregard
for the statutory rights of employees and have caused em-
ployees to be deprived of their rights since April 1991. In
such a case, I believe that a broad remedial order is war-
ranted. Hickmott Foods, 242 NLRB 1357 (1979).
CONCLUSIONS OF LAW
1. Talsol Corporation is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Since August 12, 1991, the Union has been the certified
bargaining agent for a unit of Respondent’s employees, de-
scribed as follows:
All full-time and regular part-time production and
maintenance employees employed at Talsol’s Union
Township, Ohio, Facility, including all warehouse Em-
ployees, shipping clerks, packers, shippers/pickers,
paintmakers and color matchers, but excluding all office
clerical employees, managerial employees, technical
employees laboratory employees, saleman, temporary
employees, and all professional employees, guards and
supervisors as defined in the Act.
4. By threatening employees, creating the impression that
employees’ union activities were under surveillance, by pro-
mulgating rules, and by harassing employees the Respondent
has violated Section 8(a)(1) of the Act.
5. By issuing warnings to employees, by disciplining and
suspending employees, by reducing the wages or docking
pay of employees, by transferring employees from one shift
to another, or one department to another, and by discharging
employees, the Respondent has violated Section 8(a)(1) and
(3) of the Act.
6. By requiring employees to take physical examinations
and drug tests, by punishing an employee for allegedly fail-
ing a drug test, by failing to follow its past practice of annu-
ally evaluating employees and granting wage increases, by
unilaterally implementing new job quotas, by unilaterally im-
posing new system of layoffs, and changing work hours, the
Respondent has violated Section 8(a)(1) and (5) of the Act.
[Recommended Order omitted from publication.]