Tendico, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 735 (N.L.R.B. 1977)

TENDICO, INC.
Tendico, Inc., a subsidiary of Ripley Industries, Inc.,
and Ripley Industries, Inc. and Retail Clerks
Union, Local 1557, Retail Clerks International
Association, AFL-CIO. Case 26-CA6302
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 6, 1977, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge, to
modify his remedy, 3 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Tendico, Inc., a
subsidiary of Ripley Industries, Inc., and Ripley
Industries, Inc., Nashville, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not herein found.
I The Respondent has excepted to certain credibility findings made by
the Administrative law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dray Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and lind no basis for reversing his findings.
2 Chairman Fanning would find that. under the circumstances present in
this case. Respondent's obligation to bargain with the Union commenced on
September I. 1976, the date it refused to bargain.
I In accordance with our decision in Florida Steel (orporarion, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: A
hearing in this proceeding was held on December 7, 8, 9.
1976, at Nashville, Tennessee, based on a charge filed
against Tendico Inc., a subsidiary of Ripley Industries,
Inc., and Ripley Industries, Inc., by Retail Clerks Union,
Local 1557, Retail Clerks International Association, AFL-
CIO, herein called the Union, as subsequently amended
and a complaint issued by the Acting Regional Director on
October 15, 1976, and subsequently amended by the
Regional Director on October 29 and November 22, 1976.
which alleges that Respondent violated Section 8(a)( ), (3),
and (5) of the National Labor Relations Act, as amended,
by engaging in a course of coercive conduct including, inter
alia, the layoff of employees Terry Brewer and Gerald
Sears and the discharge of employee Gary Bentley, Steve
Dunn, and Glen Greer; and by refusing to recognize and
bargain with the Union.
Respondent denied the substantive allegations of the
complaint, but admitted the jurisdictional and labor
organizational status and supervisory status allegations of
the complaint with the exception of the allegation of
supervisory status of Joe Lindsey. At the hearing Respon-
dent conceded the appropriateness of the unit as alleged in
the amended complaint.
On the entire record in this case, including my observa-
tion of the witnesses, their demeanor, and consideration of
briefs which were submitted by the parties on December
31, 1976, 1 make the following: '
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Ripley Industries, Inc., herein called Respondent Ripley.
is a corporation licensed to do business in the State of
Missouri, with an office and place of business located in St.
Louis, Missouri, where it is engaged in the manufacture of
shoe heels, marking dies, and related products. Tendico.
Inc., herein called Respondent Tendico, is a wholly-owned
subsidiary of Ripley Industries, Inc., and is a corporation
and licensed to do business in the State of Tennessee with
an office and place of business located in Nashville,
Tennessee, where it is engaged in the manufacture of
cutting dies.
During the 12-month period preceding the issuance of
the complaint, Respondent Ripley in the course and
conduct of its business operations purchased and received
within the State of Missouri goods valued in excess of
I Par. II of the complaint which alleged an unlawful interrogation of
employees by Joe Lindsey was withdrawn at the hearing. The complaint set
forth no further coercive conduct by Lindsey. Respondent's and General
Counsel's unopposed motion to correct the transcript is granted.
232 NLRB No. 118
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 directly from points located outside the State of
Missouri, and, during the same period of time, it sold and
shipped from locations within the State of Missouri goods
valued in excess of $50,000 directly to points located
outside of the State of Missouri. Respondent Tendico,
during the 12-month period preceding the issuance of the
complaint, in the course and conduct of its business
operations, sold and shipped from its Nashville, Tennessee,
location, goods valued in excess of $50,000 to each of
certain customers within the State of Tennessee, each of
whom, in turn, during the same period of time, in the
course and conduct of its business operations, purchased
and received within the State of Tennessee goods valued in
excess of $50,000 directly from points located outside the
State of Tennessee, and each of whom has, during the same
period of time, sold and shipped from its location within
the State of Tennessee goods valued in excess of $50,000
directly to points located outside the State of Tennessee.
Respondent Ripley and Tendico is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Respondent Tendico is a wholly-owned subsidiary of
Ripley Industries, Inc., which as a parent corporation
maintains an office and place of business in St. Louis,
Missouri, where it is engaged in the manufacture of shoe
heels, marking dies, and related products. Respondent
Tendico has a plant located in Nashville, Tennessee, where
it is engaged in the manufacture of cutting dies. In this
process Respondent's employees manufacture cutting dies
for use primarily in the shoe and clothing industry. In this
process pieces of steel are bent, filed, ground, polished,
nicked, plated, and painted.
From June 1975 until December 1976, Respondent
Tendico has employed at one time or another a total of 90
employees. The full complement of production employees
at any given point in time averages less than 20 persons.
Thus, during the period from August 21, 1976, to October
16, 1976, the employment total varied from a high of 22 to
a low of 17.
Within the Nashville plant these employees are distribut-
ed to work in two departments; i.e., a "beverly depart-
ment," and an "open department." Essentially, the job
functions are the same in the two departments except that a
different type of block and a different type of steel is
utilized in performing the work in the respective depart-
ments. The number of employees employed in the "beverly
department" has ranged from 5 to 10 while the number in
the open department has ranged from a minimum of 5 to 6
or a maximum of 8 or 9. Doug Johnson holds the position
of plant manager. Carl Gilley is the plant superintendent.
Bob Riley serves as a foreman in the open department
while Joe Lindsey serves as a "leadmen" in the beverly
department. As noted earlier, Respondent denies the
allegation in the complaint that Joe Lindsey is a supervisor
within the meaning of the Act.
On August 24, 1976, an initial contact was made by
employee Glen Greer with a representative of the Union at
Nashville, Tennessee, at which time he executed a union
authorization card and received 25 blank cards. Subse-
quently, union authorization cards were executed by other
employees and the demand for recognition was served on
Respondent on or about August 30. On that date, two
employees were laid off and three were terminated.
Thereafter, Respondent, according to General Counsel,
engaged in a course of conduct calculated to dissipate the
alleged majority status of the union and recognition was
subsequently denied by Respondent. Respondent contends
that it is entitled to a Board-conducted election of which
no request was made nor a petition filed with the Board,
and that the two employees were laid off as a result of a
disciplinary measure in punishment for misconduct origi-
nating prior to union activity; that employee Bentley was
terminated because of poor work and excessive absentee-
ism; that employee Dunn was terminated because of
misconduct; and that employee Greer voluntarily quit his
employment. Respondent further denied that it engaged in
the numerous acts of coercive conduct alleged in the
complaint.
1. The union organizing campaign
On August 25 a meeting was arranged by Greer with
about eight of his fellow employees at the parking lot of the
We-Sack-It Market, a small grocery store located approxi-
mately 200 yards from Respondent's plant. The meeting
took place at or about 3:35 p.m. after work. At this
meeting, Greer solicited and obtained eight executed cards
from employees: Guynn, Cates, Tinsley, Harbin, Sears,
Bentley, Bass, and Dickinson. Greer, also on the same day,
visited the home of employee Terry Brewer and successful-
ly solicited his signature on a card.
On August 26 employee Steve Dunn visited Local Union
Representative Don Norwood at his office and signed a
card for him. On August 26, during the employees' lunch
break, Greer successfully solicited the signature of employ-
ee Johnny Pentecost in the parking lot of the plant. During
lunch break, Sears discussed with Craddock the signing of
a card. During the lunch break, Craddock and Sears left
the plant to drive to the parking lot of the We-Sack-It-
Market. There Craddock executed a card for Sears.
In the afternoon of August 27, the Union caused a
mailgram to the be sent to Respondent Tendico at the
Nashville plant wherein recognition was requested for "all
employees employed by the employer . . . excluding
supervisors, office clerical, guards and watchmen as
defined in the Act." Therein the Union asserted that it
represented a majority of employees in the unit and offered
to submit to the employer, or to an impartial third party
the union authorization cards for verification. Request was
made to meet with Respondent Tendico "anytime during
the week of August 30, 1976."
Plant Superintendent Doug Johnson testified that he
received a telephone call on Saturday, August 28, concern-
ing a mailgram in which the calling party stated that the
call was for Carl "Gillbey." Johnson testified that he
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TENDICO, INC.
assumed that the caller meant Carl Gilley the plant
manager and responded that Gilley would be in on
Monday morning and to call back Monday morning.
Johnson testified that he received the mailgram message
through a telephone call at or about 8:45 a.m. on Monday,
August 30; i.e., the demand of recognition. Respondent
Tendico received a written telegram on Monday, August
30, at approximately 2:30 p.m., wherein recognition was
requested, and thereafter a second written copy of the same
message was received on Wednesday, September 1, 1976.
Respondent by letter of counsel sent on September 1, 1976,
declined to recognize the Union until certified by the
Board. No petition for election was filed by the Union. The
initial charge in this matter was filed with the Regional
Office on September 1, 1976.
2. The layoff of employees Sears and Brewer
The shift commenced at 7 a.m. on Monday, August 30.
When employees Greer, Dunn, Sears, and Brewer ap-
peared for work on that morning they were wearing on
their persons union buttons which read "Retail - 19 Clerk -
76 - Union - September - AFL-CIO." The button is
approximately the size of a nickel coin and is printed
against a black and blue background.
Brewer and Sears, like employees Craddock and Taylor,
had been assigned the function of bending which they
performed by means of a foot-operated kick-block machine
or a manually operated "hand-block" machine. In the past,
when work had been slow and there was not enough work
to keep one type of machine going, benders had been
assigned to practice bending dies to fill out their workday.
It had been known for a bender to practice for an entire
day; i.e., 8 hours.
Sears testified, without contradiction, that he engaged in
a conversation with Foreman Riley several weeks prior to
the contact with the Union. In that conversation, Sears
testified that he told Riley that the employees "really
needed a Union in the shop, like they got in St. Louis." He
further testified that Riley responded "no, we didn't" and
Riley further stated that "they always had a lot of trouble
out of the Union in St. Louis and that out there they just
work the men 1 day a week if they wanted to, and when
they didn't have any work, they got sent home."
Sears testified that on the morning of August 30, as he
and Brewer were blocking, Riley approached him and
stated there was no work for benders. Whereupon Sears
questioned him as to the reason and Riley stated: "Well,
you guys want a Union. Well, you got one, and just like the
one in St. Louis, when your work is caught up, then you go
home." Sears testified that he asked Riley "what about
practicing?" and he, Sears, cited the history of practicing
during downtime and that Riley responded: "Well, that's
different now. Things have changed." Sears testified that
he protested the need for work and that he had a family to
support but that Riley merely responded: "Well, you
should have thought about that before you brought all this
matter on yourself." Sears testified that he argued: "Well,
what about Jerry Taylor?" and that Riley responded "Well,
Jerry Taylor has work." Sears testified that he asked for
work in other areas of the shop and Riley merely
responded "no" and walked away. As Sears left, he
testified that he observed Riley talking to Brewer but he
didn't hear what was being said. He then left the plant.
Brewer testified that, like Sears, he was wearing a union
button on his shirt the morning that he clocked in at or
about 6:45 a.m. and wore it while he stood by the filing
table. He testified that Riley came over to him and said
that there was not any work for kick-block benders in the
open die department "today" and that he was told to clock
out. He testified that he clocked out "with nothing else
said."
Riley testified that on the morning of August 30,
pursuant to the instructions of Plant Manager Johnson and
Plant Superintendent Carl Gilley of that morning, he told
Sears that there was no work that morning; i.e., no
bending. He testified that Taylor was bending on the hand-
block and Craddock was practicing bending with the hand-
block machine. Riley testified that he had observed both
Brewer and Sears in the several weeks prior to this event
engaging in excessive talking and "running all over the
shop" when they were supposed to be either kick-blocking
or practicing kick-blocking. He was corroborated by
Gilley. He testified that he warned Sears about going
around talking and leaving his machine instead of
practicing and that he also witnessed that Gilley warned
Brewer about the same thing. Brewer and Sears admitted
that they had been talked to prior to the union activity
about staying on the job and excessive talking. Johnson
testified that he and Gilley made the decision to take Sears
and Brewer off the practicing, on the morning of August 30
at 6:45 a.m. or shortly thereafter when he arrived at the
shop and "got the mail" and checked it with Gilley and
observed that there was no work; i.e., no patterns came in
on Saturday in the mail to necessitate the kick-bending of
dies. Johnson testified that he and Gilley had discussed
Brewer's and Sears' meanderings the previous Friday and
then decided to take them off practicing instead of giving
them work when the next occasion arose and send them
home as a punishment. Therefore, Johnson testified that
Gilley informed Riley to tell Sears and Brewer at or about
6:58 a.m. that they were to be sent home. Johnson testified
that he was present when Mr. Gilley instructed Riley to
send Brewer and Sears home. He testified that Gilley
merely told Riley to send home Sears and Brewer "because
there was no work." He said nothing further. Gilley did not
testify as to the deliberation to send Brewer and Sears
home. Although he testified as to other matters, Riley did
not testify to any further conversation with Sears on
August 30 other than to cryptically testify that he told both
Sears and Brewer that they were being sent home because
of lack of work. He did not specifically deny Sears
testimony as to the conversation on August 30 nor did he
deny that any further conversations with Sears took place
after the announcement to send home Sears and Brewer.
He did not explain whether or not he talked to them
collectively or individually.
Sears testified that, later in the day on August 30, he
telephoned Riley and asked if there were any work and
that Riley responded that there was none, but was told to
check the next day, Tuesday. On Tuesday, August 31,
Sears testified that he returned to work between 6:30 a.m.
and 7 a.m. and talked to Riley in the shop and asked for
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work but was told there was none. According to Sears, he
stated that if there were no work then he was either fired or
laid off, but that Riley responded "no, you're neither one."
Sears testified that he then responded to Riley "well, it
seems strange to me that all of a sudden we got no work
and we're being treated this way since we've been wearing
our union buttons." Riley testified that he engaged in no
telephone conversation with Sears in the afternoon of
August 30, but that he saw Sears next on Tuesday in the
shop at or about 6:45 a.m. and told Sears that there was no
work for him. Riley conceded that Sears asked why there
was no work for Brewer and himself, although Taylor and
Craddock were working. It should be noted that Taylor has
less seniority than Sears who had been employed since
October 1975 when he was hired by Gilley. However,
Riley, according to his own testimony, merely responded
that there was "no bending for them." Riley further
conceded that he was asked by Sears if Sears were laid off
or fired and that he did respond "neither." Riley testified
that he told Sears that Sears would be called back as soon
as there was work and told him to call in on the telephone
the next morning. Riley did confirm that Sears observed
that it was strange that there was no work for Sears and
Brewer since they wore the union buttons, and that he,
Riley, did not respond to that comment.
Brewer had also appeared that morning at the shop for
the purpose of asking for a "separation slip." He observed
Sears talking to Riley and heard Riley tell Sears that he was
not discharged nor laid off and therefore Brewer walked
away. Later that afternoon, Brewer testified that he
telephoned Johnson and asked if there were any work and,
upon being informed that there was work, he returned at
12:30 p.m. to commence work.
Sears received a message through his wife, on August 31,
to return to work on September 1. Therefore he resumed
his work at 7 a.m., September 1. During the afternoon of
September 1, Sears was assigned to practice bending dies.
Up to this point, it is clear that neither Sears nor Brewer
were ever warned, prior to August 30, that they were to be
laid off as a disciplinary measure because of their excessive
talking and walking around the plant nor were they told on
August 30, or thereafter, that the reason for them being
sent home on August 30 was for disciplinary reasons. No
written warning was served on Sears nor was any notation
entered into his personnel file prior to August 30.
Respondent argues that Sears' testimony with respect to
his conversation with Riley concerning the reasons for his
being sent home on August 30 should not be credited. It is
argued that Brewer did not corroborate Sears as to the
account of what Riley told them. However, a careful review
of the record will fail to disclose that anyone including
Riley testified that Brewer and Sears were in close
proximity when Riley told them of the reason they were
being sent home. Sears testified that he was approached by
Riley while engaged in bending work, whereas Brewer
testified that he was at the filing table not at the bending
machine when Riley approached him. Sears testified that
he was leaving at that point in time when Riley com-
menced making comments to Brewer. Riley did not
2 This is particularly revealed in the circumstances surrounding the
discharge of Dunn.
contradict them. Other testimony in the record reveals that
the noise level is so high in the plant that normal
conversations cannot be overheard even when individuals
are in close proximity.2 It is also not strange that Riley
should engage in a more expansive discussion with Sears
than he did with Brewer. Sears had been employed since
October 1975, whereas Brewer had been employed only
since July 1976. Riley did not deny the preunion activity
conversation to which Sears testified and which I credit.
Riley's testimony as to what he told Sears on August 30
was framed in a general reference of what he told Sears and
Brewer and was cryptic and conclusionary. As noted he did
not specifically deny the most damaging elements of that
testimony. Moreover, the thrust of that conversation is
much akin to the opinion he expressed to Sears many
weeks earlier, i.e., that union activity would result in a
detriment because, if there were no work, employees would
be sent home instead of being utilized on make-work
projects.
With respect to the August 31 conversation with Sears,
Riley's account essentially tracks that of Sears. Even Riley
conceded that he made no response in the form of a denial
to Sears' observation that it was strange that there was no
work available ever since he and Brewer started to wear
union buttons. In view of the fact that Riley did not tell
Sears that he and Brewer were being sent home for
disciplinary reasons, Riley's failure to explicitly state that
union activity of employees were not the reason for them
being sent home within such a context constitutes an
implicit statement to Sears that that was the reason for the
layoff. Under these circumstances and based on my
observation of demeanor, therefore, I find Sears recollec-
tion of his conversations with Riley credible.
3. The discharge of Employee Dunn
Steve Dunn was employed by Respondent Tendico from
August 19, 1975, until he was discharged on August 30,
1976. During his employment he had performed numerous
functions including filing, grinding, shearing, and layout.
Dunn's entrance on duty occurred approximately 3 months
after Respondent assumed operation of the plant after
acquisition from a prior owner. Dunn had obtained
sufficient experience such that he was charged with the
training of a fellow employee. In his performance of his
duty as a setup man, Dunn constructed templets and
stamped the size and pattern number on templets when
work was completed on a full set of templets. On occasions
he turned over the function of templet making to a trainee
while he performed other functions.
On the morning of August 30, Dunn proceeded to his
work station and engaged in templet shearing. Like the
three other employees mentioned, Dunn wore the same
type union button on his left shirt pocket. He testified that
as he was shearing, Johnson approached him and told him
to "get off the shears," and to let the trainee shear, and that
he, Dunn, should stamp. Dunn then testified that he
proceeded to stamp out a set and waited for the trainee to
shear out a complete set. He testified further that about an
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TENDICO, INC.
hour or so later he had sheared and had constructed one or
two sets which he then stamped and waited for the trainee.
He testified that at or about 11:30 a.m., there was nothing
for him to do, so he went to the filing table and engaged in
some filing because he saw "no point standing around." He
testified that he filed one die when Leadman Joe Lindsey
approached him and told him that there were some
templets in the rear. Dunn testified that he tried to explain
to Lindsey that he had just returned from the templet area
and there was not anything for him to do, but that Lindsey
refused to let him explain and commenced hollering and
"carrying on" stating to Dunn "I want you to go back
there, I don't care." Dunn testified that he responded "well,
he's loaded up with dies let me help him file something,"
but that Lindsey responded "you go back there now."
Dunn testified that as he was about to get up, Carl Gilley
who was standing behind him told him to "hit the clock."
Dunn testified that he clocked out and Johnson who had
come out of his office encountered him and that he asked
Johnson to inquire of Gilley if he were fired. According to
Dunn, Johnson returned shaking his head in an affirmative
manner.
Dunn explained that there were occasions when there
was insufficient work for benders and on those occasions
he engaged in shearing and stamping. He further testified
that it is usual practice to stamp a full set, and only on
occasion to split a full set when they could not fit a full set
on the table. He also conceded that there were occasions
when he did prepare less than a full set in order to provide
some work for others. This aspect of this testimony was
undenied and there is no evidence in the record as to any
priority of work or rush in work assignments which would
have necessitated his deviation from his usual practice.
Lindsey did not testify.
Gilley testified that he was standing near the filing table
behind Dunn and that he "observed that Joe Lindsey and
Dunn was having some words and this went on for
approximately a minute. Suddenly, Mr. Dunn raised up
and threw a file across the table. At that point I told Mr.
Dunn he was fired and to clock out." Gilley testified that
he was approximately 5 feet away from Dunn and that he
saw the file hit the table a couple of times and bounce off
on the floor. Gilley did not testify that he heard the
substance of the conversation between Dunn and Lindsey
and from the tenor of his testimony, I conclude that he did
not hear it. Respondent does not contend that Lindsey has
any authority with respect to the reprimanding or disciplin-
ing of employees, and Johnson testified that Lindsey does
not use any discretion in the assignment of work other than
in situations when Johnson was absent. The sole reason
advanced by Respondent for the discharge of Dunn is the
act of throwing the file on the table in such a manner as to
cause it to bounce and fall on the floor which, it is argued
in Respondent's brief, constituted a safety hazard. There is
no argument or contention that Dunn was insubordinate to
a supervisor. Johnson, who was 35 feet away, testified that
he observed the incident but could not hear what was said
because of the noise level in the shop. But, he testified that
he observed Lindsey and Dunn "having words" and that
Dunn got up and threw his file which bounced on the top
of a table and fell on the floor, whereupon, Dunn turned
around and faced Gilley, and Gilley spoke some words to
Dunn and thereafter Gilley told Johnson that Dunn was
fired and to pull his timecards which Johnson did. He
stated that he wrote "fired" on the timecard, and afterward
picked up the file and started filing the dies. Uncontradict-
ed testimony indicated that the file in question is a small 7-
inch file with a pointed edge. Dunn admitted on cross-
examination that he threw the file on the table but that it
did not fall on the floor, and that he threw the file after he
was told that he was discharged.
Greer testified that he was present at Dunn's discharge
which he fixed at a point 3 hours in advance of Dunn's
testimony and as indicated by the timecards. Greer
testified that Dunn was asked by Lindsey to go to his table
and stamp out a die whereupon he was asked if he could
wait until two or three more dies were assembled because
Greer was stacked up at the time. Greer testified that after
about 45 minutes when Gilley had stepped up and said
"get out of here and that he was fired," and at that point
Dunn pitched his file over on the table and left but as he
was leaving asked: "Is it because I'm doing my job or
because of these union pins?" Thereupon, Dunn left the
plant. Greer's testimony in this regard is thus not very
reliable since it deviates from Dunn's in several respects.
However, with respect to the comment of the union pins,
Dunn testified that he did return to the plant on August 31
prior to 7 a.m. and spoke with Johnson in the plant wherein
he asked for a separation slip and received in response just
a shake of the head and a smile without a spoken comment.
Dunn testified that, at that point, he asked Johnson if he
were discharged because he wore a union button and that
Johnson still refused to respond. At that point, he turned
and walked out and Gilley followed him to his car and then
told him to stay off the Company's property. Dunn
testified that he told Gilley that he merely came for a
separation slip and when he answered Gilley as to whether
he received one by saying "no," Gilley responded "okay."
Johnson testified that he did not see Dunn on August 31,
but that the next occasion on which he saw him was
Friday, when Dunn came in to pick up a check. He did not
testify as to whether or not he had a conversation with
Dunn on that day. However, Gilley did not deny
encountering Dunn on Tuesday, August 31.
Danny Bass, an employee who was hired on March 29,
1976, by Johnson, testified that between 8 a.m. and 9 a.m.
on August 30, he was in the offices of Gilley and Johnson
and was present with Johnson when Gilley came into the
office and told Johnson "Doug, I'm going to let you go up
there and get on Steve since you been on him." Johnson
responded "okay." Gillie denied making any such state-
ment on any occasion. In any event, the statements are
ambiguous and Dunn is not the only "Steve" in the plant;
i.e., Steven Craddock was employed also on that date.
4. The discharge of Employee Greer
Glen Greer had been hired in May 1976 by Johnson and
assigned to file and sharpen dies. Thereafter, he also
worked as a grinder helper and a rough filer. He testified
that on August 30, after Dunn's discharge, Johnson came
over to his table and helped him file and catch up on his
dies; that is, he was filing dies and he had to sharpen them
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take out the nicks. Greer testified that he had been
feeling nauseous that morning and therefore asked John-
son if he could leave the plant early but he received no
response. Thereafter, he went to the toilet for 10 minutes
and returned and again asked Johnson if he could leave
early. After receiving no response he testified that he left
his work station, clocked out, and as he left the plant he
vomited on the sidewalk. He testified that it occurred to
him that he better go back into the plant and tell someone
that he was going home. As he entered the plant, he
encountered Gilley at the door, and, at that point, Gilley
told him "to get out of here." Thereupon, Greer testified
that he went home.
Greer testified that, on August 31, he returned to the
plant at 6:45 a.m. and found that there was no timecard in
his rack and that, accordingly, he approached Johnson and
asked him where his timecard was and Johnson responded
"you quit." At that point, Greer testified that after denying
that he quit he stepped up on a case of steel and started
talking to the employees who were sitting at the filing table
and that he commenced talking to them prior to the
beginning of the 7 a.m. shift. In his talk, he stated that he
had in his possession a pamphlet issued by the Board and
that he read employees their rights under the Act. He
testified that, as he was reading employees their rights,
Gilley stepped up beside him and told him "get the hell out
before I put you out." Greer testified that he protested that
he was not reading a union pamphlet but a government
pamphlet and that Gilley responded "I don't give a damn
about that, just get out of here." Thereupon Greer left. A
copy of the government pamphlet was shown to Greer on
the witness stand, but he was unable to identify it. Dunn
testified that he was wearing seven union buttons on the
morning of August 30: five on his hat and two on his shirt.
Other employees who testified were unable to verify that he
wore seven buttons, although one witness testified that he
observed Greer wearing two buttons.
Johnson testified that, after Dunn was discharged and at
the point that he picked up Dunn's file and started filing at
the filing table across from Greer got up and spoke to a
welder and spoke to employee Scarborough. Johnson did
not hear what was said. Johnson testified further that Greer
proceeded from there back to the beverly area and talked
to employee Cates and then went from there to the
timeclock directly without stopping at the bathroom and,
having punched out, went out the side door. Johnson
testified that the total time between Dunn's punching out
and Greer's punching out was 9 minutes, according to the
timecards record. Johnson testified that Greer said nothing
to him during that period of time. However, Gilley testified
that on August 30, within a period of 9 minutes after Dunn
was discharged and clocked out, Greer walked passed him,
clocked out, and left. Gilley testified that Greer did not
speak to him or to anyone else. Gilley testified that at that
time he was standing inside the main building just beyond
the timeclock, about 10 or 15 feet inside the main building.
Gilley testified that on August 31, at "approximately 7
a.m. in the morning" he observed Greer standing on a box
of steel holding "some type of material that he was reading
:I Gilley did not deny Greer's testimony that this occurred prior to the
commencement of the shift.
to the employees." Gilley testified that he did not know
what material was being read, but that he walked up beside
Greer and asked him to leave the building, and that he had
to repeat his request because Greer did not respond for
approximately 30 seconds. Gilley testified that he told
Greer to leave because he was no longer employed.
Respondent has taken a position that Greer voluntarily
quit on August 30. Greer testified on cross-examination
that he did not go back to the beverly area and talk to
Cates. However, he conceded that he did talk to Scarbor-
ough prior to his statement to Johnson that he was feeling
ill and that he talked to Scarborough about matters
extraneous to the events of that morning. Gilley did not
deny Greer's testimony that Gilley told Greer "to get out of
here" as Greer left the plant. Thus, Gilley corroborates
Greer that he did not engage in conversation with other
employees in the interlude between Dunn's clocking out
and Greer's clocking out. I find Gilley's testimony that he
was unaware of what Greer was reading to the employees
and his account of the incident to be less credible than that
of Greer. If Gilley is to be believed, he was acting on an
assumption that Greer had quit his employment when
there was no evidence to the effect that such was the case.
According to him, Greer did not speak to him or to anyone
else as he left the plant the day before. Johnson testified
that Greer did not speak to him about leaving and
therefore Johnson had no basis on which to conclude that
Greer quit except for the fact that he walked out.
If Gilley is to be believed, he assumed that Greer had
quit his employment because he walked out early during
the previous day, despite the fact that Greer appeared in
the plant the following morning and was observed by him
standing on a box talking to fellow employees prior to
commencement of work.3 Gilley then, according to his
testimony, ordered Greer out without paying attention to
what Greer was telling the employees, or without even
inquiring from Greer what Greer was telling the employees.
Thus, although Greer had a tendency to telescope events in
his recollection and did not present the image of the most
reliable witness, I find his testimony essentially more
reliable than that of Gilley and conclude that Gilley was
well aware of what Greer was reading to employees as he
stood on the box and that the substance of the message
being read to employees was their rights as set forth in
Section 7 of the Act. Furthermore, I conclude that Greer
did not, as Johnson testified, go around talking to
employees immediately prior to clocking out.
Respondent's work rules provide for a progressive system
of discipline. Infractions falling within Group A provide
for the penalty of immediate discharge and delineate six
areas of misconduct including, inter alia, use of alcoholic
beverages in the plant, use of illegal drugs, insubordination
or failure to obey orders, commission of unlawful acts,
destruction of company property, and ringing out time-
cards other than ones' own. Group B provides for a
disciplinary layoff of 3 working days for the first infraction
and a discharge for two separate fractions for the
following: (1) Fighting on company premises; (2) leaving
740
TENDICO, INC.
prior to end of shift without permission of supervisor; and
(3) unauthorized absence.
The third group, Group C, provides for a written warning
for a first infraction, a layoff of 3 working days for the
second infraction, and a discharge for the third infraction
of various types of minor misconduct including, inter alia,
failure to call before 9 a.m. on day of absence, carelessness
or defective or improper work, visiting during worktime,
washup before first buzzer, unauthorized tardiness, etc.
There are no rules against soliciting or talking to employees
on nonworktime or in nonwork areas.
5. The discharge of employee Bentley
Employee Gary Bentley commenced his employment at
Respondent Tendico's plant on or about August 2, 1976,
and was assigned the duties involved in the final produc-
tion process; i.e., plating and painting.
Bentley had signed a union authorization card on
Wednesday, August 25, at the meeting at We-Sack-It
Market. He testified that he was ill on Friday and did not
report to work, having had his mother call in for him. He
returned to his employment on Monday, August 30, at 6:50
a.m., to find his timecard missing from the rack. Bentley.
who did wear a union button, waited to talk to Johnson at
7:15 a.m. They talked in Johnson's office alone. Bentley
was questioned as to his absence on Friday and he said he
was sick. Bentley testified that he was told by Johnson that
he missed too many days and would have to be let go and
that Johnson already had a man on the job to replace him
that same day. Bentley inquired of an opportunity to
improve and Johnson said it was too late. Bentley testified
that he had received no prior warnings of discharge and
that Johnson further stated in the exit interview that he
needed somebody with a little more "responsibility" to
work more often. Bentley testified that he was given no
advance notice of his termination. Bentley conceded on
cross-examination that he was talked to on several
occasions by Johnson about sloppy work and painting dies
with the wrong color. He also was spoken to about missing
work too often. He was advised to be sure to call in on
occasions when he was to be absent. However, Bentley
testified that he never informed Johnson that he was under
a doctor's care and never reported the specific nature of his
illness.
Johnson testified that Bentley was discharged pursuant
to a joint decision with Gilley which was reached the
preceding Friday when Bentley failed to report to work.
The basis of the decision was that Bentley had a record of
excessive absenteeism, e.g., a total of 40 hours in a 4-week
period of time, and that he could not do the job well
enough. Johnson testified generally that Bentley was slow
and his job was "kind of messy" and that he was told he
ought to keep his work smooth and clean but Johnson
could not recall any particular job that occasioned this
remark. He testified that he warned Bentley on several
occasions of absenteeism and that he would have to
improve. Johnson conceded that Respondent does not
4 This incident was not alleged in the complaint, nor at the heanng as a
violation of Sec. 8(a)l1) of the Act Upon resting his case, counsel for the
General Counsel explicitly declined to make any substantive amendments to
the complaint.
require a doctor's statement except for excessive absentee-
ism, i.e., when an employee is out 3 to 4 weeks, and that he
never asked to see a doctor's statement from Bentley.
Johnson testified during the last week of Bentley's
employment that he had talked to him about his absentee-
ism and warned him that he would have to be replaced if
he did not improve. Thus, Bentley was absent on Friday
without an explanation, although he conceded that he
asked for no explanation because he already knew that
Bentley was ill, he decided to replace the man. Johnson did
not deny Bentley's testimony that Bentley was advised on
the morning of August 30 that he had been replaced. His
replacement, Danny Vaughn, testified that, when he
applied for a job at Tendico, for whom he had worked
previously, he was interviewed by Johnson. He testified
that that occurred in the afternoon of August 30 and
during the interview Johnson told him that he might be out
of work by Friday, "or something like that, because the
Union was coming in." He testified that Johnson made no
explanation and he asked for no explanation. Johnson did
not contradict this testimony. 4
The record reveals that Bentley did manifest a poor
attendance record. During the first week of his employ-
ment, he worked less than 37 hours. The second week of his
employment, he missed an entire day. The third week he
missed another entire day. During his fourth and final
week he missed the entire day on Monday and also the
entire day on Friday. Thus, of 20 scheduled workdays, he
missed 4-1/2 days.
Johnson testified on cross-examination that there were
several other employees who had equal if not poorer
attendance records. Respondent argues in brief that
Johnson was in error in so testifying because examination
of the evidence in the record reveals that these other
employees' attendance records were not quite that bad.
However, the important thing is not what actual atten-
dance record was manifested by other employees, but that
Johnson's impression of them was that they had equal if
not worse attendance records. They are, however. compa-
rable. In any event, Johnson testified that the reason for
Bentley's termination was not his attendance but was
rather the combination of poor attendance plus inadequate
work performance. Indeed, of eight employees whom
Johnson testified were discharged during the period from
June 1975, when Respondent assumed ownership of the
Nashville plant, and August 30, 1976, none were laid off or
terminated because of absenteeism. 5 Johnson testified that,
because he had talked to Bentley about Bentley's work
performance, he had issued no written warnings to Bentley.
When asked in cross-examination specifically as to his
reason about not issuing written warnings to Bentley prior
to Bentley's discharge despite Respondent's past policy
and practice of issuing written warnings he testified:
I had no reason to give him a written warning because
it was not a disciplinary action. It was not just to try to
get him to come to work more often. In other words, I
5 In fact. Johnson was significantly obscure as to the reasons for those
discharges.
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not trying to discipline the man on what he was
doing. I was trying to get him to straighten himself up.
When asked why Johnson did not issue a written
warning to Bentley, as he did to employee David Johnson
who had failed to call in during an absence, Johnson
responded on cross-examination: "Evidently, I didn't feel
it was worth making a notation on him." Johnson testified
that David Johnson was a good worker.
According to Respondent's progressive disciplinary
system, carelessness or defective or improper work is
among the category in Group C of infractions which call
for issuance of a written warning on the first occasion.
Johnson was asked on cross-examination if there were any
reasons why he failed to give Bentley a written warning for
deficiencies in work. Johnson replied "no." Furthermore,
Johnson did not deny Bentley's testimony that the only
reason given to Bentley during the discharge interview was
his record of absenteeism.
B. Other Acts of Interference
I. Brewer's conversation of August 31 with
Johnson
Brewer testified that after he had returned to work on
August 31, that afternoon, he was called to the office by
Riley where he met Johnson and engaged in a conversation
with Johnson and Riley. Riley denies that he was present at
any such meeting. Brewer testified that Johnson stated to
him: "I want to talk to you about this Union mess." Brewer
testified that he responded "sure" and that Johnson stated:
"If the employees of Tendico were to go out on strike, that
the - if the Union fails to get into the plant, that the
company didn't have to let the strikers back into the
plant." Brewer testified that he just "stood in a gaze [sic]"
and that at that point Riley spoke up and stated something
which Brewer testified that he could not recall. Having had
his recollection refreshed by a leading question, Brewer
testified further that Riley stated that both Sears and Greer
had been recommended for a 20-cent-per-hour wage
increase but that "since the Union tried to get into the
plant they lost the raise." Johnson also denied that any
such meeting ever took place. Respondent periodically
reviews its employees work and institutes wage increases.
Subsequently, on September 26, Sears was recommended
for a wage increase. This was done by Johnson who
normally makes recommendations as to wage increases.
There is no evidence that Riley participates in recommen-
dations for wage increases. Brewer impressed me as being
very uncertain and confused in his demeanor. On cross-
examination, he was extremely evasive when questioned as
to whether he had ever been spoken to about excessive
talking and visiting. The question had to be put to him
several times before he finally conceded that at one time he
had been warned to spend more time practicing "and a
little less mouthing." He was also confused as to whether or
not he was told by Riley that he had been discharged. Also,
s Par. 7C of the complaint alleges that Bob Riley, on August 31, 1976,
told an employee that if he went on strike and the union campaign failed to
succeed Respondent would not permit striking employees to return to work.
There is no allegation in the complaint that Johnson made such statement
I find it improbable that Riley would have stated to Brewer
that both Sears and Greer had lost a 20-cent-per-hour raise
because of union activity. At that point in time, Greer had
either, according to the employer, quit his employment or,
according to the General Counsel, was discharged. Thus he
would have lost far more than a 20-cent wage increase. He
was not even an employee. I thus find Brewer to be a most
unreliable witness and am unable to credit his testimony as
to the conversation of August 31, with Johnson and Riley. I
conclude that no such conversation took place.6
2. September I conversation between Sears and
Gilley
Sears testified that, on the afternoon of September 1, he
was called to the office and engaged in a conversation with
Gilley, in the presence of Riley. Sears had filed a claim with
the Tennessee department of employment security on
August 31, 1976, wherein he stated that he had been
discharged by Respondent because of union activity. On
the afternoon of September I, Gilley had received a copy
of that claim. Therefore, he summoned Sears to his office
and, according to Sears, asked him what was meant by that
claim. Sears testified that he responded that he acted upon
the advice of his union representative, whereupon, Gilley
told him not to listen to "no bone headed union
representatives because I get myself in trouble plus the
union also." Sears testified that he told Gilley that he was
only following the advice of the union agent and that
Gilley told him that it was okay and that he would be given
another chance, and that, he should go back on the
blocking machine and not to talk to any of the employees.
Sears testified that Gilley further specifically told him that
he was not fired, but that if Sears desired that Gilley would
"let this statement [the unemployment claim] stand like it
is and then I will fire you and I'll just deny it." Gilley who
did not specifically deny any portion of the conversation,
as narrated by Sears, testified that in the meeting, he told
Sears that although he was not discharged "if he was going
to hold the Company to a discharge, then I would not
allow him to go back to work unless he got it straightened
out with Unemployment which he promised to do." Riley
testified again in a very cryptic and conclusionary fashion,
that Gilley referred to the unemployment compensation
claim characterizing it as false and that if Sears did not
straighten it out he could not come back to work. Riley did
not deny the balance of the conversation as set forth by
Sears.
Sears added on his direct-examination, after repeated
questioning, that during the course of the conversation
Gilley stated to him that Tendico never had a Union and
never would have one "as far as he was concerned." Both
Gilley and Riley denied that such a statement was made.
With respect to this aspect of the conversation, Sears'
demeanor was that of a witness unsure of his recollection
and hesitant in his narration. He gave the impression that
he had to add to his recollection to satisfy the prodding of
counsel. I therefore conclude that with the exception of
and no other evidence that Riley made such statement. Upon resting his
case, counsel for the General Counsel argued that par. 7C sufficiently
covered both agents, Riley and Johnson.
742
TENDICO, INC.
that last statement which I discredit essentially the parties
are in agreement that Sears was told he was not discharged
but if he so desired he could put himself in a discharge
status and that the employer would deny that it was
because of union activities, but also that he was told he was
given "another chance," without any explanation as to why
he was laid off in the first place. Also he was instructed not
to talk to other employees. Under such circumstances, I
conclude that Sears was, in effect, informed that he was not
discharged permanently for union activities but unless he
ceased talking to fellow employees completely he might be
subject to further discipline, including permanent dis-
charge. The implication was clear that he should inhibit his
union activities.
Sears testified that following this conversation, the next
day, on September 2, he returned to practicing bending
dies and, about 2:30 p.m.. engaged in a conversation with
Riley. His recollection was quite graphic even to a
description of the strips of metal that he was "fixing to
practice bending" which were unusually dirty. He stated
that because of the condition of the metal, he went into the
rear part of the shop to clean off the items and, while he
was doing this, employee Cates (nickname Dino) passed
him and made a remark. Sears testified that at that point he
observed Gilley watching him from the entrance to the
open-die department. Sears testified that as he returned to
his work station, a few minutes elapsed and then Riley
approached him and told him that he had been warned
about talking to other employees and that he "was going to
start giving out warning slips and if I got one more, then I'd
be fired." 7 According to Sears, Riley told him to stay on
the blocking machine and "not to be talking to any of the
employees anymore." Although both Sears and Brewer, as
noted above, had been cautioned about excessive visiting
in the past, Respondent does not have any rules absolutely
prohibiting talking of any kind by employees while
engaged in work tasks. According to Sears, Riley added
that "he didn't really have to tell me what this was all
about, that I should already know." Subsequently, on or
about September 10 on Friday, shortly after breaktime
when Sears was at his work station before the other
employees had returned to theirs, he and Riley were alone.
Riley came up, patted him on the back and stated that he
"appreciated the way I'd been staying away from the other
employees and staying on the block and keeping my mouth
shut and everything, and that as long as I did this, then Mr.
Gilley would stay off his back and he, in turn, would stay
off mine." He said, "of course, you know it's all over this
union matter." Sears testified that he responded that the
employees were only trying to better themselves by trying
to get a union in but that Riley responded that "we
shouldn't stir up such a ruckus about it." Sears testified
that in the course of the conversation, Riley told him to
"stay on my block and keep my mouth shut and everything
would be okay."
Riley, who did not deny the September 2 conversation,
admitted that on September 10 he had complimented
Sears, telling him that his work station had improved and
explained that he was proud because Sears was "not going
7 Sears had not as yet received any written reprimands. A discharge upon
one written reprimand would contravene Respondent's progressive disci-
pline policy.
around talking like he'd been, now he stayed at his work
station." Riley had not specifically denied the balance of
these conversations as narrated by Sears. When questioned
by me, after completion of direct and cross-examination,
Riley denied that he said anything to Sears about "keeping
his mouth shut," and further denied that he said anything
about a union. Riley's demeanor in testifying with respect
to the September 10 conversation struck me as most
unconvincing. In trying to explain the basis for compli-
menting Sears, Riley seemed to be torn between compli-
menting Sears because his work had improved or compli-
menting him because he had not been "going all over the
shop" and finally ended up testifying "well, his work - he
was staying at his work area and working it was picking
up." I credit Sears that, on this occasion, Riley again, as he
had on August 30, volunteered to Sears that the union
organizational activity was a motivating factor behind his
instruction to Sears that he not talk to "anyone" on the job.
I further credit the testimony of Sears as to the balance of
these conversations.
Peter Guynn, who testified in a very generalized fashion
that he recalled a conversation between Sears and Riley in
early September wherein Riley told Sears that they should
stop talking union - and if he would stop talking union
"everything would be all right" and Mr. Gilley was "upset
of all the activities that was going on." I do not rely entirely
on this testimony in my resolution of credibility between
Riley and Sears. Guynn's testimony appeared to be the
most generalized impression rather than a specific narra-
tion of a conversation overheard. However, in substance he
corroborates the thrust of the conversation as testified to
by Sears.
3. Johnson's speech of September 7
Guynn also testified to a speech given by Johnson to a
group of approximately 20 employees in the shop at the
filing table on or about April 7. Guynn prefaced his
recollection of the speech by testifying: "Well, I can't quite
remember anything." However, he went on to testify in a
generalized, reticent, and uncertain manner that he
recalled Johnson stating to the employees "- well, it was
mainly about the union; that if a union did get in, he was
telling us that there would be fines to pay and dues to pay
and things of that nature, and that he would rather for us
to talk with the Company and settle with the Company
than with the Union." Other witnesses called to testify as to
this meeting did not testify as to any such comments made
by Johnson. In any event, Guynn, who was asked
specifically by counsel for General Counsel whether
anything was discussed "about grievances during this
meeting" responded that Johnson stated "that a list would
be passed around and if we had any grievances to put them
on this list, and that he would make sure that they would
go to some man that was to come down from St. Louis."
Subsequently, according to Guynn, he was contacted by
employee Danny Vaughn about an hour later during
worktime and asked if he would sign "a grievance list."
Guynn did not sign the document.
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Danny Bass, who was hired on March 29,
1976, testified that he was among that group of 20
employees. His recollection of the meeting consisted of
cryptic and generalized testimony that Johnson stated "he
told us that the Company had rather deal with us than the
union, and for us to get together and write up our
grievances, and he would be in tomorrow." Bass could not
recall whom Johnson was talking about, or whether he
identified that person. He further testified that Johnson
stated: "He told us to take one man and go around and get
everybody's and take them home and type them up and
have it there in the morning." Subsequently, Bass was
contacted by employee Vaughn in the plating department.
He and other employees were asked by Vaughn what they
thought their salary should be. Bass responded and then
Vaughn disappeared with a piece of paper which he had
typed up and brought back to the plant the next morning.
Employee Vaughn also testified as to what occurred at
the September 7 meeting. This is the same individual who
was hired by Johnson on August 30 as a replacement for
Bentley. He was called as a witness on behalf of the
General Counsel. Vaughn testified in somewhat of a
vacant, absent-minded manner and gave little if no
assurance of certainty of recollection in his demeanor.
Thus he testified:
Q. Mr. Levy) Would you tell us what you recall
Mr. Johnson saying to the employees at that time?
A. Not really, because I wasn't paying any atten-
tion.
Q. (Judge Wilks) You mean when you say you
don't really remember - do you remember anything?
A. Yes, I remember that he was talking about the
union, but not anything in particular, you know.
Q. (Judge Wilks) You don't remember anything he
said about the union?
A. No, because I wasn't - like I said, I wasn't
paying any attention. All I remember is that, you know,
he spoke out saying something on the union's behalf,
and what the Company wanted to do.
Q. (Judge Wilks) Well, how did the subject of
union come about? Do you remember?
A. No.
Q. (Judge Wilks) How did he start the meeting?
A. He just walked out and said, you know, called
the meeting, you know, called everyone together in the
shop. He said all you all know what this is about and
everyone mumbled, you know, yes, it's about the union.
That's how the meeting took place.
Q. (By Judge Wilks) Do you remember anything
that he said?
A. No, except for the part that, you know, where he
got down to saying that the Company had rather deal
with the employees. Overall what he said from the first
point up to that time, I wasn't even listening.
Q. (By Mr. Levy) Do you recall whether Mr.
Johnson mentioned anything about grievances?
A. Yes.
Q. Would you tell us what he said about griev-
ances?
A. That the Company had rather deal with us in
that, you know, if we would like to, we could, you
know, submit, you know, our grievances to the
Company, you know, as to what we want, you know,
want to change.
Q. (By Mr. Levy) Did he say what he intended to
do with the grievances if you turned them in to him?
A. No, he said that the company official would be
in the next day after, you know, after meeting with the
employees.
Q. He said that a company official would be in the
next day?
A. Uh huh.
Q. Is that what he said?
A. Yes.
Q. (By Mr. Levy) Did he say anything about taking
up the grievances with the company official?
A. No, if he did, I didn't interpret it that way.
Q. (By Mr. Levy) Do you recall what, if anything
else, Mr. Johnson said at that time?
A. No.
Q. (By Judge Wilks) Did he say anything else?
A. That was just it.
Q. (By Judge Wilks) Now there's a difference
between saying that he didn't say anything else, and
that he said something else but you can't recall it.
A. Well, if he said anything else, I didn't hear him.
Q. (By Judge Wilks) You don't even recall whether
he said anything else?
A. If he said anything else, I didn't hear him.
Q. (By Judge Wilks) I see, not that you just don't
recall?
A. Yes.
Subsequently, Vaughn inquired of the employees "what
they wanted" and jotted it down on a sheet of paper which
he wrote out as a list of grievances. Vaughn testified that he
turned it in to Johnson the next morning and that when he
did so Johnson told him "that we probably were asking for
too much, but he would turn it in anyway, and that the
company official would make the decision." Johnson took
the document and never returned it. On cross-examination,
Vaughn testified that Johnson made no promise to him and
that Respondent has not acted on any of the grievances set
forth in the list of grievances which he submitted to
Johnson.
Johnson testified that at the meeting he read from a list
of supervisory "do's and dont's"; i.e., a list of instructions
to supervisors of what they may or may not do during an
election campaign in printed form. Johnson testified that
he read the portion of that document, which was received
into evidence, which commences on page 3 and starts with
item I and continues to item 17. Included, inter alia, are the
following instructions of what they may say:
I. Tell employees that the company prefers to deal
with them directly, rather than through an outside
organization.
2. Tell employees that if they have any gripes or
problems you are willing to discuss them.
3. Tell employees about the benefits presently in
effect.
744
TENDICO, INC.
Johnson did not deny the conversation with Vaughn as
testified to by Vaughn which took place when Vaughn
submitted a list of grievances.
Based on my observation of the demeanor of Guynn,
Bass, and Vaughn and a review of their record testimony,
which is not mutually corroborative, I credit Johnson and
conclude that he read verbatim a portion of the supervisory
"do's and don'ts" in the meeting of September 7. Since
Johnson did not deny the subsequent conversation with
Vaughn, I credit Vaughn's testimony in that regard only.
Johnson testified that Respondent maintained a written
statment of policies since October 1975 and that a copy
thereof had been posted on the plant's bulletin board on
said date and remained posted thereafter. Furthermore, he
testified that a copy of these policies were shown to each
employee that he subsequently hired. In article IV of that
document it is stated:
The grievance procedure is established to call to the
company's attention any problems as to the company
procedures, work rules, work conditions, or work rates
you may have. It is the intent of this procedure to give
all employees the opportunity to express their views on
any such policy and also, to enable the company to
explain the reason for the policy. It is hoped by the use
of this procedure to bring a better understanding to any
problems as they arise and to give the company an
opportunity to correct problems that do arise.
Thereafter a grievance procedure of five steps is set forth.
There is no evidence that any grievances were ever
processed under this article of the company policies, nor is
their any evidence of an employer practice of soliciting
grievances in employee meetings. Sears testified that the
first time that he saw this document was when it was posted
between September I and September 10, 1976. Dunn, who
was discharged on August 30, testified that he never saw
the statement of policies posted on the bulletin board.
Brewer similarly testified. None of these employees were
ever shown a copy of the statement of policies upon their
hiring according to their testimony. I do not credit
Johnson's testimony in this regard. Had such a grievance
procedure been posted surely there would have been some
evidence of at least one grievance that was processed
thereunder in the period of time subsequent to October
1975. Furthermore, had the document been posted and had
employees been informed of its existence upon hire it
would have been unlikely that Vaughn would have
propelled into action only upon hearing Johnson's remarks
at the September 7 meeting. Thus, I find not only is there
an absence of a grievance processing practice, but also I
find as not credible evidence that any such grievance was
promulgated prior to September 1976.
4. September 10 conversation between Bass and
Johnson
Employee Bass testified that 2-1/2 weeks after his
execution of an authorization card on August 25, 1976, he
engaged in a conversation with Johnson at the filing table.
The conversation therefore occurred on or about Septem-
ber 10, 1976. Bass testified that while the two of them were
engaged in a conversation "that he [Johnson] had been in
the Union before and he started telling me how they were.
He said that its hard to get them in without a strike ...
that there was no way we could get in. He said that the
Company in St. Louis, all they had to do was keep the work
up there. That's all." Bass also testified that Johnson stated
that the employees would obtain more money but that
"only the top man in the Union would get it." Thereafter,
counsel for General Counsel refreshed Bass' recollection
by referring him to the pretrial affidavit he gave during the
investigation of the case. Bass then added that Johnson
also stated that "Glenn Greer would have been getting paid
by the Union to organize." And "also there was no way we
could get more money out of the Company." This
testimony was not contradicted or denied by Johnson.
Accordingly, it is credited. I conclude that the thrust of
Johnson's remarks were that employees efforts to better
their rates of pay through union representation were futile
because Respondent would frustrate their efforts by
diverting work to the St. Louis plant and would in any
event, take an adamant, unalterable position in collective
bargaining which would foreclose any wage increases.
5. The water fountain conversation
Employee Guynn testified that about I or 2 weeks after
he signed his union authorization card on August 25, he
overheard a conversation between Gilley and Johnson at
the water fountain in the shop. Guynn was very hesitant
and uncertain in this testimony and very vague as to the
date. He testified that as he approached the water fountain
he observed Gilley and Johnson in a conversation. He
testified that when he arrived at the water fountain those
two individuals were standing 2 feet away and although
they glanced up at him as he approached the fountain they
did not look at him as they continued in their conversation.
Gilley and Johnson stood in a doorway next to the water
fountain. He testified that he heard Gilley say to Johnson
"that everyone could try all they wanted to get was a union
in, and if they did, they'd - if it came down to that point,
they would go back to St. Louis." He testified upon further
questioning that Gilley stated: "if it looked like a union
was going to come in, they would pack up and go back to
St. Louis."
Both Gilley and Johnson denied that any such conversa-
tion took place. That is all of the conversation that Guynn
overheard. Guynn did not strike me as a very persuasive
witness. Although the General Counsel attempted to
refresh his recollection as to the date of the conversation, it
became clear that he had no independent recollection of
when that date transpired. Furthermore, although Guynn
was offered as a witness to corroborate the early September
conversation between Riley and Sears, as noted above, his
recollection differs significantly from that of Sears and
appeared to be a summary of the conversation as he
gathered it. I therefore do not feel that his recollection of
overhearing a brief segment of a conversation without
context is very reliable. Accordingly, I credit the denial of
Gilley and Johnson.
745
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. ANALYSIS AND CONCLUSIONS
Respondent contends that Sears and Brewer were
temporarily laid off on August 30 because of lack of work
on the kick-block blender and because of excessive visiting
away from their work stations instead of practicing
bending dyes. Respondent contends that it had no
knowledge of union activity on the morning of August 30,
when Johnson arrived at the plant and discovered that
there existed a lack of work and a decision was made
between him and Gilley to send home Sears and Brewer for
disciplinary reasons. Thus, Taylor continued to work on
hand-block bending dies for which there was work and
Craddock was retained on the hand-block practicing
bending dies. Respondent further argues that when work
became available immediately, thereafter Brewer was
recalled to work on August 31 and Sears on September 1.
There is no explanation as to why Sears was permitted to
resume the practicing of bending dies.
The credible evidence in the record reveals, however,
that Respondent did have knowledge of its employees'
union activity prior to the communication to Respondent
of the Union's demand for recognition via the mailgram
call-in. This is revealed by Riley's statement to Sears that
his earlier prophesy had been fulfilled; i.e., that if the
employees wanted the Union they would get one just like
the employees in St. Louis and when the employees work
was caught up they would be sent home. Respondent's
contention that its conduct towards Sears and Brewer was
disciplinary in nature is incomprehensible. Although the
two employees were orally cautioned to stay closer to their
work station in the 2- or 3-week period prior to union
activity they were never warned orally or in writing that
their visiting had become so severe as to possibly bring
about a disciplinary layoff. Indeed, no one, neither Sears,
Brewer, nor even Riley, was informed by Gilley or Johnson
that the nature of the layoff was disciplinary, which under
the employer's progressive disciplinary system would have
called for a formal written warning. Moreover, it was
abundantly clear that Riley confirmed in his conversation
with Sears that Respondent's motivation was the union
activity of the employees. Thus, I conclude that the
discipline which Respondent meted out to Sears and
Brewer, which was unprecedented both as to substance and
form, was indeed, as General Counsel argues, pretextuous
in nature. Accordingly, I conclude that Respondent, who
had exhibited animosity toward the union activity of some
employees particularly to these two employees through the
statements of Riley was motivated by a desire to punish
Riley and Brewer because they had engaged in union
activity.
In view of Riley's early morning statements to Sears, it is
apparent that Respondent had become aware of the union
activity of its employees. Furthermore, in view of the
testimony discussed above, which revealed that Respon-
dent had suspected that Greer was the prime organizer for
the Union, Respondent apparently had also become
apprised of some definitive information that certain
employees had signed cards. Thus, on the morning of
August 30, Sears and Brewer had engaged in union activity
having executed union authorization cards and having
worn union insignia on their person. In any event,
Respondent's motivation to retaliate against its employees
union activities by setting an example of what would
happen upon successful organization of its plant by
fulfilling the prophesy of Riley uttered several weeks earlier
precludes any necessity that Respondent actually knew of
the specific and definitive activities of Sears and Brewer on
the morning of August 30. Sears and Brewer having been
warned about visiting away from their work stations in
previous weeks were in somewhat of a vulnerable position.
Sears had become the recipient of Riley's prophesy. They
both thus served as an apt vehicle for a warning to other
employees of what will happen if union activity prevails.
The message having been promulgated, the two individuals
were shortly returned to work again without any education
as to the nature of their temporary layoff by Respondent;
i.e., the supposed disciplinary measure. Sears was almost
immediately returned to practice bending. Thereafter,
Sears kept his silence and was complimented by Riley, and
on September 26 was granted a wage increase. Thus,
Respondent engaged in the classic example of carrot and
stick employee relations in reverse order. Accordingly, I
conclude that Respondent violated Section 8(a)(3) of the
Act by the temporary layoff of Sears and Brewer on
August 30, 1976.
A. The Discharge of Steven Dunn
Steven Dunn had been employed by Respondent
approximately I year and had performed numerous
functions and therefore had obtained sufficient experience
to be in charge of the training of at least one employee.
Respondent contends that the only reason that Dunn was
discharged was because he threw a file on the table which
bounced off and hit the floor. There is no contention by
Respondent that Dunn was discharged because of insubor-
dination to the leadman, Joe Lindsey, whom Respondent
contends is not a supervisor. Gilley, who fired Dunn,
merely testified that he "saw" Dunn having "words" with
Lindsey. Obviously, he could or did not hear what those
words were but merely observed, according to his own
testimony, that Lindsey threw a file on the table. Respon-
dent contends that "it didn't matter what Mr. Lindsey's
status was nor whether the request being made of Mr.
Dunn was a reasonable one, but that the action took
simply cannot be justified in an industrial setting because
of the paramount safety of employees."
There is no evidence adduced in this record to indicate
that anyone was endangered by the action of Dunn,
assuming that Dunn did throw the 7-inch file on the table,
and assuming that it did bounce on the floor. Gilley made
no effort whatsoever to ascertain what provoked Dunn into
throwing the file; i.e., exactly what Lindsey had told Dunn
before Gilley made the snap decision to discharge Dunn.
The so-called violation of safety conditions is a breach of
rule 4, in Group B of Respondent's rules of employee
conduct. Johnson testified that such rules are generally
with some minor exceptions followed and applied. An
infraction of a rule Group B provides for a disciplinary
layoff of 3 working days. According to the rules, only two
separate violations will result in discharge. There is no
evidence that Respondent had the slightest problem in the
past with respect to Dunn's attention to safety rules and
746
TENDICO, INC.
regulations. Nor is there any evidence that Dunn had been
given to temper tantrums or other similar acts of miscon-
duct.
Thus, the discharge for an incident such as testified to by
Gilley and Johnson was surely an extraordinary action by
Respondent. In view of Respondent's earlier action toward
Sears and Brewer and its expressions of hostility toward
unionization the only credible explanation for Respon-
dent's resort to this extraordinary punishment is its union
animus. Accordingly, I conclude that by discharging
Steven Dunn on August 30, 1976, Respondent violated
Section 8(a)(3) of the Act.
B. The Discharge of Glen Greer
Respondent contends that Greer, following Dunn's
discharge, became enraged and walked out and voluntarily
quit his employment. Respondent further argues that
thereafter he changed his mind and reported to work the
following day "as though nothing had happened." Respon-
dent contends that there is no record of evidence that
Greer was discharged.
As indicated above, I did not find Gilley's testimony with
respect to the so-called voluntary quitting of Greer to be
credible. Also, as found earlier I did not find Johnson's
testimony with respect to the events leading up to the
termination to be credible. There is no basis for which
either Johnson or Gilley could have concluded that Greer
permanently and voluntarily quit his employment on
August 30; unless of course they were well aware of his
union organizational efforts on that morning, and, having
been aware of that, they terminated one other prounion
employee and temporarily laid off two other prounion
employees, they assumed that Greer was outraged and in
protest walked off the job.
Even if I were to disbelieve Greer's testimony that he did
not tell Johnson that he was ill and walked out telling him,
there still would remain no other logic that would sustain
Respondent's conclusion that Greer had voluntarily quit.
According to an infraction of the rule regarding unautho-
rized absence or leaving the plant prior to the end of the
shift without permission of supervisor, the commensurate
discipline would be a layoff of 3 working days and a
discharge for two separate violations. There is no evidence
that Greer had ever walked off the shift before. Thus, even
had Respondent contended it discharged Greer, it would
have acted contrary to its own rules and regulations.
Moreover, by the mere maintenance of such a rule against
leaving the shift prior to the end of the shift the
Respondent recognizes that in the course of events
employees do at times leave the shift prior to its end and
that such conduct does not constitute a voluntary quitting
nor does it constitute grounds for discharge. The credible
evidence in the record reveals that when Greer returned to
the plant he was told that he was being considered as a
quit, constructively discharged, and thereafter ordered off
the premises after he addressed the employees in regard to
their rights guaranteed them under the Act.
If by some stretch of the imagination Respondent
actually concluded that Greer had quit on August 30, it
offered no explanation as to why it did not accept what in
effect would have constituted Greer's request for reinstate-
ment either in the form of his statement to Johnson that he
did not quit, or by virtue of his presence on the job in the
morning on August 31. If Respondent had not discharged
Greer on August 30, it is fairly clear that he was discharged
and his continued reinstatement refused on August 31,
particularly after he had addressed the employees concern-
ing their rights.
As indicated above, through the testimony of Bass,
Respondent had acknowledged that Greer was in fact the
chief employee organizer for the Union. It is not clear at
what point in time Respondent acquired that knowledge or
how far in advance it had acquired that knowledge prior to
revealing it to Bass. Regardless of how many buttons Greer
wore on his person on August 30, it is fairly clear that
Respondent was aware of the general effort to organize the
plant and aware that Greer was a supporter of that effort at
that point in time. Again, even if the record did not
establish specific knowledge of Greer's union activity on
August 30, the record sufficiently establishes that Respon-
dent was engaged in a pattern of conduct whereby it would
implement sterner disciplinary measures upon its employ-
ees which were clearly contrary to its pronounced rules and
practice previous thereto because of the onset of union
activity. Accordingly, I conclude that Respondent did
discharge Glen Greer on or about August 30, 1976, because
of union activities.
C. The Discharge of Gary Bentley
Respondent contends that Gary Bentley, an employee of
4 weeks tenure, was discharged because of poor attendance
and because he was "not properly handling the job."
Respondent argues that Bentley was not wearing a union
button like Sears, Brewer, Dunn, and Greer on the
morning of August 30, and there is no evidence upon which
to base an inference that Respondent had any knowledge
that Bentley had executed a union authorization card.
It is clear that a discharge for absenteeism would be a
wholly untenable position for Respondent as a defense in
this aspect of the case. No employee had ever been
discharged for absenteeism. Johnson's impression while
testifying which obviously would have been his impression
at the time he meted out discipline to Bentley was that
other employees had equal if not worse attendance records.
Yet Bentley's testimony that he was apprised by Johnson
on August 30 that the basis for his discharge was solely
attendance was never controverted by Johnson. Further-
more, Johnson's own testimony, when he was first called to
testify by the General Counsel as an adverse witness,
indicated that, during the last week of Bentley's employ-
ment, Bentley was warned that his attendance would have
to improve or he would be discharged. That warning was
not coupled with a reference to the adequacy of his work
performance. I find Johnson's testimony that the reason for
Bentley's dismissal was poor workmanship and poor
attendance to be unconvincing. When examined by the
General Counsel he was vague and hesitant when asked to
specify on what occasions Bentley's work was found to be
wanting. When asked to identify a particular job he
responded that he was unable to do so. On cross-examina-
tion, however, he eluded to an occasion when he stayed
overnight to assist Bentley in redoing some work. He
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that was the first occasion in which he assisted any
other employee in correcting their work. Bentley, however,
testified that Johnson did indeed stay after work on one
occasion to help them because of the large number of dies
that he had to get out on that day, and conceded that
earlier in the day, Johnson had indicated to him that he
painted some dies with the wrong color and fixed the date
as the second week of his employment. However, it is clear
from Johnson's own testimony that on no occasion did he
feel that Bentley's attendance nor his defective workman-
ship was so severe that it required the issuance of a written
warning or reprimand pursuant to Respondent's progres-
sive system of discipline. As Johnson testified,
"[E]vidently, I didn't feel it was worth making a notation
on him" and "I had no reason to give him a written
warning because it was not a disciplinary action." In light
of such testimony, Johnson's sudden decision to discipline
Bentley with the ultimate discipline of discharge without
prior written warning and a disciplinary layoff of 3 working
days as prescribed by its normal practice became inexplica-
ble unless one considers some other reason or motivation.
As stated by the Court of Appeals for the Eighth Circuit:
Illegal motive has been held supported by a combina-
tion of factors, such as "coincidence in union activity
and discharge" . . . "general bias or hostility toward
the Union" . ..variance from the employer's "normal
employment routine" ... and an implausible explana-
tion by the employer for its action . . . . [McGraw-
Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8,
1969). See also W. T. Grant Company, 210 NLRB 622
(1974).]
Therefore, although Bentley was not among that small
group of employees who wore union pins on the morning
of August 30, 1 am constrained to conclude that the only
plausible explanation for Respondent's sudden decision to
terminate him must be attributed to the employees
organizational activities which occurred during the week
prior to his termination. Respondent was aware of such
activities as revealed by Riley's discussions with Sears on
the morning of August 30. During that same conversation,
Respondent's course of conduct on the day of August 30,
and shortly thereafter, fully revealed Respondent's animos-
ity towards such activity. Indeed, Respondent's conduct
indicates and reveals that it engaged in a series of actions
designed to signal to its employees that they could expect a
more stringent circumstance under which to work now that
they had decided to seek union representation. Thus,
Brewer and Sears, employees whose visiting had been
tolerated previously with a mere verbal reproach, were
suddenly taken off the usual make-work assignment of
practice bending. Dunn was discharged purportedly for
tossing a file on the table. 8 Finally, Respondent contrived
the so-called voluntary quitting of Greer, which in effect,
constituted a new policy of discharge whenever an
employee prematurely left the premises before a shift
ended. Accordingly, I find that Bentley's termination was
8 Although I feel the credibility finding is not necessary as to whether
Dunn was discharged before or after he tossed the file inasmuch as I find a
violation in either event, I discredit the testimony of Gilley and Johnson and
credit Greer and Dunn that the discharge occurred befbre the tossing of the
motivated as part of a general pattern of retaliation against
employees because of their sudden attempts to organize on
behalf of the Union.
IV. ANALYSIS AND CONCLUSIONS
A. The 8(a)(1) Allegations
In light of the findings of fact above I conclude that
Respondent violated Section 8(a)(1) of the Act by:
(1) The statements of Foreman Robert Riley to an
employee on August 30, 1976, that because employees had
sought union representation they were being temporarily
laid off and would no longer be permitted to practice
bending dies during worktime.
(2) The statement of Plant Superintendent Carl Gilley to
employee Sears that although he was not discharged for
union activities he would be recalled from a temporary
layoff on condition that he refrain from any conversation
with fellow employees thus inhibiting Sears' union activi-
ties.
(3) The statement of Foreman Robert Riley to employee
Sears on September 2 and September 10, 1976, that Sears
was not to talk to any other employee during worktime nor
to stir up a ruckus about the Union under penalty of
written reprimands and discharge in order to discourage
his union activity.
(4) The September 7 solicitation of employee grievances
and implicit promise to remedy same by Plant Manager
Johnson, and during a meeting of assembled employees as
well as Johnson's subsequent implicit promise made to
employee Vaughn to correct some of if not all of the
grievances submitted to him by Vaughn, in order to
discourage employee support of the Union.
As stated by the Board, it is not the solicitation of
grievances that is itself coercive but rather the promise,
expressed or implied, to remedy those grievances. Reliance
Electric Company, Madison Plant Mechanical Driver Divi-
sion, 191 NLRB 44 (1971), enfd. 457 F.2d 503 (C.A. 6,
1972). Respondent's reliance on Uarco Incorporated, 216
NLRB 1 (1974), as a defense of its action is misplaced. In
that case, the Board observed that upon solicitation of
grievances an inference arises that the employer is making
a promise to correct grievances, but that such inference
may be rebutted. In that case it is found that the
employer's conduct thereafter effectively rebutted such
inference. Furthermore, the Employer's conduct was not
made in the context of other unfair labor practices. In this
case, the employer, whom I have found had no policy or
practice of soliciting grievances and no practice of holding
group meetings to solicit grievances, did so in the face of an
organizing campaign, after a demand for recognition, and
in the context of other unfair labor practices. Furthermore,
Respondent accepted a list of grievances thereafter with
merely an admonition that it thought the employees were
asking for too much. Clearly, a promise was implicit
therein to consider all and probably correct some griev-
ances. Thus, Respondent herein failed to effectively rebut
file. This credibility resolution is made upon my overall review of the
demeanor of Gilley and Johnson and their overall testimony which I have
found in other areas to be unworthy of credence.
748
TENDICO, INC.
the inference that employees' grievances would be correct-
ed.
(5) The September 10, 1976, statement by Plant Manager
Johnson to employee Bass that the employees' efforts to
better their rates of pay through union representation were
futile because Respondent would frustrate their efforts to
obtain representation by directing their work to the St.
Louis plant and would, in any event, take an adamant,
unalterable position in collective bargaining which would
foreclose any wage increases.
Although I have found that Respondent refused to
permit Glen Greer to remain on the premises of the
employer prior to the start of the shift in order to address
employees and inform them of their rights under the Act, I
do not conclude that Respondent violated Section 8(a)(I)
in doing so. Greer, as I have found, was discharged in
violation of Section 8(a)(l) and (3) of the Act. His
appropriate remedy was to proceed with an unfair labor
practice charge, and not to assume upon himself the duty
of assuring other employees of the provisions of the Act.
Absent evidence that Respondent permitted nonemployees
to address assembled employees on its premises shortly
before the shift commencement, I do not construe the Act
as placing upon the employer the obligation of permitting a
discharged, albeit illegally discharged, employee the oppor-
tunity to engage in such a mission.
With respect to other allegations of 8(a)(l) interference
alleged in the complaint as discussed above, I do not find
that they have been proven by credible testimony.
B. Violation of Section 8(a)(5)
On the date of August 30, 1976, the Union requested
recognition on the basis of 13 authorization cards in the
unit alleged in the complaint and stipulated by the parties
as an appropriate unit. On that date there were 20
employees employed within the unit including the discrimi-
natees.9 Also employed was Joseph Lindsay, whom the
General Counsel contends to be a supervisor. However,
based on essentially uncontradicted testimony of Respon-
dent's witnesses, Lindsay is charged merely with the
responsibility of training new employees and instructing
other employees in a routine nondiscretionary manner
because of his superior experience. Accordingly, I conclude
that Lindsay is a nonsupervisory leadman and I include
him within the unit. Thus of 21 employees, 13 had executed
cards. Thereafter, assuming the cards were valid, the Union
had a majority of employees to designate it as bargaining
representative. The face of the cards read as follows:
Desiring to enjoy the rights and benefits of collective
bargaining, I, the undersigned employee of -- -
(firm name)
Store Address-
Employed as-
Home Address-
Store No.-
Dept.-
Phone--
hereby authorize Retail Clerks International Associa-
tion, AFL-CIO, or its chartered Local Union to
9 A 21st employee, Vaughn. Bentley's replacement. was hired in the
afternoon and signed a card on September 2 or 4.
represent me for the purposes of collective bargaining,
respecting rates of pay, wages, hours of employment, or
other conditions of employment, in accordance with
applicable law.
(Signature of Employee)
(Date)
The cards were properly authenticated either by the card
signer or the card solicitor. Respondent argues that
employee Vaughn testified that he did not read the card
and, when he signed it, he was told by a union representa-
tive for whom he signed it: "It didn't mean the Union
necessarily got in." However, Vaughn testified that the
union representative did not tell him that the purpose for
executing the card was for union representation. Clearly,
the admonition that the representation attempt might not
succeed, does not vitiate the purpose for which he signed it
and I find his card to be a valid authorization for union
representation. iO
Respondent contends that Johnnie Pentecost's card,
executed on August 27, is not valid because Pentecost did
not read it and could not recall what Greer told him at the
time. However, Pentecost testified also that he knew that
the purpose of the cards was to "organize a union or try to
organize a union." Sears testified that he told Pentecost
that the purpose of the card was to obtain "recognition." I
therefore find his designation a valid designation of union
representation.
Respondent further argues that misrepresentation oc-
curred with respect to the solicitation of cards by Greer
with respect to Brewer's card (August 25), and by Sears
with respect to Craddock's card (August 27). These
individuals were told that if a majority of employees signed
cards, recognition would be requested of the Respondent
but "if the Company didn't recognize the Union, they
could petition the Labor Relations Board for an election,"
(Greer), or "the union would contact the Company and ask
that we be recognized as a majority and ask for an election,
. . .that if the Company didn't recognize us, that the
Union would, in turn, contact the National Labor
Relations Board and ask for election through them"
(Sears). Both Brewer and Craddock read the cards.
There is no evidence that any employee was told that the
only purpose of signing a card was for the purpose of an
election. Cf. Cumberland Shoe Corporation, 144 NLRB at
1268, 1269 (1963). In Walgreen Company, 221 NLRB 1096
(1975), the Board stated:
There is nothing inconsistent between obtaining
authorization cards in order to demonstrate sufficient
employee interest in representation to warrant an
election and in using the cards to demonstrate a union's
majority.
In Levi Strauss & Co., 172 NLRB 732, 733 (1968), the
Board stated:
'o Thus, on September 4, there were 14 valid designations in a unit of 24
employees.
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[T]hat employees are told in the course of solicitation
that an election is contemplated, or that a purpose of
the card is to make an election possible, provides in our
view insufficient basis in itself for vitiating unambigu-
ously worded authorization cards on the theory of
misrepresentation.
Finally the Supreme Court declared in N.L.R.B. v. Gissel
Packing Co., supra at 395 U.S. 606-607:
[E]mployees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words
calculated to direct the signer to disregard and forget
the language above his signature. There is nothing
inconsistent in handing an employee a card that says
the signer authorizes the union to represent him and
then telling him that the card will probably be used first
to get an election.... We cannot agree . . . that
employees as a rule are too unsophisticated to be
bound by what they sign unless expressly told that their
act of signing represents something else.
Accordingly, I conclude that on August 30 and at all
times material thereafter the Union had obtained a
sufficient number of valid authorization cards to demon-
strate that it had been clearly designated the collective-
bargaining representative of an uncoerced majority of
Respondent's employees in an appropriate unit, and I so
find.
Where an employer has engaged in pervasive unlawful
conduct which makes unlikely the probability of holding a
fair election, that employer may not refuse recognition and
instead insist on an election. N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 610-615 (1969), Trading Port, Inc.,
219 NLRB 298 (1975); W & W Tool & Die Manufacturing
Co., 225 NLRB 1000 (1976).
The unlawful conduct of Respondent in this case could
have no other objective but to dissipate the Union's
majority status and to inhibit the election process. I find
that Respondent's argument to the contrary in view of a
high employee turnover to be unpersuasive. The severity of
its violative conduct could but only have a lingering,
cumulative effect which suggests the possibility of reoccur-
rence in an election campaign. Accordingly, I find that
Respondent has violated Section 8(a)(5) of the Act and was
therefore obliged to bargain with the Union on August 30,
1976, and all times thereafter, as the collective-bargaining
agent of the employees in the unit set forth below in the
recommended Order.
V. THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
II In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
It having been found that Respondent discharged Gary
Bentley, Steven Dunn, and Glen Greer on August 30, 1976;
and laid off Terry Brewer and Gerald Sears on August 30,
1976, who were subsequently recalled, Respondent shall
offer Gary Bentley, Steve Dunn, and Glen Greer immedi-
ate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and shall make them, and
employees Terry Brewer and Gerald Sears, whole for any
loss of earnings they may have suffered by reason of the
discrimination against them. Any backpay found to be due
shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Inasmuch as the violations found above are so egregious
in nature, Respondent is further required to cease and
desist from infringing in any other manner upon the rights
guaranteed by Section 7 of the Act.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER Ii
The Respondent, Tendico, Inc., a subsidiary of Ripley
Industries, Inc., and Ripley Industries Inc., and Ripley
Industries, Inc., Nashville, Tennessee, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Telling employees that if they seek union representa-
tion they will be laid off and will no longer be permitted to
practice bending dies during worktime.
(b) Telling employees that they will be recalled from
layoff status on condition that they refrain from any
conversations with fellow employees in order to inhibit
their union activities.
(c) Telling employees not to talk to fellow employees
during worktime under penalty of written reprimand and
discharge in order to discourage their union activities.
(d) Soliciting employee grievances or complaints and in
connection therewith promising employees to correct those
grievances or complaints.
(e) Telling employees that their efforts to better their
rates of pay through union representation are futile
because their efforts to obtain representation will be
frustrated by diverting their work to another plant, or that
in any event it will never agree to wage increases in the
collective-bargaining process.
(f) Discouraging membership in or activities on behalf of
Retail Clerks Union, Local 1557, Retail Clerks Internation-
al Association, AFL-CIO, or any other labor organization,
by laying off, discharging, or otherwise discriminating
against employees in any manner with regard to their rates
of pay, wages, hours of employment, hire, tenure of
employment, or any term or condition of their employ-
ment.
(g) Refusing to bargain collectively with Retail Clerks
Union, Local 1557, Retail Clerks International Associa-
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
750
TENDICO, INC.
tion, AFL-CIO, as the exclusive representative of the
employees in the following unit:
All employees employed at Respondent's Nashville,
Tennessee, location excluding office clerical employees,
guards, and supervisors as defined in the Act.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to employees Gary Bentley, Steven Dunn, and
Glen Greer immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
and make them, and employees Terry Brewer and Gerald
Sears, whole for any loss of earnings they may have
suffered by reason of Respondent's unlawful discrimina-
tion against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary and useful in analyzing the amount of backpay
due under the terms of this recommended Order.
(c) Upon request, recognize and bargain with the above-
named Union as the exclusive representative of all
employees in the aforesaid appropriate unit and, if an
understanding is reached, embody such understanding in a
written, signed agreement.
(d) Post at its plant in Nashville, Tennessee, copies of
attached notice marked "Appendix." 12 Copies of said
notice on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed as to any alleged violations of the
Act not found herein.
12 In the event that this Order is enlorced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States (Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented by
their attorneys and afforded the opportunity to present
evidence in support of their respective positions, it has been
found that we have violated the National Labor Relations
Act in certain respects and we have been ordered to post
this notice and to carry out its terms.
The National Labor Relations Act give you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from all of these things.
Accordingly, we give you these assurances:
WE WILL NOT tell our employees that if they seek
union representation they will be laid off and will no
longer be permitted to practice bending dies during
worktime.
WE WILL NOT tell our employees that they will be
recalled from layoff status on condition that they
refrain from any conversations with fellow employees
in order to inhibit their union activities.
WE WILL NOT tell our employees not to talk to fellow
employees during worktime under penalty of written
reprimand and discharge in order to discourage their
union activities.
WE WILL NOT solicit employee grievances or com-
plaints and in connection therewith promise employees
to correct those complaints or grievances.
WE WILL NOT tell our employees that their efforts to
better their rates of pay through union representation
are futile because such efforts will be frustrated by
diverting their work to another plant or that in any
event we will never agree to wage increases in the
collective-bargaining process.
WE WILL NOT discourage membership in or activities
on behalf of Retail Clerks Union, Local 1557, Retail
Clerks International Association, AFL-CIO, or any
other labor organization by discharging, laying off, or
otherwise discriminating against employees in any
manner.
751
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give back to Gary Bentley, Steve Dunn,
and Glen Greer their former jobs and pay them, and
employees Terry Brewer and Gerald Sears, for any loss
of pay as a result of our discrimination against them.
WE WILL, upon request, recognize and bargain
collectively with Retail Clerks Union, Local 1557,
Retail Clerks International Association, AFL-CIO, as
the exclusive bargaining representative of employees in
the appropriate collective-bargaining unit set forth
below, and embody any understanding reached into a
signed agreement. The appropriate collective-bargain-
ing unit is:
All employees employed at Respondent's Nash-
ville, Tennessee, location excluding office clerical
employees, guards and supervisors as defined in
the Act.
TENDICO, INC., A
SUBSIDIARY OF RIPLEY
INDUSTRIES, INC., AND
RIPLEY INDUSTRIES, INC.
752