The Taylor Chair Co.

National Labor Relations Board - Board Decisions

Jan 23, 1989

292 N.L.R.B. 658 (N.L.R.B. 1989)

658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Taylor Chair Company and Furniture Workers
Division , I U E, AFL-CIO Cases 26-CA-
12105, 26-CA-12133, 26-CA-12133-2, 26-
CA-12145, 26-CA-12226, 26-CA-12263, and
26-RC-6942
January 23, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 9 , 1988, Administrative Law Judge J
Pargen Robertson issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to the Respondent 's exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings, i and
conclusions2 and to adopt the recommended Order
as modified 3
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has requested oral argument The request is denied as
the record exceptions and briefs adequately present the issues and the
positions of the parties
The judge erroneously reported the citation to Gino Morena Enter
passes 287 NLRB 1327 ( 1988) We correct the error
2 We agree with the judge s conclusion that the Respondent threatened
employees with job loss because of plant closure We find no merit in the
Respondent s contention that Company President Baldassare s letter of
May 19 to the employees is a clear disavowal of the threat of closure
made by Plant Manager Murdock in his speech of April 27 We have re
viewed the letter which states that the charge that the Respondent
would close the plant if the Union won the election is a gross untruth
and that the Respondent intends to operate the plant regardless of the re
suits of the election or negotiations We find that these statements do not
meet the standards for repudiation inasmuch as no assurance was given to
employees that the Respondent would not interfere with their Sec 7
rights in the future and the Respondent engaged in other unlawful con
duct after May 19 See Passavant Memorial Area Hospital 237 NLRB 138
(1978) and cases cited therein
We agree with the judge that Supervisor Jones unlawfully interrogated
employee Willie Clark Immediately after Murdock s antiunion speech
Jones who was unaware of Clark s position regarding the Union asked
Clark how she intended to vote in the election After Clark replied
yes Jones asked her which employees had started the Union Clark re
fused to divulge that information Under the circumstances we find that
this questioning was coercive and therefore constitutes an unlawful in
terrogation Williamson Memorial Hospital 284 NLRB 37 (1987) We fur
ther find it unnecessary to pass on the judge s findings that Jones unlaw
fully interrogated employees Tyler and Johnson as this conduct is cumu
lative to Clark s interrogation and would not affect the remedy
Member Cracraft agrees that Supervisor Jones interrogation of em
ployee Willie Clark was unlawful However in reaching that conclusion
she does not rely on Sunnyvale Medical Clinic 277 NLRB 1217 (1985) a
case relied on in Williamson Memorial Hospital
a The judge inadvertently failed to provide a remedy for the Respond
ent s unlawful interrogation We have modified the Order and notice to
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Taylor Chair Company, Clarksdale,
Mississippi , its officers , agents, successors, and as
signs , shall take the action set forth in the Order as
modified
1 Insert the following as paragraph 1(a) and re
letter the subsequent paragraphs
"(a) Interrogating employees about how they
intend to vote or about their or other employees'
union activities "
2 Substitute the attached notice for that of the
administrative law judge
DIRECTION
It is directed that the Regional Director for
Region 26 shall, within 10 days from the date of
this Decision , open and count the ballots cast by
Debra Gray and Katie Williams in Case 26-RC-
6942, and prepare and serve on the parties a re
vised tally of ballots If the revised tally reveals
that the Union has received a majority of the valid
ballots cast , the Regional Director shall issue a
Certification of Representative However, if the re-
vised tally shows that the Union has not received a
majority of the valid ballots cast, the Regional Di
rector shall set aside the election results and con
duct a second election
correct this oversight Additionally we shall direct the Regional Direc
tor to open and count the overruled challenged ballots and to issue a
Certification of Representative should the Union receive a majority of
the votes cast
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT interrogate you about how you
intend to vote or about your union activities
WE WILL NOT threaten you with loss of jobs be
cause of your activities on behalf of Furniture
Workers Division, I U E, AFL-CIO, or any other
labor organization
WE WILL NOT threaten you with replacement by
untrained employees because of your union activi
ties
292 NLRB No 65
TAYLOR CHAIR CO 659
WE WILL NOT threaten you with loss of jobs be
cause we may leave Clarksdale, Mississippi, be
cause of your union activities
WE WILL NOT tell you that it would be futile to
support Furniture Workers Division, I U E, AFL-
CIO, or any other labor organization , by telling
you that we will not sign a contract
WE WILL NOT tell you that we may have han
died your problems, but will not now because you
have gone to the Union
WE WILL NOT threaten you with financial harm
caused by loss of jobs because of your union activi-
ties
WE WILL NOT tell you that we cannot grant a
wage increase because the Union prevented you
from earning higher wages
WE WILL NOT reprimand , demote, suspend, or
refuse to reinstate you because you engaged in
union activities or other concerted activities pro-
tected under the National Labor Relations Act
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer immediate and full recall or rein-
statement to Katie Williams, Randy Williams, and
Debra Gray to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions , without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings , plus interest
WE WILL make Debra Gray, Randy Williams,
Katie Williams, and Clastine Pittman whole for any
loss of earnings they have suffered, if any, by
reason of our discrimination against them with in
terest
WE WILL rescind warnings issued to Mosezell
Thomas on May 15 and July 20, to Randy Wil
liams on July 20, and to Clastine Pittman on May 8
and 15 and August 11, 1987, and WE WILL rescind
the July 1987 demotion of Randy Williams, be
cause of their union activities
WE WILL remove from our files any reference to
the disciplinary actions, including warnings, sus-
pensions, and demotions, taken against Randy Wil-
liams , Mosezell Thomas, Debra Gray, Katie Wil-
liams, and Clastine Pittman and inform them in
writing that we have done so and that we will not
use in disciplinary actions against them in any way
THE TAYLOR CHAIR COMPANY
James Fuller Esq, for the General Counsel
Eugene B Schwartz Esq (Schwartz Einehart Wood &
Zuder) of Cleveland, Ohio for the Respondent
Willie Rudd, of Memphis, Tennessee, for the Charging
Party
DECISION
STATEMENT OF THE CASE
J PARGEN ROBERTSON, Administrative Law Judge
This case was heard before me on 5, 6 , and 7 October
1987 in Clarksdale , Mississippi pursuant to an order con
solidating cases, which issued on 17 September 1987
The complaint in Case 26-CA-12263 issued on 17 Sep
tember 1987 The complaint in Case 26-CA- 12226 issued
on 19 August 1987 All the other captioned CA cases
were consolidated in a complaint that issued on 9 June
1987 The charges and amended charges were filed on
various dates beginning on 30 April 1987 Alleged are
violations of Section 8(a)(1) and (3) of the Act
Additionally , in accord with a 4 September 1987 order
of the National Labor Relations Board , consideration is
given to objections and challenges in Case 26 -RC-6942
Respondent employs some 50 to 54 employees in the
bargaining unit in seven departments in its furniture man
ufactunng facility in Clarksdale , Mississippi The bar
gaining unit is described
Included All production and maintenance em
ployees including group leaders employed by The
Taylor Chair Company at its Clarksdale , Mississip
pi, location , who were employed during the payroll
period ending May 12 1987
Excluded All other employees , office clerical
employees plant clerical employees watchmen
guards and supervisors as defined in the Act
The Union commenced an organizing campaign at Re
spondent s Clarksdale facility in the spring of 1987 Re
spondent s chief operating officer at Clarksdale is Vice
President and Plant Manager Charles Murdock Re
spondent conducted a campaign against the Union begin
ning no later than 15 April 1987, when Respondent's
chief executive officer and president Fred Baldassari,
spoke to the employees in Clarksdale
The General Counsel contends that Respondent en
gaged in conduct violative of Section 8(a)(1) and (3)
during its campaign against the Union The 8(a)(1) alle
gations involve two supervisory employees, Plant Man
ager Charles Murdock and Millroom Supervisor Danny
Jones
I THE INDEPENDENT 8(A) (1) ALLEGATIONS
A Danny Jones
Employee Willie B Clark testified that Supervisor
Danny Jones talked to her after an antiunion speech by
Plant Manager Murdock The parties stipulated that that
speech was given on 27 April 1987 Clark testified that
Danny Jones came to her work station after Murdock s
speech Her testimony was as follows
I was doing my job and he came up to me and
asked me why was I angry and I told him because I
didn t like the way Charlie had talked to us, because
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I didn t think that you know it was right And he
said to me that it could have been worded better
He said that, Let me ask you another question
off the record If you had to vote right now how
would you vote? I told him I would vote Yes
for the union
And he also said that, asked me who started the
union I told him I wouldn t tell him
Supervisor Danny Jones did not deny the allegation of
Willie Clark In fact Jones admitted that he asked three
employees including Clark, how they would vote Jones
testified that Clark said she would vote for the Union
and the other two employees said that they would vote
no Jones admitted that at the time he talked with those
three employees he did not know how they felt about
the Union
Conclusions
The record shows that Jones interrogated three em
ployees about their union preferences in violation of Sec
tion 8(a)(1) of the Act
B Charles Murdock
1 24 April
In support of this allegation counsel for the General
Counsel in its brief points to the testimony of employee
Martha Hatchett Hatchett testified that Charles Mur
dock talked to her at her work station around 24 April
1987 Murdock walked up
and he told me that we had been through a lot to
gether and he was aware of my activities and they
were no good and that he didn t want to see me out
on the street and that he wanted me to stop
Yes he told me that he didn t want to see me out
on the street and that s where I was going to be if I
didn t stop my activities
He said that Fred was not going to sign a con
tract
On the following day Murdock returned to Hatchett
at her work station and He asked me if I understood
what he told me the day before and I told him, Yes I
understood it
Hatchett testified that she had openly indicated her
support of the Union by wearing a button or a T shirt
before her first conversation with Murdock
Murdock admitted that he did talk with Hatchett
about the Union in conversations at her work station
According to Murdock he had heard that Hatchett told
others that she would not participate in a strike by the
Union Murdock told Hatchett that if the Union called
a strike [she] wasn t going to be able to come in there
and go to work Murdock denied telling Hatchett that
she would find herself on the street if she did not stop
her union activity or that he told her Fred Baldassari
would never sign a contract with the Union
2 27 April 1987
The parties stipulated that Charles Murdock spoke to
the employees about the union campaign on 27 April
1987
Employees Randy Williams, Mosezell Thomas Clas
tine Pittman, Bonnie Pinion Barbara Topper and Willie
B Clark all testified about Murdock s speech Willie B
Clarks testimony was similar to that of the other em
ployees
He said I want every god damn one of you to
turn around and look at me I want to see all your
damn faces The union man has had his fun Fred
has been down to talk to you and now its my
turn He said I just can t get any sense into your
damn heads He said The union-if two or three
of you had come together as a committee and came
to me I would have seen what I could have done,
not that it might would have made any differences
He said that only one person knew how to do their
job when they came there and that was Tommy
And he taught us everything that we knew Just
like he taught us he could teach others
He said the union man would have you out there
striking He said they make you a lot of promises
that they can t keep He said he had been knowing
about unions every since he was so high He told us
to look at Vintage Homes and the catfish place and
a place in Tunica He said that the union had had us
riding on our high horses but we were going down
He said also that the shop could close but he was
a professional he had sixty years experience he
could relocate anywhere He said a lot of people in
here had husbands and wives to help them what
would the ones do that didn t have anybody Would
we give them any money? He said that the union
would give them maybe a couple of dollars a few
dollars but that wouldn t last long
He made he threw a quarter on the floor a
couple of times and told us to go call our damn
union man he said because he knew some of us
couldn t wait to tell him And he said that he
wanted-no, he said he better not catch us goofing
off or we are going and Carry you damn asses
back to work
Charles Murdock also testified about his 27 April
speech
All right I called them all together I told them I
had a number of things I wanted to talk about most
of it was that we were there to work during the
daytime I was tired of the harassing around, of talk
about the union for and against and I wanted it
stopped Let s go back to work
I talked about the fact that people went out on
strike and I thought it might get pretty tough for
them especially those that didn t have other mem
bers in the immediate family that was working
The point was made to me many times before the
meeting if they weren t there we couldn t run the
shop I-if they had went out on strike or walked
TAYLOR CHAIR CO
out, whatever they said I brought up the fact that
when I came there they weren t there and we run
the shop We could do it again I made one com
ment about I ve been into it sixty years, I suppose I
could highlight that one I said when I come there I
was looking for a job if I went someplace else I
could find another job I had a number of years ex
perience in it , I don t remember how many years I
said I surely hope it s not sixty
Q How old ar you?
A Huh?
Q How old are you now?
A I in fifty nine
Q All right
A Basically its just about what I give up there
at the Labor Board is exactly what I said without
going too lengthy into this
Q Pardon me?
A Without going into it too lengthy, 111 go by
what I gave the labor Board
Q There is an allegation that you solicited com
plaints and promised benefits
A What is this now?
Q There is an allegation in the complaint that
you solicited employee complaints and promised
benefits
A If you re referring to the fact of where I told
them before the union before they got involved
with the union or anything like that if they would
have made a committee and come to talk to me
about this, I would have been more than willing to
go to Ohio and talk to them people about their
complaints I promised that I didn t know whether I
could do any good but I would sure give it a good
fighting chance
Q All right Did you threaten to discharge any
employee or employees because of their union ac
tivities?
A No sir I did not
Q Did you threaten them with loss of jobs?
A No sir
Q Did you tell them that it would be useless or
futile to vote for a union or to join a union because
the company would grant them nothing?
A No sir I did not
3 29 April 1987
Ricky Joiner an employee of Respondent who is not
presently working because of an accident testified to a
conversation he had with Charles Murdock in Respond
ent's shipping department on 29 April
Well he said just like, you know he came out there
in the back and said, Well Ricky, I like you a lot
you know just like that And then he said you
know, Like if Randy and them, like if they lose
they jobs you know like they have somebody else
coming in bringing they bread He said but just
like if I get laid off he would just hire somebody
just like if we were to go on strike or something
like that
661
Murdock denied that he threatened any employee with
loss of jobs
4 Late April 1987
Employee Bonnie Pinion testified to a conversation
she and Barbara Topper had with Plant Manager Mur
dock at Pinion s sewing machine Pinion placed the date
as late April but before Murdock s 27 April speech to
the employees Pinion testified
Well he repeated something to Barbara and I
didn t understand what it was I repeatedly asked
him what did he say and he said, I want you two
to know that you have a job, you have your jobs
because you do good work, even if the union comes
in or it doesn t come in
And he also talked about, he said that I had a
worried look on my face and not to worry and I
asked Barbara, I said, Well have I had a worried
look on my face and she said No And so
Charlie said that he wasn t familiar with this union
and he asked what it was we told him and he said,
Well, isn t this run by a damn nigger? And I said,
Well our President is black but our representative
is white And he goes on and tells us about his
brother Slim being in the union and then he tells
us goes on and talks to us about this piece in the
paper of a woman having fifteen children and draw
ing ten thousand a year and was wanting more
money
BY THE WITNESS Yes, he did He said if we
wanted more money we could have formed a group
of two or three and come to him and he would
have called Ohio to get us more money although he
didn t know if it would have helped but he would
not do it now
Yes I do He said he would not have been as
mad had we used the union that Ohio had because
it would have made the company-well I asked
Why He said Because it would have made the
company stronger had we have used the one that
they had I said Well we didn t know He said
Well I can t talk to you all about it anymore I
could get in trouble for what I have already said
BY THE WITNESS He said that if Barbara and I
he said that he respected Barbara and I for standing
out in the open unlike some of the bench warmers
and he did like that, which are going to get the
same benefits you re going to get Although, he
said I will not hurt you and Barbara if you all
wont hurt me But he said If you all go on strike
there is nothing I can do to help
Barbara Topper also testified Topper recalled the con
versation occurred on 22 April Topper s testimony cor
roborated that of Pinion
Charles Murdock also testified about his conversation
with Pinion and Topper
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I can speed that one along and go by my Labor
Board with two exceptions . I will rectify the fact
that I probably did say damn nigger.
Q. Well, tell me how the conversation came
about, where it took place, who was present?
A. By Bonnie Pinion 's sewing machine. Barbara
Topper was there at the same time.
Q. All right. Tell me what happened.
A. All right. Well, there had been a considerable
amount of talk to me through the shop in the uphol-
stering department , not out of the wood shop, that
Mrs. Pinion had made the statement many times
that her husband was mad at her about getting in-
volved in union activity and he was going to be
damn mad at her if she lost her job over it.
That is primarily the reason why I talked to her.
Barbara Topper was there at the same time, which I
had no objections to, to let them know as far as I
was concerned they had no problem like that. If a
person is a good worker for me I wouldn't give
them a hassle on something like that.
And through that it went to the fact that we
asked each other who the--well, I asked them, I
said, "I don't know nothing about the union down
here. I don't even know which one it is." That's
when they began to tell which one it was. I told
them the fact it wasn't the same one that I knew
about and had belonged to a few years myself up in
Ohio.
Q. And what union was that up in Ohio?
A. Well....
Q. Is that the Upholsterers ' International Union?
A. It's the Upholsterers ' and Bedders Union as I
recall . They may have changed the name now, I
don't know.
I remember , too, that the headquarters was in
Philadelphia , Pennsylvania . That's really about all I
can put into that.
Well, to make a point that I said "the damn
nigger." I said that was run by white people and I
won't contest what they say. I probably did say it. i
have a bad habit of that at some times.
5. September 1.987
Barbara Topper recalled another conversation with
Charles Murdock regarding the Union . Topper recalled:
I don 't know the exact date but I was in his
office a couple of weeks ago on some matters about
the work, you know, that I was dissatisfied with in
there. and that I was wanting a raise. And him and
I, we talked about him giving me a raise but, you
know , due to the union going on and everything he
knew that he couldn 't. That was the only time we
ever spoke about the union.
Topper recalled that Production Control Manager
Terry Wayne Smith was also present during the above
conversation . Smith admitted the meeting occurred, but
he denied that the Union was brought up in the meeting.
Murdock's testimony corroborated that of Terry
Smith . Murdock also denied that the Union was men-
tioned in the conversation.
Discussion
Plant Manager Murdock's sworn testimony frequently
conflicted with records of Respondent, with testimony of
witnesses for Respondent, with witnesses for the General
Counsel, and with his own prior testimony. For example,
Murdock 's testimony concerning the basis for the 20 July
warnings to employees Randy Williams and Mosezell
Thomas conflicted with the language in the written
warnings and with the testimony of Supervisors Bright
and Smith (see below). On numerous occasions Murdock
testified in conflict with the testimony of employees.
However, of great significance, Murdock admitted that
he lied in a pretrial affidavit to an agent of the National
Labor Relations Board regarding statements he made
about the union president . For all the above reasons, I
am unable to credit the testimony of Plant Manager
Murdock to the extent it conflicts with credited evi-
dence. I do credit the testimony of the other witnesses
noted above to the extent there is no conflicting evi-
dence other than testimony of Charles Murdock. As to
the testimony of Barbara Topper regarding the Septem-
ber 1987 conversation with Murdock and Terry Wayne
Smith, I credit the testimony of Topper. I was impressed
by Topper's demeanor. Her other testimony was fully
supported by the testimony of Bonnie Pinion and, to a
lesser degree, by Charles Murdock. I am convinced that
Topper testified truthfully.
Conclusions
The credited evidence shows that Plant Manager Mur-
dock threatened employee Martha Hatchett that she may
be on the street if she did not stop her union activities.
Murdock also told Hatchett that Respondent would not
sign a contract . Those statements constitute a threat of
loss of job because of the employees ' support of the
Union and that it would be futile to support the Union
because Respondent would not sign a contract.
In his 27 April speech and on other occasions men-
tioned above, Murdock held out that he may have han-
dled the problems if they had come to him before start-
ing the Union; he threatened the employees that they
could be replaced because he had trained them and could
train others; he threatened loss of jobs and that he could
leave Clarksdale and find work elsewhere and he threat-
ened that others may be harmed because of the Union,
especially if they did not have husbands and wives work-
ing elsewhere . By telling employees that he could have
taken their complaints , Murdock threatened that he
would not aid employees with their complaints because
of their union activities. (See Gino Morena Enterprises,
278 NLRB 1327 (1988).)
On 29 April Murdock threatened Ricky Joiner if
prounion employee Randy Williams lost his job he had
help in his household with another income, but if Joiner
was laid off he would have no help and Respondent
would replace Joiner with another employee. Those
TAYLOR CHAIR CO
comments constitute a threat to employee Joiner of loss
of job because of union activities
The credited evidence shows that Murdock threatened
employees Topper and Pinion with unspecified reprisals
because of the Union with his comment, I won t hurt
you and Barbara if you all won t hurt me Additionally,
Murdock disparaged the Union and union representative
by his racial comments
By telling Topper that he could not grant her a raise
due to the union going on Murdock engaged in viola
tive conduct by implying that the Union prevented the
employees from earning higher wages
II THE 8 (A) (3) ALLEGATIONS
The General Counsel alleges that Respondent initiated
more strict enforcement of production standards begin
ning on 20 April 1987 against some of its upholstery em
ployees because of their union activities
The record shows that experienced employees in up
holstery are expected to produce five davenports in an 8
hour day
However, the testimony shows that the rule is not a
rigid rule
The term davenport is a loose term, which includes
three pieces of furniture, a three place davenport, a two
place loveseat, and a one place lounge
The upholsterers are charged with properly attaching
assigned fabrics to the furniture frames When the uphol
sterers work on one place lounges, it is not difficult to
maintain a rate of five pieces in 8 hours However it is
more difficult to maintain the 5/8 rate if more two place
loveseats are produced and even more difficult when
three place davenports are produced On some occasions
when the upholsterers have lounges and either loveseats
or davenports available for upholstery, they are told to
mix productions in order to achieve a 5/8 rate
Respondent has not retained production records for
before April 1987
A 20 and 22 April 1987
The complaint alleges that Respondent illegally
warned Randy Williams on 20 and 22 April 1988 and
that Respondent more strictly enforced its production
quotas since 20 April The record evidence shows that
Respondent learned of its employees union organizing
campaign sometime before 15 April 1987 On 15 April
Respondents president, Fred Baldassari came to Clarks
ville and spoke to the employees in opposition to the
union organizing effort Plant Manager Charles Murdock
admitted that he learned of the Union's organizing cam
paign in April
Randy Williams and Mosezell Thomas along with
other employees, commenced their union activities in the
spring Randy Williams testified that he signed a union
card and became a member of the Union's organizing
committee on 16 April On 22 April Williams started
wearing a union button
Mosezell Thomas testified that he started wearing a
union T shirt and union button in March 1985 Thomas
passed out union literature and he was on the Union s
committee
663
Conclusions
In order to determine the Respondent began a policy
of more strict enforcement of its production standards on
20 April 1987, it is first necessary to show that Respond
ent either announced or implemented such a policy
Respondents records show that Mosezell Thomas and
Randy Williams received warnings on 20 April 1987
The record shows that Randy Williams received a writ
ten warning for production on 20 April and then Mose
zell Thomas received verbal warnings for production on
both 20 April and 18 May 1987 The Employer warning
notice dated 20 April issued to Williams has poor atti
tude checked with the statement insufficient produc
tion-of three people with sufficient time and experience
making davenports-Randy Williams turned in less than
all others
According to Randy Williams, he was awarded the
warning by Charles Murdock
When I came in Charlie told me that he had
warned me before about my production and I told
him I told him I was doing the best I could and he
said he had warned me about my production before
and that s when he gave me a slip and the, you
know, he was saying insufficient production, less
than the other people, and I asked him where did
the attitude come then he said, That's something
we added in And I was trying to explain to him
why we was behind and he said he didn t want to
hear it, to save it until, he said Save it, and then
I could give somebody else hell
Subsequently on 22 April Murdock talked again with
Williams
Yes Charlie said well, he called me over in the
chair department and he told me not to be fooling
around and that he wanted me to get my five and
David and if not he would dismiss me and I said, he
said , Don t be bull heading me, and I said, I
warn t bull heading you
Before 19 April 1987 Randy Williams had received
warnings for low production on 14 August and 11 Sep
tember 1985 The 14 August 1985 warning read
Called employee in and told (at the time he was
working 9 hrs) for 8 hrs he is suppose to get 5 day
each Most of the time he was not getting that
many Told he would have to start getting 5 a day
or he would be replaced
The 11 September 1985 warning read
For 7 days work, schedule production would be 35
Dav Randy has gotten 27 so he is 8 short At end
of month if he does not have 125 he will be re
placed
During the week ending 17 April 1987 Randy Wil
liams produced a total of 10 pieces in 4 workdays for an
average of 2 5 pieces for 8 hours Mosezell Thomas pro
duced 15 pieces in 4 days for an average of 3 8 pieces in
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 hours Ruthie Addison produced a total of 12 pieces
for an average of 3 pieces per 8 hours Sean Foster, who
started working for Respondent on 2 April 1987, pro
duced nine pieces for an average of 2 3 per 8 hours
During the week ending 10 April 1987, Williams aver
aged 3 8 pieces per 8 hours , Thomas 3 8 pieces Ruthie
Addison 3 2 pieces, and Sean Foster 2 5 pieces During
the week ending 3 April 1987, Williams averaged 3 2 per
8 hours, Thomas 3 8, Addison 3 0, and Foster 2 5
Kimmie Kirksey, an employee with experience similar to
Williams and Thomas , worked as an upholsterer and
averaged 3 6 pieces per 8 hours during the week ending
3 April
The General Counsel offered no other evidence illus
trating either that Respondent instituted a new policy or
strict enforcement on 20 April, or that Respondent dis
criminatonly warned Randy Williams in April
The record does not show that Respondent began to
more strictly enforce production standards on 20 April
Even though Randy Williams received no warnings from
11 September 1985 to 20 April 1987, there is no showing
that his production warranted such action during that
period In fact Williams testified that from his last warn
ing before 1987 until April 1987 he did not recall ever
going 2 or more days in a row without getting produc
tion of five per day and that he did not recall missing
more than 1 day a week of not producing five
Moreover there was nothing said in Murdock s 20 and
22 April conversations with Williams to show that Re
spondent was beginning policy of more strict enforce
ment of production rules or that his warnings to Wil
Hams had anything to do with the union campaign
There was no showing that Respondent knew of Wil
Hams activity before 22 April when Williams received a
union button
The parties did stipulate that Respondent first noticed
employees wearing union buttons sometime after 15
April Nevertheless they did not stipulate how soon
after 15 April Respondent noticed the buttons
The Charging Party argued that Respondent did not
start keeping track of employees production until com
mencement of the Union s campaign However the evi
dence includes records for all of April and the evidence
fails to show that Respondent learned of the Union s
campaign until before mid April
I agree that the timing of Respondent s warning to
Randy Williams on 20 and 22 April causes concern when
compared with the timing of his initial union activity
Nevertheless, the evidence does not establish company
knowledge of Williams union activities before the April
warnings The record supports Respondents position re
garding Randy Williams' production during the week
before 20 April Therefore, I find that the General Colin
sel failed to prove that Respondent instituted a policy of
strict enforcement of productivity standards on 20 April
and also failed to prove that Randy Williams was illegal
ly warned on 20 and 22 April
B 7 and 18 May 1987
As shown above , Respondents records show that Mo
sezell Thomas received verbal warnings regarding pro
duction on 20 April and 18 May 1987
Mosezell Thomas testified about conversations on 7
and 18 May 1987
1 7 May
Wayne Smith came to my area and he told me,
he said , How many of them things did you do? I
asked him , What things? He said , These couches
here I told him I had done three now with these
two I was building I would have five He said
Charlie said you and everybody that is in here is
going to have to do five from now on, so I told
him, Okay So he said, Don t forget don t say I
didn t tell you, that s what he said
2 18 May
Q Okay Who was doing the speaking?
A Mr Murdock
Q Okay
A He said , Moe the reason we got you in this
office is about your production and he said, You
did five every day except Saturday and you going
to have to get five every day from now on Then
he said
Q Did he say what would happen if you didn t
get your five?
A Yeah he said You going to have to get your
five or you be gone And then he said something
about he not threatening me
Q I in sorry?
A He say I in not threatening you
Q Okay
A He say If we end up in court those other
two slips I gave you will be there too
Plant Manager Murdock did not deny the above testi
mony by Mosezell Thomas
Conclusions
By the end of April Mosezell Thomas had made his
union activities known to Respondent Although I be
lieve Thomas erred in his testimony that he wore union
buttons and T shirts in March the record does show that
Thomas wore a union button and distributed union litera
Lure near the plant during late April Additionally
Randy Williams started wearing a union button around
22 April 1987 Charles Murdock illustrated that Re
spondent knew of Williams union activities during the 29
April conversation with Ricky Joiner (see above)
I credit Thomas testimony concerning his 7 and 18
May conversations That testimony illustrates the install
tion of a new policy regarding production for upholster
ers Beginning on 7 May Thomas was admonished to
produce five pieces in 8 hours on every working day
On 18 May Plant Manager Murdock emphasized the
new policy and tied the conversation into the union cam
paign by remarking about what he would do if we end
up in court
Two weeks before his warning Thomas produced five
on Monday five on Tuesday file on Wednesday four on
Thursday and four on Friday Murdock remarked that
Thomas had five on every day except Saturday on the
TAYLOR CHAIR CO 665
week before 18 May Those figures show that Thomas
was producing at a rate above that which had been ac
ceptable by Respondent before the union campaign
The above evidence shows that Respondent did insti
tute a strict enforcement policy against union supporters
beginning with its warning against Mosezell Thomas on
7 May 1987 Although I cannot find that Thomas April
warning was unlawful the facts clearly show that his
warning of 18 May was awarded in violation of the law
Beverly Enterprises, 272 NLRB 83 (1984), United Hydrau
lic Services, 271 NLRB 107 (1984)
C 8 and 15 May 1987
The General Counsel alleges that Respondent violated
Section 8 (a)(3) by warning employee Clastine Pittman on
8 and 15 May 1987
Respondent records show that employee Clastine Pitt
man received , inter alia , verbal warnings on 8 May for
failure to perform duties ' and on 15 May for excessive
time in restroom
Clastine Pittman testified that Tommy Wayne Smith
told her on 20 April not to talk about the Union on com
pany time and, on 8 May , Smith cautioned her that she
was to stay in her work area and that she was to help
Annette Blackwell Pittman denied that she had refused
to assist Blackwell before that conversation
On 15 May Pittman was told by Smith that she was
not to go to the bathroom unless its an emergency
Pittman testified that she engaged in prounion activi
ties beginning in February 1987 She wore a union
button beginning in late April a union T shirt beginning
in late May and she was on the union organizing com
mittee
Conclusions
Production Control Manager Terry Wayne Smith tes
tified that the verbal warnings to Clastine Pittman on 8
and 15 May were precipitated by complaints from other
employees According to Smith shortly before 8 May
he, Plant Manager Murdock and Supervisor Charlotte
Redwine Bright were talking to employee Annette
Blackwell Smith testified that Blackwell said that one of
the reasons her production was down was because Clas
tine Pittman who was assigned to help Blackwell, would
often refuse to assist Blackwell
Blackwell did not testify Pittman denied that she had
ever refused to help Blackwell
Again according to Production Control Manager
Smith shortly before 15 May employee Dean Rainey
told him that Clastine Pittman would leave her work sta
tion every afternoon after Mr Murdock or [Smith]
wasn tin the back Smith testified that on the next day
or so Rainey came to him saying that Pittman had left
her work station Smith then observed Pittman talking
with employee Bonnie Pinion for about a minute or so
Pittman and Pinion then went to the restroom Smith
timed them in the restroom 13, 14 minutes '
Rainey like Annette Blackwell did not testify Smith
testified that Rainey is no longer with Respondent
As to Pittman , Respondents records show that she re
ceived verbal warning on 23 April re soliciting on com
pany time and on 8 and 15 May 1987 as noted above
According to the credited testimony of Pittman-
which was not contested by Respondent-she was
warned in April not to talk about the Union on company
time The Respondents employee rules, which are in evi
dence do not contain a no talking rule and uncontested
testimony shows there was no such rule in effect before
April 1987
By cautioning Pittman on 23 April about her union so
licitation , Respondent demonstrated that it was aware of
her prounion activity
The record shows that Bonnie Pinion was not disci
plined even though , according to Terry Wayne Smith,
she and Pittman supposedly stayed in the bathroom 13 or
14 minutes around 15 May Moreover , Respondent s
records show that Annette Blackwell was not disciplined
even though Smith alleged that it was Blackwell s pro
duction problems that lead to Pittman s disciplinary
action on 8 May
Respondents records show that Pittman fell into a
unique category for discipline during the heat of the
union campaign As noted earlier , that campaign cli
maxed with the filing of the election petition on 30 April
and continued through the 16 June election
In May and June, Pittman Mosezell Thomas Willie B
Clark and Martha Hatchett were the only employees
disciplined under the production absentee , tardiness, and
plant conduct rules All those employees were known
union advocates As shown above, on 18 April 1987,
Willie B Clark told Supervisor Danny Jones that she
would vote yes for the Union On 18 June 1987, Clark
was warned re calling in when she was to be late
On 24 April 1987 Plant Manager Murdock told
Martha Hatchett that he was aware of her union activi
ties and they were no good Hatchett was verbally
named on 23 April 1987 re soliciting on company time
and on 3 June 1987, re not punching out at noon "
An employee is not immune from discipline because of
union activity However neither may an employer select
only union advocates for discipline when other employ
ees engage in similar infractions
According to Terry Wayne Smith Annette Blackwell
argued that one of the reasons her production was down
was because Clastme Pittman would not help her Smith
testified he then went to Pittman and told her that he
would not tolerate Pittman refusing to help Blackwell
Pittman simply said Okay According to Pittman
Smith told her to help Blackwell even if by doing so it
put Pittman behind in her other work Pittman was not
asked if she had refused to assist Blackwell and Respond
ent did not contend that any supervisor ever observed
Pittman refusing to assist Blackwell
Additionally, Pittman quarreled with Terry Wayne
Smith s alleged basis for the 15 May warning Pittman
and Bonnie Pinion testified that Pittman s work requires
her to frequent the area near Pinion s work station and
both Pittman and Pinion denied the allegation that they
spent 13 to 14 minutes together in the bathroom
The record shows that Respondent engaged in dis
crimmatory disciplinary action against union advocate
Clastine Pittman on 8 and 15 May 1987 The record cast
strong doubt that Pittman engaged in the rules violations
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
alleged by Smith. However, for the sake of argument,
even though an employee engages in rules infractions, it
is unlawful for an employer to punish only union advo-
cates while permitting others to engage in the same or
similar rules infractions without reprimands.
Moreover, the record, including the testimony of
Terry Wayne Smith as well as that of Clastine Pittman,
shows that it was Respondent's practice to counsel em-
ployees about their shortcomings. For example, in the
case of Annette Blackwell, she was questioned and coun-
seled about her production by Plant Manager Murdock,
Production Control Manager Smith, and Supervisor
Bright. Blackwell was not warned. However, Clastine
Pittman was warned on 8 and 15 May without the bene-
fit of questioning or counseling.
I am convinced that Clastine Pittman would not have
received warnings on 5 and 15 May absent her union ac-
tivities. Those warnings constitute a violation of Section
8(a)(1) and (3). Beverly Enterprises, supra.
D. July 1987
The General Counsel alleges that written warnings
issued upholsterers Randy Williams and Mosezell
Thomas and the demotion of Randy Williams in July
violate Section 8(a)(3).
Respondent's records show that upholsterers Williams
and Thomas received written warnings on 20 July re-
garding production.
The warnings contained the following remarks:
Randy Williams:
The average production on lounge pieces is 5 in
8 hrs. Randy's average is 4 in 9 hrs. He has been
warned with a written warning. This is his second
warning. If his production does not come up to
standards with his next warning there will probably
have to [be] disciplinary action taken.
Mosezell Thomas:
The average production on lounge pieces is 5 in
8 firs and Mosezell's production is 4.2 in 9 hrs. He
has been warned verbally several times. If his pro-
duction does not come up to standards with his next
warning there will probably have to be disciplinary
action taken.
There was some confusion regarding Respondent's al-
leged basis for the above warnings. Production Control
Manager Smith and Supervisor Charlotte Redwine
Bright testified that Williams and Thomas were disci-
plined on 20 July because of low production on 18 and
19 July and because they failed to report problems to
Bright in accordance with standing instructions. Howev-
er, Plant Manager Murdock testified that the 20 July
warnings were based on Williams' and Thomas' produc-
tion during the last days in June before vacation as well
as their production during July.
For the week of 17 July Randy Williams produced
none on Monday, which was a washout for all upholster-
ers, three for Tuesday, five for Wednesday, two for
Thursday, five for Friday, and five for Saturday, 18 July.
Mosezell Thomas produced three for Tuesday, five for
Wednesday, three for Thursday, five for Friday, and five
for Saturday. Respondent's records show Randy Wil-
liams averaged 4.0 for the week of 17 July and Mosezell
Thomas averaged 4.2 per day for that week. Those aver-
ages are precisely the average reflected on the 20 July
warnings to Williams and Thomas and thereby supports
the testimony of Production Control Manager Smith and
Supervisor Bright, but refutes the testimony of Plant
Manager Murdock as to the basis for the 20 July warn-
ings. The averages for the last 2 days in June were 2.5
for all three upholsterers employees including Williams,
Thomas, and Sean Foster. Those averages are not men-
tioned on the 20 July written warnings. Where, as here,
conflicting reasons are given for disciplinary action a
presumption arises that Respondent's alleged basis are
pretextual. Horizon Air Services, 272 NLRB 243 (:1984).
Conclusions
Also, during July 1987, Randy Williams was stripped
of his leadman duties. A payroll change notice from Re-
spondent's records shows that Randy Williams was the
upholsterers group leader from 20 March 1986. Williams
was replaced as group leader in July 1987 by employee
Kimmie Kirksey. On 31 July 1987, Production Control
Manager Smith told Williams that Kirksey was replacing
Williams as upholsterer leadman and that Kirksey did
not have to produce at the 5/8 rate. In fact, Smith told
Williams that Kirksey did not have to engage in produc-
tion work unless he elected to do so.
Respondent did not explain why Williams' successor
was excused from production requirements even though
Williams had been reprimanded on three occasions for
low production while holding the same job.
Counsel for the General Counsel argues that Respond-
ent violated Section 8(a)(3) by stripping Williams of his
leadman duties. As noted in the unit description, the
leadman is included in the bargaining unit. Additionally,
counsel for the General Counsel argues that the disparate
treatment between Kimmie Kirksey's low production re-
quirements and Randy Williams' requirements shows that
Williams was discriminatorily warned in violation of
Section 8(a)(3).
Moreover, counsel for the General Counsel argues
that Mosezell Thomas and Williams were warned even
though their productivity in June and July was no worse
than that of Sean Foster.
Foster, who began work as an upholsterer on 2 April
1987, was never required to satisfy the 5/8 rule. 'Howev-
er, Foster completed his 30-day probationary period in
early May and his 90-day period in early July. In May
1987 Foster was used to train another upholsterer.
Therefore, the General Counsel argues, it is apparent
that Respondent felt Foster was a competent upholsterer
in May 1987. Nevertheless, Foster was, according to Re-
spondent, required to produce at a lower rate of 4/8 in
July 1987.
The General Counsel argues that the lower rate and
the fact that Foster escaped disciplinary action even
though he failed to satisfy that lower rate-4/8--further
illustrates disparate treatment against union advocates
Thomas and Williams.
For the week of 12 through 18 July, Foster produced
no pieces on Monday, two on Tuesday, three on
TAYLOR CHAIR CO 667
Wednesday , three on Thursday , four on Friday and
three on Saturday His average for Tuesday through Sat
urday was 3 0 Although Thomas and Williams fulfilled
their 5/8 rate requirements on 3 days each Foster failed
to produce at the lower 4/8 rate on all but 1 day that
week Nevertheless Foster was not disciplined During
the last week of June , Foster produced two pieces on
Monday and three on Tuesday Again he failed to
achieve the 4/8 rate
The above supports the complaint allegations I find
that Randy Williams was stripped of his leadman duties
and he and Mosezell Thomas were warned on 20 July
because of their union activities In the absence of their
union activities , Respondent would not have taken those
actions against Mosezell Thomas and Randy Williams
Nissen Foods (USA) Co, 272 NLRB 371 ( 1984), Lawson
Printers 271 NLRB 1279 (1984)
E August 1987
On 11 August 1987 Clastine Pittman and three other
employees received verbal warnings for tardiness On 14
August, Pittman was suspended from work for 2 days
for tardiness
Respondents tardiness rule is contained in its rules
4 Tardiness
Excessive tardiness or leaving work early, is sub
ject to disciplinary action on the same basis as ab
senteeism up to and including discharge
No deduction will be made for tardiness up to
three minutes In cases of more than three minutes
but not more than ten minutes a deduction of ten
minutes will be made Each succeeding three to ten
minutes of lateness will be treated in the same
manner
Employees Randy Williams Mosezell Thomas Clas
tine Pittman Bonnie Topper Willie B Clark Martha
Hatchett and Willie Suggs all testified about the tardi
ness rule and Respondents practice before the 1987
union campaign Machine Operator Willie Suggs testified
in corroboration of the other employees that before July
1987 employees were not considered late if they were at
work no later than 3 minutes after the reporting hour
However in June 1987 Supervisor Danny Jones told
Suggs he would be considered late if he was not there at
6am
Danny Jones admitted that on the day after the elec
tion he and Terry Wayne Smith were instructed by Plant
Manager Murdock to enforce rules regarding tardiness
and use of the pay phone and breakroom On cross ex
animation Jones admitted that Murdock told him and
Smith to tighten up on employees tardiness Jones said
that employees had been reporting in late for quite
sometime before 17 June
Evidence through testimony of Respondents witnesses
was to the effect that the tardiness rule has not changed
Before and after June 1987 according to Respondents
evidence, an employee was considered late when not at
work on the hour However no one was docked unless 3
minutes or more late
Nevertheless Respondent did not offer any evidence
to rebut the employees testimony There was no show
ing that any employee was punished before July 1987 for
being tardy less than 3 minutes Summaries of Respond
ent s records show that before July 1987 employees were
frequently less than 3 minutes late without being disci
plined There was no evidence that any employee was
told before June 1987 that tardiness of less than 3 min
utes would subject the employee to disciplinary action
Respondent contends that Pittman was warned be
cause she was late 16 out of 17 workdays between 14
July and 12 August 1987 The record shows that Pittman
was actually late more than 3 minutes on only four occa
sions during that period She arrived less than 3 minutes
late on the other occasions
On 14 August 1987, Pittman phoned that she would be
late When she arrived, Plant Manager Murdock had re
moved her timecard Murdock told Pittman to call the
union man According to Murdock, he asked Pittman
why she was late Murdock became angry and suspended
Pittman when she said she was sleepy Pittman denied
that Murdock asked her why she was late and that she
said she was sleepy Again for the reasons cited above I
cannot credit the disputed testimony of Charles Mur
dock I credit Pittman s account of the 14 August con
versation
Conclusions
The credited evidence shows that Respondent changed
its interpretation of the tardiness rule on the day after the
16 June union election However many employees, in
cluding Clastine Pittman were not advised of the
change
Subsequently, Pittman was warned and then suspend
ed At her suspension Plant Manager Murdock admit
tedly told Pittman to call the union man Charles Mur
dock also admitted that he did not bother to check with
supervision to see if Pittman had complied with the
phone in rule before being late that morning
Murdock s actions show that he associated the punish
ment of Pittman with her union activities She was sub
jected to punishment under a changed rules policy with
out being advised of the changes Those changes fol
lowed immediately on Plant Manager Murdock learning
that 50 percent of the counted votes had voted in favor
of the Union Subsequently Murdock suspended Pittman
a known union advocate without conducting an investi
gation into whether she had violated any rules I find
that Pittman was warned and suspended because of her
union activities In the absence of her union activities,
Respondent would not have taken the August discipli
nary measure against Clastine Pittman Beverly Enter
prises supra Premier Rubber Co 272 NLRB 466 (1984)
The above evidence also shows that Charles Murdock
initiated a new tardiness policy on 17 June in retaliation
of its employees' vote in the union election That action
constitutes an additional violation of Section 8(a)(1) and
(3) Nissen Food (USA) supra United Hydraulic Services
supra Horizon Air Services supra Harvard Folding Box,
273 NLRB 1031, 1038 (1984)
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
F Gray and K Williams
The General Counsel alleges that from 16 June 1987
Respondent failed to recall Debra Gray and Katie Wil
hams from layoff in violation of Section 8(a)(3)
According to Respondent, it laid off nine employees
on 3 February 1987 i Gray and Williams along with the
seven other laid off employees were laid off for a lack
of work They were told they would be recalled when
work picked up All the laid off employees other than
Gray and Williams have been recalled Some were re
called to positions other than the positions occupied at
the time of their layoff
Additionally, at least 102 new employees have been
hired since the 19 February 1987 layoff It was admitted
by Respondent that none of the new employees had
prior related work experience
Gray and Williams engaged in prounion activities On
16 June the day of the election, Gray and Williams dis
tributed union literature in front of Respondents facility
Some of Respondents supervisors were offered union lit
erature by them Gray and Williams came into Respond
ent s facility to vote, wearing union T shirts They were
observed by Plant Manager Murdock Both Gray and
Williams were challenged as being ineligible because
their names had not been included on the voting list fur
nished by Respondent
Conclusions
Debra Gray worked as a cutter in the upholstery de
partment On 3 February she was told by Plant Manager
Murdock and Marshall Balducci that she was being laid
off and would be recalled when work increased Gray s
payroll change notice contained the remark Laid off
due to lack of work
Plant Manager Murdock admitted that Gray was laid
off with a promise of recall However according to
Murdock she had not been recalled because there had
not been work that necessitates a cutter helper Murdock
admitted plans to recall Gray even though her separation
notice contained a reference to not rehire Gray Mur
dock did not recall that Gray s separation slip was
marked no rehire and he offered no explanation for the
no rehire remark
Katie Williams worked first in sanding then in subas
sembly and finally in rough mill On 3 February 1987
Williams was told by Supervisor Drew Farmer that she
was being laid off because work was slow and that she
would be recalled when things picked up Plant Manager
Murdock also told Williams that he would call her back
to work when things picked up Williams payroll
change notice like Debra Gray s states Laid off due to
lack of work
Plant Manager Murdock admitted that he told Katie
Williams [I]f work comes available you 11 be called
back Murdock also admitted that he informed the Mis
sissippi Employment Security Commission that Williams
had been laid off However at the hearing, Murdock tes
tified that he was not satisfied with Williams work to
' R Exh 9 summary of its records includes only six of the nine em
ployees laid off in February 1987
2 See R Exh 9
the point he decided to await a layoff situation then per
manently terminate Katie Williams According to Mur
dock the lay off of Williams was permanent He did not
according to his testimony at the hearing, plan to recall
Williams
Conclusions
Respondents records show that new employees were
hired on 2 April 6 May 16 20 23 and 27 July, and 19
August 1987 Four of the nine employees laid off in Feb
ruary 1987 were shown on Respondents records as
being recalled on 10 February 23 March and 4 and 9
April Testimony indicated that three other employees
have been recalled since the layoff but Respondents Ex
hibit 9 does not reflect when those employees were re
called
Of the new employees hired, all were hired after com
mencement of the union organizing campaign Eight
were hired after Gray and Williams were observed in
their prounion activities on election day 16 June 1987
Respondent offered no evidence showing that Gray
and Williams could not have occupied any of the posi
tions filled by the new hires after 16 June 1987 The
General Counsel pointed out that Murdock admitted that
about one half of the new hires since 16 June are related
to, or friends with employees and that Respondent was
aware of those employees union preferences Four of the
new hires had been discharged at the time of the hearing
Conclusions
Again Respondents records and its prior position call
into question testimony from Respondents witnesses in
cluding Plant Manager Murdock
At their layoff both Katie Williams and Debra Gray
were told they would be recalled Respondent admits
that fact
Regarding Williams although Respondent now con
tends that Plant Manager Murdock decided to discharge
her as early as December 1986 the record does not sup
port that argument Until the hearing in this matter Re
spondent did nothing to show an intent to discharge Wil
Hams See Horizon Air Services 272 NLRB 243 257
(1984)
Since 16 June at least eight jobs have been filled by
new hires The record does not show that if any of those
jobs could have been filled by Katie Williams and Debra
Gray
Respondents records show that Katie Williams was
never disciplined or warned about her work Nothing
was said to her indicating that Respondent was unhappy
with her work to the extent it was contemplating dis
charge I am unable to credit testimony that Respondent
planned to terminate Williams in view of its written and
oral assurances that she was being laid off and would be
recalled
Respondent does not quarrel with the right of Debra
Gray to recall Plant Manager Murdock contends when
a cutter helper position opens Gray will be recalled
However Respondent offered nothing to show that
Gray could not fill any of the positions occupied by new
hires since 16 June
TAYLOR CHAIR CO 669
The record shows that Respondent has illegally re
fused to rehire Debra Gray and Katie Williams because
of their activities in support of the Union
Both Gray and Williams were laid off employees with
a reasonable expectation of recall and as such, were eli
gible voters on 16 June 1987 Therefore I recommend
that the challenges to their ballots be overruled
G Eddie Payno
Although originally alleged as an 8(a)(3) refusal to
recall discriminatee, the General Counsel amended the
complaint to delete Eddie Payno Therefore I shall con
sider Eddie Payno solely in relation to his status as a
challenged voter Respondent contends Payno was dis
charged on 16 February 1987 because he was unable to
do the work
Eddie Payno s payroll change notice dated 6 February
1987 has discharge checked, and states employee not
able to keep up with production
In a 6 February 1987 submission to the Mississippi
Employment Security Commission, Charles Murdock
stated that Payno had been discharged because Em
ployee was not able to keep up with production
The Charging Party correctly shows that the record
evidence shows that Payno was never told he was being
discharged Supervisor Charlotte Redwine Bright testi
fled that she told Payno he was let go
Nevertheless, the record shows that on 6 February
1987, Respondent was unaware of any union activities
especially by Eddie Payno Nevertheless, Respondent
terminated Payno s employment on that date Documents
that were not discredited were submitted as being pre
pared contemporaneous with Payno s 6 February release
Those documents show that Payno was discharged
Under those circumstances I am unable to find that
Payno was not discharged on 6 February I find that
Payno was discharged and that on 16 June 1987, Eddie
Payno did not have a reasonable expectation of returning
to work
Therefore I recommend that the challenge to the
ballot of Eddie Payno be sustained
H Challenges and Objections
I recommend that the challenges to the ballots of
Debra Gray and Katie Williams be overruled and that
they be opened and counted In the event the Union ob
tains a majority it shall be certified as the bargaining rep
resentative of employees in the appropriate unit In the
event the Union does not obtain a majority then because
of the unfair labor practices in which Respondent has
been found to have engaged during 30 April through 16
June 1987 the election shall be set aside and a new elec
tion conducted at such time and manner as the Regional
Director deems appropriate
2 Furniture Workers Division I U E, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act
3 By threatening its employees with loss of jobs with
replacement by other untrained employees with loss of
jobs because Respondent may leave Clarksdale Missis
sippi due to the employees union activities, and with fi
nancial harm caused by loss of jobs especially if the em
ployees husbands or wives do not work elsewhere and
by telling its employees that it cannot grant a wage in
crease because the Union prevented the employees from
earning higher wages, that it would be futile to support
the Union because Respondent would not sign a con
tract, and that it may have handled the employees prob
lems if the employees had come to it but would not now
because the employees had gone to the Union because
of its employees union activities, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act
4 By issuing warnings to employee Mosezell Thomas
on 18 May and 20 July 1987 to employee Clastine Pitt
man on 8 and 15 May and 11 August 1987 to employee
Randy Williams on 20 July 1987 by demoting Randy
Williams on 20 July, by instituting more strict production
rules for certain upholstery employees since 7 May 1987,
by instituting a new tardiness policy since 17 June 1987
by suspending employee Clastine Pittman for 2 days on
14 August 1987, and by refusing to recall from layoff
employees Debra Gray and Katie Williams since 16 June
1987 Respondent has engaged in conduct violative of
Section 8(a)(1) and (3) of the Act
5 The above aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act
Having found Respondent has illegally suspended em
ployee Clastine Pittman and illegally refused to recall
employees Debra Gray and Katie Williams, I recom
mend that Respondent be ordered to make Pittman
Gray, and Williams whole for loss of earnings each suf
fered if any because of Respondent s illegal actions that
Respondent be required to offer Gray and Williams im
mediate and full recall to their former positions or if
those positions do not exist to substantially equivalent
positions without prejudice to their seniority or other
rights and privileges and that Respondent be required to
remove from its files all references to its illegal disciple
nary action against employees Randy Williams Mosezell
Thomas, and Clastine Pittman Backpay, if any shall be
computed in the manner described in F W Woolworth
Co, 90 NLRB 289 (1950) with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) 3
CONCLUSIONS OF LAW
1 The Taylor Chair Company is an employer engaged
in commerce within the meaning of Section 2 (6) and (7)
of the Act
3 Under New Horizons interest is computed at the short term Federal
Rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
Continued
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed4
ORDER
1 Cease and desist from
(a) Interfering with restraining, or coercing its em
ployees in the exercise of rights guaranteed them by Sec
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act by threatening its employees with loss of jobs with
replacement by untrained employees, with loss of jobs
because Respondent may leave Clarksdale, Mississippi,
due to the employees union activities and with financial
harm caused by loss of jobs especially if the employees
husbands and wives do not work elsewhere, and by tell
ing its employees that it cannot grant a wage increase be
cause the Union prevented the employees from earning
higher wages that it would be futile to support the
Union because Respondent would not sign a contract,
and that it may have handled the employees problems if
the employees had come to it but would not now be
cause the employees had gone to the Union because of
its employees union activities
(b) Warning, demoting, suspending, refusing to rein
state or otherwise discriminating against employees be
cause their union or other protected concerted activities
(c) In any like or related manner interfering with, re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
date of the amendment shall be computed as in Florida Steel Corp 231
NLRB 651 (1977))
4 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
(a) Offer immediate and full recall or reinstatement to
Randy Williams Debra Gray and Katie Williams to
their former position or, if those positions no longer
exist to substantially equivalent positions without preju
dice to their seniority or other rights and privileges
(b) Make whole employees Randy Williams, Clastine
Pittman Debra Gray and Katie Williams for any losses
suffered if any as a result of the discrimination against
them in the manner set forth in the remedy section of
this decision
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(d) Preserve and on request make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Clarksdale Mississippi facility copies of
the attached notice marked Appendix 5 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being signed by the Respondents au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
s If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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