Turnbull Cone Baking Co.

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1320 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turnbull Cone Baking Company of Tennessee and
Local Lodge 56 of the International Association
of Machinists and Aerospace Workers, AFL-
CIO and Nella Broadwell and Mark A. Raborn.
Cases 10-CA-17282, 10-CA-18157, and 10-
CA-18188
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 December 1982 Administrative Law
Judge Nancy M. Sherman issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.'
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 brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Turnbull
Cone Baking Company of Tennessee, Chattanooga,
Tennessee, its officers, agents, successors, and as-
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and brief adequately present the issues and the
positions of the parties.
The Respondent asserts that the judge's posthearing demand for identi-
fication by name of those discriminatees who cast challenged ballots in
the representation election evidenced bias and highly prejudicial conduct
In this connection the Respondent asserts that by requesting such detailed
information the judge appears to have been able to use this information in
her decision as to the alleged violations of Sec. 8(a)(3) of the Act because
she found merit in allegations concerning a sufficient number of discri-
minatees to reverse the results of the election in Case 10-RC-12475.
We find no merit to the Respondent's exception. It is clear from corre-
spondence between the judge and the parties that the judge sought such
information for the purpose of determining whether to grant or deny the
General Counsel's motion to consolidate Cases 10-CA-18157 and 10-
CA-18188 with Case 10-CA-17282 Indeed, in granting the General
Counsel's motion to consolidate, the judge noted that a final tally in the
representation case involved in Case 10-CA-17282 could not be deter-
mined without resolving the issue of the discriminatory discharges of em-
ployees Nella Broadwell and Mark Raborn alleged in Cases 10-CA-
18157 and 10-CA-18188. Under these circumstances, we find no evi-
dence of prejudice and bias in the judge's request or subsequent conduct,
and accordingly find no merit to the Respondent's exception.
Chairman Dotson does not find that the Respondent unlawfully ob-
served the union meeting on 12 July 1981 He considers the evidence in-
sufficient to establish that Supervisor Hood's driving past the union hall
constituted surveillance.
2 The Respondent has excepted to some of the judge's credibility find-
ings. 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.
271 NLRB No. 203
signs, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge. 3
3 Our notice includes language corresponding to the judge's finding
that the Respondent unlawfully discharged an employee because he gave
testimony under the Act.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with discharge for
union activity or for testifying before the Board;
threaten to shut down the plant if you choose
union representation; engage in surveillance over
union meetings; interrogate you about union activi-
ty in a manner constituting interference, restraint,
and coercion; or, with a purpose of discouraging
union solicitation, forbid conversations between
you at times and under circumstances when con-
versations are generally permitted.
WE WILL NOT discharge you, lay you off, repri-
mand you, or otherwise discriminate against you
with regard to your hire or tenure of employment
or any term or condition of employment to dis-
courage membership in Local Lodge 56 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO or any other union.
WE WILL NOT discharge you or otherwise dis-
criminate against you because you have filed
charges or given testimony under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you under Section 7 of the Act.
WE WILL offer the following employees rein-
statement to their old jobs or, if such jobs no
longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority, pension rights, or
other rights and privileges previously enjoyed. WE
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TURNBULL CONE BAKING CO.
WILL make them whole, with interest, for any loss
of pay resulting from their separation:
Betty Baltimore
Earline Bates
Nella Broadwell
Bobby Bush
Carolyn Caldwell
Jo Ann Cranmore
Donald Ellis
Ellen Finley
Peggy Fitzgerald
Jurrelle Griffin
Elroy Hawthorne
James Hawthorne
Athelene Hubbard
Linda Lee
Juanita Prince
Mark Raborn
Linda Sisk
Wilma Ruth Varner
Evelyn Weaver
Dorothy White
Sarah Wilcox
Virginia Wills
Mary Zackery
WE WILL remove from our files any references
to these separations and Mary Zackery's unlawful
reprimand, and notify these employees in writing
that this has been done and that evidence of these
discharges and the reprimand will not be used as a
basis for future personnel action against these em-
ployees.
TURNBULL CONE BAKING COMPANY
OF TENNESSEE
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge.
These cases were heard before me in Chattanooga, Ten-
nessee, on April 13 and 26-29, 1982, and August 26,
1982. The charge in Case 10-CA-17282 was filed on
August 6, 1981, and amended on September 11, 1981; the
complaint therein was issued on September 25, 1981, and
amended on March 8, 1982. The charges in the other
two cases were filed on May 12 and 24, 1982, and the
complaint in these cases was issued on June 22, 1982.
These three consolidated cases present the question of
whether Respondent Turnbull Cone Baking Company of
Tennessee' violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by interrogating and
threatening employees regarding their activity on behalf
of Local Lodge 56 of the International Association of
Machinists and Aerospace Workers, AFL-CIO (the
Union); by engaging in surveillance over their union ac-
tivity; by threatening that employees would be dis-
charged if they gave testimony in Board proceedings;
and by promulgating a rule prohibiting employees from
engaging in union or protected concerted activities. Also
presented is the question of whether Respondent violated
Section 8(a)(3) and (1) of the Act by issuing a written
reprimand to employee Mary Zackery; by separating
Zackery and 18 other persons on July 10, 1981; by sepa-
rating 9 more persons later that month; and by discharg-
ing employee Nella Broadwell on April 22, 1982. A fur-
ther question presented is whether Respondent violated
I Respondent's name appears as amended at the hearing.
Section 8(a)(3), (4), and (1) of the Act by discharging
employee Mark Raborn on May 12, 1982.
On the basis of the entire record,2 including the de-
meanor of the witnesses, and after due consideration of
the brief filed by Respondent and the two briefs filed by
counsel for the General Counsel, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Tennessee corporation with an office
and place of business located at Chattanooga, Tennessee,
where it is engaged in the manufacture, sale, and distri-
bution of ice cream cones. During 1980 and 1981, repre-
sentative periods, Respondent annually sold and shipped
from its Chattanooga plant finished products valued in
excess of $50,000 directly to customers located outside
Tennessee. I find that, as Respondent concedes, Re-
spondent is engaged in commerce within the meaning of
the Act, and that exercise of jurisdiction over its oper-
ations will effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Turnbulls' business interests and labor
relations history
For a number of years, members of the Turnbull
family have operated two ice cream cone plants. One of
these plants is operated by the Turnbull Cone Baking
Company of Louisiana, Incorporated (Turnbull-Louisi-
ana), in New Orleans, Louisiana. In October 1976, a
local union affiliated with the Bakery Workers was certi-
fied as the bargaining representative for the production
and maintenance employees at that plant. Turnbull-Lou-
isiana initially refused to honor that certification, and this
refusal inferentially continued until after an April 1977
Board bargaining order was enforced by the United
States Court of Appeals in March 1978. 229 NLRB 313,
enfd. mem. 570 F.2d 947 (5th Cir. 1978). Thereafter, a
contract was agreed to. Counsel for the General Counsel
and counsel for Respondent both state that this certified
local disclaimed representation in early 1982.
Respondent herein began manufacturing operations in
Chattanooga in about 1910. Until late 1981, its manufac-
turing operations were conducted in two buildings (one
erected about 1923 and the other about 1950) located on
Carter Street.
2 During the August 26, 1982 hearing day, a prehearing affidavit by
Company Vice President Wayne W. Turnbull was marked as R. Exh. 34,
but never offered. Later that day, and in posthearing correspondence be-
tween the parties, arrangements were made for the receipt into evidence
of Mark Raborn's timecards for the last 2 weeks of his employment.
When I received the exhibit folder in September 1982, these timecards
were included therein as R. Exh. 34 As a matter of clarification, these
timecards are received in evidence as R Exh 34.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The decision to build a new plant
In the latter part of the 1970s, Respondent's business
became unprofitable. 3 On an undisclosed date prior to
October 15, 1980, Greg Overton (who at that time was
Respondent's vice president, general manager, and chief
Chattanooga operating officer) sent a memorandum to
Respondent's board of directors (including Wayne Turn-
bull) in which Overton recommended the construction of
a new plant because, inter alia, "we would reduce our
work force by approximately seven women and two
men."
Wayne Turnbull testified that Respondent's Exhibit 10
is the minutes of a meeting of Respondent's board of di-
rectors on October 10, 1980. This document, which was
received in evidence without objection, sets forth a deci-
sion to build a new production and warehouse facility
"in order to have the business grow and prosper." Also
set forth is authorization to Overton to acquire the nec-
essary property, to obtain construction bids for the build-
ing, and to arrange for the necessary financing. Turnbull
testified that he attended all the meetings of the board of
directors during this period, but the October 10 minutes'
list of persons present does not include his name. Turn-
bull further testified that Respondent's Exhibit 11 was
submitted to the board of directors "during the October
presentation." Respondent's Exhibit 11 states that a
change from the existing four-floor operation to a one-
floor operation would "save" about 10 women and about
12 men on the first shift, and 8 women and about 10 men
on the second shift.
The laws of the State of Tennessee authorize munici-
palities to set up public corporations "to finance ...
properties to the end that such corporations may be able
to maintain and increase employment opportunities."
Such municipalities are authorized "to vest such corpora-
tion with all powers that may be necessary to enable
them to accomplish such purposes." The statute goes on
to state "that the means provided by this chapter are
needed to relieve the emergency created by the continu-
ing migration from Tennessee of a large number of its
citizens in order to find employment elsewhere." (Sec. 7-
53-102.) Pursuant to the foregoing statute, the City of
Chattanooga has established the Industrial Development
Board of Chattanooga (IDB), which is authorized to
issue tax-free industrial revenue bonds or notes.
On August 15, 1980, the four persons who comprised
the board of directors of both Turnbull-Louisiana and
Respondent (including Wayne Turnbull, who at that
time was both corporations' treasurer, and Overton, who
at that time was both corporations' vice president) au-
thorized Overton to attempt to obtain a $950,000 tax-free
industrial bond from the IDB, and to pledge Turnbull-
Louisiana's property and buildings as collateral to the
First Tennessee Bank in Chattanooga if it purchased that
bond. Also, Overton was authorized to obtain blueprints
for a proposed new plant to be operated by Respondent.
I Turnbull testified that in 1980 Respondent had an $8000 operating
profit on approximately $3 million worth of sales. Before the hearing, he
approved a representation to the Regional Office that Respondent had a
net profit of $9,902.82 on sales of $2,779,000.
By letter to the IDB dated November 4, 1980, Over-
ton requested the issuance of $1 million worth of tax-free
industrial revenue bonds or notes to be used primarily
for the purchase of land and the construction of a new
manufacturing facility to replace Respondent's current
facilities. The letter stated, inter alia, that with the new
facility and a projected increase in sales, "we estimate
that our employment will increase by fifteen to twenty
people." The letter further stated that First Tennessee
Bank had committed itself to purchasing the entire issue;
that conventional financing was not a "viable option" be-
cause of current interest rates; and that if the request for
tax-free bonds was denied, Respondent's "only alterna-
tive" was to stay in the present location and stop accept-
ing new business. The letter further stated, "Based on
our current projection, we will reach our maximum ca-
pacity during 1981."
On November 5, 1980, at a special IDB board of direc-
tors meeting, Overton stated, inter alia, that 15 to 20 new
jobs would be created in the new plant, "which will
allow for a 50% increase in present production." By
letter dated November 20, 1980, First Tennessee Bank
confirmed its intent to purchase the proposed $1 million
revenue bond to provide financing for Respondent.
At a special meeting of the IDB board of directors on
November 21, 1980, Overton stated that, at the previous
meeting, Respondent had requested a $1 million bond
issue to finance the "expansion" of its cone-baking busi-
ness. The board of directors unanimously authorized the
execution of a "Memorandum of Agreement" which set
forth an IDB undertaking to issue a $1 million tax-free
revenue bond for Respondent's construction of a new
commercial bakery in Chattanooga, and an undertaking
by Respondent to pay the principal and interest on the
bond. The IDB authorizing resolutions stated, inter alia,
that the board of directors "has made the findings of
public purpose and other findings contained in the
Memorandum of Agreement." This "Memorandum," ex-
ecuted that same day by Overton (on Respondent's
behalf) and by the IDB's chairman and secretary, stated,
inter alia:
1. Preliminary Statement.-Among the matters of
mutual inducement which have resulted in this
Agreement are the following:
(c) The proposed financing will contribute to in-
creased employment opportunities and/or prevent
the loss of currently existing employment in the
City of Chattanooga. ....
On January 30, 1981, Respondent (through President
Elizabeth Turnbull and then Treasurer Wayne Turnbull)
and the IDB signed an industrial development loan
agreement which stated, inter alia, "WHEREAS, the
[IDB] had determined that the proposed financing will
prevent the loss of presently existing employment in
Chattanooga, Tennessee." This agreement called for a $1
million loan to Respondent from the IDB at no more
than 70 percent of the bank's prime rate, payable in 120
equal monthly installments beginning no later than Octo-
1322
TURNBULL CONE BAKING CO.
ber 15, 1981. Louisiana real estate owned by Turnbull-
Louisiana was used as collateral for the loan.
A letter dated September 3, 1981, to a Board investiga-
tor from a labor consultant retained by Respondent to
represent it in the investigation of the charge, states,
inter alia:
... when Greg Overton applied for the tax-free
loan connected with the city bond issue, he learned
during his investigation into how the matter should
be handled that if he expected to get approval of his
application it was mandatory that he include in it an
indication that the new venture would result in the
creation of additional jobs or his appeal would not
be approved . . . it was the [IDB's] policy not to
lend money for automation that would result in the
loss of jobs and while they knew that was our in-
tention they indicated we should not give out that
information for publication in the news media.
Wayne Turnbull's prehearing affidavit to a Board investi-
gator affirms this letter. IDB Counsel Gary D. Lander,
who attended the IDB meetings where the loan to Re-
spondent was discussed, could not recall any representa-
tion to the IDB that a new plant would result in loss of
employment.
3. The taking over of the Chattanooga plant by
Wayne Turnbull
On January 5, 1981, in consequence of a dispute with
Respondent's board of directors regarding Overton's
desire gradually to acquire all of Respondent's stock,
Overton suddenly resigned and went into the cone busi-
ness himself, taking some of Respondent's existing and
projected customers with him. His duties were immedi-
ately assumed by Wayne Turnbull, the son of the found-
er of both Turnbull-Louisiana (where Wayne Turnbull
had worked for the preceding 20 years) and Respondent.
Later that month, the First Tennessee Bank signed a
bond agreement to finance the new plant, and paid Re-
spondent the sums called for by the bond. Turnbull
thereafter rehired a sales manager, Rick Sanderbach,
who began to work for Respondent in April 1981. It
turned out that Overton kept two of the three new cus-
tomers he had obtained for Respondent.4
4. Respondent's representations to the employees
regarding whether they would be transferred to the
new plant
About late January 1981, Turnbull called the employ-
ees together, either in a single meeting or in a meeting
for each shift, and advised them that Respondent had
signed the bond issue and received the money, and that
Respondent was going to build a new plant. He said that
everyone needed to work together like a ballteam; and
that Respondent was going to conduct something like a
spring training camp where everyone had to learn new
4 Respondent, through Overton, had projected that these three custom-
ers would increase Respondent's 1981 sales by about 20 percent. The
only new customer which Respondent retained was expected to increase
1981 sales by about 5 percent
skills and new things to do. He stated that in order to
prepare the employees for the sweeping changes which
would be made when production moved from a four-
floor to a one-floor building, Respondent was going to
build some conveyors and tie together some cone-baking
machines on the second and third floor, to tie wrapping
machines together on the first floor, and to bring in a dif-
ferent type of taping machines. Turnbull stated that he
needed all the employees and they needed him;5 that
there would be room at the new plant for all the em-
ployees; that everybody had a chance to go; that the em-
ployees just had to work hard to make the effort; and
that following the move, there would be no more layoffs
and the employees would work year-round. He further
said that Respondent would move one floor at a time to
the new plant. Also, he said that while the move to the
new plant was taking place, vacations could be taken by
the female employees (practically all of whom were cone
packers), but the male employees (most of whom per-
formed machine maintenance work) would have more
work moving to the new plant and would have to sched-
ule their vacations for some other period.6
Respondent eventually decided that the new Chatta-
nooga plant would be built on Parmenas Road. During
the second and third weeks in May 1981, Respondent
drove employees in small groups over to the already-dug
foundation of the new plant, explained the layout to
them, and told them that they would be working in par-
ticular areas of the new plant. All the employees on the
payroll were given such a tour, during hours for which
they were paid. On Saturday, May 23, Respondent con-
ducted an "open house" for all its employees, and their
families, at the construction site of the new plant. Em-
ployees who attended received refreshments but were
not paid for their time.
s Thus, James Hawthorne credibly testified that Turnbull said that the
employees "all" had to work together to "make a go" of the new plant.
However, Hawthorne concluded from Respondent's later conduct in
combining machines at the old plant (see infra) that Respondent in fact
intended to "cut back in help" when operations were moved to the new
plant.
6 My findings about what Turnbull said is based on a composite of
credible portions of the testimony of James and Bernice Hawthorne,
Evelyn Weaver, Linda Sisk, Earline Bates, Betty Baltimore. Ellen Finley,
Juanita Prince, Jerry Summers, and Turnbull. To the extent inconsistent
with my findings in the text, I do not accept Turnbull's denial that he
said everyone was going to the new plant; or his testimony that "it was
clearly understood by people in the plant from the very time that I came
to Chattanooga that, in moving to a new plant, there would be layoffs.
But there was also clearly emphasized to them that these layoffs would
be determined on ability, attitude, potential, and attendance, and that ev-
eryone had a chance to qualify." Turnbull's prehearing affidavit sub-
scribed to the September 3, 1981 letter to a Board investigator from Re-
spondent's labor consultant, which letter said, inter alia, that Turnbull
"could not level with the employees about who and how many of them
would be involved when their jobs were eliminated for fear of experienc-
ing a mass exodus of employees before he was ready to make his busi-
ness-saving moves. Such a development would have left him in . . a
mess." Turnbull's prehearing affidavit states, "I did not discuss with em-
ployees the fact that all would be transferred to the new plant. In fact, I
specifically avoided it I would only tell employees that if their attend-
ance and work record (were] good, they had nothing to worry about."
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent's written internal plans and its
management meetings regarding the transfer of
employees to the new plant
About mid-February 1981, Turnbull presented to First
Tennessee Bank's construction inspector a preliminary
sketch which projected that on the transfer of cone-
baking machines to the new one-floor plant, fewer em-
ployees would be needed to pack the cones produced by
these machines. After the move in late 1981, the ma-
chines, conveyor belts, and personnel were arranged in a
manner very much like the sketch. In mid-February and
during the first week in March, Turnbull, General Pro-
duction Manager Tom Hood, Production Manager Betty
Denton, and Assistant Production Manager Yvonne
Broadwell discussed this sketch, and plans for operating
the new plant with fewer female employees than at the
old plant. Beginning in February or March 1981, Turn-
bull, Hood, and Denton had more than one meeting
about phasing out the fourth floor and having to lay
people off.
6. Respondent's decision to stop manufacturing
cone-baking machines and sugar roll cones, and to
sell certain machines
Shortly after becoming chief operating officer in Janu-
ary 1981, Turnbull concluded that additional capital had
to be raised to cover the total cost of setting up oper-
ations at the new plant. Management decided to stop
manufacturing cone-baking machinery for 2 years, partly
because Respondent had decided to sell some of its old
cone-baking machinery and did not want to compete
with itself, and partly because (according to Turnbull's
testimony) "we needed all of our resources, all of our
machinists, and all of our energy to move into the new
plant." The cone-baking machinery which Respondent
initially decided to sell was its seven fountain-pack (food
service) machines, which made cones to be used by retail
outlets which sold them filled with ice cream. The prod-
ucts from such machines formed only a small and dimin-
ishing part of Respondent's sales, and no labor-saving
could be effected on these machines because each of
them made a different size and/or shape of cone and,
therefore, would always require a cone-packer's full-time
services. By February, Respondent had begun efforts to
sell these machines. All of these fountain pack machines
(one of which was stipulated to be inoperable) were on
the fourth floor. Also on the fourth floor were two ma-
chines which manufactured the same size cake cones as a
number of machines on other floors. Cake cones of this
size constituted Respondent's retail line, in which Re-
spondent manufactured cones for large supermarket
chains to be sold in packages bearing the stores' respec-
tive labels. On an undisclosed date, Respondent decided
to sell the two fourth-floor retail-line machines also.
In late April 1982, Turnbull testified on cross-examina-
tion that three of the machines from the fourth floor of
the old plant were physically situated at the new plant,
uninstalled and being offered for sale. He did not specify
what kind of machines these unsold machines were, but
because all but two of the nine fourth-floor machines
were stipulated to be fountain-pack machines, at least
one of the unsold machines must have been a fountain-
pack machine. However, earlier that day, on direct ex-
amination, he testified that all seven of the fountain-pack
machines had been disposed of. More specifically, he tes-
tified that of the seven fountain-pack machines (including
the inoperative one), Respondent sold five to someone
named Bocero, 7 sold one in August 1981 to Derby Cone
Company (which picked up its machine in a crate from
the new plant in September 1981) in connection with
Derby Cone's purchase of Respondent's fountain pack
business, and "the rest of them we cannibalized for
parts." As to when Respondent started to disassemble
the seven fountain-pack machines, Turnbull testified that
Respondent started cannibalization for its own purposes
in March or April 1981, started "disassembling ma-
chines" for Bocero upon receipt of a May 4, 1981 letter
of credit covering one of the five fountain-pack machines
bought by him, and in June 1981 was in the process of
disassembling the fourth-floor machines. Denton testified,
in effect, that as to the fourth-floor machines running on
July 10, Respondent began to disassemble them about I
p.m. on that date. Respondent did not thereafter run any
of the fountain-pack machines, but did occasionally run
the two fourth-floor retail-line machines.
On an undisclosed date before May 11, 1981, Respond-
ent decided to sell its seven sugar-roll-cone machines. On
May 11, 1981, Respondent sent to prospective customers
a letter offering these machines for sale. In late May or
early June, Respondent began to obtain packaged sugar
roll cones from a "friendly competitor." About June 5,
Respondent began to operate its sugar-roll-cone ma-
chines on only the first shift, rather than (as previously)
on both shifts. On an undisclosed date after July 22,
1981, Respondent sold its sugar-roll-cone machines,
which were never used in the new plant.
When moving to the new plant, Respondent installed
its 14 best cone machines. As of April 1982, these were
the only ones operating at the new plant; no new ma-
chines had been bought. s Thereafter, and before the
August 26, 1982 hearing, Respondent bought a new
sugar-roll-cone machine.
7. Respondent's early recall of laid-off employees to
provide a production cushion for the move; the
June 1981 layoff
At the end of 1980, most of Respondent's cone-packers
were in seasonal layoff status. If Respondent had not
been expecting to move the plant, these employees
would not have been called back until about mid-March
1981. However, Respondent expected its production to
be interfered with while the move was in progress. In
order to provide a production cushion for the move, Re-
spondent arranged to rent extra storage space and began
7 On cross-examination, Turnbull testified that Respondent had sold,
and as of April 1982 was in the procees of crating, an unspecified type of
machine which was to be shipped to Trinidad. It is unclear whether this
machine was one of those purchased by Bocero, whose initial machine
purchase had been shipped to Cartagena, Colombia.
8 In addition, in mid-June Respondent closed down its "partition" de-
partment, whose product would become unnecessary with the adoption
of new packaging at the news plant. However, the persons who worked in
this department were in the employ of someone other than Respondent.
1324
TURNBULL CONE BAKING CO.
to call back its laid-off cone packers about late January
1981.
On June 2, 1981, Respondent laid off seven or eight
employees. Turnbull testified that Respondent effected
this layoff because Respondent did not need the produc-
tion. No contention is made that this layoff was unlaw-
ful.
8. Institution of employee rating system
About early March 1981, Respondent instituted a
system for evaluating employees' work performance.
Turnbull drew up an evaluation sheet with four columns
which dealt respectively, on a scale of I to 10, with
"ability," "attendance," "attitude," and "potential."
Turnbull told General Production Manager Hood, Pro-
duction Manager Denton, and Assistant Production Man-
ager Yvonne Broadwell that each of them independently
was to periodically fill out an unsigned form on each em-
ployee (including floorladies and certain admitted super-
visors) under his or her supervision. Turnbull testified
that he developed this system in order to establish who
was going to the new plant and who was not, "we were
trying to develop the concept that all we wanted at the
new plant was the very cream of the crop"; and in order
to develop the concept of different pay for different jobs.
Turnbull further testified that he made a point of discuss-
ing with employees who had consistently poor ratings
the fact that their ratings were poor, because he thought
such discussions might cause them to try to improve
their ratings, "and in many cases they did."
9. Institution of double machines and wage classes
Before Turnbull assumed responsibility for the plant,
each cone packer was expected to pack only the cones
produced by a single machine. Turnbull decided to
"team" or "gang" certain machines on the second and
third floor, so that two of them would deposit cones on
a single conveyor belt, and to assign a single employee
to pack the cones from both machines. Turnbull reached
this decision partly "to get the people ready with the
concept of change, of seeing a lot of cones coming at
them at one time," partly to find out "who was really
interested and willing to try new things and to learn new
skills," partly to develop new employee skills, and partly
to learn what problems would be incurred at the new
plant, where the product of six machines was to be de-
posited on a single conveyor belt.9 About the end of
March, Respondent ordered the conveyors and belts
needed for this rearrangement. About this same time, Re-
spondent brought from the Turnbull-Louisiana plant to
the Chattanooga plant some taping machines which dif-
fered from the machines previously used. On March 30,
Respondent put the following notice on the employee
bulletin board.
ALL EMPLOYEES:
In our efforts to prepare for our new plant we are
going to make the following changes in pay scale.
He credibly testified that Respondent also hoped that this system
would improve productivity in the old plant, but that it did not do so.
See infra.
(WE WILL NOW BEGIN PAYING ACCORD-
ING TO WHAT IS DONE INSTEAD OF
YEARS OF SERVICE.) This should be of a bene-
fit to everyone since the rates will be higher and the
opportunity for higher rates will be open to every-
one.
CLASS I-Machine operators, cartoner opera-
tors,-4.75 P.M.C. Wrapper operators, Automatic
Casing Machine operators. Able to pack 2 or
more Cone Machines or able to pack any type of
package required. Thereby eliminating duplication
of labor.
CLASS 2-Able to pack Ice Cream Cones (I ma-
chine)-3.95 on any pack required.
CLASS 3-Starting rate until trained for one of the
above classes,-3.35
Also, about early April, Respondent tied its two wrap-
ping machines in parallel lines, in order to enable the
wrapping cycle to keep pace with the production cycle.
About June 8, Respondent replaced these two machines
with a single new wrapping machine.
Meanwhile, in April, May, and June, Respondent gave
its cone packers the opportunity to work on the double
machines. Management at least tried to tender such an
opportunity to each employee in order of seniority. Em-
ployees were permitted to refuse to try working on
double machines. It transpired that almost nobody could
pack alone from a double machine all the time, and very
few employees could pack alone from a double machine
for a sustained period of time. Nonetheless, a number of
employees were considered to have "qualified" or
"seated" a double machine, thereby became classified as
"Class A" or "Class 1" packers, and received wage in-
creases to $4.75 an hour.
10. Arrangements for sanitation department at new
plant
On May 29, Respondent posted a notice announcing
the creation of a department of sanitation and environ-
mental services. The notice stated, in part:
. . .we are creating a department of sanitation and
environmental services. We need someone in a su-
pervisory capacity, . . this individual would have a
working crew of 4 or 5 people to train, supervise,
coordinate and be entirely responsible for all envi-
ronmental services . . . this would be a great re-
sponsibility and we are looking for someone . . .
who would be interested in growing into supervi-
sion and management responsibilities. Anyone inter-
ested please list your name below.
The at least purported signatures of eight persons appear
on this notice, including Marcella Cobb, Tina Robinson,
Betty Pickle, and Evelyn Cooper (the last name there-
on), but not Ellen Finley or any other alleged discrimina-
tee. Turnbull and Assistant Production Manager Broad-
well testified that all those who signed were interviewed
by other members of management for this posted super-
visory job; the copy of the notice received into evidence
1325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contains written notations that all these interviews oc-
curred on June 18, except that one (Anna Doyle) may
have occurred on June 29. Turnbull further testified that
Cobb applied for this posted supervisory job partly be-
cause she did not do well on the double machines and
realized that some of the skills were above her capability
level. Broadwell testified that Cobb was selected to be
the supervisor of the sanitation department. However,
Turnbull testified that, after the interviews were com-
pleted, Respondent decided that because none of the ap-
plicants had supervisory qualifications, Respondent
would not have a separate supervisor for this newly cre-
ated department, and that the department would consist
of three rank-and-file employees, who would do the
cleaning work after the move to the new plant. There is
no evidence that Respondent made an effort to advise
the employees generally that the employees to be as-
signed to nonsupervisory cleaning jobs at the new plant
were being selected from only the employees who signed
this notice. Turnbull testified that Respondent advised
Cobb, Robinson, and Cooper that they would be sharing
nonsupervisory cleaning duties, and that all of them
agreed about July I to accept these jobs. Turnbull fur-
ther testified that Cobb and Robinson continued to work
as cone-packers until after the move to the new building.
He went on to testify that Cooper was one of the "origi-
nal picks" for these sanitation jobs and that, as discussed
infra section II,E,6, her acceptance of this job was the
reason she was transferred to the first shift on July 22 in-
stead of being laid off with the rest of the second shift.'
An internal notation by Denton, dated July 8, states that
"when production allows," the "sanitation" personnel
were to be Cobb, Robinson, and Pickle, and includes
Cooper's name as the next to last entry in a separate list
of personnel to be retained after the phaseout of the
second shift. A document submitted by Respondent to
the Regional Office states that as of the pay period
ending July 29, 1981, Cobb, Cooper, and Robinson had
the job classification "sanitation," describes Pickle as a
"Class #1" cone-packer, and lists several persons (but
not Cobb or any other "sanitation" person) merely as
"supervision," without specifying their departments. In
April 1982, Cooper was performing various production
functions.
B. The Union Organizational Campaign Before the
July 1981 Separations
About early April 1981, Mae Caldwell, who at that
time was employed by Respondent on the first shift,
started talking to her fellow employees about obtaining
union representation. They asked her how to go about it.
She said that she would ask her husband Willie Caldwell,
a union member who at that time was employed else-
where but had formerly worked for Respondent, to pick
up some union cards at the union hall.
At this time, Respondent's employees included alleged
discriminatee Carolyn Caldwell, who is Willie and Mae
Caldwell's daughter; alleged discriminatee Dorothy
10 However, Turnbull's prehearing affidavit subscribed to a September
1981 letter to a Board investigator from Respondent's labor relations
counsel that on July 22 Cooper was transferred to the sanitation job.
White, who is Mae Caldwell's daughter and Willie Cald-
well's stepdaughter; and alleged discriminatee Mary
Zackery, who is Willie Caldwell's daughter-in-law. "
Willie Caldwell frequently drove all four of these rela-
tives to and from work in his van, which he parked on a
public street in a location visible to members of manage-
ment (including admitted Supervisors Hood, Denton, and
Yvonne Broadwell) while they were in the office. On
April 16, while Willie Caldwell was parked there in his
van, he induced then employee Clarence Fitzgerald Sr.
to sign a union card. 12 Inferentially thereafter, Mae
Caldwell asked Fitzgerald Sr. to campaign for the Union
on the second shift, while she campaigned for the Union
on the first shift.
Mae Caldwell was on vacation between about May 4
and May 8. Before she went on vacation, she told her
fellow employees that, on her return, she would bring
some authorization cards for them to sign. When em-
ployees expressed fear of being "identified," she told
them that they did not have to let anyone else know that
they had signed union cards. Mae Caldwell was dis-
charged on May 12, for reasons not alleged to be unlaw-
ful. By this time, Fitzgerald Sr. had also been discharged,
for reasons not alleged to be unlawful. After Fitzgerald's
discharge, Mae Caldwell asked alleged discriminatee
James Hawthorne (also referred to in the record as
"Slim") to compaign for the Union on the second shift.
He began such activity about late May.
On undisclosed subsequent dates extending until at
least the end of June, James Hawthorne, who during
much or all of this period was disabled for work by an
on-the-job injury, distributed union literature in a parking
lot across the street from the plant. Production Manager
Denton testified that, sometime in June, she began to see
Willie and Mae Caldwell sitting every day outside the
production office and gathering people around them; and
that she inferred, from the presence of union literature in
the plant and employee reports that Willie and Mae
Caldwell were signing up people for a union, that they
were there to distribute such literature and obtain such
signatures. About June 9 or 10, Production Manager
Denton and Assistant Production Manager Yvonne
Broadwell approached board of directors member Ned
Dowling, who was in charge of the plant in Turnbull's
absence, and reported that a union was trying to orga-
nize the employees. Dowling telephoned Turnbull, who
was then in New Orleans, that "we have some problems
up here" and that Denton and Broadwell were
"alarmed." Then, Dowling put Denton and Yvonne
Broadwell on the telephone. They said that there were
some "problems" at the plant, that the Machinists Union
was trying to organize. At 8 a.m. the following Monday,
June 15, Turnbull came to the plant and spent the entire
morning discussing the union campaign with Denton,
Broadwell, and Hood. Turnbull testified, in effect, that
other members of management who attended this confer-
ence identified by name some employees who were in-
volved with the Union, but that he did not remember
" Zackery retained her maiden name after her marriage.
1 Willie Caldwell testified, however, that he did not think anyone else
saw this.
1326
TURNBULL CONE BAKING CO.
who they were. 3 About this same time, Denton told
then floorlady Evelyn Weaver that Willie and Mae Cald-
well and alleged discriminatee James Hawthorne were
"giving out pamphlets and things for people to sign to
get the Union in."
On June 25, while Willie Caldwell was waiting in his
van in view of Respondent's office, he obtained other au-
thorization cards from Annette Chubb and Frank Pierce,
who are not among the alleged discriminatees named in
the complaint; received a signed card from Evelyn
Cooper (to whom he had given it on the previous day),
not alleged as a discriminatee; 4 and gave a blank au-
thorization card to alleged discriminatee Finley.' 5 On
the following morning, Finley went up to Willie Cald-
well's van before work, and gave him her signed authori-
zation card.'6 On Monday, June 29, while sitting in the
van Willie and/or Mae Caldwell obtained signed authori-
zation cards from alleged discriminatees Earline Bates
and Athelene Hubbard.
Also on June 30, on leaving work for the day, alleged
discriminatee Linda Sisk received a card from Willie and
Mae Caldwell while they were sitting in the van. Sisk
signed it and returned it to them. An internal memoran-
dum in Denton's handwriting and dated July 1 states,
inter alia:
I was in meeting in Tom Hood's office & was
looking out window & saw Linda Sisk talking to
Mae & Willie Caldwell who are sitting outside plant
everyday signing people up for union. Linda Sisk
signed card. Yvonne & Tina [inferentially, floorlady
Christina Robinson] & I saw her, they then stopped
Sue Harvey and gave her literature.
13 My findings as to the dates of these events are based on Turnbull's
testimony that the telephone conversation occurred on a Tuesday or a
Wednesday; the testimony of Turnbull, Denton, and Yvonne Broadwell
that their subsequent discussion of the Union took place on the following
Monday; and Denton's prehearing affidavit that the union organizational
campaign was discussed in a production meeting on Monday, June 15. 1
do not accept Turnbull's or Broadwell's testimony that these events oc-
curred in late June. As to the content of the June 15 management discus-
sion about the Union, except as indicated in the text I give no weight to
the testimony of any of the three management witnesses who testified
about it. Turnbull attributed to himself a number of statements not cor-
roborated by either Denton or Yvonne Broadwell, and the credible evi-
dence (much of it uncontradicted) about the subsequent conduct of
Denton, Yvonne Broadwell, and Hood is inconsistent with Turnbull's al-
leged instructions to them.
14 As of July 29, 1981, Chubb was no longer in Respondent's employ;
the record fails to show when or why she was separated. Pierce was dis-
charged in December 1981, for reasons not shown by the record. Cooper,
whom the General Counsel alleges to have been a supervisor at material
times (see infra, sec. lI,J,I,a), was still working for Respondent in April
1982.
"' These findings are based on credible parts of Finley's and Willie
Caldwell's testimony. He also testified that, on this occasion, he obtained
signed authorization cards from alleged discriminatees Rita Cunningham
and Peggy Fitzgerald. However, as to this matter I find his memory less
reliable than the memory of these two employees themselves. I accept
Cunningham's testimony that she signed her card at home when he came
to her home and asked her to sign it. I also accept Peggy Fitzgerald's
testimony, partly corroborated by James Hawthorne, that she signed her
card at his instance and returned it to him
'6 This finding is based on Finley's testimony. As to this matter. I
regard her memory as more reliable than that of Willie Caldwell, who
testified that she signed it at the van on June 26.
An internal notation by Denton dated July 2, states, inter
alia, that employee Linda Farris had told Denton that
Sisk had "stopped" Farris and tried to get her to join the
Union. 1 7
Meanwhile, on June 25, alleged discriminatee James
Hawthorne and his wife, alleged discriminatee Bernice
Hawthorne, signed cards at home. That same day, he ob-
tained signed authorization cards from alleged discrimin-
atees Peggy Fitzgerald (the wife of Clarence Fitzgerald
Sr.) and Donald Ellis, Bernice Hawthorne's brother-in-
law (see supra fn. 15). On the following day, June 26,
James Hawthorne received a signed authorization card
from his brother, alleged discriminatee Elroy Hawthorne
(also referred to in the record as "Roy"). On June 28,
James Hawthorne obtained signed authorization cards
from alleged discriminatees Jo Ann Cranmore and Linda
Lee. On the following day, June 29, James Hawthorne
obtained a signed authorization card from alleged discri-
minatee Bobby Bush. That same day, James Hawthorne
gave a card to alleged discriminatee Juanita Prince, who
signed it under the circumstances described infra section
II,C.' 8 Between June 26 and 30, James Hawthorne also
obtained signed authorization cards from about six em-
ployees who are not named in the complaint and as of
July 29, 1981, were still in Respondent's employ.' 9 In
addition, he solicited union support from two alleged dis-
criminatees (Baltimore and Carolyn Caldwell) who
signed cards at others' solicitation. Also, he gave cards
to Cooper (whom the General Counsel alleges to be a
supervisor) and Arvin Canada. 20 James Hawthorne ob-
tained most of these signed authorization cards while
waiting in the plant lounge to drive his wife Bernice,
whose shift ended about 10:30 p.m., home from work.
James Hawthorne had been temporarily disabled for
work by an on-the-job knee injury suffered about June 9.
Initially, his physician treated Hawthorne's injury with
injections, and encouraged him to try to see if he could
discharge his job duties without knee surgery. In an
effort to test his knee, he made a practice of coming into
the production area after the machines had shut down
toward the end of the second shift, and helping to move
boxes around or clean up.
On July 2, Denton remarked at a production meeting
attended by the floorladies, including Weaver, that James
Hawthorne was signing people up for the Union (see
infra fn. 21). On July 8, when he drove up to the plant in
his truck, Denton and Broadwell were sitting in a parked
i7 This unsigned document was offered into evidence by the General
Counsel as a statement written by Yvonne Broadwell, and was received
in evidence without objection. However, the document refers to
"Yvonne . . . and 1," and appears to be in the handwriting of Betty
Denton rather than Yvonne Broadwell. I infer that it was written hb
Denton.
is This finding is based on the testimony of James Hawthorne. Prince.
and Peggy Fitzgerald. I regard their recollection regarding this matter as
superior to that of Willie Caldwell, who testified that his wife obtained
Prince's card.
19 Sue Harvey, Leila Moore, Betty Pickle, Percy Ricks, Jerry Sum-
mers, and Tim Turner. On August 26, 1982, Summers was still working
for Respondent, and testified before me as a witness for the General
Counsel. As of late April 1982, Moore was still working for Respondent.
20 There is no evidence that Arvin Canada signed a card himself As
of April 1982, he was still in Respondent's employ.
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
car outside the plant. Hawthorne stayed in his parked
truck until he at least thought they had left, and then
went into the first-floor production area. Thereupon,
Broadwell in effect told Weaver to tell him to leave.
While Hawthorne was standing in the production area
and watching the wrapper run, Weaver came up and
told him that he would have to leave because he was no
longer on the timeclock. During this visit to the plant, he
handed out no union cards. On leaving the plant, he en-
countered Denton and Broadwell. He told them that he
had come down to pick up his family. Broadwell said
that it was all right for him to wait for his family out-
side, but that he was not to visit in the plant with the
"girls," because they had a job to do. The three had a
conversation about a cost-of-living raise, and the wages
and benefits paid by another bakery where his son
worked. Broadwell's contemporaneous memorandum re-
garding Hawthorne's July 8 conduct refers only to the
subject matter of this discussion. He testified without ob-
jection or amplification that he had no problem with
management about his being in the plant lounge during
his sick leave "until a certain stage, and they realized
what I was doing, and they had me leave." Denton testi-
fied that Respondent forbids employees to enter the plant
if they have not punched in. Hawthorne credibly testi-
fied that Respondent made some effort to exclude such
employees, but that active employees' relatives and
friends nevertheless did enter the lounge and the plant,
particularly on the second shift.
During the July 2 production meeting where Denton
said that James Hawthorne was signing people for the
Union, she became "real upset." After talking about em-
ployees' wanting to join the Union, and Willie and Mae
Caldwell's signing them up, Denton said that if they
wanted a union, she did not care who signed the cards,
but then, if they talked about writeups, they would get
writeups when they joined the Union. Then, Denton ac-
cused alleged discriminatee Weaver of having signed a
card. Weaver asked what she was talking about.2 '
Weaver had not yet signed a card, but she signed one at
home 2 days later at Willie Caldwell's behest.
Upon the periodic arrival in front of the plant of a
vendor's truck from which coffee and snacks were sold,
employees were permitted to go to the truck one at a
time to purchase refreshments. Alleged discriminatee
Dorothy White, who is Mae Caldwell's daughter and
Willie Caldwell's stepdaughter, signed an authorization
card on June 25 at her mother's house. A notation writ-
ten by Yvonne Broadwell dated July 1, 1981, states, inter
alia, that White "Went to Break Wagon, talking Union
21 My findings as to the July 2 production meeting are based on Wea-
ver's testimony. Denton testified that during this meeting she asked
Weaver whether she had signed one of the Caldwells' cards; Weaver re-
plied that she had never signed a union card, and Denton then said that
she had been joking and that it did not matter either way. Denton's fur-
ther testimony that Weaver began this discussion by wondering what the
Caldwells were doing and speculating that they were getting up a "peti-
tion" seems somewhat inconsistent with Denton's further testimony that
Weaver then denied signing a "union card." For these and demeanor rea-
sons, I credit Denton's version of this conversation only to the extent
that it is corroborated by Weaver. The General Counsel contends that at
this time Weaver was a supervisor, and does not allege that Denton's re-
marks to her were unlawful.
to Sarah Wilcock [sic]. Stayed 15 minutes." As to the in-
cident which led to this notation, Broadwell testified
that, when alleged discriminatee Sarah Wilcox returned
to the plant, Broadwell asked where White was, and
Wilcox replied that White "was out there talking union
with her." There is no evidence that Wilcox signed a
card or in fact engaged in any other union activity.
C. Alleged Interference, Restraint, and Coercion
Before the July 1981 Separations
Employee Carolyn Caldwell, who is the daughter of
Willie and Mae Caldwell and resides with them, testified
that, sometime in June, Production Manager Denton
came to her machine and asked her whether she knew
anything about the Union, and whether she had signed a
union card. Still according to Carolyn Caldwell, Denton
asked whether Carolyn's father was participating in the
Union, and she replied, "Yes, but that doesn't mean that
I signed a union card." For demeanor reasons, I accept
Denton's denial.
Employee Dorothy White, who is Mae Caldwell's
daughter and Willie Caldwell's stepdaughter, testified
that about July 3, while White was working at her ma-
chine, Production Manager Denton approached her and
asked whether she had signed a union card. Still accord-
ing to White, when she said no, Denton said that she had
seen White out yesterday in the van when she signed it,
and that White was going to be laid off. White did not
testify that her half-sister, Carolyn Caldwell, was present
during this conversation. Carolyn Caldwell testified that
about the same day as the alleged incident described in
the preceding paragraph, which incident she dated as
sometime in June, she went to talk to White during Car-
olyn's break; that in Carolyn's hearing Denton asked
White whether she had signed a union card and White
said no; and that both Denton and Carolyn thereupon
walked away. In view of the inconsistencies between the
testimony of White and Carolyn Caldwell as to this inci-
dent, and for demeanor reasons, I accept Dentoll's
denial.
On June 30, while employees Prince and Peggy Fitz-
gerald were working next to each other, floorlady
Cooper asked Prince whether she had signed a card.
"Playing dumb," Prince asked, "What card?" Cooper re-
plied, "The union card." Prince said that she had one but
had not signed it. Cooper said truthfully that she herself
had already signed a card, and said that "we needed
[Prince] to sign one." Prince said that she was "scared
to" and would have to think it over. Fitzgerald said that
she herself had signed a card and that "We need to get
more union cards signed," and asked Prince to please
sign a card. Cooper promised to give the card to em-
ployee James Hawthorne for Prince, who was "scared
to" give it to him herself because she was afraid someone
would see her. Prince then signed a card, which she had
received from James Hawthorne, and gave it to Cooper,
who gave it to Hawthorne. 22 The General Counsel al-
a2 My findings as to this conversation are based on credible parts of
the testimony of Prince and Fitzgerald. Cooper did not testify Cf. supra
fn. 18.
1328
TURNBULL CONE BAKING CO.
leges, and Respondent denies, that Cooper was a supervi-
sor. This issue is resolved infra section II,J,l,a.
About the first week in July, in an employee lounge,
then floorlady Weaver asked employee Baltimore wheth-
er she knew anything about the Union. Baltimore, who
had signed a union card a few days earlier in the plant
bathroom, said that she knew nothing about a union.
Weaver said that the Union never would get in there,
that everybody would be gone by then.23 The General
Counsel alleges, and Respondent denies, that at this time
Weaver was a supervisor. This issue is resolved infra sec-
tion II,J,l,a. The complaint alleges that this incident con-
stituted unlawful interrogation only.
As previously noted, employee Sisk signed a union
card on June 30 at the Caldwells' van. Production Man-
ager Denton and Assistant Production Manager Yvonne
Broadwell saw Sisk's activity from the production office,
and Denton noted it in writing on July 1. On Monday,
July 6, as Sisk was standing at her work station waiting
for her machine to start up, she saw Yvonne Broadwell
in the area. Sisk approached her and said, "I heard that
y'all got my name down for signing a union card, but I
wouldn't sign no union card out at the van." Sisk went
on to say that, while at the van, she had been looking at
a mail order catalog. Broadwell said, "Well, Wayne
Turnbull will be in here today, and they're liable to shut
the plant down." Sisk then went on and took her ma-
chine. 24
D. The Allegedly Discriminatory Reprimand of
Employee Zackery; Alleged Additional Interference,
Restraint, and Coercion
Employee Zackery, who is Willie and Mae Caldwell's
daughter-in-law, signed a union card at the Caldwells'
house on June 2. A week or two later, Production Man-
ager Denton approached her and said that Denton had
seen her sign a union card, to which Zackery replied by
laughing. 25
Zackery was assigned to the second shift (2:30 to 10:30
p.m.). Before entering the plant to begin work on June
29, she saw her father-in-law parked in his van near the
plant, waiting to pick up his daughters (Carolyn Cald-
well and Dorothy White) when they finished their day
shift at 2:30 p.m. Zackery stopped to talk to him. Then,
she entered the plant, clocked in on time, and went di-
rectly to her machine. 2 6
23 These findings are based on Baltimore's uncontradicted testimony.
My finding as to the date is based on her testimony that this incident oc-
curred after she signed her union card, on June 28, and the fact that she
was laid off on July 10. She dated the incident as about 2 weeks after she
signed her card.
24 My findings in this paragraph are based on Sisk's testimony. For de-
meanor reasons, I do not accept Yvonne Broadwell's testimony that this
conversation was occasioned by a statement from Sisk that she might
have to leave early if she did not start feeling better, or Broadwell's
denial that she made the remarks about Turnbull.
28 This finding is based on Zackery's testimony. For demeanor rea-
sons, I do not accept Denton's denial
26 These findings are based on the testimony of Zackery and of Ber-
nice Hawthorne, who worked with Zackery. For demeanor reasons, I do
not accept Yvonne Broadwell's testimony that the Zackery-Caldwell
conversation took place after Zackery clocked in.
Later that day, Production Manager Denton told
floorlady Weaver that, after clocking in, Zackery had
gone out to the van and talked to Willie and Mae Cald-
well for about 10 minutes. At a little after 6 p.m.,
Weaver approached Zackery at her machine and told
her that Denton had said that Zackery was 10 minutes
late getting to her machine because she had gone outside
and talked to her father-in-law after clocking in. Weaver
asked why she had done this. Zackery truthfully replied
that she had not done this. Athelene Hubbard, who was
then a floorlady, initially said that Zackery had in fact
done this, but then said no, Hubbard had made a mistake
and it was Bates who had gone out to talk to the Cald-
wells after clocking in. Bates confirmed that she was the
one who had done this. Weaver said, "Well," and that
she had just told Zackery what Weaver had been told to
tell her.
Thereafter, pursuant to Yvonne Broadwell's instruc-
tions, Weaver filled out an "Absentee Report Form."
This form is used to record instances where an employee
is out sick, is late (with the reason therefor), or leaves
early; Respondent also uses an "Employee Warning
Notice" form. A printed portion of the "Absentee" form
states, "This report must be filled out and sent to office
each day." Weaver testified that this incident occurred
on Monday, June 29, but she unexplainedly dated the
form Wednesday, July 1. Another printed portion of the
form states that the employee "was ABSENT from work
today." Under "REMARKS," Weaver wrote, "Did not
take machine at 2:30 p.m. was 10 minutes late after
clocking in." After Weaver turned in this form, an un-
identified person wrote the words "Warning Notice" on
the form27 and, after this entry was made, the document
was initialed by Broadwell. As previously noted, on July
2 Production Manager Denton remarked that employees
who joined the Union would get writeups.
E. The 1981 Separations,; Alleged Further
Interference, Restraint. and Coercion
1. The July 10 separations; alleged further
interference, restraint, and coercion
a. Background
On July 7, 1981, the Union mailed, to all the employ-
ees who had signed union cards, a letter announcing a
meeting of Respondent's employees on July 12 at the
union hall in Chattanooga. Respondent had learned
about this meeting by the time it was held (see infra sec.
II,E,3), but the record otherwise fails to show when Re-
spondent found out about it. By July 8, Respondent de-
cided to separate a number of employees.
Respondent uses a "Separation Notice" form which,
under the printed language "Reason for Separation,"
contains various printed reasons each preceded by a box.
The form states, "Check reason and explain if required."
The printed reasons include "Lack of Work" and "Dis-
charged." Of the individuals named in the complaint, 19
were separated on July 10. The separation slip issued to
27 Broadwell and Weaver both denied making this entry. Denton was
not asked about the matter.
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each of them is dated July 10, is signed by office em-
ployee Mary Vane, contains a checkmark before "Lack
of Work," and leaves blank the box preceding "Dis-
charged." Turnbull testified, in effect, that Respondent
decided to effect the July 10 separations because by that
time Respondent knew that it would not be running the
fourth-floor machines (which included all the fountain-
pack machines) at the new location, because Respondent
had accumulated enough fountain-pack stock to satisfy
demand until Derby Cone took over that part of the
business, and (perhaps) because Respondent had decided
to sell the sugar cone roll machines.28 Turnbull went on
to testify that persons were selected for the July 10 sepa-
ration "on their rating sheets, and the past history of
what Betty Denton and Yvonne Broadwell had tried
them on, and what job skills they had been able to
obtain, and what job skills they hadn't been able to
obtain." These rating sheets were not produced, al-
though at the time of the April 1982 hearing they were
still in existence. Turnbull further testified that in March,
April, and May 1981 Respondent transferred to the
fourth floor "Basically, people that were not willing to
learn the new skills, or not able to learn the new skills,
or had high rates of absenteeism . . . they were moved,
whenever feasible, when we needed the fourth floor.
Sometimes for a period of time, sometimes for a week at
a time." Turnbull went on to testify that the employees
who were selected for separation on July 10 "couldn't all
physically work on the fourth floor, because there was
only a couple of machines running up there at the time.
Both shifts. But these were people that had been primari-
ly designated fourth-floor type employees, because they
had tried these other job skills and didn't grade out well
on them." A September 3, 1981 letter to a Board investi-
gator from Respondent's labor relations adviser, and sub-
scribed to in Turnbull's prehearing affidavit, gives no ex-
planation for selecting, for inclusion in the separations,
any employees who were not working on the fourth
floor, and implies that all of the employees separated on
July 10 were working there.
b. The separation of Ellen Finley, Linda Sisk, Dorothy
White, and Virginia Wills; alleged further interference,
restraint, and coercion
(1) Finley's work history and union activity
Ellen Finley started to work for Respondent in 1973.
Until about the end of 1974, she worked as a cone
packer on cake cone machines.2 9 Then, she was assigned
to the sugar roll cone machines.
8s In connection with the sugar cone roll machines, his testimony con-
sisted of an implied response to a question (to this extent leading, but not
objected to) by Respondent's counsel.
29 This finding is based on her testimony, partly corroborated by
Yvonne Broadwell. Turnbull had not been regularly present at the plant
until 1981. I do not accept his testimony that Finley had always worked
on the sugar roll cone machines. I give no weight to Yvonne Broadwell's
testimony that Finley was transferred to the sugar roll cone machines be-
cause she was unable to keep up with a single cake cone machine. There
is no other evidence that it was easier to pack from the sugar roll cone
machines than from cake cone machines, Broadwell was not a supervisor
at the time of Finley's 1974 transfer to sugar roll cone machines, there is
no evidence that Finley performed unsatisfactory work on the fountain
About April 10, 1981, Denton and Broadwell reported
to Turnbull that Finley was refusing to try to pack from
the double machines or operate the new-type machines,
and asked him to induce her to try such machines.
Thereafter, he told Finley that she could make more
money if she learned to operate the new taping machines
or pack from the double machines. She said that she
wanted to stay where she was. He said that the jobs
were changing at the plant, that some day Respondent
might stop making sugar cones, and that he would en-
courage her to try new things. She said that she was
happy where she was, and if he was happy with her
staying where she was, she was satisfied with that. He
said that this was all right with him. On an undisclosed
later date, Denton again asked Finley to try to "qualify"
on double machines, and offered to help her learn. She
said that she did not want to do it because it made her
too nervous.
On June 2, 1981, Respondent posted on the employee
bulletin board a notice, removed on June 18, that as of
June 5 Respondent would be running only one shift on
the sugar roll cone machine. The notice went on to say
that it was cheaper for Respondent to buy such cones
than to make them itself. The notice stated that the exist-
ing sugar cone roll machines would be phased out of op-
eration by October 1, and that Respondent would pur-
chase all of such cones from outside sources until Re-
spondent moved to the new plant and had time to inves-
tigate other machines. The notice stated, "Everyone in-
volved in the Sugar Department will be given opportuni-
ties to learn new things and be placed in other depart-
ments." Further, the notice encouraged employees in
that department to learn the new assignments.3 0 After
this notice was posted, Finley continued working on the
sugar roll cone machines.
Finley picked up a union card from Willie Caldwell at
his van on June 26, and returned it with her signature to
him on June 27. Thereafter, Finley was required to work
on double machines 8 and 9 (see infra fn. 31), which
were so arranged that the cones deposited on the
common conveyor belt were facing in opposite direc-
tions. Finley worked on these two machines for 2 days,
but was unable to keep up with them (cf. infra fn. 54).
She was then sent to the fourth floor to pack fountain
pack cones. She remained there until her July 10 separa-
tion. 3
pack cake cone machines on which she was working when separated, and
Broadwell testified that she encouraged Finley to learn how to pack from
double cake cone machines.
30 My finding that this notice was posted is based on Turnbull's testi-
mony and on the notice itself. Finley testified that "Nobody didn't tell
me" that these cones were going to be phased out completely because
buying them was cheaper than making them. However, she testified that,
by the end of May, she knew that these cones were not going to be made
at the new plant.
a Finley testified that she was assigned to the double machines after
signing a union card and that she was sent up to the fourth floor after 2
days on the double machines. However, she further testified that, at the
time of her separation, she had worked on the fourth floor for about 4
weeks; and she signed her union card on June 26, about 2 weeks before
her July 10 separation. Nobody else testified about the date on which she
was assigned to the double machines or the date on which she was trans-
ferred to the fourth floor. I regard her memory about the sequence of
events as more reliable than her memory about their date and duration.
1330
TURNBULL CONE BAKING CO.
(2) Sisk's work history and union activity
Linda Sisk's seniority dated from June 1977; she had
also worked for Respondent between June 1969 and Sep-
tember 1971. Among the employees who worked on
double machines were Sisk, Josie Anderson, and Leila
Moore. Of these employees, two would each pack from
a double machine, and the third would straighten up the
"messed up" cones. Turnbull testified that the machines
on which these three employees worked had been very
roughly tied together; and that although none of them
was ever able to pack a double machine all by herself, all
of them "showed exemplary attitudes towards ... fight-
ing a new system, and really tried to make it work." In
late April or early May, after watching them work for
several days, Turnbull called them to the office and gave
each of them a potted flower. Office employee Vane told
them that Turnbull wanted them to have the flowers be-
cause they had been doing such a good job.3 2
The double machines on which Sisk worked were on
the third floor, which for seniority reasons was supposed
to be her permanent floor. However, this floor had no
restroom. On an undisclosed date after she received her
potted flower, she asked to be relieved from that floor
for a day or two, because of an illness which required
frequent use of the restroom. She was thereupon as-
signed to machine 17 on the second floor. Her condition
cleared up in early May, and she asked to be put back on
her third-floor double machines. Denton told her that
machines 17 and 18 (another second-floor machine, then
inoperable) were now her permanent machines. Also, at
some time between the late March installation of the
taper and her July 10 separation, she ran the taper. She
asked when she was to get a raise, and was told that she
had to learn "everything."
My findings in the foregoing paragraph are based on
Sisk's testimony. In view of the credible testimony
(much of it by Turnbull) regarding the flower incident, I
do not accept Denton's testimony that "time and time
again" Sisk refused to try to work on a double machine;
that she eventually did try on about three occasions, but
asked to be taken off becuase of illness; and that she
eventually said that she did not want it, it made her sick.
Sisk visited her doctor on four occasions between Febru-
ary 2 and April 30, 1981, and made no subsequent visits
at any material time. She complained of illness to floor-
lady Weaver on June 8, but worked 8-1/2 hours that
day.
As previously noted, Production Manager Denton and
assistant Production Manager Yvonne Broadwell saw
Sisk sign a union card at the Caldwells' van on June 30;
and on July I and 2, Denton made a written note of this
activity and of a report that Sisk tried to induce another
employee to sign a card. As previously noted, on July 6,
32 My findings about the potted-flower incident are based on credible
parts of Sisk's and Turnbull's testimony. My findings as to the date are
based on Sisk's testimony. Turnbull's testimony that these three employ-
ees were "some of the early people that were given the opportunity" to
try to work on double machines, and that the flowers were initially in-
tended to start a program of giving flowers to people who tried, is diffi-
cult to reconcile with his further testimony that, by the time he gave out
the flowers, 9 or 10 others had tried to work on double machines. The
foregoing testimony aside, he attached no date to the flower-giving.
4 days before Sisk's separation, Broadwell told her that,
because of the union activity, the plant was "liable" to
be shut down (see supra sec. II,C).
(3) White's work history and union activity
Dorothy White's seniority date was June 1977. On a
date not shown by the record, but obviously after
Denton became a supervisor about February 1981,
Denton took White to the second-floor lounge, told her
that she had a very bad temper, and tried to encourage
her to be a better employee and to be more cooperative.
White said that she could not help having a bad temper,
because she was "born under that sign." Also, on two
dates not shown by the record but after Denton became
a supervisor, White was written up for having a bad "at-
titude" in that she talked "mean" to everybody and did
not come into work with a smile on her face. About
early June 1981, she forgot to bring a hair net, which she
was required to wear on the job, and Denton sold her
one for 10 cents (as was Denton's practice when an em-
ployee forgot a hair net). Also, White received a written
warning notice dated June 25, 1981. Checks were insert-
ed before "Conduct" and "Attitude." Under "Remarks"
was the entry, "Insubordinate would not do what she
was told without arguing all around bad [attitude]. 33
6/26/81 not in proper dress code." The "dress-code"
violation consisted of wearing yellow instead of dark or
white pants.3 4
My findings in the preceding paragraph are based on
credible parts of White's and Denton's testimony. Except
to the extent already found, I do not accept Denton's
testimony that White violated the dress code on three or
four occasions when she said she had nothing else to
wear. Also, in the absence of documentary evidence
from Respondent's records, I do not accept Denton's tes-
timony that White was late for work almost every morn-
ing, or Broadwell's testimony that White was constantly
late for work or in returning from her breaks, and I
accept White's denials.
About June 21, White was assigned to work at a
double machine on the third floor. She worked on that
machine for 3 days, and Denton told her that she was
"proud" because White "was doing good." Denton fur-
ther said that White was going to get a raise. 35
As previously noted, White is Mae Caldwell's daugh-
ter and Willie Caldwell's stepdaughter. White signed a
union card on June 25. As previously noted, Yvonne
Broadwell made a notation that on July I, White had
spent 15 minutes at the break wagon "talking union"
with employee Wilcox. On White's return, Broadwell
told her that she had "overstayed," that Broadwell
would have to relieve other employees who also wanted
to patronize the coffee wagon, and that, accordingly,
33 At this point, the initials "N.C." are scratched out. The slip is
signed by Nellie Chandler, inferentially a floorlady at that time
a4 Denton had given her advance oral permission to wear these yellow
pants.
35 My findings in this paragraph are based on White's testimony. I
reject as to some extent internally inconsistent Denton's testimony that
Denton asked her to qualify on double machines. White said, "No way
I . . I don't want to work that hard," but White did try to work two
machines
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White should have returned from the wagon immediate-
ly.3 6 White never did get the raise which Denton had
promised her. About the end of June, she was transferred
to the fourth floor.
(4) Wills' work history and union activity
Virginia Wills' seniority date was May 1972. Upon
seeing the March 30, 1981 notice about working on
double machines, Wills asked General Production Man-
ager Hood, "Suppose I can't work them double ma-
chines?" He said that she would have to stay at her
present pay rate. She said that this was what she wanted
to do. He said that she did not have to work them if she
did not want to. Later, when she was asked to "qualify"
on the double machines, she said that she did not want to
work that hard.37 On one occasion, she did work a
double sugar-cone machine by herself for about an hour,
to show Denton that Wills could do it; but thereafter she
was moved at her own request, and she refused to try a
double machine again.
On June 24, 1981, Wills received an authorization card
from Willie Caldwell at his van. She took it home, and
returned it to him with her signature at his van on the
following morning.
(5) The issuance of separation slips to Finley, Sisk,
White, and Wills; alleged independent interference,
restraint, and coercion
As of July 10, the first-shift employees working on the
fourth floor were Finley, Sisk, White, and Wills. About
12:30 p.m., after the employees had returned from their
lunch break, General Production Manager Hood shut
down all the machines on that floor and told the fourth-
floor employees to proceed to the second-floor employee
lounge. When they reached the lounge, they were ad-
dressed by Yvonne Broadwell, in Hood's and Denton's
presence. Broadwell said that the fourth floor was cut
off because the machines on that floor would be the first
to be moved to the new plant, orders had slacked off,
and there would have to be a layoff. 38 She said that Re-
spondent would call the employees back when Respond-
ent needed them.3 9 Broadwell asked the employees to
clean out their lockers and leave at once, in order to
avoid disturbing the other employees, and not to come
back to the building. Also, Broadwell gave the employ-
ees their separation notices, their paychecks (which in-
cluded pay for the rest of that day), and their vacation
pay.40
s6 This finding is based on Broadwell's testimony. For demeanor rea-
sons, I do not accept White's denials.
3' After Wills' earnings reached a certain level, her Social Security
income dropped.
s8 My findings in this sentence are based on credible parts of Broad-
well's memorandum of these events, and credible parts of the testimony
of Sisk, White, Finley, Wills, Broadwell, and Denton.
s9 This finding is based on credible parts of Broadwell's memorandum
of these events. For demeanor reasons, I do not accept the somewhat dif-
ferent version of White ("I don't know when you all will be called
back"), Finley ("But they would call us back"), or Wills (". . when we
got all set . .. she'd call us back").
40 My findings in this paragraph are based on a composite of credible
parts of the testimony of Finley, Sisk, White, Wills, Broadwell, and
Denton. White is the only witness who testified that Denton said any-
At this point, employee Wills said that Respondent
had put these four employees on the fourth floor because
Respondent intended to get rid of them.41 Sisk started to
cry, and left the room with White. Then, Finley,
Denton, and Wills, in that order, headed toward the
door. Ellen Finley stopped at the door, turned to face
Denton, and asked, "Why are you laying me off? . . . I
have more seniority than some here, and there are some
here that can't run any machines. I can run some of
them. And you're keeping some that can't run any ma-
chines."4 2 Denton said, "Well, we're laying you off,
Ellen, because I know you signed a union card."
Except as otherwise indicated, my findings in the pre-
ceding paragraph are based on the testimony of Finley
and Wills. Finley testified that General Production Man-
ager Hood was in a position where he could overhear
this conversation. Hood, who at the time of the hearing
was still in Respondent's employ in a supervisory capac-
ity, did not testify, nor was his absence explained. Both
Broadwell and Denton denied that this conversation oc-
curred, and testified that they and Hood remained to-
gether in the room until all the employees had left. In
view of Hood's failure to testify, other inconsistencies
between Broadwell's and Denton's testimony (supra fn.
41), and demeanor considerations, I discredit such testi-
mony, and credit Finley and Wills notwithstanding the
omission of this statement from Wills' prehearing affida-
vit.
c. The separation of Rita Cunningham
Rita Cunningham began to work for Respondent in
1974. She was a cone packer throughout her employ-
ment. She worked on combined machines for a couple of
days, but then began being transferred to various ma-
chines to fill in for absent employees. 43 Denton told her
that she would have to learn all the machines on every
floor before she could get a raise, and that she was being
asked to train on the other machines because those skills
that she was going to learn would be needed at the new
plant.
Cunningham signed a union card at her house on June
25, 1981, at Willie Caldwell's request (see supra fn. 15).
thing during this part of the incident. I do not accept White's wholly un-
corroborated testimony that Denton said there might be another layoff in
a week or two. Rather, I credit Sisk's testimony that, during this part of
the incident, Denton said nothing.
41 My finding that Wills said this is based on credible parts of the testi-
mony of Finley and Wills, partly corroborated by Denton. For demeanor
reasons, I do not accept Broadwell's testimony that Wills said nothing.
As previously noted, Respondent takes the position that these four em-
ployees had in fact been assigned to the fourth floor for that reason.
42 Finley had in mind employee Marcella Cobb, Betty Denton's sister,
who was 5 years junior to Finley. Cobb cried throughout the 2-day
period she tried to work on double machines and was thereupon sent
back to packing from the sugar roll cone machines, where she was work-
ing when Finley was separated. Cobb's retention is discussed supra sec.
II,A,10.
43 This finding is based on Cunningham's testimony. I do not accept
Denton's testimony that Cunningham refused to try to qualify on the
double machines because she had wrist trouble. Denton's testimony that
Cunningham usually worked 2 or 3 months in the summer is inconsistent
with the parties' prior stipulation that, between 1967 and 1981, she
worked from January until laid off on August 30 or later, except that in
1977 she worked from early March to her layoff in late September.
1332
TURNBULL CONE BAKING CO.
She telephoned Production Manager Denton on July 10,
inferentially before or shortly after the beginning of Cun-
ningham's shift at 6 a.m., to state that Cunningham was
too sick to work. She asked if she could come and get
her check later on that day, which was the regular
payday. Denton told her to come in about 2:30, the end
of the first shift. When Cunningham arrived, Denton met
her at the door and told her that she had been laid off
with 17 other "girls." 4 4 Cunningham asked when she
would be called back. Denton replied that Cunningham
would be called back whenever they moved to the new
plant, but that Denton did not know when it would be.
On an undisclosed previous date, Cunningham had asked
Denton whether there was going to be a layoff, to which
Denton replied that she really did not know.
d. The separation of Peggy Fitzgerald
Peggy Fitzgerald worked as a cone packer for Re-
spondent between 1966 and 1969, and from 1976 (her se-
niority date) until her 1981 separation. Upon qualifying
on the double machines, she was classified on April 8,
1981, as a Class I operator, and her wages were in-
creased to the level called for by that classification. She
continued to receive this wage rate until her July 10 sep-
aration.
Employee Clarence Fitzgerald Sr., who initiated the
contact with the Union and who is Peggy Fitzgerald's
husband, was discharged about May 1, 1981.
At the time when Peggy Fitzgerald was reclassified to
Class 1 in April 1981, she was packing by herself from
machine number 4, on the fourth floor, a machine whose
production was normally packed by two cone packers.
Shortly thereafter, she was transferred to the third floor,
where she was initially assigned to combined machines 8
and 9 and also operated the sealer. About June 16, while
she was operating the sealer, she asked then floorlady
Hubbard, who was relieving on another machine, to
hand Fitzgerald some torn cartons which she could not
reach. Hubbard told her to get them herself if she
wanted them. A couple of days later, when packing from
combined machines 8 and 9, Fitzgerald noticed that they
were not working properly: one was not baking, and the
other was producing defective cones. She asked Hubbard
on three occasions to call someone to repair Fitzgerald's
machines, but Hubbard ignored her. Then, Fitzgerald left
her machines and called for someone to repair them.
Floorlady Weaver told her that she was not supposed to
leave her machines at any time except when she was
being relieved to go on break. Fitzgerald's break was
past due. She asked Weaver to please get someone to
work on Fitzgerald's machines. They continued to work
badly for the rest of the shift. At some time during the
course of that evening, after machines 8 and 9 had begun
to work improperly, Production Manager Denton chas-
tised Fitzgerald for falling behind on her machines and
throwing away the good cones. On the following
evening, June 19, machines 8 and 9 were shut down
completely, and Fitzgerald was assigned to run com-
44 The 19 alleged July 10 discriminatees included two males-Johnny
Baker Jr. and Ricky Huggins.
bined machines 10 and 11. One of them did not work
properly.
Inferentially, about June 18, Hubbard and Weaver
complained to Denton that Fitzgerald "would never say
anything, her attitude was negative." Also, on about
three occasions after her husband's discharge about May
I, Peggy Fitzgerald failed to respond to greetings by
Denton, who had to some extent been involved in his
discharge. On June 19, Denton, Weaver, and Hubbard
met with Peggy Fitzgerald. Denton told Fitzgerald that
she could be a part of "our team" and be one of the "top
girls," except that she had a poor attitude in that she did
not talk enough to other people in the plant. Fitzgerald
said that it was Hubbard who was refusing to talk to
Fitzgerald, and not the other way around. Denton said
that Fitzgerald seemed to resent Denton's talking to Fitz-
gerald, and asked whether she thought Denton had
something against her, or she had something against
Denton. Peggy Fitzgerald said that Denton was the
reason Clarence Fitzgerald Sr. had been let go. Denton
said that his discharge had been his own fault. Denton
again explained the grading procedures, and said that
Peggy Fitzgerald graded very poorly as to attitude. Fitz-
gerald replied, ". . . it's the way you look at it." 4 5
The following Monday, June 22, Peggy Fitzgerald
was assigned to pack from combined machines 14 and 15
on the second floor with employee Prince; this particular
combination had always been worked by two employees.
Fitzgerald continued to work there until her July 10 sep-
aration. The June 19 interview was the only occasion on
which she was ever counseled about her attitude, and
there is no evidence that she was counseled about any-
thing on any other occasion.
Fitzgerald signed a union card on June 25, before
cards were signed by Hubbard and Weaver. On July 10,
Fitzgerald arrived at the plant before the beginning of
her shift (the second shift) and went into the lounge. One
of the other employees entered the lounge and told Fitz-
gerald that Denton and Weaver wanted to see her. Fitz-
gerald thereupon left the lounge, and saw Denton and
Weaver standing next to the timeclock. Weaver gave
Fitzgerald her check (including pay for a full day's work
on July 10), her vacation pay, and her separation slip;
and said that "they were sorry, that they didn't need
[her] any more." Fitzgerald then went back to the
lounge to tell her sister-in-law, second-shift employee
Prince, that Fitzgerald would be back later that night
(the shift ended at 10:30 p.m.) to pick her up. Weaver
came to the lounge and told Fitzgerald "to get out,
[Fitzgerald] was no longer employed there, [she] didn't
have any business in the building."
As previously noted, my findings as to the June 19
interview are based on a composite of credible parts of
Fitzgerald's and Denton's testimony. I do not accept
Denton's testimony, denied by Fitzgerald, that on this
occasion she was also reproved for working too slowly.
Denton did not testify that Hubbard or Weaver made
such a complaint to Denton; it is uncontradicted that
45 My findings in this paragraph are based on a composite of credible
parts of Fitzgerald's and Denton's testimony. See infra.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fitzgerald had been working alone on combined ma-
chines since her April Class 1 classification (one of the
few employees able to do so for any sustained period); at
all times thereafter until her July 10 separation she re-
ceived Class I wages, whereas employee Mae Caldwell's
wages had been cut because she could not (or, perhaps,
had refused to) pack from double machines; there is no
evidence that Fitzgerald was reproved, on any occasion
other than June 19, for working too slowly; and her
rating sheets were not produced. For similar reasons, I
do not regard as sincere Denton's testimony that Peggy
Fitzgerald failed to "keep up" after her husband's dis-
charge in early May.4 6
e. The separation of Betty Baltimore
Betty Baltimore's seniority date was April 1975. In ad-
dition, she had worked for Respondent on various occa-
sions between 1967 and 1974. Each such tour of duty
was terminated by a quit. During an undisclosed period
before May 11, 1981, she served as floorlady on the
second floor, which had one pair of ganged machines.
On that date, at her own request, she was transferred
back to cone packing, a transfer which caused her wages
to be cut by 15 cents an hour. A floorlady's duties in-
cluded relieving employees during their breaks. Balti-
more credibly testified that she was capable of working
on double machines. Also, employee Bernice Hawthorne
credibly testified that she and Baltimore were the first
employees to learn how to operate the combined wrap-
per. However, at the time of Baltimore's July 10, 1981
termination, Respondent had never told her that she was
qualified to be a Class I operator, and she received only
Class 2 pay.
About June 10, Baltimore found in the plant a yellow
slip of paper with the names of 12 employees (not in-
cluding hers) and the entries "July" and "August." 4 7
She asked Denton what the slip was, and whether Balti-
more was going to be laid off. Denton did not explain
what the slip was, but said that Baltimore was not going
to be laid off. About June 25, at James and Elroy Haw-
thorne's instance, Baltimore signed a union card in the
bathroom and returned it to Elroy. As previously noted,
a few days later, floorlady Weaver asked her whether
she knew anyting about the Union and, when Baltimore
untruthfully said no, said that the Union would never get
in there, that everybody would be gone by then.
As of July 10, 1981, Baltimore was working as a
second-shift cone packer on the fourth floor. When she
came to the plant that day, floorlady Weaver met her at
the door, gave her her check, and said that she was laid
off.
46 However, in so finding, I attach little significance to Peggy Fitzger-
ald's honest testimony that she never decided not to work hard any more
and not to keep up with production, and always worked as hard as she
could. Such testimony is not inconsistent with the contention that her
production did in fact slow down, or with a sincere belief by manage-
ment that such a slowdown occurred after her husband's discharge.
47 Denton and Broadwell at least ordinarily used yellow paper to pre-
pare the notes which they used for their own purposes when performing
supervisory functions.
f. The separation of Mary Zackery
Mary Zackery worked for Respondent as a cone
packer from September 1980 to her July 10, 1981 separa-
tion. She had also worked for Respondent as a cone
packer between June 1976 and April 1, 1977, when she
quit. On a date not shown by the record, she was given
an opportunity lo qualify on the combined machines, but
refused to do so. 48
Zackery's union activity and connections are set forth
supra section II, D. She worked on the second shift,
mainly on the third floor but sometimes on the fourth
floor. She was out sick for a day or two about June
1981; and was also out sick between July 7 and 9 because
of what was then diagnosed as a "virus" (but was actual-
ly pregnancy). On July 10, the day she returned to the
plant to work, floorlady Weaver met her at the door,
gave her her paycheck and separation slip, and said that
Zackery had been laid off. Weaver said that a lot of
people had been laid off, and that only five machines
were running. The previous month, Weaver had told her
that she would not be laid off in connection with the
move to the new plant, but would be going to the new
plant.
g. The separation of Carolyn Caldwell
Carolyn Caldwell started to work for Respondent on
February 2, 1981, as a cone packer. After qualifying on
the double machines, on May 29, 1981, she received a
wage increase to the level of Class 1 operator. Assistant
Production Manager Yvonne Broadwell testified that
Carolyn Caldwell "was great on work, and she was fast
with her hands. She really was . . . she was great on
those machines . . . she was a good worker, she really
was." During the 1-week pay period ending Wednesday,
June 3, 1981, she worked four double shifts and one
single shift, a total of 71-1/2 hours. She also worked a
double shift during the following week, and a double
shift on May 4, 1981. About June 9, 1981, at her request,
Respondent transferred her from the second to the first
shift, in order to enable her to go to summer school at
night. While attending school, she was unable to work
overtime.
Caldwell was not absent from work for sickness or
any other reason until June 12, 1981. Respondent's
records show that between that date and June 30, 1981,
she came to work every day, but left work early on four
occasions because of illness.4 9 In late June, she was
counseled about her attendance. Respondent's records
show that Caldwell worked a full day on June 26. How-
ever, on an undisclosed date, she signed an absentee
report stating that she was absent on June 26, and with
the entry (in an unidentified hand bearing no resem-
48 This finding is based on Denton's testimony. I reject as internally
inconsistent Zackery's testimony that she ran combined machines 8 and 9
by herself "lots of times" but management never put her on the combined
machines, although management did talk to her about such an assignment
(without explaining the reason therefor) and she said that she "was will-
ing to try."
46 Her illness turned out to be of a temporary nature. However, she
did not then know this, and, of course, neither did Respondent.
1334
TURNBULL CONE BAKING CO.
blance to hers) "to [sic] much absentee [sic] and not
keeping up like she should."5 0
Carolyn Caldwell is the daughter of Willie and Mae
Caldwell. She signed a union card at her home about
May 20, 1981. She was out sick beginning July 6.51 Her
July 10 separation slip and her paycheck were brought
to her by her half-sister, employee White.
h. The separation of Bernice Hawthorne
Bernice Hawthorne worked for Respondent from 1968
until her July 10, 1981 separation. She began working as
a "wrapper girl" on a single wrapping machine. After
Turnbull took charge of the plant, two wrapping ma-
chines were combined. Bernice Hawthorne was one of
the first two employees to qualify on the combined
wrapping machines. Thereafter, Assistant Production
Manager Yvonne Broadwell told Bernice Hawthorne
that she had nothing to worry about, that she was going
to the new plant, and that Turnbull was really pleased
with the way she ran the wrapper.5 2 On April 8, 1981,
her wages were increased to the rate of a Class I opera-
tor. Her payroll change notice (signed by then floorlady
Baltimore and General Production Manager Hood) bears
the handwritten notation, "Doing her work & great job
of it."
After Bernice Hawthorne received her raise, she was
assigned to a number of different jobs. She ran combined
machines 10 and 11, 12 and 13,63 and 8 and 9;54 ran
single machines 18 and 19; ran the boxer; and acted as
fourth-floor floorlady. On a date not shown by the
record, floorlady Weaver came by Hawthorne while she
was working combined machines 8 and 9, and asked her
why her face was red. Hawthorne replied that she
thought her blood pressure was up a little bit. An hour
or two later, Weaver took her off the double machines.
After Hawthorne received her raise, she worked at
every job to which she was assigned, and was never
criticized for her work on any of them. She credibly tes-
tified to the belief that she worked as hard as she knew
how.
My findings in the foregoing paragraph are based on
Hawthorne's testimony. I do not accept Denton's testi-
mony that, shortly after receiving her raise, Hawthorne
started "falling back," would not do everything she was
supposed to do, repeatedly asked to be changed to other
jobs on the ground that she was nervous and it made her
blood pressure go up, and "just started falling down in
her attitude, and not caring." Hawthorne's rating sheets
6o In view of her signature on this report, I do not accept her testimo-
ny that she was "keeping up my machine real good" when she was on
the job.
'5 My findings as to her attendance are based on Respondent's records.
I do not accept Assistant Production Manager Broadwell's testimony that
Caldwell was out sick for 2 or 3 weeks at a time.
62 This finding is based on Bernice Hawthorne's testimony. For de-
meanor reasons, I do not accept Broadwell's testimony that, on being
transferred from the wrapping machine, Hawthorne asked whether she
was going to be laid off, and Broadwell said, "not so far as I know."
63 Combined machines 12 and 13 were always run by two employees
at once.
64 Combined machines 8 and 9 deposited cones so that they were lying
in opposite directions on the same conveyor belt. While Hawthorne was
running these two machines. she shared an assistant ("shotgun girl") with
other packers who were running other sets of combined machines.
were not produced, and there is no evidence that she
ever received any written reprimands or was ever coun-
seled about her work. Moreover, she continued to re-
ceive Class I pay throughout her employment, although
Respondent had previously cut employee Mae Caldwell's
pay because she could not (or, perhaps, had refused to)
pack from double machines. For demeanor reasons, nei-
ther do I accept Turnbull's testimony that Hawthorne
complained about having too much to do on the com-
bined wrapper. Rather, I credit Hawthorne's testimony
that this was her preferred job.
Bernice Hawthorne is James Hawthorne's wife and
Elroy Hawthorne's sister-in-law. She signed a card on
June 25, 1981, at her husband's instance. On an undis-
closed date, she obtained permission to take time off on
Thursday and Friday, July 9 and 10, to make prepara-
tions for her daughter's July 11 wedding. On July 11,
second-shift employee Donald Ellis, her brother-in-law,
brought her her separation notice. After receiving this
document, Bernice Hawthorne telephoned floorlady
Weaver and asked why she had not told Hawthorne on
Wednesday night, when they had conversed, that she
had been laid off. Weaver replied that she did not know
it because Hawthrone's card was still in the rack. Ber-
nice Hawthorne's last assignment before her July 9-10
leave of absence, during which she was laid off, was to
act as fourth-floor floorlady. 5 5
i. The separation of Linda Lee
Linda Lee's seniority date was February 1981, but she
had also worked for Respondent on various dates be-
tween 1968 and 1980. On June 19, 1981, her hourly wage
rate was increased by 15 cents an hour, to $4.10; 56 the
relevant payroll change notice states that her conduct
was excellent and her ability, attendance, and production
were good. After qualifying on double machines, she re-
ceived a wage increase on July 7, 1981, to the rate of
Class I operator. At the time of her separation, she was a
second-shift employee on the sugar cone (second) floor.
On an undisclosed date in June 1981, Lee told Assist-
ant Production Manager Broadwell that Lee had been
approached to take a card, but had not taken one. Lee
signed a card on June 28 at James Hawthorne's instance.
Denton testified that Respondent had not initially in-
tended to include Lee in the layoff. Denton went on to
testify that when Lee was "out there when we were
laying them off," she asked to be laid off because she
needed to spend some time with her little boy. Still ac-
cording to Denton, she agreed, and had office employee
Vane prepare Lee's separation slip. Turnbull testified
that on a date and at an hour which he was not asked to
give (although he testified that on July 10 he was prob-
ably in New Orleans), he asked Denton why Lee had
been laid off on July 10 although she was a "better
55 This finding is based on her testimony. Because Hawthorne would
be more likely than Broadwell to recall Hawthorne's own work assign-
ments, I do not accept Broadwell's testimony that Hawthorne's final job
assignment was working on a single machine on the second floor.
56 The record suggests that this increase may have been due to her
appointment as floorlady. There is no evidence that she was a floorlady
when she was separated.
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worker and a good worker"; to which Denton replied
that Lee had asked to be laid off to spend some time
with her son "and if she doesn't want to be around and
she doesn't want to work, then I think we should lay her
off." Lee did not testify.
Denton has a practice of preparing handwritten notes
of events which occur at the plant. Two of her hand-
written notes (G.C. Exhs. 96 and 97), both dated July 10
and listing employees who were terminated that day, in-
clude Lee's name, which appears in neatly written and
evenly spaced lists of such employees and is not among
various other names which appear to have been added
after the original lists were written. 5 7 Nor does Lee's
name appear, as an employee to be retained, on a Denton
note of such employees dated July 8.
j. The separation of Earline Bates; further alleged
interference, restraint, and coercion
Earline Bates had worked for Respondent as a cone
packer since 1974, her seniority date. Between her recall
from layoff in early February 1981 and her July 10, 1981
separation, she was out sick for 3 days and left work
early on 4 days (for the respective reasons of "personal
problems, her baby was sick, she went to a funeral, and
her sister had an operation). On 2 days during this same
period, she worked for 16 consecutive hours.
Bates was one of the first employees who learned how
to run double machines, and on occasion she did so for
two consecutive shifts, but she never received a wage in-
crease to the rate of a Class 1 operator. She complained
about the matter to floorlady Weaver, who said that she
talked to Denton about the matter and did not know
why Bates had not received the raise; "It's not right."
She asked Denton about the raise on July 9, and Denton
replied that "they" had just talked the matter over and it
would be on Bates' next paycheck, but she was separated
the following day.58
Bates signed a union card on June 29, 1981, at the
Caldwells' van outside the front door of the plant. At
that time, Supervisors Denton and Broadwell were sit-
ting in a car parked at the front door of the plant.
Assistant Production Manager Yvonne Broadwell tes-
tified that Respondent permits employees to carry out a
box of cones when they want them. From time to time,
this had been done by other employees (sometimes on a
daily basis) and by Bates herself. In each such instance,
Bates had requested and obtained permission from the
wrapper employee, who Bates knew was not a supervi-
s7 These documents contain certain unexplained peculiarities. Thus,
G.C. Exh. 97, whose physical appearance indicates that it was prepared
after G.C. Exh. 96, does not contain the names of several employees
(Cranmore, Huggins, and Capes) who are listed on G.C. Exh. 96 and
were in fact separated on June 10; lists a "JoAnn Starnes" (of whose ex-
istence there is no other record evidence); and states "total of 17 people"
(but lists 17 only if Linda Sisk, who is listed twice, is counted twice).
Moreover, the verbs used in G.C. Exh. 97 indicate at certain points that
the document was written before the terminations, and at certain points
that it was written afterward. See also infra sec. Il,J,3,a(2).
58 My findings in this paragraph are based on Bates' testimony, cor-
roborated by Zackery as to Bates' work on double machines. For de-
meanor reaons, I do not credit Denton's denial. For demeanor reasons,
and because Bates' rating sheets were not produced, I do not credit Den-
ton's further testimony that Bates had a "poor attitude" and "didn't seem
to act like she cared or was interested."
sor. On July 9, Bates approached employee Cranmore,
who was working at the wrapper, and asked for some
cones. Cranmore told her to take all she wanted. Bates
took about 7 boxes, each containing about 12 cones.
Then, Bates gave the boxes to her brother, who was not
an employee but had gone into the plant. At this time,
Supervisor Broadwell and Denton were sitting in a car
parked on the street outside the plant door.5 9 When
Bates' brother left the plant with the seven boxes, the
two supervisors jumped out of the car and asked him
where he got them. He said that Earline Bates had given
them to him. Then, the supervisors asked her where she
had got them. She said that Cranmore had given permis-
sion. Denton said that Cranmore had no right to give
permission. Cranmore said that she had told Bates she
could have one box. The supervisors told Bates to take
the boxes back. She did so, and then returned to work. 60
On July 10, when Bates was on the third floor,
Denton and Broadwell brought her an envelope contain-
ing her check and her separation slip. While Bates was
opening the envelope, Denton left the area. Bates asked
Broadwell why Bates had been laid off. Broadwell told
her to call Denton. Bates called Denton on the plant
paging system, whereupon Denton returned to the area.
Bates asked why she had been laid off when Linda
Farris had been retained. Denton said that Farris had re-
ceived a Class 1 classification. Bates, who had qualified
on double machines before Farris had, said that the
reason Bates had not received a raise to Class I was that
Denton had not given her one. Then, Broadwell asked
whether Bates had signed a union card. Bates untruthful-
ly said no. Denton said that Bates would be called back.
About 2 weeks earlier, Denton had told her that she had
nothing to worry about, that she would not be laid off,
that she was in the "A group.""'
On July 13, 1981, the Chattanooga Housing Authority,
in order to ascertain Bates' continued eligibility to con-
tinue residing in a low-income housing development, sent
Respondent a questionnaire regarding her employment
status. On an undisclosed date, Respondent returned the
questionnaire, with an "X" in the box before the printed
56 As discussed infra on occasion neither Denton nor Braodwell was
present in the plant during the second shift. Broadwell testified that they
had driven to the plant after a common social engagement, to find out
how things were going at the plant in view of a new girl on the floors;
and they remained in the car because the plant was located in a rather
dangerous part of town and they saw several people in the plant who did
not belong there.
60 My findings as to this incident are based on a composite of credible
parts of the testimony of Bates, Broadwell, and Denton I do not accept
Bates' testimony that she gave her brother two boxes of cones at the
doorway in view of Broadwell and Denton. Bates in effect admitted that
the incident occurred before the end of her shift, and she testified that
her brother was waiting to pick her up from work. If only two boxes had
been involved, it would have been more natural for her to remain at her
work station until the end of the shift, and to bring the boxes out with
her when she left the plant to join her brother.
6i My findings in this paragraph are based on Bates' testimony. For
demeanor reasons, and in the absence of corroboration by Denton, I do
not accept Broadwell's testimony that she never asked Bates whether she
had signed a union card. For demeanor reasons, and in the absence of
corroboration by Broadwell, I do not accept Denton's testimony that she
did not tell Bates that she would be called back. For demeanor reasons, I
do not accept Denton's testimony that she did not tell Bates, about 2
weeks before she was laid off, that she had nothing to worry about.
1336
TURNBULL CONE BAKING CO.
entry "Employee Terminated"; a statement that the ter-
mination was for lack of work; a blank before the printed
entry "Employee on Leave"; and a notation after the
printed entry "Date expected return," "do not know at
this time."
k. The separation of Wilma Benton. Wanda Brown, Jo
Ann Cranmore, and Sarah Wilcox
Wanda Brown's seniority date was April 1976. Wilma
Benton's seniority date was June 1976. Jo Ann Cran-
more's seniority date was March 12, 1981, but she had
previously worked for Respondent during various peri-
ods between June 1974 and August 1980. Sarah Wilcox's
seniority date was February 27, 1975, but she had previ-
ously worked for Respondent during various periods be-
tween 1960 and March 1974. All of them were Class 3
packers.
Brown and Benton signed union cards on July 1, 1981,
and June 27, 1981, respectively. As previously noted,
Cranmore signed a union card on June 28 at James Haw-
thorne's instance. As previously noted, Yvonne Broad-
well prepared a written memorandum dated July 1, 1981,
that alleged discriminatee White had been "talking
union" with Wilcox. There is no evidence that Wilcox
ever signed a card or in fact engaged in any other union
activity. Benton, Brown, Cranmore, and Wilcox were
separated on July 10.
i. The separation of Johnny Baker Jr., Willie Lee
Capes, and Ricky Lynn Huggins
Johnny Baker Jr., a shipping employee, began to work
for Respondent on June 10, 1981. Willie Lee Capes, a
Class 3 packer, began to work for Respondent on May 4,
1981. Ricky Lynn Huggins, whose job classification is
not shown by the record, began to work for Respondent
on August 18, 1980. There is no evidence that Baker or
Capes ever engaged in any union activity. Huggins re-
ceived a card from alleged discriminatee Elroy Haw-
thorne about late June; no supervisors were present at
the time. There is no evidence that Huggins ever signed
a card. He attended a union meeting on July 12, after his
separation, but there is no evidence that he ever engaged
in any other union activity.
2. Respondent's July 11 assurances to the remaining
employees
On July 8, before effecting the July 10 layoffs, Re-
spondent posted on the employee bulletin board a notice
that a "general meeting of all employees" would be held
at the plant at 9 a.m. on Saturday, July 11, "for the pur-
pose of planning our move to the new plant. We wish to
tell you of all the plans and want to include you in them.
Please come and share them with us" (emphasis in origi-
nal). Turnbull testified that this meeting had been
planned with anticipation of quieting the remaining em-
ployees' fears in consequence of the July 10 layoff. The
meeting was held on the clock, and the employees for
whom this was a sixth day on the clock received over-
time pay therefor. After making sure that all the employ-
ees had clocked in, Respondent served them coffee and
doughnuts.
Turnbull started off by apologizing for the July 10 lay-
offs. He went on to say that Respondent had made only
$8000 in 1980; that the Turnbulls had twice had an op-
portunity to sell all the machinery; that they had decided
instead to start a new conemaking business; that in
moving to the new plant "we were making a new com-
mitment to the cone business"; and that all of Respond-
ent's property had been put up for collateral to finance
the new plant. Turnbull described the construction
schedule, the schedule for delivering the new wrappers,
and how these would operate. Then, he threw the floor
open for questions. Some employees asked whether there
were going to be any additional layoffs. Turnbull replied
that there would be no more layoffs, that those present
were the ones chosen to go, and that all of them would
be going to the new plant. He stated that the July 10
separations had been effected because the separated em-
ployees had been tested on job skills, some of them had
refused to do jobs, and some of them could not do jobs.
He further stated that the employees in the room at that
time were the "Number I team and the cream of the
crop." In response to other questions, he said that, so far
as he knew, after the plant moved there would be the
same kind of hours; that he did not know whether there
would be two shifts or three shifts, but hoped there
would be at least two; and that he did not know where
certain individuals would be working. In response to a
question about whether Turnbull-Louisiana had a union,
Turnbull said that it had a union contract which anyone
there was welcome to read, that the Chattanooga plant
had all the benefits of a union, that voting in a union
would not do the employees very much good, but that
whether they did so was up to them. 6 2
An internal notation prepared by Denton and dated
July 8, 1981 (3 days before this meeting), sets forth, as
part of a "Plan to Follow," phasing out the second shift
"when production allows." Under the "second-shift"
entry are listed the names of alleged July 22, 1981 discri-
minatees Ellis, Jurrelle Griffin, Elroy Hawthorne, Hub-
bard, Prince, Varner, and Weaver, and also employee
Summers, who was still working for Respondent on
August 26, 1982, the last day of the hearing before me.
Under the "sugar dept." entry are the names of alleged
discriminatee Bush (terminated by a notice dated July 20,
1981) and alleged discriminatee Raborn, who was dis-
charged in May 1982 for reasons not alleged to be con-
nected to the late 1981 phaseout of the sugar cone de-
partment.
3. The July 12 union meeting; alleged further
interference, restraint, and coercion
On Sunday, July 12, at least 23 persons attended a 2:30
p.m. union meeting at the union hall. Among those
present were 10 alleged discriminatees who had been
separated on July 10; 63 six employees alleged to have
62 My findings in this paragraph are based on a composite of credible
parts of the testimony of Prince, Elroy Hawthorne, Bush, Ellis, Weaver,
and Turnbull. For demeanor reasons, I do not accept Turnbull's testimo-
ny that he said that he hoped there would be no more layoffs, and would
try not to have any, but did not really know.
8a3 Bates. Carolyn Caldwell, Finley, Peggy Fitzgerald. Bernice Has-
thorne, Huggins. Sisk, White, Wills, and Zackery
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been discriminatorily terminated thereafter (namely,
Bush, Ellis, Griffin, James Hawthorne, Prince, and
Varner), and also employee Summers. While the meeting
was in progress, someone said that General Production
Manager Hood was outside driving around. Willie Cald-
well, alleged discriminatee James Hawthorne, and Clar-
ence Fitzgerald Sr. went outside. They left the door
open, and alleged discriminatee Prince went to the door-
way and stepped outside. They saw a blue Chevrolet
driving "real, real slow" in front of the union hall. When
the driver saw the three men come out, he speeded up.
Hawthorne and Fitzgerald remarked that the driver ap-
peared to be General Production Manager Hood. Four
or five minutes later, the same car drove "real slow" in
the opposite direction on the street in front of the union
hall. By this time, Hawthorne, Fitzgerald, and Caldwell
had gone down the street to make a positive identifica-
tion, and Caldwell said that he knew the driver to be
Hood. Three or four minutes later, Hood drove slowly
by the hall in the opposite direction. Hawthorne, Fitz-
gerald, and Caldwell thereupon waved him down, and
he backed up and stopped. As he pulled in, he looked
toward Prince, who "took off inside."
Hawthorne asked Hood what he was doing there.
Hood said that he had just happened to drive by, that he
was trying to find the flea market. Caldwell said that the
flea market was two blocks away and a block over.
Hood said that he had brought one of his relatives to the
flea market. Hawthorne asked Hood why he wanted to
"kid around." Hood looked toward the union hall and
asked how it was going inside. Hawthorne said that he
had just got there. Hawthorne and Caldwell told Hood
that he was welcome to come in. Hood said that he was
in "kind of a rush," and had to go back to the flea
market. Inferentially, he then drove away. When word
of his presence outside circulated through the union hall,
an unidentified employee expressed apprehension about
whether to sign the attendance sheet. Also, Cooper ex-
pressed doubt about whether to sign the sheet "because
she wasn't so sure that she ought to have been there." 6 4
Cooper did sign, and apparently the unidentified employ-
ee signed also. Turnbull testified that he did not learn
about the holding of this meeting until 3 or 4 weeks
afterward, when he learned that Respondent was "going
to be liable for some charges by the NLRB" because
Hood had been seen in the vicinity of the union hall.
Turnbull further testified that when he "found out from
Tom Hood about Tom Hood on that situation, I had
very strong counsel with him regarding that." Hood,
who at the time of the hearing still worked for Respond-
ent, did not testify.
While employee Summers was attending this meeting,
his car, a black 1978 Pacer, was parked in the lot outside
the union hall. On the following day, General Produc-
tion Manager Hood told Summers to go talk to Denton
about the Union. Summers said, "Why? . . . She can't
fire me. I went to the union meeting on Sunday. It was
my own free time." Hood said, "Well, you need to talk
64 The General Counsel contends (but Respondent denies) that Cooper
was a supervisor during certain periods relevant herein (see infra sec.
II.J.la).
to her and talk to her now." Summers then called her on
the plant intercom, and asked her to go to Hood's office,
which is on the first floor. During the Hood-Summers
conversation, which took place on the third floor, Hood
told Summers to call him after Summers "got down
there"; but Summers did not.
When Summers met with Denton later that day, he
told her that he wanted to talk to her about the union
meeting. She said, "okay." He said that he had gone to
the union meeting on Sunday, which was his "own free
time," and that she could not fire him. She asked him
whether he had signed a union card. He untruthfully re-
plied no. She asked, "If a union came in, would you vote
for it?" He said no. (Summers honestly testified to the
belief that if a union came in, he would vote for it.) At
this point, Hood walked in, and remarked that "we don't
need a union in here." He and Denton then started to
engage in "sociable talking," whereupon Summers left
the office. 65
4. The bargaining demand and refusal
By letter to Respondent dated July 13, the Union
stated that a majority of Respondent's production and
maintenance employees had authorized the Union to act
as their bargaining representative, and offered to submit
proof of the Union's majority status to a mutually
agreed-upon third party such as a clergyman or a
member of the Federal Mediation and Conciliation Serv-
ice. The letter went on to request Respondent to recog-
nize the Union and to bargain with it. By letter to the
Union dated July 16, Respondent declined to recognize
the Union without a Board certification.
5. The allegedly discriminatory separation of Bobby
Bush
Bobby Bush was hired by Respondent in March 1970.
At the time of his separation, he worked as a mainte-
nance man on the cone machines, primarily on the first
floor. On June 29, 1981, while in a restaurant, he signed
a union card (which states that he was on the first shift)
and gave it to James Hawthorne. When Bush went to
the union hall with James Hawthorne and Willie Cald-
well on an undisclosed date, Hawthorne gave Bush some
blank cards which he distributed to employees Raborn
and Percy Ricks (both of whom signed on June 30),
Arvin Canada (who did not sign, so far as the record
shows) and others.6 6 About July 1, while Bush and Gen-
66 My findings in the last two paragraphs are based on the testimony
of employee Summers, who as of the end of the hearing was still work-
ing for Respondent. Hood still works for Respondent, but unexplainedly
did not testify. Denton denied asking Summers whether he would vote
for a union or had signed a card, and testified that he volunteered that he
had signed a card. She further testified that he said he was not joining
the Union, but was just "curious," and had gone to the meeting because
his wife or girl friend wanted him to go and see what was going on. Still
according to Denton, she and Hood told him that Respondent wanted
top-grade people, and their union sympathies made no difference. For de-
meanor reasons, and because of Hood's failure to testify, I credit Sum-
mers and discredit Denton. No contention is made that Hood's or Den-
ton's remarks to Summers violated the Act.
"a As of the April 1982 hearing, Arvin Canada, Ricks, and Raborn
were still in Respondent's employ. As discussed infra Raborn was dis-
charged in May 1982, allegedly for union activity and testifying before
the Board.
1338
TURNBULL CONE BAKING CO.
eral Production Manager Hood were in the basement
checking some spare parts at Hood's instance, Hood said
that he was afraid Bush was going to get terminated if he
did not go to the office and tell Wayne Turnbull that
Bush was sorry he had got "messed up with" the Union
and it was a mistake to go over to the union hall. Hood
went on to say that he did not want to get rid of Bush,
that he was a good employee and Hood liked his work.
Bush said that he would not do that, because he would
be lying if he did; and he did not go to see Turnbull.
Also in early July, Bush remarked to Hood that Clarence
Fitzgerald Sr. was a good worker and should not have
been fired, and that "it looked like if Wayne Turnbull
wanted a union he was going to get one." Hood said that
Fitzgerald had indeed been a good worker.6 7
Bush attended the July 12 union meeting, and signed
the attendance list there. About July 15, he went out of
town on vacation. While Bush was on vacation, Hood
approached employee Summers and said that Hood had
tried to talk to Bush, and get him to talk to Denton, over
Bush's "getting laid off," but Bush would not do it. 68
Upon Bush's return from his vacation about July 23, he
picked up at the post office, in an envelope postmarked
July 20, a separation notice also dated July 20, and stat-
ing that Respondent had ceased to employ him on July
15. The notice, signed by Mary Vane, contains under
"Remarks" the notation "Termination of Employment.
Production Phase-Out."
6. The allegedly discriminatory separations on July
22 (Donald Ellis, Jurrelle Griffin, Elroy
Hawthorne, Athelene Hubbard, Juanita Prince,
Wilma Ruth Varner, and Evelyn Weaver) and July
24 (James Hawthorne)
On July 22, Respondent issued separation slips effec-
tive that day to seven more employees-Donald Ellis,
Jurrelle Griffin, Elroy Hawthorne, Athelene Hubbard,
Juanita Prince, Wilma Ruth Varner, and Evelyn Weaver.
Like the July 10 and 20 separation slips, the July 22 sep-
aration slips were signed by Mary Vane. All of them
contained a handwritten entry, under "Remarks," "Ter-
mination of Employment due to production phase-out."
Those issued to Ellis, Griffin, and Elroy Hawthorne also
contained a check in the box before "Discharged." The
seniority dates of the employees terminated on July 22
ranged from 1965 (Weaver) to 1979 (Hubbard).
Turnbull testified that the second shift was eliminated
because Respondent needed no further cones and was be-
e; My findings in this paragraph are based on Bush's uncontradicted
testimony. Hood did not testify, although at the time of the hearing he
was still working for Respondent. Accordingly, and after taking into ac-
count Bush's demeanor and his interest in the proceeding as an alleged
discriminatee, I credit his testimony notwithstanding the statement in his
pretrial affidavit that no supervisors had discussed the Union with him,
and notwithstanding Hood's subsequent remarks to Summers about the
matter (see infra). Bush testified that he had promised Hood not to say
anything about their conversation. No contention is made that Hood's re-
marks violated the Act.
68 This finding is based on Summers' uncontradicted testimony Hood
did not testify.
69 Although during prior years Respondent had from time to time
stopped operating a second shift, the record indicates that the employees
were selected for layoff on the basis of their seniority in the work force
as a whole. and without regard to which shift they had been working on.
ginning to want to trim inventories in preparation for
moving to the new plant. He further testified that, in se-
lecting employees for this layoff, Respondent decided to
lay off the entire second shift, except that Cooper was
retained because she had been assigned to a sanitation
position in the new plant (although see supra sec.
II,A,10). There is no claim or evidence that Respondent
had previously made an effort to assign its least desirable
employees to the second shift; as previously noted,
during the July II employee meeting, Turnbull had de-
scribed all of the then-retained employees as the "cream
of the crop." 69 All of the persons included in the July
22-24 layoffs had signed union cards, as had Cooper,
who was retained. Elroy Hawthorne, who had been
working for Respondent since 1968, had been told by
Denton the preceding May that he would be working in
the packaging department in the new plant. When Hood
gave a separation slip to Weaver, whose seniority dated
from 1965, he said that "he was sorry it had to happen,
but it was out of his control, he couldn't have anything
to do about it, and . .. maybe some day [the laid-off em-
ployees] could work for him again."
A document on Respondent's letterhead states that, at
the time of the layoff, Griffin, Hubbard, Prince, and
Weaver were all "Packer Class #2," and Varner was
"Packer Class #3." Respondent's payroll records show
that Griffin, Prince, and Weaver were being paid at least
$4.75 an hour, the rate of "Packer Class #1," the top
rate-Griffin since April 1981,70 Weaver since July 7,
1981; and Prince since July 8, 1981.'1
By letter to James Hawthorne dated July 24, 1981,
Turnbull stated, inter alia, ". . . on Wednesday, July 22,
1981, we closed down our second shift operation and
permanently terminated all of the employees due to pro-
duction phase-out. We therefore are including you in
that process." Hawthorne had been working for Re-
spondent continuously since 1968, and had also worked
for Respondent for 22 months in 1953-1955. Because of
an on-the-job injury, he performed no work for Re-
spondent after about June 10, 1981. Before that time, he
had been performing machine maintenance on the second
shift. In late May 1981, Hawthorne had a discussion with
Turnbull about Hawthorne's low ratings and his "atti-
tude problems." Hawthorne understood from this coun-
seling session that his job would be jeopardized if he did
not improve. However, no contention is made that these
alleged deficiencies had anything to do with his termina-
tion.
70 Griffin's payroll record contains the entry "Class I Crackin Good."
Employee Wills testified that Respondent eventually stopped giving
raises to employees who were able to pack from this fourth-floor ma-
chine by themselves rather than (as previously) in pairs.
;1 In view of these records. I accept Prince's testimony that she quali-
fied on the combined machines, and discredit Denton's testimony other-
wise
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Respondent's work force after the allegedly
discriminatory separations in 1981
a. Proportion of union card signers remaining on
payroll immediately after the separations
Of the approximately 63 persons on Respondent's pay-
roll before the July 10-24, 1981 separations, about 36 had
signed union cards and about 27 had not. Of the approxi-
mately 35 persons on Respondent's payroll as of July 29,
1981, about 12 had signed union cards and about 23 had
not. 72 Of the 19 persons laid off on July 10, all of them
named in the complaint, all but 4 had signed union cards
(Baker, Capes, Huggins, and Wilcox); as previously
noted, Supervisor Denton had made a note that Wilcox
had been discussing the Union with Lee, who signed a
card and was also laid off on July 10. Of the 9 employ-
ees laid off between July 20 and 24, all had signed union
cards; after the July 1981 separations, Respondent re-
tained on its payroll all of the 4 employees named by
Denton as having told her that a union was organizing
employees. One of these (Payne) had signed a union
card, and (so far as the record shows) the rest had not.
b. Amount of work performed in old plant after the
allegedly discriminatory separations and before the
move
On an undisclosed date after the July 22 separations,
Respondent again started to operate a second shift at the
old plant.73 Turnbull testified that, at the time Respond-
ent effected these separations, Respondent anticipated
having to work persons overtime thereafter, and that
thereafter Respondent "occasionally" did so. Respond-
ent's Exhibit 23, discussed below, asserts that Respond-
ent ran overtime for 7 weeks, and went back to a regular
schedule the first week in September. After the July 22
separations and until the plant moved, Mark Raborn reg-
ularly worked 1 hour a day longer than previously, and
made cake-cone batter in addition to performing his pre-
vious duties of operating the sugar-cone machines. 74 The
record otherwise fails to show anything about how much
overtime was performed after the July 22 separations.
Turnbull testified that, some time in June 1981, he and
Dowling (who did not testify) prepared a computation
which led them to decide that "at some point in time,
when inventory dictated," running one shift 10 hours a
day would be cheaper than running a second shift. Turn-
bull testified that a document received in evidence as Re-
spondent's Exhibit 23 constituted a summary, submitted
to the Board's Regional Office in the course of the inves-
tigation of the August-September 1981 charges, of the
June 1981 computation. However, Respondent's Exhibit
23 tends to impeach Turnbull's testimony about his con-
ference with Dowling. Because the original documents
72 These figures include floorladies but do not include admitted Super-
visors Denton and Broadwell or other admitted supervisors.
73 This finding is based on employee Raborn's testimony. In the ab-
sence of supporting company records, and for demeanor reasons, I do not
credit Turnbull's testimony that, after these separations, Respondent
never operated a second shift at the old plant.
74 My finding in this sentence is based on Raborn's testimony. For de-
meanor reasons, I do not accept Turnbull's testimony that about July 20
Respondent shut down its sugar roll cone machines.
from which the exhibit was allegedly prepared have al-
legedly been destroyed, whether it accurately reflects
such documents can be tested only on the basis of other
record evidence. This evidence shows that Weaver was
receiving $4.45 an hour until July 2, 1981, when her rate
was increased to $4.85; but Respondent's Exhibit 23, al-
legedly summarizing a document prepared in June 1981,
assumes the $4.85 rate. This evidence further shows that
as of April 8, 1981, employee Griffin was being paid
$4.75 an hour, but the document assumes, in effect, that
her hourly rate was no more than $4.15. Moreover, the
record shows that employee Pierce was in the shipping
department until after the July 22, 1981 terminations as-
sertedly based on Respondent's Exhibit 23's underlying
documents; but the exhibit represents, in effect, that he
was already performing production duties. Furthermore,
Turnbull's testimony shows that Supervisors Denton and
Yvonne Broadwell were hourly paid and received time
and a half for overtime; but Respondent's Exhibits 23
states that overtime work did not involve extra wage
payments to them because they were salaried. Moreover,
Respondent's Exhibit 23 does not really purport to show,
as Turnbull testified it did, the relative cost of running
one shift 10 hours a day and running a second shift.
Rather, the document in fact purports to contain cost es-
timates of running one shift with five packers working 50
hours a week, one packer working 45 hours a week, and
four machinists working 51 to 55 hours a week; as com-
pared to running a second shift with five packers work-
ing 42 or 45 hours a week and four machinists working
53 to 55 hours a week. Also, the document contains
rather more arithmetical and related errors than would
be expected in a document on which a decision of such
importance was to be based.75 Further, Turnbull's pre-
hearing affidavit subscribed to a letter to a Board investi-
gator from Respondent's labor relations adviser which
stated that Respondent had abandoned the second shift in
July 1981 because it had been rendered unnecessary by
Respondent's "highly increased productive capacity" at
the new plant. However, Turnbull testified that all pro-
duction was performed at the old plant until September
15, 1981, after this letter was written; that the move was
not completed until about Christmas 1981; and that Re-
spondent began a second shift at the new plant in late
February 1982. Moreover, as previously noted, Turnbull
admittedly told the employees on July 11, 1981, that he
hoped there would be at least two shifts at the new
plant. Accordingly, I reject Turnbull's testimony regard-
ing his alleged June 1981 conference with Dowling. Fur-
ther, I accord no weight to Respondent's Exhibit 23 to
the extent that it purports to set forth the amount of
overtime worked after the July 22 terminations.
75 Thus, the document contains internally irreconcilable estimates of
Pierce's wages for a 41-hour and a 51-hour week. Also, the document
contains arithmetical errors with respect to the total cost of packers'
wages for a first shift of 45-50 hours and the difference between such
wages and the wages for a 40-hour week.
1340
TURNBULL CONE BAKING CO.
c. Hires and terminations after the July 1981
separations
Respondent's Carter Street plant was Respondent's
sole production site until about September 15, 1981,
when Respondent began to move machinery to the Par-
menas Road plant and to manufacture cones there. By
about Christmas 1981, all of Respondent's production
was being performed at the Parmenas plant, and the only
employees working at the Carter Street plant were
"scavenging" machinery, fixtures, and electrical equip-
ment from that plant. As of late April 1982, Respondent
was running 14 cake-cone machines-2 banks of 6 ma-
chines each, and 2 side machines. Turnbull testified that
in late April 1982, because of capital constraints, Re-
spondent had no plans to put in the four additional cake-
cone machines which Respondent had intended as of
January 1981 to install in the new plant. The August
1982 record indicates that no additional cake-cone ma-
chines had in fact been installed. Also in late April 1982,
Turnbull testified that Respondent then needed 8 produc-
tion employees (exclusive of machine operators and
batter mixers) per shift to operate 2 6-machine banks, and
expected within a few weeks to eliminate 2 temporary
inspectors; whereas operation of 12 machines at the old
plant would have required a minimum of 14 production
workers per shift. On cross-examination, he testified that
the employee complement at the new plant on the first
and second shifts, when at least 12 machines were oper-
ating, was 14 per shift; utility person Mary Coots testi-
fied that in late August 1982 8 persons (inferentially in-
cluding a machine operator and a batter mixer) were
being used to run one 6-machine bank. Turnbull testified
that in April 1982 Respondent had bought a new sugar
roll cone machine which would be installed in a few
days.
Respondent began to operate a second shift at the new
plant about late February 1982. During at least most of
the time thereafter, Respondent operated at least 12 ma-
chines on each of these shifts. On March 29, 1982, Re-
spondent initiated a third shift (a technological impossi-
bility at the old plant) during which six machines were
operated. As of April 28, 1982, five persons were work-
ing on that shift. 76 As of early May 1982, seven produc-
tion persons were working on that shift. As of late
August 1982, following a layoff earlier that month, six
production persons were working on that shift.
Two "Class 1" cone packers who were retained after
the July 1981 separations were terminated, for undis-
closed reasons, in September 1981 and March 1982, re-
spectively. After the July 1981 separations, Respondent
hired no full-time employees until late February 1982. 77
Between late February and late August 1982, Respond-
ent hired 45 to 50 employees, all as temporary employ-
ees, a classification found ineligible to vote in the Sep-
tember 1982 election. These hires included five employ-
ees (Lee, Cranmore, Griffin, Prince, and Varner) whose
discharge is attacked in the complaint; in addition, job
"I This finding is based on Turnbull's testimony. It is unclear whether
he was referring to production workers only.
77 One male part-time employee worked, in an undisclosed capacity,
for a 3-week period ending in mid-October 1981.
offers were made to alleged discriminatees Weaver and
Hubbard. 78 Of these seven employees, the first two who
received job offers (which they accepted) were cone
packers Lee and Cranmore. As previously noted, Re-
spondent contends that practically all the persons sepa-
rated on July 10 were selected for separation because of
alleged deficiencies in their employment characteristics,
but that the individuals separated later that month were
selected for separation solely because they happened to
be on the second shift. At the time Lee and Cranmore
were rehired, the parties had been discussing a settlement
(signed by Respondent, but eventually rejected by the
General Counsel and/or the Union) which did not call
for preferential hiring of the alleged discriminatees (in-
cluding Lee and Cranmore) who had been laid off on
July 10, 1981. While this proposed settlement was pend-
ing, the General Counsel told Respondent's labor rela-
tions advisor, Cy G. Lowe, that the Union was upset
about Lee's and Cranmore's rehire, and that this was
militating against the possibility of settling the case.
Thereafter, Denton told Lowe that she was not familiar
with his efforts to settle the case, and that she had re-
called Lee and Cranmore because they were familiar
with the work to be done, which (she told him) consist-
ed of using up the old packaging material. Lowe told
Denton to terminate them in order to avoid hampering
efforts to settle the case. Both of them were terminated
on March 3, 1982. Between March 3 and 10, 1982, Re-
spondent sent letters to three (Griffin, Prince, and
Varner) of the five cone packers whose July 22, 1981
separation is attacked in the complaint. These letters
read, in part:
Several jobs are beginning to open and we are
pleased to ask you if you'd like to return on a tem-
porary basis.
The job will be, at present, on the second shift,
however, we'll need your assurance that you'll be
willing to be transferred to the third shift around
April Ist.
The March 10 letters to the remaining cone packers
(Hubbard and Weaver) whose July 22 separation is at-
tacked in the complaint state, in part:
We are anticipating a few job openings beginning
early April and are pleased to ask you if you'd like
to return to fill one of these positions. These jobs
will be on a temporary basis and will be for the
third shift.
Because Weaver was employed elsewhere, she reject-
ed the work so offered her. Hubbard did not accept the
work offered her. 79 The remaining three employees
acepted the offer. Before beginning work, each of them
signed the following typewritten statement, under Re-
spondent's letterhead:
78 No contention is made that any of these seven individuals was ever
offered reinstatement.
79 Turnbull testified that, so far as he knew, she did not respond at all.
The copy of her letter received into evidence contains the notation, in an
unidentified handwriting, "Called Mar. 15th wants to return when all
back."
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Temporary Work.
I understand that this job is on a temporary basis
and it has been explained to me that this assignment
may end at any time, and that this assignment is for
the interim period covering start up of the new pro-
duction lines.
Griffin returned to work on March 8, 1982, and as of
April 27, 1982, was still working for Respondent. Prince
returned to work on March 15, 1982, and was laid off on
April 20, 1982. Her pay rate was $4.10, the rate of a
"new girl," rather than the Class I pay of $4.75 (plus
shift differential) she had been receiving before her July
1981 separation. While working for Respondent in 1982,
she worked on the cartoner, on the taper, and on the
transfer line, all of them jobs which continued to be per-
formed in the plant after her April 1982 layoff. In addi-
tion, she worked on the counter before it was replaced
by an automatic counter. The second-shift supervisor
told her that she was "doing fine." Griffin credibly testi-
fied that she had no more trouble with any of these jobs
than anyone else. Denton testified that Griffin did an ex-
cellent job for what Respondent had her to do. I per-
ceive no factual predicate for Denton's testimony that
Prince was unable "to do the automation."
Varner returned to work on March 8, 1982, and
worked that day. Because of a migraine headache, on
March 9 she called in sick and did not work. When she
returned to the plant on March 10, Denton asked her
whether she was still drawing unemployment compensa-
tion. Varner said yes. Denton said that because Varner
would only be working at the plant for a week or two,
she could take a layoff at that point and thereby continue
to draw her unemployment compensation. Varner said
that she would take an immediate layoff. She thereupon
signed a typewritten statement, dated the preceding day
(March 9), that she had quit because the work to which
she had been assigned was too hard. She had in fact been
assigned on March 8 to do the same job which she had
performed before her July 1981 layoff.
The work which had to be performed at the time Re-
spondent started to hire these "temporary employees" in-
cluded cleaning out old packaging materials. However,
the "temporary" employees also performed the same
production work as the production workers who had
been transferred from the old plant. Turnbull testified in
August 1982 that when hiring 45 or 50 people as "tem-
porary" employees, Respondent knew that it would need
that many "for startups," and would probably end up
with 10 or 12 "really good people that we would want
to look at keeping." At the end of May 1982, Respond-
ent gave wage increases to seven or nine of the employ-
ees hired as "temporary" employees, and (Turnbull testi-
fied) "they were qualified as permanent employees at
that point." When asked in April 1982 why Respondent
had hired inexperienced people from off the street when
experienced employees were on layoff status, Turnbull
testified that the work to be performed was "temporary
work" (although he admitted that these "temporary" em-
ployees were "working on the production lines in vari-
ous capacities where they're needed"). When asked sub-
stantially the same question in August 1982, Turnbull tes-
tified "when we did that, we had some problems with
the National Labor Relations Board" (referring to the
events, all of them before the settlement-negotiations col-
lapse preceding his first testimony, which had led to job
offers to all the cone packers whose presence on the
second shift had allegedly caused their selection for
layoff). When the General Counsel suggested to Turn-
bull, in April 1982, that Respondent recall the laid-off
sugar roll cone employees to work on the new sugar roll
cone machine which was about to be installed, Turnbull
in effect conceded that such laid-off employees were
good workers, and that the skills which they would have
to acquire on the new machine were different from those
they had allegedly failed to acquire on the ganged cake-
roll machines; but there is no evidence that such laid-off
employees were ever recalled.
The July 22-24, 1981 separations attacked in the com-
plaint included four employees (Bobby Bush, Donald
Ellis, Elroy Hawthorne, and James Hawthorne) who
were not cone packers. Turnbull testified in April 1982
that he had not offered employment to these four men
because they were in the category of "baking operators,
batter mixers, or machinists"; Respondent "had no new
men in the baking operation since the layoff of July 22,
1981"; and Respondent had "hired no new people" for
these jobs. The record shows that, after this layoff, Re-
spondent hired nobody directly into any of these jobs.
At the time of employee Ellis' July 22 separation, he
was Respondent's only batter mixer, a function essential
to Respondent's production. After Ellis' discharge, em-
ployee Pierce was transferred from the shipping depart-
ment to batter mixing, a function which (so far as the
record shows) he had never performed before. Pierce
trained employee Raborn, who had been operating the
sugar roll cone machines, to make cake-cone batter; and
about late October 1981, Raborn started acting as batter
mixer at the new plant. Pierce worked as batter mixer at
the old plant until his discharge on December 11, 1981,
for reasons not shown by the record. Just before the
April 1982 transfer of employee Raborn from batter
mixer to machine operator, "temporary" employee
Wanda Hicks, who had been hired a few weeks earlier,
was trained to replace him as a batter mixer; and about
early May 1982, she trained an unidentified "girl" as
batter mixer.
The jobs performed at the old plant by the other three
men included in the July 1981 layoffs were rather similar
to the jobs performed by the cone machine operators at
the new plant. For undisclosed reasons, baking opera-
tor/machine operator Wallace White was terminated on
March 8, 1982. Raborn was transferred from batter mixer
to machine operator in April 1982, and was discharged
in May 1982 for reasons not claimed to be lack of work
(see infra sec. II,H,J,3,b(l)). In addition, between Febru-
ary 1982 and late August 1982, former shipping depart-
ment employee Ernest Maxwell was trained as a batter
mixer and (perhaps) a machine operator; former shipping
department employee Johnny Hennessee was trained as a
machine operator; and David Swann (who was classified
at the old plant as a "baking operator" and initially
worked at the new plant as a machine operator) was
1342
TURNBULL CONE BAKING CO.
trained as a batter mixer and then as a packaging-ma-
chine operator.
As of March 22, 1982, Respondent had in its employ a
total of about 53 persons, about 23 of whom had not
been working for Respondent before the July 1981 sepa-
rations. Just before those separations, Respondent had
about 63 persons in its employ.80
F. The Representation Petition; the Request to
Proceed; the Floyd-Pierce Conversations
On July 27, 1981, the Union filed with the Board's Re-
gional Office a representation petition in which the
Union sought certification as the bargaining representa-
tive of Respondent's production and maintenance em-
ployees. Under the Board's blocking-charge practice, the
instant unfair labor practice proceeding suspended proc-
essing of the petition.
On December 11, 1981, for reasons not shown by the
record, Respondent discharged employee Pierce, who
had signed a union card on June 25, 1981. A month or
two after his discharge, Pierce telephoned Jerry Floyd,
who was allegedly a supervisor (see infra). In an effort to
gain favor so Floyd would help Pierce get his job back,
Pierce said, ". . . what if there were some people still
working there that were involved with the Union?"
Floyd said that this was "interesting." Floyd gave the
same response to Pierce's remark, ". . . what if there
were some people there that were bringing drugs on the
job?" Floyd asked who these unionists and drug-bringers
were. Pierce said that he would call Floyd back. Howev-
er, because Pierce started to suffer from a guilty con-
science about betraying the union activity of his friends
at the plant, he did not call back.
On a date between March 13 and 16 (see infra fn. 81),
when Pierce returned home, his sister told him that
Floyd had telephoned and wanted Pierce to return his
call. When Pierce did so, Floyd said that he thought
Pierce was going to call back and tell him about the
Union, which Floyd described in deprecating language.
Pierce gave him no names, but did give physical descrip-
tions, after which Floyd stated the names of the employ-
ees in question. One of the employees described by
Pierce was Mark Raborn, and Floyd responded to this
description "right off" by saying "Mark." Pierce also
thus identified employees White (terminated several days
earlier, on March 8; Floyd remarked that White was
"gone") and Marvelene Hamler, terminated on March
17.81 Then, Floyd thanked Pierce and said that if Re-
spondent started calling anyone back, Floyd would see if
Pierce could not be one of the first ones called back.
However, Pierce had not been called back as of late
August 1982, when he testified before me.
On March 24, 1982, the Union filed with the Board a
request to proceed with the election notwithstanding the
pending unfair labor practice charges herein.
sO These figures exclude persons identified as supervisors on G.C.
Exhs. 16-18.
Si No contention is made that her termination was unlawful. I refer to
its date in order to establish the time frame of this Pierce-Floyd conver-
sation.
The parties stipulated that on July 29, 1981, Floyd was
working for Respondent as a supervisor. Turnbull testi-
fied that, on that date, Floyd was a supervisor over three
or four men in the shipping department, but that as of
April 28, 1982, there was only one person in the shipping
department.
While working at the old plant before Pierce's dis-
charge on December 11, 1981, Floyd wrote up load
sheets and bills of lading, contacted "Hertz" about the
trucks, and ran the shipping department. While Pierce
was working there, Floyd was supervising employees
Hennessee and Maxwell. At the time of the first Pierce-
Floyd telephone conversation, Floyd was still working at
the old plant with Hennessee and Maxwell. The second
Pierce-Floyd conversation occurred when Floyd was
working at the new plant, where he had an office which
had a door connecting with Turnbull's office and was
equipped with a desk and telephone for Floyd's use. At
the new plant, Floyd at least sometimes physically
loaded tractor-trailers. After moving to the new plant,
Maxwell initially worked at the warehouse, inferentially
under Floyd. On March 29, 1982, when the third shift
was instituted, Maxwell was transferred from the ware-
house to making batter on that shift. By August 26, 1982,
Hennessee was running machines on the third shift. On
that date, employee Summers credibly testified that
someone named "Chuck" "used to" work in shipping
with Floyd;82 and that a male employee, whose name
Summers did not know, worked with Floyd in the ship-
ping department. I conclude that the record preponder-
antly shows that Floyd was a supervisor during his two
conversations with Pierce.
G. The Allegedly Discriminatory Discharge of Nella
Broadwell; Alleged Further Interference, Restraint,
and Coercion
In late February 1982, Supervisor Yvonne Broadwell
asked her sister-in-law, Nella Broadwell, whether she
wanted to come to work for Respondent "temporarily"
for 30 or 40 days. Nella said that she would, and report-
ed to work about February 26. She worked a full day
before filling out an application form and signing a form
which, inferentially, stated that she was a temporary em-
ployee only.
Each conveyor line at the new plant conveys cones
produced by a group of six machines tended by a single
machine operator. Beginning about early March 1982,
Nella Broadwell was a first-shift inspector on Line 2,
with some duties on Line 1. About April 1, 1982, Raborn
became the first-shift machine operator on Line 2. Sum-
mers was the first-shift machine operator on Line I
during most of this period, but he sometimes operated
the Line 2 machines. On April 4 and 6, 1982, subpoenas
to testify before me on April 13, 1982, were received by
Summers and Raborn, respectively. On Friday, April 9,
they showed the subpoenas to General Production Man-
ager Hood, and told him that they would have to be
"off" for the hearing. In April 1982, and inferentially
82 Probably about late March 1982, an employee named Charles Wa-
gensen started to work for Respondent.
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after these employees' report to Hood, Yvonne Broad-
well told Nella Broadwell that Raborn and Summers
would lose their jobs because they were testifying for the
Union, and that Raborn, especially, would lose his be-
cause "they thought he was an informant." 8 3 Nella asked
why "they" would do that. Yvonne replied, "Well, that's
just the way the Company does." 8 4
During this same period, Nella telephoned Yvonne
that Nella had heard she was to be subpoenaed to testify
in the instant proceeding, and asked whether she had to
go. Yvonne replied yes, if she were subpoenaed. Nella
said that she knew nothing about the case. Nella was
subpoenaed, and came to the April 1982 hearing,8 5 but
did not testify until the following August, when she testi-
fied in connection with, inter alia, her own April 22 dis-
charge.
The cone inspector is supposed to tell her machine op-
erator if a particular machine is producing overcooked,
undercooked, or otherwise defective cones. Production
Manager Denton and utility person Coots, as well as
other witnesses for both the General Counsel and Re-
spondent, credibly testified that a cone inspector is ordi-
narily permitted to talk to other employees while she is
working, so long as she remains at her work station. A
machine operator's work station is about 3 feet from the
work station of the inspector on his own line, but may be
50 to 100 feet from the work station of the inspector on
other lines. From time to time, when a machine opera-
tor's machines are all functioning properly and none of
the other employees needs assistance, he has no work
duties to perform. During such intervals, he is ordinarily
free to talk to any inspector he wishes.
After becoming a cone inspector in early March 1982,
Nella talked from time to time with Summers about mat-
ters which included but were not limited to job prob-
lems. After Raborn became the machine operator on
Nella's line in mid-April 1982, from time to time she en-
gaged in similar conversations with him. These conversa-
tions with Summers and Raborn were more frequent
when they were working on Nella's line. Laying to one
side alleged April 9 and 16 incidents, discussed infra,
there is no evidence that Nella was engaged in such dis-
cussions during working hours in locations other than
her work station. During a telephone conversation initi-
ated by Nella Broadwell, Yvonne Broadwell asked Nella
to stop talking to Summers and Raborn so much. Nella
said that General Production Manager Hood should tell
that to Summers and Raborn.86
s9 Because of a hearing continuance due to Turnbull's unexpected hos-
pitalization, Raborn and Summers did not testify until April 27, 1982.
Yvonne Broadwell testified for Respondent on the following day.
84 My findings as to the conversation between the Broadwells are
based on Nella's testimony. For demeanor reasons, I do not credit
Yvonne's denial.
as She was sequestered during the April 13 session, which preceded
her discharge, but attended at least part of the April 26-29 session, after
her discharge.
86 Yvonne Broadwell testified that she made this remark because em-
ployee Nina Clark, who was supposed to move cones to another belt
after Nella had inspected them, had complained that too much scrap was
coming down in the cones. Clark testified for Respondent, but was not
asked whether she had made any such complaints at this time.
Thereafter, on April 16, while Nella Broadwell was
standing in her usual work area, Yvonne Broadwell ap-
proached her and told her that Denton had sent Yvonne
back there to tell Nella that she was spending too much
time off her job. Nella said, "Where have I been? . . . I
haven't been anyplace." Yvonne said that she did not
know, that Denton had asked Yvonne to look toward
Nella but Yvonne had not seen anything. Nella said,
"Well, okay, I won't be off my job." Yvonne then left
the area. 8 7
Immediately after Yvonne's departure, Summers,
whose Line I machines were working properly, came
over to Nella on Line 2 and asked what was wrong.
Nella said that Denton had sent Yvonne over to tell
Nella that she was spending too much time off her job,
and that Nella had been forbidden to talk to him and
Raborn. Summers said, "Well, it's only because I'm
here." s s8 The two continued to chat for 5 or 10 minutes,
during which period Nella continued to work.
About 15 minutes later, Yvonne approached Nella and
said that Denton was reading Nella's lips. Yvonne went
on to say that Denton had said, "Look, [Nella's] telling
Jerry [Summers] she can't talk to him." Nella said that
she had not been telling Summers that, and asked to talk
to Denton. Yvonne said that Denton thought Nella and
Summers were talking about the Union. Yvonne said that
she would get Denton back there, but told Nella not to
mention the Union to Denton. Nella said that she would
not. 89
When Denton approached Nella a few minutes later,
Nella said that she had not been off her job. Nella said,
"You might have seen me walk away one second," stuck
up a finger, and said, "One time, when I wasn't doing
my job."90 Denton gave her a look which Nella inter-
preted as accusing her of telling a story. Nella again
stuck up her finger and said, "One time." Nella asked
Denton to tell things to Nella directly instead of sending
messages. Denton agreed to do so.91
On the following day, a Saturday, Nella telephoned
Denton, said that she thought there was more to "this"
than just spending time off her job, and asked what was
87 My findings in this paragraph are based on credible parts of the
Broadwells' testimony. For demeanor reasons, I do not accept Denton's
testimony that this incident occurred about April 9, and that Nella had
been talking about 50 feet from her work area with Raborn, Summers,
and Line I inspector Leila Moore. Cf. infra fns. 90, 91, and attached text;
see also infra fn. 110.
87 My finding in this sentence is based on Nella's testimony, which was
not received to establish the truth of Summers' assertion.
89 My findings in this paragraph are based on a composite of credible
parts of the Broadwells' testimony. For demeanor reasons, I do not credit
Yvonne's denial of the remark about lip reading.
90 On this occasion, Nella had walked back and said something to
Moore, the inspector on Line 1.
s1 My findings in this paragraph are based on Nella Broadwell's testi-
mony. Denton testified that Nella said that she had been wrong to leave
her machine and asked Denton to tell Summers and Raborn not to talk to
her. Still according to Denton, she said that she would have General
Production Manager Hood talk to Summers and Raborn, and in fact so
requested Hood a few minutes later. Hood did not testify, and Raborn
denied that Hood gave him such instructions. Denton did not testify that
she took any action with respect to inspector Moore, who according to
Denton had taken part in the alleged Summers-Raborn-Nella conversa-
tion (see supra fn. 87). For demeanor reasons, I credit Nella Broadwell
over Denton as to the conversation described in the attached text
1344
TURNBULL CONE BAKING CO.
actually involved. Denton said, "Nell, I can't say that
word." Nella said, "Well, I think you think that we're
talking about a union." Denton said yes, that "I have so
much trouble back there in the back that I have to con-
stantly keep my eye on it.... I just can't take any
chances." Nella said that she and Summers had not been
talking about a union. Denton said that "they" had al-
ready got Leila Moore on "their side" (cf. supra fns. 87,
90), that Denton had been speaking of Raborn and Sum-
mers, and that Mark Raborn and Summers had ap-
proached employee Wanda Hicks.9 2
On April 21, a fellow employee on the same line as
Nella told her that Denton had said something about the
two employees talking. That evening, Nella again tele-
phoned Denton and said, ". . . evidently, this thing is
still on your mind." Denton said that it was, and told her
not to say even "good morning" to Summers and
Raborn, because "it would just encourage them." Nella
said, ". . . if you don't want me talking to the boys or
the boys talking to me, I won't go out of my way or out
of my area; but you'll have to tell them to not come
where I am." Nella said that Denton did not have to
worry about her talking about a union, because Nella
"wouldn't have any part of a union." During this con-
versation or the conversation described in the preceding
paragraph, Denton told Nella to tell Summers and
Raborn that they had work to do, to which Nella replied
that this was not her place.9 3
After clocking in on the following morning, April 22,
Nella Broadwell went by the office and asked Denton
whether everything was "cool." Denton said yes. Nella
asked whether Denton had told Raborn and Summers
not to talk to Nella. Denton said that General Produc-
tion Manager Hood had told them (cf. supra fn. 91).
Nella then went to her work station. Raborn came over
and Nella asked him whether Hood or Denton had told
Raborn and Summers not to talk to Nella. Raborn said,
"No, why?" Nella said, "Well, I can't talk to you, but
Betty or Tom is to talk to you and tell you why." Later
that morning, Nella again asked Raborn if Hood or
Denton had said anything to Raborn about not talking to
Nella, and Raborn again said no.9 4
92 A notation by Denton dated April 21 states, inter alia, that Hicks
had said that "Mark was talking to her about union."
My findings as to the April 10 Nella-Denton telephone conversation
are based on Nella's testimony. Denton testified that Nella said that she
felt Denton did not want Nella to talk to Summers, Raborn, and Moore
because Denton thought they were "talking union"; Denton said that she
was not allowed to say that word, did not even think about it. and did
not want to talk about it; Nella said that the three employees were not
talking about the Union; Denton said that she did not care, so long as
Nella's job was taken care of and she did not leave her work area; Nella
asked Denton to tell Summers and Raborn not to talk to Nella; and
Denton said that she would again ask Hood to tell that to Summers and
Raborn. Still according to Denton, she thereafter brought the matter up
again with Hood (but see supra fn. 91). For demeanor reasons and in
view of Denton's notation about Raborn and Hicks, I credit Denton's
version of this conversation only to the extent that it is corroborated by
Nella Broadwell.
91 My findings in this paragraph are based on Nella Broadwell's testi-
mony. For demeanor reasons, I do not accept Denton's testimony that no
telephone conversation took place on April 21. or that Nella never said
she was not going to have anything to do with the Union
"9 My findings as to the Raborn-Nella conversations are based on her
testimony, which was not received to show whether Raborn had in fact
received such instructions. Cf. supra fn. 91.
That morning, Denton and employee Clark w ere
working together, at least off and on, at a point on
Nella's conveyor belt beyond her work station and
within her field of vision. As they worked, they were
laughing and talking together. Late in the morning,
Broadwell approached Denton and said, "Betty, what is
this? . . . Y'all have been running your mouth all morn-
ing, and I'm back here, I'm not even allowed to say
good morning to the people who work around me ....
Y'all have been talking all morning long." Denton said,
"We're doing our job." Nella said that she had been
doing her job, too; and that if Denton said otherwise, she
was telling a "damn lie." Denton said that the fact that
some cones were coming down backwards showed that
Nella was not doing her job. Nella replied, "Betty, that's
not true and you know it." Nella then returned to her
work station. During this conversation, Nella placed her
hands on her hips, and made no menacing gestures. She
raised her voice above normal (but did not shout) and
put some hostility into it; she was admittedly "very per-
turbed."9 5 It is uncontradicted that cones on the convey-
or belt sometimes "flip over," and assume a backwards
position, after leaving the inspector's work station.
After this incident occurred, Denton went to Turn-
bull's office. Denton testified that she told him she was
going to fire Nella Broadwell for insubordination and he
said, "Go ahead." Turnbull testified that Denton said
that she did not know what to do, that Nella Broadwell
had called her a few profane words including "god-
damn," and that there was a problem because of Nella's
kinship with Yvonne Broadwell. Still according to Turn-
bull, he told Denton to make her decision without regard
to kinship, she said that she thought Nella should be dis-
charged, and he said that he would back Denton on
whatever she decided to do. Sales Manager Sanderbach,
who according to Turnbull was present during this con-
versation, was not called as a witness. Turnbull further
testified that about noon, Denton told him that she had
called in a second-shift inspector to replace Nella, and
was terminating her and paying her for the day as soon
as the replacement came in. Denton was not asked about
this noontime conversation.
Nella continued to work until the time when she nor-
mally went to lunch. Yvonne then came to Nella's work
station, took Nella's place and said, "Go on, now." Nella
asked where she was going. Yvonne said, "Break, I guess
.... Go on." Nella then walked in a direction which
led her past the production office. As she neared the
office, an unidentified employee pointed toward her.
Denton, who was in the office, nodded her head. Nella
stopped at the office door and asked whether Denton
had something for her. Denton opened the desk drawer,
took out an envelope containing Nella's paycheck and
termination slip, and gave them to Nella. The termina-
tion slip stated that Nella had been discharged for insub-
ordination. Denton said that Nella had done this to her-
self, that her work was good, and that Respondent had
95 My findings as to this incident are based on Nella's testimony and
credible parts of Denton's and Clark's testimony. For demeanor reasons,
I do not credit Denton's and Clark's version of the conversation, or their
description of Broadwsell's tone of voice and gestures
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no intention of laying her off. Nella said, "Betty, if
you stop and think about this, how do you think I felt
back there, this rule, like, just applied to me?" Nella said
that she was a "victim of circumstances," and that if she
had not been working in that position, this would never
have happened. Denton agreed that this was probably
true.9 6
In July 1982, Nella told Turnbull that she had told
Denton that Nella was doing her job, and had further
told Denton that if she said otherwise, she was telling a
"damn lie." Nella told Turnbull that she felt as if she had
been wrong in losing her temper and cursing Denton,
and that Nella had been "very mad" at Denton personal-
ly and still disliked her. Turnbull said, "I know. We all
get mad." Nella said that she held nothing against Turn-
bull or Respondent because of what was taking place,
and asked whether there were any hard feelings between
Turnbull and herself. He said no. Nella asked if Re-
spondent would rehire her if she applied. Turnbull said
that he and Sales Manager Sanderbach would possibly
reconsider it. 7 She said that she was thinking about
dropping her charges in order to prevent her sister-in-
law, Yvonne Broadwell, from entertaining hard feelings
against Nella, and asked whether withdrawing the
charges would make any difference. Turnbull said that
she should do whatever she felt she ought to do, that it
made no difference to him.98
H. The Allegedly Unlawful Discharge of Mark
Raborn
I. Events leading up to Raborn's discharge
Mark Raborn began working for Respondent on De-
cember 31, 1979. Until an undisclosed date after the July
1981 terminations, he operated the sugar cone roll ma-
chines, including making batter therefor, under Hood's
supervision. In August 1981, at Hood's request, Raborn
learned how to make batter for the cake cone machines.
Thereafter, and until about the end of March 1982, he
worked as a batter mixer.99
About late March 1982, Raborn began to train other
employees (including Swann, Maxwell, and Hicks) to
make batter. Hicks credibly testified that Raborn was
very cooperative as a trainer, and did everything she
asked him to do. On April 14 (see infra fn. 110), Raborn
began helping Summers operate the Line I cone ma-
chines on the first shift. A week later, Raborn was as-
signed to operate the Line 2 machines on the first shift.
Line 2 cone inspector Nella Broadwell credibly testified
that Raborn was always very good about helping her,
'9 My findings in this paragraph are based on Nella's testimony partly
corroborated by Denton. To the extent that their testimony differs, for
demeanor reasons I credit Nella.
9 Respondent's labor relations adviser had told Turnbull not to make
her any promises.
g9 My findings in this paragraph are based on a composite of credible
parts of the testimony of Turnbull and Nella Broadwell. For demeanor
reasons, I do not accept Turnbull's testimony that Nella said she had used
"some abusive words" to Denton but did not tell him exactly what they
were.
99 While operations were being moved to the new plant, he assisted in
the move, helped out the pipefitter, and performed various odd jobs.
and she never complained to management about his
work.
As previously noted, in mid-March 1982 former em-
ployee Pierce told Supervisor Floyd, at Floyd's urging,
that Raborn was involved with the Union. On April 9,
Raborn advised General Production Manager Hood that
Raborn had been subpoenaed to testify at the instant
unfair labor practice hearing. Supervisor Yvonne Broad-
well told employee Nella Broadwell that Raborn would
lose his job because he was going to testify for the Union
at the trial. Raborn attended the unfair labor practice
hearing on April 13. On April 16 and 17, Supervisors
Yvonne Broadwell and Denton told employee Nella
Broadwell that Raborn was thought to be making favor-
able remarks to other employees about the Union, and
urged Nella not to talk to him. On April 21, Denton put
into Raborn's file a memorandum which stated, inter alia,
that employee Hicks had said that Raborn was talking to
her "about union" and had said that he hated Denton be-
cause she was "the cause of the other people getting
[laid] off " 1° ° The representation case hearing was held
on April 23, 1982. Raborn attended the unfair labor prac-
tice hearing on April 26, 1982, when his union card,
dated June 30, 1981, was received into evidence. On the
following day, April 27, 1982, he testified on the General
Counsel's behalf. A few days later, Hood told him that
Hood hated to do it, but he was going to have to trans-
fer Raborn from the first to the third shift. Raborn was
so transferred effective as of the shift which began at 10
p.m. on Thursday, May 6, and ended at 7 a.m. on
Friday, May 7.101
When Raborn reported for work on the evening of
May 6, floorlady Mary Coots told him that he was sup-
posed to act as both inspector and operator with respect
to the six machines which ran during the third shift.
Raborn told her that he was unable to perform both
functions, and that another employee was needed to act
as inspector; Turnbull testified that acting as cone inspec-
tor with respect to six machines was a "full-time job."
Coots said that she had been told to give Raborn such
instructions (without saying who had given them), that
she agreed he could not perform both functions, and that
she had tried to get "them" to assign an inspector, but to
no avail.t 0 2 That night, when one of the machines was
sticking and Raborn was spending 10 to 15 minutes
fixing it, he was unable simultaneously to perform the in-
spector's function, with respect to the cones still being
produced by the other five machines, of flipping the
cones over and keeping them from hanging up. During
that shift, Raborn's machines produced 306 "48 count"
'00 Hicks testified for the General Counsel, but was not asked about
this matter. Raborn credibly testified that he did not tell Hicks he hated
Denton, but may have told Hicks that he did not like Denton because of
her role in the 1981 separations.
1o' The date is established by Raborn's timecards. The somewhat dif-
ferent testimony of Respondent's witnesses is discussed hereafter.
102 My findings in this sentence are based on Raborn's testimony, re-
ceived without limitation or objection. See American Rubber Products
Corp. v. NLRB, 214 F.2d 47, 52 (7th Cir. 1954); Today's Man, 263 NLRB
332 (1982). In any event, Coots' statements bind Respondent in view of
my finding (infra sec. Il,J,l,b) that she was a supervisor. See Rule 801(d)
2(D) of the Federal Rules of Evidence.
1346
TURNBULL CONE BAKING CO.
cases of cones.L03 The average production of "48 count"
cases of cones between the night shift ending on April 23
and the night shift ending on May 6 (the last night shift
before Raborn started to work on the night shift) was
about 322 per shift.10 4
During the shift which began on Sunday, May 9, and
ended on Monday, May 10, there was still no inspector
on the third shift, and Raborn still had to perform the
inspector's duties as well as operating the machines. Be-
cause he was unable to perform both functions, he even-
tually turned off two of the six machines.105 He again
told Coots that an inspector was needed, and she again
agreed but stated that she had been unable to obtain one
and had been told to have him perform both functions
(see supra fn. 102 and attached text). That shift, his ma-
chines produced 386 "36 count" cases. During the third
shifts which ended on May 3, 4, and 5 (all before Raborn
was transferred to the third shift), production of "36
count" cases had averaged 338, with a range of 252 to
468. When first-shift batter mixer Hicks started work on
the morning of Monday, May 10, she complained to
Denton that third-shift batter mixer Maxwell had been
leaving the floor of the batter room wet with flour and
water for "not just a day or two. Days." Denton replied
that Maxwell was having to go on the machines and run
Raborn's job, because Raborn would not do his job.
Denton said, ". . . you know that [Raborn] is into this
court business, and he has the attitude that we can't
touch him." At this time, Raborn had worked a total of
two night shifts.
During the shift which began on Monday, May 10,
and ended on Tuesday, May 11, Denton was present.
She told Raborn that his only responsibility would be to
operate the machines, and someone else would perform
inspection duties. The cone machines ran "perfect" that
night. At one point, Raborn left his machine and helped
employees Swann repair a wrapper which had broken
down. The morning of May 11, General Production
Manager Hood commented that the machines had run
"awful good," and "That's how they should run all the
time." Respondent failed to put in any evidence about
the number of cases of cones produced during that shift.
Ios This finding, and subsequent findings regarding the number of
cases of cones produced on the third shift, are based on Turnbull's testi-
mony. He testified that, in describing company records with respect to
third-shift production, he did not know whether the date on the records
was the date the shift began or the date it ended. The night shift does not
work from Friday night to Saturday morning or Saturday night to
Sunday morning, but does work from Sunday night to Monday morning.
Because Turnbull referred to records with Monday dates (April 26 and
May 3, 10, and 17) but not to records with a Saturday or Sunday date, I
infer that the date on the records is the date when the shift ended.
104 During this period, production ranged between 271 and 395 "48
count" cases per shift. Turnbull also testified to the third-shift production
of "48 count" cases during three shifts after Raborn's discharge at the
end of the night shift which ended on May 12. For reasons not shown by
the record, he did not specify the production during the shift which
began on May 13 and ended on May 14, although he did specify the pro-
duction during the preceding shift and the two subsequent shifts. He testi-
fied to production between 317 cases (during a shift at least initially run
by Production Manager Hood) and 344 cases (during a shift run by Turn-
bull), with an average of about 331.
10s Respondent's records apparently state that Raborn operated eight
machines during that shift. Because Raborn was physically present during
that shift, I accept his testimony that he operated six machines.
An inspector was also on duty during the shift which
began on Tuesday, May 11, and ended on Wednesday,
May 12. That night, the machines ran "awful." Raborn
could not figure out what was the matter with them.
Wrapper Swann, who had been a machine operator,
came over to help Raborn, but he could not figure out
the problem either. Raborn worked "solid," and did not
take a break at any time during the shift. When General
Production Manager Hood came in the following morn-
ing, some of the machines and cones were still sticking,
and the floor was dirty because Raborn had had no
chance to sweep it. While Raborn was working one of
the machines, Hood approached him and said, "I hate to
do it, but I'm going to have to let you go." Hood said
that Raborn could come back later and pick up his
check. Raborn's separation slip states that he was dis-
charged because "not doing assigned work properly.
Continued efforts to change his work habits to no avail.
Extremely poor attitude towards cooperation with fellow
workers." Production on that shift was 313 "48 count"
cases, about two and a half percent less than the average
just before Raborn went on the third shift.
Raborn's personnel folder contains notes critical of his
performance on June 30, 1981; July 1, 1981; and Novem-
ber 8, 1981. The record fails to show the kind of inci-
dents described in these notes, but they were admittedly
not for poor work, and no contention is made that such
incidents played any part in his May 1982 discharge. The
only other such note in his personnel folder was a
memorandum regarding an incident on April 30, 1982,
when he was advised that his supervisors included
Denton as well as Hood (see infra fn. 109). No conten-
tion is made that this incident played any part in his dis-
charge. Turnbull testified that supervisors followed a
practice of making notes of, inter alia, "any instances of
any information or any discussion or any complaints or
anything to do with the operation, anything that an em-
ployee would come and complain about another employ-
ee, or anything that was a problem . . . or running a
chronological history of offense . . . as a matter of rou-
tine, this is done daily, regardless of what the discussion
is, or what the subject is."
2. Reasons for credibility findings
My findings as to the events on the third shift after
Raborn's transfer thereto are based almost entirely on
Raborn's testimony. His testimony that no inspectors
were working during the shifts which began on May 6
and 10 is corroborated by Denton. I do not credit Coots'
testimony otherwise. She initially testified that someone
whom she identified as "Rita" was an inspector on those
two shifts. There is no other evidence that anyone
named "Rita" was then in Respondent's employ. When
asked whether Coots had told a Board agent that there
was only one night when Raborn had to inspect the
cones as well as run his machine, she replied that the
Board agent was "supposed to have changed that, and I
believe he did. I said [Raborn] done it for about 5 min-
utes, if he done it that long. He walked off and left it,
and Ernie [Maxwell] came and took it." Her affidavit in
fact states that Raborn had to inspect the cones and run
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the machines for 20 to 25 minutes. Moreover, when
asked whether she recalled Raborn's telling her that she
needed a full-time inspector on the third shift, she replied
that she did not recall this but "I could have and I just
don't remember all of it." Maxwell and employee Clark,
who also worked on that shift at this time, testified for
Respondent, but were not asked about this matter. As to
this matter, I discredit Coots, for demeanor reasons and
other reasons discussed infra.
Turnbull testified that the morning after Denton
worked on the third shift with Raborn, she told Turnbull
that she had been "nudging" and "talking to" Raborn,
and had been "on him," and he was working. There is
no evidence that Denton had in fact engaged in this con-
duct with respect to Raborn, and she was not asked
about her alleged conversation with Turnbull. For these
and demeanor reasons, I discredit Turnbull's testimony in
this respect.
Turnbull testified as follows: About 3 a.m. on May 12,
he and Dowling paid a surprise visit to the plant. Em-
ployee Clark, who was walking out the door to quit,
asked to speak to Turnbull, who thereupon asked Dowl-
ing to go back to the machines and help out while Turn-
bull talked to Clark. Clark complained about Raborn's
alleged "attitude" and his alleged action in standing
around with his arms folded while other employees
needed help. Turnbull said that Respondent would take
care of the problem. Then, Turnbull observed that four
machines were "down"; three were being worked on by
Dowling, Maxwell, and Swan, respectively; and Raborn
was standing there watching. Maxwell said that he,
Swann, and Dowling were trying to get the machines
running, but Raborn was giving no help. Similar remarks
were made by Swann. Inferentially referring to Raborn,
Coots said, "I've tried everything I know how to do, but
I can't get anything done . . . I've talked to [Denton]
and [Hood] about it a lot of times, but they say they're
going to do something about; but . . . it just gets
worse." Turnbull thereupon went to Hood in his office
and strongly urged him to discharge Raborn.
Maxwell testified for Respondent that on this occasion
Dowling fixed the machines himself; and Maxwell did
not testify to Turnbull's presence. Clark did not testify to
Dowling's presence 106 or that she had been about to
quit; and her version of her complaint to Turnbull differs
somewhat from his. Coots' testimony suggests that Turn-
bull may have been there that evening (see infra fn. 107),
and she testified that Dowling was present, but she testi-
fied that it was Dowling who fixed the machines, and
did not testify that this was done by either Maxwell or
Swann. She stated in her prehearing affidavit that she
had never complained to Turnbull about Raborn's atti-
tude or work, °0 7 and that she had told Denton once or
twice that she had told Raborn a machine was stick-
106 Her possible inability to recognize Dowling would not have inter-
fered with her ability to corroborate Turnbull's testimony about his al-
leged conversation with Dowling in her presence.
107 However, at the hearing she testified that she complained to Turn-
bull about Raborn the day he was fired.
ing.' 0 8 Hood and Dowling did not testify. In view of
the foregoing discrepancies and failure of corroboration,
I do not accept Turnbull's and Coots' tetstimony that
Turnbull and Dowling visited the plant on this occasion.
Moreover, in view of the inconsistencies between Coots'
prehearing affidavit and her testimony, and for demeanor
reasons, I do not credit her testimony about her alleged
complaints about Raborn to Turnbull or Hood; her testi-
mony that during machine breakdowns on the third shift,
Raborn would make no effort to repair them even when
he was "hollered" at, but would merely sweep the floor;
or her and Denton's testimony about Coots' complaints
to Denton. Rather, I credit Raborn's denials that he en-
gaged in such conduct.
Turnbull testified about an alleged meeting with
Raborn which was attended by Turnbull, Denton, and
Hood, during which Turnbull criticized Raborn's atti-
tude, his alleged laziness, and his alleged inattention to
his supervisors. Denton testified to a "counselling" meet-
ing she attended "somewhere in April," with Turnbull,
Hood, and Raborn. Hood did not testify. I credit Ra-
born's testimony that this meeting did not take place.
Turnbull testified that this meeting occurred after a
meeting during which Hood, in Denton's presence, told
Raborn that both Hood and Denton were Raborn's su-
pervisors. 0° 9 Denton's written summary of this confer-
ence, which Turnbull admittedly did not attend, is dated
April 30, 1982, 2 weeks before Raborn's discharge. How-
ever, Turnbull testified that the alleged subsequent meet-
ing with Raborn which Turnbull did attend occurred 3
or 4 weeks before Raborn's discharge. Moreover, Ra-
born's personnel file contains no reference to a confer-
ence including Turnbull, although the file does contain
Denton's summary of the April 30 conference. Further-
more, Turnbull's prehearing affidavit does not allege that
during this meeting Turnbull said anything other than
that Raborn had two supervisors, Denton and Hood, and
would have to operate under that system.
Turnbull testified that, when Hicks started to work as
a batter mixer (according to Turnbull, in mid or late
March 1981),t" ° she complained that Raborn and "the
boys" kept a messy batter room, she could do a better
job, and she wished that they would get out of the batter
room so she could do her job right. I do not accept
Turnbull's testimony in this respect. He testified that at
the time Hicks allegedly made such complaints, she was
'10 However, Coots testified at the hearing that she complained
"every day" to Denton about Raborn's third-shift performance. Denton
gave similar testimony.
i0o This Hood-Denton-Raborn meeting was occasioned by a report to
Denton from floorlady Wanda Housely that, when Housely told Raborn
that Denton wanted him to get back to his work area, he replied that
Denton was not his boss, and that his boss was Hood. Raborn credibly
testified that, in February 1981, Turnbull had advised him and several
other male employees that Hood would be in exclusive charge of the
men and the machines, and Denton would be in charge of the women
and the packing. Turnbull and Denton testified that management so di-
vided supervisory responsibilities in February 1981; 1 eject as improbable
his denials of a meeting where employees were so ad"'sed.
lO0 However, Hicks testified that Raborn starter' to train her as a
batter mixer a few days after her March 23 hire. Raorn testified that he
so trained her on April 12, so that she could substit te for him when he
went to the hearing on April 13 in response to his subpoena. As to this
matter, I regard the employees' recollection as superior to Turnbull's.
1348
TURNBULL CONE BAKING CO.
the only person who worked as a batter mixer, and that
keeping the batter room clean was her responsibility.
Furthermore, he testified that, after Respondent institut-
ed a third shift on March 29, Raborn was no longer
working as a batter mixer, and that the batter mixer on
the shift preceding Hicks' shift was employee Maxwell,
who was not written up for this alleged offense; the
union cards received in evidence did not include any
card signed by him, and he testified that he opposed a
union. Moreover, Hicks credibly testified that Raborn
kept the batter room clean.
Turnbull testified that, beginning in early April 1982
and continuing until Raborn's May 12 discharge, Swann,
Turner, and "everybody that worked with Raborn"
complained to Turnbull that Raborn was not doing any-
thing; and that unidentified employees told Turnbull that
Raborn said he was going to continue to do poor work
on the third shift until he was returned to the first shift
or discharged. Turnbull further testified to reports from
Hood and Denton about complaints from employees re-
garding Raborn's bad attitude. However, of the employ-
ees named by Turnbull as complaining to him, the only
one who testified was Maxwell, who testified that he
never talked to Turnbull about Raborn. Moreover, Hood
did not testify at the hearing, and Denton did not cor-
roborate Turnbull's testimony about her alleged reports
to him about Raborn. In view of this contradiction and
absence of corroboration, and for demeanor reasons, I
discredit Turnbull's testimony about the reports allegedly
made to him about Raborn.
Denton testified that while Raborn was on the third
shift, Maxwell complained "constantly" and "about
every day" that Raborn "was standing with his hands
folded all the time" and Maxwell could not get his own
work done "for helping [Raborn] do [Raborn's] work."
Maxwell testified that he had complained to Denton, that
Raborn was not doing his job and was making it harder
on everybody else, every other evening for the entire
time Raborn was on the third shift; Maxwell's prehearing
affidavit refers to one complaint only. Maxwell further
testified that, when discharged, Raborn had been on the
third shift for about 3 weeks; but Raborn's timecards
show that he was on the shift for less than a week before
his discharge. Moreover, Maxwell did not testify that he
operated the cone machines while Raborn was the ma-
chine operator on Maxwell's shift;''' and he initially tes-
tified that the amount of relief work Maxwell had to per-
form for the female employees when Raborn was the
machine operator was "not really" any different from the
amount of relief work which Maxwell had performed
when Raborn's predecessor, Swann, was working as the
machine operator on that shift.' 12 Also, batter mixer
I Maxwell had initially worked in the warehouse, and had been
made a batter mixer after being trained by Raborn. Maxwell testified at
one point that he had never operated a machine, but immediately thereaf-
ter testified that "I'm operating them now. I'm helping out .... This is
before Raborn's discharge"
12 Later, Maxwell testified that before Raborn became the third-shift
machine operator, Maxwell did not have to relieve the female employees
"quite as much," because the other machine operator helped Maxwell re-
lieve "some."
Maxwell initially testified that he had time to relieve the
female workers.' ' Turnbull testified that, because fewer
machines were operated on the third shift than on the
other shifts, the batter mixer had only 2-1/2 to 3 hours'
total mixing time work for the evening. Similarly,
Denton testified that most of the time Maxwell "don't
have that much on the batter to do," and that when he
was caught up on his own work, he was expected to
help the feeder, help relieve, or help the cone operator.
In view of Maxwell's initial admission that he performed
about the same amount of work when Raborn was ma-
chine operator as when Swann was machine operator,
the internal inconsistencies in Maxwell's testimony, the
fact that Maxwell was supposed to spend only a small
part of his time as batter mixer, and demeanor reasons, I
do not accept Maxwell's and Denton's testimony regard-
ing his complaints to her about Raborn or Maxwell's tes-
timony, credibly denied by Raborn, regarding Raborn's
work performance.
Denton and Coots both testified that Coots com-
plained to Dention every morning about Raborn's third-
shift performance. Denton further testified that Coots
had told Denton that third-shift batter mixer Maxwell
did most of the inspecting because Raborn would not do
it. As previously noted, Coots testified that there was a
full-time inspector during the first 2 days when Raborn
worked on the third shift; and it is undisputed that there
was a full-time inspector on that shift during his remain-
ing 2 days on that shift. Further, as previously noted, the
third-shift batter mixer was expected to do a substantial
amount of relieving because he mixed batter for fewer
machines than batter mixers on other shifts, while ma-
chine operator Raborn had to operate as many machines
as machine operators on other shifts. Moreover, both
Coots and Denton testified to the absence of any prob-
lems on the third day when Raborn worked that shift,
and it is undisputed that he was discharged at the end of
the fourth day he spent on that shift. Accordingly, and
for demeanor reasons, I do not credit Denton's or Coots'
testimony about Coots' alleged complaints regarding
Raborn.
Denton further testified that employee Swann "would
always complain about [Raborn] standing with his arms
folded"; and that after Raborn went on the third shift,
Swann told her he had to spend 80 percent of his time
doing Raborn's job, and could not do his own work as a
packaging man. Swann did not testify. Turnbull's and
Maxwell's testimony shows that Swann was working on
the third shift (initiated on March 29) for an undisclosed
period before Raborn's May 6 transfer thereto. Turnbull
testified that a packaging man could have as much as 80
percent of his time free. The undisputed testimony shows
that one of the four shifts worked by Raborn on the
third shift was wholly trouble-free. As previously noted,
Raborn's personnel folder contains no notations regard-
ing complaints about him for Swann or any other em-
1 3 Later, Maxwell testified that the amount of time he spent perform-
ing relief work while Raborn was the machine operator required Max-
well to work overtime in order to catch up on his own job. His time-
cards were not produced for either before or after Raborn became the
third-shift machine operator.
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee, although Denton and other supervisors had a
practice of making notations of complaints made against
employees by other employees. In view of the peculiar-
ities in and absence of corroboration for Denton's testi-
mony in connection with Swann's alleged complaints to
her, I discredit such testimony.
Employee Clark testified that, during Raborn's first
night shift, when she was acting as a "feeder" transfer-
ring cones between belts, she saw Raborn standing with
his arms folded, and asked him to help remove some of
the scrap; and that he refused on the ground that this
was not his job. Clark did not testify that employee Max-
well was present during this conversation. Maxwell testi-
fied that this alleged conversation occurred while he was
helping Clark, and that Raborn had been sweeping the
floor." 4 The credible evidence shows that, during that
shift, Raborn was extremely busy because he had been
required to act as both machine operator and cone in-
spector. I accept his testimony that he truthfully told
Clark that he had no time to help her.
Denton credibly testified that, on several occasions
while Raborn was a first-shift machine operator (that is,
during April or early May 1982), she told Raborn that
the cones were running too short in length. Raborn cre-
dibly testified, in effect, that such comments were a
common occurrence with respect to cones produced by
all the cone operators. His testimony in this respect is in-
directly corroborated by the fact that as to each set of
machines Respondent assigns an inspector whose duties
include advising the operator if a machine is producing
defective cones, and discarding such cones. I do not
accept her testimony that he failed to correct the situa-
tion.
Maxwell testified that, a couple of weeks before Ra-
born's discharge, Raborn said that "he dared the Compa-
ny to fire him. He said he didn't give a damn, let them
go ahead and try." Maxwell testified that this incident
occurred while Raborn was working on the third shift;
Raborn was transferred to that shift less than a week
before his discharge. For this and demeanor reasons, I
credit Raborn's denial.
Maxwell testified that, on a date he was not asked to
give, while he and Raborn were on the third shift, Max-
well concluded that Raborn had time to relieve the
female workers, that he so remarked to Raborn, and that
Raborn replied that he did not have time. As to this
matter, I credit Raborn's testimony that he would always
help out other employees if he had time." 5
In short, I credit Raborn's testimony (substantially cor-
roborated by Summers) that except when others told
Raborn that one of his machines was producing defective
cones (as the machines normally did from time to time,
whereupon others were supposed to advise him of the
defects as part of their jobs so that he would adjust the
machine), no supervisor or fellow employee ever com-
"' Maxwell dated this alleged incident as 3 weeks after Raborn went
on the third shift, where Raborn worked for less than a week before his
discharge.
iI In connection with Maxwell's credibility generally, I note his testi-
mony that he complained to management that Wanda Hicks was leaving
the batter room in bad shape. It is uncontradicted that she was the first-
shift batter mixer and he was the third-shift batter mixer.
plained to him about his work. During Raborn's last year
of employment, he was absent from work about twice.
I. The Representation Election
The Regional Director's Decision and Direction of
Election issued on May 10, 1982, 2 days before Raborn's
discharge. The decision included the usual provision that
the eligible employees would include those in the unit
who were employed during the payroll period ending
immediately before the date of the decision, except those
who had thereafter been discharged for cause.'I" The
decision also found, in agreement with the Union, that 13
"temporary employees" were ineligible to vote; as of
May 10, these comprised all current employees hired
since the July 1981 separations. The record fails to show
when Respondent received a copy of this decision.
The election was held on June 4, 1 9 8 2 .1 7 The tally of
ballots consisted of 5 votes for the Union, 18 votes
against the Union, and 35 challenged ballots. Of these
challenged ballots, 18 were cast by employees whose
separation is attacked in the instant complaint. I l No ob-
jections were filed to the election.
J. Analysis and Conclusions
I. The alleged supervisory status of the floorladies
and Coots
a. The floorladies at the old plant
When Turnbull first assumed responsibility for the
plant, in early 1981, all production operations were su-
pervised by General Production Manager Hood, admit-
tedly a supervisor at all relevant times. About February
1981, Turnbull promoted Denton and Yvonne Broadwell
to the newly created positions of production manager
and assistant production manager, respectively. Denton,
who was admittedly a supervisor at all times material
here, was in charge of all production, and supervised the
floorladies, the cone inspectors, the cone-machine opera-
tors, and the packagers.' I9 Just before the July 1981 sep-
arations, Respondent employed about 45 persons in these
classifications, who were working on two different shifts.
Denton reported to Hood and Turnbull. Yvonne Broad-
well, admittedly a supervisor at all relevant times, re-
ported to Hood, Turnbull, and (according to Turnbull)
Denton, and apparently served essentially as Denton's
substitute and assistant. Hood, Denton, and Yvonne
Broadwell had the authority to fire. Hood and Denton
had the authority to hire; Broadwell had the authority
effectively to recommend hiring. Denton and Broadwell
I The decision was issued on a printed form which contains such
provisions.
"it The General Counsel's brief asserts that Raborn acted as the
Union's observer. The election was held after the hearing had closed, but
Respondent has not advised me that the General Counsel's brief is in
error.
l'i Namely: Bates, Baltimore, Benton, Bush, Carolyn Caldwell. Cun-
ningham, Ellis, Finley, Peggy Fitzgerald, Bernice Hawthorne, James
Hawthorne, Hubbard, Raborn, Sisk, Varner, White, Wells, and Zackery.
i19 Initially, she was put in charge of only the floorladies and the cone
inspectors. Within 30 days, in March, she was put in charge of the opera-
tors and packagers also.
1350
TURNBULL CONE BAKING CO.
made up the daily schedules specifying which individuals
were to work which shifts, and which individual first-
shift production employees were to perform which jobs.
Broadwell drew up the job assignment schedule for the
second shift. Denton and Broadwell had authority to
direct the working of overtime by employees. Broadwell,
Denton, or another supervisor had to initial the relevant
timecard before an employee could be paid overtime; in
some cases, the overtime had been worked before the
card was initialed.
All nonclerical plant personnel except Hood are paid
on an hourly basis. After Denton and Broadwell were
promoted to their supervisory jobs, they continued to
punch a timeclock and to receive time and a half for
overtime. Their hourly rate was increased to $5-90
cents more than the highest paid rank-and-file employee
at that time. The early April 1981 institution of wage
classes meant that Denton's and Broadwell's $5 rate was
the same as that of a night-shift floorlady who had quali-
fied as a Class I operator. Both Denton and Yvonne
Broadwell in fact qualified as Class I operators. More-
over, as discussed infra, both of them in fact worked to
some extent on the night shift. Shortly after their promo-
tion, Respondent sent them and General Production
Manager Hood on a field trip to Chicago to look over a
plant like the plant to which Respondent moved its oper-
ations about the end of 1981. Two or three months later,
Respondent sent all three from Chattanooga to New Or-
leans for a supervisory seminar. None of the floorladies
was sent on these trips.
As previously noted, the old plant had four production
floors. During the first shift, one floorlady was assigned
to each operating floor. During the second shift, which
operated between February 1981 and the July 22, 1981
separations, a floorlady worked on each operating floor,
and there was also an "extra" floorlady. The floorladies'
principal responsibility was to perform the duties of cone
packers when they were on their breaks (a function in
which floorladies other than the "extra" floorlady spent
70 percent of their time), but they were also responsible
for keeping all packing materials and supplies on the
cone packers' tables. Recommendations from the floorla-
dies that particular applicants be hired were not acted
upon without independent investigation. Floorladies had
no independent authority to discharge employees or to
effect disciplinary suspensions. Employees were never re-
fused the right to go home early; but laying to one side
the "extra" floorlady, floorladies merely made a written
record of such incidents, and had no authority to deter-
mine whether such early leaving was excused.
About twice a week, Turnbull, Hood, Denton, and
Broadwell met to discuss such matters as plans for the
new plant, the financial state of the business, personnel
problems, and the testing procedure; these meetings were
not attended by the floorladies. Every day, Denton and
Broadwell would meet with all the floorladies on both
shifts, to discuss such things as what product or products
were to be made that night, what machines were going
to run, what to do if particular machines broke down,
employees' qualifications for wage increases, whether
particular employees were good employees, problems
with employees, and employees' failure to comply with
the dress code. Sometimes, Hood and/or Turnbull at-
tended these meetings. Sometimes, "to the extent that
[Turnbull] wanted the information to flow," these meet-
ings were also attended by machine operators, who were
admittedly employees.
The record contains a printed payroll change notice,
dated April 8, 1981, which called for an 80-cent increase
in employee Griffin's hourly rate. The notice is signed by
floorlady Cooper (in the space called for a foreman's sig-
nature) and by General Production Manager Hood. In
what appears to be Cooper's handwriting, the notice
states, under "Remarks," "Doing a good job. I approve."
Another printed payroll notice, bearing the same date,
called for a 45-cent increase in Bernice Hawthorne's
hourly rate. The notice is signed by then floorlady Balti-
more (in the space calling for the foreman's signature)
and by Hood. After "Remarks" is the notation, in what
appears to be Baltimore's handwriting, "Doing her work
& great job of it." These documents from Respondent's
personnel record corroborate one-time floorlady Wea-
ver's testimony, which I credit, that during the daily pro-
duction meetings, floorladies could recommend a raise
for employees who, in the floorladies' opinion, had
learned to operate the necessary machines. I accept Pro-
duction Manager Denton's testimony that such raises
were not given without an investigation by her or Hood;
but particularly in view of the foregoing payroll change
notices, I do not accept her further testimony that she
gave such recommendations no more weight than such
recommendations from admitted rank-and-file employees.
Prince and Weaver, both of whom at one time worked
as floorladies, credibly testified that if an employee was
out too many times, the floorlady was to talk to her; and
if such absenteeism continued, the floorlady would in her
presence write up and sign a warning notice which was
also to be signed by Denton or Hood. The record con-
tains an employee warning notice, dated June 25, 1981,
and issued to employee White, which is signed by Nellie
Chandler, inferentially a floorlady at that time. Hood
also signed this document. Under "Remarks" is the state-
ment, in handwriting which may be Chandler's and is
definitely not Hood's, "Insubordinate would not do what
she was told without arguing all around bad attitude."
Immediately thereafter appears the notation, in different
and unidentified handwriting which may be Denton's
and is definitely not Hood's, "6/26/81 not in proper
dress code." I accept Turnbull's testimony that floorla-
dies reported infractions in work performance to Denton
or Broadwell, who would investigate such reports and
decide whether they wanted to discipline the employee.
However, in view of the foregoing testimony by Prince
and Weaver and the foregoing warning notice, I do not
accept Denton's testimony that she gave no more weight
to a floorlady's recommendation that an employee be dis-
ciplined than to a like recommendation from an admitted
rank-and-file employee.
About 3 weeks after the initiation of periodic rating
sheets on each employee by admitted Supervisors Hot6d,
Denton, and Broadwell, floorladies were also directed to
fill out such rating sheets for the purpose (the floorladies
were told) of determining who was to be transferred to
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new plant. Turnbull testified that the rating sheets
filled out by Hood, Denton, and Broadwell-but only by
them-were used in deciding whether an employee was
to receive an oral work-related reproof, was to be laid
off, or was to be transferred to the new plant. I infer that
the rating sheets filled out by the floorladies were used
for the same purpose, although these rating sheets were
likely accorded less weight than those filled out by their
superiors. I do not credit Turnbull's testimony, partly
corroborated by Denton, that Respondent directed the
floorladies to fill out such sheets with the motive of let-
ting the employees know that ratings were being made.
Employee Peggy Fitzgerald credibly testified that em-
ployees were advised of the rating system at a February
1981 meeting conducted by Turnbull.' 20
Floorladies were paid 15 cents an hour more than they
would have been paid if they had been admittedly rank-
and-file cone packers on their respective shifts. They
continued to receive this 15-cent premium even when
they were not performing floorladies' duties because the
floor to which they were ordinarily assigned had been
temporarily shut down. Floorladies received the same
fringe benefits as admitted rank-and-file employees. All
other things being equal, in case of layoffs Respondent
gave retention preference to floorladies because of their
production versatility and their ability to fill out person-
nel forms.
In February 1981, Respondent set up a night shift.
Hood did not ordinarily work on the night shift. Turn-
bull made Denton and Broadwell responsible for cover-
ing both shifts. In consequence, Denton and Broadwell
began to work very long hours. About the beginning of
May 1981, Denton asked Evelyn Weaver, who was a
floorlady on the day shift, to help Denton out on the
night shift. Weaver agreed, and thereupon became the
"extra" floorlady on the night shift. Denton called the
other floorladies together and told them that Weaver
was their supervisor on the night shift. Denton told them
to come to Weaver with their problems; that she would
make the reports about people who left early; that she
would decide whether, when machines broke down, to
cut them off or to call Denton and Hood; and that
Weaver was to decide where the men were supposed to
work. Thereafter, Denton and Broadwell conducted a
production meeting with Weaver every evening. They
gave her a list of what was going to run and where the
employees would be working. If a machine was running
badly, Denton or Broadwell would tell Weaver that she
could keep a couple of employees overtime to perform
the work by hand. Then, Denton and Broadwell would
leave the plant for the day. If Denton telephoned the
plant to issue further instructions with respect to the
second shift, she would ask for Weaver. In making major
decisions not covered by prior instructions, Weaver
would call Hood, Denton, or Broadwell. Otherwise,
Weaver handled all the problems after these supervisors
120 These ratings were admittedly not used in connection with the
July 22, 1981 separations; and I find infra sec. II,J,3,a(2) that they were
not used in connection with many of the July 10, 1981 separations. How-
ever, the record does not exclude the possibility that these ratings were
used in connection with the June 1981 layoffs (not alleged to be unlaw-
ful) and some of the July 10 separations.
had left for the day, and thereafter reported to them
about any such problems.
When overtime was to be worked, the employee who
was working on the machine where overtime work was
required would initially be asked by Weaver to stay
overtime. If that employee did not want to work over-
time, Weaver would ask the senior employee who (she
thought) would accept the overtime. Such overtime re-
quests were made by Weaver only, and not by the other
floorladies. Turnbull testified that Broadwell, Denton, or
another supervisor had to initial the relevant timecard
before overtime would be paid. Weaver sometimes
signed such timecards, but only where Denton and Hood
had already agreed that overtime was to be worked.
Turnbull testified that if Weaver was confronted with
an unanticipated problem and could not reach Denton,
Broadwell, or Hood by telephone, Weaver was expected
to use her best judgment, and that any criticism she
would receive would be based upon the merits rather
than on the fact that she took it upon herself to handle
the problem; but he did not know whether any such
event had ever in fact occurred. Weaver was not told by
Respondent that she was going to get additional compen-
sation by virtue of her being an extra floorlady on the
second shift; and she received no extra benefits there-
for. 1 2 1
If employees were late, Weaver made a file record and
spoke to Hood and Denton about such tardiness the next
day. On June 22, 1981, Weaver filed out an absentee
report stating that employee Bates had been absent with
permission, because her sister was having a serious oper-
ation. This document bears only Weaver's signature, and
was not initialed by anyone else. Weaver testified that
she filled it out because "it was an emergency and
[Bates] had to leave in a hurry." As previously noted
(supra sec. 11,D), on July 1, 1981, Weaver filled out and
signed an "absentee report" alleging that employee Zack-
ery had failed to go directly to her machine after clock-
ing in. On May 11, 1981, Weaver signed, in a space with
the printed designation "foreman," a slip stating that em-
ployee Baltimore's hourly rate was to be cut 15 cents an
hour because she was no longer a floorlady. This docu-
ment was also signed by Hood. Baltimore had been de-
moted at her own request; and, as previously noted,
floorladies received a 15-cent differential. As previously
noted, on one occasion after Weaver had ascertained that
employee Bernice Hawthorne might be suffering from
high blood pressure, she was transferred from the double
machines she had been working on; inferentially, this
transfer was effected pursuant to Weaver's recommenda-
tion. As previously noted, on one evening in early July
1981, Supervisor Broadwell, who was paying an un-
scheduled visit to the plant during the second shift, told
Weaver to exclude from the plant people who were not
LI When Weaver went on the second shift in early May 1981, she re-
ceived a 10-cent wage increase, to $4.45 an hour., which constituted a
shift differential. In early July 1981, she received a wage increase to
$4.85, in consequence of qualifying as a Class I operator. The regular
rate for such an operator was $4.75. It is unclear whether the extra 10
cents was a floorlady differential (ordinarily 15 cents) or a shift differen-
tial.
1352
TURNBULL CONE BAKING CO.
on the clock. Denton credibly testified that Weaver usu-
ally spent none of her time relieving, unless somebody
was out or some trouble came up.'2 2
Turnbull testified that Respondent had no supervisors
on the second shift. Denton or Broadwell often worked
until 7 p.m., 3-1/2 hours before the end of the second
shift. Also, on several occasions, Broadwell (at least
once, accompanied by Denton) came back to the plant,
unannounced, to see how the employees were doing.
Cooper was a second-shift floorlady until July 22,
1981, when that shift was discontinued. Then, she was
transferred to a cone-packing job. Weaver served as a
floorlady until she went on vacation on July 13, 1981.
On her July 19 return from vacation, she was assigned to
the wrapping machine, where she worked until her sepa-
ration on July 22, 1981. Her termination slip states that
she was a "packer." No contention is made that she was
a supervisor at the time of her allegedly discriminatory
separation. As found supra section II,E,l,h, Bernice
Hawthorne was a floorlady for the weeks just before her
last day of active employment, 2 days before her termi-
nation during a 2-day leave of absence. There is no evi-
dence that any other alleged discriminatee was a floor-
lady when terminated.
I agree with the General Counsel that Evelyn Weaver
was a supervisor until 3 days before her separation, and
that Evelyn Cooper was a supervisor until the July 22,
1981 separations. Through their participation in the
rating system and in the daily conferences with Denton
and Broadwell, they had authority, in Respondent's in-
terest and in the exercise of independent judgment, effec-
tively to recommend employees' discharge and layoff. In
addition, they had authority, in Respondent's interest and
in the exercise of independent judgment, effectively to
recommend wage increases and discipline. For the same
reasons, I find that Bernice Hawthorne was a supervisor
during the last few weeks of her active employment. I
conclude that Weaver was a supervisor for the further
reason that when she was the "extra" floorlady on the
second shift, comprising about nine people, she had the
authority, in Respondent's interest and in the exercise of
independent judgment, responsibly to direct the second-
shift employees.
b. Coots
After the move to the new plant was completed, Hood
remained general production manager and Denton re-
mained production manager. Turnbull testified that the
employees were told that Denton, Broadwell, Wanda
Housley, "and the rest of the girls" would be supervi-
sors, and would have the same authority as Hood so far
as telling people what to do. Coots testified that she was
the third-shift floorlady when Raborn was on the shift,
and that, herself aside, there was nobody in supervision
on that shift. She testified, in effect, that she was in
charge of that shift, but further testified that she had to
122 In view of Denton's testimony in this respect, and the functions
performed by Weaver but not the other floorladies, I do not accept
Turnbull's testimony that Respondent had an extra floorlady during the
second shift solely because Denton and Broadwell were not available for
relief work during that shift.
call Turnbull, Hood, or Denton if anything happened. At
the time that Raborn was discharged, about 10 people
worked on that shift. In view of her testimony that
Denton had told Coots she should give Raborn a warn-
ing slip, I find that she had authority to issue such slips
notwithstanding her further testimony that she "wouldn't
think" she had such authority. Denton testified that
Coots was concerned about production on the third shift
because "she wanted third shift to work," and that she
was afraid that shift would be cut off and she would lose
her job. Coots testified that third-shift employees called
Denton, and not Coots, if they wanted to take time off
or were not going to report to work; and that if a third-
shift employee reported to work sick, Coots had to call
Denton to find out what to do.
My findings in the foregoing paragraph are based on
testimony adduced before me with specific reference to
the new plant. I conclude that such testimony, standing
alone, establishes that Coots was a supervisor when
Raborn was working on the third shift. More specifical-
ly, I believe that such testimony shows that Coots had
the authority, in Respondent's interest and in the exercise
of independent judgment, to discipline and responsibly to
direct employees. I note, moreover, that on the basis of
evidence adduced at the hearing conducted on April 23,
1981, 3 weeks before Raborn's discharge, the Regional
Director found Coots to be a supervisor. In so finding,
the Regional Director relied, inter alia, on evidence that
she attended daily production meetings and had author-
ity to move employees between machines, and that em-
ployees could be disciplined for failing to obey her in-
structions. His findings and conclusions add weight to
my similar conclusion here. Serv-U-Stores, 234 NLRB
1143 (1978); Air Transit, Inc., 256 NLRB 278 (1981), enf.
denied on other grounds 679 F.2d 1095 (4th Cir. 1982).
2. The alleged independent interference, restraint,
and coercion (other than the alleged no-talking rule)
As to the allegations that Respondent violated Section
8(a)(1) of the Act in that on July 3, 1981, Production
Manager Denton interrogated employee Carolyn Cald-
well and threatened her and employee White, my action
in discrediting the employees' testimony to this effect
calls for dismissal of the complaint in these respects.
However, I agree with the General Counsel that Re-
spondent threatened employees with discharge for union
activity, and thereby violated Section 8(a)(1), when
Denton, in employee Wills' presence, told employee
Finley on July 10, 1981, that she was being laid off for
signing a union card; and when on the same day Assist-
ant Production Manager Yvonne Broadwell implied to
employee Bates that she was being laid off because Re-
spondent suspected that she had signed a union card.
Also, I agree with the General Counsel that on July 6,
1981, Respondent threatened to shut down the plant if
the employees chose the Union, in further violation of
Section 8(a)(l), when Assistant production Manager
Yvonne Broadwell, in response to employee Sisk's un-
truthful assertion that she had not signed a union card,
stated that Company President Turnbull would be in
there today and "they're liable to shut the plant down."
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, I agree with the General Counsel that Re-
spondent violated Section 8(a)(1) when Supervisor
Yvonne Broadwell told employee Nella Broadwell in
April 1982 that employees Raborn and Summers would
lose their jobs because they were testifying for the
Union.
Also, I find that Respondent violated Section 8(a)(l)
when General Production Manager Hood engaged in
surveillance over the union meeting on July 12, 1981. I
do not accept the contention in Respondent's brief that
Hood was driving by the union hall because he was
going to a flea market, the explanation which Hood un-
derpersuadingly tendered at the time to employee James
Hawthorne and others. Although Hood has been Re-
spondent's general production manager at all relevant
times, he unexplainedly failed to testify. Furthermore,
Turnbull did not testify that Hood gave him an innocent
explanation for Hood's presence, and did testify that
Turnbull had "very strong counsel with him regarding
that," an unlikely reaction to professions of a flea-market
search. Moreover, the conversations on the following
day between Summers (whose somewhat distinctive car
had been parked in the lot outside the union hall while
he attended the meeting), Hood, and Denton lend weight
to the inference that Hood had driven by the union hall
to find out how many and which employees had attend-
ed.
In addition, I agree with the General Counsel that Re-
spondent unlawfully interrogated employee Zackery, in
violation of Section 8(a)(1), when Denton approached
her about mid-June 1981 and stated that Denton had seen
her sign a union card, an assertion which impliedly
called for a confirmation or denial by Zackery; and
when floorlady Weaver asked employee Baltimore, about
early July, whether she had signed a union card. In so
finding, I rely on the fact that Respondent was thereby
seeking information useful for discrimination; Zackery's
evasive responsive laugh and the untruthfulness of Balti-
more's reply; Weaver's concomitant assertion that the
Union would never get in there, that everybody would
be gone by then; the absence of assurances against repris-
al; Respondent's subsequent discrimination against em-
ployees who included Zackery and Baltimore (see infra
sec. II,J,3); Respondent's threats of discharge and plant
shutdown for union activity; and the absence of any le-
gitimate purpose for such inquiries.
However, I decline to find that Respondent also vio-
lated Section 8(a)(1) when floorlady Cooper asked em-
ployee Prince, on June 30, whether she had signed a
card. Although I have found Cooper to be a supervisor,
she was only a first-line supervisor, and her remarks
made it clear that her inquiry was a preliminary to ef-
forts by her to help bring the Union into the plant. Thus,
Prince testified that she talked about the Union with
"Girls ... I felt I could trust," including Cooper. More-
over, nothing in Cooper's remarks or their context
tended to lead employees to believe that management
generally was trying to bring the Union into the plant.
The complaint allegation that Respondent violated the
Act through Cooper's remarks to Prince will be dis-
missed. See NLRB v. Wehrenberg Theatres, 690 F.2d 159
(8th Cir. 1982); A.. T & K. Enterprises, 264 NLRB 1278
(1982).
3. The allegedly unlawful separations, reprimand,
and no-talking rule
a. The alleged 1981 discrimination
(1) The separation of Baker, Benton, Brown, Capes,
Cunningham, and Huggins
As previously noted, there is no evidence that alleged
discriminatees Baker, Capes, and Huggins in fact en-
gaged in any union activity before their separations, nor
is there any specific evidence that Respondent believed
they had done so. Although alleged discriminatees
Benton, Brown, and Cunningham did sign union cards
before their separation, there is no credible evidence that
they did so under circumstances where management was
in a position to observe them, and no specific evidence
that Respondent thought that they had engaged in union
activity. Apparently, the General Counsel has included
such employees in the complaint on the theory that the
Union's advent unlawfully motivated Respondent in its
decision to effect mass separations in July 1981. See, e.g.,
Majestic Molded Products v. NLRB, 330 F.2d 603, 606 (2d
Cir. 1964). Such a theory gains support from Respond-
ent's representations to the Industrial Development
Board of Chattanooga that more employees would be
employed at the new plant than at the old one, and by
President Turnbull's representations to the employees
that there was room for all of them at the new plant, he
needed them, and they just needed to work hard to make
the effort. Further, Turnbull testified before me that the
speeches including these representations to employees
were made "in order to communicate exactly what
would be taking place."
However, while these representations were being
made in public, Respondent was privately drawing up
drawings, tables, and memoranda, all of which anticipat-
ed that, upon the move to the new plant, fewer employ-
ees would be needed to produce a given number of
cones. Also, during this period Respondent lost some of
its old and anticipated customers to the cone business
newly established by its former vice president. In addi-
tion, and before the Union's advent, Respondent institut-
ed its employee rating system, which would be useful in
selecting employees for separation if it transpired that
not all were needed. Furthermore, Respondent's work
force at the new plant never became as large as the work
force at the old plant. I infer from these circumstances
and the probabilities of the situation that, at all material
times before the move took place, Respondent hoped and
expected that the move would enable it to use fewer em-
ployees than previously to produce a given number of
cones; and hoped, but doubted, that its cone sales would
increase, in which event it would need at the new plant
most or all the employees who had been working for it
at the old plant. Furthermore, I credit the evidence that
Respondent's public representations about the anticipated
size of its work force were motivated by a desire to
obtain the tax-free bond to finance the new building and
1354
TURNBULL CONE BAKING CO.
to prevent the employees from quitting while Respond-
ent still needed their services at the old plant.
Accordingly, I conclude that the record fails prepon-
derantly to show that Respondent had a fixed and con-
stant intention, before the Union's advent, to transfer all
the employees to the new plant. Therefore, I conclude
that the record fails preponderantly to show that it was
the Union's advent which motivated Respondent's 1981
decision not to retain its entire work force. Thus, the
record fails preponderantly to show that employees
Baker, Benton, Brown, Capes, Cunningham, and Hug-
gins were unlawfully separated because they were
"white sheep" who "suffer[ed] along with the black"
(Mqajestic Molded, supra, 330 F.2d at 606). The complaint
as to them will be dismissed.
(2) The remaining July 1981 separations
However, an employer who has decided for lawful
economic reasons to diminish the size of his work force
violates Section 8(a)(3) and (1) of the Act by selecting
employees for inclusion in the layoff because of their
actual or suspected union activity. Sumco Mfg. Co., 251
NLRB 427, 438 (1980), enfd. 678 F.2d 46 (6th Cir. 1982);
Pace Oldsmobile, 256 NLRB 1001, 1008-09 (1981), enfd.
in relevant part and remanded in part 681 F.2d 99 (2d
Cir. 1982); Townsend & Bottum, Inc., 259 NLRB 207, 217
(1981). The record contains direct evidence that Finley
was included in the separations for that reason-namely,
Denton's statement to her that she was being laid off be-
cause she had signed a union card. For the reasons set
forth below, I conclude that except for Baker, Benton,
Brown, Capes, Cunningham, and Huggins (see supra sec.
II,J,3,a(1)), all the alleged discriminatees separated in
July 1981 were included in these separations because of
their union activity or suspected union activity.
Thus, the record shows that Respondent repeatedly
threatened to discharge employees for union activity and
to close down the plant if the employees chose a union.
Such threats were made to several of these alleged dis-
criminatees personally-more specifically (see supra),
Prince, Sisk, Bates, and Baltimore. Further, General Pro-
duction Manager Hood expressed apprehension that
Bush's action in going to the union hall to obtain union
cards would lead to his discharge unless he gave Turn-
bull an apology (which Bush did not give). Further, I
conclude that the record preponderantly shows that Re-
spondent knew or suspected that all 22 of these alleged
discriminatees had engaged in union activity. Thus, as
previously noted, when laying off alleged discriminatee
Finley, Production Manager Denton told her that
Denton knew she had signed a union card. Denton made
similar remarks to Zackery and (although prematurely)
to Weaver. Denton made notations on July 1 that alleged
discriminatee Sisk had been engaging in union activity;
and on the same date, Broadwell made a similar notation
regarding alleged discriminatees Wilcox and White.123
12'1 In view of this evidence that Respondent thought that Wilcox was
engaging in union activity, no showing need be made that she in fact did
so. NLRB v Clintron Packing Co., 468 F.2d 953, 955 (8th Cir. 1972); Colt
Indliirne, 228 NL RB 723, 729 (1977).
In mid-June and again on July 2, Denton remarked that
James Hawthorne was signing people up for the Union.
Before his July 8 exclusion from the plant, he obtained
signed authorization cards in the plant lounge. Among
those from whom he obtained signed authorization cards
were alleged discriminatees Bush, Cranmore, Peggy Fitz-
gerald, Elroy Hawthorne (James' brother), Lee, and
Prince; and James Hawthorne also solicited signatures
from alleged discriminatees Baltimore and Carolyn Cald-
well, both of whom signed at others' solicitation. Also, in
mid-June and thereafter Denton remarked that Willie
and Mae Caldwell were giving out union literature and
authorization cards. As noted supra, they engaged in
much of this activity at their van in view of Respond-
ent's office. At this van, alleged discriminatee Bates
signed an authorization card while Denton and Yvonne
Broadwell were sitting in a nearby car. Also at this van,
authorization cards were picked up from and/or returned
to Willie and Mae Caldwell by, inter alia, alleged discri-
minatees Finley, Hubbard, Sisk, and Wills. The alleged
discriminatees included Willie Caldwell's daughter-in-
law, Zackery; Mae Caldwell's daughter and Willie Cald-
well's stepdaughter, White; Willie and Mae Caldwell's
daughter, Carolyn Caldwell; James Hawthorne's wife,
Bernice, and his brother, Elroy; Bernice Hawthorne's
brother-in-law, Ellis; Peggy Fitzgerald, whose husband,
before his discharge, had initiated the union organization-
al campaign; and Peggy Fitzgerald's sister-in-law, Prince.
Furthermore, Respondent made affirmative efforts to
find out the identity of union adherents. Respondent's
highest ranking supervisor (except Turnbull) engaged in
surveillance over the July 12 union meeting attended by
(inter alia) Bush, Ellis, Griffin, James Hawthorne, and
Prince, all of whom were included in the July 20-24 sep-
arations. During this visit, Hood conversed with alleged
discriminatee James Hawthorne, and was in a position to
observe alleged discriminatee Prince. Also, Hood caused
employee Summers, whose car was parked in a lot out-
side the union hall but who was not discharged, to make
an untruthful disclaimer to Denton about his union senti-
ments. The two supervisors (Denton and Broadwell) im-
mediately under Hood made notations of the names of
employees who engaged in union activity and the dates
and nature of such activity. Supervisor Weaver's interro-
gation of Baltimore about the Union evinced manage-
ment's well-founded suspicion of her union sympathies. I
infer that members of management were able to find out
what they were anxiously looking for.
Moreover, the reasons which Respondent has ad-
vanced for selecting these employees for inclusion in the
separations are either nonexistent, false, highly improb-
able, or unsupported by available, but unproduced, com-
pany records.
Thus, Turnbull's and Denton's testimony that Re-
spondent had not initially intended to include employee
Lee in the July 10 separations, and did so at her request
made on that date, is belied by Denton's internal nota-
tions, dated July 8 and 10, which establish that the deci-
sion to include Lee in the layoff was made no later than
the decision to include other women who were laid off.
Turnbull's and Denton's testimony that an employee's
1355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having "qualified" on double machines was given sub-
stantial weight in deciding whom to retain on July 10 is
substantially undermined by Respondent's selection, for
inclusion in the July 10 separations, of "Class 1" opera-
tors Carolyn Caldwell (a "great" worker), Peggy Fitz-
gerald, Lee, and Bernice Hawthorne (who was doing a
"great job" and had been assured that she was going to
the new plant). Moreover, Respondent also included in
the July 10 separations alleged discriminatees Sisk (who
had received a potted flower from Turnbull for doing
"such a good job" on the combined machines); Bates
(who had been promised an increase to a Class 1 opera-
tor's rate, and was one of the first employees who
learned how to run double machines); and Baltimore
(one of the first two employees to learn how to operate
the combined wrapper, and who was also capable of
working on double machines). Also, Baltimore, Bernice
Hawthorne, Hubbard, Lee, Prince, and Weaver were in-
cluded in the separations although they had at one time
served as floorladies and Turnbull testified that Respond-
ent prefers to retain such personnel because of their dem-
onstrated versatility. The employees separated on July
20-24 included a former supervisor, Elroy Hawthorne,
who had been removed from his supervisory post at his
own request; an employee (Bush) whom General Pro-
duction Manager Hood described as an employee whose
work he liked; and three "Class 1" employees (Griffin,
Prince, and Weaver). While it is true that the record
shows certain deficiencies in some of these 22 individ-
uals, there is no testimonial evidence that such deficien-
cies contributed to their. selection for separation, nor
does the record show that Respondent's management re-
garded such shortcomings as serious enough to affect
these individuals' periodic ratings. Indeed although Turn-
bull testified that these rating sheets played a part in Re-
spondent's decision about whom to include in the July 10
separations, such sheets were not produced, although
they were still in existence at the time of the hearing.
Respondent's failure to produce them leads me to infer
that, if produced, they would have shown that the rat-
ings of employees selected for inclusion in the July 10
separations were as good as or better than retained em-
ployees' ratings. Golden State Bottling Co. v. NLRB, 414
U.S. 168, 174 (1973); Ohio Calcium Co. v. NLRB, 133
F.2d 721, 727 (6th Cir. 1943); Auto Workers (Gyrodyne
Co.) v. NLRB, 459 F.2d 1329, 1335-45 (D.C. Cir. 1972);
Zapex Corp., 235 NLRB 1236, 1239 (1978), enfd. 621
F.2d 328 (9th Cir. 1980).
Particularly in view of Respondent's maintenance of
these ratings sheets, Respondent's contention that it se-
lected the July 20-24 alleged discriminatees for separa-
tion merely because they happened to be working on the
second shift seems improbable. Rather, it would appear
more natural that Respondent would select for separation
the least desirable employees, regardless of their shift,
and transfer to the first shift the retained second-shift
employees. Particularly odd was Respondent's termina-
tion of employee Ellis, who was Respondent's only
batter mixer and whose termination required the training
of a series of new batter mixers, including at least one
employee (Hicks) who never worked for Respondent at
the old plant and had worked for Respondent at the new
plant for only a few weeks. Further, although the work
performed at the old plant by the other three laid-off
male employees was functionally similar to that of ma-
chine operator at the new plant, Respondent obtained
new machine operators by training one or two former
shipping employees. Also, the four males laid off with
the second shift included three machinists (Bush, and
James and Elroy Hawthorne),' 24 although Turnbull tes-
timonially attributed Respondent's January 1981 decision
to abandon making cone machinery for 2 years partly to
a need for "all of our machinists" to move into the new
plant; and during his January.1981 speech to the employ-
ees about the move, stated that the male employees
would have more work moving to the new plant and
would have to schedule their vacations for some other
period. Moreover, although no contention is made that
the second-shift alleged discriminatees were separated for
any shortcomings as employees, their separation slips
stated that they had been terminated, and not that they
had been laid off. When it transpired that the termina-
tions had left Respondent shorthanded at the old plant,
Respondent elected to work an undisclosed amount of
overtime, and to transfer unseparated employees to a re-
established second shift, rather than to recall the separat-
ed employees. The straightforwardness of Turnbull's tes-
timony regarding Respondent's alleged undifferentiating
treatment of second-shift personnel is further drawn into
question by his use of a demonstrably unauthentic docu-
ment to corroborate his testimony that termination of the
second shift was decided on as early as June; by the in-
consistencies, in Denton's allegedly contemporaneous
notes, as to whether the separation of the second-shift
employees was decided on after the decision to effect the
July 10 separations;' 2 5 by second-shift alleged discrimin-
atee Prince's receipt of a 55-cent wage increase effective
July 2; by the inconsistencies between on the one hand
Turnbull's testimony that the July 10 separations were
effected partly because Respondent had accumulated
enough fountainpack stock, and on the other hand
Broadwell's representation to the employees, and Den-
ton's internal notation dated July 10, attributing the sepa-
rations partly to the alleged slacking off of orders; and
by the evidence impeaching Turnbull's testimony that
second-shift worker Cooper was transferred to the first
shift, instead of being discharged on July 22 with the rest
of the shift, because on July I she had agreed to accept a
sanitation job at the new plant (supra sec. II,A,10). Cast-
ing further doubt on the sincerity of Respondent's pro-
fessed motives for the separations is Turnbull's testimoni-
al effort to imply that alleged discriminatee Finley could
have avoided separation by bidding for the posted sanita-
tion job. This attempted implication ignores the docu-
124 It is unclear from the record whether Bush was working on the
second shift before his vacation, during which he was terminated. James
Ha.wthorne had been on sick leave for several weeks before his termina-
tion, although his most recent active work had been performed on the
second shift.
L25 Thus, a Denton memorandum dated July 8 states that the eight-
employee second shift and the two-employee sugar roll cone "depart-
ment" were to be phased out "when production allows." However, a
Denton memorandum dated July states, "We hope the [July 10 separa-
tions] will be last layoff"
1356
TURNBULL CONE BAKING CO.
mentary evidence that the posted job was supervisory in
nature, and would be wholly unrealistic assuming the ac-
curacy of Yvonne Broadwell's testimony that Cobb was
selected to fill that posted supervisory job (although
Turnbull's explanation for Cooper's and-to a degree-
Cobb's retention depends on his testimony that the plan
for one supervisory sanitation job was changed to three
nonsupervisory sanitation (cleaning) jobs).
Particularly in view of Respondent's "discharge" nota-
tion regarding the July 20-24 separations, the inconsist-
encies in Respondent's expressed intentions regarding the
recall of the employees separated on July 10 cast further
doubt on the good faith of Respondent's explanations for
the separations. When effecting these separations, Re-
spondent drafted separation slips stating that they had
been separated for lack of work, and without any mark
in the box before "Discharged." Moreover, some em-
ployees were affirmatively told that they would be called
back-more specifically, Finley, Sisk, White, Wills, Cun-
ningham, and Bates. However, Denton's internal nota-
tions about the July 10 separations state that they were
permanent; and after Bates' separation, Respondent ad-
vised the city housing authority that she had been termi-
nated and Respondent did not know when she would
return to work. Eventually, after beginning operations in
1982 at the new plant, Respondent made no job offers at
all to 11 of the 18 cone packers terminated in 1981, suc-
cessfully encouraged the prompt quitting of one cone-
packer (Varner) who was called back, and laid off an-
other (Prince) whose work was as good as that of em-
ployees who were retained, while hiring about 45 new
employees off the street. As shown supra section
II,E,7,c, Turnbull gave unlikely and internally inconsist-
ent explanations for this policy, which by late May 1982
had led to the inclusion in Respondent's work force of
13 employees (including 7 or 9 permanent employees)
who never worked for Respondent at the old plant.
Lending further weight to the inference of discrimina-
tory selection is the confusion in Respondent's evidence
regarding the relationship, if any, between the separa-
tions and the disposition of the fourth-floor machines. A
September 1981 letter to an NLRB field examiner from
Respondent's labor relations adviser, and subscribed to in
Turnbull's prehearing affidavit, states that Respondent
laid off the fourth-floor employees in order to rebuild all
seven of the machines on that floor. However, at the
hearing, the parties stipulated that nine machines, includ-
ing seven fountain-pack machines, were on this floor;
and Turnbull did not testify (although Supervisors
Denton and Yvonne Broadwell did) that Respondent in-
tended to rebuild any of the fourth-floor machines.
Rather, Turnbull testified that Respondent decided, in
February or March 1981, to sell (rather than use in the
new plant) the seven fountain-pack machines, and that
Respondent thereupon consequently decided that the
fourth floor would be the first one to go. However, he
gave internally inconsistent testimony about when (if
ever) these machines were sold and when they were dis-
assembled (see supra sec. II,A,6). Inconsistently with
Turnbull's testimony, Assistant Production Manager
Yvonne Broadwell testified that Respondent planned "all
along" to begin the move to the new plant by moving
the machinery to that plant from the fourth floor. More-
over, when separating the first-shift employees on the
fourth floor, Broadwell told the employees (inconsistent-
ly with Turnbull's testimony) that the machines on that
floor would be the first to be moved to the new plant.
Also somewhat inconsistently with Turnbull's testimony,
a Denton notation dated July 10 states that Respondent
had decided to cut off the fourth floor "because we are
going to start moving machines." Moreover, that same
notation (G.C. Exh. 96) makes the inaccurate assertion
that Peggy Fitzgerald and Zackery, both of whom were
included in the July 10 separations, had been working on
the fourth floor. Another Denton notation (G.C. Exh.
97), also dated July 10, makes no fourth-floor assertion as
to any employees except Finley, Sisk, White, and Wills;
and names Sisk both as working and as not working on
that floor.
Finally, I note that these 22 alleged discriminatees had
seniority dates going back to 1965, 16 years previously.
While Respondent contends that seniority was not a
factor in determining who was to be laid off, an employ-
ee's longtime retention indicates characteristics which
Respondent allegedly did consider, such as acceptable at-
tendance, promptness, and obedience.
For the foregoing reasons, I find that Respondent sep-
arated Baltimore, Bates, Bush, Carolyn Caldwell, Cran-
more, Ellis, Finley, Griffin, Peggy Fitzgerald, Bernice
Hawthorne, Elroy Hawthorne, James Hawthorne, Hub-
bard, Lee, Prince, Sisk, Varner, Weaver, White, Wilcox,
Wills, and Zackery because of their actual or supposed
union activity. My finding that Bernice Hawthorne was
a supervisor requires dismissal of the complaint as to her.
Parker-Robb Chevrolet, 262 NLRB 402 (1982).
(3) The reprimand of employee Zackery
Further, I agree with the General Counsel that the
reprimand of employee Zackery dated July 1, 1981, was
motivated by her union activity and, therefore, violated
Section 8(a)(3) and (1) of the Act. Zackery was the
daughter-in-law of Willie Caldwell, who engaged in a
substantial amount of organizing activity while parked in
his van in view of Respondent's office. About mid-June
1981, Production Manager Denton correctly remarked to
Zackery that she had signed a union card. After stopping
off at her father-in-law's van immediately before clock-
ing in on June 29, Zackery received at Denton's instance
a written reprimand for the ostensible reason that Zack-
ery had gone out to talk to the Caldwells after clocking
in, even though both then floorlady Hubbard and em-
ployee Bates corroborated Zackery's truthful denials by
truthfully stating that it was Bates who had done this.
Three days later, Denton remarked that employees who
joined the Union would get writeups. Particularly be-
cause Bates was acting against her own interest by taking
the blame, I can perceive no reason other than the union
activity of Zackery and her family for Respondent's per-
sistence in reprimanding her for conversing with the
Caldwells at a time when she had not done so.
1357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The allegedly unlawful 1982 discharges; the alleged
unlawful no-talking rule
(1) The discharge of Mark Raborn
In addition, I agree with the General Counsel that
Mark Raborn was discharged, in violation of Section
8(a)(3), (4), and (1) of the Act, because of his union ac-
tivity and because he testified before me in support of
the Union's charge.
After Raborn advised General Production Manager
Hood that Raborn had been subpoenaed to testify before
me, Supervisor Yvonne Broadwell told employee Nella
Broadwell that Raborn would lose his job because he
was going to testify for the Union at the trial. After
Raborn had attended the hearing pursuant to the subpoe-
na, Supervisor Yvonne Broadwell and Production Man-
ager Denton told employee Nella Broadwell that he was
thought to be making favorable remarks to other em-
ployees about the Union, and urged Nella not to talk to
him. Also, Denton inserted into his personnel file a nota-
tion that he had been talking to another employee "about
union" and was blaming Denton for the layoffs attacked
in the complaint.
After Raborn had testified for the General Counsel
and his union card had been received into evidence, he
was transferred to the third shift, where Respondent at-
tempted to create a plausible reason for getting rid of
him. Thus, during the first two of the four night shifts
worked by Raborn, he was required to perform the
duties of an inspector as well as operating his six ma-
chines, although Turnbull testified that a cone inspector's
job with respect to six machines was a full-time job and
utility person Coots, the supervisor on that shift, had un-
successfully attempted to get "them" to assign an inspec-
tor thereto. Furthermore, Raborn was discharged at the
end of his fourth night shift even though his production
during three of these shifts was about the same as the
production on that shift before his transfer thereto, and
his production on his remaining night shift was signifi-
cantly higher (an inference which I drew from the un-
denied evidence that the machines that night ran "per-
fect," from Hood's approving comments at the end of
that shift, and from Respondent's unexplained failure to
show the level of production during that shift). More-
over, General Production Manager Hood, who had pre-
saged Bush's discharge for union activity, accompanied
Hood's notification to Raborn of his transfer and his dis-
charge by stating that Hood hated to do it but was going
to have to do it. In addition, when first-shift batter mixer
Hicks complained to Denton that for "days" third-shift
batter mixer Maxwell had been leaving the batter room
floor wet with flour and water, Denton accompanied by
a reference to Raborn's participation in the Board hear-
ing Denton's groundless efforts to place the ultimate re-
sponsibility on him, although he had worked only 2
nights on the third shift, during which he had served as
cone inspector and machine operator.
Furthermore, Raborn's separation slip alleged that Re-
spondent had made continuing unsuccessful efforts to
change his work habits and that he was uncooperative
with fellow workers. However, Raborn had had only
one counseling session (which had nothing to do with
either of these alleged deficiencies); and aside from the
memorandum regarding this counseling session, Re-
spondent's written records contain no even allegedly ma-
terial notations regarding Raborn, although Respondent's
supervisors have a practice of making such notes regard-
ing deficiencies in Respondent's employees.
For the foregoing reasons, I find that the real reason
for Raborn's discharge was his union activity and his
conduct in testifying before me in support of the Union's
charge. In so finding, I note, moreover, that Raborn's
timecards materially impeach Turnbull's testimony in
connection with why Raborn was discharged. These
timecards establish that Raborn began to work on the
third shift on the evening of Thursday, May 6, and that
he worked a total of four such shifts before his dis-
charge. However, Turnbull in his testimony attributed to
Raborn the low third-shift production on the shifts
which began on May 3, 4, and 5 (see supra fn. 104).
Moreover, Turnbull strongly implied that Raborn's alleg-
edly poor performance on the third shift was to a signifi-
cant extent responsible for Dowling's alleged conclusion
as of Monday, May 10, that the third shift (initiated on
March 29) was costing too much, although as of May 10
Raborn had worked only two such shifts and during
both of these shifts production was comparable to third-
shift production before his transfer.
(2) The no-talking rule directed to and the
discharge of Nella Broadwell
The undisputed evidence establishes that, while cone
inspectors are actively working, they are ordinarily per-
mitted to talk to other employees, including the machine
operators, about any subject, so long as the inspector
remain at their work stations. Further, machine operators
are ordinarily permitted during working hours to talk to
other employees, including inspectors, during periods
when the machine operators' active services are not re-
quired. Indeed, on occasion the inspectors' duties require
the inspectors to talk to the machine operators. Howev-
er, Production Manager Denton instructed cone inspec-
tor Nella Broadwell to refrain from talking to machine
operators Summers and Raborn, even while she was at
her job station, on the stated ground that Denton sus-
pected that these machine operators were trying to
induce Nella Broadwell to support the Union. By Den-
ton's issuance of such instructions for this reason, Re-
spondent further violated Section 8(a)(1) of the Act.
NLRB v. Lou DeYoung's Market Basket, 406 F.2d 17, 22
(6th Cir. 1969);126 Professional Air Traffic Controllers Or-
ganization, 261 NLRB 922 (1982); U.S. Industries, 258
NLRB 1319 fn. 2 (1981), amended, 265 NLRB 57 (1982).
Furthermore, Denton admitted that Nella Broadwell
was discharged on April 22 because of that day's inci-
dent when she expressed resentment of the fact that
Denton had forbidden conversations between Nella
Broadwell and machine operators Raborn (who worked
about 3 feet from her) and Summers, about the only em-
126 Remanded on other grounds, with instructions to remand to Board
for further proceedings, 395 U.S. 828 (1969); remanded to Board 414
F.2d 351 (6th Cir. 1969); decision on remand 181 NLRB 35 (1970), enfd.
430 F 2d 912 (6th Cir. 1970).
1358
TURNBULL CONE BAKING CO.
ployees she could talk to without leaving her work sta-
tion; while at the same time Denton and employee Clark
were laughing and talking while they worked. However,
an employee cannot lawfully be discharged for failing to
respect an unlawful rule, particularly where, as here, that
rule has been discriminatorily imposed on the employee.
See U.S. Industries, supra; St. Vincent's Hospital, 265
NLRB 38 (1982). Accordingly, Nella Broadwell's dis-
charge violated Section 8(a)(3) and (1) of the Act.
Denton testified that Nella had no warning slips in her
file; that she had given no trouble except for the occa-
sions when she allegedly left her work station; and that
but for "her coming up and cursing me and jumping on
me, she would still be there as far as I'm concerned."
Unlike Denton's and Clark's version of this incident,
Nella's credible testimony shows that she raised her
voice above normal but without shouting, put some hos-
tility into it, placed her hands on her hips without
making any menacing gestures, and said that if Denton
was claiming Nella had not been doing her job, Denton
was telling a "damn lie." Particularly in view of Den-
ton's highly exaggerated description of Nella's language
and gestures during this incident, I conclude that Nella
was discharged because of the subject matter of her com-
plaint (that is, the restrictions unlawfully imposed on her
in order to prevent her exposure to prounion arguments)
rather than because of her concomitant language and
gestures. The use of foul language in the plant was not
uncommon. Moreover, although Respondent contends
that she was discharged pursuant to a plant rule which
renders "insubordination" an offense subject to immedi-
ate dismissal, the only other occasion on which Denton
ever discharged anyone for insubordination was the dis-
charge (almost a year earlier) of an employee for con-
duct which (as described by Denton) was significantly
more egregious than Nella's conduct.' 2 7 In any event,
Nella Broadwell's language and gestures were natural
and not unreasonable reactions to the provocation afford-
ed by Respondent's unlawful limitations on her talking
with fellow employees. Accordingly, her language and
gestures cannot serve to justify her discharge. NLRB v.
M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965);
NLRB v. Steinerfilm, Inc., 669 F.2d 845, 852 (Ist Cir.
1982); Coors Container Co. v. NLRB, 628 F.2d 1283 (10th
Cir. 1980); E. I. du Pont de Nemours, 263 NLRB 159
(1982); John Kinkel & Son, 157 NLRB 744, 745-746
(1966); Wometco Coca-Cola Bottling Co., 255 NLRB 431,
446-447 (1981); Sherwood Ford, 264 NLRB 863, 869,
869-871 (1982).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
127 Benton testified that she discharged that employee after she started
"busting up cones"; stated, "God damn you, I wish you would fire me.
... I'd like to own this company I'd sue you to high heaven"; "kept on
ranting and raving"; acted "very, very hostile"; and at one point seemed
about to attack Denton.
3. Respondent has violated Section 8(a)(1) of the Act
by threatening employees Virginia Wills, Ellen Finley,
and Earline Bates that employees would be discharged
for union activity; by threatening employee Nella Broad-
well that employees who testified in support of the
Union's charge would be discharged; by threatening to
close down the plant if the employees chose the Union;
by engaging in surveillance over a union meeting; by in-
terrogating employees Mary Zackery and Betty Balti-
more about whether they had signed a union card; and
by discriminatorily forbidding conversations between
employees Nella Broadwell, Jerry Summers, and Mark
Raborn.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by separating Betty Baltimore, Earline Bates,
Nella Broadwell, Bobby Bush, Carolyn Caldwell, Jo
Ann Cranmore, Donald Ellis, Ellen Finley, Peggy Fitz-
gerald, Jurrelle Griffin, Elroy Hawthorne, James Haw-
thorne, Athelene Hubbard, Linda Lee, Juanita Prince,
Linda Sisk, Wilma Ruth Varner, Evelyn Weaver, Doro-
thy White, Sarah Wilcox, Virginia Wills, and Mary
Zackery.
5. Respondent has violated Section 8(a)(3), (4), and (1)
of the Act by discharging employee Mark Raborn.
6. The unfair labor practices set forth in Conclusions
of Law 3, 4, and 5 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act by interrogat-
ing Carolyn Caldwell and Juanita Prince; by threatening
Carolyn Caldwell and Dorothy White; or by separating
Johnny Baker Jr., Wilma Benton, Wanda Brown, Willie
Lee Cape, Rita Cunningham, Bernice Hawthorne, and
Ricky Huggins.
THE REMEDY
Having found that Respondent has violated the Act by
engaging in certain unfair labor practices, I shall recom-
mend that it be required to cease and desist therefrom.
Such unfair labor practices included the separation of 21
employees for union activity, the discharge of still an-
other employee for union activity and testifying before
the Board, the imposition of a discriminatory no-talking
rule and the unlawful discharge of an employee for com-
plaining about it, the reprimand of an employee for
union activity, surveillance over a union meeting, inter-
rogation regarding union activity, and threats to engage
in unfair labor practices in the future. Respondent's
unfair labor practices were committed over a period of
10 months, and largely by members of Respondent's top
management who remained in Respondent's employ at
the time of the hearing-namely, Respondent's principal
operating officer (Turnbull), general production manag-
er, production manager, and assistant production manag-
er. I conclude that, unless restrained, Respondent is
likely to engage in continuing and varying efforts in the
future to infringe on its employees' rights. Accordingly,
Respondent will be required to refrain from in any other
manner infringing on such rights. NLRB v. Express Pub-
lishing Co., 312 U.S. 426, 437-439 (1941); NLRB v.
Southern Transport, 343 F.2d 558, 561 (8th Cir. 1965);
NLRB v. East Texas Pulp & Paper Co., 346 F.2d 686,
1359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
689-690 (5th Cir. 1965); Hickmott Foods, 242 NLRB 1357
(1979).
Affirmatively, Respondent will be required to offer the
unlawfully separated employees immediate reinstatement
to the jobs of which they were unlawfully deprived or, if
such jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority, pension rights, or
other rights and privileges previously enjoyed. In addi-
tion, Respondent will be required to make them whole
for any loss of pay they may have suffered by reason of
the discrimination against them, less net interim earnings,
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as called
for in Florida Steel Corp., 231 NLRB 651 (1977).'28
Also, Respondent will be required to remove from its
files any reference to the unlawful reprimand and unlaw-
ful separations, and notify the discriminatees in writing
that this has been done and that evidence of their unlaw-
ful reprimand and unlawful separations will not be used
as a basis for future personnel action against them. Ster-
ling Sugars, 261 NLRB 472 (1982). In addition, Respond-
ent will be required to post appropriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed' 29
ORDER
The Respondent, Turnbull Cone Baking Company of
Tennessee, Chattanooga, Tennessee, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening that employees will be discharged for
union activity or for testifying before the Board; threat-
ening to shut down the plant if the employees choose
union representation; engaging in surveillance over union
meetings; interrogating employees about union activity in
a manner constituting interference, restraint, and coer-
cion; and, with a purpose of discouraging union solicita-
tion, forbidding conversations between employees at
times and under circumstances where conversations are
generally permitted.
(b) Discharging, laying off, reprimanding, or otherwise
discriminating against any employee with regard to his
hire or tenure of employment or any other term or con-
dition of employment, to discourage membership in
Local Lodge 56 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO or any other
labor organization.
(c) Discharging or otherwise discriminating against
any employee because he has filed charges or given testi-
mony under the Act.
128 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
129 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 ill Sec. 102.48 of the Rules. be adopted by the
Board and all objections to them shall be deemed waived lor all pur-
poses.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer the following employees immediate and full
reinstatement to the positions of which they were unlaw-
fully deprived or, if those jobs no longer exist, to sub-
stantially similar positions, without prejudice to their se-
niority, pension rights, or other rights and privileges, and
make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them in
conformity with the section of this decision entitled
"The Remedy:" Betty Baltimore, Earline Bates, Nella
Broadwell, Bobby Bush, Carolyn Caldwell, Jo Ann
Cranmore, Donald Ellis, Ellen Finley, Peggy Fitzgerald,
Jurrelle Griffin, Elroy Hawthorne, James Hawthorne,
Athelene Hubbard, Linda Lee, Juanita Prince, Mark
Raborn, Linda Sisk, Wilma Ruth Varner, Evelyn
Weaver, Dorothy White, Sarah Wilcox, Virginia Wills,
and Mary Zackery.
(b) Expunge from its files any reference to the unlaw-
ful reprimand and separations, and notify the discrimina-
tees that this has been done and that evidence of the un-
lawful reprimand and separations will not be used as a
basis for future personnel actions against them.
(c) 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.
(d) Post at its Chattanooga, Tennessee plant copies of
the attached notice marked "Appendix. "'30 Copies of
the notice, on forms provided by the Regional Director
for Region 10, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered byany other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
The complaint is dismissed to the extent that it alleges
that Respondent unlawfully interrogated Carolyn Cald-
well and Juanita Prince, unlawfully threatened Carolyn
Caldwell and Dorothy White, and unlawfully separated
Johnny Baker Jr., Wilma Benton, Wanda Brown, Willie
Lee Capes, Rita Cunningham, Bernice Hawthorne, and
Ricky Huggins.
"'I 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 Na-
tional Ltabor Relations Board" shall read "Posted Pursuant to a Judgment
of the Unllited States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1360