Williams Services

National Labor Relations Board - Board Decisions

Apr 11, 1991

302 N.L.R.B. 492 (N.L.R.B. 1991)

492
302 NLRB No. 81
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has moved to strike the Respondent’s exception on
the ground that it does not comply with the requirements of Sec. 102.46 of
the Board’s Rules and Regulations. We find that the Respondent’s exception
and brief together sufficiently designate the Respondent’s points of disagree-
ment with the judge’s decision even though not fully in compliance with the
literal requirements of Sec. 102.46. Cincinnati Bronze, 286 NLRB 39 (1987).
Accordingly, the General Counsel’s motion is denied. We, however, have con-
sidered the Respondent’s exception and brief only as to the specific issues ad-
dressed in the brief, i.e., the 8(a)(3), (4), and (1) violations in the reprimands
and discharge of Kitty Cadorette and the 8(a)(5) and (1) violation in the unilat-
eral reduction of employees’ wages.
The Respondent argues in its brief that its unilateral change in wages did
not constitute a violation of Sec. 8(a)(5) and that it is unable to comply with
the judge’s recommended remedy for that violation because the Respondent
lacks discretion over wages under the terms of its contract with the Navy. To
the extent that the Respondent relies on the jurisdictional issues considered by
the Board in Res-Care, Inc., 280 NLRB 670 (1986), Member Devaney finds
that the argument is untimely. The judge found that on December 27, 1989,
the Respondent entered into a Stipulated Election Agreement in Case 11–RC–
5648, involving this bargaining unit, in which it admitted that it was an em-
ployer subject to the Board’s jurisdiction. The Respondent failed to contest the
Board’s jurisdiction either prior to the election or in its election objections,
raising the matter only in a motion to dismiss the instant unfair labor practice
proceeding approximately 4 weeks after the objections were filed in the rep-
resentation case. Under these circumstances, Member Devaney finds that the
Respondent has not timely asserted a lack of discretion over wages as a juris-
dictional matter, and may not at this time raise that issue as a defense to the
unfair labor practice finding. See Ryder Student Transportation, 297 NLRB
371 (1989); see also Training School at Vineland, 301 NLRB 217 (1991).
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We note that Isaac Chisolm’s name is incorrectly spelled in the judge’s de-
cision.
Williams Services, Inc. and International Associa-
tion of Machinists and Aerospace Workers,
AFL–CIO. Cases 11–CA–13674–1 and 11–CA–
13852
April 11, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 26, 1990, Administrative Law Judge
William N. Cates issued the attached decision. The Re-
spondent filed an exception and a supporting brief. The
General Counsel filed a motion to strike the Respond-
ent’s exception.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exception and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Williams Services, Inc.,
Beaufort, South Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Patricia L. Timmins, Esq., for the General Counsel.
John W. Oxendine, Esq. (Oxendine & Associates, P.C.), of
Norcross, Georgia, for the Company.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. Trial in
this matter was held in Beaufort, South Carolina, on July 31
and August 1, 1990. On June 29, 1990, the Regional Director
for Region 11 of the National Labor Relations Board (the
Board), issued an order consolidating cases, consolidated
complaint and notice of hearing (the complaint), based on
unfair labor practice charges filed by International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO (the
Union), on January 12, and amended on February 23, 1990,
in Case 11–CA–13674–1 and on May 18, and amended on
May 30, and June 18, 1990, in Case 11–CA–13852 alleging
violations of Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act).
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs.
Based on the entire record, on briefs filed by counsel for
the General Counsel and counsel for Williams Services, Inc.
(the Company), and on my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted that at times material here, the Company has
been, and is, a Delaware corporation with a place of business
located at the U.S. Navy United States Marine Corps Air
Station in Beaufort County, South Carolina, where it is en-
gaged in providing mess attendant services. The Company
admits that during the 12-month period preceding issuance of
the complaint here, a representative time, it provided services
valued in excess of $50,000 for the United States Govern-
ment (Marine Corps) in Beaufort County, South Carolina.
Notwithstanding these admissions, the Company denies its
operations have a substantial impact on the national defense
of the United States or that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. The Company, however, on December 27, 1989, exe-
cuted a Stipulated Election Agreement in an underlying rep-
resentation case (Case 11–RC–5648) in which it admitted
both of the above denials. The Company did not demonstrate
any changed or special circumstances nor does it contend it
493WILLIAMS SERVICES
1 To the extent that its denial of jurisdiction is based on the fact it is a con-
tractor subject to the Service Contract Act, such contention is without merit.
First, the fact it is subject to the Service Contract Act is not something newly
discovered nor previously unavailable to it. Second, the Board in Ebon Re-
search Systems, 290 NLRB 751 fn. 5 (1988), held:
The fact that an employer is a contractor subject to the terms of the Serv-
ice Contract Act does not mean . . . the Board will decline to assert ju-
risdiction over that employer.
2 I will address the independent 8(a)(1) allegations supported by the testi-
mony of Kitty Cadorette under the portion of this decision related to her dis-
charge.
3 Counsel for the General Counsel moved posttrial to amend out par. 8(d)
of the complaint. I grant her unopposed motion.
4 Subpar. 8(a) will be addressed in the portion of this decision related to
the discharge of Cadorette.
5 Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).
6 The Bourne test has been cited with approval by various circuits. For a
partial listing of those circuits see Teamsters Local 633 v. NLRB, 509 F.2d
490, 494 fn. 15 (D.C. Cir. 1974).
has discovered any new or previously unavailable evidence
that would require a reexamination of its earlier admission
that it is subject to the Board’s jurisdiction. I find the Com-
pany is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.1
II. LABOR ORGANIZATION
The parties admit, and I find, the Union is, and at all times
material has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union commenced an organizing drive at the Com-
pany at approximately midyear 1989. The campaign cul-
minated in a Board-conducted election on February 6, 1990.
The tally of ballots shows there were approximately 34 eligi-
ble voters and that number of ballots was cast, with 20 cast
for the Union, 12 cast against the Union, and 2 ballots were
challenged. On February 13, 1990, the Company filed timely
objections to conduct affecting the results of the election and,
on March 16, 1990, the Regional Director for Region 11 of
the Board issued his Report of Objections. Thereafter, on
April 6, 1990, the Board in an unpublished Decision and
Certification of Representative certified the Union as the ex-
clusive representative of the employees in the following ap-
propriate unit:
All mess attendants employed by the Employer at its
facility located on Marine Corps Air Station in Beaufort
County, South Carolina; excluding all office clerical
employees, all professional employees, guards and su-
pervisors as defined in the Act.
I shall consider the complaint allegations essentially in the
order dictated by the complaint.2
A. The Independent 8(a)(1) Allegations
It is alleged at paragraph 8, subparagraphs a, b, and c3 that
the Company engaged in certain conduct violative of Section
8(a)(1) of the Act.
1. Alleged interrogation of employees
It is alleged at paragraph 8(b)4 of the complaint that As-
sistant Manager Terri Brown in mid-November 1989 interro-
gated employees concerning their union activities.
Mess Attendant Lorraine White testified Assistant Man-
ager Brown talked to her about the Union as the two of them
walked along the Company’s hallway to clock out either in
late October or mid-November 1989. White testified:
[S]he approached me and she said Lorraine, now you
can’t tell me you don’t know about the union that’s
going on and I said excuse me. She said you mean to
tell me no one has approached you about the union and
I said if I do, it’s my business and I’m not going to
say anything. She said you mean to tell me you can’t
tell me or you don’t know anything else about it. I left
it like that. I said I’m not going to answer it. We
walked on and clocked out.
White said she had not engaged in any open union activity
at the time of this conversation.
White was not cross-examined on the above portion of her
testimony and although Assistant Manager Brown testified
she was not questioned about the conversation. White was a
believable witness and as such I credit her uncontradicted
testimony set forth above.
I shall review this and other allegations of interrogation in
light of the Board’s decision in Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel Employees & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
In Rossmore House, the Board held the lawfulness of ques-
tioning by employer agents about union sympathies and ac-
tivities turns on the question of whether ‘‘under all the cir-
cumstances, the interrogation reasonably tends to restrain or
interfere with the employees in the exercise of rights guaran-
teed by the Act.’’ The Board in Rossmore House noted the
Bourne5 test was helpful in making such an analysis. The
Bourne factors are as follows:
(1) The background, i.e. is there a history of em-
ployer hostility and discrimination?
(2) The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was
he in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there
an atmosphere of ‘‘unnatural formality’’?
(5) Truthfulness of the reply.6
Assistant Manager Brown is, and was at the time she
questioned White, the second highest member of manage-
ment at the company site involved herein. Assistant Manager
Brown did not give White any valid or legitimate reason for
questioning her about her union activities nor did she give
White any assurances against reprisals if she responded to
her questions. White had little, if any, opportunity, even if
she had wished to do so, to have avoided Brown’s questions
inasmuch as Brown questioned her in the company hallway
leading to the timeclock where White had to clock out. As-
sistant Manager Brown did not stop questioning White even
after White told her ‘‘it’s my business and I’m not going to
say anything’’ rather she continued to explore whether White
had engaged in any union activities. For all the above rea-
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sons, I conclude the interrogation was coercive interference
and as such violated Section 8(a)(1) of the Act as alleged in
the complaint.
It is also alleged in paragraph 8(b) of the complaint that
Manager Patricia Ford on or about January 10, 1990, interro-
gated employees concerning their union activities.
Mess Attendant Lisa Moore testified she became aware of
union activity at the Company and attended a union meeting
at employee Cadorette’s home at Cadorette’s request. Moore
said that on January 10, 1990, she and fellow employees
Kenneth Spencer, Sue Montgomery, and Sharon Simmons
were in the breakroom ‘‘sitting at the table talking about
meetings and stuff at the union’’ when employee Simmons
stated, ‘‘No one had ever invited her to a meeting that all
she heard was little bits and pieces.’’ Moore testified Man-
ager Ford ‘‘stepped in and asked me [Moore] had I ever at-
tended a meeting.’’ Moore told Manager Ford she had not
although she had in fact done so.
Manager Ford testified at length but was not asked about
the above conversation. Employee Simmons was called as a
witness by the Company but was not question about this
conversation. Moore, who is still employed by the Company,
appeared to be testifying truthfully. Accordingly, I credit her
uncontradicted testimony as outlined above.
I am persuaded Ford’s questioning Moore constituted coer-
cive interference and as such violated Section 8(a)(1) of the
Act. The Company engaged in other violations of the Act as
has already been and will hereinafter be set forth. Manager
Ford, the top management representative at the facility, did
not advance any legitimate reason for her inquiry nor did she
give the employees any assurances against reprisals if they
participated in union activities. Moore’s untruthful reply indi-
cates she was fearful of the consequences of admitting she
had attended a union meeting. Ford was already aware of the
union organizing drive and had no valid reason for the infor-
mation she sought.
2. Alleged threats of pay cuts
It is alleged at paragraph 8(c) of the complaint that the
Company threatened to cut the rate of pay for its employees
if they selected the Union as their bargaining representative.
In support of this allegation, counsel for the General Counsel
relies on certain leaflets as well as a letter admittedly distrib-
uted to the employees at various dates between December
27, 1989, and February 6, 1990.
The first such document counsel for the General Counsel
relies on is a letter that was sent to all mess attendants by
Vice President Maggie Williams dated January 16, 1990.
Williams’ letter in pertinent part follows:
If you choose to join the Union, they will take $.45 per
hour out of your paycheck to pay for Union health in-
surance. This Union health insurance will be mandatory
for all employees.
How will this effect you and your family? As a mili-
tary dependent, you will be forced to pay $.45 per hour
for Union health insurance that you don’t need. . . .
Are you willing to take a $.45 per hour pay cut just
so that you can have an insurance policy that you will
never use and simply make the Union health fund rich?
One of the leaflets counsel for the General Counsel relies on
is labeled ‘‘What Will Happen If You Vote For the Machin-
ist Union?’’ One item listed on the Company’s leaflet reads:
You are currently receiving an H&W supplement of
$.45 per hour in your pay checks, but if you vote in
a union, the union will take that $.45 for each and
every hour out of your paycheck.
Another leaflet distributed by the Company labeled ‘‘Did
You Know That’’ contains the following:
Each and every month, the Machinist Union will take
another $.45 per hour out of your paycheck to be put
in their insurance account.
Another leaflet distributed by the Company labeled ‘‘Dif-
ferences Between Williams Services and The Union’’ in part
reflects the following:
Williams Services The Union
Pays you an additional
.45 per hour for you to
use for insurance or for
any other purpose
which you desire.
Does not give you a choice,
they will take .45 per hour out
of every pay check and put
the money into the Union
Health Fund.
Union Grand Lodge Representative William Camp testi-
fied, without contradiction, that the Union at no time mate-
rial herein had any mandatory health and welfare or medical
insurance plans.
It is undisputed that the Company at that time paid its em-
ployees 45 cents per hour above their hourly wages to pur-
chase health insurance.
I agree with counsel for the General Counsel that the ref-
erences to the loss of 45 cents per hour of additional benefits
constitutes unlawful threats to cut the employees wages if
they selected the Union as their bargaining representative.
3. The warnings to, and discharge of, Cadorette
Counsel for the General Counsel contends the Company
discharged Cadorette on January 9, 1990, because of her ac-
tivities on behalf of the Union and because she participated
on December 27, 1989, in the Board hearing in the underly-
ing representation case (Case 11–RC–5648). Counsel for the
General Counsel contends the reasons advanced by the Com-
pany for Cadorette’s discharge were pretextual and that she
was treated in a disparate manner. The Company, on the
other hand, contends Cadorette ‘‘was discharged for poor
work performance and insubordination.’’ The Company ar-
gues the government failed to meet its burden of proving
‘‘that Williams Services had any discriminatory intent’’ in
discharging Cadorette.
a. The Company’s overall mission and
Cadorette’s duties
The Company serves three meals per day, 7 days per week
to military personnel (Marines) at the United States Marine
Corps facility in Beaufort County, South Carolina.
Cadorette was employed by the Company from December
15, 1988, until her discharge on January 9, 1990, as a mess
attendant. Although the employees are generally classified as
‘‘mess attendants,’’ the evidence establishes they are as-
signed to specific jobs as in the ‘‘salad room’’ as ‘‘cashiers’’
495WILLIAMS SERVICES
7 The descriptions of the various jobs as well as the spellings for those de-
scriptions are as utilized by the parties.
8 Cadorette stated it took approximately 45 minutes to an hour to ‘‘break
down the dish machine,’’ clean it, and put it back together.
9 The Union filed its representation petition on November 30, 1989.
10 Cadorette said she posted the note in Manager Ford’s office because Ford
had requested employees give her 3 to 4 hours’ notice if they were going to
be off from work.
11 Supervisor Cole was not called to testify. Manager Ford who did testify,
did not specifically dispute the actions attributed to Cole by Cadorette.
12 Cadorette testified that at the time Ford spoke with her, Supervisor Cole
had already said she had Jenkins to replace her.
in the ‘‘scullery,’’ ‘‘the pot shack’’ as ‘‘line servers,’’
‘‘bussers,’’ in the ‘‘pastry’’ or preparing ‘‘box lunches’’ and
as a ‘‘truck driver,’’ ‘‘utility,’’ or ‘‘maintenance’’ employee.7
Cadorette’s most recent assignment (from November 1989
until January 9, 1990) was as a ‘‘scullery’’ employee under
the supervision of Roxanne Cole. Cadorette was paid, as
were all other mess attendants at the time, $6.50 per hour
plus 45 cents per hour for health and welfare benefits.
Cadorette described her ‘‘scullery’’ duties as follows:
Basically, we took and loaded dirty dishes in a dish
machine. Took and unloaded and put them in carts.
And had taken them out, set them up for the other em-
ployees to take and use in their job areas. We had taken
and cleaned, broke down the dish washing machine.
Which consisted of taking and pulling out pipes, clean-
ing them. Taking out the drain racks, cleaning that.
Rinsing down the machine. We’d at least once a week,
lime away it.
. . . .
We’d take and put the machine back together and set
it back up for the next meal.8 Finish cleaning, sweep,
mop, whatever had to be done.
Cadorette testified employees were never told what time to
‘‘break down’’ the dish machine but that it was customarily
done after all dishes for each meal had been ‘‘run’’ through
the machine. She said this was normally 30 minutes after
each meal closed.
The Company utilizes approximately three ‘‘bubble ma-
chines’’—plastic dome type machines—from which ‘‘juice,
tea or fruit punch’’ drinks are dispensed. These ‘‘bubble ma-
chines’’ are washed three times per day. According to
Cadorette, the ‘‘scullery’’ employees were not responsible
for cleaning the ‘‘bubble machines’’ but rather the
‘‘bussers’’ performed that task. Cadorette said the ‘‘bubble
machines’’ were sometimes hand washed in the ‘‘scullery’’
area while at other times the ‘‘bubble machines’’ were
placed in the dish machine and washed in that manner.
Cadorette said the employees were never told they could not
wash the ‘‘bubble machines’’ in either of the ways just de-
scribed.
b. Cadorette’s union activities
Cadorette first began to talk with her fellow workers about
union representation in June 1989. After ascertaining there
was an interest in representation, she contacted International
Union Representative Camp. The Union held its first orga-
nizing meeting at Cadorette’s apartment on July 1, 1989.
Cadorette acted ‘‘basically [as] the go-between’’ ‘‘the em-
ployees’’ and the Union regarding ‘‘any questions’’ the em-
ployees had or information they sought. Cadorette testified
she solicited employees to sign ‘‘those cards . . . used to
. . . file a [p]etition . . . for an election.’’ Before the Union
filed its representation petition with the Board,9 Cadorette
asked her supervisor, Roxanne Cole, and another supervisor,
Leroy Foulks to sign union cards. Cadorette served on the
Union’s in-plant organizing committee.
After the Union filed its petition in November, the Board
set a hearing on the petition for December 18, 1989. Inter-
national Union Representative Camp told Cadorette and an-
other employee (Chisolum) they would be needed to assist
the Union at the representation hearing. The representation
hearing was postponed from December 18 until December
27, 1989. Camp told Cadorette and Chisolum they would be
needed at the hearing on the new date. Camp caused a
mailgram to be sent to the Company’s attorney on December
21, 1989, requesting that the above two employees be re-
leased from work on December 27, 1989, at 9:30 a.m. to at-
tend the Board hearing.
Cadorette reported for work as usual on December 27,
1989:
I got there about 6:00 that morning. When I went in
there, I had told Roxanne, because she was the super-
visor for that day. I said, ‘‘Roxanne,’’ I said, ‘‘I have
a meeting at 11:30 with the Union people and the
Board agent and Williams Services.’’ And I said, ‘‘I
have to be there and I need off.’’ I said, ‘‘I don’t know
if I’ll be back to work or not.’’ I said, ‘‘It depends on
what time the meeting gets done with.’’
So, after I got done talking to her I posted a note
on the board in Pat’s office,10 because Roxanne had un-
locked the door for me to go clock in. I had posted the
note up on the board stating that I needed to get off
at 9:30, which was my break time, to go and attend to
that meeting and I didn’t know if I would be back that
afternoon.
Cadorette testified Supervisor Cole told her she would ‘‘get
someone to replace me.’’ Later that morning, Cole told
Cadorette she had gotten mess attendant Connie Jenkins to
replace her.11
Cadorette testified she had a conversation with Manager
Ford later that morning:
It was right before break, because I was cleaning the
sink. She had come in there and had told me that—she
asked me if I could cancel my meeting. I told her that
there was no way that I could take and cancel my meet-
ing because it had been cancelled before. And she said
that she was short of employees and that she didn’t
think that she could get somebody to replace me.12
And I said, ‘‘Well, I’m sorry, but I can’t cancel it.’’
And she said, ‘‘Well, I’ll get back with you, then,
on that.’’
Cadorette testified Manager Ford never got back with her
that morning.
Manager Ford testified:
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Cadorette described the schedule as:
It looked like a photostatic copy.
. . . .
I guess it was between five and seven pages. It had people’s names,
Sunday through Saturday and the hours people had worked. I had taken
and scratched off and made marks on it because of people being termi-
nated or quitting or other reasons. I had written on the back of the paper.
Made notes for myself.
14 Ford testified she discovered that certain items were missing from her of-
fice in mid-November 1989.
I came to work that morning [December 27, 1989]
and there was a note up on the board that Kitty
[Cadorette] . . . needed to leave after she finished her
job.
I looked at her note and there was another note up there
also about some other people who had already put in
time or helped Kitty, so then I went back and I talked
to Kitty first. She was back in the dish room over by
the sink and I said, Kitty, I’m not going to be able to
let you off, because I already got three (3) people out
and I’m going to be short, so after break I’m going to
need you to come back and then Kitty said that she had
an appointment. She didn’t tell me what it was. She
just said she had an appointment that she had to go to,
so then I asked her if by chance she could change it
and then she said no, she couldn’t change it, so then
I said well, I’m not going to be able to let you off. I
will need you to come back after lunch, because we’re
going to be short already, because someone else had al-
ready scheduled stuff ahead of her, so then Kitty said
okay, I’ll be back after break, so then I didn’t get no-
body in her place, because she said she was going to
come back after break.
To the extent that Ford’s and Cadorette’s testimony con-
flicts regarding the morning hours of December 27, 1989, I
credit Cadorette’s testimony. First, she impressed me as a
sincere and honest witness. The actions she attributed to Su-
pervisor Cole about getting a replacement for her were undis-
puted. I am persuaded Cadorette did not just tell Manager
Ford she had an appointment that morning as testified to by
Ford. I am persuaded she informed Ford about the nature of
the meeting because she had made the specific need for her
absence known to Supervisor Cole. Also Manager Ford knew
about the representation hearing that morning because she at-
tended the hearing. I am convinced Cadorette did not tell
Ford she would return to work after her break because
Cadorette knew at that time that Supervisor Cole had already
gotten employee Jenkins to replace her.
c. The Beaufort County Courthouse meeting
Cadorette attended the representation hearing at the Beau-
fort County Courthouse on December 27, 1989. It is undis-
puted that Union Representatives Camp, Devers, and Briggs
also attended for the Union along with employees Chisolum
and Foulks. Attorney John Oxendine, President Freddie Wil-
liams, Vice President Maggie Williams, and Manager Ford
attended for the Company. The meeting was presided over
by an agent of the Board. The Board agent urged and, after
approximately 3 to 4 hours, the parties agreed, to a ‘‘Stipu-
lated Election Agreement.’’ In arriving at the agreement,
Cadorette and the Union’s representatives utilized, among
other things, a multipaged work schedule13 Cadorette brought
to the hearing. According to Cadorette, the Union showed
the schedule to the Board agent who in turn showed it to the
Company’s attorney. The Company contended the schedule
was one of its ‘‘original schedules.’’ Cadorette told them it
was not that she was the one who had written on the photo-
static schedule in ink.
The five-page schedule in question was received in evi-
dence and appears to be a photostatic copy with employees’
names, the days of the week, and the hours employees are,
or were, scheduled to work. Manager Ford testified that
when she saw the schedule at the hearing she told Vice
President Williams it was one of the items that had been
missing from her office.14 Manager Ford testified the red ink
markings on the schedule were ones she had made but that
other inked-in (blue) markings had been made by someone
else. Manager Ford said she prepared the original of the
work chart in question and kept a copy in her office for ref-
erence when changes needed to be made or employees need-
ed to be called in for work when someone was absent for
whatever reason. She said the schedule in question covered
approximately 6 months. Ford said she made copies from the
original of the schedule and posted one such copy on the
outside door to her office. She said she also gave a copy to
her assistant manager and to each of her supervisors.
Manager Ford asked Cadorette (and Chisolum) twice dur-
ing the representation hearing to return to work because they
were needed on the job. Ford first asked at 11:59 a.m. and
again at 12:36 p.m. Neither Cadorette or Chisolum left at the
times requested. International Union Representative Camp
testified, ‘‘I told them both that it was necessary for them
to remain [at the courthouse] until the hearing was finished
because we absolutely needed them to help argue the sched-
ule if it was necessary to go on the record.’’
Cadorette returned to work at approximately 1:34 p.m. and
worked alongside her regularly scheduled work partner Re-
gina Allen and her replacement Connie Jenkins. She worked
in the ‘‘scullery’’ until Assistant Manager Brown moved her
to the ‘‘pot shack.’’ Later that afternoon, Manager Ford told
Cadorette to report to the office that Vice President Williams
wanted to meet with her.
d. The December 27 meeting at the Company
Cadorette reported to the office as ordered where President
Williams, Vice President Williams, Manager Ford, employee
Sharon Simmons, and Attorney Oxendine had already assem-
bled. Cadorette asked fellow worker Normita Anderson to
join her for the meeting. According to Cadorette, the meeting
lasted for approximately 45 minutes. She testified:
They [Vice President Williams and Attorney
Oxendine] asked me where did I get it [the schedule]
and I told them I didn’t really know at that time. That
someone had given it to me. When they gave it to me
it was folded and I showed them how it was folded.
They kept asking me that. They asked me if I knew
that the document had been stolen and I told them, no,
that I did not know it.
He [Attorney Oxendine] said, ‘‘Well, did you know
that anything that has been stolen out of this office?’’
I said, ‘‘No, I didn’t know.’’
497WILLIAMS SERVICES
15 Sharon Simmons, the Company’s employee witness at the meeting, cor-
roborated the testimony of Vice President Williams and Manager Ford except
she made no mention of any ‘‘yelling’’ or ‘‘cursing’’ taking place. Addition-
ally, she did not limit those speaking at the meeting to just Vice President
Williams and Cadorette.
16 Ford testified she also disciplined Chisolum in the same manner.
17 According to Cadorette, Jennings had a copy of the warning in his hand
at the time.
They just kept questioning me and questioning me.
They told me that it would jeopardize my job.
[By Counsel for the General Counsel]
Q. Did they say how it would jeopardize your job
or what would jeopardize your job?
A. Termination.
Q. What was it that would jeopardize your job?
A. Me not telling them who gave me the schedule.
Cadorette testified they continued to questioning her and kept
telling her the schedule she had at the hearing was the
‘‘original’’ one. Cadorette continued to assert it was not that
the extra markings on the schedule were ones she had added
to the ‘‘burn-off copy’’ she had. Cadorette testified:
[T]hey kept asking me and I told them that I—I told
them all that I knew. That I didn’t have anything else
to say, that I’d stand there and shut my eyes and shut
my mouth and lean against the wall.
Cadorette said they finally told her to clock out and go home
which she did.
Vice President Williams and Manager Ford give a some-
what different version of the investigative meeting with
Cadorette. Manager Ford testified:
Mrs. Williams was asking Kitty [Cadorette] where
did the paper come from. Kitty said—what did she
say—oh she said that she wasn’t going to tell her and
then—Kitty said she knew who gave her the paper, but
she—Kitty wasn’t going to tell Mrs. Williams who
gave her the paper, so then Mrs. Williams told Kitty,
I’m not saying that you stole the paper. All we want
to do is find out where things have been going that’s
been walking out of the office. We’re just trying to stop
the theft, because it was a lot of stuffing leaving out
of there, so then Kitty said she said that—Kitty said
that she knew who was taking it, but it really didn’t
matter no way, and then she said—Kitty said the person
that gave it to her didn’t work there any more.
Then Mrs. Williams asked her again and Mrs. Wil-
liams gave her a direct order, Kitty, I’m asking you
now in a direct order to please inform us of who gave
you the paper. Kitty then said I don’t know who gave
me the paper. Somebody walked up, put the paper in
my hand, then I just put the paper in my pocket and
I didn’t look at the paper for a while, so she then—so
Kitty then knew who gave her the paper.
After then Kitty kind of got a little loud and upset,
and said that it was a bunch of bull shit.
Manager Ford testified Cadorette ‘‘said she was through with
it and marched out and left.’’ Ford testified only Vice Presi-
dent Williams and Cadorette spoke during the meeting ex-
cept that Ford spoke up once to say the writing on the sched-
ule was hers.
Vice President Williams’ testimony was essentially the
same as Manager Ford’s except she added that Cadorette
‘‘started yelling’’ and ‘‘cursing’’ at her during their meeting.
Williams told Cadorette if she did not tell her who gave her
the schedule, there could be ‘‘serious repercussions’’ ‘‘even’’
discharge.15
Vice President Williams testified she returned to the Com-
pany’s Columbia, South Carolina headquarters after the
meeting and thereafter had Manager Ford forward
Cadorette’s personnel file to her at that location. Williams
said she then began ‘‘really pondering what to do about the
meeting we had on the 27th.’’
On December 28, 1989, Cadorette was given a written
warning by Manager Ford. Ford prepared and signed the
warning before she gave it to Cadorette.16 The warning has
certain preprinted matters of which ‘‘unreported absence’’
and ‘‘insubordination’’ were checked. Ford wrote on the
warning:
Kitty [Cadorette] requested to leave work for appoint-
ment at break time. Kitty was informed at 9:10 that she
needed to come back after break because I was already
short 3 employee. No replacement was called in. Kitty
was informed at 11:59 & 12:36 to report back to work.
Policy in lounge requires three days notice for appoint-
ments. Kitty stated that she found out Sunday night
about appointment. She reported back to work at 1:34.
Cadorette refused to sign the warning and told Ford the
Union had sent the Company’s attorney a letter requesting
she be granted time off for the representation hearing.
Cadorette said she reminded Manager Ford that she, Ford,
had told the employees in a meeting they only needed to
give 3 to 4 hours’ notice if they were going to be absent.
Cadorette wrote the following on the warning and returned
it to Ford unsigned:
Williams Services, Inc. lawyer was notified last week
by certified mail, as I was told yesterday by Union
Representative. I was notified late Sunday night about
the meeting that was to be held on Wednesday 12–27–
89 at approximately 11:30 AM. I was schedule to be
off on Monday 12–25–89 and 12–26–89 which was
Tuesday. I returned to work on Wednesday as sched-
uled. At 6:00 AM when I came in I told supervisor
Roxanna Cole that I had a meeting at 11:30 AM she
said OK. I spoke briefly with [superviser] Roxanna
Cole and she told me that she called Connie in to take
my place in the scullery. She called Connie at approxi-
mately 9:30 AM. Connie was here before 11:30 AM
which my schedule reads 615–930 1130–200. When the
meeting was over [we] I returned back to and clocked
in at 1:34 and returned to the scullery where I found
Connie and Regina working in the scullery.
Cadorette testified that as she clocked out on the night of
January 1, 1990, Supervisor York Jennings told her he ‘‘had
to write’’ her up that day because she had broken down the
dish washing machine too early.17 Cadorette said she had not
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Employees could not wear watches or other jewelry on their person.
19 It is undisputed that mealtime did not end until 5 p.m. on the date in
question.
20 Cadorette’s written explanation is essentially the same as what she testi-
fied she told Manager Ford in their meeting.
21 Jennings said he learned that Cadorette had broken down the dish ma-
chine early in that one of the employees reported that fact to him.
broken the machine down early, that she had broken it down
at 5:35 p.m. She said she was certain about the time because
she had checked a watch she had in her pocket.18 Cadorette
said she asked Jennings how he knew she had broken the
machine down early. Jennings told her ‘‘he didn’t know be-
cause he was back there making box lunches in the galley.’’
Jennings told Cadorette ‘‘somebody’’ had complained to him
so he had to write her up.
Cadorette said Supervisor Cole showed her a copy of Jen-
nings’ warning at around 6 a.m. on January 3, 1990. Cole
provided Cadorette with a copy of the warning which had
written on it ‘‘Kitty [Cadorette] break down the dish washing
machine, before the dining room people was complete clean-
ing the juice machine.’’ Later that morning, Manager Ford
called Cadorette to her office and gave her a warning which
had already been filled out in the manner described above.
In addition to the above-outlined comments, the following
had been hand written on the warning: ‘‘The machine was
broken down early today Monday Kitty broke down machine
at 5:17 but did not punch out until 6:50. The dish room does
not take 1 hr. & 35 min. to clean.’’ Cadorette said she told
Manager Ford she had not broken the machine down at 5:17
p.m. that it would have been impossible for her to have done
so because ‘‘dishes were coming back’’ to the ‘‘scullery’’ at
that time.19 Cadorette also told Manager Ford she had looked
at her watch at the time she broke the dish washing machine
down and it reflected 5:35 p.m. Cadorette said she not only
advised Ford of the timing mistake on the warning but also
pointed out there was two different handwritings on the
warning. Cadorette told Ford the first couple of lines were
Supervisor Jennings’ but the remainder had been added by
someone else. Ford told Cadorette to write her explanation
of the events on the back of the warning which she did.20
Supervisor Jennings testified he warned Cadorette on Janu-
ary 1, that ‘‘she could not break down the [dishwashing] ma-
chine until she had all the equipment from the dining room
area in the scullery.’’ According to Jennings, Cadorette told
him she was suppose to get off from work at a certain time
and he told her she would have to wash the dishes from the
dining room first. Jennings testified Cadorette broke the ma-
chine down about 17 to 20 minutes after 5 p.m. and that she
should not have done so until 5:35 p.m.21 Jennings acknowl-
edged he told Cadorette he ‘‘had to’’ write her up but added
he always told his employees that when he warned them.
Jennings testified he wrote all the hand written portion of the
warning given to Cadorette and stated he only prepared one
copy of the warning.
I credit Cadorette’s account of her conversation with Jen-
nings about the warning on January 1, 1990. Jennings was
not very impressive as a witness. Furthermore, a close exam-
ination of the warning he contends was written entirely by
him appears to have been written by more than one person.
Furthermore, the copy of the warning given to Cadorette by
Supervisor Cole appears to refute Jennings’ testimony that he
only prepared one copy of the warning and wrote everything
thereon himself.
Vice President Williams testified she alone made the deci-
sion to terminate Cadorette after reviewing her personnel file
and ‘‘pondering’’ what to do about her conduct at the De-
cember 27, 1989 investigatory interview. She testified that
‘‘the straw that broke the camel’s back’’ was the January 1,
1990 warning given to Cadorette. Vice President Williams
said she prepared a dismissal letter, cleared it with her attor-
ney, and then sent it to Manager Ford by Federal Express
with instructions to hand deliver it to Cadorette. Williams
said she did not consult with Ford before discharging
Cadorette. Vice President Williams acknowledged this was
the first occasion where she had sent a termination letter to
an employee at this jobsite. She also stated this was the first
occasion at this jobsite where she had utilized the expedited
services of Federal Express to send a termination letter to an
employee.
At the end of her work shift on January 9, 1990, Cadorette
could not locate her timecard and as a result thereof went to
Ford’s office. At that time Ford gave Cadorette her termi-
nation letter. Cadorette left Ford’s office without reading the
letter. After reading it, she returned to Ford’s office and:
I said, ‘‘Pat, this is one helluva a way to terminate
somebody.’’ I said, ‘‘I worked all day.’’ I said, ‘‘You
give me this letter terminating me.’’ And I said,
‘‘That’s not right. I want a copy of all my write-ups
and all my timecards.’’
And I walked out and slammed the door.
The next day Ford provided Cadorette with the requested
‘‘write-ups’’ and timecards.
Cadorette’s termination letter follows:
January 9, 1990
VIA HAND-DELIVERY
Ms. Kitty Cadorette
Route 3, Box 8A
Burton, SC 29902
Re: Termination of Employment
Dear Kitty:
On January 1, 1990, you received a written rep-
rimand from your supervisor, York Jennings. The rea-
son for said reprimand was your failure to comply with
company orders. Because of our contract with the Ma-
rine Corps, you have been instructed that you should
never break down your dishwasher until 5:30 p.m.
However, on January 1, 1990, you broke down your
dishwasher before 5:17 p.m.
Further, we received complaints regarding your con-
duct and attitude when dirty dishes were brought to
your dishwasher at the time you were breaking down
the dishwasher. I am also concerned about the fact that
you did not clock out until over 1 hour after you did
your breakdown.
Over the last few months, your work performance
has consistently deteriorated, for example, in October,
1989, Supervisor York Jennings reprimanded you for
failing to properly clean the dishwasher. Then on No-
499WILLIAMS SERVICES
22 The Board applies its Wright Line test in cases involving alleged viola-
tions of Sec. 8(a)(1) and (4) in which employer motivation is an issue. See,
e.g., Parker Laboratories, Inc., 267 NLRB 1174 (1983), Book Covers, Inc.,
276 NLRB 1488, 1491 (1985), and Great Western Produce, 299 NLRB 1004,
1005 fn. 8 (1990).
23 Cole was Cadorette’s immediate supervisor.
24 These above-outlined activities all took place prior to the Union filing its
representation petition on November 30, 1989.
vember 7, 1989, you received a written reprimand from
Assistant Manager Terri Brown for defective and im-
proper work performance at your work station.
Also, on November 8, 1989, Supervisor Roxanna
Cole issued you a written reprimand for tardiness. Mrs.
Cole also noted that tardiness on your part has been a
reoccurring problem.
On December 22, 1989, Supervisor Isaac Chisolum,
Sr. issued a written reprimand for defective and im-
proper work performance, carelessness in performing
your duties and poor housekeeping.
On December 28, 1989, you received a written rep-
rimand from Project Manager Patricia Ford for unau-
thorized absenteeism from your duties, insubordination
and disobedience of a direct order.
In addition, on December 27, 1989, Freddie Wil-
liams, Patricia Ford, attorney John Oxendine and my-
self informed you that you were being interviewed as
part of an ongoing company investigation regarding the
repeated disappearance and theft of various items from
the company office. At said interview, I asked you how
an original company document came to be in your pos-
session. At that time, you informed me in a very harsh
and disrespectful manner that someone had given it to
you and that you were refusing to state who that person
was. After I issued you a direct order and informed you
that disobedience of said order would be considered a
direct act of insubordination and would subject you to
disciplinary action with the possibility of discharge, you
then continued to disobey said order and refused to pro-
vide any additional information whatsoever.
Kitty, as a result of your conduct on January 1,
1990, I am convinced that it would be in the best inter-
est of all parties concerned to terminate your employ-
ment relationship with Williams Services, Inc. I con-
sider the action on January 1, 1990, standing alone, to
be sufficient grounds for termination. As a matter-of-
fact, after reviewing your personnel records, I have con-
cluded that any one of the above-stated infractions war-
rant termination. It is the position of the Company that
we have been more than fair to you and we have given
you numerous opportunities to correct your conduct
which you have apparently ignored.
Therefore, I have instructed Patricia Ford to dis-
charge you immediately on this date.
Upon returning all Company property which has
been issued to you, we will promptly issue your final
paycheck.
Sincerely,
/s/ Maggie Williams
Maggie Williams
Vice President
e. Analysis and conclusions regarding the warnings
given to and discharge of Cadorette
Whether the Company violated Section 8(a)(3) and (4) of
the Act when it issued warnings on or about December 28,
1989, and January 1 and 9, 1990, discharged Cadorette turns
on the motivation for its actions.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) turning on employer mo-
tivation.22 First, counsel for the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a ‘‘motivating factor’’ in the employ-
er’s decision. If the General Counsel makes such a showing,
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence of
the protected conduct. Stated differently, an employer may
avoid liability by demonstrating, as an affirmative defense,
that ‘‘the same action would have taken place even in the
absence of the protected conduct.’’ The Supreme Court en-
dorsed the Wright Line test in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 400–403 (1983).
I am persuaded, for the following reasons, that counsel for
the General Counsel has met her burden of demonstrating a
prima facie case with respect to the warnings given to as
well as the discharge of Cadorette.
Counsel for the General Counsel has established, and the
Company does not dispute, that it knew or suspected
Cadorette supported the Union. She was the employee who
first contacted the Union and the very first union meeting for
the employees was held at her apartment. She acted as a go-
between for the employees and the Union. She was a mem-
ber of the Union’s in-plant committee and not only solicited
her fellow workers to sign cards for the Union but also
‘‘confronted’’ two supervisors, Cole23 and Leroy Foulks, and
‘‘got them to sign [union] cards.’’24 Additionally, the Com-
pany does not dispute that it was notified by ‘‘Mailgram’’
on December 21, 1989, that the Union requested Cadorette
be released from work on December 27, 1989, to attend a
scheduled Board hearing in the underlying representation
case.
Counsel for the General Counsel established by credible
and/or undisputed evidence that the Company harbored hos-
tility toward its employees’ union activities. She did so by
showing that supervisors interrogated employees about their
union activities and that the Company’s campaign literature
contained threats of a reduction in pay if the employees se-
lected the Union as their bargaining representative. The tim-
ing of the warnings (as well as the discharge) coming shortly
after the scheduled representation hearing weighs in favor of
a finding the Company’s actions were unlawfully motivated.
Perhaps the strongest indication the Company was unlawfully
motivated in its actions against Cadorette was demonstrated
by the fact the reasons it advanced for its actions against her
were pretextual in nature.
Consideration will first be given to the warnings; however,
all the Company’s actions against Cadorette are inextricably
intertwined.
The credited evidence simply does not support some of the
information set forth in the disciplinary warning given
Cadorette on December 28, 1989. Cadorette’s credited testi-
mony reflects Manager Ford told her she would get back
with her about a replacement for her rather than for
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cadorette to report back to work after her break. Ford never
got back with Cadorette. I am persuaded Ford did not get
back with Cadorette because she learned from Supervisor
Cole that Cole had gotten employee Connie Jenkins to fill
in for Cadorette. Cadorette credibly testified, without con-
tradiction, that Supervisor Cole gave her permission to be
away from work on December 27. I note Ford did not spe-
cifically deny that Jenkins filled in for Cadorette during and
after the time Cadorette attended the scheduled representation
hearing on December 27. To the extent that the December
28 warning was based on the asserted fact that Cadorette did
not give the Company the required 3-day notice of her pend-
ing absence, I note several things. First, the Company was
undisputedly given 3 days’ notice in that the Union requested
on December 21, 1989, that Cadorette be released from work
on December 27, 1989. Second, Cadorette also gave the
Company, Manager Ford in particular, written notice ap-
proximately 3 hours before her departure that she would be
absent and in doing so she was following an unwritten policy
of the Company. To the extent the warning was based on
Cadorette’s failure to return to work on the December 27 at
11:59 a.m. and 12:36 p.m., as requested by Manager Ford,
I note the following. First, Cadorette had permission from
her supervisor to be away from work and she did in fact re-
turn to work at 1:34 p.m. Second, her presence was needed
by the Union at the representation hearing until an agreement
could be reached regarding the representation election at the
Company. Furthermore, the Company, Manager Ford in par-
ticular, knew that Cadorette’s presence at the hearing was
necessary until all issues surrounding the election had been
worked out inasmuch as she observed the Union’s represent-
atives conferring with Cadorette about employees’ schedules
and related matters.
In examining the situation surrounding the above warning,
I note employees have no absolute right under Section
8(a)(1) and (4) of the Act to leave work to attend Board
hearings. Ohmite Manufacturing Co., 290 NLRB 1036
(1988). In Ohmite, the Board held the General Counsel has
the burden of establishing an employer’s refusal to allow em-
ployees to attend a Board proceeding was improperly moti-
vated or that the employees demonstrated to the employer at
the time of their request that they had a real need to attend
a hearing before the burden would shift to the employer to
either discredit the General Counsel’s evidence or to show an
overriding business justification for its refusal to allow the
employees to leave work. I am persuaded the reasoning of
Ohmite would apply to a situation, such as herein, where an
employee is requested to return to work after already being
at a Board hearing. Applying the guidelines of Ohmite to the
facts herein, I find counsel for the General Counsel met her
burden. Cadorette made the need for her presence at the
hearing known to Supervisor Cole at the time she requested
to be off and Cole accepted her reasons and obtained a re-
placement for her. Furthermore, Cadorette’s role in assisting
the Union was clearly demonstrated to Manager Ford before
Ford asked her to return to work. The Company failed to es-
tablish an overriding business justification for Cadorette’s
early return to work on December 27, 1989, in that it had
already obtained the services of another employee to fill in
for her. That Cadorette was not needed on her job when she
in fact return to work at 1:34 p.m. is demonstrated by the
fact she was assigned to work in an area other than the one
she was regularly assigned to. I am persuaded the Company
has failed to demonstrate it would have warned Cadorette on
December 28, 1989, even in the absence of any protected
conduct on her part.
Counsel for the General Counsel raised various concerns
with respect to the warning prepared by Supervisor Jennings
on January 1, and given to Cadorette on January 3, 1990, to
warrant the conclusion, which I make, that the reasons for
the warning were pretextual and that the Company was un-
lawfully motivated in giving her the warning. First,
Cadorette’s credited testimony establishes she did not break
the dishwashing machine down on January 1, 1990, until
5:35 p.m. I note Supervisor Jennings testified the proper time
to break the dishwashing machine down was approximately
35 minutes after the close of a meal. It is undisputed the
meal in question closed at 5 p.m. on that day. The credited
evidence establishes the juice machines could be, and were,
cleaned by hand and/or by placing them in the dishwashing
machine. Thus, even if the dishwashing machine had been
broken down before the juice machines had been cleaned, no
harm would have been done. There is no showing on this
record that any instructions had ever been given to delay
breaking down the dishwashing machine until the juice ma-
chines had been cleaned. Another troubling factor about the
warning is there was more than one version of it. The fact
Supervisor Jennings stated only one existed and that he filled
it out in its entirety suggests something amiss about the
warning. This is especially so in light of the fact there are
two distinctly different handwritings on the warning. Finally,
I note Supervisor Jennings did not even observe the alleged
offense take place but rather just based the warning on what
some employee allegedly reported to him without investigat-
ing the situation. Based on that unsubstantiated report Jen-
nings stated he ‘‘had’’ to give Cadorette a warning. In sum-
mary, counsel for the General Counsel has demonstrated that
this second warning, coming approximately 5 days after
Cadorette attended the representation hearing on behalf of
the Union, was unlawfully motivated especially in light of
the fact the reasons for the warning have been shown to be
pretextual. I am persuaded the Company has failed to dem-
onstrate it would have given the warning even in the absence
of any protected conduct on Cadorette’s part.
It is clear from the known union activities of Cadorette
taken in conjunction with the Company’s overall antiunion
animus and the fact it unlawfully warned her on December
28, 1989, and January 1, 1990, that the Company violated
the Act when it discharged Cadorette on January 9, 1990.
First, the timing of the discharge is clearly suspect. Sec-
ond, Vice President Williams made the decision to terminate
Cadorette without consulting Site Manager Ford or with any
other of Cadorette’s immediate supervisors. The Board has
long held that an inference of unlawful motivation is
strengthened when an employer fails to consult with an em-
ployee’s immediate supervisor before taking action against
the employee. See, e.g., Lancer Corp., 271 NLRB 1426
(1984). Vice President Williams’ failure to consult with
Manager Ford, Supervisor Cole, and/or Supervisor Jennings
is particularly suspicious in light of her testimony that all
disciplinary warnings did not carry the same weight with re-
spect to discharge and that she evaluated all circumstances
before discharging an employee. Third, this was the first time
at this location that the Company had caused a discharge let-
501WILLIAMS SERVICES
25 The parties stipulated that Leatha Johnson’s personnel file does not con-
tain any October 1989 warning of the nature or description testified to by Su-
pervisor Jennings.
ter to be delivered by an express service and then personally
delivered to the employee being discharged. Such hurried ac-
tions and different methods suggests the Company was moti-
vated by something other than just a desire to sever an em-
ployment relationship.
I agree with counsel for the General Counsel that a careful
examination of the reasons for the discharge listed in the dis-
charge letter taken in conjunction with Vice President Wil-
liams’ testimony establishes the reasons were pretextual and
that a motivating factor in the Company’s decision to dis-
charge Cadorette was her protected conduct.
The discharge letter, which is set forth in full elsewhere
in this decision and will not be repeated here, reflects Wil-
liams considered the January 1, 1990 incident ‘‘standing
alone’’ to constitute sufficient grounds for Cadorette’s dis-
charge but added that ‘‘any one of the above-stated infrac-
tions warrant[ed] termination.’’ Counsel for the General
Counsel established through cross-examination of Vice Presi-
dent Williams that her assertions were inconsistent with com-
pany policy generally.
For example, Vice President Williams testified any one of
the incidents would have been sufficient to cause Cadorette’s
discharge ‘‘because they cost me money.’’ When questioned
further, however, she acknowledged she did not terminate
employees everytime they cost her money because she did
not ‘‘like to dismiss a person unless they [had] at least three
(3) write-ups.’’ When Vice President Williams was shown
the personnel file of employee Jessie Gibbs which over the
course of a year and a half, contained 10 warnings she, for
the first time, indicated she only considered warnings for a
6-month period. When asked if any three warnings in a 6-
month period would result in discharge, Vice President Wil-
liams said it would depend ‘‘on the nature of the
warning[s].’’ When counsel for the General Counsel pressed
Williams further asking if three performance related warn-
ings in a 6-month period would result in discharge, Williams
responded, ‘‘It depend[ed] on the type of performance. It
might be a low level performance and not a high level per-
formance.’’ When asked whether a warning that related to
failing to keep a machine clean and that also cost the Com-
pany money would result in discharge, Williams responded
that it depended on the machine because ‘‘all machines don’t
cost you the same amount of money.’’
In another example, counsel for the General Counsel also
confronted Vice President Williams with the personnel file of
employee Cinthia Ford that contained five warnings for var-
ious performance related matters within a 6-month period.
Vice President Williams in attempting to justify a lack of ac-
tion against Ford explained away each warning. For example,
she said Ford’s warning, dated February 23, 1990, for ‘‘care-
lessness’’ was nothing more than ‘‘sort of a notation to pay
closer attention to details’’ and was not ‘‘specific’’ enough.
Williams explained that another warning given Ford on June
29, 1990, for ‘‘improper conduct’’ involved ‘‘an argument’’
with another employee and was not conduct ‘‘against the
Company.’’ Williams explained that a warning given Ford on
May 29, 1990, which was for ‘‘tardiness’’ was ‘‘not a severe
warning.’’ Williams explained that a warning Ford received
on May 4, 1990, for failure to properly clean a bubble ma-
chine and to pay more attention to detail could not be held
against Ford ‘‘because she was doing what our general pro-
cedure was [at that time].’’ Finally, Vice President Williams
appeared to conclude that a warning given Ford on July 9,
1990, for improper conduct in that she ‘‘refused to do what
she [was] ordered . . . to do’’ was excusable.
Counsel for the General Counsel further demonstrated
through the testimony of Vice President Williams that the
Company did not follow its general policy on discipline
when it discharged Cadorette and that she was treated dif-
ferently than others. In that regard, counsel for the General
Counsel established that employee Susie Montgomery had
received three warnings within a 6-month period but had not
been discharged. Montgomery’s warnings were ‘‘for failing
to properly close out meal verification’’ on January 10, 1990;
‘‘for defective improper work,’’ ‘‘not busing the tables fast
enough,’’ on March 27, 1990; and ‘‘for tardiness,’’ on June
24, 1990. When confronted with Montgomery’s record, Vice
President Williams testified she liked to have ‘‘three (3)
write-ups of the same thing’’ on an individual before she dis-
charged such an employee. A review of the warnings
Cadorette was actually given as outlined in her dismissal let-
ter, reveals she never had three warnings ‘‘of the same
thing.’’
In examining each specific matter in Cadorette’s termi-
nation letter, I shall not discuss the December 28, 1989, or
January 1, 1990 warnings inasmuch as both have been fully
discussed elsewhere in this decision.
Cadorette’s termination letter refers to a warning given in
October 1989 by Supervisor Jennings for ‘‘failing to properly
clean the dishwasher.’’ There are a number of troubling as-
pects related to this alleged warning. First, the parties stipu-
lated that Cadorette’s personnel file does not contain any
warning dated October 1989. That fact raises another trou-
bling factor related to the termination letter in that Vice
President Williams testified she made the ‘‘decision [to dis-
charge Cadorette] based upon the number of write-ups that
I saw in her file.’’ However, Cadorette’s file admittedly con-
tained no such warning thus casting doubt on Williams claim
she reviewed the warnings and prepared the termination letter
therefrom. Vice President Williams further testified she did
not discuss her decision to terminate Cadorette with any of
Cadorette’s immediate supervisors, therefore, one must infer
she did not learn of the alleged October 1989 warning from
Jennings at the time she prepared the letter. Jennings’ testi-
mony about the October 1989 warning he claims he gave
Cadorette and another employee is simply unbelievable. Jen-
nings testified he gave Cadorette and Leatha Johnson each a
warning in October 1989 for not cleaning the dishwashing
machine properly. He said he gave the two of them warnings
because the U.S. Navy (Marine Corps) had written up the
Company that same day based on Cadorette’s and Johnson’s
failure to clean the dishwashing machine. Supervisor Jen-
nings further testified he placed the two warnings on Man-
ager Ford’s desk in October 1989 but learned the next day
after giving the warnings that the warnings had disappeared25
from Ford’s desk. Jennings claims he did not prepare dupli-
cate warnings nor did he take any further action after learn-
ing the warnings had disappeared. The Company did not
produce any ‘‘write-ups’’ from the U.S. Navy for any defi-
ciencies in the dishwashing area for October 1989. All the
above persuades me to draw an inference, which I do, that
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 To the extent the Company attempts to justify its actions against
Cadorette based on her possession of a copy of the work schedule, I note the
information on the schedule was basic, nonproprietary, and nonconfidential in-
formation that had been floating around the workplace for an extended period
of time. I am persuaded the schedule incident was instigated by the Company
in an attempt to bolster its decision to rid itself of Cadorette. I further note
Cadorette was not disciplined in any manner for having the allegedly purloined
document. To the extent the Company relies on the ‘‘very harsh and dis-
respectful manner’’ that Cadorette allegedly addressed Vice President Williams
on December 27, 1989, I note the Board affords a wide latitude to employee
comments made in the course of exchanges between management and employ-
ees over matters affecting employees. See, e.g., Hawthorne Mazda, Inc., 251
NLRB 313, 316 (1980). The word ‘‘bullshit’’ allegedly used by Cadorette (I
need not decide if she actually uttered the word) is the type profanity some-
times encountered when emotions run high in situations such as the one herein
and depending on the circumstances, generally may not serve as justification
to discipline employees. Here the alleged ‘‘harsh’’ language was not what mo-
tivated Vice President Williams to discipline Cadorette, rather, it was her pro-
tected conduct. Compare Great Dane Trailers Indiana, 293 NLRB 384 (1989).
no such October 1989 warning for Cadorette exists, or ever
existed, and that mention of such a warning in Cadorette’s
termination letter was simply an effort by the Company to
justify its disciplinary actions against her.
It is undisputed that Assistant Manager Brown prepared a
disciplinary warning for Cadorette on November 7, which
warning was given to her on November 14, 1989. Cadorette
refused to sign the warning. The warning was for an improp-
erly cleaned dish room in that a machine was ‘‘left dusty’’
and ‘‘food was left on the shelf’’ as well as ‘‘[c]rumbs . . .
on top.’’ The warning reflected the area would thereafter be
inspected by the site manager or assistant manager. In that
regard, Assistant Manager Brown testified, ‘‘[t]his has been
a problem [the Company] had during . . . inspections’’ of
the dish room area. Although Vice President Williams testi-
fied anyone of the warnings mentioned in Cadorette’s termi-
nation letter, including this one, could have resulted in her
discharge, such had not been the practice of the Company.
For example, Assistant Manager Brown testified the Com-
pany had received deficiencies from the U.S. Navy (Marine
Corps) regarding the dish room area ‘‘several times’’ and
that another employee in the immediate area where Cadorette
worked had been given a similar warning; however, there is
no showing that any further disciplinary actions were ever
taken against that or any other employee as a result of these
dish room deficiencies. Furthermore, employee Cinthia Ford
had received five disciplinary warnings one of which related
to a ‘‘failure to properly clean the bubble machine’’ never-
theless, she was not discharged. Again, and specifically with
respect to this warning, the evidence clearly establishes the
Company treated Cadorette differently than it did others and
strongly suggests the Company merely seized on the warn-
ings it actually gave Cadorette as a pretext for discharging
her.
It is undisputed that Supervisor Cole gave Cadorette a dis-
ciplinary warning on November 8, 1989, for ‘‘tardiness.’’
Cole wrote on the warning ‘‘Mrs. Kitty scheduled to work
at 6:15 a.m. she came in at 7:37 a.m. this is no[t] the first
time that she [has been] late.’’ Although Vice President Wil-
liams asserted this warning, standing alone, warranted
Cadorette’s discharge, she subsequently acknowledged that
employee Cinthia Ford had been given a disciplinary warn-
ing on June 29, 1990, for ‘‘tardiness,’’ but it was ‘‘not a se-
vere warning’’ and as such did not result in any disciplinary
action beyond a warning being taken against employee Ford.
Again, counsel for the General Counsel has demonstrated
Cadorette was treated differently than other employees in
similar situations.
It is undisputed that Supervisor Chisolum caused a dis-
ciplinary warning to be prepared on December 22, 1989, for
Cadorette. Chisolum testified, without contradiction, ‘‘I went
in and checked her area and I did find the scullery machine
was not properly cleaned. I found garbage disposal had little
small food particles around it and inside of it, and I checked
the glass rack—a couple of glass rack[s] wasn’t cleaned
properly.’’ Chisolum testified he and Assistant Manager
Brown thereafter ‘‘checked some more’’ and found the floor
‘‘wasn’t properly swept.’’ The warning counseled that
Cadorette ‘‘should pay close attention to detail in her work.’’
As has been noted elsewhere in this Decision, Vice President
Williams acknowledged employee Cinthia Ford had been
given a warning on June 4, 1990, and admonished to ‘‘pay
attention to detail,’’ however, employee Ford had not been
terminated.
In summary, counsel for the General Counsel established
with reliable evidence that Cadorette was treated differently
than other employees and that the reasons advanced by the
Company for her discharge were pretextual and seized on
simply to rid itself of an employee it found, based on unlaw-
ful reasons, to be undesirable. The Company failed to meet
its burden of showing Cadorette would have been discharged
in the absence of any protected conduct on her part.26
f. Unilateral reduction in pay and change in rotating
shift assignments
The Company admits the complaint allegations that it uni-
laterally, and without notice to or bargaining with the Union,
announced and implemented on March 20, 1990, a reduction
in the hourly rate of pay for its employees and further on
May 22, 1990, announced and implemented a change in its
past practice and policy concerning rotating shift assign-
ments.
In its defense of the unilateral wage reduction, the Com-
pany correctly notes the Union was not certified as the bar-
gaining representative of its employees until April 6, 1990,
and further that it had challenged the validity of the February
6, 1990, Board-conducted election. The Company in its
posttrial brief contends:
Since the Union had not been certified and objections
to the election were still pending, there is no way Wil-
liams Services could be expected to bargain with the
Union.
The Company’s position is without merit. First, I note it is
well established that election results are not final until the
certification is issued, e.g., Trico Products Corp., 238 NLRB
1306, 1307 (1978). However, the Board in Mike O’Connor
Chevrolet-Buick-GMC Co., 209 NLRB 701 (1974), enf. de-
nied on other grounds 512 F.2d 684 (8th Cir. 1975), created
a narrow ‘‘act at your own peril’’ exception to this general
rule in, as was the case herein, the initial certification con-
text. In Mike O’Connor, the Board held that an employer
acted at its peril in making changes in terms and conditions
of employment during the period that objections to an initial
certification election are pending. The Board further held that
if the union is later certified, the employer’s unilateral
503WILLIAMS SERVICES
27 Robert C. Peterson, counsel for the Navy Office of the General Counsel,
entered a limited appearance at trial on behalf of Griffin.
28 I find it unnecessary to discuss the overall control or lack thereof that
the exempt entity exercised over the Company herein inasmuch as I am per-
suaded the Company could engage in meaningful negotiations with the Union.
29 Counsel for the General Counsel alleged that King was a supervisor and
agent of the Company within the meaning of Sec. 2(11) and (13) of the Act.
Counsel for the General Counsel failed to establish King met the requirements
of either; however, as is discussed elsewhere in this decision, King had appar-
ent authority to act on behalf of the Company.
30 Ford did not deny the events of the meeting as testified to by employees
White and Moore. King did not testify nor was his absence explained in any
manner.
changes will be found to have violated Section 8(a)(5) of the
Act.
The Company also defends its unilateral wage rate reduc-
tion on the fact it is governed by the Service Contract Act.
The Company asserts that under that Act it cannot agree to
a wage adjustment without first obtaining government ap-
proval. Simply stated, the Company contends it was, and is,
unable to engage in meaningful collective bargaining with
the Union. Again, the Company’s position is without merit.
As noted elsewhere in this decision, the fact that an em-
ployer is a contractor subject to the terms of the Service
Contract Act does not mean the Board will decline to assert
jurisdiction over that employer. The Company herein is not
exempt from Board jurisdiction, and thus from its bargaining
obligations, under the principles of Res-Care, Inc., 280
NLRB 670 (1986), and Long Stretch Youth Home, 280
NLRB 678 (1986). In those cases, both of which issued the
same day, the Board reaffirmed and refined the test of Na-
tional Transportation Service, 240 NLRB 565 (1979), for de-
termining whether to assert jurisdiction over an employer
providing services to or for an entity exempt from jurisdic-
tion under Section 2(2) of the Act. The Board held the prop-
er focus was on the extent of control retained by the em-
ployer over essential terms and conditions of employment,
that is who had the ‘‘final say’’ concerning employees
wages, and benefits, and on what degree of control the ex-
empt entity exercised over the employer’s labor relations
policies. See also Community Interactions—Bucks County,
288 NLRB 1029, 1031–1032 (1988). In Bucks County, the
Board summarized as follows:
We declined to assert jurisdiction in [Res-Care] because
the exempt entity maintained strict, direct authority over
its funding of wages and benefits by its approval of
wage ranges, benefit levels, and wage and benefit
amounts in the employer’s proposed line-item budget,
and by its retention of the right to disapprove any sub-
sequent changes in employee compensation. . . . In
contrast, we asserted jurisdiction over the employer in
Long Stretch because the exempt entity there did not tie
its funding of the employer directly to the employer’s
proposed wages and benefits, and it required only that
the employer meet minimum standards for the wages
and benefits it chose to pay its employees.
It is undisputed that the Company provides its services to an
exempt entity, the U.S. Navy (Marine Corps). Nor is there
any question that the Company is subject to the Service Con-
tract Act. Navy Contract Administrator Barbara Griffin testi-
fied27 the U.S. Navy conducts a wage determination survey
‘‘which sets the minimum wages’’ to be paid mess attend-
ants at the facility involved herein. Griffin testified that when
the Company was awarded the contract it paid its mess at-
tendants $6.50 per hour plus an additional 45 cents per hour
for health and welfare benefits. Griffin stated that when the
first option year ‘‘came up’’ for the Company a new wage
determination was made in which the minimum wage rate
was set at $4.83 per hour. Griffin stated the Navy, however,
continued to reimburse the Company $6.50 per hour for the
mess attendants. In light of the new wage determination, the
Navy subsequently determined the maximum it would reim-
burse the Company was $6.50 per hour including all bene-
fits. At that time (March 1990), Vice President Williams an-
nounced and reduced the rate of pay for the mess attendants
to conform to the reduced amount the Company was being
reimbursed and she did so without notice to, or bargaining
with, the Union.
It is clear the U.S. Navy (Marine Corps) only establishes
the minimum wage rate that must be paid by a
contractor/employer, such as the Company herein, and that
nothing precludes a contractor/employer from paying more
than the minimum wage rate. The U.S. Navy does not appear
to have any control over the amount paid to the mess attend-
ants beyond the minimum wage requirement. The Company
could have and did pay more than the minimum wage rate.
According to Vice President Williams, the Company has a
3-percent profit margin built into its contract with the U.S.
Navy. Thus, it appears the Company could have engaged in
meaningful collective bargaining with the Union concerning
the wage rate paid to the mess attendants.28 I find its failure
to do so violated Section 8(a)(5) of the Act.
Inasmuch as the Company offered no defense for its uni-
lateral change in rotating shift assignments, I find its action
in that respect violated Section 8(a)(5) of the Act.
B. Other Alleged Unilateral Changes
It is alleged at paragraphs 18(b), (d), and (e) of the com-
plaint that on or about May 22, 1990, the Company an-
nounced and implemented changes in its past practices and
policies regarding the requirement for a doctor’s excuse by
employees when absent for more than 24 hours; regarding
job requirements and/or cross-training; and regarding its dis-
ciplinary procedures.
The Company asserts these alleged changes ‘‘did not
occur’’ and that ‘‘any employee that believes a change has
been implemented is mistaken.’’
It is undisputed that Company Consultant Cornelius
King29 spoke to the assembled mess attendants in late May
1990. Manager Ford was present at the meeting and re-
sponded to various comments, questions, and concerns of the
employees.30 According to the uncontradicted and credited
testimony of employees Lorraine White and Lisa Moore,
King told the employees their work schedules were going to
be changed. Moore specifically testified:
Mr. King was telling us how schedules were going to
start being rotated. If you work a.m. you were going to
be working a.m. and p.m. Everyone would be working
weekends and employees were asking him about their
second jobs, what were they suppose to . . . do if they
were going to rotate schedules. He said he wasn’t con-
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 The warnings given Cadorette, for example, were prepared before they
were given to her.
cerned with that. He was just concerned with Williams
Services . . . .
King told the employees they would also rotate positions.
Some employees complained they had not been trained for
all mess attendant positions. King responded they should
have been. When employees further complained King told
them they would be trained for what ever positions they were
placed in. King also discussed absences for illnesses. King
told the employees if they were out of work for an illness
for more than 24 hours, they would need a doctor’s excuse.
King also told the employees that in the future before they
were given a disciplinary report they would be counseled and
given a chance to present their ‘‘side of the story.’’
Employee Moore testified that prior to the meeting with
King, disciplinary warnings had always been prepared in
final form before being shown to the employees.31
Employees Moore, White, and Cadorette testified they re-
ceived no training when they went to work for the Company.
Employee White testified employees had their shifts ro-
tated the very next week after King announced they would
be rotated.
Project Manager Ford testified all employees were given
training when the Company commenced providing services
for the U.S. Navy (Marine Corps) including a 6-hour class
offered by the U.S. Navy on ‘‘the way things have to be
cleaned.’’ Ford further stated that all employees had to be
cross-trained and that cross-training had been in effect from
the very beginning. Ford also testified there had been no
change in the Company’s practice or policy regarding doc-
tor’s excuses in that an employee ‘‘absent for more than two
(2) days must bring back a doctor’s excuse.’’ Vice President
Williams also testified there had not been any change in the
policy on doctor’s excuses for absences and that there had
always been cross-training. She further testified King ‘‘had
no authority to initiate any change’’ in policy that he was
only to ‘‘report back’’ to her with ‘‘suggestions as to how
to improve the operation.’’
I find the Company’s contention, and its evidence in sup-
port thereof, that there has not been any changes regarding
doctor’s excuses, cross-training, or disciplinary procedures to
be unpersuasive. First, the Company did not refute what em-
ployees attributed to Consultant King at his May 22, 1990
meeting with the employees. King told the employees they
would have to provide a doctor’s excuse after an absence of
24 hours. Manager Ford testified the practice from the begin-
ning had been to provide such excuses after 2 days. Thus,
it is clear King announced a change in that regard. In addi-
tion to the employees’ testimony regarding King’s comments
on disciplinary procedures, it is clear from the disciplinary
warnings actually given Cadorette that warnings were pre-
pared in advance and employees were only permitted to write
on the warnings if they refused to sign the warnings. Thus,
when King told the employees they would be counseled and
given an opportunity to present their ‘‘side of the story’’ be-
fore any discipline could issue, he announced a change from
the Company’s past practice. As to cross-training, I am per-
suaded by the employees’ testimony referred to above that
prior to May 22, 1990, employees had not been provided or
told they would be afforded cross-training. Accordingly, the
Company, through King, announced a change in that regard.
Before concluding the Company violated Section 8(a)(5)
of the Act by the above actions, I shall address the issue of
whether King had actual or apparent authority to bind the
Company. I am persuaded he had apparent authority to do
so. The employees were asked to attend the meeting with
King and were paid for time spent at the meeting. Manager
Ford was present throughout the meeting and even made
comments to the employees on matters covered by King.
Ford at no time advised the employees King did not have the
authority to bring about the changes he announced. Vice
President Williams, after learning the content of King’s com-
ments, made no effort to disavow, change, alter, or correct
what he had told the employees. One of the changes King
said would take place did in fact occur the very next week.
Under these circumstances, I am persuaded employees at
the meeting reasonably believed King was reflecting com-
pany policy and speaking for management. Accordingly, I
conclude he had apparent authority from the Company and
as such the Company is liable for his comments and actions.
Cf. Einhorn Enterprises, 279 NLRB 576 (1986), and Season-
All Industries, 276 NLRB 1247 fn. 1 (1985).
CONCLUSIONS OF LAW
1. Williams Services, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. International Association of Machinists and Aerospace
Workers, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening its employees with discipline, including
discharge, for attending a Board-conducted representation
hearing; by interrogating its employees concerning their
union activities; and by threatening its employees with a pay
cut if they selected the Union as their bargaining representa-
tive, the Company has interfered with, restrained, and co-
erced its employees in the exercise of their rights guaranteed
by Section 7 of the Act and thereby has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
4. By issuing written warnings to its employee Kitty
Cadorette on or about December 28, 1989, and January 1,
1990, and by discharging her on January 9, 1990, because
of her concerted protected and union activities and because
she attended a Board-conducted representation hearing in
Case 11–RC–5648 on December 27, 1989, the Company en-
gaged in unfair labor practices in violation of Section 8(a)(3)
and (4) of the Act.
5. By, on or about March 20, 1990, announcing and imple-
menting: a reduction in the hourly pay rate of its employees,
and by, on or about May 22, 1990, announcing and imple-
menting: (a) a change in past practice and policy concerning
rotating shift assignments; (b) a change in its past practice
and policy regarding the requirement for production of a doc-
tor’s excuse by employees when absent for 24 hours; (c) a
change in its job requirements and/or cross-training; and, (d)
a change in its disciplinary procedure without notifying the
Union and giving the Union the opportunity to bargain over
such changes the Company has engaged in unfair labor prac-
tices in violation of Section 8(a)(5) of the Act.
505WILLIAMS SERVICES
32 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendments to
26 U.S.C. § 6621.
33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
34 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
Continued
6. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found the Company has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act.
Having found the Company discriminatorily discharged its
employee Kitty Cadorette, I shall recommend it be ordered
to offer her immediate and full reinstatement to her former
position of employment or, if her former position no longer
exists, to a substantially equivalent position without prejudice
to her seniority or other rights and privileges previously en-
joyed and make her whole for any loss of earnings she may
have suffered by reason of the discrimination against her
with interest. Backpay shall be computed in the manner as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest, as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).32 I also recommend the Company
be ordered to remove from its files any reference to her dis-
charge or to the warnings it gave her on or about December
28, 1989, and January 1, 1990, and notify her in writing this
has been done and that evidence of these unlawful actions
will not be used as a basis for any future personnel actions
against her.
Further, it is recommended the Company be ordered to re-
instate the hourly pay rate in effect prior to its having unilat-
erally reduced that rate on March 20, 1990, and make whole
all employees affected by the unilateral pay rate reduction.
It is also recommended the Company be ordered to rescind
its unilaterally changed policies concerning rotating shift as-
signments and the production of a doctor’s excuse after only
a 24-hour absence. It is further recommended the Company
remove any discipline given employees as a result of the
above changes and make employees whole, including where
appropriate, reinstatement and backpay if employees were
discharged or forced to quit their employment as a result of
the above two changes. I shall recommend the Company be
ordered, if requested by the Union, to rescind the changes in
cross-training and disciplinary procedures it unilaterally im-
plemented. Finally, it is recommended the Company be or-
dered to post a notice to its employees attached hereto as
‘‘Appendix’’ for a period of 60 days in order that employees
may be apprised of their rights under the Act and the Com-
pany’s obligation to remedy its unfair labor practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended33
ORDER
The Company, Williams Services, Inc., Beaufort, South
Carolina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their membership in, or activities on be-
half of the Union, or because they engage in other protected
concerted activities or because they attend Board proceed-
ings.
(b) Unilaterally instituting, without first notifying and bar-
gaining with the Union, changes in the hourly pay rate for
employees; the requirement for the production of doctor’s ex-
cuse by employees when absent for 24 hours; rotating shift
assignments; cross-training procedures; and, disciplinary pro-
cedures.
(c) Coercively interrogating its employees concerning their
union activities and desires; threatening its employees with
pay cuts if they selected the Union as their bargaining rep-
resentative; and, threatening its employees with discipline,
including discharge, for attending Board proceedings.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise or the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the pay reduction announced and implemented
on or about March 20, 1990.
(b) Make whole all employees affected by the unilateral
pay cut instituted on or about March 20, 1990.
(c) Rescind and cease giving effect to the May 22, 1990
changes regarding shift rotation, assignments, and the pro-
duction of a doctor’s excuse after only a 24-hour absence.
(d) Remove from employees’ files all employee discipli-
nary reports and any other notices or warnings that were
given as a result of the changes set forth in (c) above and
notify in writing those employees affected that this has been
done and that the evidence thus removed will not be used
as a basis for future personnel action against them. If appli-
cable, affected employees shall be made whole and/or rein-
stated.
(e) Rescind, on request of the Union, the unilateral
changes instituted on or about May 22, 1990, concerning
cross-training and disciplinary procedures for employees.
(f) Offer its employee Kitty Cadorette immediate and full
reinstatement to her former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings, plus
interest, suffered because of its illegal actions against her.
(g) Remove from its files any reference to the discharge
of Cadorette or the warnings given her on or about Decem-
ber 28, 1989, and January 1, 1990, and notify her in writing
that this has been done and that evidence of her unlawful
discharge or the unlawful warnings will not be used against
her in any way.
(h) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(i) Post at its Beaufort, South Carolina facility copies of
the attached notice marked ‘‘Appendix.’’34 Copies of the no-
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
tice, on forms provided by the Regional Director for Region
11, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, threaten to discharge, or issue
disciplinary warnings to our employees because of their ac-
tivities on behalf of the International Association of Machin-
ists and Aerospace Workers, AFL–CIO, or any other labor
organization or because they attend Board proceedings.
WE WILL NOT interrogate our employees concerning their
union activities or desires.
WE WILL NOT threaten our employees with a pay cut if
they select the Union as their bargaining representative.
WE WILL NOT unilaterally reduce the hourly pay rate of
our employees, change our practice and policy concerning
the requirement for a doctor’s excuse when our employees
are absent for only 24 hours, change our practice and policy
concerning rotating shift assignments, change our job re-
quirements and/or cross-training policies, or change our dis-
ciplinary procedure, or any other terms or conditions of em-
ployment without first notifying and bargaining with Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind the hourly pay rate reduction given our
employees and WE WILL make them whole for the losses
they suffered as a result thereof.
WE WILL rescind and cease giving effect to the require-
ment for a doctor’s excuse after an employee has only been
absent for 24 hours.
WE WILL rescind and cease giving effect to our unilater-
ally changed practice and policy concerning rotating shift as-
signments.
WE WILL, on request by the Union, rescind and cease giv-
ing effect to the changes in our cross-training policies and
disciplinary procedures.
WE WILL remove from our employees’ files all employee
disciplinary warning reports and any other notices, warnings,
or disciplinary actions given as a result of our unlawfully in-
stituted above-listed policy and procedure changes and notify
those employees affected that this has been done and that the
evidence thus removed will not be used as a basis for future
personnel actions against them.
WE WILL offer Kitty Cadorette, and any employee who
was discharged pursuant to the illegally instituted policy and
procedure changes, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice, to their seniority or
any other rights and privileges previously enjoyed, and WE
WILL make them whole for any loss of earnings and other
benefits resulting therefrom, less any net interim earnings,
plus interest.
WILLIAMS SERVICES, INC.