Davis Co.

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Davis Company and United Furniture Workers of America, AFL-CIO, Local 282. Cases 26- CA-7294 and 26-CA-7344 May 14, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENEI.ILO, AND TRUESDALE On January 3, 1980, Administrative Law Judge George Norman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Davis Company, Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph l(a): "(a) Soliciting employees to withdraw from the Union and to revoke authorizations for the check- off of union dues from their wages." 2. Substitute the attached notice for that of the Administrative Law Judge. ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (195()), enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record ad find no basis for reversing his findings. 2 Resplondent argues that its conduct with respect to advising employ- ees f their right to revoke dues-checkoff authorizations is consistent with tihat permitted in Perkin Muachinl Company, 141 NLRB 697 (1963), aid ((Iops Corporution, lEix-lub Division, 216 NLRB 857 (1975) We do lnot agree Responden, through superisors, contacted individually only those employees it thought most susceptible to subtle pressure. We be- lieve that, in the context of other unfair labor practices designed to dis- courage uniiil support, Respondent was not merely advising employees of their rights, but was unlaAfully soliciting thenm to withdraw from the Ulnioll and to revs ke authorizations for the checkoff of union dues from their wuges We shall modify the Administrative lIaw Judge's recommended Order to accord with our findinig herein 249 NLRB No. 68 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. In recognition of these rights, we hereby notify employees that: WE WILL NOT solicit employees to with- draw from the Union and to revoke authoriza- tions for the checkoff of union dues from their wages. WE WILL NOT coerce employees by express- ing disapproval of their filing charges with the Occupational Safety and Health Administra- tion. WE WILL NOT issue employees suspensions from work because they joined or assisted the Union or engaged in other union or concerted activity for the purpose of collective bargain- ing or other mutual aid and protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. WE WILL expunge from the records of Linda Coleman and Brenda McNeil any refer- ences to the 5-day suspensions each received on August 8, 1978. WE WILL make Linda Coleman and Brenda McNeil whole for any loss of pay they may have suffered as a result of our discrimination against them, with interest. THE DAVIS COMPANY THE DAVIS COMPANY 489 DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This proceeding was heard on April 23 and 24, in Memphis, Tennessee, on the consolidated complaint of the General Counsel issued on August 30, 1978,1 and the answer of Respondent. In issue are whether Respondent, in viola- tion of Section 8(a)(1) and (3) of the National Labor Re- lations Act, as amended, 2 coerced employee Linda Cole- man by expressing its disapproval of Coleman's filing charges with OSHA, and suspended employees Linda Coleman and Brenda McNeil for 5 days because said em- ployees joined or assisted the Union or engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid and protection; and whether by those acts Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby violated Section 8(a)(l) and Section 2(6) and (7) of the Act; and further whether by the said suspensions Respondent discriminated and is discriminating in regard to hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, and thereby did engage and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. Finally, there is an issue of whether Re- spondent violated Section 8(a)(1) of the Act by its solici- tation of revocation of dues-checkoff authorizations for its employees. All the parties were given full opportunity to present witnesses, to adduce other evidence, and to make oral and written arguments. Upon the entire record in this case, my observation of the witnesses as they testified, and after due considera- tion of the post-hearing briefs filed by the General Coun- sel and Respondent, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a corporation doing business in the State of Tennessee with an office and place of business located in Memphis, Tennessee, where it is engaged in manufac- turing wood tables and chairs. During the past 12 months, Respondent, in the course and conduct of its I The consolidated complaint is based on charges filed in Cases 26- CA-7294 and 26-CA-7344 on July 13 and August 9, 1978, respectively, by United Furniture Workers of America, AFL-CIO, Local 282, herein called the Union, against the Davis Company, herein called Respondent. The charges were duly served on Respondent by registered mail on or about July 13 and August 9, 1978, respectively. 2 Sec. 8(a)(l) of the Act makes it an unfair labor practice for an em- ployer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" Insofar as pertinent herein, Sec 7 provides that "le]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid oc protection." Sec. 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." business operations, purchased and received at its Mem- phis, Tennessee, location products valued in excess of $50,000 directly from points located outside that State and, during the same period of time, Respondent sold and shipped from its Memphis, Tennessee, location prod- ucts valued in excess of $50,000 directly to points located outside that State. At all times material herein Respond- ent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all material times herein United Furniture Workers of America, AFL-CIO, Local 282, has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent employs approximately 185 persons who have been represented for more than 25 years by the Union. For the past 21 years Fred Bays has been Re- spondent's plant manager. His responsibilities include op- erating the plant, purchasing material, negotiating collec- tive-bargaining agreements with the Union, hiring, firing, and overall supervision of the production of employees. For the last 21 years Respondent and the Union have been parties to collective-bargaining agreements covering Respondent's employees. Brooks Benjamin is the head foreman and Betty Owens is the foreman of the sanding and assembly department where she supervises approxi- mately 45 employees. B. The Alleged Solicitation of Revocation of Dues- Checkoff Authorizations The complaint alleges that between January 20 and August 20, 1978,3 supervisors and agents of Respondent on some 31 occasions "asked its employees if they wished to get out of the Union." The complaint further alleges that supervisors and agents of Respondent had on five occasions provided preaddressed envelopes and dues deduction revocation letters to its employees. In September 1977, a strike took place at Respondent's Memphis, Tennessee, location involving the collective- bargaining agreement.4 Plant Manager Bays testified that immediately following the strike several employees asked how and when they could get out of the Union. 5 Bays testified further that he established and maintained a card file listing the names of the employees who had filed checkoff authorizations and the dates. Bays said that ap- proximately once a week he wiuld check the card file to see which employee's anniversary date was coming up. When that employee's date arrived, Bays would notify 3 All events herein occurred in 1978 unless otherwise indicated 4 There were numerous incidents of violence culminating in the issu- ance of a state court injunction. 5 The then current collective-bargaining agreement contained a provi sion for dues-checkoff authorizations which provided for the revocation thereof after a period of I year, but which was automatically renewable for another year unless written notice of revocation by mail was given to) Respondent and the Union not more than 25 days and not less than 10 days prior to the expiration of the I-year period or the anniversary of a succeeding collective-bargaining agreement, whichever occurred first. THE DAVIS COMPANY 489 - 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his supervisor who would, in turn, tell the employee that it was time for him to get out of the Union if he or she wanted out. When the employee was informed that his or her "escape" period was approaching, Respondent would also offer to the employee two envelopes, one ad- dressed to The Davis Company and one to the Union, and a form letter which stated, "please stop withholding Union dues from my check." Space was provided for the date and the employee's signature. Bays further testified that the supervisors were told to tell employees that it was none of the Respondent's business whether an em- ployee wanted to get out or stay in. During the investigation of the case, Bays prepared a summary of Respondent's actions and provided it to the Board agent investigating the charge. That summary is included in the record as an exhibit.' C. The Alleged Coercion of Linda Coleman for Filing an OSHA Charge Linda Coleman was employed by Respndent on or about August 17, 1977, in the finishing department. As in the case of other employees hired by Respondent, she was provided with a copy of Respondent's company rules. In June 1978, Coleman became a shop steward for the Union. Coleman testified that, on the day following the in- spection resulting from a complaint she filed with the Tennessee Department of Labor, Division of Occupa- tional Safety and Health, on July 20, Plant Manager Bays pointed out to her a section of the collective-bar- gaining agreement which he had underscored and which provided that the employees will cooperate with Re- spondent to maintain sanitary conditions throughout the plant. Respondent did not present any evidence to rebut the testimony of Coleman, although in its answer Respond- ent denied that allegation of the complaint. The General Counsel contends that Bays' action in pointing out that section of the agreement to Steward Coleman was an expression of disapproval of her filing charges with OSHA and constitutes coercion within the meaning of Section 8(a)(l) of the Act. I will consider that conduct in connection with the other allegations of the complaint involving Linda Coleman and Fred Bays. D. The Alleged Discriminatory Suspension of Linda Coleman On Thursday, August 3, the employees of Respondent engaged in a walkout over a grievance involving over- time pay. The employees congregated outside the plant and were told by Don Parker, business agent of the Union, to report to the plant gate on Monday morning, August 7. The day after the walkout, Friday, August 4, Plant Manager Bays met with Union Business Agent Parker, Charles Moore, another union official, and Linda Coleman to resolve the grievance involving overtime. No resolution was reached at that meeting. After the meeting, Parker told Coleman and Brenda McNeil to report to the plant gate on Monday morning, August 7. K GC Exh II. Still later that Friday, Moore and Parker decided to end the strike upon advice from the Union's attorney. On Saturday, August 5, Don Parker sent a telegram to Fred Bays stating that the Union was terminating the strike, and that "all employees will report to work Monday, August 7, 1978, at the regular starting time." The telegram was sent to the plant, which was closed for the weekend, and therefore was not received by Re- spondent until 10:05 a.m. on August 7. Over the week- end, Parker and other union officials (Moore and Willie Rudd) informed many, but could not reach all, employ- ees that they were to report to work on Monday morn- ing. McNeil and Coleman were not informed of the strike termination. Brenda McNeil testified that on Sunday, August 6, she and Coleman discussed the possibility of setting up a picket line at the plant on the following morning, Monday, August 7. Both Coleman and McNeil testified that neither was informed of the decision to end the strike and report to work on Monday, August 7. Parker's Testimony At or about 5:30 a.m. on Monday, August 7, Plant Manager Bays arrived at the plant still unaware that the Union had terminated the strike. At or about 6 a.m. on August 7, Union Business Agent Parker arrived at the plant to advise the employees that the strike had been terminated. Parker met Bays and asked him if he had re- ceived the telegram. When Bays responded that he had not, Parker informed him of the content of the telegram. Bays then told Parker to tell the employees to wait around while he looked into whether he could work the employees that day. Bays then went into the plant and returned shortly thereafter. He told Parker that there was not enough work for everyone, but that there was approximately 4 hours' work in Betty Owens' and Brooks Benjamin's departments. Parker went across the street and relayed this information to the waiting em- ployees. Parker further testified that, as he was notifying the employees, Coleman drove up in her car. When she asked him what was taking place, he repeated Bays' mes- sage and the fact the strike had been terminated. Cole- man told Parker she was not prepared to work because she was not properly dressed and had made no arrange- ments for a babysitter. Parker told Coleman that he would talk to Bays. He then walked across the street and notified Bays that some of the women were not properly dressed and had not made arrangements for babysitters. Parker said Bays told him "Okay." Parker then testified that he went back across the street and told Coleman and two or three other women who were nearby who had the same problem as Coleman that Bays had said, "okay." Coleman's Testimony Coleman testified that, on Sunday, August 6, she spoke to head steward Brenda McNeil about bringing material to make picket signs for the following morning, August 7. She said she went to the plant at approximately 6:10 on Monday morning, August 7, to participate in the THE DAVIS COMPANY 491 strike. She said she was wearing shorts, a sleeveless top, and a pair of sandals when she went to the plant that morning. 7 She further testified that, when she arrived at the plant, she asked Parker what was going on, and he told her that the employees were going back to work. Coleman told Parker that she was not prepared to go to work; that she was not properly dressed and had not made arrangements for a babysitter for her three chil- dren, ages 5, 7, and 9 years. She told her children that morning that she would be back at approximately 8:30 a.m. after she walked the picket line.' Coleman's testimony corrobrated that of Parker con- cerning Parker's discussion with Bays and Bays' reaction. When Parker returned after discussing the matter with Bays, he told Coleman that Bays said it would be all right for the employees who had not come prepared to work to take the rest of the day off as those employees who would be working would only be there for 4 hours. Coleman telephoned her supervisor, Floyd Lancaster, that afternoon at approximately 3 p.m. inquiring when she should return to work. Lancaster asked her why she didn't come in that morning, to which Coleman replied that she was improperly dressed and had not made prep- arations for a babysitter. Lancaster told her she could have gone home and changed her clothes, but Coleman responded that she still had not made preparations for a babysitter. Lancaster then told her to come in Wednes- day morning. Coleman further testified that on Tuesday, August 8, she received a message that Respondent had attempted to phone her. She called Lancaster at approximately 3 p.m. and was told that she was laid off for I week, be- ginning the next day, because of her absence on August 7. She told Lancaster that Parker had told her that Bays had said it would be all right. Coleman then called Bays wanting to know the reason for her layoff. Bays asked her why she had not come to work on August 7, to which she replied she was unprepared because she had not arranged for a babysitter and was not properly dressed. She also told Bays that she was informed by Parker that Bays had said all employees not prepared to work on Monday could take the rest of the day off, inas- much as only some of the employees would only be working and for 4 hours. Bays' response was that she was laid off for a week. At a stewards meeting that evening, August 8, she told Parker and McNeil of her layoff. Parker told her to go to the plant Wednesday morning and write up a griev- ance if she were not allowed to work. Bays' Version Plant Manager Bays testified that he arrived at the plant at or about 5:30 a.m. on the morning of August 7, unlocked the gates, went in, and closed them behind him. At approximately 6 a.m. he turned an employee away, 7 She usually wears jeans and shoes with 2-inch heels to protect her feet when she goes to work Respondent did not permit employees to wear shorts to work 8 Coleman also stated that her normal babysitter arrangements were with a young girl who stays with her children from 9 a.m. until she ar- rives home from work between 3 and 5 p.m. Coleman's home is approxi- mately 12 minutes from Respondent's plant. telling him they would not be working that day. A few minutes later Parker arrived and asked him if he had re- ceived a telegram terminating the strike. He told Parker he had not received the telegram, and that he would go in and see if Respondent could put any of the employees to work. Bays then returned to the gate where approxi- mately 35 to 45 employees were standing. He told Parker he could work all those people for a half day, and that he would let the employees come in to work. Bays denied that Parker told him anything about any employees not being properly dressed and denied telling Parker that such employees could go home. He further stated that the work force that day was made up of mixed-matched crews, and that he was not prepared to have any of the employees go to work when he arrived at the plant on August 7.9 Bays also testified that, after the employees had gone in to the plant, he spoke to Parker concerning Stewards Linda Coleman and Brenda McNeil. He told Parker that what he was about to say was not concerning union ac- tivity, but he wanted to talk to him about Coleman's and McNeil's nuisance claims that just took up time and energy when they knew they were wrong. Bays also stated that he had a conversation some time after that concerning the nuisance claims of Coleman and McNeil with Union Representatives Don Parker, Charles Moore. Robert Spann, and Willie Rudd. While testifying, Bays was asked why he brought up the subject "nuisance claims" on a day when employees were returning to work from a strike. His answer to that question was "I can't answer you. I don't know how to answer it really." Bays further testified that on the afternoon of August 7, or the morning of August 8, he made the decision to discipline employees who had been absent of their own accord on Monday. He assumed that, if an employee was at the plant gate and did not report to work, then that employee was absent of his or her own accord. Bays fur- ther stated that those people who were absent and were not outside the plant gate, did not know that they should have returned to work on August 7, and, therefore, he decided not to discipline those people. He said that, al- though there were approximately 60 to 70 employees absent on August 7 who were presumably subject to the same rules of absenteeism and discipline as Coleman, the only one Respondent disciplined was Coleman. He said he made the decision to discipline Coleman based upon a progressive absence policy of Respondent.' ° Supervisor Lancaster checked Coleman's attendance record and found that she was subject to I week's suspension for being absent on August 7. Although Bays admitted that he was not able to recog- nize many of the employees outside of the gate that morning, he made no effort to find out their identity or that of the absent employees. He also testified that many I To the extent Bays' testimony concerning the events leading to Cole- man's failure to report to work on August 7 is inconsistent with that of Parker and Coleman, I do not credit Bays. He not only had no answers to some questions, but at times was hesitant and somewhat evasive when he did give answers. 'O Respondent's policy was: First and second absences, no penalty, third absence, -day suspension fourth absence, I week's suspension; fifth absence, discharge of employee T H E~~~ D A I C O P N 9 _ _ . 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees absent on August 7 were not marked absent on Respondent's attendance calendar, although some of the employees did not return to work until the following Wednesday or Thursday. Bays also admitted that it would have been "more fair" if he had found out positively whether Linda was the only person at the gate who had not reported to work or whether she was one of several. Because Cole- man had the misfortune of being known and seen by Bays, she was punished and others who were unknown to him were not. Finally, Bays testified that Coleman notified him of the reasons for her absence, but he did not consider those reasons to be sufficient justification. E. The Alleged Unlawful Suspension of Brenda McNeil Brenda McNeil has been an employee of Respondent in the sanding and assembly department for the past 2-1/ 2 years, and for the last 2 of those years she has been chief steward. On or about the initial date of employ- ment she was given a copy of Respondent's company rules. On the morning of August 9, Brenda McNeil clocked in some time between 6:25 and 6:30 a.m. (the workday begins at 6:30 a.m.) Linda Coleman approached her near the timeclock and notified her that she wished to file a grievance based on Coleman's 5-day suspension. When the second warning whistle to start the workday sound- ed, Brooks Benjamin approached McNeil and Coleman and told them to go to work. McNeil told Benjamin that she was handling a grievance, and that the contract pro- vided that one steward could be off from work during working hours to handle grievances. Benjamin walked off and went to the office and while there he learned that McNeil had clocked in. He then called Bays and in- formed him that, although it was past 6:30 a.m., McNeil refused to go to work. Bays told Benjamin to get McNeil's supervisor and again tell McNeil to return to work, and if she refused Benjamin was to lay her off for 1 week. Benjamin went to McNeil's department and talked to her supervisor, Betty Owens. Together they looked for McNeil and located her in the finishing department. McNeil and Coleman were talking to Coleman's fore- man, Floyd Lancaster. Benjamin ordered McNeil to go to the assembly room and begin working. McNeil re- fused, stating that she would after she finished writing out the grievance. Benjamin told her if she refused again she would be suspended for 1 week. Again McNeil re- fused, stating that she would go back when she finished processing the grievance. At that point Benjamin sus- pended her. McNeil then proceeded to the break area to complete the processing of the grievance. That occurred at or about 6:45 a.m. At approximately 7 a.m. Bays arrived, approached McNeil in the break area, and asked if she had been laid off; upon her affirmative answer, he told her to punch out. She did, and shortly thereafter Coleman and McNeil filed grievances over their respective I-week suspensions. IV. DISCUSSION AND CONCLUSIONS A. The Alleged Coercion of Linda Coleman As previously stated, Union Steward Linda Coleman filed a complaint with the Tennessee Department of Labor, Division of Occupational Safety and Health. Fol- lowing an inspection by a representative of that division, Plant Manager Bays pointed out a section of the collec- tive-bargaining agreement, which he had underscored, stating that the employees would cooperate with Re- spondent in maintaining sanitary conditions throughout the plant. Coleman testified that at that time a brief argu- ment ensued concerning the sanitary conditions of the building. Employee Linda Coleman was also a steward and an official of the Union with whom Respondent had a col- lective-bargaining agreement. Standing alone, for Bays to point out to a representative of the Union a provision of the contract that requires cooperation between the em- ployees and management with respect to maintaining sanitary conditions throughout the plant, in the circum- stances, is not, in my judgment, coercion. If Coleman had not been a steward and had filed a complaint, and Respondent had pointed out that provision to her with- out the presence of a union representative, then a case of coercion could probably have been made out absent other conduct toward Coleman. However, in view of Bays' other actions, which will be discussed more fully herein, I find that Bays' conduct constitutes coercion within the meaning of Section 8(a)(1) of the Act. B. The Alleged Discriminatory Suspensions of Linda Coleman and Brenda McNeil Linda Coleman Respondent contends that it had good cause to sus- pend Coleman. It bases its contention on several factors, including the company rules regarding absences and its strict enforcement of company rules, including the rule regarding absenteeism. Respondent points out that Cole- man's calendar for 1978 shows that prior to August 3 she had seven lates and one absence; Coleman was seen at the gate by Bays but did not work, therefore she was considered absent; and Coleman's excuse is implausible in that she must have known prior to August 7 she would be going back to work on that morning. Respondent states the reason for her suspension is "solely because she had 'too many lates and absences."' The General Counsel contends that Respondent's as- sertion that Coleman's suspension was nondiscriminatory and that it followed a strict adherence to its attendance policy "is an incredulous attempt to cover up its retali- atory act against Coleman for her union activities includ- ing the filing of the O.S.H.A. complaint on July 20; the employee walkout two weeks later on August 3; and [the] so-called prior nuisance claims Coleman filed in her capacity as union steward." I agree with the General Counsel. The total circumstances surrounding the suspension of Linda Coleman convince me that she was suspended not for the reasons stated by Respondent, but because Linda Coleman was an aggressive union advocate and a ste- --- THE DAVIS COMPANY 493 ward who, according to Respondent, filed too many "nuisance" grievances. In that connection, Bays testified that, after the employees had gone into the plant, he went out and spoke to Parker concerning Coleman's and McNeil's nuisance grievances that just took up time and energy when they knew they were wrong. He was not able to explain the timing of his complaint. Bays testified that he also had a later conversation with Union Repre- sentatives Don Parker, Charles Moore, Robert Spann, and Willie Rudd concerning the nuisance grievances. He said those claims consisted of inquiries of the previous year's holiday pay for an employee and a grievance con- cerning a credit from a paycheck for dues checkoff. When asked why he was complaining of the "nui- sance" grievances of Coleman and McNeil on the day when employees were returning to work from the strike, Bays did not give any reasons." He admitted that the grievances brought up by McNeil and Coleman were within the realm of activities of the union steward, but he still considered them to be "nuisances." He further testified, in response to a question concerning his reac- tion to the part that McNeil and Coleman played in the walkout of August 3, that he neither liked it nor was he happy about it. Monday, August 7, was a day of confusion in that the employees who were present were not all informed as to whether they would be going to work or continuing the strike. Indeed, even Respondent had not been notified until that very morning of the Union's decision to termi- nate the strike and return to work. Bays testified that he assumed that if an employee was outside the plant gate and did not report to work that employee was absent of his or her own accord. He further assumed without making any check that those employees who were absent and were not outside the plant gate were not informed that they should have returned to work on August 7. Therefore he did not discipline those employees. Bays said that Coleman's discipline was based on his personal observance of her outside the plant gate on August 7. He admitted that he did not recognize many of the employees outside the gate that morning. As previ- ously stated, he made no effort to ascertain the identity of those employees other than to ask his foremen for their observation of the employees. He did not check the records or ascertain which or how many of the employ- ees were absent, but he did have Lancaster check Cole- man's attendance record. He also admitted that many of the employees absent on August 7 were not marked absent on the attendance records, although some of the employees did not return to work until the following Wednesday or Thursday. He also admitted that it would have beeen "fairer" to find out whether Linda Coleman was the only one who was at the gate and did not go into work or whether she was I out of 10 employees who had been outside and who had the misfortune of being known and seen by Bays and therefore was the only one punished. '' The timing of Bays' complaint, following a strike in which Stewards McNeil and Coleman were very active certainly casts suspicion as to he motixes of Bays subsequent conduct concerning the two alleged discri- minatees Finally, even Respondent did not know whether there would be any work that day. Bays went in to find out what departments could put employees to work and for how long. He came out and told Parker that two depart- ments would be working but for only 4 hours that day. Thus, in all the circumstances, I am constrained to con- clude that Respondent's actions towards Linda Coleman in suspending her for 5 days were not for the reasons stated by Respondent, but rather because she filed an OSHA complaint and because Bays thought she filed too many nuisance grievances which were her right to do under Section 7 of the Act. Accordingly, I find that Re- spondent discriminatorily suspended Linda Coleman in violation of Section 8(a)(l) and (3) of the Act. Brenda McNeil Respondent contends that, because of her insubordina- tion, it had good cause to suspend Brenda McNeil. McNeil testified that on the morning of Wednesday, August 9, she clocked in sometime between 6:25 and 6:30 a.m., starting time being 6:30 a.m. She said Coleman ap- proached her near the timeclock and told her that she wished to file a grievance because of the disciplinary layoff she received. While conversing, they were ap- proached by Assistant Plant Manager Brooks Benjamin. He told them it was almost time for them to go to work. McNeil told Benjamin that she was handling a grievance, and that the contract provided that one steward could be off from work during working hours to handle griev- ances. Benjamin said he did not know about that and walked off. McNeil and Coleman then went to the finishing de- partment to see Coleman's supervisor, Floyd Lancaster, to find out why Coleman had been laid off; that being the first step in the grievance procedure provided in the collective-bargaining agreement. McNeil said that, while she and Coleman were conversing with Lancaster, Ben- jamin and Betty Owens (McNeil's foreman) approached them, after the 6:30 buzzer had gone off. Benjamin told her that she had better go back to work. She responded that she would after she finished writing out the griev- ance. He again asked her if she was going back to work, to which she again responded that she would when she finished the grievance. McNeil further testified that at that point Benjamin notified her that she was suspended for a week if she did not return to work. McNeil said, "Okay," and left the finishing department to go to the break area to complete processing the grievance. Benjamin testified as follows: Upon sounding of the 6:30 starting buzzer, he notified Coleman and McNeil that it was time to go to their jobs. McNeil told him that if Coleman was not punched in, and that McNeil was handling Coleman's grievance. Benjamin then returned to the office and, after checking the timecards, learned that McNeil had punched in. He told Bays of the situa- tion, whereupon Bays decided that if McNeil did not return to work when next told to do so by Benjamin he should give her a week's suspension. Benjamin then went to the assembly department looking for McNeil and upon arriving asked Owens if she had seen McNeil. After a negative response Owens and Benjamin went looking for McNeil. They found her and Coleman in the finishing THE~~~~ DA I CO P N 493... 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department talking to Lancaster.'2 Benjamin stated that upon being told of her layoff McNeil went to the break room at approximately 6:45 a.m. Benjamin further testi- fied that this was the first occasion on which he has had to approach a union steward while processing a griev- ance on company time. He said he knew McNeil was a chief steward and that her business was to talk to people concerning their grievances, but felt that McNeil should have made arrangements to handle the grievance at a later time in the day. Benjamin elaborated that McNeil's absence from her department would throw production behind as the assembly of work which came right after the sanding operation would not have any material to work with. Benjamin said that at the time he did not tell McNeil that her being away from her machine was inter- fering with work in her department. He stated further that a factor in McNeil's suspension was her tone of voice which was loud and arbitrary, and which he inter- preted to mean a refusal to go to work. 3 Brenda McNeil was chief steward and apparently an aggressive one. When approached by Benjamin, she as- serted her contract right to engage in steward's business, the processing of a grievance. She notified Benjamin that that is what she was doing, and, even though there is nothing explicit in the contract with respect to a stew- ards' obligation to notify management before leaving her work station to conduct union business, her notification to Benjamin, in the circumstances described above, was enough. And as for the charge of insubordination, Owens, McNeil's supervisor, testified that she was a good worker and had no history of insubordination. McNeil may have been loud in her response to Benja- min, but I attribute that to her annoyance with Benja- min's persistent interference with her conduct of union business. Moreover, in view of McNeil's participation with Coleman in the strike activity, and the fact that Bays stated at the termination of the strike that McNeil and Coleman filed too many nuisance grievances, I con- clude that Bays and Benjamin were determined to punish McNeil not for her "insubordination" but for filing too many "nuisance" grievances and otherwise engaging in protected union activity. Accordingly, I find that McNeil was not insubordinate, as claimed by Respond- ent, and not suspended for that reason, but rather be- cause she was engaging in protected union activity. I fur- ther find that the reason given by Respondent for pun- ishing her is pretextual and in violation of Section 8(a)(3) and (I) of the Act. C. The Alleged Solicitation of Revocation of Dues- checkoff Authorizations The General Counsel contends that Respondent's so- licitation of revocation of dues-checkoff authorizations for its employees is in violation of Section 8(a)(1) of the I2 Benjamin's testimony as to the remainder of the conversation ith McNeil corroborated that of McNeil. " The testimony of McNeil's supervisor. Owens, contradicted most of Benjamin's testimony concerning the indispensability of McNeil Act. Respondent denies that it violated the Act. Bays testified that he made up a card file in response to inquir- ies by employees on how to revoke their dues-checkoff authorization. He said he would go through these cards about once a week and find those whose time was ap- proaching, and after finding one he would mention the employee's name to the supervisor. He said there were some four or five employees that told him they would like to get out, and that those were the ones that were asked. He said the cards were made up in the beginning because of the number of people who asked when and how they could get out. Bays further testified that there were only five such employees who were actually approached and only one withdrew from dues-checkoff authorization. Bays further testified that during the investigation he prepared a sum- mary of Respondent's actions and provided it to the Board agent investigating the charge. Counsel for the General Counsel offered this exhibit and it was received as G.C. Exh. 11I. When asked about this summary, Bays pointed out that it contained several errors. He said these errors were dis- covered after the summary was prepared for the Board agent. However, the corrected summary was not submit- ted to the Board agent prior to the hearing in this case nor offered in evidence at the hearing. Bays testified that a total of five mistakes were indicated and were correct- ed on the record. Of these five corrections he said Abner Felix and Ed Fields were originally listed as employees that had withdrawn from the Union since January 1978, but Bays pointed out that both were not union members during the period in question. The company records reveal that Abner Felix withdrew from the Union in No- vember 1976. Ed Fields was also provided the form let- ters, but the record shows that he had never joined the Union. With respect to Abner Felix a review of the summary sheet reveals that not only was Felix listed as an employ- ee who asked Respondent how to get out of the Union, but that he actually revoked his dues-checkoff authoriza- tion. With respect to Ed Fields, Bays testified that the blank revocation forms were provided to a woman who was attempting to induce Fields to revoke a "nonexistent dues-checkoff authorization." The existence of the revo- cation of dues-checkoff authorization dated July 7, which Ed Fields sent to both Respondent and the Union, and the fact that Fields and Felix, both nonunion mem- bers, were contacted by Respondent demonstrate the extent to which Respondent went to induce employees to revoke dues checkoff.' 4 Respondent contends, and I agree, that an employer can lawfully respond to employees' questions about the withdrawal of checkoff authorizations, provided there is no coercion of the employees. As indicated by the fore- going, Respondent provided much more assistance to the employees than merely responding to questions from them. Shenango Steel Buildings. Inc., 231 NLRB 586 '4 Such actisity does ot substantiate Respondent's contenltion that it colntacted and supplied revocation letters andti addressed enel, opes oinly to those eniploc.es who asked ho% Ito rcsokc authorriatilons or get out of the Union THE DAVIS COMPANY 495 (1977); Dayton Blueprint Company, Inc., 193 NLRB 1100 (1971); Reilly Tar & Chemical Corporation, 151 NLRB 1503 (1965). Accordingly, I conclude that Respondent violated Section 8(a)(1) by its assistance to the e.nployees in withdrawing their dues-checkoff authorizations. CONCLUSIONS OF LAW 1. The Davis Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, United Furniture Workers of America, AFL-CIO, Local 282, is a labor organization within the meaning of Section 2(5) of the Act. 3. On several dates between January 20 and August 20, 1978, Respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guaran- teed them in Section 7 of the Act by asking them if they wished to get out of the Union, and on five separate oc- casions between those dates provided certain employees preaddressed envelopes and revocation letters of employ- er authorization to withhold union dues from employee paychecks. 4. On July 27, 1978, Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act by ex- pressing its disapproval of its employees' filing charges with OSHA. 5. On August 8, 1978, Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and dis- criminated and is discriminating in regard to hire or tenure or terms and conditions of employment of its em- ployees, thereby discouraging membership in a labor or- ganization, by issuing to Linda Coleman and Brenda McNeil 5-day suspensions. 6. The aforesaid conduct constitutes unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. THE REMEDY Since it has been found that Respondent has commit- ted unfair labor practices, I recommend the Respondent be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act as is customary in cases such as this. I shall further recommend that Respondent be ordered to expunge from the records of Linda Coleman and Brenda McNeil all references to the 5-day suspensions they received on August 8, 1978, and to make these em- ployees whole for any losses of pay they may have suf- fered by payment to each of them the sums they would have earned but for the discrimination against them, with interest thereon, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).' Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, I' See. generally. Ili Plutnhing & Itcuing Co. 138 Nl.RI 716 (1962). and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER16 The Respondent, The Davis Company, Memphis, Ten- nessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Asking its employees if they wish to get out of the Union or providing them with preaddressed envelopes and revocation letters of employer authorization to with- hold union dues from employee paychecks. (b) Coercing its employees by expressing disapproval of their filing charges with OSHA. (c) Issuing to its employees suspensions because said employees joined or assisted the Union or engaged in other union activities or concerted activity for the pur- pose of collective bargaining or other mutual aid and protection. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Expunge from the records of Linda Coleman and Brenda McNeil all references to the 5-day suspensions each received on August 8, 1978, and make them whole for any loss of pay they may have suffered as a result of the discrimination each has suffered in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Memphis, Tennessee, plant copies of the attached notice marked "Appendix.""7 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. '6 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board arid become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes " In te event that this Order is enforced by a Judgment of a United States Court of Appeals, the swords in the notice reading "Posted hb Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " THE DAVIS COMPANY 495 and pursuant to Section 10(c) of the Act, I hereby issue