Gilliam Candy Co., Inc.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilliam Candy Company, Inc. and Bakery, Confec- tionery & Tobacco Workers International Union of America, Local No. 199, AFL-CIO. Cases 9-CA-17585-1 and 9-CA-17650-1 5 January 1987 DECISION AND ORDER By CHAIRMAN DoTsoN AND MEMBERS JOHANSEN AND CRACRAFT On 29 March 1983 Administrative Law Judge Karl H. Buschmann issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and ' the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. The judge found, inter alia, that the Respondent unlawfully denied Union Business Agent Lawrence Simmons access to the Respondent's facility on three separate occasions between 9 and 12 October 1981.$ For the reasons discussed below , we agree with the judge. A. Facts The parties' collective-bargaining agreement con- tains the following clause: The business representative of the union will be permitted to enter the plant on business at any time during working hours upon first pre- senting himself to person in charge. In early October, evening shift employee Ruth Adams circulated a decertification petition. During the afternoon of 9 October, Union Business Agent Simmons was advised by the International Union's president that a decertification petition was being 3 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In affirming the judge's conclusion that the Respondent created the impression among employees that their union activities were under sur- veillance by the Respondent, we note particularly the credited testimony that the Respondent's president and vice president came out of the plant, walked towards a gathering of several employees and Union Business Agent Simmons in the company parking lot , pointed at the group, and appeared to be writing on a pad of paper . In light of this evidence, we find it unnecessary to pass on the judge's discussion of whether a viola- tion could also have been found based on the discredited testimony of the Respondent's witnesses. 8 All dates are 1981. circulated at the Respondent's plant. Simmons was asked to go to the plant to investigate the situation. Simmons, accompanied by an International rep- resentative who was in the area on other business, arrived at the plant at approximately 9 p.m. They, were admitted to the plant by Ruth Adams (who thought Simmons and the International representa- tive were the plant cleanup crew). According to the testimony of Ruth Adams, Simmons asked her, "What do you think you're doing? Who are you coming in here and tearing down everything I have built up?" Simmons then asked Adams if she was "passing a petition around ." Adams acknowl- edged that she was, and asserted that she had a right to do so and to attempt to get the Union voted out. Simmons replied that she did not have that right. Adams became upset, and told Simmons to get permission from the evening shift supervisor before speaking further with her. Simmons told Adams he would do so immediately. Simmons and Adams had no further conversation that evening.4 Ruth Adams called Supervisor Jean Adams (dis- tantly related by marriage) at home, and told her that Simmons had just "jumped"5 her and that Ruth needed Jean at the plant. When Jean arrived, she went to where Simmons was talking with the evening shift supervisor. She called the supervisor to her, and asked him, privately, what Simmons was doing in the plant. The supervisor replied that he did not know, that he was not aware that Sim- mons had "jumped" Ruth Adams, and that he did not want Simmons to remain in the plant. Jean Adams then asked Simmons what he was doing in the plant. Simmons replied that he had "a right." Jean Adams told Simmons that she did not want to question or argue his rights with him, but that she would "like for him to leave." Simmons asked Adams whether she was "demanding" that he leave. She told him that she was "asking" him to leave, and that she would apologize to him on Monday (the next workday for Adams) if she was wrong in asking him to leave, but that "Right now I want you to leave." Simmons then left. Following Simmons' departure from the plant, Jean Adams asked Ruth Adams what had hap- pened, whereupon Ruth recounted her version of her earlier confrontation with Simmons. The fol- lowing morning, 10 October, Jean Adams told the fl Ruth Adams' testimony about this incident was corroborated in all material respects by the testimony of Simmons. Although the judge noted that Ruth Adams' account differed from Simmons', he ultimately found that Simmons presented no physical threat, exhibited no violent conduct, and used no obscene or abusive language. 5 Jean Adams testified that the term "jumped" in this context was an expression peculiar to the local area, and means "a fairly aggressive way of talking to someone else." 282 NLRB No. 89 GILLIAM CANDY CO. 625 Respondent's vice president, Brooke, about the pre- vious evening's incident. Also on the morning of 10 October, Simmons re- turned to the plant and asked Brooke for permis- sion to go inside to speak with the employees. Brooke refused to let Simmons into the plant, and told Simmons that he was "a disruption and a dis- traction to the employees during working hours" (Brooke's testimony). Brooke suggested that Sim- mons return during the lunchbreak, at which time he would then be permitted to speak with the em- ployees. Simmons left, and returned later that morning, about 10 minutes before the start of the lunchbreak, at which time he was admitted to the plant. Finally, on 12 October Simmons returned to the plant to serve Ruth Adams with a copy of a union charge against her.6 The Respondent's president, Pope, refused to permit Simmons to enter the plant. Pope testified that the reason he refused to admit Simmons into the plant was because: I had been made aware of what I termed a bi- zarre occurrence [on 9 October] ... that [Simmons] and an unknown accomplice had pounded on the door or rang the buzzer and entered my [Company's premises] and harassed one of my employees without permission in advance . ... I think basically I was angry for that occurrence and that is .the only reason I think I denied him entry. As Pope escorted Simmons out of the plant, he told Simmons that he felt that Simmons' conduct on 9 October was a "despicable, unmanly act" and warned Simmons not to "break into [Pope 's] build- ing again without permission."7 B. Analysis and Conclusion As indicated, the judge found that in all three in- stances discussed above, Simmons sought admission to the plant in accordance with the access clause of the collective-bargaining agreement, and that Sim- mons' activities, while not routine union business, were union related and were within the scope of e The union charge, dated 12 October and signed by Simmons, alleges that Ruth Adams violated certain specified sections of both the Interna- tional constitution and the Local bylaws. Although the charge itself does not set forth the contents of the sections that Adams is alleged to have violated, and neither the constitution nor the bylaws are in evidence, Simmons testified that he told Ruth Adams on 9 October that he was going to file charges against her for circulating the decertification peti- tion. ' On cross-examination, Pope testified that his reason for not letting Simmons into the plant was because he was concerned that Simmons would harass Ruth Adams, as well as the fact that he was "unaware of any legalities on what he was trying to serve her ... I certainly wasn't going to give him carte blanche to go in and serve some land of inter- union [sic] papers without at least getting some information about what it was all about." thatclause. Thus, the judge concluded that the Re- spondent's denial of access to the plant was unlaw- ful. We agree. The collective-bargaining agreement provides that the Union's business representative will be per- mitted to enter the plant on business at, any time during working hours on first presenting himself to the person in charge. The evidence establishes that all three of Simmons' visits in question were made during working hours, and that except for the ini- tial visit on 9 October Simmons first presented him- self to the person in charge on entering the plant. (As, it happened, on 9 October Simmons was admit- ted to the plant by Ruth Adams, the very person he had come to see. Immediately following this co- incidental meeting with Ruth Adams, Simmons went in search of the person in charge of the evening shift.) The only question of contractual compliance re- maining in this context is whether Simmons `sought to enter the plant "on business" on each occasion when he was denied entry. On 9 October, Simmons was instructed by the International president to go to the plant to investigate the circumstances sur- rounding the reported circulation of a decertifica- tion- petition. The following morning, 10 October, Simmons came to the plant to talk to some employ- ees. Finally, on 12 October, Simmons came to the plant to serve internal union charges on Ruth Adams, accusing her of violating the International constitution and the Local bylaws by filing a de- certification petition. We find that Simmons' rea- sons for seeking to enter the plant meet .the broad contractual requirement that he be permitted such entry when "on business." Clearly, a union is engaged in legitimate business when it attempts to learn the reasons for and extent of employee efforts to get rid of that union; when it attempts to speak to employees in the workplace; and when it attempts to inform a member personal- ly that union charges have been filed against her.8 8 We find no basis for our dissenting colleague's contention that the Respondent's actions were justified on the grounds that the union repre- sentative's purpose in seeking entry to the plant was illegitimate . Specifi- cally, there is no support in the record for the Chairman's characteriza- tion of Simmons' statements to Adams as "threats." Transport Workers Local 514 (Kathe, Nichol & Wolfe), 249 NLRB 1171 (1980), is clearly dis- tinguishable. In that case, the sole issue was whether the union represent- ative acted unlawfully in announcing at a 200-member union meeting that the union would "get even" with dissident members by bringing charges and assessing fines against the supporters of a decertification effort. ' Be- cause it is an unfair labor practice for a union to fine a member for seek- ing to decertify a union, the Board found that the threat to impose such a fine was equally unlawful. In the instant case, unlike Transport Workers, there is no threat to fine the Charging Party for her support of the decer- tification effort. Indeed, there is no threat by the Union to engage in any unlawful activity. Although a union may not fine a member for initiating or supporting a decertification effort , a union may legitimately impose other discipline, such as expulsion, on such dissident members. See, e.g., Continued 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The collective-bargaining agreement does not re- strict or otherwise- qualify the scope of the term "on business" for purposes of granting -access to the plant to a union representative. Moreover, we note that in none of the three in- stances discussed above did the Respondent offi- cials involved attempt to justify their denial of access to Simmons on the grounds that he was not involved in legitimate union business in seeking entry to the plant. Thus, in asking Simmons to leave the plant on 9 October Supervisor Jean Adams told Simmons that she did not want to question or argue his asserted contractual right of access to the plant, but that she would simply "like for him to leave" and that she would apologize to him later if she was wrong in asking him to leave. Similarly, the next morning, Vice President Brooke's refusal to permit Simmons to enter the plant to speak with employees was not because such a purpose was beyond the scope of contrac- tually permitted union "business," but was instead because, in Brooke's view, Simmons was "a disrup- tion and a distraction to the employees during working hours." However, the collective-bargain- ing agreement expressly permits the union repre- sentative to enter the plant "on business [an aspect not contested by Brooke] at any time during work- ing hours" (emphasis added). Brooke refused to permit Simmons to speak with employees during working hours. Finally in this context, President Pope's refusal to- permit Simmons to enter the plant to serve Ruth Adams with a copy of the intraunion charge against her was not because such a purpose was beyond the scope of contractually permitted union "business," but was instead' because, in Pope's words, "basically I was angry [about the 9 October incident involving Simmons] and that is the only reason I think I denied him entry."9 Thus, it is clear that on all three occasions, Sim- mons sought entry to the plant for reasons within the scope of the "on business" standard for such entry set forth in the collective-bargaining agree- ment, and on all three occasions Simmons was Marble Polishers Local 89 (Bybee Stone Co.), 265 NLRB 496 (1982); Tawas Tube Products, 151 NLRB 46 (1965). Simmons' assertion to Adams that he planned to file intraunion charges against her is not inconsistent with an attempt on Simmons' part legitimately to have Adams expelled from the Union for her role in the decertification effort. Thus, unlike in Trans- port Workers, and contrary to our dissenting colleague, there is no evi- dence of any illegitimate purpose on the part of Union Representative Simmons in seeking access to the plant. 9 As seen, Pope also later testified that he denied Simmons access to the plant because he was concerned that Simmons would harass Ruth Adams and because he felt he did not have enough information about the intraunion charges that Simmons wished to serve on Adams. There is no evidence that Simmons refused to give, or that Pope even asked for, in- formation about these charges. denied such entry for invalid reasons. a ° Accord- ingly, we agree with the judge that the'Respondent has violated the Act as alleged by refusing to grant the employees' collective-bargaining representative access to the plant in accordance with the applica- ble provisions of the parties' collective-bargaining agreement. I i ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Gilliam Candy Company, Inc., Paducah, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DoTsoN, dissenting in part. I do not agree with the majority or with the ad- ministrative law judge's determination that the Re- spondent violated Section 8(a)(1) of the Act by de- nying the union business agent access to the plant. Assuming the mandatory nature of the access rights, I would not view the limited infringement on these access rights on the evening of 9 October or the next morning to amount to the "substantial and significant change" required under Peerless Food Products, 236 NLRB 161 (1978). Indeed, the short series of events in question here were appar- ently the only instances when a union representa- tive had ever been in any way hindered in gaining access to the Respondent's plant. Moreover, in the initial incident on 9 October, the union representa- 10 Subsequent to issuance of the judge's decision in this case, the Board issued its decision in Holyoke Water Power Co., 273 NLRB 1369 (1985), setting forth standards for union access to an employer's. premises for the purpose of obtaining information. Inasmuch as the instant case does not involve a request for access to obtain information, we find that Holyoke is not controlling here. 11 We are not persuaded to a contrary result by, our dissenting col- league. The Chairman's reliance on Peerless Food Products, 236 NLRB 161 (1978), is misplaced, as that case is both legally and factually distinct from the instant case. In Peerless, there was no contract provision govern- ing union access. The complaint alleged that the employer violated Sec, 8(aX5) of the Act by unilaterally imposing on a union representative cer- tain limitations on what had formerly been his virtually unlimited m-plant access to employees. The Board first stated that actual or perceived valid business needs do not relieve employers of their statutory obligation to bargain about the right of a union representative to have in-plant access to employees for the purpose of investigating and processing grievances. The Board concluded, however, under the circumstances of that case, that the employer's unilaterally unposed limitations on the previously un- limited access of the union representative to the plant were not "material, substantial and ... significant," and thus did not constitute an unlawful breach of the bargaining obligation. Indeed, the Board found that there was no showing that the new limitations on in-plant access even applied to the participation of the union representative in the grievance proce- dure. In contrast, here there is no factual question of the relative inconven- ience imposed on a union representative. The factual setting here presents an absolute exclusion of the Union from the plant-by any standards a "material, substantial and ... significant" limitation, particularly in light of the Respondent's contractual waiver, and in any event far more severe than a "limited infringement," as characterized by the Chairman. GILLIAM CANDY CO. tives did not comply with the simple requirement, contained in the parties' collective -bargaining agreement, that theyfirst present themselves to the person in charge of the facility before attempting to, conduct any business with the employees. Instead, Union Representative Simmons launched immedi- ately into a tirade against employee Ruth Adams, who had the misfortune of answering the door for the union representatives . There is little wonder, then, and good reason, that Supervisor Jean Adams properly--and judiciously-moved quickly to quiet the disturbance created by the union representa- tives, by asking them to leave the plant. That Sim- mons and his companion cooperated at that point by leaving does not serve to legitimize, excuse, or mitigate Simmons' earlier failure to follow the straightforward plant access procedures set forth in the collective-bargaining agreement-which failure contributed in no small measure to the unfortunate scene on Friday night. The following morning, the Respondent's vice president quite reasonably (in light of the events of the previous night) suggested to Simmons that he delay his visit to the plant by a couple of hours, until the lunchbreak. Simmons left without further ado, returned 10 minutes before lunchtime, and was immediately admitted to the plant. Additionally, and notwithstanding the imprecise language in the contractual access clause ("on busi- ness"), there is an implicit requirement that the purpose of the clause must at least be a legitimate one. Simmons' actions and purpose on both 9 and 12 October , in threatening Adams for engaging in protected activity do not in my view meet that standard, even tinder the administrative law judge's facts. See Transport Workers, 249 NLRB 1171 (1980). Therefore, I would find that the reasoning of the judge in finding a violation is not logically or legally supportable and that his reliance on Campo Slacks, 250 NLRB 420 (1980), is misplaced. The access attempts in Campo were inextricably intertwined with the union's attempts to secure in- formation (requests for - which had already been denied by respondent) in order to administer the contract and process, grievances. No similar legiti- mate purpose appears to have been shown here. Thus, under all , the circumstances-the limited nature and duration of the interference with Sim- mons' access to the plant; the failure ' of Simmons to comply with contractual requirements in one in- stance; and the very questionable inclusion of Sim- mons' activity here within the scope of the "on business" standard for access to the plant (which at most raises only a question of contract interpreta- tion)-I find that the Act has not been violated as 627 alleged in this regard, and I would dismiss this aspect of the complaint. David L. Ness, Esq., for the General Counsel. Jon D. Goldman, Esq. (Fine, Hatfield, Sparrenberger & Fine), of Evansville, Indiana, for the Respondent. Lawrence Simmons, of Paducah, Kentucky, for the Union. DECISION STATEMENT OF THE CASE KARL H. BuscHMANN, Administrative Law Judge. This case arose on charges filed by Lawrence Simmons, business agent for the Bakery, Confectionery & Tobacco Workers International Union of America, Local No. 199, AFL-CIO, on October 22 and November'9, 23, and 24, 1981. The consolidated complaint, dated December 16, 1981, alleges that Respondent, Gilliam Candy Company, Inc., violated Section 8(a)(1)' and (3) of the National Labor Relations Act. Respondent in its answer, as amended, admitted the jurisdictional and supervisory al- legations, in the complaint, but it denied the commission of any unfair labor practices. A hearing was held on September 7 and 8, 1982. Both parties filed briefs by October 21, 1982. Based on the entire record in this case, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, Gilliam Candy , Company, Inc., manufac- tures and sells candy at its facility in Paducah,' Kentucky. Respondent, ,with approximately 35 employees, is admit- tedly' an employer engaged in commerce within the meaning of Section 2(2), (6),' and (7) of the National Labor Relations Act. The Company's production and maintenance employees are represented by the Bakery, Confectionery & Tobacco Workers International Union of America, Local No. 199, AFL-CIO, which is admit- tedly a, labor organization within the meaning of Section 2(5) of the Act. At all relevant times, the parties operat- ed pursuant to a collective-bargaining agreement, dated January 1, 1980. II. THE UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Sec- tion. 8(a)(1) of the National Relations Act by repeatedly denying Union Business Agent Lawrence Simmons access to Respondent's premises contrary to the collec- tive-bargaining agreement; by threatening an employee with discharge for engaging in union activities; and by creating the impression among its employees that their union activities were under surveillance. The complaint also alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act when it issued a written warning to Frank Townsend, one of its employ- ees, and subsequently discharged him. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alleged denials of access The record contains three separate incidents involving Respondent's conduct in denying the Union access to the plant. 1. On Friday, October 9, 1981, at approximately 9 p.m. Union Business Agent Lawrence Simmons, accompanied by another union official, attempted to enter the premises of Gilliam Candy Company, pursuant to a provision of the collective-bargaining contract. On this particular oc- casion, Simmons' visit to the plant was prompted by a telephone call he had received earlier that day from Union President Houston Henderson who had informed him that a decertification petition was being passed around the plant and that employees were asked to sign it. When Simmons got to the plant, he was admitted by employee Ruth Adams. In their testimony, Simmons and Adams gave differing accounts of the subsequent events. According to Simmons, he and Adams had a 'brief con- versation in which he asked her why she was filing a de- certification petition. Adams told him that the employees were not getting along 'as, well as they had been before the Union came in. Simmons then told Adams that he in- tended to file charges against her with the union execu- tive board for what he thought was a violation of the Union's bylaws (Tr. 78). Adams' version depicted a hostile Simmons who "jumped her" and accused her of passing out the decerti- fication petition saying "what do you think your [sic] doing. Who are you coming in here and tearing down everything I have built up." Adams argued with Sim- mons, claiming that everything had gotten worse since the Union had come in. Adams finally became upset to the point of tears. She returned to her work area and called Supervisor Jean Adams who lives close to the plant for help (Tr. 182-185). Jean Adams immediately came to the plant and, after a brief conversation with Simmons, during which she told him that he "scared the hell out of' Adams and upset the night shift, she asked him to leave. Simmons, explaining that he had a contrac- tual right of access, nevertheless left the plant (Tr. 79-80 and 203).1 Jean Adams admitted that she told Simmons to leave without discussing the matter first with Ruth Adams and, that in her , opinion Simmons would not have harmed Ruth Adams physically. She also acknowledged that her conversation with Simmons was not heated but generally businesslike (Tr. 215-217). Only after Simmons had left the plant did Jean Adams speak with Ruth Adams concerning the incident (Tr. 204). The record is clear that Simmons did not assault or coerce anyone during this confrontation.2 ' Ruth Adams filed charges with the Board concerning the October 9 and other incidents, which were subsequently settled. 2 Although Jean Adams claimed that Simmons' presence was disrupt- ing the entire night shift (Tr. 203), I have discounted, that testimony as she offered no details to support such a conclusion. Moreover, her testi- mony generally indicated that the employees were- working in a normal manner. The evidence here, despite the repeated reference to Simmons' "jumping" Adams, shows that Simmons - pre- sented no physical threat to anyone, nor exhibited any violent conduct, nor used any obscene or abusive lan- guage. At the most, Simmons may have raised his voice when he accused Adams of initiating the decertification petition. 2. On Saturday, October 10, 1981, at approximately 9 a.m., Lawrence Simmons entered Respondent's plant and requested Paul Brooke, Respondent's vice president, for permission to briefly go into the plant to talk to the em- ployees. Brooke responded "no," and told trim that he was "a disruption and distraction to the employees during working hours." Brooke suggested that Simmons return at lunchtime or after work. Simmons returned about 10:50 a.m., 10 minutes before lunchtime, and was admitted to the plant at that time (Tr. 81, 122, and 153- 154). Assuming that Jean Adams had informed Brooke about the previous night's incident,' it is clear, neverthe- less, that it did not provide Brooke with any legitimate reason to deny Simmons access to the employees on the morning of October 10 and to require him to return during the employees nonworking time. 3. On October 12, 1981, at approximately 3 p.m., Law- rence Simmons came to Respondent's plant seeking entry (Tr. 83, 314). Simmons spoke to Bruce Pope, Respond- ent's president, and asked him if he could go into the plant because he intended to serve a union charge on Ruth Adams. Pope, still indignant about Simmons' visit to the plant on October 9, quarreled with him for coming down there at night and "threatening the em- ployees." Simmons told Pope that he had not threatened any-employees, and that if Pope refused to let him into the plant, 'he just wanted to leave. As Simmons was leav- ing the plant, Pope shouted after him that "he was going to see [Simmons] behind bars." Although Pope admitted that he denied Simmons access to the plant, I do not credit his testimony that Simmons threw the paper intended for Ruth Adams on Pope's desk "frisby style." It not only conflicts with Sim- mons' testimony, but, having been refused admission to the plant on two previous occasions , Simmons would certainly have been more guarded in his attitude. In any case, Pope further admitted that out of "righteous anger" he told Simmons "if you ever break into my building again without permission that [you] might end up behind bars and I [Pope] wouldn't be the one to bail [you] out." (Tr. 317.) By Monday afternoon, Pope had certainly had sufficient time to examine the Adams-Simmons incident in a, rational manner, and it should have been clear that Simmons ,posed no threat to the employees nor to Ruth Adams in particular. Simmons' purpose to enter the plant, although not for routine union business, was nev- ertheless union related and within the scope of his duties. His continued exclusion from the plant on that basis would therefore have been improper. In all three instances, Simmons sought admission to the plant in accordance with the provision in the current bargaining agreement, which provides as follows: GILLIAM CANDY CO. The business rep. of the union will be permitted to enter the plant on business at any time during work- ing' hours upon first presenting himself to person in charge. (G.C. Exh. 5.) Simmons had represented himself on each occasion to the person in charge during working hours and on legiti- mate union business. Respondent's repeated -refusal to admit Simmons certainly interfered with the Union's ef- forts to represent the employees. Pursuant to this provi- sion, Simmons had entered the plant many times before October 9 without any incident and without securing prior, permission to do so. Even if Simmons' conduct on the evening of October 9 had been confrontational to- wards Adams, particularly since he was accompanied by another union official, there was absolutely no proper basis on which Simmons was excluded on the two subse- quent occasions. It is well recognized that an employer's refusal to grant union representatives access to work premises in accordance with a contractual provision of a bargaining agreement violates Section 8(a)(1) of the Act. Campo Slacks. Inc., 250 NLRB 420, 429 (1980). Impression of surveillance As Simmons left Respondent's plant under the circum- stances described, above, at approximately 3:30 p.m. on Monday, October 12, 1981, he walked into the Gilliam parking lot, and approached a group of employees, in- cluding Frank Townsend and Mike King. After a short conversation with them, they noticed Brooke and Pope coming out of Respondent's'build''ing. The group of em- ployees, feeling observed, moved to the adjacent Flor- sheim lot. Pope and Brooke walked to the edge of the Gilliam lot and, as Pope pointed to the group, Brooke appeared to be writing something on a pad of paper. After several minutes both men returned into the plant. In their testimony, Pope and Brooke explained their conduct-Pope pointing and Brooke writing on a pad- as that of taking inventory for one of Gilliam's custom- ers. They admitted, however, that Pope pointed to the employees and simultaneously asked Brooke "What are the employees doing out there?" I have no doubt that Brooke and Pope conducted an inventory during the afternoon of October 12, 1981. However, in light of the consistent testimony by King, Townsend, and Simmons and the chain of events beginning with the denial of access during,the evening of October 9, 1981, as well as Pope's threats to Simmons that day, I credit the employ- ees' version of the incident. Indeed, the incident as de- scribed by Brooke and Pope, in the context of the week- end events, would be sufficient to constitute in the minds of the assembled employees the impression that their meeting with the union representative was under surveil- lance. Although an employer's presence near a union meeting held openly on or near the employer's premise cannot be considered coercive or intimidating, Respond- ent's conduct here,'the pointing and taking of notes, had the necessary coercive and restraining effect on the as- sembled employees. Therefore, Respondent violated Sec- tion 8(a)(1) of the Act by unlawfully creating the impres- sion among its employees that their presence at a union meeting was recorded and under surveillance. 629 Frank Townsend's written and oral warnings On October 12, 1981, Respondent issued Frank Town- send a' written warning for reporting late for work. The General Counsel argues that the warning was union re- lated. The circumstances were as follows: Brooke had initially denied Simmons access to the plant several hours earlier, on the morning of Saturday, October 10, 1981. Simmons returned to the plant about 10:50 a.m. As Simmons left the plant again, he spoke to some of the employees out on the sidewalk, Townsend, who was late getting back from lunch, briefly joined the crowd and also talked to Simmons. Townsend subsequently went into the plant and when he punched in, he saw his super- visor, Albert Rodgers. Rodgers said, "Frank, you're about 15 minutes late." Townsend, explaining that he in- curred delay in ordering his lunch, responded that in fact he was only 12 minutes late. Jean Adams testified that she_ had observed Townsend talking to Simmons and the other employees on that oc- casion and that she had brought it to Brooke's attention. According to her testimony, she and Supervisor Albert Rodgers observed Townsend from inside the plant for about 12 minutes, until Townsend came into the plant. Brooke testified that after Adams' reported Townsend's lateness he went into the warehouse and saw Townsend talking to Simmons and two female employees for about a minute. As soon as Townsend noticed him, Townsend looked up and began to leave the group. Rodgers testi- fied that when he left for lunch about 11 a.m. and saw Townsend talking to Simmons, he reminded Townsend that it was past 11. Rodgers admitted that Townsend's tardiness ' did not cause any delay in the production process at Gilliam. However, from the testimony of Brooke, Adams, and Rodgers, it is apparent that they deeply resented Town- send's conversation with Simmons. On Monday, October 12, 1981, Rodgers told Town- send to'go to the office of Pope, Respondent's, president. In the presence of Brooke, Pope handed Townsend a written reprimand dated October 1,0, 1981, which, under the heading "Nature of Violation," indicated "Conduct" and "Lateness" and, under the heading "Remarks" stated: "Punched out at 10:30. Did not punch in until 11,:12. Spent extra time talking-on employee's entrance sidewalk. Intentionally, 12 minutes late." (G.C. Exh. 2.) Townsend testified that Pope gave him the reprimand with the comment "you [were] talking union business on company time, ' I can't stand for that, you were intention- ally late." This obviously suggests that Respondent re- sented Townsend's conversation with Simmons. Signifi- cantly, Respondent admitted, and the record shows, that in the past 5 years Respondent had never reprimanded any employee, for returning late from lunch even though other, employees have been tardy. Respondent could not justify its disparate treatment of Townsend. It is clear, therefore, that. Respondent reprimanded this; employee not, merely because he was late, but because his tardiness was the result of his "union talk" with Simmons. I find that' Respondent violated Section 8(a)(3) and (1) of the Act. Moreover, I also find that Respondent threatened Townsend, as alleged in the complaint. According to 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Townsend's testimony, Pope not only gave him that rep- rimand and referred to his intentional lateness because of his conversation with Simmons, but he also warned Townsend that he already had two warnings and that his job was in jeopardy.3 In this context, it was tantamount to saying that if he did it again he would be fired. Conse- quently, I find that by making the accompanying remark Respondent violated Section 8(a)(1) of the Act. Frank Townsend's discharge November is traditionally part of Gilliam's busy season, and on Saturday, November 7, 1981, the plant was scheduled to operate a combined shift. On Novem- ber 4, 1981, a notice was put on the bulletin board an- nouncing the, Saturday workday. On November 5, Su- pervisor Rodgers asked his employees if they wanted to work on Saturday. Rodgers also approached Frank Townsend. He told Rodgers that he would let him know on the following day. The next morning at 6:30 a.m., Rodgers again asked Townsend if he could work on Sat- urday. Townsend said "yes." However, in the afternoon of the same day, Townsend told Rodgers that he had changed his mind and that he would not work on Satur- day. Rodgers told him that he had to work on Saturday. Townsend told Rodgers to select one of the two other cooks with less seniority. When Townsend clocked out, Brooke met him at the timeclock. Brooke asked him, "Frank, are you refusing a direct order to work?" Town- send responded, "I guess I am because I can't work." Brooke told him, "You will be terminated if you, don't come in tomorrow." Townsend responded, "Well, okay." Townsend subsequently talked to Simmons about the Company's order to work. Simmons responded, "Well, Frank, its your choice, you do what you think is right." On Saturday, November 7, 1981, Frank Town- send did not report for work. Instead, Billy Bowers, who was not a fully trained cook, substituted for the cook's job. On Monday, November 10, Townsend attempted to report for work. Brooke handed him a termination notice effective November 7. As reasons for the termination, it states: "Gross insubordination-falsifying employment ap- plication concerning prior employment and injury." Employees Roscoe Free, Billy King, and Ricky Arm- strong, who also did not work on Saturday, were not discharged. King and Free who worked on the night shift were not given a warning, since they would have worked until midnight the previous day and would have had to report a few hours later for the Saturday shift. Armstrong, the relief cooke, however, received a warn- ing even though he had a doctor's appointment on Satur- day. The additional reason for Townsend's discharge, namely "falsifying employment application concerning prior employment and injury" did not, according to Pope's testimony, play a major role in Respondent's deci- sion to terminate Townsend. Yet, it was indicated on the termination notice as a factor. In this regard, the record shows that on Friday, November 6, Brooke received a S I have not credited Pope's denial of havmg made these remarks. His testimony appeared inconsistent and unconvincing. call from Bob Penney, the compensation claims manager from Walker Boat Yard, who inquired whether Town- send had exhibited any physical impairment, because Townsend, who was previously employed at Walker Boatyard, was in the process of trying to get workmen's compensation for a back injury. Rodgers was aware of Townsend's back problem since on October 26, 1981, Townsend had asked Rodgers for leave to have his back examined by a physician. Rodgers had informed Brooke who had prepared a memorandum (G.C. Exh. 7) in order to record Townsend's preexisting back injury. On the morning of Saturday, November 7, Pope and Brooke discussed Townsend's work record and his fail- ure to report for work. When they examined Townsend's application file, they noted that Walker Boat Yard was not listed as his previous employer. Pope then decided to use Townsend's failure to report his previous employ- ment and his back injury as additional reasons for his dis- charge. The General Counsel's argument that Townsend's dis- charge was violative of the Act rests on the theory that the discharge was tainted by "his illegal written warn- ing," and that no other employees were fired for their failure to work on Saturday. Indeed, only one other em- ployee had been discharged by the Respondent in the prior year. That employee was fired for gross insubordi- nation on August 8, 1981, and subsequently rehired. Re- spondent's examination of Townsend's application dem- onstrated, according to the General Counsel, Respond- ent's search for a pretext to legitimize Townsend's termi- nation, actually motivated by Respondent's union animus. Although Respondent's conduct in terminating Town- send may have been tainted by the illegal warning, the record does not support a finding of "discrimination in regard to hire or tenure of employment" in order to dis- courage union activity. It is initially clear that Town- send's refusal to report for work on Saturday was the direct cause of his termination. Had he agreed to work that day, he would not have been discharged. Further, the record does not convincingly establish disparate treatment of Townsend by his employer. Townsend had suggested that his employer should not have selected him but, instead, employees with less seniority to do the cooking on Saturday. Yet, the record shows that two of the three possible candidates were scheduled for work the preceding Friday night and the third cook who did receive a reprimand had a doctor's appointment on Sat- urday. Townsend had offered no excuse for his refusal to work. To be sure, the Company has in the past refrained from discharging employees except on rare occasions; however, one other employee had been discharged before for the same offense, i.e., insubordination. Finally, Townsend's union involvement was not suffi- ciently prominent to have become the target of an em- ployer's animus. Among Gilliam's 35 employees were a union president, a vice president, a secretary, and three stewards. Townsend served as one of three stewards. In that capacity he had never processed or filed a griev- ance. He could not remember any conversation he had with management involving union business. The sole in- GILLIAM CANDY CO. 631 cident of his active union involvement was his col-versa= tion with Simmons on October 10, 1981, when he re- turned late from lunch. And that episode, which prompt- ed the illegal reprimand, even ` in combination with his status as union steward, appears too remote to establish a prima facie case of wrongful motive. See Wright Line., 2511 NLRB 1083 (1980). Accordingly, I find that in discharging Frank Town- send Respondent did not violate Section 8(aX3) and (1) of the Act and, therefore, I dismiss the allegation relating to Townsend's discharge. CONCLUSIONS OF LAW It. Respondent, Gilliam Candy Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By denying Union Business Agent Lawrence Sim- mons access to its plant on three separate occasions con- trary to the collective-bargaining agreement , Respondent interfered with the employees' rights guaranteed by Sec- tion 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. By creating the impression of surveillance among its employees, Respondent violated Section 8(a)(1) of the Act. 5. By threatening Frank Townsend with the loss of his jot) because he was observed conversing with a union of- ficial, Respondent violated Section 8(a)(1) of the Act. 15. By issuing a written warning to Frank Townsend because he was observed conversing with a union offi- cial, Respondent violated Section 8(aXl) and (3) of the Act. 7. The foregoing violations of Sections 8(a)(1) and (3) of the Act affect commerce within the meaning of the Act. 8. Any other allegations have not been substantiated. ees. pursuant to the 'terms of the collective-bargaining agreement. (b) Reprimanding employees or otherwise discriminat- ing against them regarding hire or tenure of employment or any conditions of employment to discourage member- ship in a 'labor organization. (c) Creating the impression among ' its employees that their union meetings are under surveillance. (d) Threatening its employees with the loss of jobs be- cause of their union activities. (e) In any like or related manner , interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. , 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Expunge the written reprimand given to Frank Townsend on October 12, 1981, from Townsend's per- sonnel file. (b) Post at its Paducah, Kentucky plant, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent 's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER ]Respondent, Gilliam Candy Company, Inc., Peducah, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Arbitrarily or wrongfully denying the union busi- ness agent access to the plant to confer with the employ- 4 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered 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 protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT arbitrarily or wrongfully deny the union business agent access to the plant to confer with the employees pursuant to the terms of the collective- bargaining agreement. WE WILL NOT create the impression among our em- ployees that their union activities are under surveillance. WE WILL NOT threaten you with the loss of jobs be- cause of your union activities. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT give any warnings to you or otherwise WE WILL NOT in any like or related manner interferer discriminate against you regarding your hire or tenure of with, restrain, or coerce you in the exercise of the rights employment or any term or condition of employment to guaranteed you by Section 7 of the Act discourage membership in the Union , and WE WILL remove from our personnel files the warning given to GILLIAM CANDY COMPANY, INC. Frank Townsend.