Paper Board Cores, Inc Of Alabama

PAPER BOARD CORES 995 Paper Board Cores, Inc of Alabama and Central Alabama-Georgia Joint Board, ACTWU, AFL-CIO Cases 15-CA-10313, 15-CA-10388, and 15-CA-10470 February 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On July 22, 1988, Administrative Law Judge Lawrence W Cullen issued the attached decision The General Counsel and the Respondent filed ex- ceptions and supporting briefs, and the Respondent filed a brief in opposition to the General Counsel's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, 2 and conclusions3 as modified, and to adopt the rec- ommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed tional Labor Relations Board (the Board) The complaint in Case 15-CA-10313 is based on a charge filed by the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the Charging Party or the Union) on 26 May 1987 The complaint in Case 15-CA-10388 is based on a charge filed by the Charging Party on 7 August 1987 The complaint in Case 15-CA-10470 is based on a charge filed by the Charging Party on 18 November 1987 The consolidated complaint alleges that Paper Board Cores, Inc of Alabama (the Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by threatening and cursing an employee(s) to dis suade the employee(s) from supporting the Union and by impliedly threatening employees with retaliation for their union activities and by referring to the employees as troublemakers, that Respondent violated Section 8(a)(1) of the Act by disparately enforcing a work rule prohibit ing employees from leaving their work areas that Re spondent violated Section 8(a)(3) and (1) of the Act by discharging employee Dwight Sanders because of his union activities, and that Respondent violated Section 8(a)(5) and (1) of the Act by acquiescing, condoning, and assisting in the circulation of a decertification petition, by withdrawing recognition from the Union, and by unilat erally announcing and implementing changes in wages and benefits The complaint is joined by Respondent's answers in which Respondent denies the alleged viola tions of the Act On the entire record in this proceeding, including my observations of the witnesses who testified here, and after due consideration of the beefs filed by the General Counsel and counsel for the Respondent, I make the fol lowing i The case caption corrects the judge s reference to the Respondent as Paper Board Core Inc of Alabama 2 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive 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 re versing the findings 2In agreeing with the judge that the Respondent lawfully discharged Dwight Sanders for threatening to put a gun to the head of another em ployee we specifically reject the General Counsel s argument that Sand ers statement was part of the res gestae of protected grievance discus sion Rather we find that Sanders statement in light of his next-day re affirmation that he meant what he said is sufficiently flagrant and egre gious to warrant denial of any protection Sanders may have enjoyed during the grievance process Charlotte White Esq , for the General Counsel L Traywick Duffle and Kurt A Powell Esq (Hansell & Post), of Atlanta, Georgia, for the Respondent Joe Alvarez, of Columbus, Georgia, for the Charging Party DECISION STATEMENT OF THE CASE LAWRENCE W CULLEN, Administrative Law Judge These consolidated cases were heard before me on 25 26, and 27 January 1988 at Bay Minette, Alabama The hearing was held pursuant to a consolidated complaint issued by the Regional Director of Region 15 of the Na 292 NLRB No 107 FINDINGS OF FACT AND ANALYSIS I JURISDICTION A The Business of Respondent The complaint alleges, Respondent admits and I find that the Respondent was and has been at all times mate nal an Alabama corporation with offices and a place of business located at Bay Minette Alabama where it is en gaged in the business of converting paper into various products, that during the 12 month period prior to the filing of the complaints, a representative period of all times material, Respondent, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 from its Bay Minette Alabama facility directly to points located outside the State of Alabama and purchased and received at the facility materials valued in excess of $50 000 directly from points located outside the State of Alabama and has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act B The Labor Organization The complaint alleges the Respondent admits, and I find that the Union is now, and has been at all times ma tenal, a labor organization within the meaning of Section 2(5) of the Act 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C The Appropriate Unit The complaint alleges, Respondent admits and I find that the following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act All production and maintenance employees, proba tionary employees and truckdrivers employed by Respondent at its Bay Minette , Alabama plant ex cluding temporary employees, office clerical em ployees, guards and supervisors as defined in the Act II THE ALLEGED UNFAIR LABOR PRACTICES' A Background and Interrelationship of the Charges On 25 September 1985 in Case 15-RC-7192 a majon ty of Respondent's employees in the aforesaid appropn ate unit by a secret ballot election, designated and select ed the Union as their collective bargaining representative and the Union was so certified by the Regional Director for Region 15 on 3 October 1985 Pursuant to a request for bargaining by the Union on 10 October 1985, the par ties commenced negotiations on 5 November 1985 and engaged in 31 bargaining sessions but were unsuccessful in reaching an agreement with the final bargaining ses sion held on 18 March 1987 at which time most of the contract language had been resolved but the wages and benefits had not been resolved During this period the Respondent had been purchased by another company There is no allegation that the Respondent engaged in surface bargaining, dilatory tactics, or otherwise bar gained in bad faith during the negotiations Dwight Sanders, a bargaining unit employee holding the classifi cation of baler, made the initial contact with the Union that led to the commencement of the union campaign and was subsequently a leader in its organizational of forts getting union cards signed handing out union liter ature, and attending a scheduled representation hearing on behalf of the Union although he was not called on to testify as the hearing was canceled pending an agreement on the election to be held Subsequently, Sanders served as a member of the Union's bargaining committee and at tended all 31 sessions He was also designated as one of three employees to represent coworkers on the job in grievances or disciplinary matters as there was no gnev ance machinery in effect and Respondent did not wish to take up these matters at bargaining sessions On one oc casion he led a protest concerning the length of negotia tions into the office of Robert M Sullivan Respondent s general plant manager and an admitted supervisor On 12 December 1986 Sanders was discharged follow ing an instance on 10 December 1986 when he was called on to assist a coworker (Tommy Fell) in discuss ing a grievance of that worker against another worker (James Edmundson) with a supervisor (Plant Superin tendent Joe Price) and which Sanders followed up with a meeting with another supervisor (Temporary Supervi sor David Beck) where he is alleged to have threatened ' The following includes a composite of the testimony credited in my consideration of the evidence presented at the hearing to put a 38" (gun) to the head of unit employee Ed mundson and to carry (take) him into the office of Plant Manager Sullivan Both Price and Beck who were then on loan from another of Respondent's plants are ad mitted supervisors On 12 December 1986, Sanders was discharged for making the threat to employee Edmund son He had been employed 5 years at the time of his dis charge and had previously been disciplined on only one occasion when he received a written warning for writing the words contract now on a work order His dis charge is alleged as a violation of Section 8(a)(3) and (1) of the Act Additionally, Price is alleged to have cursed prounion employees in a conversation with Sanders on 10 December 1986, and to have threatened to fight Sand ers on that date, both of which incidents are alleged to be violations of Section 8(a)(1) of the Act committed by Respondent Beck is alleged to have referred to the union employees as troublemakers in violation of Section 8(a)(1) of the Act Additionally, Respondent is alleged to have disparately enforced an unwritten rule against em ployees leaving their work stations in the plant against Elmore Pate, a known union supporter, in violation of Section 8(a)(1) of the Act Pate is a former employee who along with Sanders had spearheaded the union cam paign, attended the scheduled representation hearing on behalf of the Union, served on the Unions negotiating committee, and was designated to represent employees in complaints to supervision and in disciplinary matters In October 1986 John Craig Peacock, a unit employ ee, commenced the circulation of a decertification peti tion among the employees and by March 1987 had ob tained 15 signatures, representing 50 percent of the bar gaining unit and filed it with the Board on 17 March but subsequently, withdrew it in late March On the next day Wendell Willard a coemployee of Peacocks who had assisted Peacock in the circulation of the original decerti fication petition, commenced to go to the employees who had signed the petition circulated previously and asked them to sign a new petition stating that they no longer wished to be represented by the Union and col lected all 15 signatures again This petition was presented by Peacock and Willard to Plant Manager Sullivan on 25 March 1987, who testified he made a copy and returned the original to them and consulted his attorney who wrote the Union on that date withdrawing recognition This petition was not filed with the Board It is undis puted that following the withdrawal of recognition from the Union on 25 March 1987, the Respondent refused to bargain further with the Union and announced and im plemented a number of unilateral changes in wages ben efits and terms and conditions of employment affecting employees in the bargaining unit Specifically, the Re spondent announced to its employees on 26 and 30 March 1987 that it had withdrawn recognition from the Union and that it intended to implement improved wages and benefits On 1 April 1987 Respondent implemented a change in the employees working hours On I May 1987 Respondent implemented a change in the employees health insurance On 30 March 1987 Respondent an nounced a 5 percent wage increase to its employees and implemented the increase on 1 May 1987 On 1 May PAPER BOARD CORES 997 1987 Respondent implemented a $25 birthday bonus to spouses of unit employees On 4 November 1987 Re spondent announced it would replace a scheduled per centage wage increase with a bonus and implemented a $200 bonus for its employees The assistance in circula tion of the petition the withdrawal of recognition, refus al to bargain, and the unilateral changes are alleged as violative of Section 8(a)(5) and (1) of the Act Also at issue is the status of Filomena Wade who was originally excluded from the bargaining unit as a temporary em ployee in information furnished by Respondent to Region 15 during the course of the investigation into the 8(a)(5) and (1) charge giving rise to the complaint B The Discharge of Dwight Sanders and Related Incidents As set out above and based on the unrebutted testimo ny of Sanders, Falls, Pate, and Union Representative Joe Alvarez, Sanders was a leading union adherent whose prounion sympathies were well known to management The General Counsel also presented testimony through Sanders and Melinda Falls, the former secretary and office manager to Plant Manager Sullivan , and through Elmore Pate that Sanders' union activities caused him to incur the displeasure of Respondents management and to be subjected to harassment and threats as a result Sanders testified that he was called into Plant Manager Sullivan s office in August 1985 at which time Sullivan asked me what I meant by trying to get the union orga nized in his plant, and I said I have no comment He said how many cards do you have, son? I said I have no comment He said I in not going to negotiate in any ca pacity with a union in my plant And I said I have no comment, and he tells me to go on back to my machine, that he would deal with me at a later time ' Plant Man ager Sullivan testified that when he called employees into his office prior to the election , he was just trying to find out what was going on, but I didn't discuss any you know signing Union cards or recommend one way or another what to do' and `I said, you have the right to do what ever you want to do, if you want a Union that s your privilege to to you know get you one but I said I don't think we need we need a Union but that was prior to us hiring (legal counsel) He denied having made any statement to Sanders that he knew that Sanders was signing (soliciting) cards I credit Sanders' specific recall of this incident over Plant Man ager Sullivan s general denials The General Counsel further adduced evidence through the testimony of Melinda Falls (the former office manager and secretary to Plant Manager Sullivan who was terminated in August 1986 by Sullivan for al leged unsatisfactory work performance) that Sullivan had directed her to write memos falsely stating that Sanders had telephone conversations with Falls in which he complained about Respondent 's supervisor Bob Icon, and Sullivan stating that Sullivan did not know what was going on and in which Sanders was reported to have issued threats concerning what would happen when the Union was selected as the collective bargaining representative of the employees Sullivan denies having told Falls to fabricate these memos but rather testified he had told Falls to write down what was said by Sanders in these conversations when Falls reported them to Sulli van Sanders also denied the conversations For reasons of demeanor, considerations of Falls bias against Sulli van as a result of Sullivan's termination of her and as a result of my review of these memos which are critical of Respondent's management and which I find unlikely to have been fabricated by Falls I credit Sullivan in this regard Falls also testified that on another occasion Sullivan and then unit employee Harold Price and Sullivan s son Robert T (Robby) Sullivan, a supervisor were discuss ing Price s upcoming promotion to plant superintendent and that Price who was then a unit employee stated that the first thing he was going to do after his promotion was to get rid of that son of a bitch , Dwight Sanders This conversation was denied by both Sullivan and Price I credit Falls in this regard Falls also testified that on another occasion after Sand ers fell from the back of a pickup truck while throwing trash into a landfill behind the Company s premises, that Plant Manager Sullivan, on learning of the incident, stated that it was a shame that Sanders had not died I credit Falls in this regard Regarding this incident, Sand ers testified that after the union election he was assigned to throw trash off the back of the truck by Bob Icona (Price s predecessor in the position of plant superintend ent), a task difficult as the result of his limited use of one arm and hand as a result of a birth defect Former union activist and negotiating team member Elmore Pate testi feed that he objected to Sanders being required to per form this job Icona who was subsequently terminated by Respondent , did not testify I credit the testimony of Sanders and Pate that Sanders had not previously been required to perform this task Falls further testified that when Sanders was still on medical leave as the result of the truck incident, Sullivan attempted to obtain permis sion from his superior over the telephone to fire Sanders as the result of Sanders absence , but that she picked up the telephone and informed Sullivan s superior that Sand ers was not yet due back from his medical leave and that Sullivan subsequently admonished her for having ruined this opportunity to fire Sanders I credit Falls testimony in this regard Sanders also testified that after Price became superin tendent he was assigned a new task cleaning unusable wastepaper off a spool requiring him to use a powersaw and that the saw would back up on him as a result of the limited use of his hand Both Price and Plant Manager Sullivan testified that this was part of the baler's respon sibilities and that Sanders was free to use the saw or a knife whichever he chose and that they did not consider this an arduous task as the result of the condition of Sanders arm and hand I credit Sanders testimony in this regard and find that he had not previously been as signed this task On 10 December 1986 prounion employee, Tommy Fell, became involved in a dispute after he had been as signed to use a forklift by Price and was subsequently followed by employee Robert Edmundson, who was not a union supporter and who asked Fell whether he was 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD through with the forklift. Fell replied in the negative and Edmundson then said he would report to Price Fell's re- fusal to permit Edmundson to use the forklift.2 Fell then went to Price who told him that he had had a belly full of the "goddamn" business between the union and non- union employees. Fell, along with Price, • then ap- proached the area where Sanders was working and Fell informed Sanders of the problem because Sanders had been designated a union representative of employees in- volved in complaints against management or disciplinary matters pending the establishment of a grievance proce- dure under the terms of the initial contract to be negoti- ated. Sanders testified that when he spoke on behalf of Fell, Price told Fell to let Edmundson have the forklift when he tells him to do so. Price also said that he would get the problem straightened out. Subsequently, that afternoon Sanders took the problem to Supervisor David Beck, who was temporarily on loan to Respondent's Bay Minette plant from its Cedartown plant. Beck testified that Sanders told him that he could not discuss the matter involving Edmundson with Price but that if he (Beck) did not solve the problem he (Sand- ers) would put a "38" (gun) to Edmundson's head and "carry" (take) him to Plant Manager Sullivan's office. Beck, who testified he considered this a threat, reported this to Superintendent Price who reported it to Plant Manager Sullivan the following day because Sullivan had been out of town on 10 December 1986. Sullivan testified he told Price to go out and ask Sanders whether he had made the statement as reported by Beck. Sullivan testified that Price thereafter did so and reported to him that Sanders had said that not only had he made the statement but that he meant it. Price also testified that Sanders had said that not only had he made the state- ment but that the meant it. Price's testimony was cor- roborated by unit employee James Ramer. Sullivan testi- fied that after Price reported to him that Sanders admit- ted making the threat, he called Sanders in and dismissed him for making the threat, which he considered a serious matter that could not be tolerated in the tense pro and antiunion atmosphere among the employees which had previously been the subject of serious arguments. At the hearing, Sanders denied having threatened Ed- mundson with a gun as cited by Beck but admitted having told Beck, "I'll carry [take] his goddamn ass to Robert Sullivan's office," if the problem were not straightened out and that Beck had stated that it was the union employees who were causing the trouble. Sanders' testimony was corroborated in part by employee Tommy Fell. Beck denied having stated that the union employees were causing the trouble or having referred to them as troublemakers. At the hearing the Respondent intro- duced the prior testimony of Sanders at an unemploy- ment compensation hearing involving the matter in which Sanders testified that in his termination discussion 2 The testimony developed at the hearing disclosed that in October 1986 unit employee Craig Peacock commenced the circulation of a decer- tification petition and that there was a good deal of dissension between prounion and antiunion employees at the plant concerning this. In De- cember the employees left their work stations and went into the office of Plant Manager Sullivan and protested the slow pace of contract negotia- tions and the circulation of the decertification petition. Sullivan had not even mentioned the alleged gun threat. At the hearing Sanders testified that Sullivan had men- tioned the alleged threat. Sanders attempted to explain these inconsistencies in his testimony by testifying that he did not understand the procedures at the unemploy- ment hearing. Sanders also testified at the Board hearing before me that he did not even own a gun and had car- ried a gun only once while working as a security guard prior to his employment with Respondent. Respondent countered this testimony by the testimony of two inde- pendent witnesses (Byran Coleman, security manager at a store where Sanders had been employed as a security guard) and Dougell Taylor (the supervisor of Sanders at the security agency employing Sanders) both of whom testified that Sanders had been required to carry a gun as a security guard and that they had observed him carry one on numerous occasions. 1. Supervisor David Beck's alleged threat This refers to the conversation between Sanders and Beck in which Sanders took the problem concerning Ed- mundson to Beck and allegedly made the threats to put a gun to the head of Edmundson. Sanders testified that when he discussed the problem of Edmundson with Beck, Beck said, "This is a good employee; you union people's causing him trouble." Beck denied making this comment or ever having made any references to union supporters as troublemakers or said that union employees were causing trouble. Analysis I credit the testimony of Beck over that of Sanders. However, I would not find that the statement allegedly made by Beck, even as testified to by Sanders, rises to the level of an unfair labor practice. By several accounts there was dissension among employees at the plant as demonstrated by the record testimony and I would find Beck's statement as no more than a personal view of the cause of the trouble and would not find that it constitut- ed a threat of any kind. 2. The alleged cursing and threat issued by Price to Sanders on or about 10 December 1986 Sanders testified that after he had discussed the work dispute concerning Edmundson and Fell with temporary Supervisor David Beck that Price approached him and He said I'm tired of the goddamn bickering. He said there's nobody going over my head to Robert Sullivan, and just because you're a half assed shop stewart, you don't have the right to go. over my head to Robert Sullivan, and that he [Sanders] re- plied: I said, you have a problem here that needs to be handled. Harold Price then tells me that he will take care of it. Sanders testified further that Price then left and he saw Price talking to Edmundson but could not hear the con- versation. PAPER BOARD CORES Price testified concerning this incident that there was a dispute between Fell and Edmundson concerning the use of the forklift and that Fell was dissatisfied with Price's telling Fell to let Edmundson use the forklift and that Fell then approached Sanders and Sanders became upset and Sanders contended that Edmundson was causing problems and that he (Sanders) was tired of it Price tes tified and I [Price] became irritated with the situa tion and told Mr Sanders that I was tired of the bickering between union and non union employees in the plant I had had a belly full of it, and that if individuals or people would listen to what I told them to do and do what I assigned them to do, that we wouldn t have these problems to start with Analysis I credit Sanders version over that of Price s with re spect to the use of the word goddamn ' which appears to be a sanitized version of the conversation I find both versions quite similar about what was said However, I do not find that Price s remarks to Sanders constituted an unlawful threat or curse to Sanders in retaliation for his union activities but the remarks appear directed to bickering that had been going on between employees as testified to by Price and other employees concerning their pro or antiunion sentiments Moreover, it appears from the record that this conversation followed the con versation between Beck and Sanders in which Sanders attempted to bypass Price by going directly to Beck and threatening to go to Sullivan and at which time Sanders had issued the statement concerning the gun Under all these circumstances , I find Price s remarks were the result of a general exasperation with the bickering be tween employees and an assertion of Price s own author ity and did not give rise to a violation of the Act 3 Price s alleged threat to fight Sanders on or about 10 December 1988 It appears from the record that this conversation took place on the afternoon of 10 December 1988 following Sanders' conversation with Beck and Price s later con versation with Sanders Sanders version of this incident is as follows Then later on that afternoon Harold Price , myself R B Green Curtis Johnson, Daryl Johnson and Tommy Fell was around the baler there and he Harold Price says Dwight here I heard was going to take one of the employees to the office with a big gun stuck to his head ' Harold Price said ` David Beck tells me that the way they handle problems in the Cedartown plant is that they clock out and go across the street in a square circle and battle it out Dwight, why don t you clock out and you and I go out back because it won t be but two licks 111 hit you and you'll hit the ground ' 999 Sanders testified that everyone , including himself, laughed about it and that Price then walked off Sanders version was corroborated by Fells Price, who was unable to place the date of this con versation, testified that Sanders had discharged a bale of paper from the machine and it fell apart and that he (Price) jokingly asked Sanders whether he had used his good or bad arm to tighten the bands on the bale and that Sanders replied it made no difference as one arm was as good as the other and that if they went outside and fought he could show Price this Price testified he then stated That according to David Beck that was the way that they had settled differences in the Cedartown plant Dwight told me that if we went outside and settled our differences, that there would be two licks past [sic] He would hit me and I would hit the ground Price testified that it was a joking matter and no one took the matter serious Price s testimony was corrobo rated in part by unit employee R B Green , a member of the union negotiating committee who testified When I came up the conversation was going on I heard Mr Price say that the way they do things in Cedartown, they take it out in the back in a ring and settle it And Mr Sanders said, well there wouldn t be one lick passed, and then it will all be over and everybody laughed and I walked on off Analysis I find that Price s version of this conversation as cor roborated by employee R B Green should be credited and I thus find that Sanders was an active participant in this incident which appears to have been a joking mci dent from the start However even if Sanders version were to be credited I find that this incident does not rise to the level of a violation of the Act I note that this in cident followed shortly after on the same date the inci dent in which Sanders had told Supervisor Beck that he would put a gun to the head of Edmundson and take him to the office and Price's remarks related to the threat by Sanders rather than to his role as a union steward More over as noted above by all accounts the conversation was deemed a joking matter by all concerned I thus find that Price's remarks to Sanders did not violate the Act 4 Analysis of the discharge of Dwight Sanders I find that the General Counsel has established a prima facie case of a violation of Section 8(a)(3) and (1) of the Act by Respondent as the result of its discharge of Dwight Sanders It has been established that Sanders was a known leading union advocate who had incurred the displeasure of Respondents management as a direct result of his union activities and who was discharged shortly after meeting with Supervisors Beck and Price in his role as a union stewart while processing a grievance on behalf of another employee However I find that Re spondent has rebutted the prima facie case by a clear and 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD convincing preponderance of the evidence. Initially, I find that Sanders did make the threat as testified to by Supervisors David Beck and Price and employee Ramer. I find Sanders' testimony in this regard was inconsistent and unconvincing and I do not credit it. I thus find that he made the threat to put a gun to the head of a cowork- er and to take him to Sullivan's office. I also credit the testimony of Beck that this was a serious threat and fur- ther credit Price's and Ramer's testimony that Sanders reaffirmed this threat when questioned about it and the testimony of Sullivan that Sanders did not deny making the threat at the time of his termination . Moreover, I am convinced by Sullivan's testimony that he considered this a serious threat and discharged Sanders as a result of the threat. I find that Respondent would have discharged Sanders even in the absence of his engagement in union activities and in the absence of Respondent's antiunion animus toward him. I thus find that Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of its employee Dwight Sanders. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). See also NLRB v. Charles Batchelder Co., 646 F.2d 33 (2d Cir. 1981); Canadaigua Plastics, 285 NLRB 278 (1987); Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 765 F.2d 148 (9th Cir . 1985), cert . denied 474 U.S. 1105 ( 1986), and W. W Granger Inc., 255 NLRB 1106, (1981), set aside on other grounds 677 F.2d 557 (7th Cir. 1982), all cited by Respondent with respect to Respondent's rights to discipline employees for misconduct and threats to other employees affirming that the Act does not protect employees when they engage in such misconduct or threats of fellow employees. B. The Alleged 8(a)(5) and (I) Violations It is undisputed that unit employee John Craig Pea- cock assisted by unit employee Wendall Willard com- menced the circulation of a decertification petition in October 1986 and collected the signatures of 15 employ- ees thereon by March 1987 and that Peacock filed the petition with the Board but withdrew it shortly thereaf- ter in March 1987. A day or so later Willard commenced the circulation of a new petition against representation by the Union, and solicited and obtained signatures from the same 15 employees who had signed the earlier peti- tion. At the hearing the General Counsel contended there were 31 employees in the bargaining unit in March 1987 including Sanders who was allegedly unlawfully discharged in December 1986 and Filomena Wade, an employee who was incorrectly excluded from the bar- gaining unit as a temporary employee by Respondent when it furnished this information to the Region during the investigation of this case . The General Counsel thus contends that the 15 signatures did not represent a ma- jority. In its brief Respondent conceded that Filomena Wade is a bargaining unit employee and I so include her in the unit based on the evidence that she performed the same work under the same terms and conditions on a full-time basis as the other employees . As I have-found the discharge of Sanders in December 1986 was not un- lawful, I do not include him in the unit as of March 1987. I thus find that the unit consisted of 30 employees in March 1987. Plant Manager Sullivan testified that on 25 March, Willard and Peacock presented him with a petition stat- ing that the undersigned 15 employees did not wish to be represented by the Union . This testimony was corrobo- rated by Willard and Peacock, and unrebutted by the General Counsel . Additionally , both Plant Manager Sul- livan and employee Filomena Wade testified that in March 1987 , Wade told Sullivan that she did not want to be represented by the Union but did not want to sign the decertification petition being circulated at that time. Ac- cording to the testimony of Sullivan he had been aware of the circulation of the earlier decertification petition by Peacock as a result of complaints by prounion employees who marched into his office in October 1986 protesting the slow progress of contract negotiations and the circu- lation of the petition to decertify the Union. Sullivan tes- tified that he issued a written warning to Peacock for circulating the petition on company premises during worktime . I credit Sullivan's and Wade's testimony as set out above which testimony was unrebutted . As 15 em- ployees of the 30 unit employees signed the petition stat- ing that they did not wish to be represented by the Union, the Union thus no longer enjoyed the support of a majority of the employees . Moreover, as I have cred- ited Sullivan's and Wade's testimony, I find that a major- ity of the employees expressed their desire not to be rep- resented by the Union through the petition signed by 15 of the employees and the verbal representation by Wade to Sullivan. It is undisputed that Respondent through its attorney on the date of the presentation of the petition by Willard and Peacock to Sullivan withdrew recogni- tion from the Union and subsequently announced and im- plemented unilateral changes in wages and benefits and terms and conditions of employment without giving the Union notice thereof and affording the Union an oppor- tunity to bargain concerning them and has since refused to bargain with the Union. The General Counsel contends that the petition was tainted by the involvement of management in the promo- tion and assistance of the circulation of the petition. In support of this position the General Counsel introduced the testimony of Melinda Falls, Tommy Fell, and Elmore Pate, and Sanders. Unit employee Tommy Fell testified that another unit employee, Robert Edmundson, had told him (Fell) that the Respondent had given Pea- cock and Willard gas, food , and steaks for their roles in circulating the initial petition . Sanders also testified that he had heard this conversation between Fell and Ed- mundson although Fell did not mention Sanders' pres- ence during this conversation . Edmundson testified that the conversation was initiated by Fell who was stating that Peacock and Willard were receiving money for the circulation of the petition and that he (Edmundson) became aggravated and "said, well, I got some too, Tommy" and that Fell then called union negotiating committee member Andy (Russell) and told him that Ed- mundson had obtained meat and money also and that Edmundson then told Russell that he had also obtained meat and money and that Russell stated he could use that but that he (Edmundson) said that he told Russell that he could not as he had not received anything. Ed- PAPER BOARD CORES mundson denied at the hearing that he had received any thing of value in return for signing or circulating either of the two petitions There was no evidence presented in any way indicating that Edmundson was involved in as sisting in the circulation of the petition Additionally, Elmore Pate testified that on 11 March 1986 he over heard Edmundson ask Plant Manager Sullivan about a petition and heard Sullivan respond that they needed two more Pate who had been a leading union adherent was discharged in August 1987 for missing 2 consecutive days of work and testified that he regarded the discharge as unfair Charges filed with the Region by Pate protest ing his discharge were subsequently withdrawn Addi tionally, Melinda Falls testified that she had overheard Plant Manager Sullivan ask Peacock to spy on union meetings in the spring of 1986, that Sullivan told her to increase Peacock's wages by 10 cents at the end of 1985 because he was not a union member, and that Sullivan told Peacock he did not have to wear safety shoes be cause he was not a union member Falls testimony was refuted by Sullivan and Peacock, who testified he had never attended a union meeting , which testimony was corroborated by Union Representative Joe Alvarez who chaired the union meetings Falls further speculated that Peacock was paid for time he did not actually work be cause she saw Peacock leave in the afternoons with other employees This testimony was refuted by Robert T (Robby) Sullivan, Peacock's foreman and the son of Plant Manager Sullivan who had responsibility for Pea cock's timecards and who testified that he had not falsi fled the timecards The timecards do not bear out Falls testimony Additionally, Plant Manager Sullivan and Peacock testified that because of Peacocks large shoe size (15) there were no safety shoes to fit him at the time of their initial issuance to employees but that Peacock was subsequently issued safety shoes ordered for him In addition to the foregoing, the General Counsel points to several alleged inconsistencies in the testimony of Peacock, Willard and Foreman Robert (Robbie) Sulli van all of whom are personal friends, as well as their as sertions that they and Foreman Sullivan had never dis cussed the petition Peacock testified that he had initially signed a union card in September 1985 but had asked Sanders to contact the Union to retrieve his card and resign from the Union and had subsequently called Union Representative Alvarez by telephone, subsequent ly obtained legal counsel and written Alvarez a letter of resignation but was never contacted by Alvarez Alvarez admitted seeing the letter of Peacocks and that he did not respond to the letter Peacock testified that he then decided to circulate the petition to get nd of the Union The initial signatures are dated in October 1986 In March 1987 Peacock filed the petition with the Board, and subsequently withdrew it the same month because of concerns over the effect it might have on long term career employees and that his neighbor was no longer speaking to him His testimony was corroborated by em ployee Marcus Chastang who testified that Peacock had started the petition in 1986 because the Union would not permit Peacock to withdraw from membership but had had second thoughts about it because of its effect on other employees and by Willard who also told Peacock 1001 he was crazy for withdrawing the petition Willard then initiated the circulation of the second petition The General Counsel also points to alleged inconsistencies in Peacocks testimony regarding who was initially respon sible for the initiation of the petition Plant Manager Sul livan, Superintendent Price Foreman Sullivan Peacock, and Willard each denied that there had been any in volvement of management in the circulation of the peti tion or that Peacock or Willard was paid or compensated in any way for their roles in circulating the decertifica tion petitions Each of the 15 employees who signed the petition testified that they did so of their own free will and that no member of management had discussed the matter with them, that they were not aware of any man agement involvement therein or that Peacock or Willard was given anything by management for their role in cir culating the petition Analysis A certified union enjoys a rebuttable presumption of majority status This presumption may be rebutted by a showing that there is a good faith reasonable doubt of the Union s continuing majority status based on objective considerations Under such circumstances an employer may withdraw recognition from the Union Guerdon In dustries, 218 NLRB 658 (1975) NLRB v Gulfmont Hotel Co, 362 F 2d 588 (5th Cir 1966), enfg 147 NLRB 997 (1964), KSD AM Radio 262 NLRB 687 (1982), Orion Corp v NLRB 515 F 2d 81 (7th Cir 1975) In this case Respondent was presented with objective evidence that the Union no longer enjoyed majority support as a result of the presentation of the petition by Willard and Pea cock to Plant Manager Sullivan and the unsolicited state ment of Filomena Wade to Plant Manager Sullivan that she did not want to be in the Union I further find that the evidence presented by the General Counsel is insuffi cient to prove that Respondent was involved in the cir culation of the petition so as to taint the petition I credit Edmundson s testimony that he was joking with Fell when he told him that Peacock and Willard had received items of value in return for circulating the petition Moreover Edmundson was a unit employee and his statements to Fell, even if credited cannot form the basis for admissions against Respondent in the face of the denial of the truth by Edmundson and the total lack of supporting evidence thereof I do not credit Sanders tes timony concerning the alleged statement of Peacock that he had received $15 for gas money Pates testimony that he overheard Edmundson inquire of Plant Manager Sul livan about the petition in March 1987 to which Sullivan allegedly replied they needed two more signatures at most demonstrates management knowledge of the circu- lation of the petition and it is undisputed that Plant Manager Sullivan became aware of the petition at least by October 1986 when the employees staged a protest in his office concerning the circulation of the petition I fur ther conclude that the testimony of Falls concerning an alleged request to spy by Sullivan of Peacock alleged exemption from wearing safety shoes for Peacock and alleged unwarranted overtime pay for Peacock should not be credited as I found it inconsistent, unconvincing 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD speculative, and unsupported by independent evidence and it was refuted by Sullivan and Peacock I conclude on the basis of all the evidence presented at the hearing that the General Counsel has failed to present sufficient evidence to establish a prima facie showing that the petition was tainted by management in volvement In making this determination, I have also considered the testimony of Peacock which was in sever al respects inconsistent with respect to who decided to initiate the initial petition other than himself among other inconsistencies in his testimony Some of this testimony, in addition to the testimony of Fell and Pate, gives rise to a suspicion that there may have been management in volvement in the circulation of the petition However mere suspicion is insufficient to establish a prima facie case of a violation of the Act and I find that the testimo ny presented by the General Counsel is insufficient to support an inference that Respondents management was involved in the circulation of the petition C The Alleged Disparate Enforcement of the Work Rule Prohibiting Employees from Leaving Their Work Area Former employee and union supporter Elmore Pate testified that Superintendent Harold Price told him to stay in his work area even when he had no work to do Employees Marcus Chastang and Viola Dunn testified that employees were permitted to go to the bathroom and get snacks or drinks in the lunch area but were not permitted to wander around the plant Similarly, Plant Manager Sullivan Superintendent Price, and Foreman Sullivan testified to the recurring problem with employees leaving their own work areas and stopping by other employees areas to talk on their way to and from the restroom or lunch area Price test[ fled that Pate was the worst offender Pate was never disciplined for this offense Various employees have been told to get back to their work areas, but this has been the extent of the enforcement of the rule I credit the testimony of Respondent s management representatives Plant Manager Sullivan Supervisor Sul livan, and Plant Superintendent Price as supported by the testimony of other employees I find the evidence presented by the General Counsel does not support a finding of disparate enforcement of the rule against union supporters in violation of Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 Respondent 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 The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees, proba tionary employees and truckdrivers employed by Respondent at its Bay Minette Alabama plant ex cluding temporary employees, office clerical em ployees, guards and supervisors as defined in the Act 4 The Respondent did not unlawfully threaten or in terrogate its employees within the meaning of Section 8(a)(1) of the Act 5 The Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of employee Dwight Sanders 6 The Respondent did not unlawfully promote or assist in the circulation of a petition to decertify the Union and did not unlawfully withdraw recognition and institute unilateral changes in violation of Section 8(a)(5) and (1) of the Act 7 The Respondent did not disparately enforce a work rule in violation of Section 8(a)(1) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER The complaint is dismissed in its entirety a 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