NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,412, LIBERTY NATURAL PRODUCTS, INC. and JERRY J. SMITH and HEATHER CRUMBAKER and KELLI A. CUNNINGHAM., (July 29, 1994), National Labor Relations Board, (Jul 29, 1994)

LIBERTY NATURAL PRODUCTS, INC. and JERRY J. SMITH and HEATHER CRUMBAKER and KELLI A. CUNNINGHAM.

314 NLRB No. 102.Case Nos. 36-CA-6984, -6986 and -6987. July 29, 1994 Michael D. Stevenson, Administrative Law Judge..

Before Gould, Stephens and Browning.

Linda Scheldrup, for General Counsel. James Dierking, for Respondent.

Interference--Coercive Remarks--Concerted Protected Activities.--Once its employees presented it with a petition seeking to remedy what were perceived as improper working conditions, an employer retaliated by committing unfair labor practices designed to curtail future concerted and protected activity. These coercive unlawful acts included interrogating employees who signed the petition, questioning employees regarding the identity of those responsible for the petition and threatening employees to halt their protected activities. Section 8(a)(1).

Back reference: ¶3770.0441.

Supervisors--Discharges--Refusal to Commit Unfair Practice.--By discharging a supervisor because he refused to commit an unfair labor practice involving the suppression of employees’ concerted, protected activity in circulating a petition protesting working conditions, an employer committed an unfair labor practice. The employer wanted the supervisor to stop the employees’ petition activity and then terminated him because he would not comply with that request. Section 8(a)(3).

Back reference: ¶4065.305.

Interference--Fact Finding--Discharge as.--On the facts, by discharging two employees for their concerted protected activity in circulating a petition seeking to remedy perceived improper working conditions, an employer interfered with their right to engage in such conduct. Section 8(a)(1).

From Text of Board’s Decision

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, [1] and conclusions as modified and to adopt the recommended Order as modified. [2]

The General Counsel has excepted to the judge’s finding that the General Counsel failed to prove that Don Hatter was a statutory supervisor and to the judge’s failure to find that remarks made by Hatter to employees violated Section 8(a)(1) of the Act as alleged in the complaint. We find merit in the General Counsel’s exception.

Paragraph 3(a) of the complaint alleges, inter alia, that at all material times, Operations Manager Don Hatter was a statutory supervisor within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. The Respondent in its answer admitted this allegation. [3] At no time did the Respondent retract its admission. The issue was not litigated at the hearing because the General Counsel was entitled to rely on the Respondent’s admission. See Bogart Industries, [1972 CCH NLRB ¶24,047] 196 NLRB 189 (1972), enfd. in relevant part [72 LC ¶13,932] 485 F.2d 1203 (5th Cir. 1973). Accordingly, we find, contrary to the judge, that Hatter was a statutory supervisor at all material times.

Turning to the merits, the record shows, and the judge found, that on December 2, 1992, the Respondent’s employees were talking among themselves about the unfairness of the Respondent’s policy of not giving employees their paychesks until 3 business days after the close of the pay period. Charging Party Heather Crumbaker suggested to other employees that a petition be given to President Dierking. Crumbaker then prepared the petition, showed it to other employees who signed it, and left it in Dierking’s office. The petition, which is quoted in the judge’s decision, expressed the employees’ discontent with the Respondent’s payroll policy and salary levels.

The following day, employees Victoria Rawlinson and Lisa Dokas were talking about the petition when Operations Manager Hatter approached and shouted at both women, while pointing his right ringer for emphasis, “That was very stupid of you to sign that petition! You should know better than that!”

The judge found, and we agree, that the preparation, circulation, and signing of the employee petition constituted protected concerted activities. [4] Therefore, we conclude that Hatter’s angry expression of displeasure with the two employees for signing the petition violated Section 8(a)(1) of the Act because it would reasonably cause them to fear future reprisal for engaging in such activities.