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DUNBAR v. NORTHERN LIGHTS ENTERPRISES

September 12, 1996

SANDRA DUNBAR, Acting Regional Director of the Third Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, -vs- NORTHERN LIGHTS ENTERPRISES, INC., Respondent.

JOHN T. CURTIN, United States District Judge


The opinion of the court was delivered by: CURTIN

CURTIN, District Judge

 BACKGROUND

 Petitioner Sandra Dunbar, Acting Regional Director of the Third Region of the National Labor Relations Board ("NLRB"), brought the present action seeking a preliminary injunction pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). Petitioner issued a complaint and notice of hearing against respondent on May 21, 1996, alleging that respondent committed unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the Act, which prohibit employers from firing an employee in order to discourage membership in a labor organization. 29 U.S.C. § 158(a)(1), (3). Petitioner seeks the injunctive relief pending a final disposition of the underlying complaint.

 Specifically, petitioner asks this court to order that Brenda Kinnicutt, a former employee of the respondent Northern Lights Enterprises and a union organizer, be reinstated to her former position, and that all disciplinary warnings filed against Kinnicutt be expunged and not relied on to terminate her, pending a final disposition of petitioner's complaint. The petition also asks the court to order defendant to post a notice of its decision, and to enjoin defendant from any activity intended to impede the organization of a union pending final disposition of the complaint. Item 1. A hearing was held before the court on July 15 and 16, 1996. Page references are to the transcript of that hearing.

 Respondent Northern Lights Enterprises is a manufacturer of wax candles and sculptures. The company has grown rapidly over the past few years, growing from approximately 50 employees to 200 employees in the last eighteen months. Tr. 458-59. The company's operations are conducted from four buildings in Wellsville, New York. Brenda Kinnicutt worked in the Central Tractor ("CT") building, where approximately 80 production employees manufacture candles by hand. Tr. 5.

 Brenda Kinnicutt was hired by the company as a candlemaker in July, 1995, and was promoted to the position of critiquer (inspector) in September, 1995. Tr. 151. The critiquer position involved a raise in salary, and in late December, 1995, she received a "Moving Up" award from Andrew Glanzman, the president and founder of the company. Tr. 190. In late January or early February, 1996, Kinnicutt began as a critiquer on the Hypno-Glow line in the CT building. Tr. 197.

 In December 1995, company managers announced to all critiquers that they were not to help candlemakers fix their candles. Tr. 17. The warning was given because if critiquers fix the candlemakers' candles, "they're actually making candles for them, and increasing the candlemakers' pay." Tr. 18. Kinnicutt was given a verbal warning by Alinda Bledsoe for violating this rule in December 1995. Tr. 19. Bledsoe was Kinnicutt's direct superior. Tr. 19. Other than the verbal warning, Kinnicutt had no disciplinary problems prior to February 1996. Tr. 23.

 Kinnicutt testified that although she understood that it was against company policy to help candlemakers fix candles, she did so because she could see how hard some people were working, and that with some minor help from her it was easier for them to make rate. Tr. 158. Some candlemakers, however, allegedly complained to management that in the process of helping them, Kinnicutt was also letting scrapings fall on their candles, and actually creating work for them. Tr. 18.

 Late in January 1996, Barbara Gilligan, production manager of the CT building, and Theresa Shaughnessy, the company's overall production manager, held a meeting in the CT building and instructed critiquers that they had to critique more strictly, as too many defects were being overlooked and were being caught by shippers packaging the candles. Tr. 156. Kinnicutt testified that she was already considered stricter than some other critiquers. Tr. 157. In response to this meeting, she told some candlemakers that if she was going to be required to be still stricter, she was going to be the critiquer from hell. Tr. 157.

 On January 29, 1996, Kinnicutt tendered a written resignation effective February 9, 1996. Tr. 410. The letter stated that an intolerably high stress level at work and problems at home were the reasons she was quitting. The letter also conveyed a generally positive attitude about her experience at the company. Plaintiff's Ex. 1. Shortly after tendering her resignation, Kinnicutt changed her mind; and on February 5, 1996, she asked Shaughnessy if she could rescind her resignation, and if Shaughnessy would give her a raise. Tr. 164. Shaughnessy consented on both grounds. Tr. 411; 164.

 Gilligan testified that immediately after Kinnicutt tendered her resignation, she began to notice that Kinnicutt was talking to candlemakers in other areas when she should have been concentrating on candlemakers on the Hypno-Glow candle line for which she was responsible as a critiquer. Tr. 369. Gilligan testified that Kinnicutt spent an "exorbitant" amount of time in other areas of the production floor, and also spent a lot of time fixing candlemakers' candles, in contravention of company policy. Tr. 381. Gilligan stated that she spoke to Kinnicutt on several occasions about fixing candles. Tr. 381.

 On February 13, 1996, Kinnicutt met with Robert Cole, business representative of the International Association of Machinists and Aerospace Workers, District 6. Tr. 47. Cole is responsible for organizing unions in Allegany County where Wellsville is located. Tr. 47. Kinnicutt approached Cole to ask him about what a union might do for employees of Northern Lights. Tr. 48. Cole testified that Kinnicutt had already assembled a list of some coworkers who were interested in a union. Tr. 49. Kinnicutt said that she could get more names, and so the two decided to hold a meeting on February 20, in order to give her time to speak to additional workers. Tr. 50-51. On February 20, Kinnicutt contacted Cole with additional names gathered by Brenda Snyder, who worked in a different building. Tr. 78; 103. According to the two lists introduced into evidence at trial, a total of 31 people had, at some point, expressed interest in the union. Plaintiff's Exs. 2, 3.

 As word of the union meeting spread during the week following the initial meeting, candlemakers began to come to Gilligan to say that they did not want to belong to a union. Tr. 379. They informed Gilligan that Kinnicutt was compiling a list of those who were interested in the union, but that they wanted their names off the list. Tr. 379. In response, Gilligan wrote at the top of a piece of paper "Has come & seen me & talked to me (union) no involvement, wants nothing to do with it, did not sign petition." Plaintiff's Ex. 13; Tr. 385. Employees came in and signed the list on February 15, 16 and 19. Tr. 386. Eleven employees signed the list. Plaintiff's Ex. 13. Of those signing the list, only Judy Mitchell and Yvonne Cornelius also appeared on the list of potential union supporters.

 Soon after the first meeting between Kinnicutt and Cole, Gilligan was informed by another manager that some employees were trying to form a union. Tr. 378. Gilligan then informed Shaughnessy of this activity. Tr. 378. Although Gilligan testified only to vague knowledge of union activity, Shaughnessy testified that a day or two after Gilligan told her of the activity, Shaughnessy knew that there was an organizational meeting planned for the following week, and that Brenda Kinnicutt was circulating a list for interested employees. Tr. 412-413. At the same time, a day or two following her conversation with Gilligan, Shaughnessy informed Tina Glanzman, Northern Lights vice-president, that there was to be a union organizational meeting. Tr. 412. On Monday, February 19, Tina Glanzman notified her husband, Andrew Glanzman, the president of Northern Lights, of the union activity in the context of a broad general telephone discussion about the business. Tr. 451. Andrew Glanzman was in New York City at the time of the telephone conversation.

 During the same telephone call on February 19, Andrew Glanzman also spoke to creative director Nancy Meyers. Tr. 452. Meyers suggested to Glanzman that she draft a letter to employees addressing the issue of union organization. Tr. 452. Meyers then drafted the letter, and read it to Glanzman over the phone later that day. Tr. 454. Glanzman made some changes, and the letter was prepared and circulated to all employees on that day. Tr. 455; Plaintiff's Ex. 5. The letter highlights some of the company's positive attributes, such as good pay and a profit sharing plan. The letter also asks employees rhetorically, "what would be gained" by a union?

 Bledsoe testified that on the morning of February 19, she reported complaints made by candlemakers against Kinnicutt to CT building supervisor Barbara Gilligan. Tr. 336. Bledsoe testified that she spoke to Gilligan about the problem, and that Gilligan told her to give Kinnicutt a written reprimand. Tr. 336. Due to the press of work, Bledsoe did not show the "write-up" to Kinnicutt until the next day. Tr. 336. The written reprimand dated February 19 does not mention any threats or excessive malling. Instead, it mentions only that Kinnicutt "must start critiquing more people," and that she should not help candlemakers fix their candles. Plaintiff's Ex. 7.

 Specifically, the candlemakers allegedly complained to Bledsoe and Gilligan that Kinnicutt was improperly "malling" candles that were not defective. Tr. 366. Gilligan testified that these complaints came primarily from Amy Taylor (now Amy Slack), Yvonne Cornelius, Kathy Strawcutter, Tammy Tanner and Missy Gough. Tr. 366-67. Shaughnessy testified that the alleged ...


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