Aero Industries

National Labor Relations Board - Board Decisions

Aug 17, 1994

314 N.L.R.B. 741 (N.L.R.B. 1994)

741
314 NLRB No. 123
AERO INDUSTRIES
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) by engaging in surveillance of its em-
ployees’ union activities, by threatening employees with loss of em-
ployment or layoffs, and by interrogating employees through its at-
torney-agent in preparation for the hearing here. Thus we adopt these
findings pro forma.
We also note that the Respondent filed no specific exceptions to,
nor separately briefed, the judge’s findings that the Respondent vio-
lated Sec. 8(a)(5) of the Act by laying off employees on four occa-
sions without bargaining, by dealing directly with employees, by
unilaterally suspending employees’ health insurance, and by unilater-
ally granting wage increases to some employees. The Respondent’s
only reference to these separate findings of 8(a)(5) misconduct is
contained in its exception challenging its obligation to bargain with
the Union as of June 1, 1990, the date on which the judge found,
after overruling the Respondent’s objections and sustaining the chal-
lenges to the ballots cast by Edward Krause and Earl Freeman, that
the Union became the collective-bargaining representative of the unit
employees by virtue of its receiving a majority of the valid votes
cast in the Board-conducted election of that date. We find no merit
in this exception or the Respondent’s exceptions concerning Objec-
tions 1, 2, and 7 and the aforementioned challenges, and we adopt
the judge’s findings and recommendations in these regards. How-
ever, in adopting the recommendation to sustain the challenge to
Freeman’s ballot, we rely solely on the judge’s finding that Freeman
did not meet the standard for a regular part-time employee set forth
in Tri-State Transportation Co., 289 NLRB 356 (1988), on the voter
eligibility date. Accordingly, we find it unnecessary to pass on his
additional finding that Freeman was ineligible because he is closely
related to an officer of the Respondent. Finally, in the absence of
exceptions, we adopt, pro forma, the judge’s recommendations to
overrule the Respondent’s remaining objections and the challenge to
Thomas Griswold’s ballot, which no longer is determinative and
need not be opened and counted. Accordingly, having adopted the
judge’s conclusion that the Union should be certified as the unit em-
ployees’ bargaining representative, we shall issue a Certification of
Representative to the Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The General Counsel has excepted to the judge’s failure to make
any findings and conclusions regarding the complaint allegation that
the Respondent violated Sec. 8(a)(1) by impliedly threatening em-
ployees with loss of employment or benefits, by circulating to the
employees copies of the General Counsel’s motion to amend the
complaint reproduced in red ink. In this regard, the General Counsel
contends that in the December 19, 1990 employees’ meeting where
the Respondent’s president announced the suspension of the employ-
ees’ health insurance and generally presented the Respondent as in
a financial crisis, the Respondent’s circulation of the General Coun-
sel’s motion to amend in red ink had a coercive effect on the em-
ployees because of the ‘‘commonly understood meaning’’ of the
term ‘‘red ink.’’ The General Counsel also contends, in effect, that
by presenting the motion to amend the complaint in red ink during
the meeting, the Respondent attempted to place the blame for its fi-
nancial condition on the Union. We find that the General Counsel’s
contentions are based more on speculation than on evidence. Accord-
ingly, we find this exception without merit and dismiss this allega-
tion of the complaint.
3 The judge’s recommended Order and notice have been modified
to conform to the judge’s findings and conclusions as modified here.
Provision also has been added for notices to be mailed to employees.
The General Counsel has excepted to the judge’s failure to make
findings and conclusions as to whether a Gissel (395 U.S. 575
(1969)) bargaining order is also appropriate but has requested the
Board to grant such an order only if it finds that the Union was not
entitled to certification. Because we find that the Union is entitled
to certification, we defer to the General Counsel’s position in this
case and will not address the issue of whether a bargaining order
is also warranted here.
4 In finding company knowledge of Griswold’s union activities, the
judge relied in part on the ‘‘small-plant’’ doctrine. Member Stephens
would not find that the small size of the plant alone would be suffi-
cient to give rise to an inference that the employer knew of union
activities occurring there. He accepts the size of the plant as one fac-
tor, however, and finds that the judge here clearly identified suffi-
cient other credible evidence from which to infer that the Respond-
ent knew about Griswold’s union activities. See Almet, Inc., 305
NLRB 626 fn. 5 (1991).
Aero Industries, Inc. and United Steelworkers of
America, AFL–CIO–CLC. Cases 3–CA–15570,
3–CA–15688, 3–CA–15758, 3–CA–15920, 3–CA–
16065, and 3–RC–9570
August 17, 1994
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On September 21, 1992, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs. Thereafter, the Respondent filed an
answering brief to the General Counsel’s exceptions
and the Union filed an opposition to the Respondent’s
exceptions. The General Counsel has filed an answer-
ing brief to the Respondent’s exceptions, and a brief
in reply to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions as modified below and to adopt the rec-
ommended Order as modified and set out in full
below.3
The 8(a)(1) and (3) Allegations Regarding Tom
Griswold
Although we agree with the judge that the Respond-
ent’s refusal to accept Tom Griswold’s withdrawal of
his resignation violated Section 8(a)(1) and (3) of the
Act,4 we do not agree with his finding that the Re-
spondent also violated the Act by constructively dis-
charging Griswold.
The evidence credited by the judge shows that,
shortly before his shift ended on August 9, Plant Man-
ager Hindman handed Griswold a written final warning
for faulty work. After some discussion, Griswold re-
fused to sign the warning and told Hindman he would
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Griswold was due some vacation time but the time had to be ap-
proved. Bailey, in denying the request, told Griswold that he needed
Griswold until he (Bailey), a new employee, learned the ropes. The
record shows that Hindman approached Griswold at his machine
shortly after the morning break on April 10 and told him he would
receive vacation pay for 2 of the 4 weeks he was due in his next
paycheck and asked Griswold to calm down.
6 The events that followed, fully described by the judge, related to
the Respondent’s unlawful refusal to accept Griswold’s withdrawal
of his resignation. Those events are not relevant to the allegation of
Griswold’s constructive discharge which culminated when he quit as
described above.
7 Grocers Supply Co., 294 NLRB 438, 439 (1989).
8 Id. at fn. 8.
9 We note that the complaint does not allege that the issuance of
a final warning to Griswold was unlawful, and that there is no find-
ing by the judge that the warning was discriminatorily motivated in
violation of the Act. Further, Griswold acknowledged that he was re-
sponsible for the mistake described in the warning. His concern cen-
tered on its designation as a final warning.
10 See Groves Truck & Trailer, 281 NLRB 1194, 1195 (Barker’s
quit) (1986).
We also note that Griswold’s decision to quit occurred in the con-
text of several actions by Plant Manager Hindman that were respon-
sive to Griswold’s complaint, i.e., Hindman’s April 9 offer to check
on ‘‘pulling’’ the warning letter and Hindman’s April 10 clarifica-
tion of vacation pay and offer of some time off.
quit because of it. At that point, Hindman told Gris-
wold that he would talk with Robert Dart, the Re-
spondent’s president, about the possibility of ‘‘pull-
ing’’ the warning letter.
The next morning, April 10, Griswold, still upset
about the warning, became further irritated when his
supervisor, Bailey, denied his request for time off.5
Shortly thereafter, Griswold asked Bailey for a copy of
the warning. Later that same morning, Griswold was
observed walking among the machines ‘‘chanting’’
that this would be his last day, that he had gotten in
his year, that this was it, and that they would be call-
ing him from the front office. Bailey cautioned Gris-
wold about this conduct. When Griswold’s chanting
continued, he was summoned to Hindman’s office.
In Hindman’s office, Hindman asked Griswold
whether there was ‘‘anything they could do to correct
it.’’ Griswold repeated his request for a couple of days
off to calm down. Hindman offered the time off. At
that point, Griswold said ‘‘that wouldn’t do any good’’
and stated that he was quitting.
Hindman responded to Griswold by telling him that
his attitude ‘‘sucked’’ and that ‘‘he couldn’t allow him
to go back out with such attitude because he was too
much of an influence on the rest of the people.’’
Hindman once again asked Griswold if he was serious
about quitting. Griswold replied that he felt he was
being ‘‘harangued’’ and, as a result, he was quitting.6
A constructive discharge occurs when an employee
quits because his employer has deliberately made
working conditions unbearable for him. Two elements
must be proven: ‘‘First, the burdens imposed upon the
employee must cause, and be intended to cause, a
change in his working conditions so difficult or un-
pleasant as to force him to resign. Second, it must be
shown that those burdens were imposed because of the
employee’s union activities.’’7 The mere existence of
discrimination is not sufficient to warrant finding the
abandonment of employment to be a constructive dis-
charge.8
In finding that Griswold was constructively dis-
charged, the judge recognized that, unlike most cases
in which the Board has found a constructive discharge,
no affirmative change in Griswold’s working condi-
tions had occurred before he quit. He relied by analogy
on American Licorice Co., 299 NLRB 145 (1990). In
that case, the employer refused the request of an em-
ployee, for a transfer to another shift so that she could
care for her children. In finding a constructive dis-
charge when the employee quit, the Board found that
the employer had deviated from its usual policy of per-
mitting employees to transfer from one shift to another
where vacancies then existed. The Board also noted
that the refusal was discriminatorily motivated. Here,
the judge found that the Respondent’s issuing Gris-
wold a final warning on April 9 gave rise to an analo-
gous situation, because that warning represented a de-
parture from the Respondent’s established disciplinary
practice of a verbal warning, followed by two written
warnings, the last of which is ‘‘final.’’ The judge also
noted that it had been a year since Griswold’s last
warning.
We view the departure from practice in the two
cases as fundamentally different, both from the view-
point of the employer and the employee. Unlike the
employer in American Licorice, supra, who knew at
the time it rejected the employee’s request for a shift
transfer that she would be required to choose between
leaving her children home alone or quitting her job
(299 NLRB at 149), the Respondent here had no
knowledge at the time it issued the warning to Gris-
wold that he would decide to quit. Further, American
Licorice’s action forced the employee to make an im-
mediate decision on continuing her employment; by
contrast, Griswold could have gone on working as be-
fore.
Although the Respondent’s issuance of the final
warning to Griswold may not have been in accord with
its above-described disciplinary practice, it cannot rea-
sonably be found that the Respondent should have
foreseen that he would quit because of that warning.9
Similarly, no matter how reasonable Griswold’s fear of
future discharge by the Respondent might have been,
it does not permit him to elevate, unilaterally, the issu-
ance of the warning into an unlawful discharge in the
circumstances here.10 In short, we do not find that the
Respondent’s action rose to the level of creating an in-
743AERO INDUSTRIES
11 In light of this finding, the judge’s remedy is modified to reflect
that Griswold is entitled to reinstatement and backpay from the date
of the Respondent’s unlawful refusal to accept his withdrawal of his
resignation.
12 The judge found that the Respondent also violated Sec. 8(a)(1)
and (5) by laying off employees on these dates without notifying the
Union and without bargaining over the layoffs or their effects, a
finding that we have adopted. (See fn. 1, supra.)
13 The Respondent’s control book (R. Exh. 29) sets forth figures
and graphs in 10 categories for the period 1989, 1990, and 1991.
These categories are: total sales, sales by type, new customers, reps
commission, average profit, personnel, accounts payable/receivable,
cash on hand, finished goods, and proposed changes in salary, equip-
ment, and policy. The control book itself offers no further expla-
nation for the raw figures or graphs, i.e., how they were arrived at
or how one category relates to or affects another.
14 The only evidence of a layoff by the Respondent prior to the
four layoffs at issue here was in late December 1989, a month when
the cash-on-hand figure was less than half of the figures for July and
August 1990. The record does not reveal whether advance notice
was given the employees before that layoff occurred. In light of the
sparsity of evidence concerning its alleged past practice of no notice
until layoffs occur, we place little or no reliance on Dart’s testimony
to the existence of such a practice.
15 The Respondent has not explained how it was able in 1989, but
not 1990, to operate without a layoff despite suffering through far
worse cash flow problems in the comparable monthly period in the
former than the latter year. Its claim that a built-up inventory helped
it to get through April, May, June, and July 1990 without layoffs
fails as an explanation. A stored inventory does not appear to have
any relevance to a lack of ready cash, which the Respondent asserts
stemmed from late customer payments. Nor, for that matter, would
such an inventory seem to be material to the Respondent’s accounts
receivable to accounts payable disparities (see text, infra).
tolerable working condition that warrants a finding that
Griswold was constructively discharged.11
The Layoffs
The judge found that the Respondent violated Sec-
tion 8(a)(1), (3), and (4) by laying off employees on
August 10, November 26, December 28, 1990, and
January 22, 1991.12 In so finding, the judge relied on
credited evidence that showed a pattern of conduct by
the Respondent calculated to discourage support for
the Union, to retaliate against employees for cooper-
ating with the General Counsel or resorting to Board
processes, to divide its employees along pro and
antiunion lines, and to send the message to the em-
ployees that the Union and its supporters were respon-
sible for the layoffs. Although acknowledging that the
Respondent was experiencing economic difficulties
during the period of the layoffs, the judge rejected the
Respondent’s economic defense. He found that the Re-
spondent’s records showed a sustained period of pro-
duction following the August 10 layoff, that each lay-
off was followed by brief periods of recall, that the
Respondent’s evidence indicated a ‘‘phenomenal jump
[as he described it]’’ in total sales for November 1990,
and that the Respondent did not offer any documentary
evidence of a decline in customer orders. In all re-
spects, we affirm the judge’s findings regarding the
layoffs for the reasons stated by him and those set
forth below.
The Respondent’s exceptions and brief contend that,
in reaching his finding, the judge failed to analyze as-
pects of its economic defense and that he merely con-
cluded that the ‘‘economic defense fails to overcome
the strong prima facie case . . . .’’ The Respondent
asserts that, ‘‘even assuming that there were orders, the
record establishes clearly that Aero had no money
and/or ‘credit’ available to purchase raw materials
needed to make tool boxes.’’ It relies largely on ‘‘Sec-
tion 7 [accounts payable/receivable]’’ and ‘‘Section 8
[cash on hand]’’ of its ‘‘control book’’ to support its
contention.13 Specifically, the Respondent claims that,
with respect to the August 10 layoff, it ‘‘ran out of
money’’ while waiting for its customers to pay and
thus it could not meet its payroll. It also claims that
its suppliers would not sell it steel ‘‘C.O.D.’’ As for
not giving its employees advance notice that a layoff
was coming, it asserts that this was consistent with its
practice of having a meeting with its employees at
which the layoff was announced, and that the decision
to have a layoff on August 10 was made on August
10. Concerning the November 16 layoff, it again states
that it had no money to meet the payroll, and that it
had purchased materials on credit. The December 28
layoff, it asserts, was expected to be for 2 weeks be-
cause of a tight pre-Christmas financial situation, but
was reduced to 1 week on the receipt of unexpected
payments. The January 22 layoff it attributed to ‘‘fi-
nances,’’ ‘‘producing quality and . . . productivity
. . . .’’
We find the Respondent’s proffered reasons for the
layoffs to be unpersuasive. Regarding the August 10
layoff, for example, the Respondent’s control book
shows that it had more ‘‘cash on hand’’ at the end of
July and August 1990 than at the end of 10 of the pre-
vious 16 months.14 The cash-on-hand figures for July
and August 1990 also were substantially higher than
those for 5 of the 6 months in the period between
March and August 1989; yet no layoff occurred in that
1989 period.15
The Respondent’s reliance on monthly cash-on-hand
figures for the timing of the four layoffs is also under-
mined by the intervening recalls that occurred during
the 6-month period in which the layoffs occurred. The
Respondent did not show a pattern of progressive lay-
offs corresponding to a downward spiral of economic
conditions. Instead, the Respondent alternated between
laying off and recalling significant numbers of employ-
ees throughout the period, notwithstanding that the
cash flow problems that purportedly necessitated the
layoffs still appeared to be present when the recalls
were made. In such circumstances, the raw figures for
cash on hand each month offer little correlation to
these fluctuating employment patterns.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
The variance between accounts payable and ac-
counts receivable in the control book likewise offers
no clear support for the Respondent’s contention that
its financial difficulties necessitated the four layoffs.
Again, using the August layoff as an example, we find
that the Respondent’s records show it had a slightly
more negative variance, i.e., more payables than re-
ceivables, in August 1989 than in August 1990; yet no
layoff occurred in August 1989. The record also shows
that the Respondent recorded seven consecutive nega-
tive monthly variances ending in August 1989 without
prompting a layoff but that prior to the August 10,
1990 layoff, three of the six monthly variances had
been positive, i.e., more receivables than payables.
Finally, we note that the Respondent’s control book,
on which it so heavily relies, shows that ‘‘finished
goods’’ production for the second half of 1990 com-
pared favorably with the ‘‘finished goods’’ production
for the first half of the year. Further, the record dis-
closes that there was no decline in orders for the pe-
riod of August–December 1990 from the earlier part of
the year. Both of these circumstances indicate that the
economic picture portrayed by the Respondent for the
last 5 months of 1990 as justification for the three lay-
offs occurring there was not significantly different
from the first 7 months in which no layoffs occurred.
Indeed, the highest ‘‘finished goods’’ production for
1990 was registered in September, and October’s pro-
duction for such goods was above the median figure
for the year. The Respondent has offered no reasonable
explanation for the need to have layoffs in August,
November, and December and not at any other time of
the year. In addition, the control book shows a signifi-
cant increase in total sales in November, thereby cast-
ing further doubt on the necessity for a layoff in that
month, if not December as well. All of these matters,
like the cash flow and accounts payable/receiveable
discrepancies discussed previously, suggest that as
found by the judge, reasons other than economic con-
siderations precipitated the 1990 layoffs. Similarly, the
Respondent’s reasons for the January 1991 layoff do
not withstand scrutiny. Those reasons amount to bare
assertions unsupported by documentary or other reli-
able evidence.
In light of the foregoing, we agree with the judge
that the Respondent has not provided a convincing ex-
planation for the pattern of the layoffs here. In sum,
we agree, for reasons stated by the judge, that the Gen-
eral Counsel made out a prima facie case that the Re-
spondent’s animus against its employees’ union activi-
ties and their role in the filing and processing of cases
before the Board was a motivating factor in the lay-
offs. Also, for reasons stated by the judge and the ad-
ditional reasons set out above, we agree that the Re-
spondent did not establish that it would, in any event,
have implemented those layoffs for economic rea-
sons.16 Accordingly, we agree with the judge that the
Respondent violated Section 8(a)(1), (3), and (4) as
well as 8(a)(5), by the layoffs on August 10, Novem-
ber 16, December 28, and January 22.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set out in full below and orders that the
Respondent, Aero Industries, Inc., Mayville, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Cease and desist from
(a) Interrogating its employees about their sym-
pathies for United Steelworkers of America, AFL–
CIO–CLC.
(b) Interrogating its employees through its attorney
agent in preparation for proceedings.
(c) Engaging in surveillance of its employees’ union
activity.
(d) Requesting or encouraging its employees to take
unspecified action against other employees who joined
or supported the Union.
(e) Threatening its employees with loss of employ-
ment and/or layoffs because the Union had filed
charges under the Act, because its employees had
given evidence to the Board, or because the General
Counsel sought backpay and reinstatement remedies.
(f) Telling its employees who supported the Union
that they should leave the Respondent’s employment.
(g) Discharging its employees because of their ac-
tivities on behalf of the Union.
(h) Reassigning its employees to less desirable work
because of their union activities.
(i) Laying off its employees because they joined or
supported the Union or to discourage them from doing
so, or because the Union had filed charges under the
Act, or because its employees had given evidence to
the Board.
(j) Refusing to recall employees from layoff because
they joined or supported the Union, because they gave
testimony before the Board, because a close relative of
one employee gave testimony before the Board, or be-
cause they attended the Board’s proceedings as a spec-
tator.
(k) Laying off its employees without notifying the
Union and without bargaining over the layoff or its ef-
fects with the Union.
(l) Bypassing the Union and dealing directly with
employees with respect to hours of work.
(m) Suspending its employees’ health insurance cov-
erage without notifying the Union of the suspension
and without bargaining with the Union about the sus-
745AERO INDUSTRIES
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
pension of the health insurance coverage or the effects
of the suspension.
(n) Unilaterally granting wage increases to certain
employees without notifying and bargaining with the
Union.
(o) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Thomas Griswold full and immediate re-
instatement to his former or substantially equivalent
position of employment, without prejudice to his se-
niority or other rights and privileges previously en-
joyed.
(b) Make the above employee whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in the
remedy section.
(c) Recall and reinstate all employees laid off on
August 10, November 16, December 28, 1990, and
January 22, 1991, if not recalled to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent jobs without prejudice to their seniority or other
rights and privileges, and make all such laid-off em-
ployees whole for any loss of earnings they may have
suffered as a result of the discrimination against them
until such time as a valid offer of reinstatement has
been extended to them, backpay to be computed in the
manner described above.
(d) Recall and reinstate Barbara Beck, Danette Gil-
bert, Timothy Mulholland, and Thomas Zachary if not
recalled to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs without prejudice
to their seniority or other rights and privileges, and
make all such laid-off employees whole for any loss
of earnings they may have suffered as a result of the
discrimination against them until such time as a valid
offer of reinstatement has been extended to them,
backpay to be computed in the manner described
above.
(e) Concerning the unlawful unilateral changes in
terms and conditions of its employees set forth in the
Conclusions of Law, reestablish the status quo ante ex-
cept concerning those changes which have been bene-
ficial to the employees in the appropriate unit de-
scribed above in the Conclusions of Law. It is further
ordered that a determination of whether the changes
have been beneficial to employees, whether employees
have lost benefits or money by reason of the changes,
and whether there is any money due and owing em-
ployees and the amount thereof be deferred to the
compliance stage of this proceeding.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its place of business in Mayville, New
York, copies of the attached notice marked ‘‘Appen-
dix.’’17 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. Ad-
ditionally, the Respondent shall be ordered to publish
the notice immediately in the Jamestown Post-Journal
and the Mayville Sentinel, both newspapers of general
circulation in the geographical area.
(h) Mail a copy of the attached notice marked Ap-
pendix to each of the employees employed by the Re-
spondent as its Mayville, New York facility from Au-
gust 1990 through August 1991. Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be mailed immediately on receipt
by the Respondent to all such employees at their last
known address. Sufficient signed copies of the appro-
priate notice shall be furnished to the Regional Direc-
tor for posting by the Union affected, if willing.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for United Steelworkers of America,
AFL–CIO–CLC, and that it is the exclusive collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and part-time production and mainte-
nance employees including general factory, main-
tenance, set up, material movers, and
hardware/outlet personnel employed at the Em-
ployer’s Mayville, New York and Harbor Creek,
Pennsylvania facilities.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 pro-
tected concerted activities.
WE WILL NOT interrogate our employees about their
sympathies for United Steelworkers of America, AFL–
CIO–CLC.
WE WILL NOT interrogate our employees through our
attorney-agent in preparation for proceedings.
WE WILL NOT engage in surveillance of employees’
union activity.
WE WILL NOT request or encourage employees to
take unspecified action against other employees who
joined or supported the Union.
WE WILL NOT threaten employees with loss of em-
ployment and/or layoffs because the Union had filed
charges under the Act, because our employees had
given evidence to the Board, or because the General
Counsel sought backpay and reinstatement remedies.
WE WILL NOT tell employees who supported the
Union that they should leave our employment.
WE WILL NOT discharge employees because of their
activities on behalf of the Union.
WE WILL NOT reassign employees to less desirable
work because of their union activities.
WE WILL NOT lay off employees because they joined
or supported the Union, or to discourage them from
doing so, or because the Union had filed charges under
the Act, or because its employees had given evidence
to the Board.
WE WILL NOT refuse to recall employees from layoff
because they joined or supported the Union, because
they gave testimony before the Board, or because a
close relative of one employee gave testimony before
the Board, or because they attended the Board’s pro-
ceedings as a spectator.
WE WILL NOT lay off employees without notifying
the Union and without bargaining over the layoff or its
effects with the Union.
WE WILL NOT bypass the Union and deal directly
with employees with respect to hours of work.
WE WILL NOT suspend employees’ health insurance
coverage without notifying the Union of the suspen-
sion and without bargaining with the Union about the
suspension of the health insurance coverage or the ef-
fects of the suspension.
WE WILL NOT unilaterally grant wage increases to
certain employees without notifying and bargaining
with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Thomas Griswold immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify him, her that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
WE WILL recall and reinstate all employees laid off
on August 10, November 16, December 28, 1990, and
January 22, 1991, if not recalled to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent jobs without prejudice to their seniority or other
rights and privileges, and make all such laid-off em-
ployees whole for any loss of earnings they may have
suffered as a result of the discrimination against them
until such time as a valid offer of reinstatement has
been extended to them, backpay to be computed in the
manner described above.
WE WILL recall and reinstate Barbara Beck, Danette
Gilbert, Timothy Mulholland, and Thomas Zachary if
not recalled to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs without
prejudice to their seniority or other rights and privi-
leges, and make all such laid-off employees whole for
any loss of earnings they may have suffered as a result
of the discrimination against them until such time as
a valid offer of reinstatement has been extended to
them, backpay to be computed in the manner described
above.
WE WILL reestablish the status quo ante concerning
the unlawful unilateral changes described in the Order
747AERO INDUSTRIES
except concerning those changes that have been bene-
ficial to the employees.
AERO INDUSTRIES, INC.
Ron Scott, Esq., for the General Counsel.
Robert Landes, Esq., for the Respondent.
E. Joseph Giroux, Esq., for the Union Petitioner.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me at Mayville, New York, on August 13–
15 and September 24, 1990, and March 25–27, 1991. These
proceedings were concluded at Buffalo, New York, on June
17 and August 20, 1991.
On or about April 12, 1990, in Case 3–RC–9570, the
United Steelworkers of America, AFL–CIO–CLC (the
Union) filed a petition for representation with the Board
against Aero Industries, Inc. (the Respondent), under Section
9(a) of the Act. Pursuant to a stipulated election agreement
in Case 3–RC–9570 approved on May 2, 1990, a secret-bal-
lot election was conducted on June 1, 1990. Challenged bal-
lots were sufficient in number to affect the outcome of this
selection. On June 8, 1990, Respondent filed timely objec-
tions to conduct affecting the results of the election. On May
25, 1990, counsel for the General Counsel issued a complaint
and notice of hearing in Case 3–CA–15570. On June 20,
1990, an order issued consolidating the postelection matters
in Case 3–RC–9570 with the alleged unfair labor practices
in Case 3–CA–15570. On July 27, 1990, an order issued fur-
ther consolidating Case 3–RC–9570 with Cases 3–CA–15688
and 3–CA–15758, and an amended complaint and notice of
hearing. On August 13–15 and September 24, 1990, a trial
on the consolidated cases commenced at Mayville, New
York. On September 20, 1990, the Union filed the charge in
Case 3–CA–15920. And on October 15, 1990, a complaint
and notice of hearing in Case 3–CA–15920 issued. On Octo-
ber 29, 1990, counsel for the General Counsel moved for an
order reopening the record in Cases 3–CA–15570, 3–CA–
15688, 3–CA–15758, and 3–RC–9570, for consolidation of
the cases with Case 3–CA–15920, and for the staying of
briefs until the completion of the consolidated proceedings.
On November 6, 1990, an order granting the General Coun-
sel’s motion issued. On November 8, 1990, an amended
charge was filed by the Union in Case 3–CA–15920. On De-
cember 7, 1990, counsel for the General Counsel moved for
leave to amend the complaint in Case 3–CA–15920 to allege
Barbara ‘‘Betty’’ Beck as a discriminatee within the ambit
of the original complaint’s allegations that Respondent had
violated Section 8(a)(3) and (4) of the Act by laying off and
refusing to recall certain employees, which motion was
granted. On December 26, 1990, a charge in Case 3–RC–
16065 was filed by the Union and on January 11 and 25,
1991, amended charges were filed. Complaint issued on Feb-
ruary 28.
Briefs were filed by counsel for the General Counsel, by
counsel for the Union-Petitioner, and by counsel for Re-
spondent. On my consideration of the entire record, the
briefs, and the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
Respondent is a New York State corporation with an of-
fice and place of business in Mayville, New York (Respond-
ent’s Mayville facility), where it has been engaged in the
manufacture, production, and sale of toolboxes for retail and
wholesale distribution. During the 12-month period ending
April 1, 1990, Respondent, in the course and conduct of its
business operations sold and shipped from its Mayville facil-
ity products, goods, and materials valued in excess of
$50,000 directly to points outside the State of New York.
Respondent admits it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is admitted that the Union is now, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
The Discharge of Tom Griswold
Tom Griswold had been employed by Respondent for ex-
actly 9 years on April 10, 1990. On that date, Griswold was
the lead ‘‘set up’’ person in the ‘‘press and brake’’ area of
Respondent’s operation, where toolbox components are cut
and shaped to specification. It appears that, among other
things, a ‘‘set up’’ person adjusts the gauges on the various
machines and makes certain that the correct dies are used for
a particular job. Griswold was generally regarded as an ex-
cellent setup man and a hard, dependable worker.
In late March or the first week of April 1990, Griswold
received a telephone call from Tim Mulholland, an employee
organizing on behalf of the Union. Mulholland invited Gris-
wold to a meeting of the Union’s organizing committee on
April 4. Griswold worked overtime on that date and was un-
able to attend the meeting that afternoon, but he did attend
another committee meeting on April 7. Like several other
employees, Griswold agreed to help get union authorization
cards signed. Griswold himself signed an authorization card
on April 7.
On Monday, April 9, during the morning break, Griswold
spoke with two other employees about signed cards. Later
that morning, Plant Manager Hindman, a supervisor and
agent within the meaning of the Act, came to Griswold at
the latter’s work area and spoke to him about some shelves
that had been bent the wrong way in press and brake. Gris-
wold credibly testified that Hindman set the shelf down and
told him that the shelf was bent the wrong way; one surface
was textured steel and should have faced down, but the way
these particular shelves were bent, the textured side faced up.
Hindman told Griswold that Robert Dart, Respondent’s presi-
dent, had brought one of the shelves to him and that Dart
was upset about it. Griswold testified that this was the extent
of his conversation with Hindman and that nothing was said
at that time to indicate that Griswold might face discipline
as a result of the error.
Dart later told Hindman to ‘‘write up’’ Griswold. How-
ever, he then told Hindman he would do it himself. Ulti-
mately, a written final warning was typed and given to
Hindman for Griswold’s signature.
Respondent’s standard disciplinary practice is to issue a
verbal warning as an initial step. If a second warning is nec-
essary, a written warning is issued. The third step is a final
warning which may result in discharge.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The above evidence concerning the events of April 9 and 10 is
based on the testimony of Griswold, Bailey, and Hindman which at
times is mutually corroborative, and at other times inconsistent.
Where inconsistencies exist, I have generally credited Griswold for
the most part because his testimony is consistent with subsequent
credible or undisputed testimony of other employees. Moreover, I
was impressed with his trial demeanor.
It is admitted that Griswold was an extremely skilled and
concientious worker. The only warning in Griswold’s file
was over a year prior to the instant incident. Moreover, the
evidence conclusively established Respondent was lax in en-
forcing his progressive discipline practice. For example,
Emma Nichols, an employee, made an error similar to
Griswold’s but was merely given an oral reprimand. Other
employees were given more than one written warning with-
out being given a final warning.
On April 9, during the lunchbreak, Griswold openly solic-
ited employees about union cards in Respondent’s lunch area
where anybody could have observed such activity.
Approximately 15 minutes before the end of the shift on
April 9, Griswold was brought into Hindman’s office by
Mike Bailey, a supervisor within the meaning of the Act,
who was Griswold’s foreman at the time. The purpose of this
meeting was to present Griswold with the written warning.
Hindman again showed Griswold the errant shelf and said
that Dart wanted him written up for it. Hindman asked Gris-
wold if he would quit as a result of the writeup. Griswold
replied that he would not quit and explained why he had bent
the shelf as he did; Hindman said that he understood ‘‘why
[Griswold] thought that way,’’ but that Dart insisted on the
writeup. Griswold was then shown the letter but refused to
sign it. Hindman then stated that he would go to Dart and
see if he could ‘‘get the letter pulled.’’
On April 10, Griswold asked Bailey, for some time off;
as April 10 was his anniversary date, Griswold was due
some vacation time but evidently the time off had to be ap-
proved. Bailey denied the request, telling Griswold that he
needed him around until he (Bailey), a new employee,
learned the ropes.
Griswold thereafter collected some union cards he had dis-
tributed the day before, on the 9 a.m. break. A short time
later, Hindman approached Griswold at his machine and told
him that he would receive vacation pay for 2 of the 4 weeks
he was due in his next check, asked Griswold to calm down,
and told him that he would cool off in a couple of days.
Griswold was ‘‘a little irritated’’ about the denial of time off
and ‘‘not very happy’’ about the final warning of the pre-
vious day. Shortly thereafter, Griswold asked Bailey for a
copy of the final warning, telling Bailey that he felt that he
had a right to have a copy if the document would be in his
file. Bailey did not respond, but walked away. Griswold tes-
tified that the time of this conversation was about 10 a.m.
Thereafter, Griswold was walking among the machines,
‘‘chanting’’ that this would be his last day, that he had got-
ten his year in, that this was it, and that they would be call-
ing him to the office. Bailey then approached Griswold to
ask him for his cooperation. After about 20 minutes, Bailey
again observed Griswold engaged in similar behavior. Bailey
asked Griswold a second time to ‘‘cooperate, to become part
of the group.’’ Griswold simply ignored him. Bailey walked
away. Notwithstanding Griswold’s strange behavior, he did
his work and did not disturb the work of other employees.
After a time, Bailey went to Hindman’s office and told the
plant manager that he ‘‘couldn’t tolerate this’’ and that he
‘‘felt that it was time that [they] did something about it.’’
Hindman asked him to ‘‘go to the floor again and you know,
try to make do with it’’ telling Bailey that Griswold had
been like this before, and he would probably calm down.
Bailey said alright and left.
A short time later Bailey returned to Hindman com-
plaining about Griswold’s singing or chanting, although there
is no evidence that this conduct was disrupting employees.
As a result of Bailey’s complaints, Griswold was summoned
to Hindman’s office.
Once in Hindman’s office, Hindman then asked Griswold
whether there was ‘‘anything they could do to correct it,’’
to which Griswold replied with a renewed request for a cou-
ple of days off to cool down. Hindman offered the time off,
but Griswold said ‘‘that wouldn’t do any good’’ and stated
that he was quitting. Hindman told Griswold that his attitude
‘‘sucked’’ and that ‘‘he couldn’t allow him to go back out
with such attitude because he was too much of an influence
on all the rest of the people.’’ He then asked Griswold if he
was really serious about quitting and Griswold replied that
he felt he was being harangued, and as a result, he was quit-
ting.1 Griswold and Bailey returned to the production floor.
Griswold, after a matter of minutes, went to Bailey and told
him, in substance, that he would not quit, and asked Bailey
to convey the withdrawal of his resignation to the office. In
the meantime, Hindman had gone to the main office, where
he met with Dart, Bonnie Moorehead, vice president, and
Bill Dean, company comptroller. Hindman’s recommendation
was to try and keep Griswold on board. Dart’s view, how-
ever, was, in Hindman’s words:
[H]ow much longer are we going to put up with this
stuff . . . his point of view was the fact that how much
do you tolerate from an employee?
Ten or fifteen minutes after Hindman arrived in the office,
Bailey entered, saying that Griswold had changed his mind,
that he had ‘‘second thoughts’’ and would like to ‘‘withdraw
it.’’ Dart stated that it was too late, and that a letter was
being typed. Hindman was asked to go out and get Griswold,
which he did, and Griswold was given the then-typed letter
to read. The letter stated that Griswold’s orally stated inten-
tion was accepted, effective immediately. Griswold read the
letter and Dart asked him whether he had any questions;
Griswold did not. Dart asked Hindman to escort Griswold to
pick up his personal effects and out of the plant, and this
was done.
Later the same day, Griswold wrote to Dart, stating that
he was confused and upset and that he wanted his job back.
A day later, Dart replied with a letter stating that:
As you have threatened to quit before, and I had talked
with you at great length in our meeting room to con-
vince you to stay, I felt it was in the best interest of
Aero to accept your quitting at this time.
As to the passage wherein Dart stated that he had attempted
to convince Griswold to stay, Griswold testified that he had
no idea what Dart could be talking about.
749AERO INDUSTRIES
2 As set forth in detail below, I conclude Griswold was construc-
tively discharged.
3 See, e.g., Lear Siegler, Inc., 295 NLRB 857 (1989); Harrah’s
Marina Hotel & Casino, 296 NLRB 1116 (1989).
In order to prove that a discharge was discriminatorily mo-
tivated, it is necessary to prove that the employer had knowl-
edge of the discharged employees’ union activity. Bayliner
Marine Corp., 215 NLRB 12 (1974). Although, in this case
there is no direct knowledge of Griswold’s union activities,
I conclude such knowledge can be implied from the cir-
cumstances surrounding the discharge, the size and type of
Respondent’s operation, and the manner in which Griswold’s
union activities were conducted.
The circumstances surrounding the constructive discharge
of Griswold2 establish that Respondent was aware of
Griswold’s union activities. The timing of the constructive
discharge is incredible. The same day that Griswold openly
solicited employees in the plant lunch area to sign union
cards was 2 days before the Union filed its representation pe-
tition. Moreover, Griswold was an extremely skilled and hard
worker who had a long period of employment with Respond-
ent and was a valued employee. Further, the final warning,
which resulted in Griswold’s constructive discharge was con-
trary to Respondent’s established disciplinary practice. Under
similar circumstances, the Board has implied knowledge of
union activity from such circumstantial evidence.
Knowledge of the employee’s union activity can also be
implied from the Board’s small-plant doctrine. The small-
plant doctrine may be applied when the facility is small and
open, the work force is small, the employees made no great
effort to conceal their union conversations, and management
personnel are located in the immediate vicinity of the pro-
tected activity. NLRB v. Health Care Logistics, 784 F.2d 232
(6th Cir. 1986). The facts of this case establish the applica-
bility of the small-plant doctrine. The work force is small,
approximately 30 employees. The plant has wide open work
and lunch areas and the supervisors move around freely and
intimately among the employees. Griswold’s union activities
took place during working hours in the lunch area. He made
no attempt to conceal these activities.
In view of the circumstances surrounding the final warning
which resulted in Griswold’s constructive discharge, I con-
clude Respondent had knowledge of Griswold’s union activi-
ties prior to the issuance of such final warning. Alternatively,
I conclude such knowledge can be implied from the Board’s
small-plant doctrine.
The standards for a finding of constructive discharge are
well settled:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his work-
ing conditions so difficult or unpleasant as to force him
to resign. Second, it must be shown that those burdens
were imposed because of the employee’s Union activi-
ties. [Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976).]
More recently, in American Licorice Co., 299 NLRB 145
(1990), the Board, in reversing the decision of an administra-
tive law judge, held that Crystal Princeton is not to be read
so narrowly as to apply only when an employer has made
affirmative changes in working conditions. Citing St. Jo-
seph’s Hospital, 247 NLRB 869 (1980), the Board found that
an employee had been constructively discharged even though
the employer had not changed her hours but had refused, for
unlawful reasons, to grant her request for a change in hours.
In any event, since the employer in American Licorice had
deviated from its usual policy of permitting employees to
transfer from one shift to another where vacancies existed,
the Board found that it had in fact changed the employee’s
working conditions. There is a fair analogy to be made be-
tween the departure from its established practice of the em-
ployer in American Licorice and the departure of Respondent
from its own established practice in issuing a final warning
to Griswold on April 9.
Applying the legal standards to the instant case, it is ar-
gued that the elements of a constructive discharge have been
proven. The protected activity by Griswold has been set forth
above.
The evidence suggests that Respondent, by issuing a
‘‘final warning’’ on April 9, undertook to pressure Griswold
into quitting and, failing that, to lay a ‘‘paper trail’’ for a
pretextual discharge at a later date. On either count, the evi-
dence shows that Respondent as set forth above treated Gris-
wold disparately from other employees.
The totality of the evidence points to the conclusion that
Respondent’s machines were not the only things being set up
on April 9 and 10. The timing of events, always a relevant
consideration, is remarkable in this case.3 For Respondent to
suggest as it does that the timing of events is coincidental
pushes the outside of the proverbial envelope. Respondent
had employed Griswold for 9 years, and well knew his tem-
perament and personality. If Respondent did not precisely
map out the events of April 9 and 10, it certainly seized its
opportunity to push Griswold over the line. The dispatch
with which Respondent prepared a letter accepting the emo-
tional resignation of a knowledgeable, long-term employee is
significant.
Given the timing of the final warning to Griswold, and its
disproportionality to the offense, Griswold could have rea-
sonably believed that the handwriting of his ouster was on
the wall. Compare Groves Truck & Trailer, 281 NLRB 1194,
1196 (1986). Respondent’s subjective state of mind, and that
of its agents, is less relevant, for the test is not one of spe-
cific intent, but whether, under the circumstances, the em-
ployer should have reasonably foreseen the natural and prob-
able consequences of its action. Keller Mfg. Co., 237 NLRB
712, 723 (1978). The Board recognizes the general legal
principle that one is presumed to intend the natural and prob-
able consequences of his acts. American Licorice, supra at
fn. 26.
The Board and the courts have held that a refusal to re-
hire, or to allow an employee to withdraw a resignation, may
violate the Act. In EDP Medical Computer Systems, 284
NLRB 1232 (1987), an employee and leading union adherent
told respondent’s agent that if the union lost an election, she
would not work for respondent anymore. The union did lose
the election and, the following day, the employee gave no-
tice. On the next working day, however, the employee (like
Griswold) attempted to withdraw her resignation. Respondent
refused, stating only in its defense that it did not permit ‘‘un-
happy’’ employees to return to work after resigning. The
Board affirmed the administrative law judge’s finding that
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The above findings of fact are based on the credible and
uncontradicted testimony of Utegg, Mulholland, and Crespo.
5 269 NLRB 1176 (1984); whether interrogation is unlawful is to
be determined by examining the totality of the circumstances. With
respect to the interrogation of Mulholland, see Philips Industries,
295 NLRB 717 (1989).
6 Questioning may be even more coercive than words alone might
suggest when conducted in the context of other ULPs. Great Dane
Trailers, 293 NLRB 384 (1989). The employees were well aware
that a charge had been filed with respect to Griswold by the time
of the interrogation.
7 These questions were in connection with Respondent’s objections
to the conduct of the election described below.
8 These questions were also asked in connection with Respondent’s
objections of the election.
the employee’s union activities were a motivating factor in
respondent’s refusal to allow her to rescind her resignation;
it also found that the employer failed to carry its burden of
establishing that it would have taken the same action, absent
Section 7 activity. Similarly, where it was established (as
here) that the employee’s position had not been filled, the
Court of Appeals for the District of Columbia was persuaded
that an employer’s refusal to allow a union adherent to with-
draw his resignation, within a matter of hours, violated the
Act. Southwire Co. v. NLRB, 820 F.2d 453 (D.C. Cir. 1987).
The instant case is not unlike EDP, supra. Respondent
cannot argue, of course, that Griswold’s position had been
filled by the time he withdrew his resignation because 5 min-
utes after he resigned, under pressure, in the heat of the mo-
ment or both, Griswold told Bailey that he would not quit
and that Respondent would have to fire him. Further, the evi-
dence, including an admission by Dart, establishes that he
had an established practice of permitting employees to with-
draw their resignations.
Accordingly, I conclude that Respondent constructively
discharged Griswold in violation of Section 8(a)(1) and (3)
of the Act. I also conclude that, by refusing to accept
Griswold’s withdrawal of his resignation, he effectively dis-
charged Griswold in violation of Section 8(a)(1) and (3) of
the Act.
Interrogation of Employees—May 1990
Over approximately 3 days in May, less than a month be-
fore the election, virtually every employee in the plant was
summoned to the office area for one-on-one meetings with
either Dart or Vice President Moorehead.
On or about May 11, Dart called employee Amy Utegg
into his office; no one else was present. Dart told Utegg that
he had called the meeting to see whether she had any ques-
tions about the company. Utegg did not have any questions.
Dart showed Utegg a piece of Steelworkers’ literature that
had evidently been distributed to employees. This flyer de-
picted, in cartoon fashion, an employer whose nose grew
longer with each ‘‘whopper’’ (as the flyer put it) he told
about unions. Dart, demonstrably aggrieved by the Union’s
propaganda, engaged Utegg with a point-by-point rebuttal of
the statements there and asked whether she thought that the
cartoon character looked like him. Utegg replied that it did
not. Dart then asked whether Utegg thought that the com-
pany ‘‘needed a third party nosing around.’’ Utegg answered
‘‘no.’’ This meeting lasted approximately 45 minutes to an
hour.
Employee Mulholland was in Dart’s office for about 2
hours during the same weeks. Dart spoke generally about
unions and strikes. Again, Dart produced the Steelworkers’
‘‘Pinocchio’’ flyer, asked Mulholland whether he thought the
cartoon character looked like him, and took issue at length
with the statements made in the flyer. Dart stated that his un-
derstanding of the way things worked in a union shop was,
in effect, that the union steward had more authority than a
foreman. He then asked Mulholland whether he had been in
a union shop before, to which Mulholland replied that he
had.
Employee Linda Crespo also met with Dart, during the
second week in May for about an hour. Again, Dart took
issue with the Union’s literature. Dart asked her whether she
‘‘thought that [they] needed a third party interfering with de-
cisions on things that went on at Aero.’’4
Dart admitted that during this May period he or
Moorehead spoke to each employee on an individual basis.
Under the Board’s well-established Rossmore House5 test,
Dart’s asking the employees whether they thought they need-
ed a ‘‘third party’’ and his asking Mulholland whether he
had been in a union shop constituted coercive interrogation.
Both the questions asked and the context in which they were
asked suggest this conclusion.6 There is no evidence to sug-
gest that Crespo and Utegg were openly an active union sup-
porter, a fact which would, if true, vitiate the coercive impact
of the questioning. Sunnyvale Medical Clinic, 277 NLRB
1217 (1985). Mulholland’s sympathies may or may not have
been known at that time. Even so, the testimony of
Mulholland and that of Utegg makes it very clear that every
employee in the plant was brought in during that week, by
either Dart or Moorehead, and the collective testimony of the
General Counsel witnesses indicates that the questioning of
each employee was more or less a set piece.
Accordingly, I conclude, that Respondent, by Dart, unlaw-
fully interrogated employees in violation of Section 8(a)(1)
of the Act.
Employee Mulholland credibly testified that on July 10 he
was brought to the office by Supervisor Bailey and intro-
duced by Dart to Respondent’s counsel, Robert Landes. Dart
and Landes told Mulholland that he could leave anytime, but
that he (Landes) was going to ask him a few questions.
Mulholland was asked for his recollection of what Bonnie
Moorehead had said to the Board agent about the union but-
tons Mulholland was wearing while acting as an election ob-
server. The witness replied that he could not recall what
Moorehead said. Landes then asked if Mulholland noticed a
ballot marked ‘‘yes’’ with an asterisk during the count.
Mulholland did not remember seeing it.7 Landes then asked
Mulholland what Dart had said to the assembled employees
on June 4, the Monday after the election. At this question,
Mulholland hesitated. Landes said something to the effect of
‘‘come on, Tim, this is America.’’8 Despite this dubious as-
surance, Mulholland terminated the interview. Mulholland
credibly testified on both direct and cross-examination that
Landes never explicitly stated the reason for the interview,
nor did he assure Mulholland against reprisals.
On July 10, Landes met with employee Tom Zachary.
Landes asked Zachary about union dues or what he had been
told in that connection by the Union. Landes then asked
Zachary why he thought he was given a job transfer after the
election. Landes also asked Zachary what time of day he had
751AERO INDUSTRIES
9 Landes did not testify during the course of this trial. Therefore,
the credible testimony of Mulholland, Gilbert, and Zachary is
unrebutted.
signed an authorization card. Zachary testified, as did Gilbert
and Mulholland, that Landes advised him of his right to not
answer questions. Although Landes told Zachary that his re-
fusal to answer ‘‘wouldn’t hurt my working at Aero,’’ he did
not inform the witness of the questioning purpose.9
As an attorney, Landes is an agent of Respondent for the
purposes of attributing his alleged unlawful conduct to Re-
spondent. Batavia Nursing Inn, 275 NLRB 886 fn. 2 (1985).
The evidence at trial establishes that, in his questioning of
Gilbert, Mulholland, and Zachary, Landes violated one or
more of the guidelines set forth by the Board in Johnnie’s
Poultry, 146 NLRB 770 (1964). It is not sufficient that one
or two of the three required disclaimers are given; all three
must be observed. Bill Scott Oldsmobile, 282 NLRB 1073
(1987).
To the extent that the questioning by Landes related to the
representation case, it is noted that Johnnie’s Poultry applies
with equal force to such proceedings. Adair Standish Corp.,
290 NLRB 317 (1988).
The well-settled rule of Johnnie’s Poultry is designed to
minimize the coercive impact of interrogation by an em-
ployer, while allowing the employer to investigate facts con-
cerning issues raised in a complaint in preparation for its de-
fense at trial, or to verify a union’s claimed majority status
in aid of an employer’s decision whether to extend recogni-
tion voluntarily. Supra at 774–775. Having defined the extent
of permissible inquiry, the Board in Johnnie’s Poultry set
forth the required safeguards. An employer:
must communicate to the employee the purpose of the
questioning, assure him that no reprisal will take place,
and obtain his participation on a voluntary basis; the
questioning must occur in a context free from employer
hostility to union organization and must not be itself
coercive in nature; and the questions must not exceed
the necessities of the legitimate purpose by prying into
other union matters, eliciting information concerning an
employee’s subjective state of mind, or otherwise inter-
fering with the statutory rights of employees. When an
employer transgresses the boundaries of these safe-
guards, he loses the benefits of the privilege.
The Board recently reaffirmed these standards in Astro
Printing Services, 300 NLRB 1028 (1990).
Assuming that Respondent had observed the above safe-
guards, the questioning of Mulholland about Dart’s speech to
employees on June 4 could be viewed as within one of the
permissible areas of inquiry, inasmuch as Dart’s remarks pre-
ceded the allegedly unlawful transfers on that date. However,
the question to Zachary, as to why he thought he was trans-
ferred on June 4 was meant to ‘‘[elicit] information con-
cerning an employee’s subjective state of mind’’; such infor-
mation is generally irrelevant in Board proceedings and al-
ways out of bounds under Johnnie’s Poultry.
Whether or not the specific lines of inquiry pursued by
Respondent were permissible, the fact remains that the John-
nie’s Poultry safeguards were not observed. The purpose of
the questioning was not explained to any of the three General
Counsel witnesses. Only Zachary was assured that his non-
cooperation would draw no reprisals. Moreover, it could
hardly be said that the context of the questioning was non-
coercive or that it was conducted in an atmosphere free from
hostility to Section 7 rights. Counsel for Respondent, appar-
ently eschewing the option of contacting the employees at
home and interviewing them outside of the plant, had the
employees brought into the front office. At the time, one of
the pending ULP cases directly involved two of the witnesses
(Mulholland and Zachary), who were the objects of alleged
surveillance and who were allegedly transferred in violation
of Section 8(a)(1).
Accordingly, I conclude that Respondent, by his agent and
attorney, Landes, unlawfully interrogated employees in viola-
tion of Section 8(a)(1) of the Act.
Respondent’s May 31 Surveillance of Employees
A major theme of Respondent’s preelection campaign was
its contention that it was losing money and, by implication,
that a union contract would further burden Respondent’s fi-
nancial condition. On May 31, the day before the election,
employees Tim Mulholland and Tom Zachary joined union
organizers George Prenatt and Bill Pienta in distributing
union literature from the public road at the edge of Respond-
ent’s property which literature disputed Respondent’s conten-
tion.
After several minutes of this activity, Dart emerged from
Respondent’s facility with a camera and walked slowly to-
ward the two employees. At a distance of a few yards, he
stopped and took several photographs of Mulholland and
Zachary. Dart admitted taking these photographs but ex-
plained that he wanted these photographs to augment his
‘‘great pictorial history of the place’’ and that ‘‘‘some day
in the far future, maybe I’d like to look back on this.’’
The Board has found that photographing employees en-
gaged in Section 7 activity may violate the Act. Churchill’s
Supermarkets, 285 NLRB 138 (1987). Not all surveillance of
this type violates the Act. However, Dart’s activity goes be-
yond the ‘‘mere observation’’ permitted by the Board. Im-
pact Industries, 285 NLRB 5 (1987). Particularly where the
Griswold discharge had gone to complaint 5 days earlier and
where employees (including Mulholland) had been interro-
gated by Dart, the pointing of the camera at Mulholland and
Zachary was a coercive act. Where a legitimate reason for
the surveillance appears, there might not be a violation. This
case, however, is to be distinguished from Ordman’s Park &
Shop, 292 NLRB 953 (1989), Concord Metal, 295 NLRB
912 (1989), and related cases. In Ordman’s Park & Shop,
there was testimony that the employer was attempting to pre-
serve evidence of an alleged trespass. In Concord Metal pho-
tographs were taken to preserve evidence of secondary boy-
cott activity and the blocking of ingress and egress. None of
these circumstances obtain here, and even if motive were a
relevant consideration in 8(a)(1) cases, Respondent’s lame
explanation for its conduct would not suffice.
Accordingly, I conclude that Respondent engaged in un-
lawful surveillance in violation of Section 8(a)(1) of the Act.
On June 4, the first working day following the election,
Dart held a meeting of all employees shortly after the plant
opened. He told the employees that the Union wasn’t in as
yet, and it would take up to a year to resolve its status. He
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The above facts are based on the mutually credible and corrobo-
rative testimony of Mulholland and Zachary. Additionally, Dart’s
testimony concerning this meeting was not significantly different.
11 A material mover, Zachary explained, brings material to the
welders, presumably from the press and brake area. A shear operator
runs a machine which cuts large sheets of metal.
12 It is also contended that these layoffs were discriminatorily mo-
tivated and violated Sec. 8(a)(3) and (4). This issue is set forth and
discussed below.
then stated there were people working here who were un-
happy and he was going to make some changes.10
Shortly after this meeting, Supervisor Bailey approached
both Zachary and Mulholland to inform them that they were
the aforementioned unhappy people. Bailey told Zachary that
he was no longer a mover, but that he was to run a shear.11
Zachary had never operated a shear prior to June 4. The
shear operator’s job is more physically demanding than that
of a material mover. Zachary, who is 5 feet 4 or 5 inches
tall and 135 pounds, also testified that he preferred the mov-
er’s job and that he pulled muscles in his back after the
transfer. Moreover, Supervisor Bailey had not criticized his
performance as a mover, but in fact had complimented him.
Bailey told Mulholland that he was the new mover. When
Mulholland asked why, Bailey stated that Zachary wasn’t
‘‘making it.’’ No other reason was given for the shift of
Mulholland from his job as a welder, a skilled trade, to the
relatively unskilled task of moving material.
In determining whether Respondent discriminatorily as-
signed employees more arduous work or laid off employees,
the General Counsel has the burden of proving that the em-
ployees’ union activities were a motivating factor in such al-
leged discrimination. Once such motivating factor is estab-
lished, the burden of the proof shifts to the employer to es-
tablish that the same action would have taken place in the
absence of the employees’ union activity. NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983); Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). This rationale is like bal-
ancing weights on a scale.
Where transfer or reassigment of an employee is motivated
by antiunion sentiment, the Board has found violations of
Section 8(a)(3). Danny’s Foods, 260 NLRB 1445 (1982);
Wayne W. Sell Corp., 281 NLRB 529 (1986). Mulholland
and Zachary distributed prounion literature on May 31, the
day before the election; Mulholland was the Union’s election
observer. Thus, Respondent’s knowledge of their Section 7
activity is unquestioned. In addition, the references by Dart
in the June 4 employee meeting after the election, to people
who were ‘‘unhappy’’ and ‘‘[did] not want to work [there],’’
were common code phrases for employee organizers, and
that changes were being made to further evidence Respond-
ent’s intention to discriminate. Moreover, no other employees
were transferred on June 4. While neither employee lost pay
as a result, the transfers resulted in work considerably less
agreeable to both employees (and more arduous for Zachary,
at least).
It cannot be argued that the transfer of the two employees
was motivated by business considerations. Even the
uninitiated would find it strange that Respondent took an ex-
perienced casemaker and welder (Mulholland), and put him
on a job for which the only skill required is to know which
material to lug to the welders. Thus, I find Respondent failed
to meet its Wright Line burden.
Accordingly, I conclude that Respondent, by discrim-
inatorily transferring Zachary and Mulholland to more ardu-
ous and less agreeable jobs violated Section 8(a)(1) and (3)
of the Act.
Respondent laid off employees on August 10, November
16, and December 28, 1990, and January 22, 1991.
The General Counsel contends that these layoffs effected
by Respondent were in violation of Section 8(a)(5) of the
Act.12
In the instant case, the finding of an 8(a)(5) violation is
conditioned on my finding, after a resolution of objections
and challenges filed in connection with the representation
case, that Respondent was obligated to bargain with the
Union concerning its decision to make such layoffs. As set
forth below, I recommend that based on a resolution of the
objections and challenges, the Union is entitled to certifi-
cation.
The Board has held that where objections and challenges
are pending which, on resolution could result in a union cer-
tification, an employer takes unilateral action (on matters that
are mandatory bargaining subjects) at its own peril. See gen-
erally Mike O’Connor Chevrolet, 209 NLRB 701 (1974),
enfd. denied on other grounds 512 F.2d 684 (8th Cir. 1975).
It is beyond dispute that layoffs and recall are mandatory
bargaining subjects. Advertiser’s Mfg. Co., 280 NLRB 1185
(1986); Lapeer Foundry & Machine, 289 NLRB 952 (1988).
There is no dispute that the layoffs in issue were effected
without notice to the Union. Obviously there was no oppor-
tunity to bargain extended to the Union by Respondent.
Where unilateral action involves a mandatory bargaining
subject, an employer might be relieved of its duty to bargain
by reason of extreme economic circumstances. Stamping Spe-
cialty Co., 294 NLRB 703 (1989). However, there appears
to be no case in which the Board has accepted this defense.
That the Board has said so little about what might be a suffi-
cient quantum of economic disaster suggests that an em-
ployer has a high hurdle to overcome. The Board’s opinion
in Aquaslide ‘N’ Dive Corp., 281 NLRB 219 (1986), sug-
gests (without so holding) that a pending bankruptcy or a
freezing of the employer’s assets might be enough. These
circumstances, however, did not obtain in the instant case
until long after the layoffs alleged as unlawful. The Board
rejected the employer’s economic defense in Rocky Mountain
Hospital, 289 NLRB 1370, 1371 (1988). In that case, the re-
spondent cited a decline in its patient census as justification
for its unilateral actions. However, the Board observed that
trend was neither sudden nor unexpected. Respondent’s own
economic problems were neither sudden nor unexpected.
Accordingly, I conclude that Respondent violated Section
8(a)(5) of the Act by laying off its employees without notice
to the Union and without affording the Union an opportunity
to bargain concerning such decision.
The Discriminatory Aspect of the Layoffs
To begin with, the timing of the August 10 layoff is sus-
picious. The layoff took place the last working day prior to
the commencement of this trial.
Where layoffs are effected to retaliate for Section 7 activ-
ity, for filing charges or giving testimony under the Act, or
to generally discourage employees from joining or supporting
753AERO INDUSTRIES
13 To be sure, not every employee laid off on August 10 was a
known union adherent. However, in Consumers Asphalt, supra, the
Board held that the fact that more than solely the employees in-
volved in union activity were laid off did not preclude a finding that
the Act had been violated. See also Majestic Molded Products v.
NLRB, 330 F.2d 603 (2d Cir. 1964).
a union, an employer violates Section 8(a)(3) or (4), or both.
Consumers Asphalt Co., 295 NLRB 749 (1989); Alpha Bio-
chemical Corp., 293 NLRB 753 (1989). In this case, the evi-
dence establishes that Respondent’s layoffs were part of a
pattern of conduct by Respondent, calculated to discourage
support for the Union, to retaliate against employees for co-
operating with the General Counsel or resorting to Board
process, to divide its employees along pro- and antiunion
lines and to send the message to the employees that the
Union and its supporters were responsible for the layoffs.
The August 10 Layoff
On August 10, Respondent laid off 27 employees includ-
ing Gilbert, Mulholland, and Zachary.
Just as the timing of the Griswold discharge coincided
with the start of the Union’s organizing activity, the evidence
establishes that the timing of the August 10 layoff, at the end
of the last working day before this trial commenced, was in-
tended to send a message. The Board viewed a layoff 2 days
after a union’s election victory as retaliatory (Alpha Bio-
chemical, supra). The remarkably timed layoff of August 10
given Respondent’s other discriminatory conduct is highly
suspicious and may be seen as both a prospective warning
to employees, particularly potential witnesses, and an act of
discrimination against those who Respondent knew would
testify for the Union or the General Counsel.
The activities of Mulholland and Zachary were well
known to Respondent by this time. As Respondent’s counsel
had interrogated Gilbert in July, it surely expected that she
would be called as a witness; Gilbert also became part of the
Union’s organizing committee in April, a fact that Respond-
ent was most likely aware of by August. Both Gilbert and
Mulholland testified that they notified Bailey, during the
week prior to the layoff, that they had received subpoenas.
Bailey rather than instigating a possible layoff, told
Mulholland on the morning of the layoff that he expected
him on the job Monday morning because the trial was not
scheduled to begin until 1 p.m. Thus, Bailey, Respondent’s
plant manager, would be expected to know of a planned eco-
nomic layoff. He might very well not know of Dart’s inten-
tion to lay off employees to discourage union activity.
Further evidence of Respondent’s animus toward the
Union and toward Mulholland particularly is the conversation
between Mulholland and his foreman, Bill Castleberry, early
in the week of the layoff. Castleberry had told Mulholland
that Moorehead wanted a list of the work he had done that
morning, something that neither Mulholland nor any em-
ployee, as far as he knew, had ever been asked to do before.
According to Mulholland’s credible testimony, Castleberry
asked him:
‘‘Just what is it that Bonnie [Moorehead] doesn’t like
about you?’’ and I said, ‘‘Well, I was part of the union
organizing.’’ And he had been new there. So I’m not
sure that he really knew. He hadn’t been there very
long. And he said, ‘‘Oh, oh, that would do it.’’
Later the same day, or the next day, Mulholland was sum-
moned to Bailey’s office where he met with Bailey and
Castleberry. Bailey told Mulholland that Castleberry had
some unidentified problem with his work; Castleberry had
not expressed any problem with Mulholland’s work and took
no part in this conversation. Mulholland told Bailey he
thought that ‘‘this is just on account of the Union.’’ Bailey
denied this, though in the next breath he complained that the
Union in its campaign had made out several discharged em-
ployees to be ‘‘martyrs, or something . . . like Catherine the
Great.’’
The selection of some employees for layoff and the reten-
tion of others tend to suggest an unlawful motive.13 For ex-
ample, Gilbert testified that a number of the employees not
laid off, particularly in her department, were of shorter tenure
than herself and Mulholland (and in some cases Zachary) and
openly hostile to the Union. Gilbert also testified that even
though the production aspect of Respondent’s operation was
cut back on August 10, there was still enough work for her
to do in the second store. Even so, those duties were given
to Jane Bell, another vocal opponent of the Union.
The November 16 Layoff
On November 16 Respondent laid off practically the entire
unit, 22 employees including Gilbert, Mulholland, and
Zachary. The timing of the November 16 layoff and Re-
spondent’s animus toward its prounion employees is very
suspicious. The Union filed the original charge in Case 3–
CA–15920 on September 20, alleging, among other things,
that Respondent’s refusal to recall Gilbert, Mulholland, and
Zachary from the August 10 layoff violated Section 8(a)(4).
At the same time, the Union asked the General Counsel to
pursue relief under Section 10(j) of the Act. Part of this re-
lief, of course, would have been the interim reinstatement of
these employees. On October 15, the complaint in Case 3–
CA–15920 issued, alleging, as did the charge, that Respond-
ent violated Section 8(a)(4). Respondent’s answer to the
complaint averred, and the record shows, that Gilbert was re-
called to work on October 22, Mulholland on October 29,
and Zachary on November 5.
Before any of the discriminatees returned to work, Dart
called a meeting of employees. The topic of the above
discriminatees was discussed. Kathy Sopher, an employee
employed by Respondent at that time, credibly testified that
Dart told the assembled employees that he was
going to be calling a few people back . . . not that we
really needed them, but he had to recall them, he had
no choice in the matter.
Undoubtedly, Dart referred to the prospect of 10(j) relief.
Dart then went on to ask the assembled employees to:
watch and see if anybody was goofing off, and if we
did see any goofing off, that we were to report it to the
supervisor.
Sopher further testified that to her knowledge, employees had
never before been asked to police the behavior of coworkers.
Sopher further testified that just before Gilbert’s return to
work, Moorehead spoke to employees in the paint and pack
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The layoff numbered 18 employees including Gilbert,
Mulholland, and Zachary.
area about Gilbert. Moorehead spoke directly to employees
Dori Bell and Deb Wilson, and Sopher credibly testified that
she heard Moorehead tell them that Gilbert would be return-
ing to the department. As Sopher testified:
Well, they weren’t too happy that she [Gilbert] was
coming back in our department, and she [Moorehead]
said don’t worry about it, as she [Moorehead] put it,
that they could say whatever they wanted to Danette
and they wouldn’t get in trouble for it.
Neither Dart nor Moorehead denied Sopher’s testimony.
Actually, Gilbert did not return to paint and pack on Octo-
ber 22. On her first day back, Gilbert was asked to meet with
Moorehead, who told her that she was to use the office area
restrooms rather than those in the plant as she had in the past
as well as other similarly situated employees. The reason
given was that these restrooms were closer to the second
store, where Gilbert would be working. Gilbert testified that
these restrooms were ‘‘a little closer.’’ Moorehead also in-
structed Gilbert to write in her time, instead of punching her
card on the clock, which is out in the production area as she
and other similarly situated employees had done. The only
explanation given to Gilbert was that this would be ‘‘easier.’’
Thus, the evidence established that Respondent staggered
the reinstatement of the discriminatees over 2 weeks, effec-
tively isolated Gilbert for that period of time, characterized
these employees as ‘‘goofing off’’ to their coworkers, and li-
censed some employees to engage in verbal abuse of Gilbert.
Moreover, Respondent waited until 10 days after the return
of the last discriminatee (Zachary) to lay off practically the
entire unit on November 16. The timing of this layoff, the
proximity of the August 10 layoff to the first day of trial,
and the coincidence of the December 28 and January 22,
1991 layoffs coupled with the filing of charges and amended
charges, discussed below, indicates a pattern of retaliation.
The December 28 Layoff
On December 26, the Union filed the original charge in
Case 3–CA–16065. Two days later, on December 28, Dart
called a meeting of employees at 5:15 p.m. The meeting was
neither scheduled nor announced ahead of time. Dart said
that he had just received a new charge from the NLRB.
While he addressed the employees, Dart held a copy of the
charge in his hand. Dart said it would cost $2000 just to an-
swer the charge, and that he pointed to four employees and
said, ‘‘Just to answer this charge, I could pay you, you, you,
and you for two weeks.’’ Dart told assembled employees of
a day in November when Respondent’s warehouse and outlet
stores sold $2100 worth of toolboxes; later the same day, he
opened his mail and found a legal bill for $2100.
Dart’s monologue then turned to the employees who were
‘‘helping the company,’’ and those who were not. Dart rhe-
torically asked what those who felt they were unlawfully laid
off (and here Dart named Gilbert, Mulholland, and Zachary)
were doing to help. Next, Dart announced that all production
employees would be laid off until January 7.14
The timing, the spontaneity, and the duration of the layoff
are all suspicious. As previously set forth, the charge was re-
ceived by Respondent on or before that same day, December
28. The meeting was neither scheduled nor announced.
Mulholland testified that employees had no idea that a layoff
was imminent. In fact, he testified that earlier in the day,
Plant Manager Bailey had specifically denied that there
would be any layoffs soon. Gilbert testified that on Decem-
ber 19, Dart had told the employees they would be working
on January 2, 3, and 4, but on December 28, the employees
were laid off until January 7. Gilbert also testified that four
employees had clocked out early on December 28, and were
not present for the layoff announcement; two of the four
showed up for work on January 2, 1991, to find that there
was no work. Evidently, no one advised them of a pending
layoff when they clocked out on December 28.
The Layoff of January 22, 1991
On January 22, 1991, Respondent laid off 18 employees,
including Mulholland, Zachary, and Gilbert. Again, this lay-
off closely followed the filing of a charge. On January 11,
1991, the Union filed an amended charge in Case 3–CA–
16065, alleging numerous violations and asking that the Gen-
eral Counsel seek Gissel and 10(j) relief.
Like the December 28 layoff, the evidence establishes that
the decision to lay off was a spontaneous reaction to new
ULP charges. For example, the employees had been sched-
uled to work all day on January 22, 1991. On the day before
the layoff, employee Kathy Sopher asked her supervisor,
Herb Lines, whether there would be a layoff soon. Lines re-
plied that there would be a layoff, and explained that Re-
spondent’s practice was to not order steel until the last
minute. On the day of the layoff, Sopher had car trouble and
called in at 7 a.m. and spoke with Lines, who did not men-
tion a layoff to her. Sopher called in again at noon to report
that her car was still out of service; she spoke to Moorehead
at that time. Although the layoff was effected about 2 hours
later, Moorehead made no mention of any layoff to Sopher.
At about 1:30 or 1:45 p.m., Respondent gathered its em-
ployees by the timeclock. Dart and Moorehead were present,
and spoke in turn. Dart began by stating that, due to the ear-
lier layoffs, the Respondent’s receipts had fallen off and that
everyone would be laid off again. Dart then made reference
to the amended charge filed by the Union on January 11, and
passed among the employees a copy of his January 16 letter
to the Union. He complained that no response from the
Union had been received and addressing Mulholland as the
Union’s ‘‘spokesman,’’ asked him to look into it. At this
point, Moorehead interjected, screaming and yelling all the
while that she had been worried sick and losing sleep over
the Company; she pointed in turn to Zachary and Mulholland
asked them, ‘‘are you worried?’’ Moorehead then launched
into a tirade about the amended charge filed by the Union
which concerned Respondent’s unilateral change to a 3-day
workweek in November. She told the employees that this
was the Union they had voted for, and the Union didn’t want
what they wanted. ‘‘There is no Union,’’ Moorehead told the
employees; ‘‘There is no Union representative here, so some-
body in this room is going back and telling them these
things, and I wish they would stop.’’ Finally, Moorehead
asked those employees who were loyal to Respondent to ‘get
on those peoples’ cases’’ who were not.
Dart then told the employees they were laid off and to
leave.
755AERO INDUSTRIES
The apparent spontaneity of the layoff, its timing relative
to the amended charge of January 11, and the references
made in the layoff announcement to the amended charge all
suggest a motive unlawful under Section 8(a)(3) and (4). The
singling out of the union adherents by Moorehead and the
conveyance to employees by Dart of the impression that the
Union had lost interest in bargaining for them suggest that
Respondent used the layoff as a means of discouraging em-
ployees from supporting the Union, thus violating Section
8(a)(3).
A review of all of the evidence establishes a strong prima
facie case that the layoffs were discriminatorily motivated.
The evidence throughout this case, described above and
below, establishes a sustained pattern of other unfair labor
practices throughout the period in which the layoffs took
place.
Additionally, there was a series of antiunion statements by
Respondent’s owners to the employees at the time each lay-
off was being announced blaming the Union for the layoff
an exhorting promanagerial employees to ‘‘get on’’ prounion
employees. Such statements amount to a virtual admission
that the layoffs were in direct retaliation to charges filed by
the Union. The timing of each layoff almost conclusively
supports such conclusion.
Respondent contends that the layoffs were economically
motivated. There is no question that during the period the
layoffs took place Respondent was experiencing some eco-
nomic difficulties. In this connection, Respondent has offered
evidence of a decline in total sales. However, Respondent’s
layoff pratter remains troubling. Respondent’s records show
a sustained period of production following the August 10
layoff. This period seems to have ended with the return of
the three discriminatees. Moreover, each subsequent layoff
was followed by only brief periods of recall, then another
layoff, with Respondent through the statements of Dart and
Moorhead laying responsibility for these layoffs at the feet
of the union adherents. Additionally, Respondent’s evidence
indicates a phenomenal jump in total sales for November
1990. It seems plausible that even in its financial straits, Re-
spondent was so obsessed with the Union and with ridding
itself of its supporters that its business decisions had less to
do with remaining profitable than with frustrating the union
supporters into going elsewhere and turning their fellow em-
ployees against them. Finally, Respondent did not offer any
documentary evidence of a decline in customer orders; even
Dart’s testimony relative to the reasons for the various lay-
offs does not cite a decline in orders.
In my opinion, Respondent’s economic defense fails to
overcome the strong prima facie case established by the Gen-
eral Counsel’s case and, accordingly, I conclude that the Au-
gust 10, November 15, and December 28, 1990, and January
22, 1991 layoffs were discriminatorily motivated in violation
of Section 8(a)(3) and (4) of the Act.
The General Counsel contends that Respondent violated
the Act by its refusal to recall Mulholland, Zachary, Gilbert,
and Betty Beck from its August 10 layoff because of their
union activities, because they testified during the trial of this
case or for both reasons. In the case of Betty Beck, it is con-
tended such discriminatory motivation was to retaliate
against her because her son Donald Beck testified on behalf
of the Union in the representation case aspect of this trial or,
alternatively, because she attended this trial on August 13–
15 as a spectator.
Betty Beck had been employed by Respondent since 1988
and had worked in all areas of Respondent’s operation. There
is no evidence that Beck engaged in union organizing. How-
ever, her son Donald testified in the representation phase of
this proceeding. Betty Beck was present in the courtroom
throughout his testimony. Don Beck was no longer employed
by Respondent at the time he testified nor interested in future
employment.
Gilbert had been employed since 1985 in various positions
and was versatile enough to be used as a ‘‘floater.’’ At one
time, Gilbert was a supervisor. The objections filed by Re-
spondent in the representation case and the evidence devel-
oped at the instant trial, and set forth below, indicate Re-
spondent’s belief that a ‘‘yes’’ ballot marked with an asterisk
was that of Gilbert. On August 15, Gilbert testified as a wit-
ness for the General Counsel. If credited, her testimony
would establish that Respondent’s counsel unlawfully interro-
gated employees about a month before the hearing.
Mulholland was employed by Respondent in 1977–1978
and again from 1982 to date. Mulholland had been a foreman
for a time, and has about 10 years’ experience as a welder.
Mulholland testified on August 14. If credited, his testimony
would support allegations of discrimination, interrogation,
and surveillance by Respondent.
Zachary testified on August 15. His testimony is essen-
tially corroborative of Mulholland’s. Zachary had been em-
ployed by Respondent about 2 years at the time of his testi-
mony, and had been a material mover and shear operator.
Both Mulholland and Zachary were openly supportive of the
Union prior to the election. Mulholland was the Union’s
election observer.
The evidence established that by mid-September at least
11 of the 27 employees were recalled and that 2 employees
were offered recall but refused. The evidence further estab-
lished that at least four of the recalled employees had less
experience than Zachary, Gilbert, or Mulholland. Moreover,
during this period a new and inexperienced employee was
hired. There is no evidence that employees were usually re-
called when work concerning their former job became avail-
able. Rather, the evidence tends to establish that the work of
the unit employees was generally unskilled labor and that
many employees could with little or no training handle most
of the unit operations. In fact, many employees had per-
formed different jobs for Respondent over the years.
Dart testified that Beck, Mulholland, Zachary, and Gilbert
were not recalled initially because they were the ‘‘poorest
performers.’’ Dart’s credibility as to this contention is totally
crushed by the testimony of Plant Manager Hindman who
was Respondent’s plant manager until May 1990 and Mi-
chael Bailey who became plant manager thereafter. Both su-
pervisors testified in detail that all of the above-named em-
ployees, including Beck, were excellent workers.
It is clear that discrimination under Section 8(a)(3) or (4)
may take the form of a refusal to recall employees from lay-
off. Desks, Inc., 295 NLRB 1 (1989). Where, as here, the
timing of the adverse action is ‘‘stunningly obvious,’’ the in-
ference of unlawful motive is warranted. NLRB v. S.E. Nich-
ols, 862 F.2d 952 (2d Cir. 1988), enfd. as modified 284
NLRB 556 (1987). In Sweetwater Crafts, 300 NLRB 18
(1990), the Board found violations of Section 8(a)(3) and (4)
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Moorhead gave conflicting testimony as to Respondent’s alleged
wage policy, each version inconsistent with the wage increase re-
ceived by Kneer.
on facts remarkably similar to those presented here. The re-
spondent in Sweetwater laid off 11 employees for economic
reasons, informing them at the time that the layoff would last
2 to 4 weeks. Eventually, seven employees were recalled, but
the other four were not. One of the two alleged as
discriminatees had testified adversely to the employer in a
representation proceeding. The Board summarily affirmed the
administrative law judges’s findings that the refusal to recall
the employees was motivated by their Section 7 activity
and/or their testimony before the Board.
Given Respondent’s extensive and severe commission of
unfair labor practices and its clear pattern of retaliation
against employees who support the Union or gave testimony
in this trial in support of the Union coupled with his incred-
ible contention that the employees were not recalled because
they were the poorest workers, I conclude that Respondent
refused to recall Beck, Zachary, Gilbert, and Mulholland
when they should have normally been recalled because of
their union activities and because they gave testimony in a
Board proceeding and that by engaging in such conduct, Re-
spondent violated Section 8(a)(3) and (4) of the Act.
Other Direct Dealing with Employees
The credible and unrebutted testimony of General Coun-
sel’s witnesses established Respondent, by its owner Moor-
head, took serveral employee polls among the unit employees
as to whether they preferred to work four 8-hour days or
three 10-hour days. The employees voted, and worked the
10-hour days. No notice was given to the Union. In view of
my recommendation that the Union be certified as the em-
ployees’ collective-bargaining representative, I conclude Re-
spondent violated Section 8(a)(5) by failing to give notice to
the Union and bargain on request concerning a mandatory
subject of bargaining. Laminated Products, 294 NLRB 816
(1989).
On or about December 19, at an employee meeting, Dart
distributed to the employees an open letter dated December
11. This letter stated to employees that for fiscal reasons,
their health insurance coverage would be suspended at the
end of December ‘‘until things pick up.’’ The coverage was
suspended at the end of December 1990.
Major changes on fringe benefits such as health insurance
are mandatory subjects of bargaining. In Venture Packaging,
294 NLRB 544 (1989), the Board held that the unilateral
cancellation of employees’ disability benefits was a violation.
Respondent did not notify or bargain with the Union about
the suspension. For the reasons set forth and discussed
above, I conclude that by such unilateral action Respondent
violated Section 8(a)(5) of the Act.
Employee Roberta Kneer was hired by Respondent in
April 1990. Kneer started at $3.90/hour, and was told by
Hindman, who was plant manager at the time, that she would
receive a raise at 30 days and ‘‘periodically’’ thereafter. At
30 days, Kneer was raised to $4/hour. At 60 days, Kneer was
raised again, to $4.25. Kneer was out from June to December
with a compensable injury. When she returned to work, she
found that she had received another raise, to $4.50. In her
paycheck of February 27, 1991, Kneer found another raise,
of 50 cents, which brought her up to $5/hour. No one told
Kneer she would be getting this raise.
Respondent’s payroll records for the pay periods ending
February 17 and 24 indicate that at least two other employ-
ees, Tracy Ball and Michael Przepiora, also received wage
increases. Respondent did not notify the Union about such
wage increases nor did it bargain with the Union.
Respondent was unable to show that it had a previously
established wage policy.15
In the context of union organizing or negotiating for a col-
lective-bargaining agreement, unilateral wage increases grant-
ed with the intent or having the effect of undermining a
union as the bargaining representative are unlawful. Moores-
ville IGA Foodliner, 284 NLRB 1055 (1987). Where, for the
reasons set forth above, I conclude that by such unilateral ac-
tion, Respondent violated Section 8(a)(5) of the Act.
As set forth above, when Dart spoke to Respondent’s em-
ployees prior to the November 16 layoff, he told them,
among other things, watch the employees and see if anyone
was goofing off, and if so report the employee to a super-
visor. In view of Respondent’s usual pattern of conduct, I
find this statement coercive and violative of Section 8(a)(1).
As set forth above, when Dart addressed his employees on
December 28 to announce the layoff, he told them that he
could pay four employees for 2 weeks what it cost to answer
an unfair labor practice charge. I conclude such statement,
given the overall pattern of Respondent’s unlawful conduct,
to be coercive and violative of Section 8(a)(1). Harrison
Steel Castings Co., 293 NLRB 1158 (1989).
Mulholland and Zachary, like other production employees
of Respondent, are required to keep records known as job
cards. On January 21, both employees made book entry er-
rors. On the morning of January 22, the same day that em-
ployees were laid off, both Mulholland and Zachary were
told to report to Moorhead’s office. Moorhead asked them to
shut the door, and then she threw the two employees’ job
cards of the previous day on the desk and began screaming
about these errors in particular and other things in general.
At one point, Moorhead stated, ‘‘If you guys don’t like
working here, why don’t you just get out?’’ Again, given Re-
spondent’s unlawful pattern of behavior, I find such state-
ment violative of Section 8(a)(1). Hoytuck Corp., 285 NLRB
904 (1987); NLRB v. Nueva Engineering, 761 F.2d 961 (4th
Cir. 1985).
Objections and Challenges
As set forth above, an election was conducted by the
Board on June 1, 1990. (G.C. Exh. 1(i).) The tally of ballots
indicates that of approximately 35 eligible voters, 16 voted
for the Union and 14 voted against the Union.
(a) Thomas Griswold—challenged by NLRB agent
as name was not on the voter eligibility list.
(b) Edward Krause—challenged by the Union on
grounds that he was not a unit employee as of the voter
eligibility date.
(c) Earl Freeman—challenged by the Union as close
relative to an officer of Respondent.
On June 8, 1990, subsequent to the election, the Employer
filed seven objections to the conduct of the election. These
objections alleged that:
757AERO INDUSTRIES
16 The Stipulated Election Agreement provided that the payroll pe-
riod for eligibility was the period ending ‘‘Friday, April 20, 1990.’’
1. The Steelworkers threatened and coerced employees
during the election campaign.
2. The NLRB agent ignored Respondent’s attempt to chal-
lenge a ballot marked with an asterisk instead of an ‘‘x’’ or
check mark.
3. The NLRB agent permitted the union observer at the
election to wear a union insignia.
4. Employees ‘‘acting on behalf’’ of the Union defaced the
Employer’s property.
5. In the 24-hour period prior to the election, the Union
intentionally misrepresented Respondent’s financial condi-
tion.
6. The Union misled employees by claiming that employee
Thomas Griswold was improperly discharged.
7. The Union waived their initiation fee to induce employ-
ees to sign authorization cards.
Challenged Ballots
Three ballots were challenged in the election; two by the
Union and one by the NLRB agent conducting the election.
The Union challenged the ballots of Earl Freeman and Ed
Drause. The NLRB agent conducting the election challenged
the ballot of Tom Griswold because his name did not appear
on the voter eligibility list.
The Union contends that the challenges of Freeman and
Krause should be sustained, but that the ballot of Griswold
should be counted. The three challenges will be dealt with
individually.
The Union challenged the ballot of Earl Freeman on the
grounds that (l) Freeman was not employed as of the voter
eligibility date,16 and (2) Freeman was closely related to an
officer of Respondent.
It is undisputed that Freeman is the father of Bonnie
Moorehead, the vice president of the Respondent. Moorehead
testified that in the Employer’s structure she is on an equal
footing with Robert Dart, its president. She further testified
that while she was not a stockholder, she has a loan with Re-
spondent. During employee meetings conducted by the Em-
ployer at the time of the election campaign, Dart advised em-
ployees that both he and Moorehead had put their own
money into Respondent. During the election campaign, Re-
spondent issued a series of letters to the employees critical
of the Union and requesting that employees vote against the
Union. Moorehead signed each of those letters.
Freeman began working for Respondent sometime in April
1990 at a store outlet opened by Respondent some 36 miles
from the plant. Don Beck, an employee, testified that he
worked at the store when it first opened on April 20, 1990.
Beck first learned that Freeman had been hired and would
be working in the store during the week after its opening on
April 20. The first check to Freeman is dated April 27, 1990.
The timecard for this paycheck is handwritten and is not
punched on a timeclock. The timecard does not indicate
when the 2 hours were worked.
The National Labor Relations Act specifically provides
that the term ‘‘employee’’ does not include ‘‘any indivdiual
employed by his parent or spouse.’’ 29 U.S.C. Sec. 152(3).
In Foam Rubber City #2 of Florida, 167 NLRB 623 (1967),
the Board held that it would exclude from the bargaining unit
children of principals of a closely held corporation. In NLRB
v. Action Automotive, 469 U.S. 490 (1985), the Supreme
Court was confronted with a Board ruling that the mother of
principals of a closely held corporation as ineligible to vote
even though there was no showing that she enjoyed any spe-
cial benefits as an employee because of that relationship.
In Action Automobile, 469 U.S. at 496, the Supreme Court
noted that:
The very presence at union meetings of close rel-
atives of management could tend to inhibit free expres-
sion of views and threaten the confidentiality of union
attitudes and voting.
In the instant case Moorehead is the vice president of Re-
spondent, on equal footing with its president. She has loaned
money to the Employer and advised employees that she has
staked her daughter’s college money into the venture. She
was outspoken both in letters to the employees and at em-
ployee meetings against the Steelworkers. As stated in Action
Automotive, 469 U.S. at 495:
The greater the family involvement in the ownership
and management of the company, the more likely the
employe relative will be viewed as aligned with man-
agement and hence excluded.
Given Moorehead’s involvement in managing the Respond-
ent, her financial stake in the Employer because of her loans,
as well as her campaign against the Union, it is only reason-
able to assume that Freeman shares his community of inter-
est with his daughter and not with fellow employees.
Moreover, Beck testified that he was assigned the respon-
sibility for the Harborcreek store’s grand opening on April
20, 1990. Prior to that opening, he worked at the store on
several days getting it ready for the opening. He worked the
entire day of the opening (April 20) and the entire following
day. It was not until the following week that Respondent in-
formed Beck that it was hiring Freeman to work evenings
and Saturdays at the store. Certainly any employment by
Freeman on or before April 20 can only be characterized as
casual rather than regular, part time. Dart testified that
‘‘she’s [Moorehead] getting a lot of work out of the guy
[Freeman] and hasn’t paid him yet.’’ While Respondent’s
witnesses testified that Freeman was working before April
20, the only record of any such work is the handwritten
timecard showing 2 hours of work in the payroll week end-
ing April 20. Under Board precedent, an employee is a reg-
ular, part-time employee if he averages 4 hours per week in
the calendar quarter preceding the eligibility date. Tri State
Transportation, 289 NLRB 356 (1988). Freeman clearly did
not meet this standard and, at most, could only be character-
ized as a casual employee as of the voter eligibility date.
Accordingly, I conclude the challenge to Freeman’s ballot
should be sustained.
Edward Krause was employed by the Employer as a main-
tenance man in approximately 1988. In December 1989, he
was laid off with about 25 other employees. After the layoff,
Krause was notified that he may not be recalled and should
look for work elsewhere. Respondent contends that Krause
was recalled in late March or early April. There was no
timecard for Krause for the week ending April 13, 1990. For
the payroll period ending April 20, there was a timecard
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Dart independently owned a small airport close to Respondent’s
facility.
filled in with Dart’s handwriting. Dart is Respondent’s presi-
dent. The handwriting indicated 2 hours. The timecard of an-
other maintenance man, Hollis Anderson, was punched on a
timeclock which is used by Respondent’s production and
maintenance employees. Moorehead testified that there was
another person, Arnie Hallim, who did ‘‘some’’ maintenance
work for Respondent who did not punch on the timeclock.
Hallim’s name did not appear on the voter eligibility list.
Two bargaining unit employees, Thomas Zachary and Tim
Mulholland, testified that they did not see Krause working at
the Employer after his layoff in December 1989 until after
the election. At that time Krause was using the timeclock, as
all production and maintenance employees are required to do.
Between Krause’s layoff in December l989 and the election
on June l, l990, Zachary saw Krause at Respondent several
times walking through to work on his airplane which was
hangered at an adjacent airfield owned by Dart. On one oc-
casion during this period Krause told Zachary that he was in-
stalling a heater at Respondent’s in exchange for some air-
plane parts.3
Mulholland was the Union’s observer during the election.
He testified that he reviewed the voter eligibilty list prior to
the election itself. Employees who had been laid off in De-
cember 1989 but recalled appeared on the eligibility list.
However, those who had not been recalled by the election
date did not appear on the list. Mulholland testified that he
did not see Krause working at Respondent’s until the Mon-
day following the election.
Dart contends that Krause worked from January to April
1990 in exchange for airplane hangar rent and airplane parts.
Dart claims that Krause was recalled in April 1990 but
worked ‘‘off a toolbox.’’ Dart also testified that after the De-
cember 1989 layoff the Employer sent Krause a letter stating:
We do not know if or when you’ll be called back and
what I’m telling you is that you should be looking for
something else. And we understand.
While Krause was ‘‘working’’ for hangar rent, airplane parts,
or the toolbox, there were no employee or Employer taxes
paid. Dart testified that Krause was his ‘‘special project’’
who he worked until he felt he had earned his hangar rent.
It is clear from all the evidence that at the time of the
election Krause had no expectation of recall and had been
advised by Respondent that he should look for other employ-
ment. It is also clear that he was not regularly reemployed
as an employee until after the election. Krause’s status from
his layoff in December 1989 through the election can hardly
be characterized as that of an employee. While Respondent
claims that he was working, there is no record of hours
worked for the period January through April 1990. For the
period April through June 1, the date of the election, the only
record is handwritten timecards. This is clearly contrary to
other production and maintenance employees who punched
in on a timeclock. In addition, for almost the entire period
January through June 1990 Krause did not receive any
wages. He allegedly was working under a barter system of
work in exchange for hangar rent, airplane parts, or a tool-
box. Certainly a person working under that type of arrange-
ment does not share a community of interest with employees
regularly scheduled who punch a timeclock and receive an
hourly wage rate. Furthermore, Moorehead testified that there
was another employee, Hallim, who worked like Krause who
was not set forth on the voter eligibility list.
Krause had other regular full-time employment. His work
for Respondent during the period January through June 1990
appears to be on a casual and sporadic basis. In the instant
case the bargaining unit is defined as ‘‘all full-time and reg-
ular part-time production and maintenance employees.’’ In
NLRB v. Embro Mfg., 768 F.2d 151 (7th Cir. 1985), enfg.
272 NLRB NLRB 282 (1984), the court upheld a Board de-
termination excluding an employee who took a job elsewhere
but continued to work for the employer on an ‘‘on call’’ or
as-needed basis. That employment was sporadic and intermit-
tent as was Krause’s. Finally, Krause, apparently working
under an agreed-on barter system where no employment
taxes or benefits are paid or withheld, hardly shares a com-
munity of interest with bargaining unit employees who are
paid an hourly wage, punch a timeclock, have regular hours,
and enjoy some medical benefits. See Jakel Motors, 288
NLRB 730 (1988).
Accordingly, I conclude the challenge to the ballot of
Krause should be sustained.
In view of my conclusion that the union challenges be sus-
tained it would not appear necessary to consider the chal-
lenged ballot of Griswold. However, in view of my finding
that Griswold was discriminatorily discharged. I would con-
clude that he is an eligible voter and that if necessary his
ballot could be opened and counted.
II. RESPONDENT’S OBJECTIONS TO THE CONDUCT OF
THE ELECTION
Respondent filed seven objections to the conduct of the
election alleging that the Union coerced employees, mis-
represented Respondent’s financial condition as well as the
status of the unfair labor practice charge involving Griswold,
and waived its initiation fee to induce employees to sign au-
thorization cards or vote for it. Respondent also alleges that
employees acting on behalf of the Union ‘‘permanently de-
faced’’ Respondent’s property with prounion and anti-Re-
spondent slogans. Finally, Respondent alleges inappropriate
NLRB conduct by allowing the union observer to wear union
buttons or insigina and by refusing to void a ballot marked
with an aserisk in the ‘‘yes’’ box.
Objection 1—Threats and Coercion
In support of Objection 1, Respondent introduced a letter
from Tom Griswold to fellow employees. That letter was
composed by Griswold and sent to his fellow employees
prior to the election. In that letter Griswold refers to several
instances where employees who were hurt on the job or laid
off and were not called back to work. That letter can be
characterized as one worker’s view of job security—an issue
obviously of importance to all employees. It can hardly be
characterized as a threat or coercion.
In addition, Respondent apparently contends that Griswold
allegedly threatened or coerced employee Diana Ferguson, on
the day before and day of the election. The alleged threat
consisted of an appeal by Griswold on each day to Ferguson
to vote for the Union. Ferguson testified that Griswold said:
759AERO INDUSTRIES
18 Respondent claimed that employee Danette Gilbert frequently
used an asterisk. Danette Gilbert testified that she placed an ‘‘x’’ on
her ballot. Another employee, Amy Utegg, testified that she would
occasionally use an asterisk on Employer documents known as job
tag loads.
I hope you’re not going to send me to my execution
by voting no.
No other evidence, other than Griswold’s letter and Fer-
guson’s testimony were submitted by Respondent in support
of this objection.
The Board has set aside elections where the campaign was
marked by threats to kill or beat up nonunion adherents.
Electra Food Machinery, 279 NLRB 279 (1986); threats by
prounion adherents to blow up the employer’s mine, Lovila
Coal, 275 NLRB 1358 (1985); or actual physical attacks,
Teamsters Local 703 (Kennicott Bros.), 284 NLRB 1125
(1987). Threatening employees with loss of their jobs if they
do not support the union may be a basis for setting aside the
election. Lyon’s Restaurants, 234 NLRB 178 (1978).
The conduct alleged in this case is hardly conduct that
‘‘created a general atmosphere of fear and reprisal rendering
free choice impossible.’’ Bauer Welding & Metal Fabrica-
tors v. NLRB, 758 F.2d 308 (8th Cir. 1985), enfg. 268 NLRB
1416 (1984).
Griswold’s letter to fellow employees, which was mailed
to those employees by the Union, merely sets forth
Griswold’s view that the Employer has treated employees
unfairly in the past. It contains no threats or coercive or in-
timidating statements. Likewise, his isolated statements to a
fellow employee regarding the importance of the election
contain no threats of violence or coercive statements. Gris-
wold, who was the alleged discriminatee in a pending unfair
labor practice case, was merely campaigning for the Steel-
workers. I conclude there is no evidence to support Objection
1, and recommend it be dismissed.
Objection 2—Improperly Marked Ballot
One of the ballots in the election contained an asterisk in
the ‘‘yes’’ box rather than an ‘‘x’’ or checkmark.
Respondent objected to that ballot during the tally proce-
dure on the grounds that the use of the asterisk made the
identity of the voter known to the parties.18
It is undisputed that the NLRB agent counted the asterisk
ballot as a ‘‘yes’’ vote. There is a serious question as to
whether Respondent raised any objection to the counting of
the ballot during the tally procedure. William Pienta, a union
representative who was present during the count, testified
that no objection was raised with respect to that ballot. In
fact, although she claims to have objected to the ballot,
Moorehead signed the tally of ballots on behalf of Respond-
ent.
Under Board precedent a ballot should be counted if (1)
the ballot evidences the intent of the voter, and (2) it is not
marked so as to identify the voter. In the instant case the
questionable ballot contained an ‘‘x’’ in the ‘‘yes’’ box with
extra lines so that it was configures like an asterisk. In
Kaufman’s Bakery, 264 NLRB 225 (1982), the Board per-
mitted ballots which contained extra markings in the ‘‘yes’’
box. In George K. Garrett, 120 NLRB 484 (l958), and
Northwest Packing, 65 NLRB 890 (1946), the Board invali-
dated ballots which contained the voter’s signature becasue
they inherently revealed the identity of the voter. In Stand-
ard-Coosa-Thatcher, 115 NLRB 170 (1956), the Board re-
fused to invalidate a ballot containing a mark resembling the
letter ‘‘C’’ in the ‘‘No’’ box since that mark did not inher-
ently reveal the identity of the voter. However, the Board did
invalidate the ballot containing the number ‘‘417’’ since that
number coincided with the clock number of an employee.
The marking on the questioned ballot does not inherently
reveal the identity of the voter. The mark appears similar to
an asterisk, a fairly common symbol that is not intrinsic to
any particular employee. Such a mark does not inherently re-
veal the identity of the voter as does a name, clock, number
or initials. Since the marking does not inherently reveal the
identity of the voter, I conclude that the objection should be
dismissed.
Objection 3—Insignia on the Observer
During the election the observer for the Union wore two
union insignia and a shirt which had an iron-on Union. Dur-
ing the preelection conference, attended by representatives of
the Union and Respondent, Respondent objected to the insig-
nia. The NLRB agent advised Respondent that insignia could
be worn. Respondent’s observer wore a ‘‘Vote No’’ sticker
during the polling.
In VanLeer Containers v. NLRB, 841 F.2d 779 (7th Cir.
1988), denying enf. on other grounds 279 NLRB 675 (1986),
the court agreed with the Board that:
[T]he mere display of partisan insignia by observers
during an election without more, does not warrant set-
ting aside an election. citing NLRB v. IDAB, 770 F.2d
991, 999–1000 (11th Cir. 1985); EDS-IDAS v. NLRB,
666 F.2d 971, 976 n. 6 (5th Cir. 1982); NLRB v. Laney
Duke Storage Warehouse, 369 F.2d 859, 864–865 (5th
Cir. 1966); The Nestle Co., 248 NLRB 732, 742 (l980),
enf’d. without opinion 659 F.2d 252 (C.C. Cir. 1981).
Accordingly, I conclude this objection should be dis-
missed.
Objection 4—Defacing Employer Property
Respondent contends that employees acting on behalf of
the Union permanently defaced Respondent’s property. Pre-
sumably, although never articulated, the Respondent contends
that the defacement destroyed the laboratory conditions.
The alleged defacing was grafitti on a men’s restroom wall
at the plant. The grafitti was two phrases, ‘‘Aero Sucks’’ and
‘‘Union Yes.’’ Respondent does not know who did either
piece of grafitti. In addition, some ‘‘Vote No’’ signs were
changed to ‘‘Vote Yes’’ signs.
I conclude that the grafitti cannot be attributed to the
Union or their adherents. Even if it could, it hardly is con-
duct that destroys the laboratory conditions or would coerce
or intimidate employees. Accordingly, I conclude the objec-
tion should be dismissed.
Objection 5—Misrepresentation
Respondent contends that in the 24 hours preceding the
election the Union intentionally misrepresented the Respond-
ent’s financial condition. On the day prior to the election,
from approximately 3 to 5 p.m., union representatives and
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees distributed a lettter from the Union Research De-
partment to employees regarding the Respondent’s financial
condition. One of the Respondent’s salesmen was given one
of the documents and turned it over to Moorehead almost
immediately. Moorehead contends that the statement, ‘‘The
company advised that sales are now 3.5 million annually,’’
was incorrect and that net worth was overstated by $31,000.
In fact, Respondent acknowledged that the information was
taken from a Dun & Bradstreet report on Respondent.
The Board in Shopping Kart Food Marts, 228 NLRB 1311
(1971), indicated that it would not set aside an election be-
cause of a misrepresentation unless the misrepresentation in-
volved the Board or forged documents were used. For a short
period the Board abandoned this view. See General Knit of
California, 239 NLRB 619 (1978). However, in 1982 in
Midland National Life Insurance, 263 NLRB 127 (1982), the
Board returned to the Shopping Kart rule finding that elec-
tions will not be set aside solely because of misrepresenta-
tions unless that misrepresentation involves the misuse of the
Board’s election process or a forged document was used.
Arguing, arguendo, that the union document which was
distributed to employees can be characterized as a misrepre-
sentation, the Board’s decision in Midland Insurance indi-
cates that it is not a basis for setting aside the election. Al-
though Respondent contends that it had no opportunity to re-
spond, its own characterization of the misrepresentation con-
tained in the document indicates that it could have responded
prior to the election through a written rebuttal. Based on
Midland Insurance, I conclude this objection should be dis-
missed.
Objection 6—Misrepresentation Regarding
Thomas Griswold
Respondent contends that the Union misled employees by
implying that Thomas Griswold was improperly discharged.
At the trial it became apparent that this objection related to
a paragraph in a letter sent by the Union to the employees
on May 25, 1990. That paragraph read:
Remember what happened to Tom Griswold, we
know that he did not quit. Tom is fortunate because the
Union is there to help him obtain his Unemployment
Insurance benefits and we are still trying to get him
back his job. The charges filed by the Union on behalf
of Tom Griswold have been ruled on by the National
Labor Relations Board, they have been upheld and a
hearing will be scheduled.
A charge related to Griswold’s termination of employment
was filed in Case 3–CA–15570 on April 10, 1990. The Re-
gional Director reached a determination to issue complaint
on that charge and a complaint was issued on May 25, 1990.
Based on these facts, the statements cited above are not
a misreprsentation. As of the date of the letter, the charges
had been ‘‘upheld’’ and were scheduled for hearing. Even
assuming, arguendo, that the statement can be characterized
as a misrepresentation, it is not objectionable conduct. In
Riveredge Hospital, 264 NLRB 1094 (1982), supplementing
251 NLRB 196 (1980), enfd. as modified 789 F.2d 524 (7th
Cir. 1986), the Board found that a misrepresentation of
NLRB action was not a basis for setting aside an election so
long as a Board document has not been altered to give the
impression that the Board endorses a party to the election.
See also Purolator Products, 270 NLRB 694 (1984). Ac-
cordingly, I conclude this objection should be dismissed.
Objection 7—Union’s Initiation Fee
Respondent contends that the Union waived its initiation
fee to induce employees to sign authorization cards or vote
for the Union. The Union constitution provides that:
The initiation fees shall be Ten Dollars ($10.00).
The International executive Board may grant dis-
pensations from payment of initiation fees when in its
judgment such dispensation will promote the growth or
interests of the International Union.
In NLRB v. Savair Mfg., 4l4 U.S. 270 (1973), the Supreme
Court found that a waiver of initiation fees conditioned on
signing authorization cards was a basis for setting aside an
election. However, in reaching this finding the court specifi-
cally found lawful a waiver of such fees if the waiver was
extended to those who join after the election as well as be-
fore. See 414 U.S. at 272 fn. 4.
During the election campaign, the Union distributed sev-
eral pieces of literature addressing the initiation fee. In a
document characterized as ‘‘Whoppers’’ the Union stated:
WHOPPER 3
BOSS:
All the union wants is a big fat initation fee and your
dues money.
TRUTH:
There is no ‘‘initiation fee’’ for currently working
members in new local unions. And the Steelworkers
dues are small: just 1.3: of gross wages with a $5
monthly minimum and a maximum of 2-1/2 times your
average hourly earnings. And you don’t pay a dimes
worth of dues until you get your first contract.
In a second document distributed to the employees entitled
‘‘THE TRUTH ABOUT USWA DUES,’’ the Union stated:
NO CONTRACT, NO DUES
First of all, no one pays one red cent in dues until
after a contract has been negotiated with your employer
and approved by you, the membership.
. . . .
What about an initiation fee?
Our very low $10.00 fee will be waived for all
workers who join up before a contract is signed by the
company.
During the campaign one of the employees sent a letter to
the Union’s organizers. In that letter the following was
asked:
I would like to know what this union is going to cost
me, what kind of money we’re talking about each
week. I would like to know if there is an initiation fee
for those on disability or on compensation.
On May 17, 1990, the Union responded, stating:
761AERO INDUSTRIES
On the issue of Union dues, you will pay no initi-
ation fee nor will any of your fellow workers. The
Steelworkers do not charge an initiation fee to newly
organized units. . . .
Also there is no dues payment until after a contract
is reached with Aero and the workers ratify it. We must
deliver or no dues are collected.
During the campaign employees were advised that there
was no initiation fee for any of the employees at a plant that
the Union is organizing. Griswold recalled that the union
representatives stated to employees that, ‘‘There was no initi-
ation fee for anyone until the contract was signed and then
it was $10 for anyone after the contract was signed.’’
Zachary, another employee active in the organizing cam-
paign, told employees that, ‘‘Anybody that is eligible to vote
did not have to pay an initiation fee.’’ Diana Ferguson re-
called that, ‘‘There was no initiation fee for first time union
members.’’
It is clear that the Union communicated to employees,
through their literature, representatives, and employee sup-
porters that there was no initiation fee for the employees em-
ployed during the entire election process and beyond. The
waiver of the fee did not depend on signing an authorization
card or even voting. Nothing in the literature or the state-
ments even suggests that the initiation fee was only waived
for persons signing authorization cards.
There was no testimony that any employee was told or
even thought that they had to sign an authorization card to
qualify for the waiver of the $10 initiation fee. I conclude
that the waiving of the initiation fee for all employees in the
bargaining unit was permissible under NLRB v. Savair, supra,
and this objection should be dismissed.
CONCLUSIONS OF LAW
Having sustained the Union’s challenges to the ballots of
Edward Krause and Earl Freeman and overruled the Board
agent’s challenged ballot of Thomas Griswold and having
concluded that Respondent’s objections to the Union’s con-
duct concerning the June 1, 1990 election are without merit,
I recommend that the results of the election be certified and
conclude that as of June 1, 1990, the Union was the collec-
tive-bargaining representative of all Respondent’s full and
part-time production and maintenance employees including
general factory, maintenance, set-up, material movers, and
hardware/outlet personnel employed by Respondent at its
Mayville, New York and Harbor Creek, Pennsylvania facili-
ties.
1. Respondent is, and has been, at all times material, an
employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees about their union sym-
pathies, Respondent violated Section 8(a)(1).
4. By interrogating employees through its agent in prepara-
tion for this hearing, Respondent violated Section 8(a)(1).
5. By engaging in surveillance of its employees’ union ac-
tivity, Respondent violated Section 8(a)(1).
6. By requesting or encouraging employees to take unspec-
ified action against other employees who joined or supported
the Union on or about December, Respondent violated Sec-
tion 8(a)(1).
7. By threatening employees with loss of employment
and/or layoffs because the Union had filed charges under the
Act, because employees had given evidence to the Board,
and because the General Counsel sought backpay and rein-
statement remedies, Respondent violated Section 8(a)(1).
8. By telling employees who supported the Union that they
should leave Respondent’s employment, Respondent violated
Section 8(a)(1).
9. By discharging employee Tom Griswold because of his
activities in behalf of the Union, on April 10, 1990, Re-
spondent violated Section 8(a)(1) and (3).
10. By reassigning employees to less desirable work be-
cause of their union activities, Respondent violated Section
8(a)(1) and (3).
11. By laying off employees because they joined or sup-
ported the Union or to discourage them from doing so, on
August 10, November 16, December 28, 1990, and January
22, 1991, Respondent violated Section 8(a)(1), (3), and (4).
12. By refusing to recall certain employees from the Au-
gust 10 layoff because they joined or supported the Union,
because they gave testimony before the Board, because a
close relative of one employee gave testimony before the
Board, or because that employee attended the Board’s pro-
ceedings as a spectator, Respondent violated Section 8(a)(1),
(3), and (4).
13. By laying off employees on the dates described above
without notifying the Union and without bargaining over the
layoff or its effects, Respondent violated Section 8(a)(1) and
(5).
14. By bypassing the Union and dealing directly with em-
ployees with respect to hours of work, Respondent violated
Section 8(a)(1) and (5).
15. By suspending its employees’ health insurance cov-
erage without notifying the Union of the suspension and
without bargaining about the suspension of the health insur-
ance coverage or the effects of the suspension, Respondent
violated Section 8(a)(1) and (5).
16. By unilaterally granting wage increases to certain em-
ployees, in February 1991, Respondent violated Section
8(a)(1) and (5).
REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action nec-
essary to effectuate the policies of the Act. It also having
been found that the Respondent unlawfully constructively
discharged Thomas Griswold in violation of Section 8(a)(3)
and (1) of the Act, it is recommended that the Respondent
remedy such unlawful conduct. In accordance with Board
policy, it is recommended that the Respondent offer Gris-
wold immediate and full reinstatement to his former position
or, if that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, dismissing, if nec-
essary, any employee hired on or since the date of his dis-
charge to fill the position, and make him whole for any loss
of earnings he may have suffered by reason of the Re-
spondent’s acts here detailed, by payment to him of a sum
of money equal to the amount he would have earned from
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the dates of his unlawful discharge to the date of a valid
offer of reinstatement, less net earnings during such period,
to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
It having been also found that Respondent unlawfully laid
off its employees on August 10, November 16, and Decem-
ber 28, 1990, and January 22, 1991, I shall order Respondent
to reinstate all the above employees not recalled to their
former jobs or, if those jobs no longer exist, to substantially
equivalent jobs without prejudice to their seniority or other
rights and privilees, and to make all such laid-off employees
whole for any loss of earnings they may have suffered as a
result of Respondent’s discrimination against them until such
time as Respondent makes a valid offer of reinstatement to
them, backpay to be computed in the manner described
above.
It is further recommended that, concerning the Respond-
ent’s unlawful unilateral changes in terms and conditions of
employment found here, the Respondent reestablish the status
quo ante except concerning those changes which have been
beneficial to the employees in the appropriate unit. It is fur-
ther recommended that a determination of whether the
changes have been beneficial to employees, whether employ-
ees have lost benefits or money by reason of the changes,
and whether there is any money due and owing employees
and the amount thereof be referred to the compliance stage
of this proceeding. See Ogle Protection Service, 183 NLRB
682 (1970).
This is also a case in which the manner of notice posting
should be since Respondent’s operations have been ceased
since August 1991, many of the employees employed by Re-
spondent during the period of time where the unfair labor
practices were committed had left, or may have changed
their residences. It is therefore recommended that Respondent
be ordered to post an appropriate notice at its facility if and
when its operations resume, and that Respondent also be or-
dered to publish the notice immediately in the Jamestown
Post-Journal and the Mayville Sentinel, both newspapers of
general circulation. Workrooms for Designers, Inc., 274
NLRB 840 (1985).
[Recommended Order omitted from publication.]