America's Best Quality Coatings Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 470 (N.L.R.B. 1993)

470
313 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its answering brief, the Charging Party has moved to strike
and/or disregard ABQC’s exceptions or, alternatively, to strike
ABQC’s brief in support of exceptions. The Charging Party contends
that ABQC did not comply with Sec. 102.46(b) of the Board’s Rules
and Regulations inasmuch as ABQC filed a supporting brief in addi-
tion to exceptions containing extensive argument and authorities,
and, together, the documents exceed the Board’s 50-page limit. The
Charging Party notes that ABQC did not file a request for permis-
sion to exceed that limit, pursuant to Sec. 102.46(j). Further, the
Charging Party moves the Board to strike Staff Right’s incorporation
by reference of ABQC’s exceptions and supporting brief into the
Staff Right cross-exceptions as similarly failing to comply with the
Board’s Rules and Regulations.
Sec. 102.46(b)(2) of the Board’s Rules states that any exception
which does not comply with the requirements of Sec. 102.46(b)(1)
‘‘may be disregarded.’’ Although ABQC’s and Staff Right’s excep-
tions are not in precise conformity with Sec. 102.46(b), we find that
they are in substantial compliance with those requirements. There-
fore, we deny the Charging Party’s motion.
2 The Respondents have 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.
In the absence of exceptions, we adopt pro forma the judge’s deci-
sion to overrule Objections 10, 14, and 17, and sustain Objection 21.
3 The General Counsel has excepted to the judge’s failure to con-
clude that the Respondent violated Sec. 8(a)(1) of the Act when Su-
pervisor Keith Stanosz interrogated employee Robert Person about
why Person needed a union. We find it unnecessary to pass on this
issue because such a violation, even if found, would be cumulative
and have no effect on the remedy.
In sec. III, part C of his decision, the judge credited the testimony
of employees Robert Nixon, Calvin Jones, and Timothy Mays, and
concluded that ABQC violated Sec. 8(a)(1) when Supervisor Keith
Stanosz impliedly threatened them in his remarks concerning their
transfer from the ABQC payroll to the Staff Right payroll and also
interrogated them about the Union. The judge inadvertently erred in
crediting Calvin Jones because Jones never testified at the hearing
in this case. We nevertheless agree with the judge, based on the tes-
timony of Mays and Nixon, that ABQC violated Sec. 8(a)(1) by
Stanosz’ remarks and interrogation.
Also in sec. III, part C of his decision, the judge inadvertently
credited testimony of employee Steve Grady in finding that ABQC
violated Sec. 8(a)(1) by Supervisor Sheryl Valente’s threats to im-
pose more restrictive working conditions on employees if they chose
union representation. Grady did not testify. In agreeing with the
judge that ABQC so violated the Act, we rely on the testimony of
employees Glearon Scott and Jeff Heppe.
4 All subsequent dates are in 1991 unless stated otherwise.
5 Chairman Stephens finds it unnecessary to pass on the issue of
whether the interrogation of Hicks violated the Act because the find-
ing of such an additional violation would be cumulative and would
not affect his decision on the remedy.
America’s Best Quality Coatings Corp. and Staff
Right, Inc., Joint Employers and United Elec-
trical, Radio and Machine Workers of America
(UE). Cases 30–CA–11425, 30–CA–11425–2, 30–
CA–11425–4, 30–CA–11580, 30–CA–11712, 30–
CA–11822, and 30–RC–5250
November 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 1, 1993, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. Re-
spondent America’s Best Quality Coatings Corp.
(ABQC), Respondent Staff Right, Inc. (Staff Right),
the General Counsel, and the Charging Party each filed
exceptions and supporting briefs. The Respondents, the
General Counsel, and the Charging Party filed answer-
ing briefs, and the Respondents filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions3 as modified and to
adopt the recommended Order as modified.
1. The judge found it unnecessary to pass on wheth-
er the early June 19914 conversation between ABQC’s
labor attorney, Terrance Schuster, and employee Keith
Mills constituted a violation of Section 8(a)(1) of the
Act. The judge found that such a finding, not alleged
in the complaint, would be cumulative. The judge
nonetheless proceeded to discredit Mills, finding it un-
likely that Schuster would have told Mills wages
would go down if ABQC had a union. Finally, the
judge concluded that Schuster’s question to Mills, a
known union supporter, did not violate the Act. In
adopting the judge’s conclusion that ABQC did not
violate the Act, we rely on the judge’s discrediting
Mills’ version of the conversation.
2. The judge found that during the first week of
June, Respondent’s president, Robert Petersen, interro-
gated employee Jasper Hicks at his workstation, initiat-
ing a conversation about the Union and asking Hicks
how he felt about the Union. The judge found that the
circumstances of the conversation, i.e., a company
president’s interrogating an employee at his
workstation, tended to show coercion. The judge, how-
ever, denied the General Counsel’s motion to amend
the complaint to include a corresponding allegation of
unlawful interrogation because the judge found that
such a violation would be cumulative. We disagree
with the judge that this violation would be merely cu-
mulative, in view of the president’s direct involvement
in the unlawful activity. As the judge aptly stated, this
incident ‘‘shows that [ABQC], at the highest level of
management, was willing to . . . cross the line be-
tween casual and coercive conversation in order to at-
tempt to influence the outcome of the forthcoming
election.’’ Although not alleged in the complaint, this
matter was fully litigated at the hearing. Accordingly,
we shall grant the General Counsel’s motion to amend
the complaint to conform to the proof and find that
ABQC violated Section 8(a)(1) of the Act.5
3. The General Counsel and the Charging Party have
excepted, inter alia, to the judge’s failure to find Staff
471AMERICA’S BEST QUALITY COATINGS CORP.
6 Member Raudabaugh believes that, in a joint employer relation-
ship, each employer is responsible for the unfair labor practices of
the other. See his dissenting opinion in Capitol EMI. Accordingly,
unlike his colleagues, he would find that Staff Right is responsible,
along with ABQC, for the unlawful conduct involved herein.
7 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Right to be a joint employer with ABQC. The judge
found that the relationship between ABQC and Staff
Right did not satisfy the test for joint employer status
because Staff Right neither performed management
services nor exerted significant control over the ABQC
employees in a manner that meaningfully affected
terms and conditions of employment. The judge con-
cluded that, inasmuch as Staff Right was not a joint
employer, the remedy in this case should only involve
ABQC. The General Counsel and the Charging Party
argue that the Respondents admitted in their answer to
the complaint and stipulated at the hearing that they
were joint employers during the time period April
1991, to January 3, 1992. The General Counsel and the
Charging Party request that the Board find Staff Right
jointly and severally liable for the backpay due em-
ployees arising from ABQC’s unlawful conduct during
that time period.
We agree with the General Counsel and the Charg-
ing Party that ABQC and Staff Right were joint em-
ployers from April 1991, to January 3, 1992, based on
the answer to the complaint, as well as the parties’
stipulation at the hearing. We agree with the judge,
however, that the remedy in this case should involve
ABQC alone. In Capitol EMI Music, 311 NLRB 997
(1993), the Board held as follows:
[I]n joint employer relationships in which one em-
ployer supplies employees to the other . . . both
joint employers [will be] liable for an unlawful
employee termination (or other discriminatory dis-
cipline short of termination) only when the record
permits an inference (1) that the nonacting joint
employer knew or should have known that the
other employer acted against the employee for un-
lawful reasons and (2) that the former has acqui-
esced in the unlawful action by failing to protest
it or to exercise any contractual right it might pos-
sess to resist it. [Footnote omitted.]
The Board in Capitol EMI set forth the following allo-
cation of burdens for determining whether the nonact-
ing joint employer will be held liable for the unlawful
actions of the other joint employer:
The General Counsel must first show (1) that two
employers are joint employers of a group of em-
ployees and (2) that one of them has, with unlaw-
ful motivation, discharged or taken other discrimi-
natory actions against an employee or employees
in the jointly managed work force. The burden
then shifts to the employer who seeks to escape
liability for its joint employer’s unlawfully moti-
vated action to show that it neither knew, nor
should have known, of the reason for the other
employer’s action or that, if it knew, it took all
measures within its power to resist the unlawful
action. [Footnote omitted.]
Ibid.
Applying the Capitol EMI standard to the facts of
this case, we find that the General Counsel has carried
his burden of showing that ABQC and Staff Right
were joint employers during the period from April
1991 through January 3, 1992. We also find for the
reasons stated by the judge that ABQC violated Sec-
tion 8(a)(3) by laying off and delaying the recall of the
first-shift plating department employees, by suspending
and terminating Michael Proffit and Keith Mills, and
by terminating Lisa Nixon. Thus, the burden shifts to
Staff Right to show that it neither knew nor should
have known of ABQC’s unlawful actions.
We are satisfied that Staff Right has met this burden
because the undisputed evidence shows that Staff
Right’s role was limited to recruiting and supplying
candidates for employment with ABQC, and ‘‘float-
ing’’ the cost of ABQC’s payroll from April 1991 until
January 3, 1992. The decision to hire a candidate was
exclusively made by ABQC; once hired by ABQC, all
employees worked subject to terms and conditions of
employment determined by ABQC alone. Staff Right
President Jim Lazear testified that after employees
began working at ABQC, Staff Right had nothing to
do with their situations at work ‘‘other than provide
them a W–2.’’ It is clear from the record that Staff
Right was never consulted about any of ABQC’s deci-
sions to lay off, recall, suspend, or terminate employ-
ees. We can infer from the record that Staff Right nei-
ther knew nor should have known about ABQC’s dis-
criminatory activities. We therefore find that remedy-
ing the unfair labor practices found in this case is sole-
ly the responsibility of ABQC.6
4. The Respondents have excepted to the judge’s
imposition of a Gissel7 bargaining order. They assert
that the judge failed to justify imposition of such an
extraordinary remedy by demonstrating that the tradi-
tional remedies available to the Board would not en-
sure that a fair election could be held. We find no
merit in the Respondents’ arguments.
In agreeing with the judge that a Gissel bargaining
order is a necessary component of the remedy in this
case, we find that Respondent ABQC’s course of mis-
conduct, both pre and postelection, clearly dem-
onstrates that the holding of a fair election in the fu-
ture would be unlikely. In that regard, we note that
ABQC’s misconduct during the critical preelection pe-
riod included transferring its employees to Staff
Right’s payroll on the day after the Union demanded
recognition and filed the representation petition, var-
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Respondent’s reliance on Impact Industries v. NLRB, 847
F.2d 379 (7th Cir. 1988), is misplaced. There, the court remanded
the bargaining order issue to the Board because it had failed to con-
sider evidence the respondent attempted to present concerning turn-
over in employees and management during the long time the case
was pending at the Board. Here, we have fully considered the evi-
dence the Respondent refers to. Further, in the instant case, the Re-
spondent is not claiming that changes in management occurred, and
there is no period of delay comparable to that involved in Impact.
Furthermore, we note that in its subsequent decision in Ron Tirapelli
Ford v. NLRB, 987 F.2d 433, 440 (7th Cir. 1993), the court cau-
tioned that in Gissel cases the Board must be careful to balance sev-
eral concerns, including not permitting an employer to profit from
its own wrongful refusal to bargain. As discussed above, we find
that that is the situation here with respect to the Respondent’s reli-
ance on the turnover factor.
ious threats and interrogations by Supervisors Stanosz
and Valente, unlawfully delaying promised raises and
vacations based on the upcoming election, and per-
sonal visits by Company President Petersen to employ-
ees’ work stations. On one occasion, Petersen unlaw-
fully interrogated employee Hicks at his work station
about the Union and, on another occasion, Petersen di-
rected employee Mills to remove a prounion sign from
his work area even though an antiunion sign remained
posted at the nearby work station of employee Torres.
Additionally, ABQC ‘‘stacked’’ the bargaining unit by
hiring new employees in order to dilute the Union’s
strength.
Furthermore, the unfair labor practices intensified
after the inconclusive June 21 election. The course of
unlawful conduct included the mass layoff and delayed
recall of the first-shift plating employees, the continued
withholding of raises and vacations pending resolution
of the election objections, only to be followed by the
sudden grant of benefits after the mass layoff, and the
discharges of prounion employees Michael Proffitt,
Keith Mills, and Lisa Nixon.
The coercive effect of the Respondent’s misconduct
cannot be denied. The transfer of employees from
ABQC’s payroll to Staff Right’s payroll was an-
nounced by President Petersen himself and reasonably
caused employees to fear that they were no longer
‘‘permanent’’ employees of ABQC, but only ‘‘tem-
porary’’ employees of Staff Right. When employees
questioned Supervisor Stanosz about the change, he
advised them that ‘‘they was trying to scare [the em-
ployees] off of the Union.’’ Thus, the Respondent uti-
lized the transfer device to impress on employees that
it controlled their employment to the exclusion of any
outside organization that might attempt to improve
their working conditions. The impact of this change
was magnified by the fact that it was communicated by
the Respondent’s president and it occurred on the day
after the union demanded recognition. See Astro Print-
ing Services, 300 NLRB 1028, 1029 (1990).
The discriminatory layoff of all 21 day shift plating
department employees, the delayed recall of those with
suspected union sympathies, and the unlawful dis-
charges of 3 leading union adherents were also highly
coercive and unlikely to be forgotten. This unlawful
conduct, which ‘‘goes to the very heart of the Act,’’
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941), directly affected approximately one-third of
the bargaining unit. The likely result of such action
was to reinforce the employees’ fear that they would
lose employment if they persisted in union activity.
Koons Ford of Annapolis, 282 NLRB 506, 508 (1986),
enfd. 833 F.2d 310 (4th Cir. 1987).
The Respondent’s postelection grant of benefits was
another highly coercive unfair labor practice. The Re-
spondent utilized a classic ‘‘carrot and stick’’ ap-
proach, first denying the employees expected wage re-
views and paid vacations before the election, and then
granting such benefits after the election. As the Su-
preme Court has long recognized, employees are quick
to perceive the ‘‘fist inside the velvet glove’’ implicit
in such tactics. NLRB v. Exchange Parts Co., 375 U.S.
405, 409 (1964). And the Board has noted that unlaw-
fully granted benefits ‘‘are particularly lasting in their
effect on employees and difficult to remedy by tradi-
tional means . . . not only because of their signifi-
cance to the employees, but also because the Board’s
traditional remedies do not require the Respondent to
withdraw the benefits from the employees.’’ Triec,
Inc., 300 NLRB 743, 751 (1990), enfd. 946 F.2d 895
(6th Cir. 1991).
We also note that the Respondent impaired the in-
tegrity of the Board’s election process by hiring, im-
mediately before the eligibility cutoff date, several em-
ployees thought likely to vote against the Union. The
Respondent’s willingness to engage in such unit pack-
ing casts serious doubt on whether a fair election could
be held.
Finally, we find, contrary to the Respondent’s con-
tention, that evidence concerning employee turnover is
an irrelevant consideration when assessing the propri-
ety of issuing a Gissel bargaining order. See F & R
Meat Co., 296 NLRB 759 (1989). Furthermore, even
assuming that employee turnover would be a relevant
factor in an appropriate case, this is not such a case.
As the judge noted, there is ‘‘a clear causal connec-
tion’’ between the turnover in the unit and the Re-
spondent’s illegal conduct of laying off the day shift
plating department and delaying the recall of employ-
ees most likely to have been union supporters. Even
courts that examine employee turnover caution that an
employer is not to be rewarded for its own misconduct
and limit consideration of that factor to cases where
the turnover was not of the employer’s own making.
NLRB v. Balsam Village Management Co., 792 F.2d
29, 34 (2d Cir. 1986), enfg. 273 NLRB 420 (1984).8
Finally, to the extent that some employee turnover oc-
curred that is not the product of the Respondent’s un-
473AMERICA’S BEST QUALITY COATINGS CORP.
9 Nothing in this Decision and Order shall be construed as requir-
ing ABQC to rescind any benefits without a request from the Union.
See Vibra Screw, Inc., 301 NLRB 371 fn. 2 (1991).
10 We note that President Petersen’s confiscation of prounion lit-
erature from employee Mills’ workstation was alleged and found to
be objectionable conduct. No party filed exceptions to this finding.
Inasmuch as this conduct was not alleged to have violated Sec.
8(a)(1), we shall amend the judge’s recommended Order to remove
the cease-and-desist provision inadvertently included there.
We shall also modify the reinstatement language in par. 2(a) of
the judge’s recommended Order to conform to that traditionally used
by the Board.
fair labor practices, it ‘‘should not be a controlling fac-
tor.’’ Justak Bros. & Co. v. NLRB, 664 F.2d 1074,
1082 (7th Cir. 1981).
In sum, the Respondent’s course of misconduct ema-
nated from upper level management, was swift and se-
vere, persisted during the postelection period, and di-
rectly affected a substantial proportion of the unit em-
ployees. Accordingly, we agree with the judge that the
possibility of erasing the effects of the Respondent’s
unfair labor practices is slight and the holding of a fair
election unlikely. Therefore, we conclude that a Gissel
bargaining order is appropriate.
AMENDED REMEDY9
Because of the serious nature of the violations and
because the Respondent’s egregious misconduct dem-
onstrates a general disregard for the employees’ fun-
damental rights, we find it necessary to issue a broad
order requiring the Respondent to cease and desist
from infringing in any other manner on rights guaran-
teed employees by Section 7 of the Act, Hickmott
Foods, 242 NLRB 1357 (1979), and to bargain with
the Union.10
Additionally, in the event a bargaining order takes
effect without a certification of representative, we shall
order that the election held in Case 30–RC–5250 shall
be set aside, and that the petition in that matter be dis-
missed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ica’s Best Quality Coatings Corp., Milwaukee, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them
in Section 7 of the Act, by interrogating employees
concerning their union sympathies, by threatening em-
ployees that benefits would be withheld and that it
would impose more onerous working conditions, and
by telling employees that they were transferred to the
payroll of a temporary employment service to scare
them off the Union.’’
2. Substitute the following for paragraph 1(f).
‘‘(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.’’
3. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.
‘‘(a) Offer Keith Mills, Michael Proffitt, Lisa Nixon,
and all bargaining unit members of the dayshift plating
department laid off or terminated on or after July 19,
1991, immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, including wage increases and vacation
benefits that may have been illegally delayed or not
provided, in the manner specified in the remedy sec-
tion of the judge’s decision.
‘‘(b) Remove from its files any reference to the un-
lawful terminations and layoffs and notify the employ-
ees in writing that this has been done and that the ter-
minations and layoffs will not be used against them in
any way.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Case 30–RC–5250 is
severed from Cases 30–CA–11425, 30–CA–11425–2,
30–CA–11425–4, 30–CA–11580, 30–CA–11712, and
30–CA–11822, and remanded to the Regional Director
for Region 30, that the ballots of Robert Husslein, Paul
Plonka, Stephen Iggens, Jason Rothwell, and Raymond
Tippet be opened and counted by the Regional Direc-
tor in accordance with the Board’s Rules and Regula-
tions, and that he prepare and serve on the parties a
revised tally of ballots. If the revised tally in this pro-
ceeding reveals that the Petitioner has received a ma-
jority of the valid ballots cast, the Regional Director
shall issue a certification of representative. If, however,
the revised tally shows that the Petitioner has not re-
ceived a majority of the valid ballots cast, the Regional
Director shall set aside the election, dismiss the peti-
tion, and vacate the proceedings in Case 30–RC–5250.
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.
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s brief embraces a motion to correct certain
errors in the transcript. The corrections requested are appropriate and
the motion is granted.
2 All following dates will be in 1991 unless otherwise indicated.
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 terminate or lay off any employees or
otherwise discriminate against them in retaliation for
union activities or other protected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed them in
Section 7 of the Act by interrogating employees con-
cerning their union sympathies, by threatening employ-
ees that benefits would be withheld and that we would
impose more onerous working conditions, and by tell-
ing employees they were transferred to the payroll of
a temporary employment service to scare them off the
Union.
WE WILL NOT delay expected wage increases or re-
views and vacations or give such benefits in a manner
that interferes with employees’ Section 7 rights.
WE WILL NOT promulgate rules or an employee
handbook with unilateral changes in terms and condi-
tions of employment without notice to or bargaining
with the Union.
WE WILL NOT fail or refuse to recognize and bargain
in good faith with United Electrical, Radio and Ma-
chine Workers of America (UE) as the exclusive bar-
gaining agent of our employees in the following appro-
priate unit with respect to rates of pay, hours of em-
ployment, and other terms and conditions of employ-
ment:
All full-time and regular part-time production and
maintenance employees, including warehouse em-
ployees of the Respondent, employed at Ameri-
ca’s Best Quality Coatings Corp. facility in Mil-
waukee, Wisconsin; but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Keith Mills, Michael Proffitt, Lisa
Nixon, and all employees of the day shift plating de-
partment laid off or terminated on or after July 19,
1991, immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, including wage increases and
vacation benefits that may have been illegally delayed
or not provided, in the manner specified in the remedy
section of the judge’s decision.
WE WILL notify them in writing that we have re-
moved from our files any reference to their termi-
nations and layoffs and that the terminations and lay-
offs will not be used against them in any way.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive collective-bar-
gaining representative of our employees in the appro-
priate unit, with respect to the rates of pay, wages,
hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
agreement.
WE WILL, on request of the Union, rescind any
changes in terms and conditions of employment that
were unilaterally made on or after April 18, 1991, and
retroactively restore preexisting terms and conditions
of employment.
AMERICA’S BEST QUALITY COATINGS
CORP.
Gerald McKinney, Esq., for the General Counsel.
Fred G. Groiss and Jose Luis Martinez, Esqs., of Milwaukee,
Wisconsin, for the Respondent.
Mary E. Leary, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Milwaukee, Wisconsin, on June 15–18
and August 10–13, 1992. Subsequent to an extension of the
filing date, briefs were filed by all parties.1 These proceed-
ings are based on an original charge filed July 2, 1991,2 by
United Electrical, Radio and Machine Workers of America.
The Regional Director’s consolidated complaint dated May 1,
1992, embraces numerous additional charges as well as elec-
tion objections filed June 28, 1991, by the Union, alleging
various violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act which occurred both before and
after an election held on June 21.
At the resumption of the hearing on August 10, 1992,
Case 30–CA–11822, a complaint, alleging illegal discharge
under Section 8(a)(1) and (3) of the Act, was consolidated
with the other cases.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
475AMERICA’S BEST QUALITY COATINGS CORP.
3 The Allen Bradley Company employees were represented by
Local 1111 of the International Union. Local 1111 is not a party to
these proceedings.
4 Celske was the only nonblack employee in this group, and the
only one not working on first shift in the plating department. As of
April 18, Respondent’s first-shift plating department consisted of 24
employees; 12 of whom were black, 5 of whom were Hispanic, and
7 of whom were Caucasian. Three of these employees, Jacqueline
Williams (black), Lee Ramirez (Hispanic), and David Claudio (His-
panic) were nonsupervisory leadpersons.
FINDINGS OF FACT
I. JURISDICTION
Respondent America’s Best Quality Coatings Corp.
(ABQC) is a corporation engaged in metal plating operations
at a Milwaukee facility.
It annually provides services valued in excess of $50,000
for Allen Bradley Corporation, an enterprise in Wisconsin
which annually sells and ships goods and materials valued in
excess of $50,000 directly to points outside Wisconsin. Re-
spondent Staff Right, Inc. operates an employment service in
Milwaukee and provides services valued in excess of
$50,000 for other Wisconsin businesses who sell and ship
nonretail products valued in excess of $50,000 directly to
points outside Wisconsin. It is admitted that at all times ma-
terial Respondent had been an employer engaged in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is admitted that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
ABQC is a closely held Wisconsin corporation with Co-
Owners William Nimtz and Joel Lee each being 50-percent
stockholders. It began operations in June 1990, after purchas-
ing the then union-organized3 metal plating operations from
Allen Bradley Company and began nonunion operations at
the same location and facility almost immediately thereafter
with over 99 percent of its metal plating work being per-
formed for Allen Bradley Company.
Staff Right, Inc. is engaged in the business of providing
skilled and unskilled blue collar workers in the Milwaukee
metropolitan area. It provides these services to numerous em-
ployers (many of them unionized), in addition to ABQC.
Staff Right began serving ABQC as a result of a competi-
tive bidding process, and it supplied production and mainte-
nance employees who remained on the Staff Right payroll
for 45 days during which time Staff Right was responsible
for handling their payroll including making all necessary tax
deductions. No particular employees were ever requested by
ABQC and it never received any instructions from ABQC as
to what should be done as to the position of applicants on
unions.
In April 1991, it entered an arrangement with ABQC to
‘‘float’’ the cost of the payroll and employees were placed
on Staff Right’s payroll for this purpose only. This relation-
ship ended in January 1992 and reverted to the recruitment
and supply of employees.
Under these circumstances, I am persuaded that the rela-
tionship between ABQC and Staff Right does not satisfy the
appropriate test for determining joint employer status because
Staff Right does not, in conjunction with ABQC, perform
management services or exert significant control over the
same employees in a manner that ‘‘meaningfully affects mat-
ters relating to the employment relationship in firing, dis-
cipline, supervision and direction.’’ See Osco Drug, 294
NLRB 779 (1989). Accordingly, I find that Staff Right is not
a joint employer and, in view of conclusions otherwise
reached below, I conclude that the remedy sought in this pro-
ceeding should involve only Respondent ABQC.
As a new employer located in a ‘‘private enterprise’’ or
‘‘development’’ zone, ABQC was eligible for certain govern-
ment tax breaks and wage subsidies, provided residents in
that low income area, and certain others, were hired as em-
ployees. Thereafter, from June 1990 until at least November
1991, a majority of ABQC’s work force consisted of minor-
ity employees, most of whom were African-American (black)
and Hispanic. Most, if not all, of the aforesaid employees
were poor, hard to employ, disadvantaged persons earning
under $10,000 annually. The majority of these employees
had also been placed at ABQC through Staff Right.
Gene Plonka was ABQC’s first president from June 1990
until approximately October 1990 at which time, because of
illness, he was succeeded by Robert Petersen. Petersen re-
mained president for approximately 1 year, until November
30, 1991, at which time he was succeeded by the current
president, Robert Adikes.
In 1990 employees were hired at $5.50 per hour and
promised a 50-cent raise on completion of their probationary
periods and periodic raises thereafter in anticipation that on
their 1-year anniversary date, they could be earning up to
$10 per hour with a 1-week paid vacation. After Plonka be-
came ill in September 1990, Petersen met with the employ-
ees and informed them that the probationary period was
being changed from 90 to 60 days, that employees would get
their 1-week paid vacation and a raise at their 1-year anni-
versary date, but that the amount of the raises would be de-
termined by a ‘‘rate review.’’
In late March 1991, employees became increasingly con-
cerned over the effect of Plonka’s terminal illness on prom-
ised raises and other personnel matters and employees Mi-
chael Proffitt, Keith Mills, Sonny Anderson, Lisa Nixon,
Robert Person, Virginia Boyde, and Curits Celske4 met and
designated Celske to contact the Union’s field organizer,
Beth Levie, about how they should go about forming a
union.
Celske then circulated a petition of interest for union rep-
resentation among Respondent’s approximately 62 to 64 em-
ployees. The petition, with addresses and telephone numbers,
was signed by 33 employees, 15 of which were from the
first-shift plating department.
Respondent was made aware of the petition of union inter-
est when several employees showed it to Supervisor Jane
Lewandowski, in Petersen’s absence, and informed her that
they ‘‘wanted to be recognized as a group or as a union and
that they wanted to talk to Petersen about some of the condi-
tions and wages.’’ Lewandowski replied she was not in a po-
sition to answer any of their questions and the petition was
returned. Supervisor Keith Stanosz also saw the petition and
then asked employee Robert Person why he needed a union.
Union Representative Levie thereafter met with 20 em-
ployees and obtained signed authorization cards and by April
18 the Union had secured 34 valid union member-
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ship/authorization cards from employees. As of June 21, and
prior to the NLRB-conducted election, the Union had secured
an additional 10 cards for a total of 44. The introductory por-
tion of the cards read (both in English and Spanish):
I hereby request and accept membership in the above
named union, and authorize it to represent me, and in
my behalf to negotiate and conclude all agreements as
to hours of labor, wages, and all other conditions of
employment.
On April 18, Union Representatives Levie and Bob Clark,
together with employees Proffitt, Mills, Nixon, Anderson,
Boyde, Jasper Hicks, LeMon Ward, and Robert Person, un-
successfully demanded voluntary recognition after indicating
that a majority of workers had signed union cards. Imme-
diately thereafter, the Union filed a representation petition.
Pursuant to the representation petition and a Stipulated
Election Agreement, an election was conducted, on June 21,
among employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees, including warehouse employ-
ees of the Respondent employed at America’s Best
Quality Coatings Corp. facility in Milwaukee, Wiscon-
sin; but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
The results of the election as set forth in the tally of bal-
lots show that of approximately 72 eligible voters, 30 cast
votes for and 29 cast votes against the Union. There were
nine challenged ballots which were sufficient in number to
effect the results of the election.
Several employees testified that on April 19, the day after
Respondent declined voluntary recognition of the Union, Pe-
tersen met with all employees and announced that, hence-
forth and for an indefinite period, employees were being
transferred to Staff Right’s payroll instead of ABQC’s pay-
roll due to ‘‘cash flow’’ problems. Petersen, however, testi-
fied the effective date of the transfer was actually April 7
and that he was not sure of the date he met with the employ-
ees regarding this payroll transfer matter but guessed being
‘‘between April 7 and 12,’’ or ‘‘somewhere in that area.’’ As
a result of the announcement employees became ‘‘very
uspset, very scared’’ because they felt that they were now
‘‘temporary’’ employees of Staff Right, the employment
service, instead of having the ‘‘permanent’’ status they had
attained with ABQC. As ‘‘temporary’’ employees, a status
most had previously held with Staff Right when first hired,
they felt they no longer possessed the job security or protec-
tion they had with ABQC. Moreover, as temporary employ-
ees, they felt they would no longer be considered trustworthy
regarding such things as car loans.
Thereafter conversations and events occurred based on this
subject and on other matters concerning the union election
which bear on several alleged violations of the Act. These
events, as well as certain other events that occurred subse-
quent to the election, will be discussed in the ‘‘Discussion’’
section of this decision.
On July 15, the Union’s organizing committee members
Proffitt, Mills, and Hicks, were given warnings for alleged
poor attendance. They jointly conferred with Union Rep-
resentative Levie and, on July 17, went as a group to Peter-
sen’s office to protest the warnings. They each gave Peter-
sen, in the presence of Supervisor Keith Stanosz, a formal
grievance written on the Union’s standard grievance form en-
titled, ‘‘UE Grievance Form.’’ Petersen took the grievances
from the three employees, but refused to formally accept
them, stating Respondent did not recognize the Union.
One or two days prior to July 18, the organizing commit-
tee met and drafted a petition demanding promised raises and
vacations. It was signed by 29 employees and delivered to
Petersen during the 9:10 a.m. workbreak on July 18. Nearly
30 employees went to the area near Petersen’s office and
gave him the petition together with a document (Exh. 27)
which cited various NLRB and court cases supportive of the
organizing committee’s demand for payment by Respondent
of the promised wage increases and paid vacations. Mills,
Proffitt, and Nixon were the principal spokesmen. After
Mills told Petersen the law provided the employees were en-
titled to the raises and paid vacations inasmuch as these ben-
efits had been previously promised, Petersen replied the peti-
tion and other document ‘‘meant nothing to him and that he
was tired of having everyone come to his office.’’ He said
he would not do anything until the NLRB ruled on the pend-
ing union challenges and the objections. Petersen also, as
credibly testified to by Keith Mills, referred to the ongoing
union activities and told the employees, ‘‘if you [have] an
attitude you [will not] be getting no raise or . . . vacation.’’
Later that morning at about 11:30 a.m., leadman David
Claudis informed Supervisor Stanosz that valves had been
opened without authorization on several of the plating ma-
chines tanks causing acid to drain to a holding area in the
basement resulting in an unsafe working condition because
the acid storage tank had risen to near its holding capacity.
Stanosz feared another such act could result in serious dam-
age to the plant or employees and he said he determined to
send the employees home for the remainder of the day. After
notifying Petersen, he then punched the timecards of all these
first-shift plating department employees and released them
from work at 12:30 p.m. Respondent did not contact either
the fire or police department, health department, or OSHA.
After being told to go home, the majority of the employees
went to the nearby union office where the Union was in-
formed of what had occurred.
When the first-shift plating department employees arrived
the next day in time for their shift, all except for the three
leadpersons, they were denied entry by Petersen. They were
then sent a letter saying the first shift was being discontinued
until the risk of reoccurring misconduct was eliminated.
On July 22 employees began informational picketing to
protest Respondent’s apparent lockout. Pickets included em-
ployees Mills, Proffitt, Nixon, Boyde, LeMon Ward, Jasper
Hicks, Bryan Thompson, and Sonny Anderson and picketing
continued for 6 weeks.
On July 27, Petersen sent a letter to all first-shift plating
department employees in which he referred to ‘‘present pro-
duction requirements,’’ etc., being the reason for lack of re-
call, specifically stating:
This letter is to inform you that due to current produc-
tion levels in the Plating department, we are unable to
bring back the entire work force. We are currently only
filling those positions that are needed to satisfy present
477AMERICA’S BEST QUALITY COATINGS CORP.
5 Excelsior Underwear, 156 NLRB 1236 (1966).
production requirements. These positions are being
filled by the most qualified individuals. Unfortunately,
current production needs do not warrant recalling you
at this time. However, your name has been placed on
a preferential recall list and you will be notified when
work is available. I regret this current condition of af-
fairs and hope we can get as many employees back to
work as soon as possible.
Employees were not recalled based on what machine they
had been operating on July 19. From July 19 forward, Re-
spondent utilized the three leadpersons and the second-shift
plating department employees, and these employees were
working as much as 4 hours overtime per day. (Stanosz as-
serted that they maintained regular hours; however, this is
not documented by relevant records available to Respondent.)
When Robert Person was recalled on November 7 he be-
lieved that he was the first black to be recalled and that first-
shift plating employees were working more overtime than
they had prior to July 19.
The Respondent also received information assertedly given
to Petersen from employees Dan and Dave Roark that Mills
and Proffitt were in the area of the tanks that were drained
and that they were laughing and referring to getting their va-
cations at the union hall after being released from work on
the July 18. On July 27 both Mills and Proffitt were given
letters of suspension pending investigation of the drainage in-
cident. Interviews with Petersen and company counsel were
held and claims were made that Respondent had 13 witnesses
to place them in the area and that Respondent had 12 sworn
affidavits that they were seen causing the acid drain. Both
denied any involvement, but they were discharged by letters
dated February 24, 1992.
On or about July 27, merit wage reviews and a week of
paid vacation were unilaterally awarded to employees and
Respondent made admitted changes involving employees’
wages, hours, and conditions of employment. Most of the
unilateral changes are set forth in Respondent’s first-ever em-
ployee handbook which issued in early September and Re-
spondent stipulated that all such changes were unilaterally
made without notice to, or bargaining with, the Union. The
Respondent also applied a drug screening for all recalled em-
ployees and, when Nixon’s November test resulted in a posi-
tive finding, she was discharged.
Sonny Anderson was recalled in December. On July 20,
1992, Anderson had a dispute with Supervisors Habel and
Stanosz over a change in his job assignment, Anderson left
the workplace after being told by Stanosz that he could leave
if he didn’t like it. Anderson then called President Adikes
who said he had heard of the incident but had not yet had
a chance to investigate. The next day Anderson was termi-
nated for ‘‘getting into supervisors’ faces’’ on July 20.
III. DISCUSSION
The issues in these cases arise from the events surrounding
the terminal illness of a startup company’s president, em-
ployees’ concern over anticipated wages and benefits, a
union election, the sudden mass layoff of all the first-shift
plating employees, and a protracted delay in the recall of
laid-off employees, especially those who were union sym-
pathizers.
A. Ballot Challenges
Of 68 ballots cast, 30 were for the Union, 29 were against,
and 9 were challenged. The Board challenged Raymond Tip-
pet’s ballot as he was not included in the ‘‘Excelsior’’ list5
of eligible voters furnished to the Union. The testimony of
Supervisor Lewandowski shows that Tippet was working at
the Company prior to the payroll eligibility date and that she
accidentally failed to use the updated computer date when
she prepared the list. Respondent asserts that it substantially
complied and did not act in bad faith, citing cases that indi-
cate such an omission does not warrant a new election. The
General Counsel’s brief does not address this issue and, inas-
much as Tippet otherwise is within the unit, I conclude that
his vote properly may be counted, and the challenge there-
fore is overruled.
Robert Husslein is alleged to be a supervisor because of
his title as ‘‘maintenance supervisor’’; however, he is the su-
pervisor only of himself as he is the only one in his depart-
ment and he is, factually, the janitor (with maintenance-type
duties). The fact that he has parking privileges and office ac-
cess relates to his unusual work hours and duties; otherwise,
he performs no supervisory functions. I find he is not a statu-
tory supervisor and that the challenge to his ballot should be
overruled.
Al Habel was listed on company charts and in his perform-
ance review as second-shift supervisor and no other person
with supervisory status was at the plant for most of the sec-
ond shift. He is salaried, was given a vacation, wears cloth-
ing like other supervisors (not the employees’ coveralls), has
parking privileges, instructs employees on their job duties,
has fired and disciplined employees and, prior to the election,
was considered by other employees to be a supervisor.
If Habel was not a supervisor (at the time of the election),
some 13 employees on the second shift would be unsuper-
vised and an opened, operating plant with an inventory of
costly machinery and materials would be functioning for up
to 8 hours a day with no onsite supervision. Clearly, Habel
was the highest ranking employee on his shift, and his duties
subsequently were also designated as supervisory duties by
the Respondent when after the election it formally recog-
nized and entitled him as a supervisor and, accordingly, I
find that Habel was a statutory supervisor at the time of the
election. See Schnuck Markets v. NLRB, 961 F.2d 700 at 706
(8th Cir. 1992), and cases cited there. I therefore find that
the Union’s challenge to his ballot should be sustained.
Kasey Lee Nimtz (also known as Ki-Ki Nimtz) is the
daughter of William Nimtz who own 50 percent of Respond-
ent ABQC’s stock. She was a student at the University of
Wisconsin, Eau Claire, from 1987 to 1989 majoring in busi-
ness, and thereafter at the University of Gainesville in Flor-
ida from 1989 to 1991 majoring in economics. During the
summer she would return home and work for Respondent on
a full-time basis. She wore slacks, shirts, blouses, etc., but
not a uniform as did other bargaining unit employees and she
generally worked in the administrative offices. When ABQC
first opened, Ki-Ki Nimtz interviewed and hired several of
the production and maintenance employees. Prior to the elec-
tion Nimtz was trained to act as a production planner, assert-
edly not a front office job and a job also sometimes per-
formed by Ruth Zinns whose ballot also was challenged. Al-
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though Nimtz may have trained for a position that might
make her a ‘‘dual function’’ employee, it is clear that she
did and could exercise supervisory functions as the daughter
of the owner, and otherwise the record supports the conclu-
sion that her interests are aligned with management and that
she had a lack of community of interest with unit employees.
Accordingly, the challenge to her ballot is sustained.
Ruth Zinns is the assistant to Office Supervisor Jane
Lewandowski and is now called the office clerk. Prior to and
at the time of the election, she had no title but performed
these duties for Lewandowski except for a time in April or
May 1991, when she spent up to 6 hours a day as a replace-
ment for Production Planner Jackie Kobs. A few weeks prior
to the election Ki-Ki Nimtz took over that job. Unlike pro-
duction employees, Ruth Zinns was employed principally as
an office clerk from the period of September 1990 to the
present. Like those in management, Zinns parks in the en-
closed garage, has keys to the facility, and is a salaried em-
ployee. Zinns normally works in the administrative offices
area separate from the production and maintenance area, she
is not required to wear a uniform, and unlike unit employees,
she was entitled to and received a vacation in August 1991.
Zinns was authorized to sign documents on behalf of the
Company required to be sent to the State for the Private In-
dustry Council. She was also responsible for compiling con-
fidential payroll information such as contained on the ‘‘Em-
ployee Rate Master’’ which includes employees names, their
clock numbers, their shift, rate of pay, hours worked for the
month, bonus dollars earned, whether they were entitled to
a bonus, and the bonus dollars paid as well as all health in-
surance forms for employees and management personnel.
Although Zinns may have had a ‘‘dual function’’ role in
April or May, she left that position well before the election
on June 21, and she has functioned principally as an office
clerical, a classification excluded from the unit. Moreover,
Zinns is a confidential employee who does not share a suffi-
cient community of interest with the bargaining unit workers
inasmuch as she works in a physically distinct location with
little interchange with production and maintenance employ-
ees and has apparent authority to sign commitments for the
Employer and to assist in effectuating management policies.
Accordingly, the objection to her ballot is sustained.
Inna Strupinsky began work on June 16, 1990. She has a
degree in chemistry (from the Soviet Union) and uses this
knowledge in her operations in Respondent’s waste water
treatment department. She is not supervised by anyone con-
nected to the production, warehouse, or maintenance depart-
ments. Her duties and responsibilities, since September 1991,
include analyzing chemical waste and performing analytical
control of all chemical plating waste. Prior to that time, she
operated the waste water treatment facility exclusively. She
supervised the waste water treatment facility and maintained
the necessary levels of chemicals by making the correct addi-
tions to achieve the best results for the waste water treat-
ment. In doing so, she communicated with Al Niesen, who
was a supervisor and in care of chemical analytical control
for the plating facility and also for the waste water treatment
along with Strupinsky. Niesen was subsequently replaced
with John Harvey and Dave Anderson. Harvey’s job was
permanently located in the chemical lab as is Strupinsky’s,
and Anderson is a chemical engineer who is located on the
first floor in a special office in the production area where he
takes care of the plating facility. Strupinsky gives instruc-
tions about the appropriate amount of chemicals to be added
for the treatment of the waste water from the plating depart-
ment to Engineer Anderson; however, she does not deal with
any workers in the production department. Strupinsky is sala-
ried, and she earned and received a vacation (2 weeks in
1992). She wears a lab coat, not a uniform, and works in an
area and at hours different from those of the production em-
ployees.
Under these circumstances, I find that prior to August
1991, Strupinsky’s work as a technician (which thereafter
evolved to that of a chemist) was that of a professional em-
ployee (excluded from the unit description), with specialized
skills necessary for the performance of a job as a chemist.
Although the chemical analysis that she performs is crucial
to the production process, there is no interchange between
her and the other employees, and she otherwise lacks a com-
munity of interest with the unit employees. Accordingly, the
objection to her ballot is sustained.
Paul Plonka, Stephen Iggens, and Jason Rothwell were all
students working as part-time employees at the time of the
election.
Plonka is currently employed as a systems analyst at
ABQC. He was first employed by the Respondent on June
18, 1990, as a warehouse worker. His father was the initial
president of ABQC. Plonka attended Marquette University
between 1988 and May 1992 studying organizational man-
agement, skills he embraced in his current position with
ABQC as a systems analyst. Plonka testified that during a
particular period of time, he couldn’t ‘‘give you exact times
that I worked during that period.’’ However, the records for
that period reflect that Plonka worked no hours during the
week of January 7–12, 1991; no hours during the week of
January 28–31, 1991; and again no hours during the week
of February 4–9, 1991. Payroll records from December 1990
also show that he only worked 7 hours during the week of
December 7, and 6 hours the following week.
While in school, Plonka received time out for spring
breaks, time off for exams, and had a flexible schedule to
accommodate school needs and other personal needs. If he
wanted this same time off from his job he had to tell Super-
visor Valente up to 3 days in advance, but when he didn’t
give 3 days’ notice and wanted time off for spring break, it
still was approved. Plonka initially earned $5.50 an hour and
was evaluated and received a wage increase on August 6,
1991, retroactive to June 18 (3 days prior to the NLRB elec-
tion held on June 21). As a warehouse worker, Plonka’s
wage was increased to $6.57 an hour which was only 3 cents
less than what full-time leadpersons received.
Iggens was a part-time employee (personally recruited by
then President Plonka) from June 18, 1990, through July 7,
1992. He was initially employed as a warehouse employee
until the summer of 1991 when he became a dock leadman
on July 1. He went back to the warehouse until March 1992
when he became a customer service assistant until the end
of his employment on July 7, 1992. All through his employ-
ment, Iggens was enrolled as an accounting major at the Uni-
versity of Milwaukee. He initially earned an hourly rate of
pay of $5.50 an hour until August 6, 1991, when he received
a wage increase to $7.23 per hour retroactive to June 18 (3
days before the election). His work schedule accommodated
his academic schedule and, although he had scheduled hours,
479AMERICA’S BEST QUALITY COATINGS CORP.
6 The Respondent also contends that no animus was specifically
tied into the subsequent discharges of Proffitt and Mills (the suspects
alleged to be responsible for the sabotage); however, Mills and
Proffitt were two of the three principal spokesmen who presented the
employees’ petition to management and, in any event, in cir-
cumstances involving a mass or group termination, there is no need
that each individual be identified specifically as a known union ac-
tivist for the General Counsel to substantiate his already strong
showing that Respondent’s overall action was discriminatorily moti-
vated and that this discrimination affected everyone in the group.
See the Board’s discussion in the Vemco case, supra.
he did not always work them. He sometimes stayed overtime
and sometimes took leaves of absence.
Rothwell was a part-time employee between May 1991
and May 1992 while a student initially at the University of
Wisconsin Milwaukee and later at Waukesha County Tech-
nical College in Pewaukee, Wisconsin. He primarily did
cleaning in all departments and was supervised by Keith
Stanosz. His work schedule accommodated his academic
schedule and he would take off for exams.
Although seasonal, casual, or temporary employees may
be considered not to have a substantial community of interest
with other unit employees, regular, part-time employees are
sometimes distinguished from the former category and con-
sidered to have sufficient interest in conditions of employ-
ment to be eligible to vote. Here, although the three student-
employees worked irregular work schedules, they were regu-
lar part-time employees who worked consistently over an ex-
tensive time period. Here, the parties entered into a
preelection stipulation that provides that: ‘‘regular part-time
production and maintenance employees, including warehouse
employees’’ are included in the bargaining unit. Under these
circumstances, I find that Plonka, Iggens, and Rothwell are
the employees the parties meant to be covered by this stipu-
lation.
When parties have entered into a preelection stipulation
concerning the composition of the bargaining unit, the agree-
ment is controlling in determining employees’ eligibility to
vote in the election and, accordingly, I find that the Charging
Party’s challenge to their ballots must be overruled.
B. The Mass Layoff and Discharge of Certain
Employees
The principal issue in these proceedings is the matter of
the layoff/discharge of several employees. In a case of this
nature, applicable law requires that the General Counsel meet
an initial burden of presenting sufficient evidence to support
an inference that the employees’ union or other protected,
concerted activities were a motivating factor in the employ-
er’s decision to terminate or lay off the employees. Here, the
record shows that Respondent made a mass layoff (except for
3 leadpersons) of all its first-shift plating department employ-
ees, the department with the greatest number of union activ-
ists, within hours of a group delivery by 30 employees of a
petition demanding promised raises and vacations. The peti-
tion was rejected by President Petersen with a comment that
the petition meant nothing to him and that he would do noth-
ing until the Board ruled on pending election challenges and
objections. These objections include allegations of improper
preelection conduct, discussed below, which tend to show
independent violations of the Act and are indicative of
antiunion animus.
Most specifically, immediately after the mass layoff, Re-
spondent sent to each laid-off employee a letter, dated July
19, in which Petersen said he was discontinuing first-shift
operations because of a ‘‘series of very serious acts of mis-
conduct including the drainage sabotage’’ until he was sure
that the ‘‘risk of reoccurrence’’ was eliminated.
One of the other acts of misconduct mentioned was certain
employees invading ‘‘my office’’ and making ‘‘demands re-
garding wages and vacations,’’ and he added, ‘‘None of this
is acceptable.’’ He also offered a reward of $250 for infor-
mation identifying the persons responsible and said such per-
sons would be discharged and referred to the police for pros-
ecution.
Under these circumstances, Petersen’s letter clearly lists
the employees’ demands regarding wages and vacations as
one of the ‘‘acts of misconduct’’ that motivated his dis-
continuance of the first-shift plating. That concerted activity,
principally by union employees, was protected conduct and,
as Petersen’s letter admits, it was a consideration in Re-
spondent’s actions and it clearly is more than sufficient to es-
tablish the General Counsel’s prima facie case regarding mo-
tivation.
Finally, the record as a whole supports a conclusion that
Respondent’s asserted justifications for its actions are
pretextual (see the following discussion), and therefore also
demonstrates unlawful motivation. See Dorothy Shamrock
Coal Co., 279 NLRB 1298 (1986).
Under these circumstances, I find that the General Counsel
has met his initial burden by presenting a prima facie show-
ing, sufficient to support an inference that the employees’
union activities were a motivating factor in Respondent’s de-
cision to lay off and delay the recall of all of its employees
in the day-shift plating department.
These factors establish antiunion animus on the part of the
Respondent. Moreover, recognition of the timing of the lay-
off right after a concerted action and only a few weeks after
the election, the protracted delay and irregularity in the recall
process, and the pretextual defense, all combine to warrant
a conclusion that the General Counsel has established a
strong prima facie showing that union activity was a motivat-
ing factor in the Respondent’s decision to lay off or other-
wise discriminate against this group of employees. See
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
Once the General Counsel establishes a prima facie case,
the burden shifts to the Respondent to show that it would
have taken the same action even in the absence of union con-
siderations. In light of the General Counsel’s strong prima
facie showing, the Respondent’s burden here is substantial,
see Vemco, Inc., 304 NLRB 911 (1991). Accordingly, the
testimony will be discussed and the record evaluated to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried his overall burden.6
Respondent’s defense is based on its contention that it had
a legitimate reason for its actions because of the egregious
acts of sabotage committed by employees. It also defends its
method of selecting employees for recall.
Here, I find that Respondent’s actions after its initial re-
sponse to the potential emergency-type situation created by
the apparently repeated acid drainage into basement storage
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tanks, and the reasons therefor, are generally implausible, in-
herently improbable, and uncorroborated by supportive evi-
dence, and therefore clearly support an inference that they
are pretextual.
First, the emergency clearly was over by the next day. The
only preventative or investigative action taken by manage-
ment was to bar all the day-shift employees’ (except
leadmen) from returning. No public safety authorities were
contacted by Respondent despite the alleged seriousness of
the event. No police or investigative health or safety agency
or private investigative service was notified or asked to find
the specific cause of the drainage or to recommend corrective
action. Three days after being locked out, the employees
began informational picketing. Three days later President Pe-
tersen sent these employees a letter saying that ‘‘due to cur-
rent production levels in the Plating department’’ he was
‘‘unable’’ to bring back the entire work force and would fill
only production required positions and then with the most
qualified individuals.
In fact, production remained essentially the same (except
for one production item plated on one particular machine).
But, rather than bring back any of the first shift, Respondent
immediately, and from July 19 forward, utilized the three
leadpersons and the second-shift plating department employ-
ees on modified hours, while requiring these employees to
work as much as 4 hours overtime per day. Then, when em-
ployees were selectively recalled, they were not recalled
based on what machine they had been operating prior to the
lockout, but returned under a new recall policy which pur-
ported to include ‘‘qualifications,’’ ‘‘attitude,’’ and ‘‘senior-
ity if other factors are equal.’’
In fact, there is no showing that production demands or re-
quirements underwent any substantive change on or after
July 19. Except for possibly one machine, there was no
change in Respondent’s basically stable plating production
and Respondent’s allusions to production demands as a rea-
son to prolong the layoffs clearly is nothing more than an
attempt at misdirection. This was not a legitimate reason and
Respondent’s attempt to portray it as such is pretextual and
indicative that it is attempting to mask its true motivation.
When recalls began, Hispanic and Caucasian employees
generally were recalled prior to black employees (who gen-
erally were identifiable as union supporters), despite the fact
that they generally had more overall experience on a broad
range of plating machines, more seniority, and had often
helped train the newer employees who were recalled in their
stead.
Other than being physically and verbally denied their ad-
mittance to work on July 19, these employees received no
written layoff notice, but were sent a letter dated July 19,
saying the Company was discontinuing first-shift operations
because of ‘‘the drainage sabotage’’ until it was sure that the
‘‘risk of reoccurrence’’ was eliminated. This letter also of-
fered a reward of $250 for information identifying the per-
sons responsible and said such persons would be discharged
and referred to the police for prosecution.
Employee David Roark responded to Respondent’s request
for information (admittedly in hopes of getting his job back),
and gave an affidavit to the Company on July 22 in which
he said he saw Proffitt coming away from his workstation,
at 9:30 a.m. on July 18 and going by the area of the muriatic
acid drain valve and saw Mills then join him at Proffitt’s
workstation for a conversation.
Daniel Roark, David’s cousin, gave an affidavit on July 29
that said Mills confronted his cousin David at the union hall
after they had been sent home on July 18 and that after
David said the drainage was dangerous, Mills got mad and
that later Proffitt and Mills were joking about now getting
their vacations.
In contrast to Daniel’s statements, however, David said
nothing about Mill’s getting mad either in his affidavit or in
his testimony.
Mills and Proffitt were called in and questioned, but each
denied any involvement. Despite its statement in its letter to
employees, Respondent did not refer the matter to the police.
It did, however, suspend both ‘‘suspects’’ on July 27, and it
then seized on the speculative circumstances noted by the
Roark cousins and thereafter sent letters of termination to
both Mills and Proffitt, two of the three most vocal spokes-
men who had presented wage and vacation demands to Peter-
sen on July 18.
Under these circumstances, I conclude that the Respondent
has failed to show that it conducted any meaningful inves-
tigation or had any valid basis other than rank speculation
(Roark’s circumstantial placing of Mills and Proffitt away
from their workstations is at 9:30 a.m., when it appeared the
acid drainage occurred later, after the Union’s presentation of
the petition to management, when 30 or so employees were
away from their workstations) that would warrant the dis-
charge of both Mills and Proffitt, and I further conclude that
Respondent’s specific discharge of these 2 employees is
shown to have been motivated by their union activities and
to be in violation of Section 8(a)(1) and (3) of the Act, as
alleged.
While Respondent was in the process of terminating Mills
and Proffitt, it recalled both David and Daniel Roark on July
29, shortly after they gave affidavits. Respondent told David
that he would be recalled after they got a part for ‘‘his’’ ma-
chine, and he was then brought back to operate the same ma-
chine he had been operating (he subsequently transferred to
another department at a slight increase in pay).
No evidence was presented to indicate that Respondent in-
stalled locks on valves or took any other security measures
(other than failing to recall many employees) that would pro-
tect the acid tanks from unauthorized drainage and therefore
eliminate the ‘‘risk of reoccurrence’’ that it was said to be
so concerned about.
In addition to the three leadpersons, those from the second
shift, and the recall of the Roark cousins, Respondent also
recalled Henry Burrows, Ronald Erdman, Chris Johnson, and
Eric Kamauga on July 29. Vincinte Lepe, Francisco Sigala,
and Maria-Carmen Olea were all recalled on August 1 or 3
even though the latter three, and Johnson, had the least
amount of seniority and experience, having each been an em-
ployee only since mid-May, a little over 2 months
(Kamauga, an inspector, and Burrows were black employ-
ees). On July 18 there had been 23 day shift plating depart-
ment employees including the 3 leadpersons. As of August
26 only 9 of 20 had been recalled.
Black employee Jasper Hicks, who had worn union but-
tons during the campaign and was a member of the organiz-
ing committee, was among those laid off. Hicks left work
with his supervisor’s permission immediately after the peti-
481AMERICA’S BEST QUALITY COATINGS CORP.
7 I find that Supervisor Stanosz’ testimony that no changes oc-
curred is not creditable and is contrary to the weight of the evidence.
8 For example, several of the Hispanic employees who were hired
in May, just prior to the establishment of the voter eligibility list,
began work prior to the results being received while most previous
job applicants had to wait for the results before starting.
tion was presented and was not there when the acid drainage
occurred nor was he there to be sent home with its other em-
ployees. Despite his absence when the ‘‘sabotage’’ occurred,
he was denied admission the next day and was not recalled
until December 3, after he successfully passed a drug screen-
ing.
Under all these circumstances, and especially in view of
Respondent’s consistent production requirement, its scheme
to cover these needs with changed hours for second-shift em-
ployees,7 the use of leadpersons, limited recall, and extensive
overtime, and its inconsistent recall procedures that appeared
to often disregard experience and otherwise often appeared to
omit blacks who were union sympathizers, I conclude that
the Respondent has failed to show that its lockout of an en-
tire shift of workers and its subsequent delayed and selective
recall of employees were dictated by legitimate business rea-
sons. I further find that the various proffered reasons for its
extreme reactions to the act of sabotage are pretextual and
do not rebut the General Counsel’s showing that its actions
were motivated by the employees’ union activities, especially
the presentation of a petition demand for promised wage in-
creases and vacation which occurred just prior to the layoff.
Here, Respondent seized on a seemingly legitimate excuse to
purge the plant of the most significant body of union sup-
porters and, accordingly, I find that the Respondent’s mass
layoff and prolonged or delayed failure to promptly recall
these employees is shown to have violated Section 8(a)(1)
and (3) of the Act as alleged.
This conclusion is reinforced by Respondent’s related and
contemporaneous discriminating treatment of employees
Mills and Proffitt, discussed above, as well as its similar ac-
tions in requiring a drug test before recall and its discharge
of union activist Lisa Nixon when she allegedly failed that
test after finally being recalled in late October.
Nixon, like Mills and Proffitt, was black, a long-term em-
ployee, a member of the Union’s organizing committee, a
principal spokesman at the presentation of the wage and va-
cation demand petition just prior to the mass layoff, and one
who engaged in subsequent picketing of Respondent’s facil-
ity. On November 7, about a week after being recalled and
tested, she telephoned the Company and was told by Petersen
that her drug test showed positive and that she could not
work at ABQC. Nixon told Petersen that positive results
were ‘‘impossible’’ and that she was not a drug user. She
asked Petersen to provide her with a written copy of the drug
test results, having previously been told at the doctor’s office
she could get a copy from the Employer. Petersen said he
did not have a copy. Nixon asked what kind of drugs were
alleged and Petersen said he did not know but later that day
was told the drug was cocaine. Nixon again protested that
she was not a drug user but, despite her request, she was
never provided a copy.
Respondent acknowledges that Nixon was terminated ef-
fective November 7. Her ‘‘assignment’’ form, from Respond-
ent’s personnel records, is checked as ‘‘project completed’’
rather than showing her ‘‘terminated’’ or with any other rea-
son, and it otherwise is marked affirmatively as ‘‘Eligible for
Rehire.’’ A copy of her drug test was not in her file and a
copy offered into evidence as Respondent’s Exhibit 12 was
objected to by the General Counsel following Petersen’s tes-
timony regarding a phone conversation in which he said the
doctor told him the test was positive for cocaine. I affirm my
ruling that this testimony is admissible (it is not hearsay but
is a verbal action which is the asserted informational basis
for Petersen’s further actions in affecting Nixon’s termi-
nation, and it is not for the truth of test result). I also accept
the General Counsel’s request to withdraw his objection and
his related motion to receive Respondent’s Exhibit 12, and
it is received into evidence.
No explanation was given as to why the test report was
not given to Nixon or why it was not in her file. The test,
however, on its face states that the reason was for ‘‘pre-em-
ployment’’ and that the collection date was ‘‘November 18.’’
The results (positive, cocaine) were dated ‘‘November 27.’’
Here, the physical test report is inconsistent with the date
of the actual ‘‘collection’’ and cast into doubt the validity of
Petersen’s phone receipt of the test results on or about No-
vember 7 and lend credence to Nixon’s consistent denial of
drug involvement. Respondent’s entries on her personnel
records also are inconsistent and, in the light of the overall
strong showing of motivation against Nixon and others be-
cause of union activities, support an inference that Respond-
ent has relied on pretextual reasons in its apparent desire to
avoid recalling a strong union supporter. Moreover, I find
that Respondent’s assertion that Nixon was denied recall
under its drug policy also is pretextual.
The Company’s asserted drug policy states:
The company reserves the right to request an
Alcohol/Drug screening prior to employment or after
being laid off for a substantial period of time.
Although there was testimony adduced that indicates that the
Respondent did not consistently strictly embrace this policy,8
the record here shows that Nixon would not have been laid
off for a ‘‘substantial’’ period were it not for the Respond-
ent’s intervening illegal acts in first laying off the entire first-
shift plating and then failing to timely recall employees from
layoff for discriminatory reasons. In this connection it is
noted that Nixon, in particular, was shown to have been an
experienced, cross-trained employee capable of operating al-
most all the department’s machines. Otherwise Respondent
has shown no persuasive or valid reason she was not recalled
until late October or why less experienced, less senior em-
ployees were recalled ahead of her in July and August (when
no additional drug test was given). Inasmuch as the Respond-
ent’s use of an additional drug test is not based on a valid
layoff for a substantial period, it cannot be the basis of a
valid reason for termination. Therefore, for both of the rea-
sons discussed above, I conclude that Nixon’s termination is
not shown to be founded on valid business reasons but was
motivated and caused by her and the other employees’ in-
volvement in union activities, and I find that Nixon’s termi-
nation is shown to have violated Section 8(a)(1) and (3) of
the Act in this respect, as alleged.
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Alleged Preelection Violations of Section 8(a)(1)
On April 19, the day after Respondent declined to recog-
nize the Union, Petersen met with all employees and an-
nounced that, for an indefinite period, they were being trans-
ferred to Staff Right’s payroll (instead of ABQC’s payroll),
due to ‘‘cash flow’’ problems. Petersen testified he was not
sure of the date he met with the employees regarding this
payroll transfer matter and guessed ‘‘between April 7 and
12,’’ or somewhere in that area. Several employees testifying
estimated the date as being approximately 1 week after April
12, or specifically on or about April 19, and I credit that spe-
cific testimony (a letter from Staff Right to Respondent,
agreeing to the proposal is undated). The announcement
made employees very upset, very scared because they felt
that they were now ‘‘temporary’’ employees of Staff Right
again instead of having the ‘‘permanent’’ status attained with
ABQC. As ‘‘temporary’’ employees, a status most had pre-
viously held with Staff Right when first hired, they felt they
no longer possessed job security or protection and, as tem-
porary employees, they felt they could not get car or other
loans with paychecks from a temporary service.
Despite the fact that Respondent contemporaneously exe-
cuted the purchase of another company, it presented evidence
that it did have a cash flow problem that was alleviated by
its temporary use of Staff Right’s payroll services. This
issue, however, does not depend on a motivation—business
reasons—criteria for its resolution.
The question is whether this action (i.e., a taking away of
permanent employee tenure status and reversion to status as
only a temporary employee) had a reasonable tendency to be
viewed as a reduction in benefits or a scare tactic that has
an influence and effect on employees that interferes with
their rights under Section 7 of the Act. Here, Respondent’s
action was taken contemporaneously with its rejection of the
Union’s recognition demands and it was not accompanied by
any verbal or written assurances that the employees’ tenure
or status as permanent employees would not be affected by
the action. Otherwise, Respondent made no effort to repudi-
ate the unlawful impression that was conveyed to the em-
ployees. Accordingly, I find that the announcement and ac-
tion in this regard interfered with the employees’ Section 7
rights and violated Section 8(a)(1) of the Act, as alleged.
Shortly after the payroll change announcement, Supervisor
Keith Stanosz had a conversation with several warehouse
employees in their work area. Robert Nixon, Calvin Jones,
and Timothy Mays confirmed that in the conversation, Mays
asked Stanosz why were the ABQC employees switched to
the Staff Right payroll, and Stanosz answered that ‘‘they was
trying to scare us off of the Union’’ or that it was ‘‘just to
scare us.’’ He also said that ‘‘as a matter of fact we don’t
need no Union’’ and then asked who was behind or who was
trying to form the Union. When asked by Respondent’s
counsel if he recalled any of this conversation, ‘‘where you
discussed the reason for transfer of the employees to Staff
Right?’’ Stanosz replied: ‘‘I had so many people ask me
questions about it, I don’t remember specific things.’’ He
then was asked: ‘‘Do you recall whether or not you ever told
them that the purpose was to scare off the union?.’’ He an-
swered, ‘‘No, I never told anybody.’’ Inasmuch as Stanosz
had no recall of the conversation, I find the corroborative
testimony of the three employees to be more convincing than
the bare denial Stanosz made in response to Respondent’s
leading question, and I credit their testimony in this respect.
These remarks by Stanosz, at the start of the union cam-
paign, were made under a totality of circumstances that un-
derscores the threat implied in the employees’ perceived de-
motion in status from regular to temporary employees, and
the accompanying interrogation has the necessary indicia to
show coercion. Accordingly, I find that Supervisor Stanosz’
remarks are shown to have violated Section 8(a)(1) of the
Act in each of these respects, as alleged. Compare Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
In late April Mills, Proffitt, and Nixon spoke for a group
of 20 or more employees where they presented a letter to Pe-
tersen asking for recognition and demanding a meeting to
discuss what was happening. Petersen responded that the pe-
tition meant nothing to him and that he didn’t recognize the
Union. Respondent thereafter executed an admitted ‘‘game
plan’’ to resist the Union’s organizing attempt, which plan
included the hiring of labor counsel, letters mailed directly
to employees, and speeches to employees once and some-
times twice weekly.
After one speech (between May 13 and 27), Stanosz spoke
to Sonny Anderson in a manner suggesting interrogation, a
matter not alleged in the complaint. The General Counsel
asked that it be embraced within his motion to conform the
pleadings to the record; however, I find that any consider-
ation of this suggested interrogation would be needlessly du-
plicative and cumulative and, therefore, I find it unnecessary
to rule on this matter as an alleged violation of Section
8(a)(1).
Former employee Dale Wiegert testified regarding several
conversations with Staff Right Owner James Lazear alleging
that he made several remarks alluding to anti-‘‘Union’’ type
remarks attributable to its employee hiring relationship with
the ABQC. Lazear’s testimony contradicted Wiegert. Wiegert
went out of his way to tell Respondent he had voted
‘‘against’’ the Union, and he quit shortly after the election.
Otherwise, he gave inconsistent and highly improbable testi-
mony. Lazear’s testimony and my evaluation of Wiegert’s
overall testimony and demeanor tend to show a degree of in-
stability and unreliability on Wiegert’s part that shows his
testimony to be unreliable and unpersuasive. Accordingly, I
cannot find that anything he said is entitled to any persuasive
weight and, therefore, it does not support any allegations of
unfair labor practices.
Terrance Schuster was a self-described ‘‘management
labor lawyer’’ retained by Respondent ABQC in conjunction
with the union organizational campaign. Although he gen-
erally denied having ‘‘interrogated’’ employees Robert Per-
son and Keith Mills, the overall evidence clearly and strong-
ly suggests otherwise. Schuster testified that he walked
around on the plant floor ‘‘four or five times’’ prior to the
June 21 election and said he ‘‘may have told employees that
the Union was not in his/her best interests’’ and that it ‘‘is
a possibility’’ that he told employees ‘‘things will get better
at the plant.’’ He was involved in helping with the writing
of the speeches given to employees, and he was with Peter-
sen when employees were told management was against rep-
resentation by the Union. He also admitted that he did speak
to Mills and Robert Person during worktime on the shop
floor. He reluctantly admitted that ‘‘it is possible’’ that it
was he who had approached them and he agreed that he
483AMERICA’S BEST QUALITY COATINGS CORP.
talked about basketball and ‘‘may have’’ told them he used
to work in a plant like the Respondent’s. Robert Person testi-
fied that approximately 2 weeks prior to the June 21 election,
Schuster approached him at his workstation and:
A. He asked me how did I feel about the union. And
I told him I feel that we needed one because the com-
pany said one thing and do another thing. And he told
me that would get better, and he walked away.
Q. Do you recall him saying anything else?
A. No, he say he used to work in a place like this
and things would get better, and he walked away.
Mills testified that in early June, Schuster also approached
him in the plating department asking if he still felt the same
way about the Union? Mills replied he still supported the
Union and was not going to change his mind. Schuster then
allegedly replied that if there was a union at ABQC, ‘‘your
wages will go down’’ and began talking to Mills about bas-
ketball. The latter statement was not alleged as a violation
in the complaint, and I find it unnecessary to rule whether
this is a violation of the Act for the reasons previously noted
above.
Person was not known at that early time as an open and
active union supporter, and I find that the totality of the cir-
cumstances regarding his interrogation are coercive and are
shown to have interfered with his Section 7 rights in viola-
tion of Section 8(a)(1) of the Act, as alleged, see Sunnyvale
Medical, supra. Mills, however, was an open and active sup-
porter and, as I find it improbable that Schuster actually
made any additional comment about wages going down, I am
not persuaded that the circumstances surrounding the ques-
tion to Mills support a conclusion that Respondent violated
the Act.
A number of other alleged preelection acts of interrogation
also were alleged to have been made by President Petersen
and Supervisors Stanosz and Sheryl Valente. Jeffrey Heppe,
a former employee, testified that he and several other ware-
house employees were approached by Warehouse Supervisor
Valente, on about June 19, in Glearon Scott’s work area, and
that Valente ‘‘asked us if we were voting yes for the
Union.’’ He further testified Valente stated that ‘‘if the
Union got in that she would have to rework our jobs, that
we’d have no more free time and she’d have to write us up
for every little thing.’’ Additionally, ‘‘she said she would
have to add extra job duties . . . to make up for our free
time that we had,’’ and that if the Union got in they would
have to stay at their workstations during worktime. Heppe
also testified that she frequently asked him what he was
going to do (about the Union). Employees Scott and Steve
Grady each testified in a similar fashion and confirmed the
thrust of the conversations. Valente testified that she had fol-
lowed the instructions from the company attorney that she
could not ask employees how they felt about the Union. She
said Scott called her over and asked her why she didn’t like
the Union. She told him and continued an exchange with
other employees as they came back from a break and joined
in the conversation.
Valente’s testimony minimizes the nature of her part in the
conversation, and Respondent contends that it was a ‘‘cas-
ual’’ expectable conversation between a supervisor and em-
ployees who work closely together and therefore acceptable
as similar to that involved in Sunnyvale, supra. Here, how-
ever, I find credible testimony that Valente’s retorts went be-
yond casual remarks and on several occasions alluded to the
imposition of more restrictive working conditions if the
Union was selected. Moreover, Valente engaged not only in
this one conversation but had repeatedly made earlier inquir-
ies regarding the Union. Accordingly, in the context of her
continuous and repetitious pursuit of the subject and the im-
plicitly threatening nature of her responses about more re-
strictive working conditions, I find that the totality of the cir-
cumstances were coercive, and I conclude that the conversa-
tion interfered with its employee rights and violated Section
8(a)(1) of the Act with respect to both her interrogation and
threats, as alleged.
Employee Jasper Hicks, who admittedly wore a union but-
ton, testified that during the first week in June, Respondent’s
president spoke to him at his workstation and that:
A. We . . . were just talking about the union and
[Petersen] asked me what I think about it and how I felt
about it . . . so I told him that . . . it would help us
get more money and better benefits . . . and . . . he
said that they felt they were treating the employees fair-
ly, so he really didn’t think that we needed the union
in there.
Q. Okay. And did he raise the subject of the union
in this conversation.
A. Yes.
This action by Respondent was not part of the allegations in
the complaint in this case, and I will deny the General Coun-
sel’s motion to amend to cover this situation inasmuch as it
involves a cumulative allegation. I note, however, that the in-
terrogation took place at Hicks’ workstation and was made
by the company president, a circumstance that tends to show
coercion and, otherwise, it shows that the Respondent, at the
highest level of management, was willing to walk and cross
the edge of the line between casual and coercive conversa-
tion in order to attempt to influence the forthcoming election.
The fact that the company president and legal counsel en-
gaged in such behavior makes it that much more plausible
that Supervisors Valente and Stanosz bluntly questioned em-
ployees about why they wanted a union.
Mills testified that about a week or so before the June 21
election, Supervisor Stanosz approached him in the ‘‘roto
finish’’ work area, saying:
‘‘What do you want a fucking union in here for any-
way? It’s not going to help you at all.’’ And I said,
‘‘Well, it is going to help me, you know, help me, you
know, get me a raise and stuff like that.’’ And then he
said, ‘‘You’re lying, Chuck. You’re a liar, Chuck,’’ or
something of that matter, and then he turned around
and started walking away.
Employee Virginia Boyde testified that while working on
first shift in the plating department a week or two prior to
the June 21 election, she developed painful cramps and went
outside for fresh air, helped by fellow employee Lisa Nixon,
Stanosz approached them and, after ascertaining what the
problem was, asked if he could ask them a question. Nixon
testified, ‘‘that he asked were we for the [U]nion and what
we [thought] about the [U]nion.’’ When they answered, he
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said, ‘‘why?’’ They answered: ‘‘for respect . . . because of
the favoritism that was going on, because we did not have
job security, because of pay, wages . . . no good health in-
surance . . . because the company was not fair.’’
Matthew Emer signed and was involved in the late March-
early April circulation of the petition of union interest. He
saw Stanosz with the petition in his possession and in a posi-
tion to see the names thereon. He signed a union card on
April 12, he attended union meetings, and he signed at least
one distributed union handbill.
On about June 18, Emer, who was a machine maintenance
mechanic under the supervision of a supervisor other than
Stanosz, received a warning for his attendance. Emer testi-
fied that on the same day, as he was leaving the plating de-
partment, Stanosz stopped him and ‘‘asked me if I realized
how strict the attendance policy would be if we got a union
in there, that [ABQC would] go to the letter.’’ Stanosz was
not asked about this conversation when he was called as Re-
spondent’s witness. Emer, however, was questioned on this
point on cross-examination by the Respondent and the Gen-
eral Counsel ask that it be embraced in his motion to amend
the pleadings and found to be a violation of the Act.
Stanosz admits that he questioned the two women but only
to the extent that he asked them if they thought ‘‘he’’ was
unfair to workers as alleged against the Company in a union
leaflet that had been circulated earlier that day, and Respond-
ent urges that it was just a casual conversation; however, I
find that Stanosz went beyond the bound of casual conversa-
tion, and I conclude that the timing of the interrogation of
two members of the union committee shortly after the Union
had distributed a leaflet on the subject of his questions had
an inherent coercive effect that would tend to interfere with
their expression of similar positions, and I find it violated
Section 8(a)(1) of the Act as alleged.
With respect to Stanosz’ attendance remarks to Emer
(which stand unrebutted), I find that they were coercive and
threatening in that they were made by the supervisor of an-
other department (where Emer went to work on machines),
who had apparent knowledge that Emer’s own supervisor
had disciplined him for attendance and were made only 2 or
3 days prior to the election and on the same day that he had
received the warning. Accordingly, I find that this threat of
a more severe working condition if the Union was selected
violates Section 8(a)(1) of the Act, and I accept the General
Counsel’s motion to amend the complaint in this regard.
The General Counsel asked that a statement by Supervisor
Valente also be considered a threat. The alleged remark (not
alleged in the complaint) was to the effect that the Company
‘‘could’’ (not would) drag its feet on contract negotiations
and was in response to a question from an employee. Under
these circumstances, I am not persuaded that it would con-
stitute a violation of the Act, and I find it unnecessary to
consider it as part of the complaint.
Finally, on June 17, just 4 days before the election, Peter-
sen told employees that there wasn’t a cash flow problem
any more, but that because of the ‘‘[NLRB] election, every-
thing was tied up . . . that they couldn’t give out any raises
(or vacations), now because the election was pending . . .
and that they would get the raises and paid vacations ‘down
the road.’’’ Prior to July, Respondent did not grant raises,
merit wage reviews, or paid vacations to any bargaining unit
employee.
Witnesses for the General Counsel consistently testified
that when they were hired they were told that they would get
or be eligible for raises and vacations after 1 year, a general-
ized fact not disputed by Respondent. Respondent argues that
it is the question of whether there was a promise or a guar-
antee that is at issue, and that was Petersen’s constant posi-
tion that neither he nor his predecessor ever ‘‘promised’’ em-
ployees 1 week of paid vacation after a year, but that they
indicated it was ‘‘likely’’ that there would be raises and va-
cations tied into 1 year of service.
It is well settled that an employer in the midst of a union
organizing campaign is required to proceed as it would have
done had an organizing campaign not been in progress. See
Russell Stover Candies, 221 NLRB 441 (1975), and Gates
Rubber Co., 182 NLRB 95 (1970). Here, Respondent is
shown to have told new employees that they would get or
be eligible for raises and vacations after a year’s service. Not
only did it fail to attempt to implement its asserted policy
when requested to do so by the employees, but it affirma-
tively put the granting of these expected benefits on indefi-
nite hold specifically because employees were seeking union
representation. I find that this delay is unreasonable, and that
it constitutes an action that interfered with employee Section
7 rights to freely choose a bargaining representative. Accord-
ingly, I find that its conduct in asserting an indefinite delay
in implementing its plan violated Section 8(a)(1) of the Act,
as alleged. See the Russell Stover case, supra.
D. Objections
In view of the above findings of violations, I also find that
to the extent they parallel the Union’s objections such objec-
tions are sustained. Those objections not otherwise discussed
and sustained below are considered not to have been proven
and are overruled.
Objection 10—This objection alleges that the Company
failed to timely post the election notice and is based on em-
ployee Mills’ testimony that he didn’t see one in the plating
department until the day before the election. Ruth Zinns
credibly testified that she posted three of the notices, includ-
ing one in plating, about 1 week before the election and that
she read and followed the instructions from the Board as to
the posting requirements. When one notice became defaced
in the cafeteria about 2 days before the election, she took it
down and probably replaced it.
The record has no corroborative support for Mill’s appar-
ent failure to observe the notice in the plating department
until the day before the election and as there is no claim that
anyone failed to get notice of the election or that anyone else
observed anything that would contradict Zinns’ recollection,
I find that the objection should be overruled.
Objections 14 and 17—These objections relate to alleged
antiunion statements by Staff Right’s half owner, Jim Lazear,
particularly to Dale Wiegert prior to his employment. Lazear
testified that he had never received any instructions to screen
applicants for their union beliefs either before or after the or-
ganizational campaign had begun but that once the campaign
began, he informed applicants that there was such a cam-
paign in progress and what it entailed in order that they
would make an informed decision as to whether they wanted
to be employed.
Lazear also denied any further discussion with Wiegert or
others about the Union. As noted above, Wiegert’s demeanor
485AMERICA’S BEST QUALITY COATINGS CORP.
and overall testimony was not reliable or persuasive. I credit
Lazear’s testimony and I therefore find that there is no credi-
ble or persuasive support for these objections and they are
overruled. To the extent that the General Counsel’s motion
to amend the complaint to include these events as alleged
violations, I further find that the record contains insufficient
probative evidence to substantiate his claim.
Objections 16 and 18—These objections contend that the
Excelsior list was incorrect and was intentionally ‘‘stacked’’
by Respondent to include supervisors, etc., and by its sudden
hiring of eight employees immediately prior to the May 11
cutoff date. The Respondent did attempt to include employ-
ees Habel, Zinns, Strupinsky, and Nimtz in the unit, despite
their lack of a community of interest, as found above.
Francisco Sigala credibly testified that he, Maria Olea, and
Vincinte Lepe all completed their employment applications
and took the urine tests at Staff Right on Friday (May 10).
Wiegert said he applied May 9 or 10, and Respondent’s
records show that he started on May 10, Lepe also on May
10, and Francisco Sigala and Olea on May 11, a Saturday;
however, Sigala testified that he did not start work until
Monday, May 13, 2 days after the May 11 cutoff date for
eligibility. Chris Johnson also was hired on May 10 (as were
two others who did not stay and were not on the Excelsior
list), and all were hired for the plating department. Respond-
ent’s records show that 12 of 19 hired for that department
prior to May 10 had started on Monday (or a Tuesday after
a holiday), 3 had started on a Friday, and none on a Satur-
day. Moreover, several employees testified that they had not
been allowed to start until they had taken and received the
drug test results. The several Hispanic employees testified
that they were given the drug test at the office at Staff Right
right after they applied. Francisco Sigala said he took the test
on Friday, but didn’t start until the next Monday (May 13).
Cruz said he started May 10, the same day he applied, and
that he took the drug test 4 hours before starting (on the sec-
ond shift) but wasn’t told it was okay until his second day.
The Charging Party also made an offer of proof that two
of the employees hired on May 10 or 11 (Chris Johnson and
Mike Cintron), neither of whom was called to testify, told
Mills that when they were hired by Staff Right they had to
say they were against the Union. The Charging Party asks
that I reconsider my ruling rejecting this proffered testimony;
however, I find it to be unreliable hearsay and I affirm my
prior ruling.
I find that the circumstances surrounding the objections in-
dicate a high probability that both the naming of ineligible
employees to the Excelsior list and the precipitous hiring of
several employees thought likely to be against the Union
(other testimony indicated a supposition that the Hispanic
employees were less likely to favor the Union in this com-
pany setting) had the effect of interfering with the fairness
of the election. Although Foreman Stanosz made some ob-
lique references to overtime and inventory and a need to cre-
ate sales and to run more machines at the general period of
time prior to the election on June 21 and of his talking to
Petersen about one solution was to hire more people, there
was no showing of any specific probative business reason
that eight persons were hired on May 10 and 11 and why
they were hired in a manner inconsistent with general past
practices. Under these circumstances, I find that the objec-
tions should be sustained.
Objection 21—A day or two before the election, Mills
posted a leaflet which read, ‘‘Things work best when you
vote Union yes.’’ President Petersen came up to Mills at his
workstation and told him to take it down even though em-
ployee Jacinto Torres had a sign with the middle finger stick-
ing up which said, ‘‘Vote No!’’ Torres’ sign, obviously
antiunion literature, had been posted for 2 weeks, and I find
that Petersen’s conduct was discriminatory and sustain the
objection.
E. Alleged Postelection Violations
As noted, several of the earliest hired employees testified
how they had been told that they could expect wage in-
creases. Petersen himself testified:
I said, you know, after a year rolls by, I am sure that
we would have a benefit package in the form of vaca-
tions and some sort of wage increase. And I said as the
company grew, that they would grow with us. That is
what I told them, I believe it was September or October
of 1990. And I never made no promises to them at that
point. That is exactly what I told them.
Then, during Petersen’s meeting with employees on June
17, he told employees there wasn’t a cash flow problem any
more, but that because of the election, ‘‘everything was tied
up . . . that they couldn’t give out any raises now because
the election was pending . . . and employees that they would
get the raises and paid vacations’’ ‘‘down the road.’’ Ac-
cordingly, and for the reasons discussed above regarding Re-
spondent’s preelection threats to withhold these same bene-
fits because of the pending election, Respondent’s actions
after the election, while objections to the election were in
litigation, also constitute a violation of Section 8(a)(1) of the
Act, as alleged. See the Russell Stover case, supra.
Next, Petersen sent a letter, dated July 27, to all employ-
ees stating:
The company at this time has decided to grant all el-
igible employees with 1 year’s seniority the following:
A. 1 week’s (5 days’) vacation with pay.
B. Merit wage review.
Respondent stipulates that any and all changes made with re-
spect to the employees’ wages, hours, and working condi-
tions from April 18 to date were made unilaterally and with-
out prior notice to, or bargaining with, the Union. The Gen-
eral Counsel argues that the benefits were granted in order
to dissuade union support and activity and that in view of
the timing of this action it also violates Section 8(a)(3) of
the Act (on this same date Respondent suspended leading
union activists Mills and Proffitt and shortly thereafter re-
called six less senior and less experienced employees who
were not members of the organizing committee).
Although at first glance it may seem inapposite to con-
clude that Respondent could violate the Act first by failing
to grant wage and vacation benefits and then again violate
the Act by granting these same benefits, the two clearly are
related and each reinforces the other. Except for the passage
of several weeks, there is no intervening event to explain Re-
spondent’s change in policy (the election objections still
pending before the Board), except for Respondent’s interven-
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 These changes were:
1. New ‘‘Sexual Harassment’’ policy subjecting employees to im-
mediate discharge.
2. ‘‘Hours of Work’’: changed first- and second-shift hours, a
change in second shift from 3 p.m.—11 to 9 p.m.—7 a.m.
3. ‘‘Job Descriptions’’: never existed before.
4. ‘‘Layoff and Recall After Layoff’’: never existed before. Uses
‘‘attitude’’ as element in determining layoffs and recalls.
5. ‘‘Call-In Pay; Report Pay; and Outside Employment’’ policies:
never existed before.
6. ‘‘Solicitations and Distribution’’: never existed before.
7. ‘‘Paid Time Off’’: never existed before. Note first reference to
1 week of paid vacation after 1 year. The additional weeks and days
of paid vacation were all given after the July 27 1 week of paid va-
cation.
8. ‘‘Holidays’’: added four additional yearly holidays.
9. ‘‘Seniority’’: never had a formalized seniority system before, in-
cluding no prior reasons as basis for losing seniority.
10. ‘‘Discipline’’: never had formal progressive disciplinary sys-
tem before.
11. ‘‘Alcohol and Drugs’’: new; including the broadened right of
Respondent to require ‘‘blood or other tests to determine compliance
with [its] alcohol and drug policy.’’
12. ‘‘Wage Structure.’’
ing purge of many of the Union’s strongest supporters in the
mass layoff of the day shift plating department.
As cited by the General Counsel, the Court in NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964), stated:
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
Here, the sudden granting of benefits after they first were
withheld, assertedly because of pending Board matters, under
circumstances where the Company had just made a mass lay-
off of an entire department shift with strong union backing
and had also suspended two of the leading union spokesmen,
sends a clear message that the Company controls the source
of benefits and that employees who try to influence its action
through union activities will have difficulties in keeping their
jobs. This message clearly interferes with employee Section
7 rights, and Respondent’s actions in both of these respects
violate Section 8(a)(1) of the Act, as alleged.
As noted above, the Respondent stipulated that all changes
made in wages and working conditions after April 18 were
unilaterally made without notice to, or bargaining with, the
Union. Most of the unilateral changes can be found in Re-
spondent’s first-ever employee handbook which issued in
early September and which reflects changes9 made then and
since April 18. The changes under the wage structure, for ex-
ample, show a per hour change for a warehouse material
handler from base—$6.25, top—$7.60, to base—$6.40, mid-
range—$6.70, and top—$8.
Under all the circumstances, and in view of the Union’s
majority status, as further discussed below, I find that the
Respondent has violated Section 8(a)(5) and (1) by making
these unilateral changes, and I further find that these changes
also effectively discouraged and undermined the employees’
support of the Union in violation of Section 8(a)(3) and (1)
of the Act, as alleged.
F. Sonny Anderson’s Discharge
Sonny Anderson was an articulate supporter of the Union;
however, he was not a recognized leader or a significant
spokesman for the employees to the same degree as were
Mills, Proffitt, and Nixon. He was considered to be a good
worker on the first-shift plating; however, he was not re-
called until December 5 after the July layoff. He received a
36-cent-an-hour raise in February 1992 but learned another
employed doing the same work had been given a 51-cent-an-
hour raise. Anderson canvassed other black and nonblack
first-shift plating department employees concerning the
amounts of their raises and formed the opinion that the raises
of the black employees were uniformly lower than those of
the nonblack employees.
Anderson went to Stanosz’ office and testified that:
I told him that I didn’t feel it was fair, I got treated
fairly on the raise he gave me, and that it seemed in
general that the black employees were given less in
raises than anyone else of non black employees. Keith
just told me, no comment. That’s the way it is.
Anderson then went to President Adikes’ office (Stanosz
also was present) and testified that:
I told Bob Adikes that I felt that I was being treated
unfairly with the raise that I got, and that—I told him
it seems like black employees were treated unfairly
when it came to raises and different positions such as
lead persons. And then Bob Adikes said that other peo-
ples’ business isn’t my business and that he only want-
ed to hear my business. And so I told him that I can’t
help it to help other employees, because it was down
in me to do that, especially my brothers and sisters. I
said because they are flesh in my flesh, and bone in my
bone. Their hurt is my hurt. Because when the same
conditions situation at ABQC.
In April, Stanosz stopped to question Anderson as to why
his machine was running empty. Anderson responded by ask-
ing why he was questioned and a white employee was not;
Anderson testified that:
Keith said what are you talking about. And then I
told him that what was the difference between me and
Robert and Chris. And then he said, I told him by him
acting this way, treating people different because of
their race that he was acting like the devil. And he
walked over to me real fast.
Stanosz then told Anderson, ‘‘young man, you don’t call me
a devil.’’ Anderson then told Stanosz that if he would stop
acting like a devil, he would not call him one. At the end
of the shift, Stanosz told Anderson Adikes wanted to see
him. All three met and Adikes asked Anderson to explain
what had occurred and Anderson said he called Stanosz a
devil ‘‘because he is treating the [B]lack employees dif-
ferently,’’ ‘‘acting like a devil toward us [B]lack employ-
ees.’’ Stanosz warned Anderson that he would fire him for
insubordination if he called Stanosz a devil again and Ander-
son said he would not do it again.
In mid-May, Anderson canvassed all the black employees
and women in the first-shift plating after a white employee
487AMERICA’S BEST QUALITY COATINGS CORP.
who worked in the first-shift plating department was given
a better-paying job. Anderson went to Stanosz, explained he
had talked to all the other black and female employees dis-
covering they did not ever know the job was available, and
that he did not think it was fair to the black and female em-
ployees. Anderson also complained to Adikes, who said he
thought the position had been posted.
On July 20, Stanosz changed Anderson’s machine assign-
ment because the machine was down, and assigned him to
the phosphate machine. Shortly thereafter Stanosz observed
Supervisor Habel remonstrating face to face with Anderson
for not having timely relieved the operator on the phosphate
machine. Stanosz then took over the conversation and told
Anderson that he knew what job he was to do and that the
operator needed relief. Anderson also told Stanosz that he
thought it was unfair for Stanosz to ‘‘move us employees
around.’’ Stanosz told Anderson that he could leave ‘‘if he
didn’t like it,’’ Anderson did just that. As he was leaving,
Stanosz told him he should think about it, but Anderson left
at about 7:15 a.m.
Shortly after 9 a.m., Anderson called President Adikes,
asking if he had been made aware of the incident. Adikes
said he had heard about some of it but had not had a chance
to investigate as yet. Anderson then explained that ‘‘because
of Keith moving us around, us employees that it upset me.’’
The next morning, after receiving approval from Adikes,
Stanosz discharged Anderson, telling him he couldn’t get in
anybody’s face and couldn’t just walk off. Anderson specifi-
cally testified that:
He said he couldn’t tolerate me getting into super-
visors’ faces when I would go off on them. And then
he also said that if I wouldn’t had gotten into Al
Habel’s face, he wouldn’t have fired me.
Here, I agree with Respondent that Anderson’s union ac-
tivities had nothing to do with his discharge. However, al-
though it also appears much of his protesting was directed
at his personal situation, I also find that it has ‘‘some rela-
tion to group action in the interest of employees’’ and there-
fore it was protected concerted activity. See Circle K Corp.,
305 NLRB 932 (1991).
Anderson’s discharge, however, did not follow directly
from his protest to management but was occasioned by his
subsequent confrontation with a supervisor. Accordingly, an
analysis is required under Wright Line, supra, to see if Re-
spondent’s evidence shows that Anderson would have been
discharged in the absence of his protected concerted activity.
Here, I find that there is no timeliness or valid nexus be-
tween Anderson’s earlier complaints to management and his
statement to Stanosz that ‘‘it was unfair of him to move us
employees around’’ at the time Stanosz spoke to him after
seeing his face-to-face remonstration with Supervisor Habel
about his apparent failure to promptly report to his new as-
signment. Anderson himself testified that Stanosz said:
Even though I had bad attendance record, he still
would have kept me as an employee, but he couldn’t
tolerate me getting into a supervisor’s face. And that’s
the truth.
Under these circumstances, I am persuaded that Ander-
son’s July discharge rested solely on his imprudent and in-
subordinate conduct. This behavior conflicts with an employ-
er’s right to otherwise maintain order and respect in the
workplace. I am not persuaded that the showing that Stanosz
himself had a face-to-face argument with employee Person in
March 1991 (without imposing discipline) is a pertinent or
controlling showing of disparate treatment, and I conclude
that the Respondent has shown that it had a legitimate,
nonpretextual reason for Anderson’s discharge and would
have taken the same action regardless of his prior concerted
activity. Accordingly, I cannot find that the Respondent vio-
lated the Act in this respect, as alleged.
G. The Bargaining Unit and Majority Status
The complaint alleges that an appropriate unit consists of:
All full-time and regular part-time production and
maintenance employees, including warehouse employ-
ees of the Respondent, employed at America’s Best
Quality Coatings Corp. facility in Milwaukee, Wiscon-
sin; but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
I find this to be an appropriate unit and that four persons
whose ballots were successfully challenged (Habel, Nimtz,
Zinns, and Strupinsky) should not be included in the unit. As
of April 18, 34 of the 62 (see G.C. Exh. 6a) bargaining unit
employees signed valid authorization/membership cards and,
subsequently, as of June 21, the election day, it had obtained
10 additional cards, while Respondent’s employees never ex-
ceeded 88 during this period. Accordingly, I find that the
Union had majority status on and after April 18, 1991.
H. Refusal to Recognize or Bargain for a
Bargaining Order
The Respondent received a letter from the Union noting
majority status and demanding bargaining on April 18. The
Respondent refused to recognize the Union and, as discussed
above, made unilateral changes in wages, benefits, and work-
ing conditions without first bargaining with the Union and,
in view of its failure to demonstrate valid majority status free
of disqualifying conduct, in the election that was conducted
on June 21, I find that the record shows that Respondent’s
conduct in this respect is in violation of Section 8(a)(3) and
(5) of the Act, as alleged.
Under the holding of the Court in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), a bargaining order is an appro-
priate remedy for violations of Section 8(a)(1) of the Act,
where it is shown that a union obtained signed authorization
cards from a majority of the employees in an appropriate
unit, and, after the union had attained majority status, the
employer undermined the union majority status and made the
likelihood of a fair election impossible.
In consideration of the nature and extent of Respondent’s
unfair labor practices discussed above, it is concluded that
the General Counsel has shown that Respondent’s illegal
mass layoff of a major prounion department of the bargain-
ing unit under pretextual and discriminatory circumstances,
as well as other illegal acts, as found above, constitute a
valid basis for the imposition of a bargaining order.
As noted in the discussion of Union Objection 18, the Re-
spondent precipitously hired eight persons the day before or
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the May 11 cutoff date under circumstances that clearly
interfered with the fairness of the election and had a probable
effect in dissipating the Union’s majority. The mass layoff
in the day shift plating department resulted not only in dis-
criminatory delays in recall of those who were most likely
to have been union supporters, but also resulted in some
other turnover in the unit that has a clear causal connection
with that specific unfair labor practice. The Respondent was
involved in other unfair labor practices and objectionable
conduct surrounding the election which also undermined the
Union’s majority. These actions have a continuing effect on
employees that would foreclose the possibility of a fair elec-
tion should a second election be held in the near future.
In conclusion, I find that these factors demonstrate conduct
which is so serious and substantial in effect that a fair elec-
tion untainted by the undermining impact of Respondent’s
discriminatory conduct would be unlikely. No mitigating cir-
cumstances are shown that would indicate that a fair election
is possible, and I conclude that it is necessary and appro-
priate to grant a bargaining order because, given the gravity
of Respondent’s misconduct, the Union’s card majority pro-
vides the more reliable test of employees’ desires than a con-
tested election. Accordingly, I find that a bargaining order is
shown to be justified.
Based on the ruling pertaining to challenged ballots, it is
now possible that the Union may receive a majority of the
votes. Regardless of this outcome however, it is necessary
and appropriate to grant a bargaining order inasmuch as ap-
pellate procedures could result in delays or another conclu-
sion and because, as noted, given the gravity of Respondent’s
misconduct, the Union’s card majority provides the more re-
liable test.
Otherwise, I also conclude that it is shown that objection-
able conduct by Respondent occurred between the filing of
the representation petition and the date of the election, and
the Board had found that violations of Section 8(a)(1) that
occurred during such period are sufficient to warrant over-
turning an election. See McLean Roofing Co., 276 NLRB
830 (1985), enfd. mem. 827 F.2d 1423 (8th Cir. 1986), and
cases cited there.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit appropriate for collective-bargaining is:
All full-time and regular part-time production and
maintenance employees, including warehouse employ-
ees of the Respondent, employed at America’s Best
Quality Coatings Corp. facility in Milwaukee, Wiscon-
sin; but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
4. By interrogating employees concerning their union sym-
pathies; by confiscating union literature; by threatening em-
ployees that benefits would be withheld and with the imposi-
tion of more onerous working conditions; by telling employ-
ees they were being transferred to the payroll of a temporary
employment service to discourage support for the Union; and
by telling employees the payroll transfer was done to
‘‘scare’’ them off the Union, Respondent has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed them by Section 7 of the Act, and thereby
has engaged in unfair labor practices in violation of Section
8(a)(l) of the Act.
5. By laying off all 21 day shift plating department bar-
gaining unit employees on July 19 and by discriminatorily
delaying the recall of employees suspected of having union
sympathies, because of employee union activities (including
specifically, the delivery of a petition pertaining to wages
and benefits to the company president), in pursuing union af-
filiation for purposes of collective-bargaining representation,
Respondent violated Section 8(a)(3) and (1) of the Act.
6. By suspending and terminating employees Keith Mills,
Michael Proffitt, and Lisa Nixon because of or in retaliation
for the employees’ union activities, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
7. By first delaying expected wage raises on review and
vacations, then timing an increase in these same benefits
shortly after it made a discriminatory mass layoff of 21 em-
ployees and suspended the leading union spokesmen, all dur-
ing the course of a union campaign, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(3) and
(5) of the Act.
8. By promulgating an employee handbook with unilateral
changes in terms and conditions of employment subsequent
to the Union’s card majority demand for recognition without
notice to or bargaining with the Union, Respondent has vio-
lated Section 8(a)(1) and (5) of the Act.
9. From April 18, 1991, a majority of the unit designated
and selected the Union as their representative for the pur-
poses of collective bargaining and, at all times since, the
Union, by virtue of Section 9(a) of the Act, has been, and
is, the exclusive representative of the unit for the purposes
of collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment.
10. By failing and refusing to recognize and bargain with
the Union on and since April 18, 1991, while engaging in
unfair labor practices which undermined the Union’s major-
ity status and which would impede the election process, the
Respondent violated Section 8(a)(1) and (5) of the Act.
11. The challenged ballots of employees Robert Husslein,
Paul Plonka, Stephen Iggens, Jason Rothwell, and Raymond
Tippet from the election on June 21, 1991, should be count-
ed, resulting in the issuance of a Certification of Results in
Case 30–RC–5250.
12. The unfair labor practices found above were independ-
ently, substantially, and pervasively disruptive of the election
process, preclude a fair election, and warrant an order to bar-
gain.
13. Staff Right, Inc. is not a joint employer for purposes
of the remedy here.
14. Except as found here, Respondent is not shown to
have engaged in any other unfair labor practices as alleged
in the complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
489AMERICA’S BEST QUALITY COATINGS CORP.
10 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Inasmuch as I found that Respondent violated the Act by
laying off 21 bargaining unit employees and thereafter spe-
cifically illegally terminating employees Lisa Nixon, Keith
Mills, and Michael Proffitt, I find it necessary to order that
Respondent be required to reinstate these employees not al-
ready reinstated in order to restore the status quo ante exist-
ing prior to its commission of this unfair practice and to
make all of them whole for the time on layoff on and after
July 19, 1991.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate the three
named terminated employees to their former jobs or substan-
tially equivalent positions and to recall any employees laid
off on July 19, 1991, and not previously recalled and rein-
stated, without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of earnings they may have suffered because of the dis-
crimination practiced against them by payment to them of a
sum of money equal to that which they normally would have
earned from the date of the discrimination to the date of rein-
statement, in accordance with the method set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest, as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987),10 and that Respondent expunge from its files any ref-
erence to their layoff or termination and notify them in writ-
ing that this has been done and that evidence of the unlawful
termination will not be used as a basis for future personnel
action against them.
Because a failure to grant a bargaining order as requested
by the Charging Party, the General Counsel would reward
Respondent for its wrongdoing, Impact Industries, 285
NLRB 5 (1987), and as the Respondent has engaged in mis-
conduct that otherwise demonstrates the need for a Gissel
order, I recommend that the Respondent be required to rec-
ognize and bargain with the Union and, if an agreement is
reached, to reduce the agreement to a written contract.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, America’s Best Quality Coatings Corp.,
Milwaukee, Wisconsin, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Terminating or laying off any employees or otherwise
discriminating against them in retaliation for engaging in
union activities or other protected concerted activities.
(b) Interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed them by Section 7
of the Act by interrogating employees concerning their union
sympathies, confiscating union literature, threatening employ-
ees that benefits would be withheld and that it would impose
more onerous working conditions, and telling employees they
were transferred to the payroll of a temporary employment
service to scare them off the Union.
(c) Delaying expected wage increases or reviews and vaca-
tions or giving such benefits in a manner that interferes with
employees’ Section 7 rights.
(d) Promulgating rules or an employee handbook with uni-
lateral changes in terms and conditions of employment sub-
sequent to the Union’s majority demand for recognition with-
out notice to or bargaining with the Union.
(e) Failing and refusing to recognize and bargain with the
Union, while engaging in unfair labor practices after the
Union has established majority status.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Keith Mills, Michael Proffitt, Lisa Nixon, and all
bargaining unit members of the day shift plating department
employees laid off or terminated on or after July 19, 1991,
immediate and full reinstatement and make them whole for
the losses they incurred as a result of the discrimination prac-
ticed against them, including wage increases and vacation
benefits that may have been illegally delayed or not pro-
vided, in the manner specified in the remedy section above
and expunge from its files any reference to their termination
and notify them in writing that this has been done and that
evidence of the unlawful termination will not be used as a
basis for future personnel actions against them.
(b) Recognize and, on request, bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive of its employees in the following appropriate unit with
respect to rates of pay, wages, hours, and other terms and
conditions of employment and, if an agreement is reached,
embody it in a signed agreement:
All full-time and regular part-time production and
maintenance employees, including warehouse employ-
ees of the Respondent, employed at America’s Best
Quality Coatings Corp. facility in Milwaukee, Wiscon-
sin; but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in
the Act.
(c) On request of the Union, rescind any departures from
terms and conditions of employment that were unilaterally
made by the Respondent on or after April 18, 1991, retro-
actively restoring preexisting terms and conditions of em-
ployment, excluding any retroactive reduction in wage rates.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Milwaukee, Wisconsin facility and mail to
all employees who were laid off on July 19 and/or subse-
quently terminated, copies of the attached notice marked
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 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.’’
‘‘Appendix.’’12 Copies of the notice, on forms provided by
the Regional Director for Region 30, 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Case 30–RC–5250 be re-
manded to the Regional Director for Region 30 for such fur-
ther action as is deemed necessary based on the findings and
conclusions here.