Bangor Plastics, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1966

156 N.L.R.B. 1165 (N.L.R.B. 1966)

BANGOR PLASTICS, INC. 1165
(c) In any like or related manner, interfering with, restraining , or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act.
(a) Upon request, bargain collectively with the Union as the exclusive bargaining
representative of the employees in the appropriate multiemployer unit.
(b) Forthwith sign the agreement, negotiated in June 1964, with the Union by the
Association.
(c) Notify the Regional Director for Region 1, in writing, within 20 days from the
receipt of this Decision and Recommended Order, what steps it has taken to comply
herewith.12
"In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
Bangor Plastics, Inc. and International Union, Allied Industrial
Workers of America , AFL-CIO . Cases Nos. 7-CA-4428 and
7-CA-4428(2). January 28,1966
DECISION AND ORDER
On April 27, 1965, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial Examiner's Deci-
sion and a brief in support thereof, and Respondent filed a brief in
answer to the General Counsel's exceptions.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, as
modified herein.
The Trial Examiner found that the informal settlement agreement
of January 9 1 had been erroneously set aside by the Acting Regional
Director. As a consequence, he found it unnecessary to pass upon
those allegations of the complaint which involve presettlement con-
duct. We do not agree.
The initial charge 2 in this proceeding, filed by the Union on Octo-
ber 24, alleged that Respondent had engaged in certain conduct
violative of 8(a) (1) and had unlawfully discharged employee Baxter
i Unless otherwise indicated, all reference to the months of August through December
will be to the year 1963, and reference to the months of January through June will be
to 1964.
s Case No. 7-CA-4428.
156 NLRB No. 105.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of Section 8(a) (3) of the Act. The 8(a) (3) allegation
was subsequently withdrawn and thereafter the parties entered into
an informal settlement agreement which was approved by the Acting
Regional Director on January 9. Pursuant to this agreement,
Respondent, on January 20, posted on its plant bulletin board a
notice to all employees which apprised the employees that Respondent
would'not engage in 8(a) (1) conduct or violate the rights guaranteed
them under Section 7 of the Act. Simultaneously, Respondent posted,
alongside the Board notice, the following notice:
NOTICE TO ALL EMPLOYEES
Posted On Our Bulletin Board Is An Offical Notice Of The
National Labor Relations Board. This Notice Is Being Presented
Pursuant To An Agreement Reached With The National Labor
Relations Board In Connection With Unfair Labor Practice
Charges Which Were Filed.
The Company Obtained A Dismissal Of What We Considered
To Be The Most Important Part Of The Unfair Labor Practice
Charges. Rather Than Litigate The Remaining Portion Of the
Charges, We Have Agreed To The Posting Of The Notice.
The Posting Of This Notice In No Way Admits Any Wrong
Doing On the Part Of The Company. We Have Always Believed
In The Protection Of The Legal Rights Of Our Employees. The
Posting Of This Notice Is Done Solely Because V Te Do Not Wish
To Waste Any More Money On Attorney's Fees And Other
Expenses Which Would Be Involved In The Litigation.
On February 20 the Acting Regional Director advised Respondent
that the posting of the supplementary notice on January 20 con-
situted noncompliance with the terms of the settlement agreement and
that, accordingly, he had withdrawn his approval. A complaint
issued on February 28, alleging that between September 4 and Novem-
ber 11, Respondent had engaged in certain 8(a) (1) conduct. There-
after, on April 3, the Union filed a second charge 3 which resulted in
the May 5 issuance of a consolidated complaint alleging the original
presettlement 8 (a) (1) conduct, and also that subsequent to the settle-
ment agreement, Respondent had discharged employee William Dunn
in violation of Section 8(a) (3) of the Act.
In passing upon the question of whether or not the Acting Regional
Director acted properly in setting aside the settlement agreement, we
find it unnecessary to determine whether, as alleged by the General
Counsel, Respondent's notice (1) altered the Board's notice, and (2)
contained an untrue statement. It suffices to say that, in our opinion,
Respondent's notice posted alongside the Board's notice was a patent
8 Case No. 7-CA-4428 (2).
BANGOR PLASTICS, INC. 1167
attempt to minimize the effect of the Board's notice. Respondent's
notice suggests to employees that the Board's notice is being posted
as a mere formality and that Respondent's true sentiments are to be
found in its own notice, not the Board's. Instead of assuring employ-
ees that it will live up to the terms of the settlement agreement as set
forth in the Board's notice, Respondent has taken issue with the terms
of that notice in such a manner as to create in the minds of employees
the impression that it does not subscribe to any of the statements
expressed in the Board's notice.
Unlike a settlement between private parties, a Board settlement
involves a public right which the Board must protect. In deciding
whether or not to approve a settlement agreement, the prime con-
sideration must, of necessity, be to what extent the proposed settle-
ment will effectuate the policies of the Act. Therefore, the Board
requires that a settlement agreement provide for the posting of a
notice which sets forth the statutory guarantee. Where, as here, the
posting of that notice is the only affirmative action Respondent must
take, we cannot agree that the policy of the Act is effectuated when
the Respondent undertakes to post with it a statement evidencing to
employees its position that the posting of the Board's notice is to be
considered nothing more than a mere formality and that the settlement
agreement will not effect any change in Respondent's attitude toward
the statutory rights of its employees. In sum, we believe that Respond-
ent, by the posting of its own notice, did not comply with the settle-
ment agreement, and, accordingly, we find that the Acting Regional
Director was justified in setting aside this agreement .4
In view of our finding that the settlement agreement was properly
set aside, we now consider whether, as alleged in the complaint,
Respondent's presettlement conduct violated 8(a) (1). Although the
Trial Examiner found it unnecessary to pass upon these allegations,
a full record was made with respect to Respondent's presettlement
conduct and the Trial Examiner made the necessary credibility find-
ings where the testimony is in conflict. Accordingly, accepting the
Trial Examiner's credibility findings, we find the following conduct
by Respondent to be violative of Section 8 (a) (1) of the Act : (1)
Assistant Manager Glen Wokeck's September 4 interrogation of
employee William Dunn as to whether he would change his mind
about the Union; (2) Glen Wokeck's September 5 speech to assembled
employees in which he suggested that employees form a committee or
an inside union of their own; (3) Glen Wokeck's September 9 con-
versation with employee William Dunn in which Wokeck threatened
4Larrance Tank Corporation , 94 NLRB 352, to which the Trial Examiner referred, has
since been modified in Northern California District Council of Hodcarriers and Common
Laborers of America, AFL-CIO, etc. ( Joseph Mohamed, Sr., an Individual, d/b/a Joseph's
Landscaping Service ), 154 NLRB 1384.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to fire Dunn on the spot the next time he was caught talking or dis-
cussing the Union on company time or premises and Wokeck's further
comment that Dunn did not think much of his wife and family, other-
wise he would not be trying to organize the Union; (4) Shop Foreman
Slazek's September 24 statement to a group of employees that the
plant was too small for any union, and that he (Slazek) believed that
"we could all be hurt more than it could do any good"; (5) Slazek's
conversation with Dunn on October 1 in which Slazek referred to the
closing down of a plastics plant in Dearborn, Michigan, because of
union organization, and with the comment "That could happen to us";
(6) Respondent President and General Manager Emil Wokeck's con-
versation with employee Fortmann sometime during the middle of
October in which Wokeck, after commenting on the likelihood of a
Christmas bonus for employees, said, "I don't know if you're active
in the Union or not"; (7) Glen Wokeck's November 11 statement to
employee Dunn that he (Wokeck) could pull Dunn off any press in
the plant any time he wanted to, that there was nothing that Dunn or
the Union could do about it, and that the next time that Wokeck heard
of anything going around the shop about the Union from Dunn,
Wokeck was going to fire him.
We also disagree with the Trial Examiner's finding that the General
Counsel failed to establish by a preponderance of the credible evidence
that employee William Dunn was discharged for discriminatory rea-
sons. The evidence discloses that Dunn was first employed by Respond-
ent on February 20, 1962, and that he worked continuously thereafter
until his discharge on March 10, 1964. About the middle of
August 1963, Dunn spoke to some of his fellow employees about orga-
nizing a union and, receiving a favorable response, commenced dis-
tributing authorization cards to them on September 4. That Respond-
ent immediately became aware of Dunn's activities on behalf of the
Union is not disputed. On September 4 Assistant Manager Glen
Wokeck observed Dunn signing up employees in the company park-
ing lot and, later that day, Wokeck called Dunn into his office and,
as we have previously found, unlawfully interrogated him concerning
these activities. If any doubt existed as to Respondent's attitude
towards Dunn's role in the organizational efforts of the employees, it
is resolved by subsequent conversations between Dunn and Respond-
ent's representative. On September 9 Dunn was called into Glen
Wokeck's office and told by Wokeck that the next time he was caught
talking or discussing the Union on company time or premises he would
be fired on the spots Wokeck added that Dunn did not think much
of his wife and family or he would not be trying to organize the
Union. This incident was followed by a conversation on Septem-
5 Respondent does not have a no-solicitation rule in effect in the plant.
BANGOR PLASTICS, INC. 1169
her 24 with Shop Foreman Slazek who told Dunn the plant was too
small'for any union, and that "we could all be hurt more than it could
do any good," and further conversation between the two on Octo-
ber 1 in which Slazek, after referring to the closing of a plastics plant
in Dearborn, Michigan, because of union organization, said "That
could happen to us." Finally, there is the incident of November 11,
when Glen Wokeck approached Dunn at his press and said that he
could pull Dunn off any press in the plant anytime he wanted to, that
there was nothing that Dunn or the Union could do about it, and that
the next time he heard of anything going around the shop about the
Union from Dunn, Wokeck was going to fire him.
Bearing in mind the above threats to Dunn, we turn to a considera-
tion of the incident which Respondent alleges was the motivating
cause for Dunn's discharge. On March 10, between 12:30 and 1 p.m.,
Foreman Slazek and employee Philip Lee happened by chance to meet
at a point in the shop which was within a few feet of the machine
being operated by Dunn. A 5- to 10-minute conversation between
Lee and Slazek ensued concerning a work process sheet which Lee
was carrying. Simultaneously with the conclusion of the conversa-
tion, Dunn turned in the direction of the two men and made a vulgar
reference to their standing there and watching him. This prompted
Foreman Slazek to ask Dunn whether he was trying to be wise or
funny, to which Dunn replied that Slazek could take it "either way
he wanted it."
Slazek reported the incident to President Emil Wokeck shortly
after 3 p.m. the same afternoon, complaining that he should not have
to take that kind of abuse. At this time, Slazek also informed Emil
Wokeck of an incident which had occurred on March 3 in which
Dunn accused Slazek, in vulgar language, of currying favor with the
company president. Based upon Slazek's report of these two incidents,
Emil Wokeck made the decision to discharge Dunn. Emil Wokeck
informed Slazek of his decision and at 3:30 p.m. Slazek told Dunn
he was being discharged for the insulting manner in which he had
addressed him that day.
While we do not condone Dunn's vulgar depreciations of his supe-
riors, we do not believe that it constituted the motivating cause for
his discharge. Rather, we find that Dunn's discharge was triggered
by another incident 6 which occurred on the day of his discharge, and
which, in our opinion, prompted Respondent to carry out its threat to
discharge Dunn if he again engaged in union activities.
Several days before Dunn's discharge, a union notice appeared on
the company bulletin board informing employees of the pending
6 The Trial Examiner attached no material significance to Dunn's testimony concern-
ing this incident . We disagree and, absent a specific credibility finding by the Trial
Examiner, we credit Dunn 's unrefuted testimony concerning this incident.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice charges and soliciting support for the Union.
Thereafter, on the morning of March 10, Shop Foreman Slazek
accused Dunn, in the presence of other employees, of posting the
notice and of attempting to blame someone else for it. Dunn replied
truthfully that he had not posted the notice. Later that day, at
1:30 p.m., Slazek again made reference to the posting of the notice
by remarking to Dunn that he (Slazek) "still couldn't understand
why 1 posted this notice on the bulletin board and denied it." Signifi-
cantly enough, although the latter incident occurred only a short time
after Dunn's vulgar remark to Slazek, the only concern directly voiced
to Dunn by Slazek was with Dunn's alleged posting of the union
notice.
While it may be true that President Emil Wokeck acted in good
faith when he made the decision to discharge Dunn because the latter
had acted in an insulting manner toward Slazek, the fact remains
that Emil Wokeck's decision was prompted by Slazek's ostensible
insistence that his rights as a supervisor be vindicated. In order then
to properly determine whether Dunn's discharge was violative of the
Act, it is necessary to determine what motivated Slazek to lodge the
protest which ultimately resulted in Dunn's discharge.?
Slazek played a substantial role in Respondent's earlier antiunion
campaign. On at least two such occasions, Slazek threatened Dunn in
violation of Section 8(a) (1) of the Act. On another occasion, Assist-
ant Manager Glen Wokeck also threatened that Dunn would be dis-
charged if he engaged in any additional union activity. We believe
that it is no coincidence that Slazek's decision to protest his treatment
by Dunn followed closely Slazek's accusations that Dunn was respon-
sible for posting the union notice. This would seem especially true
when only ,ti week before Dunn had insulted Slazek in the presence of
other employees, but Slazek took no action with respect to it. In our
opinion, Slazek's decision to report Dunn's remarks to Emil Wokeck
was motivated by a desire to prevent a resurgence of unionism in the
plant by removing the leading union proponent. Accordingly, as we
have found that the action which initiated Dunn's discharge was dis-
criminatorily motivated, we find that his subsequent discharge was
violative of Section 8(a) (3) of the Act.8
THE REMEDY
Having found that Respondent engaged in certain unfair labor prac-
tices, we shall order that it cease and desist therefrom , and that it take
certain affirmative action to effectuate the policies of the Act.
T Allegheny Pepsi-Cola Bottling Company v. N L It B., 312 F. 2d 529 ( C.A. 3), enfg. 134
NLRB 388.
s Compare White Furniture Company, 155 NLRB 61 ( Employee Faulk).
BANGOR PLASTICS, INC. 1171
It will 'also be' ordered that the Respondent offer to William Dunn
immediate and full reinstatement to his former or substantially equiv-
alent position without prejudice to his seniority or.other rights and
privileges, and make him whole for any loss of earnings suffered by
reason of the discrimination against him., by payment of a sum of
money equal to that which' he would- normally have earned from the
date of his discharge to the date of Respondent's offer of reinstatement,
less his net earnings during said *period (Crossett Lumber Company,
8 NLRB 440) and in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289, together with interest thereon'at the rate of 6 per-
cent per, annum, as set forth in Isis Plumbing d Heating Co., 138
NLRB 716.
Finally, in view of the serious'andextended nature of the unfair
labor practices, it will also be ordered that Respondent cease'and desist
from in any manner infringing upon the rights of employees guar-
anteed by Section 7 of the Act.
A31ENDED CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employees in the
exercise of rights guaranteed by Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
2. By discharging William Dunn, and by thereafter failing to rein-
state him, Respondent engaged in, discrimination to discourage mem-
bership in the Union, thereby engaging in unfair labor practices pro-
scribed by Section 8 (a) (3) and (1) of the'Act. I
3. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Bangor Plastics, Inc., South Haven, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of Inter-
national Union, Allied Industrial Workers of America, AFL-CIO,
or any other labor organization, by discharging and refusing to rein-
state employees, or by discriminating against employees in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment.
(b) Coercively interrogating employees concerning their union ac-
tivities and/or sympathies.
217-919-66-vol. 156-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Inducing employees to form their own "inside" union in prefer-
ence to belonging to or supporting International Union, Allied Indus-
trial Workers of America, AFL-CIO, or any other labor organization.
(d) Threatening employees with discharge and/or economic re-
prisals because of their union activities, and offering promises of bene-
fit - to employees conditioned upon their refraining from union
activities:
^(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist said Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a) (3) of the Act, as
modified by Labor-Management_ Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer William Dunn immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges previously enjoyed, and make
him whole for any loss of pay which he may have suffered as a result
of its discrimination against him, in the manner set forth above in
the section entitled "The Remedy."
(b) Notify William Dunn, if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity 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.
(d) Post at its plant in South Haven, Michigan, copies of the at-
tached notice marked "Appendix." 9 Copies of said notice, to be fur-
nished by the Regional Director for Region 7, shall, after being duly
signed by the Company's representative, be posted by the Company
immediately upon receipt thereof, and be maintained by it for GO
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree
of the United States Court of Appeals , Enforcing an Order."
BANGOR PLASTICS, INC . 1173
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf
of International Union, Allied Industrial Workers of America,
AFL-CIO, or any other labor organization, by discharging or
refusing to reinstate employees, or by discriminating against em-
ployees in any other manner in regard to their hire or tenure of
employment or any terms or -condition of employment.
WE WILL NOT coercively interrogate employees concerning their
union activities and/or sympathies.
WE WILL NOT induce employees to form their own "inside" union
in preference to belonging to or supporting International Union,
Allied Industrial Workers of America, AFL-CIO, or any other
labor organization.
WE WILL NOT threaten employees with discharge and/or eco-
nomic reprisals because of their union activities or offer promises
of benefit to employees conditioned upon their refraining from
such activities.
WE WILL NOT in any other manner interfere with, -restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist said Union, or any other labor orga-
nization, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3)' of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to William Dunn immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
make him whole in the manner provided in the Board's Decision
for any loss of pay he may have suffered as a result of our dis-
crimination against him.
All our employees are free to become , remain , or to refrain from
becoming or remaining , members of the above-named or any other
labor organization.
BANGOR PLASTICS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered'by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 226-3244, if they have any question concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges filed on October 24, 1963, and April 3 , 1964, by Interna-
tional Union , Allied Industrial Workers of America, AFL-CIO, hereinafter referred
to as the Union , the General Counsel for the National Labor Relations Board, herein-
after referred to as the Board, issued a consolidated complaint on May 5, 1964, against
Bangor Plastics, Inc., hereinafter referred to as the Respondent or the Company,
alleging violations of Sections 8(a)(1) and ( 3) and 2(6) and (7) of the National
Labor Relations Act, as amended ( 61 Stat. 136 ), hereinafter referred to as the Act.
The Respondent thereafter filed a timely answer to the consolidated complaint denying
the commission of any unfair labor practices.
On June 11 and 12, and August 11 , 1964, pursuant to notice, a hearing was held
before Trial Examiner Wellington A. Gillis in South Haven , Michigan , at which all
parties were represented by counsel ,' were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and, subject to the limitation hereinafter elabo-
rated upon , to introduce evidence pertinent to the issues . A timely brief was subse-
quently filed by the Respondent . Thereafter , over the objection of counsel for the
General Counsel , I issued an order on September 11, 1964, granting the Respondent's
posthearing motion to reopen the record for the purpose of introducing into evidence
a copy of a document entitled "Amended Application for Hearing and Adjustment
1 Upon reconvening the hearing on August 11, 1964 , Wilks replaced Morad as counsel
for the General Counsel.
BANGOR PLASTICS, INC. 1175
of Claim" which had been filed with the State of Michigan Workmen's Compensation
Department on August 12, 1964, by William Dunn, the alleged discriminatee in this
proceeding.2
Upon the entire record in this case 3 and from my observation of the witnesses and
their demeanor on the witness stand, and on substantial, reliable evidence "considered
along with the consistency and inherent probability of testimony" (Universal Camera
Corporation v. N.L.R.B, 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent,' a Michigan corporation with its only office and place of business
at Bangor, Michigan, is engaged in the manufacture, sale, and distribution of plastic
moldings and related products. During the fiscal year ending September 30, 1963,
the Respondent manufactured, sold, and distributed products valued in excess of
$700,000, of which amount products valued in excess of $500,000 were shipped
directly to points located outside the State of Michigan. The parties agree, and I find,
that the Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Industrial Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether an informal settlement agreement entered into by the parties on Janu-
ary 9, 1964, disposing of 8 (a) (1) conduct allegedly occurring during the fall of 1963
was properly set aside by the Regional Director on February 20, 1964.
2. Whether, assuming the impropriety of the Regional Director's action in setting
aside the settlement agreement, it is proper to consider and rely on the presettlement
alleged 8(a)(1) conduct, absent any allegation or evidence of independent 8(a)(1)
conduct subsequent to the execution of the settlement agreement, in determining the
merits of an alleged 8(a)(3) discharge occurring on March 10, 1964.
3. Whether, in discharging employee William Dunn on March 10, 1964, the
Respondent was discriminatorily motivated.
B. Procedural background
The initial charge filed in this matter by the Union on October 24, 1'963,4 (7-CA-
4428) contained 8(a) (I) and (3) allegations, including an alleged unlawful dis-
charge of one Billie Baxter. Subsequently, the 8(a)(3) Baxter allegation was with-
drawn and an informal settlement agreement, executed by the Respondent on Janu-
ary 3, 1964, and approved by the Acting Regional Director on January 9, was entered
into by the parties. Pursuant to this agreement the Respondent, on January 20,
posted on its plant bulletin board, a notice to all employees, which notice apprised the
Respondent's employees that the Respondent would not engage in 8 (a) (1) conduct or
Said document , having been received in evidence , is hereby designated Trial Examiner's
Exhibit No. 1. The Respondent 's motion, in this regard , was granted on the ground that
it appeared that said document was not available to the Respondent prior to the close
of the hearing; the General Counsel asserted no ground for questioning or disputing its
authenticity ; and it appeared that said document contained matters material and relevant
to the issues in the instant proceeding, including issues of credibility
3 The Respondent' s motion , filed subsequent to the close of the hearing, requesting that
the transcript be corrected in the following particular is -hereby granted*
Page 26, line 20, "MR. ADAMS" should read "TRIAL EXAMINER."
d Hereinafter , with respect to dates where the year is not specifically designated, all
reference to the months of August through December will be to the year 1963, and refer-
ence to the months of January through June will be to 1964.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate their rights guaranteed them under Section 7 of the Acts Alongside this
Board notice, overlapping it by perhaps three-eighths of an inch but in no way cover-
ing the printed material, the Respondent posted a notice of its own, wherein the
employees were advised that the Company had obtained a dismissal of an important
portion of the unfair labor practices filed against it, and that, rather than litigate the
remaining portion of the charge, the Respondent agreed to the posting of the Board
notice, which in no way admits any wrongdoing on the part of the Company.6
By letter dated February 20, the Acting Regional Director advised the Respondent
that he had concluded that the Respondent's action in posting the supplementary notice
on January 20 constituted noncompliance with the terms of the settlement agreement,
and that, accordingly, he had withdrawn his approval of the settlement agreement and
would issue a complaint in the near future. Thereafter, on February 28, the initial
complaint in this matter issued, alleging that between September 4 and November 11,
1963, the Respondent had engaged in conduct violative of Section 8(a)(1) of the
Act. On April 3, before the scheduled hearing was held, a second charge (7-CA-
4428(2)) was filed by the Union against the Respondent alleging the unlawful dis-
charge of two employees, Nicholas Fortmann and William Dunn. Thereafter, a con-
solidated complaint was issued on May 5, alleging, in addition to the presettlement
8(a)(1) conduct contained in the initial complaint, the discharge of Dunn on
March 10 as violative of Section 8 (a) (3) of the Act.7
Belatedly, by letter of May 21, the Acting Regional Director advised the Respond-
ent that, in view of his determination that the Respondent unlawfully discharged
Dunn on March 10, such discriminatory conduct by the Respondent constituted a
violation of the terms of the settlement agreement, and that the record should reveal
that, in addition to the original basis for withdrawing his approval of the settlement
agreement on February 20 (noncompliance based on the posting of the supplementary
notice), the settlement agreement was also withdrawn because the Respondent's
March 10 conduct with respect to Dunn violated its terms.
6 In relevant part, this notice provided that:
We are posting this Notice to inform our employees of rights guaranteed them in
the National Labor Relations Act:
WE WILL NOT interrogate employees regarding union activities
WE WILL NOT threaten employees with any reprisal in order to encourage or
discourage membership in any labor organization.
WE WILL NOT engage in any activity designed to create the specific impression
of surveillance of our employees ' activities.
WE WILL NOT in any other way violate any of the rights which you have under
the National Labor Relations Act to form, join, or assist International Union,
Allied Industrial Workers of America, AFL-CIO, or any other union of your
choice, or to engage in union activities or to join with other employees for the
purpose of collective bargaining or other mutual aid and protection.
6 The Respondent's notice, date January 20, 1964, and signed by the Company assist-
ant manager , reads as follows:
NOTICE TO ALL EMPLOYEES
POSTED ON OUR BULLETIN BOARD IS AN OFFICIAL NOTICE OF THE
NATIONAL LABOR RELATIONS BOARD. THIS NOTICE IS BEING PRESENTED
PURSUANT TO AN AGREEMENT REACHED WITH THE NATIONAL LABOR
RELATIONS BOARD IN CONNECTION WITH UNFAIR LABOR PRACTICE
CHARGES WHICH WERE FILED.
THE COMPANY OBTAINED A DISMISSAL OF WHAT WE CONSIDERED TO
BE THE MOST IMPORTANT PART OF THE UNFAIR LABOR PRACTICE
CHARGES. RATHER THAN LITIGATE THE REMAINING PORTION OF THE
CHARGES, WE HAVE AGREED TO THE POSTING OF THE NOTICE.
THE POSTING OF THIS NOTICE IN NO WAY ADMITS ANY WRONG DOING
ON THE PART OF THE COMPANY. WE HAVE ALWAYS BELIEVED IN THE
PROTECTION OF THE LEGAL RIGHTS OF OUR EMPLOYEES. THE POSTING
OF THIS NOTICE IS DONE SOLELY BECAUSE WE DO NOT WISH TO WASTE
ANY MORE MONEY ON ATTORNEY'S FEES AND OTHER EXPENSES WHICH
WOULD BE INVOLVED IN THE LITIGATION
7 The record does not reveal what disposition was made of the charge pertaining to
Fortmann.
BANGOR PLASTICS, INC. 1177
At the commencement of the hearing on June 11, I granted the General Counsel's
motion to amend the consolidated complaint by adding thereto an allegation that, by
posting its supplemental notice alongside the Board's official notice on January 20,
and by discharging Dunn on March 10, the Respondent failed to comply with and/or
violated the terms of the settlement agreement, thereby violating Section 8(a)( I) of
the Act. Thereafter, the Respondent made several motions, the total effect of which
requested me to strike from the complaint all allegations other than the March 10
discharge of Dunn. After hearing extensive argument by all parties on the proce-
dural matter, I ruled that the Regional Director was in error in vacating the settlement
agreement, and thereafter, based on the Board's Larrance Tank decision, as imple-
mented by its more recent decision in Tompkins Motor Lines,8 I granted the Respond-
ent's motion to strike paragraph 8 of the complaint and all of the amendment to the
complaint, leaving in issue only the 8(a)(3) allegation concerning Dunn's discharge
on March 10. Subsequently, after counsel for the General Counsel made it know
that he intended to appeal this ruling, consonant with, and in addition to, this rul-
ing, I, for reasons hereinafter elaborated upon, denied General Counsel' s motion to
be permitted to make a record of the 8 (a) (1) conduct as well as its motion to be per-
mitted to introduce evidence of the presettlement alleged 8(a)(1) conduct as back-
ground material for establishing unlawful motivation with respect to the alleged
unlawful discharge of Dunn on March 10. In conformity with these rulings, the
General Counsel, after having made an offer of proof which was denied, proceeded
to elicit testimony and to introduce evidence, all of which postdated the January 9
approval of the settlement agreement, limited solely to the March 10 discharge of
Dunn.
At the close of the Respondent's case on June 12, having been apprised that the
General Counsel had filed with the Board in Washington, D.C., an interlocutory
appeal to my ruling by which I refused to permit the introduction of presettlement
evidence, upon motion of the General Counsel, I adjourned the hearing indefinitely
pending the Board's ruling on the General Counsel's appeal. On June 16 the Board
issued its Order granting the General Counsel' s request for special permission to
appeal my refusal to receive evidence of 8 (a) (1) violations that had been the subject
of the settlement agreement , granting the appeal thus reversing me on the ground that
the evidence sought is material and relevant to the complaint, and directing me to
receive in evidence conduct that was subject to the settlement agreement . Thereafter,
the Board having denied on July 1 the Respondent's motion for reconsideration of its
action, pursuant to an order resuming hearing issued by me on July 9, the hearing in
this matter was resumed on August 11, 1964. In complying with the Board 's directive,
on reopening the hearing, I reversed his prior rulings and reinstated the consolidated
complaint in its entirety, permitting thereafter the General Counsel to introduce into
the record evidence in support of the presettlement alleged violations as well as pre-
settlement evidence bearing on the alleged unlawful motivation of the Respondent in
effectuating Dunn's discharge on March 10.
C. Alleged presettlement 8(a) (1) conduct
In the middle of August 1963 employee William Dunn approached some of his fel-
low employees about organizing a union, and with their concurrence , Dunn there-
after obtained from his father-in-law union authorization cards for a carpenter's
union , which he commenced distributing to employees on September 4, when four
employees signed cards in an automobile located on the Company' s parking lot.
Later in the evening on that day, when Dunn and another employee returned to the
shop to talk with second-shift employees concerning the Union, Glenn Wokeck asked
him to come into his offices During the ensuing conversation , Wokeck asked him
what was wrong and what was going on, to which Dunn replied that he did not like
his wages being cut and Wokeck's doing it behind his back. Wokeck asked Dunn
what Nick Fortmann was signing on the hood of Billy Baxter's car, and was told that
it was a union card. Wokeck then said that he had planned, or threatened to pull
Dunn's card because he knew something was wrong, but he did not know what it was.
s Larrance Tank Corporation, 94 NLRB 352, and Tompksn8 Motor Linea, Inc., 142
NLRB 1.
6 Glenn F. Wokeck, the Respondent's assistant manager, is the son of Emit 0. Wokeck,
the president, general manager, and founder of the Respondent . For the sake of simplicity
and in order to avoid confusion, hereinafter throughout this Decision reference to Glenn
Wokeck will be by his last name only, while Emil Wokeck will be referred to by his full
name.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wokeck also asked Dunn for a union card, and when Dunn told him that he did not
have one at the time, Wokeck asked Dunn to let him know whether he would change
his mind about the Union.
The following morning, September 5, just before reporting to work on the 7 a.m.
shift, Dunn gave Wokeck a union card that he had asked for and told him that he had
made up his mind on the Union and was not going to change it.10 A few minutes
later, at the start of the shift, Wokeck called a meeting of all first-shift employees,
approximately 25 in number, which lasted some 30 to 40 minutes. Upon opening the
meeting, Wokeck displayed the union card, and told the assembled employees that
he knew that union cards were being distributed. He went on to say that he did not
know who was passing them around and did not care to know, but that he thought
that the Company was treating the employees all right and that he wished that they
had spoken to him about their troubles and problems before all this came up. After
telling the employees that he could not understand why they would want to pay dues
to an outside union to come in and do their thinking and bargaining for them, Wokeck
stated that he would rather see the employees form a committee or an inside union
of their own, that they could elect their own officers who could represent the employees
in conveying complaints to him. Questions concerning such a possibility were then
raised from among the employees, after which Wokeck offered to help the employees
organize a local union and told them that in this regard he would lend them assistance
and cooperate in any way that he could. Wokeck closed by telling the employees
to think it over and let him know in a few days.
The findings as to this meeting are based on the testimony of a number of witnesses,
but particularly on that of former employees Erwin Watson and Nicholas Fortmann,
whom I found to be most credible and unbiased. With the exception of a couple of
statements, which I do not credit, attributed to Wokeck by Dunn and Marvin Lewan-
dowski,ll neither of whom impressed me on the witness stand as being completely
honest or straightforward in their testimony, concerning the deprivation of employees'
right to discuss problems with Wokeck once they had signed union cards and that
"more or less" a padlock would be put on the door by the Union, the only real factual
issue in dispute concerns the question of whether Wokeck or employee Lewandowski
was the one who initiated the suggestion that the employees form a committee or an
inside union of their own. In this regard, Fortmann and Watson credibly testified that
Wokeck initially made the suggestion, the latter testifying that Lewandowski did
not. Employee Jerry Laska, whom I also found to be most credible, testified that,
although he thought Lewandowski presented the committee proposal, he remembered
the meeting only vaguely and did not recall too much that went on. Lewandowski,
whose demeanor I have already appraised, denied that he raised the topic and testi-
fied that it was Wokeck. Dunn, the alleged discriminatee, who, in his pretrial affi-
davit, indicated that Lewandowski raised the matter and that Wokeck thought it was
a good idea, testified on the witness stand that he could not recall whether Lewandow-
ski initiated the subject, but thought that it was Wokeck. Shop Foreman Chester
Slazek recalled little of the meeting, and was not questioned as to who initiated the
inside union suggestion. Wokeck, who admits to discussing the matter, telling the
employees that it could be done and offering "any assistance that they might need,"
was less than positive himself, testifying that, as he recalled, "one of the employees
brought up the question" and it seemed to him that it was Lewandowski.12 There-
fore, as set forth above, based on the credible testimony as a whole, I find that at this
September 5 meeting it was Wokeck who initiated the discussion concerning the pos-
sibility of organizing an outside union.
11 The above factual recitation is based on the unrefuted testimony of Dunn, Wokeck not
having been questioned on these occurrences.
11 Marvin Lewandowski, who testified on behalf of the General Counsel, should not be
confused with Alvin Landowski who was called by the General Counsel early in the
proceeding but did not testify because of my ruling by which I refused to receive evidence
of presettlement conduct.
12 With respect to the meeting generally, Wokeck testified that he called the meeting
to find out what the problems were and what was bothering the employees, and that he
thought they had problems "because they evidently were discussing the possibility of
joining an outside union for representation and I wanted to know why." Wokeck fur-
ther testified that, when asked if it were possible to organize a "shop union," he told the
employees that they would have to do this themselves, that they could elect their own
officers who could meet with him once a month "to iron out problems," and that be
would be willing to help and give his assistance in any way that he could. Wokeck
denied, and I credit his denial, having discussed what would happen if the employees
went to an outside union or having stated that an outside union might padlock the plant.
BANGOR PLASTICS, INC. 1179
Dunn testified that a few days later, on September 9, about 3:30 p.m., he was called
into Wokeck's office, where Wokeck told him that the next time he was caught talk-
ing or discussing the Union on company time or premises he would fire him on the
spot Wokeck also volunteered his opinion that Dunn did not think much of his wife
and family, otherwise he would not be trying to organize the Union.13
The following day, September 10, at the suggestion of several employees that an
employee meeting be held to discuss the union matter, Lewandowski secured the per-
mission of the Respondent's officials to hold a meeting at 3 p.m. between the first and
second shifts, which meeting was attended by all 30 employees. A notice to this effect,
prepared by Lewandowski, and signed by Wokeck, Slazek, and Plant Superintendent,
James Poulten, was posted on the bulletin board by Lewandowski. Lewandowski
conducted the meeting, which was not attended by company officials, and raised the
alternatives of having an outside union, an inside union, or a three-man committee.
After considerable discussion, a vote was taken by which a vast majority decided to
call in a union representative to talk with the employees concerning an outside union.
The morning following this meeting, Wokeck asked Lewandowski how the meeting
came out, and, when apprised of the fact that the employees had voted 20 to 8 in
favor of having a union representative talk to them, Wokeck told Lewandowski that
any such meeting would not be held on company time or premises and that it would
have to be held elsewhere. Plant Superintendent Poulten, when informed by Lewan-
dowski on this date of the outcome of the meeting, told Lewandowski that the employ-
ees had tied the boss' hands and that "he can't do nothing now." 14
Dunn testified that on September 24, lust before the start of the 7 a.m. shift, Slazek,
in the presence of several other employees whom he could not remember, told Dunn
that he did not see why Dunn did not forget about the Union, that it was not going
to get him any place, and that he would lose his bonuses and benefits over the Union.
Slazek's version, which I credit, is that, on this occasion, he told Dunn that their plant
was too small for any union and that he believed that "we could all be hurt more than
it could do any good." 15
Dunn further testified that about 9 a.m. on October 1, Slazek approached him while
at work at his press and told him that there was a plastics plant in Dearborn, Michi-
gan, that had to close down and move away because of union organization, that a
union was all right but not at Bangor Plastics, and that Dunn would be lucky if he got
six votes for the Union Slazek, although not questioned with respect to the vote por-
tion of the statement attributed to him by Dunn, admitted that on this occasion he
told Dunn that Lewandowski had apprised him of the fact that the Dearborn plant
where Lewandowski first started to work had moved because of union activities and
that "that could happen to us."
Sometime around the middle of October, Emil Wokeck called employee Fortmann
into his office and after telling him, among other things, that the Company had made
more money than had been anticipated that year and that he was attempting to find out
through his lawyer whether it would be possible to divide such earnings among the
employees in the form of a Christmas bonus, which had been done in past years,
18 At this point, according to Dunn, he apprised Wokeek that he was having financial
problems , that his wife was due to have a caesarean birth, that he had been trying to get
the Company to hold savings out of his paycheck in order that he would be in a position
to pay the hospital bill, and that the Company , while granting the request to others, had
refused him. Wokeck told Dunn that he was willing to help him, and that he would
make arrangements to hold out a weekly amount and send it to the hospital each month.
Wokeck was not questioned as to whether he made these statements or whether this
conversation took place, but testified that he did not recall that Dunn was in his office
on this date . Accordingly , the testimony of Dunn as to this incident stands unrefuted.
1{ These two incidents , as related above are based on the unrefuted testimony of
Lewandowski . However, based in part on Wokeck's dental , which denial is corroborated
by the credited testimony of Poulten , I do not credit Lewandowski's further testimony
that on September 19 Wokeek called Lewandowski into his office and told him, in front
of Poulten, that he would discharge any person that had anything to do with union
activities.
15 Nor, in view of Slazek's denial , do I credit Dunn's testimony to the effect that at
7:55 a.m. on October 1, while working at press 20, Slazek made reference to Union
Representative Albert Davis, in a most deprecating manner, asking Dunn with whom he
saw him with the previous Friday night Slazek, although admitting that he had told some-
one at sometime that Davis was the type of person who lived off the earnings of other
people, specifically denied making the deprecating statement attributed to him on this
occasion by Dunn.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than pay it by way of income tax, Emil Wokeck said to Fortmann, "I don't
know if you're active in the Union or not." Nothing further appears to have been
said by either person.16
On November 11, shortly before noon, Wokeck approached Dunn at his press, and,
according to Dunn, Wokeck told him that he could pull him off of any press in the
plant anytime he wanted to, that there was nothing that he or the Union could do
about it, and that the next time that he heard of anything going around the shop
about the Union from him, Wokeck was going to fire him. Wokeck's testimony as to
this incident is substantially corroborative of Dunn. Wokeck testified that he told
Dunn that he had had reports that Dunn was complaining about being shifted around
on various jobs and that the scheduling of work the placing of employees on jobs
where needed, was his prerogative. Wokeck followed this up by telling Dunn that he
did not want to find that Dunn was engaged in union organizational activities during
working hours and that if it were found that "he was doing this on company time,
on company premises," the Company would take necessary action to stop it 17
Apart from the above incidents, the credible evidence reveals that during this period,
the middle of August through the middle of November, Dunn was very active in sup-
port of the Union and in an attempt to obtain employee signatures on union authori-
zation cards, that he worked directly with the union representative in this regard,18
that his organizational efforts were carried on at his home and on the company prem-
ises, and that the Respondent's officials were well aware of Dunn's active interest in
union activities.
Conclusions
As heretofore noted in part, the initial charge in Case No. 7-CA-4428 alleged the
above-employer conduct, consisting of alleged interrogation, threats, and interfer-
ence with the formation of a labor organization, to be violative of Section 8(a)(1)
of the Act. The parties, without an admission by the Respondent that such conduct
constitutes violations of 8(a)(1), entered into an informal settlement agreement on
January 9, 1964, disposing of all of the issues that were subject to said charge.
The Regional Director's subsequent February 20 ruling that the Respondent had not
complied with the terms of the settlement agreement and his withdrawal of approval
of the settlement agreement on that date, was based solely upon the Respondent's
having posted, a supplemental notice alongside of the Board notice.19 The General
Counsel's position, as articulated during the course of the hearing, with respect to
the Regional Director's determination of noncompliance is that (a) by posting its own
notice, the Respondent "altered" the Board notice, and (b) the Respondent's notice
contained an untrue statement, thereby nullifying the effect of the Board notice.
A perusal of the company notice, which, although slightly overlapping the edge
of the Board notice on the bulletin board, could not be considered as having "covered"
the latter within the intent of the Board's prohibitory requirement pertaining thereto,
discloses that it attempts to impart to the employees three things; namely, that the
Company obtained a dismissal of an important part of the charges that had been filed,
that by posting the notice the Company in no way admits to any wrongdoing, and,
finally, that the reason the Company had agreed to posting the Board's notice is
because it wished to avoid the expense of litigation. A respondent's communica-
tion to its employees that it does not admit to the commission of unlawful, conduct
as well as its motivating reason or reasons for settling charges is, in my opinion, well
within the prerogative of a respondent.29 As to the statement in the notice to the
effect that the Company , had obtained a dismissal of an important portion of the
charge, asserted by the General Counsel to be an untrue statement, while technically,
19 Emil Wokeck who, like Fortmann appeared most credible in testifying in this proceed-
ing, did not deny the above-quoted statement, which is taken from the testimony of Fort-
mann, but testified that be did not recall and did not think that he made such a state-
ment to Fortmann.
17 Wokeck testified that by necessary action, he meant terminating his employment.
is Although initially the distribution of cards was for a carpenter's union, upon con-
tact with Albert Davia, representative for the Allied Industrial Workers of America,
around the third week in September, all union activity, including the solicitation of em-
ployee signatures, was conducted on behalf of the AIW, the Charging Union herein.
19 There is no allegation and no evidence that the Respondent at any time subsequent
to November 11, 1963, engaged in any threats, interrogation, or interference with em-
ployee union activity (the type conduct giving rise to the settlement agreements) or in
any other independent 8(a)(1) conduct.
In fact, it is not at all uncommon to find a nonadmission statement in informal set-
tlements, and, occasionally in the official notice itself.
BANGOR PLASTICS, INC. 1181
perhaps, not entirely accurate ,21 the fact remains that it has been the Board 's practice
for many years , where, on the completion of an investigation of a charge, it appears
that the charge or any portion of it, lacks meet to solicit a withdrawal request, thereby
relieving the Regional Office of the necessity of dismissing the charge . Therefore, in
practice , except in those instances where a charging party refuses to withdraw, other
than a technical distinction , there is no substantial difference between withdrawal
action ( the acceptance of a solicited withdrawal request ) and dismissal action (the
act of dismissing a charge).
I find, without merit, the arguments advanced by the General Counsel in support
of its position that the Board's notice was "altered " by the Respondent 's posting of
its own notice or that the statement contained herein pertaining to the dismissal of a
portion of the charge was an untruth to the extent of compelling the Regional Direc-
tor's conclusion that the effect of the Board 's notice had been nullified . Accordingly,
I find the settlement agreement to have been erroneously set aside on February 20,
and, as there is no evidence that the Respondent entered into the settlement agree-
ment in bad faith or that, during the posting period or any time thereafter, the
Respondent breached the terms of the agreement , I further find that the Respondent,
in good faith , complied with the agreement disposing of the 8 ( a)(1) issues which
were the subject of the charge in Case No. 7-CA-4428. In view of this finding, while
having complied with the Board's Order of June 16, 1964, directing me to receive
evidence pertaining to presettlement conduct, I deem it unnecessary to make findings
on the evidence with respect to the presettlement conduct set forth above and recom-
mend that the allegations of the complaint , which are based on the initial charge and
those which are based on noncompliance with the settlement agreement , be dismissed
and that the settlement agreement be reinstated.
D. Reliance on presettlement conduct
Before treating the remaining portion of the complaint, specifically, the alleged
discriminatory discharge of William Dunn on March 10, 1964, there remains for
determination the additional procedural issue concerning whether, in determining the
merits of the alleged discharge violation, it is proper to consider and rely on the
presettlement conduct disposed of by the settlement agreement. An adherence to
Board precedent, particularly the longstanding rule enunciated in Larrance Tank
Corporation,22 and since reiterated in a multitude of cases, and the rationale of the
Board in its recent decision in Tompkins Motor Lines, Inc.,23 appears to preclude
such reliance. Thus, in Larrance Tank the Board held that it had become "estab-
lished practice not to consider as evidence of unfair labor practices conduct of the
Respondent antedating a settlement agreement, unless the Respondent has failed to
comply with the settlement agreement or has engaged in independent unfair labor
practices since the settlement." The Board further ruled that "in determining whether
such independent unfair labor practices have occurred after the settlement, the Board
will not appraise a Respondent's postsettlement conduct in the light of its conduct
prior to the settlement." [Emphasis supplied.]
A review of the applicable decisions rendered by the Board since Larrance Tank
reflects that the Board has not deviated from this principle. Thus, in Tompkins Motor
Lines, Inc., the rationale of which, in my opinion, governs the procedural issue before
us here, 8(a)(i) charges alleging a denial of employment to an individual were the
subject of a settlement agreement providing that the Respondent would not discrimi-
nate in the employment of casual employees and would not alter its past practice
concerning the employment of casual employees. Subsequently, based on the indi-
vidual's new 8(a)(1) and (4) charge that he had been "grounded" because of his
having filed a grievance and the original charge, the Regional Director set aside the
settlement agreement and issued a new complaint. After finding merit to the Respond-
ent's contention that the settlement agreement was improperly set aside on the ground
that the Respondent conduct complained of "was not a resumption or continuation of
the practices which were the subject of the settlement agreement," the Board,
distinguishing Larrance Tank on a very narrow and precise point, permitted the
consideration of evidence predating the settlement agreement to establish the Respond-
ent's motive, but did so solely on the ground that the parties to the settlement, agree-
ment had clearly exempted from the settlement and reserved for future determination
the "grounding" issue, and that, "in so doing, they implicitly agreed that the considera-
"As set forth above, the 8(a) (3) portion of the charge alleging an unlawful discharge
was withdrawn.
at Supra.
23 Supra.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the prior evidence was also reserved ." The Board made it abundantly clear
that , but for the very unusual procedural circumstances giving rise to the problem in
Tompkins.24 circumstances not present in the instant case, it would have applied the
Larrance Tank rule prohibiting reliance on presettlement conduct in determining
whether or not a subsequent violation had occurred.
Apart from the fact that in the instant case there is no such "agreement to leave a
known issue for later disposition ," the facts in Tompkins are not unlike those with
which we are here concerned . Thus, without attempting to minimize the asserted
inadequacies inherent in the application of the Larrance Tank procedural rule,25
there appears no basis for refusing to follow the Board 's directive in this regard.
E. The termination of William Dunn
The record evidence reveals that Dunn, the sole alleged discriminatee involved, was
first employed by the Respondent on February 20, 1962, and that he worked continu-
ously until his discharge on March 10, 1964. During his tenure with the Company,
Dunn was considered a cooperative employee, but one who compiled a record of
excessive absenteeism.
On March 10, 1964, sometime between 12 : 30 and 1 p.m., Shop Foreman Chester
Slazek and employee draftsman Phillip Lee, by chance happened to meet each other
at a point in the shop which was within a few feet of the preform machine being oper-
ated by Dunn. Lee, who had with him a process or worksheet covering operations
required to run a job , engaged Slazek in a 5- to 10 -minute conversation relating to the
process sheet . After they had been so engaged for several minutes and at the end of
their discussion , Dunn , turning in the direction of the two men and looking squarely
at Foreman Slazek with a serious facial expression, made reference to them standing
there and watching him by way of uttering a most vulgar and obscene personal epithet.
While there is no question concerning the fact that Dunn uttered the vulgar lan-
guage, for he freely admitted having done so, Dunn testified that he made his utter-
ance after they had been staring at him for 5 to 10 minutes . Dunn further testified
that when Slazek responded by asking him what he meant by the remark and for
whom the vulgar term was intended , Dunn replied that he could take it either way he
wanted it Slazek testified that while engaged in the conversation with Lee he glanced
at Dunn a few times and could see what he was doing , and that, upon Dunn 's sudden
utterances , Slazek asked Dunn whether he was trying to be wise or funny. Lee, cor-
roborating Slazek's version of the incident generally, as did employee Jerry Laska
who was in a position to overhear Dunn's obscene reference to Slazek , testified that
neither he nor Slazek was staring at Dunn.26
That afternoon , shortly after 3 p.m., Slazek reported the incident to Emil Wokeck,
complaining that he should not have to take that kind of verbiage , and also apprising
Emil Wokeck of a March 3 incident where Dunn accused Slazek of obscene conduct
with Emil Wokeck as the basis for his getting along so well with the company presi-
dent.27 Thereafter, Emil Wokeck , on his own and out of the presence of Slazek,
based on the two incidents of directing obscene vulgarities to supervision reported to
him by Slazek , made the decision to discharge Dunn. The decision was then conveyed
to Slazek, who, in turn , apprised Dunn at 3:30 p .m., in the presence of Plant Superin-
tendent Poulten that he was terminated for the insulting manner in which he had
24 As pointed out by the Board in its decision, at the time of entering into the settle-
ment agreement the parties were aware of the individual 's claim of being denied driving
work for discriminatory reasons and were not thereby agreeing to correct the matter, in
effect, reserving it for later disposition in the event that a new charge were filed
I- The severe limitations of Larrance Tank were hypothetically posed by the Trial Ex-
aminer in his Intermediate Report in the Tompkins case, ( see 142 NLRB 1 at 10) and were
rejected.
Thus , the only real dispute as to this incident involves the question of whether
Slazek and Lee were staring at Dunn during their conversation. In finding that such
was not the case, I do so mainly on the credible testimony of Lee , whom I found to be
a most truthful and unbiased witness and one whose demeanor on the witness stand
impressed me at all times, and partly on the uncertain testimony of Dunn who, when
questioned initially on direct examination as to what Slazek and Lee were staring at,
answered "I took it they were staring at me."
a. Dunn, while admitting having directed a remark slightly less obscene to Slazek on
this March 3 occasion, testified that Slazek retorted with obscenity. While not placing
Slazek above one who would engage in vulgarities, for reasons hereinafter expressed con-
cerning Dunn's credibility, I credit Slazek's version of the incident and his denial of
the retort attributed to him by Dunn
BANGOR PLASTICS, INC. 1183
addressed him that day.28 Slazek handed Dunn his check, and Dunn left with the
remark that he would see Slazek in court.
With respect to Dunn's credibility generally, based in part on my observation of his
demeanor while testifying and in part on a perusal of his record testimony and other
documentary exhibits, I find it difficult to find his testimony completely worthy of
belief. Recognizing that in this type of proceeding an alleged discriminatee, as well
as a respondent official directly involved, is often prone to testify in a manner most
beneficial to his own interests, which may or may not transcende the bounds of truth-
fulness, and, appreciating as well the fact that often a lapse of time or other factors
may cloud the ability of a truthful witness to recall with accuracy the events on which
he may be questioned, I am persuaded that Dunn, in testifying in this proceeding,
went far beyond the former and in no way qualified for the latter. Thus, apart from
other inconsistencies and exaggerations, his testimony to the effect that he directed
vulgar epithets to Slazek from 2 to 20 times a day from July 1962 until his discharge
on March 10, 1964, not only is unbelievable, but is refuted by overwhelming credible
testimony to the contrary. Concerning another facet of his testimony, Dunn first tes-
tified that a company notice posted on the bulletin board covered a Board notice, and,
on further questioning, subsequently testified that it did not cover any of the writing,
but mererly overlapped the edge of the paper by about three-eighths of an inch.
According to a June 1, 1964, decision of a referee of the Michigan Employment Secu-
rity Commission, received in evidence as General Counsel's Exhibit No. 3, Dunn,
in testifying on behalf of his application for unemployment compensation on May 7,
1964, testified that his March 10 remarks "were not directed to anyone in particular"
and "that he was in a habit of talking to himself and this was what he was doing on
this occasion." Contrary to this testimony, Dunn, in the instant proceeding, not
only did not claim any such thing, but freely admitted directing a vulgar epithet at
Slazek. Finally based upon Dunn's application before the Michigan Workmen's
Compensation Department (Trial Examiner's Exhibit No. 1), Dunn, on August 11,
1964, one day before the hearing in the instant case was resumed, asserted that he
had incurred internal injuries and an aggravated back condition from bending, twist-
ing, and lifting while working for Bangor Plastics, "which necessitated being dis-
charged in March 1964." Apparently Dunn had some physical defect at the time he
was initially hired, which was adverted to by Emil Wokeck in tracing Dunn's employ-
ment history. However, the record contains no evidence of Dunn having sustained
injuries during his employ with the Respondent, and, apart from a bare assertion by
Respondent's counsel during the hearing that Dunn's past difficulty in physically per-
forming some of Respondent's work was a secondary reason for his discharge, there
is no evidence that Emil Wokeck, in making the decision to discharge, considered
any injuries Dunn might have received during his employment, or that Slazek, in
apprising Dunn of his discharge, adverted to any reason other than the obsecene vul-
garity directed to him by Dunn. (The two exhibits referred to above are relied on
solely as a basis for assisting the resolution of credibility, and in no way for establish-
ing the facts.) One who, for the purpose of fostering his own cause or betterment,
will serve his interests, is hardly worthy of belief. Accordingly, other than where I
have heretofore specifically given credence to Dunn's testimony, I find it credible only
to the extent that it is corroborated by other credited testimony.
Conclusions
The General Counsel contends that Dunn was discharged on March 10, 1964,
because of his union activities. The Respondent denies that union activity had any-
thing to do with the decision to terminate Dunn , and asserts that Dunn was dis-
charged for having directed vulgar epithets to Foreman Slazek 29
With respect to Dunn's union activity between January 9 and his discharge on
March 10, Dunn testified that he continued'to engage in union activity, but, when
asked specifics, his testimony with respect to overt acts was limited to the fact that
he met with the union representative "a few times, but the other employees didn't,"
and that he signed up a new employee during the first part of February in the com-
29 Notwithstanding that Poulten was not questioned concerning a statement attributed
to him by Dunn to the effect that on this occasion Poulten said it is "not for the reason
you think it is ," I credit Slazek's denial of Dunn's testimony.
The Respondent asserts that, additionally, Dunn's record of excessive absenteeism
and a poor work record were also taken into consideration.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany parking lot.30 Other than the above and a March 5 union notice posted on
the plant bulletin board apprising employees of the pending unfair labor practice
charges and soliciting support for the Union, the record is void of evidence indi-
cating overt union activity in the Respondent's plant and among its employees dur-
ing the period in question. Furthermore, and particularly material to the alleged
unlawful discharge motive, there is absolutely no evidence that any union activity
engaged in by Dunn during this period was made known to any of the Respondent's
officials,31 including President Emil Wokeck who alone made the decision to dis-
charge Dunn on March 10, and who credibly testified that he had no knowledge of
any union activity by Dunn subsequent to January 9, 1964.32
Lest the issue be confused, the sole question for determination at this point is
whether Emil Wokeck, in discharging Dunn on March 10, did so because of his
union activity. In treating the issue, it first must be recognized that Emil Wokeck
had the right to discharge Dunn, or any other employee in his employ, for any rea-
son whatsoever, or for no reason at all, so long as the decision to terminate was not
motivated by union considerations. It must also be understood that a reason asserted
by an employer for effectuating a discharge or for taking other disciplinary action
is material to the resolution of the discharge issue only where the circumstances
raise a question as to the employer's motivation.33 Assuming, arguendo, that on the
facts above found there exists a question concerning Emil Wokeck's motive in dis-
charging Dunn, it must be further recognized that, in considering the basis asserted
by the Respondent for the discharge, I am not entitled to substitute my judgment
for that of the Respondent as to what he would have done or as to what was proper
for the Respondent to have done under the circumstances.
In an attempt by counsel for the General Counsel and counsel for the Respond-
ent, respectively, to minimize or to emphasize the significance of employee Dunn's
use of obscenity to Foreman Slazek on March 3 and 10, a large portion of the record
in this case is comprised of testimony, pro and con, relating to the matter of the
use of vulgarity and obscenity in the plant by employees generally, as well as by
Dunn and Slazek. To the extent that this testimony, credible or otherwise, con-
cerns only the amount or type of language used in the plant by employees or super-
vision in their every day casual conversation, I deem it irrelevant to the matter at
hand. What I do consider relevant is the extent to which employees had been in
the habit of directing to company officials, not merely a cuss word or a swear word,
but vulgar and obscene epithets of the type used by Dunn to Slazek without any
31 Dunn's testimony, even if believed, to the effect that he asked employee Laska to sign
a union card at his home during the "latter part of March,"-while establishing con-
tinued union interest, is not relevant to his union activity prior to his March 10 dis-
charge. In any event, Laska, a credible witness, answered in the negative when asked
if Dunn requested him to sign a card in February or early March. Dunn's further testi-
mony that he thought that the plant was handbilled sometime after January 9 by Union
Representative Davis, in no way implicates himself.
Si In the absence of any such evidence, I attach no material significance to the un-
refuted and uncorroborated testimony of Dunn to the effect that: (a) At 9 a.m., on
March 10, during breaktime with a few other employees, Slazek, making reference to the
posted union notice, "wanted to know how come I posted this notice on the bulletin
board , and then accused someone else of doing it," to which Dunn replied (truthfully)
that he had not posted it , or (b) at 1: 30 p.m., while walking along the hall with Slazek
and other employees returning to work, the latter said he "still couldn't understand why
I posted this notice on the bulletin board and denied it."
32 Emil Wokeck, who founded the business some 20 years ago, impressed me as a soft-
spoken, highly thought of, elder German gentleman of the old school, very proud of his
accomplishments during the intervening years, and one who would be extremely honest
and fair in all of his dealings , whether they involved his employees, his business asso-
ciates, his competitors, or otherwise. Although Wokeck appeared on the witness stand
for but a relatively short time, I have more confidence in my ability to assess the veracity
of his testimony than I have in many other cases. Based on my observation of the
witness, both on and off the stand, I am of the opinion that without question Emil Wokeck
is a man of honor, who was completely forthright and truthful in testifying in this pro-
ceeding. I credit his testimony fully.
= For example, in any given case, total lack of evidence of knowledge by an employer
of an employee 's union activity, absent circumstances warranting an inference to the con-
trary, normally would render the employer 's asserted reason unnecessary to a determina-
tion of the question of motivation.
STRYDEL INCORPORATED 1185
apparent justification on these two occasions just prior to his discharge.34 Notwith-
standing the fact that it would appear that Dunn not infrequently used foul lan-
guage in his speech,35 the credible evidence supports the Respondent's assertion that
employees generally, and Dunn, specifically, while perhaps using such language,
did not direct vulgar epithets at supervisors or company officials. Thus, contrary
to the discredited testimony of Dunn to the effect that he called Slazek a vulgar
term 2 to 20 times a day over an extended period of time, and contrary to certain
testimony of Lewandowski, whose veracity also leaves much to be desired, Lee
testified that he never heard any employee, including Dunn (except on the March 10
occasion), call Slazek or any supervisor a vulgar name to his face. Credited
employee Laska's testimony, corroborating that of Lee, tends to substantiate Slazek's
testimonial assertion that neither Dunn nor any other employee had before used
vulgar language in addressing him.
More important to this matter, however, is the fact that Emil Wokeck, who, as
above related, alone made the decision to terminate Dunn, credibly testified that
until Slazek's report to him on the afternoon on March 10 concerning Dunn's con-
duct, he had never been apprised of vulgar language being directed to his super-
visors. Based in great part on my appraisal of Emil Wokeck as an individual,
including the fact that Emil Wokeck impressed me as a person who would be most
affronted by the use of such obscenity as was used by Dunn to his Shop Foreman
Slazek, I am persuaded that Emil Wokeck, on learning of these two occurrences
involving Dunn's language , decided, as he testified, to terminate Dunn immediately
for this reason.
Accordingly, I find and conclude that the General Counsel has failed to prove by
a preponderance of the credible evidence the complaint allegation that the discharge
of William Dunn on March 10, 1964, was based on his union activity of any unlaw-
ful consideration,36 and therefore, further find that the Respondent has not engaged
in conduct violative of Section 8(a) (3) of the Act.
Upon the basis of the foregoing findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Bangor Plastics, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety, and that
the settlement agreement be reinstated.
84 The distinction being drawn Is that between general use of vulgarity and obscenity in
one's every day speech and calling a foreman, to his face, a vulgar and obscene name.
35 Former employee Phillip Lee, whom I have credited, referred to Dunn as "one of the
most vulgar men I 've ever heard."
u Furthermore , were I , contrary to the fact , permitted to consider the presettlement
evidence relating to union activity generally , and to Dunn, specifically, some 4 months
prior to the discharge, under all of the circumstances , including the lack of evidence of
union animus on the part of the Respondent during this intervening period, my finding
with respect to Dunn's termination would not be altered.
Strydel Incorporated and International Union of District 50,
United Mine Workers of America.' Case No. 8-CA-3774. Feb-
ruary 1, 1966
DECISION AND ORDER
On November 9, 1965, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the Re-
1 Referred to herein as District 50.
156 NLRB No. 114.