Barko Hydraulics, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1976

225 N.L.R.B. 1379 (N.L.R.B. 1976)

BARKO HYDRAULICS, INC
Barko Hydraulics , Inc. and International Brotherhood
of Boilermakers , Iron Shipbuilders, Blacksmiths,
Forgers and Helpers , AFL-CIO. Case 18-CA-4796
and 18-CA-4835
September 17, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 16, 1976, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Barko
Hydraulics, Inc., Superior, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following paragraph 2(c):
We correct an inadvertent error in the Administrative Law Judge's De-
cision in sec 1II,A , last paragraph, where the Administrative Law Judge
finds that Respondent violated Sec 8(b)(1) of the Act by its announcement
that established employment benefits would be discontinued As correctly
stated by the Administrative Law Judge in his conclusions of law , Respon-
dent violated Sec 8(a)(l) of the Act by its conduct In sec III,C, fourth
paragraph , the Administrative Law Judge states that Respondent discontin-
ued its periodic wage increases upon the advice of counsel, Employers In-
dustrial Relations Council In its brief , Respondent asserts that it did not
retain the Employers Industrial Relations Council until after that event oc-
curred and , therefore , the Administrative Law Judge made an erroneous
assumption as to the identity of the counsel which advised it on that occa-
sion Assuming, arguendo , the accuracy of Respondent 's factual assertions,
we find no prejudicial error in the Administrative Law Judge 's assumption
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 ( 1950), enfd 188 F2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2
The Administrative Law Judge inadvertently failed to specify in his
recommended Order that Respondent reinstate its wage progression policy
1379
"(c) Reinstate its wage progression policy and
make whole its employees for any loss of wages they
suffered by reason of the Respondent's unilateral dis-
continuance of its wage progression policy, together
with interest thereon, as prescribed in the Remedy
section."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
loss of established employment benefits because
they have engaged in union activities or because
they have selected a union to represent them for
the purposes of collective bargaining.
WE WILL NOT discharge Larry Lowrey, or any
other employee, because of his union activities,
sympathies or interests.
WE WILL NOT unilaterally and without giving
notice or opportunity to bargain to International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO,
discontinue our established practice of granting
periodic wage increases to our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Larry Lowrey immediate and
full reinstatement to his former position of em-
ployment or, if that job no longer exists, to a
substantially equivalent position, and WE WILL
make Larry Lowrey whole for any loss of earn-
ings he suffered by reason of our discrimination
against him.
WE WILL reinstate our policy of granting peri-
odic wage increases and WE WILL make our em-
ployees whole for any loss of wages they suf-
fered by reason of our discontinuation of our
policy of granting periodic wage increases.
WE WILL, upon request, bargain collectively
with the International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL-CIO, in respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment for all our employees in the
following described bargaining unit:
All full-time and regular part-time produc-
tion and maintenance employees employed by
225 NLRB No. 198
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barko Hydraulics, Inc. at its Superior, Wis-
consin, location, including over-the-road
truck drivers, but excluding office and plant
clerical employees, professional employee, re-
search and development employees, technical
employees, guards and supervisors as defined
in the National Labor Relations Act, as
amended.
BARKO HYDRAULICS, INC.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
These consolidated cases came on to be heard before me at
Superior, Wisconsin, on March 30 and 31, 1976, upon a
complaint I issued by the General Counsel of the National
Labor Relations Board and an answer filed by Barko Hy-
draulics, Inc., hereinafter called the Respondent. The is-
sues raised by the pleadings relate to whether or not the
Respondent violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended, by acts and con-
duct hereinafter specified. Briefs have been received from
the General Counsel and the Respondent and have been
duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. PRELIMINARY MATTERS
(COMMERCE, JURISDICTION, AND LABOR ORGANIZATION)
The complaint alleges, the answer admits , and I find that
(1) the Respondent is engaged at Superior , Wisconsin, in
the manufacture and sale of hydraulic equipment; (2) its
purchases of materials and sales of goods in interstate com-
merce are sufficient to satisfy the Board's standard for the
assertion of jurisdiction ; and (3) the Respondent is an em-
ployer within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The complaint also alleges , the answer
admits, and I find that the International Brotherhood of
Boilermakers , Iron Shipbuilders , Blacksmiths , Forgers and
Helpers, AFL-CIO, herein called the Union , is a labor or-
ganization within the meaning of Section 2(5) of the Act.
11. THE APPROPRIATE BARGAINING UNIT AND THE UNION'S
MAJORITY STATUS
On or about November 6, 1975, following a Board-con-
ducted election, the Union was certified as the sole and
I The order consolidating cases, complaint, and notice of hearing was
issued on January 27, 1976, on charges filed on November 19, 1975, and
January 8, 1976, and duly served on the Respondent
exclusive collective-bargaining agent for the Respondent's
employees in the following described unit.
All full-time and regular part-time production and
maintenance employees employed by Barko Hydraul-
ics, Inc. at its Superior, Wisconsin, location, including
over-the-road truck drivers, but excluding office and
plant clerical employees, professional employees, re-
search and development employees, engineering em-
ployees, technical employees, guards and supervisors
as defined in the National Labor Relations Act, as
amended.
On the basis of the foregoing, and the Respondent's ad-
mission by answer, I find and conclude that at all times
material to these cases the Union has been the sole and
exclusive bargaining representative of the Respondent's
employees in the above-described bargaining unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The General Counsel alleges, and the answer denies, that
the Respondent refused to bargain with the Union by uni-
laterally discontinuing its practice and policy of granting
its employees periodic wage increases. The General Coun-
sel further alleges, and the answer denies, that the Respon-
dent violated Section 8(a)(I) of the Act by threatening its
employees with a loss of employment benefits because of
their activities on behalf of the Union. Further, the Gener-
al Counsel alleges, and the answer similarly denies, that the
Respondent violated Section 8(a)(3) of the Act by dis-
charging Larry A. Lawrey on January 2, 1976, because
Lawrey had engaged in union activities.
A. The Threat To Discontinue Employment Benefits
On the morning of October 31, 1975,2 the day after the
election in which the employees selected the Union as their
bargaining representative, the Respondent's plant superin-
tendent, Charles Schweikert, made an announcement over
the plant loudspeaker canceling certain employment bene-
fits the employees had previously enjoyed. According to
the testimony of employees in this proceeding, Schweikert
announced that the Respondent would no longer issue
coveralls, that change would no longer be available at the
parts counter for vending machines, and that the employ-
ees would no longer be permitted to play radios at their
work stations, or be permitted to play cards during lunch
and break periods.
The Respondent was apparently not satisfied to rely
solely on the loudspeaker announcement that certain em-
ployment benefits were canceled, and Schweikert directed
the foremen to circulate among the employees and repeat
the announcement. Employee Roger Gellerstedt testified
that Foreman John Gillette called Gellerstedt, Richard
Plets, and Larry Lawrey over to a work station and told
them that as of Monday the Company would discontinue
coveralls, the playing of radios in the shop, cardplaying,
2 All dates hereinafter are in 1975, unless specified to the contrary
BARKO HYDRAULICS, INC
and the availability of change at the parts counter. Gillette
told the employees that it was not his decision, but that of
management, and that it would not change his working
relationship with the employees.
Foreman John Gillette confirmed that, after the loud-
speaker announcement on October 31, he and other fore-
men were called to the office and directed by Schweikert to
go out into the shop and tell every employee about drop-
ping coveralls, discontinuing change, and other re-
strictions. According to Gillette, the announcement of the
changes was rescinded during the afternoon of October 31,
and the employees were notified of the rescission.
Superintendent Schweikert testified in this proceeding,
but advanced no explanation for his announcement cancel-
ing the employee benefits. The only explanation in the en-
tire record is the Respondent's admission "that at certain
times emotions get the best of certain people, [and] when
cooler heads prevailed the Company actively took action
to go out and rescind the act." Insofar as the record re-
veals, the only event which had transpired to trigger
Schweikert's emotional state was the results of the election
on October 30, and I find accordingly that the announce-
ment to rescind certain employees benefits was an act of
retaliation for the employees' selection of a bargaining
agent.
There is no dispute that the cancellation of the benefits
was rescinded shortly after the announcement was made,
but I do not agree with the Respondent's contention that
the rescission obviates any violation of the Act. The an-
nouncement to cancel the benefits followed immediately
on the heels of the employees' selection of a collective-
bargaining representative; it was clearly an act of retalia-
tion; and, in light of the Respondent's other unfair labor
practices found below, the incident cannot be viewed as
isolated or incidental. Accordingly, I find and conclude
that the Respondent violated Section 8(b)(1) of the Act by
its announcement to discontinue established employment
benefits.
B. The Discharge of Larry Lawrey
Lawrey was hired by the Respondent in November 1973,
and first worked at the Respondent's Garfield plant in Du-
luth, Minnesota. When the Garfield plant was consolidated
Lawrey was transferred to the Respondent's Superior
plant, and he continued to work until his discharge on Jan-
uary 2, 1976. During the summer of 1975, Lawrey was ab-
sent for some period of time because of illness, and on his
return to work he was assigned to the outrigger department
for the 2-1/2 to 3 months preceding his discharge. Insofar
as the record reveals, Lawrey received only one written
warning from the Respondent, and that was received in
1973 while he was at the Garfield plant and was uncon-
nected with his work production and job performance.
Lawrey was summarily discharged on January 2, 1976, for
the alleged reason that his production of pads for outrigger
legs was inadequate
There is no question in this case that Lawrey was a
known union supporter, and that he was actively engaged
in the Union's campaign to organize the Respondent's em-
ployees. Lawrey was one of several employees appointed to
1381
the Union's in-plant organizing committe, and on October
2, the Union sent a mailgram to the Respondent's presi-
dent, Mr Bartel, stating that Lawrey and other employees
had been appointed to the committee. Although the Re-
spondent adduced testimony from its personnel director,
Albert Gerval, that he never saw the mailgram, there is
other direct evidence that it was received by the Respon-
dent, and that its agents were apprised of Lawrey's mem-
bership on the in-plant organizing committee. In addition,
Lawrey wore union buttons at work, including a button
designating him as a committee member and a "Vote Boil-
ermakers" button, and on several occasions he passed out
union handbills at the main entrance to the Respondent's
plant.
Just before the close of the workday on January 2, Gil-
lette approached Lawrey, handed him a slip of paper, and
directed him to read it. The slip of paper, entitled "Em-
ployee Warning Record," notified Lawrey that he was dis-
missed for very poor quantity of work. The slip was signed
by Superintendent Schweikert. Lawrey told Gillette that
the termination was not fair, and that he did not know
what he had done to deserve a discharge Gillette demand-
ed that Lawrey sign the slip, which he subsequently did to
acknowledge receipt.
On January 5, 1976, Lawrey returned to the
Respondent's plant and had a conversation with Superin-
tendent Schweikert. Lawrey asked if Schweikert did not
believe the discharge was unfair, and Schweikert replied
that Lawrey had been stealing time from the Company.
Schweikert added that he, Gillette, and Vice President Ed
Bartell had been watching Lawrey, that Lawrey had been
stealing time from the Company, and they decided it
would be better if his services were discontinued.
It is the General Counsel's contention that Lawrey was
singled out by the Respondent for discharge because of his
union activities and interests, and that the Respondent's
plea of dishcarge for cause is totally unsupported by the
record. The General Counsel argues that Lawrey's produc-
tion was adequate, that he had received no prior warnings
about the quantity of his work, and that in discharging
Lawrey without prior warning the Respondent abrogated
its established policy.
Lawrey's regularly assigned job was welding pads for
outrigger legs on the Respondent's model 160 hydraulic
loader, and this was the job to which he was assigned on
the date of his discharge. There is considerable testimony
in the record as to the amount of time required to weld an
outrigger pad, but upon the whole of the evidence I find
that 30 minutes to set up, tack, and weld a pad was not
inordinate, and the job could not be done in substantially
less time except by an extremely skilled welder. The 30
minutes is exclusive of the time required to obtain or cut
parts, and exclusive of other functions which Lawrey per-
formed in the outrigger department. In addition to welding
pads for the model 160, Lawrey welded pads for other
models, welded gear racks, and assisted his coworker Rich-
ard Plets in welding outrigger legs and performing other
functions. There is no dispute that on the day of his dis-
charge Lawrey had completed the welding on eight pads
and had four more tacked for final welding
There is substantial evidence in the record to support the
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's contention that Lawrey's discharge was
precipitous, and the discipline imposed on Lawrey was
completely out of proportion to his alleged insufficiency of
production. The Respondent's defense, on the other hand,
is contradictory, conflicting, and factually unsound.
Upon the testimony of Schweikert and Gillette, the Re-
spondent argues that Lawrey had been under close obser-
vation for some time prior to his discharge, and that his
continued failure to improve his production necessitated
his discharge on January 2, 1976. Schweikert testified that
he was aware of Lawrey's production problems as they
were reported to him by Gillette, and he also testified that
Roger Gellerstedt informed him in November that Lawrey
was slow. Gillette testified that in mid-December he had to
come to the plant on a Saturday to weld outrigger pads for
a shipping order, and that he talked to Lawrey the follow-
ing Monday about his lack of production. Gillette also tes-
tified that from December 15 through January 2 he had
other opportunities to observe Lawrey, and found his pro-
duction totally inadequate. Gillette admitted, however,
that his observations of Lawrey were on a spot check basis,
and Gillette had no knowledge of other duties Lawrey had
performed on those occasions he found his production on
outrigger pads insufficient.
I find serious defects in the version of events adduced by
the Respondent through its witnesses Schweikert and Gil-
lette. As Schweikert testified, employee Roger Gellerstedt
did comment that Lawrey was a slow worker, but Schwei-
kert did not relate the whole of the conversation Accord-
ing to Gellerstedt, whose testimony in this respect is unre-
butted, he had a conversation with Schweikert and Gillette
shortly after Lawrey was assigned to the outrigger depart-
ment. Schweikert asked Gellerstedt how Lawrey was
doing, and Gellerstedt replied that Lawrey was a little
slow. However, Gillette stated that this was not the fact,
and Lawrey was doing fine.
The contention that Lawrey was discharged for the rea-
son asserted by the Respondent is also suspect from the
testimony concerning who made the determination Ac-
cording to Lawrey's testimony, Schweikert told him on
January 5 that he, John Gillette, and Ed Bartell had been
watching Lawrey stealing time from the Company and
they thought it would be better if his services were discon-
tinued. Schweikert, however, testified specifically that he
made the decision to discharge Lawrey and did not discuss
the matter with Bartell. It is equally clear that Gillette,
notwithstanding he was Lawrey's immediate supervisor
and best able to evaluate his work, did not recommend the
termination. According to Gillette, he discussed Lawrey's
performance with Schweikert on January 2, but Schweikert
signed the discharge notice, and Gillette emphatically de-
nied that he recommended Lawrey's discharge, and that
the decision was made by Schweikert. Considering
Schweikert's union animus as exemplified by his cancella-
tion of benefits the day following the union election, the
inference is warranted that Schweikert's motivation was at-
tended by considerations beyond Lawrey's alleged poor
work performance.
To bolster its contention of a discharge for cause, the
Respondent also introduced evidence of timestudies which
it had conducted on employees assigned to the production
of model 160 outrigger pads I find this evidence equally
unimpressive as a defense to the allegation of discrimina-
tion.
Edwin H. Peterson, the Respondent's so-called timestu-
dy expert, testified that he conducted a timestudy on em-
ployee Joe Christman on January 6 and 8, 1976. According
to Peterson, he conducted the timestudy by punching
Christman's card at the beginning of the shift, punching
the card out at the end of Christman's shift, and tabulating
the results. While there is evidence that Christman's perfor-
mance on the 2 days in question was superior to that usual-
ly achieved by Lawrey, I find the results of the so-called
timestudy unpersuasive. There is no evidence that Christ-
man worked under the same conditions as Lawrey, or that,
like Lawrey, he was also required to perform functions
other than the welding of model 160 outrigger pads.
The evidence of the so-called timestudy is even less cred-
ible when judged in the light of Peterson's testimony of his
work check on Lawrey. Peterson testified that he observed
Lawrey at work and conducted a timestudy, but could not
recall when these events took place. Peterson testified that
his observation and timestudy was made a week or two
before Lawrey's discharge, but after Christmas. Later Pe-
terson testified that he could not recall when he talked to
Lawrey, but believed that it was before Christmas. Pe-
terson "imagined" that he observed Lawrey for a couple or
3 days, by means of spot checks made while walking
through the outrigger department. On cross-examination
Peterson expressed belief that his observations and conver-
sations with Lawrey were after Christmas, that he did not
inform Lawrey that he was conducting a timestudy and did
not show Lawrey the results. According to Peterson, he
kept a tabulation of the timestudy on Lawrey, which he
turned over to John Gillette on a date he could not recall.
The results of the timestudy on Lawrey were not produced
in evidence and, inasmuch as the documentation of the
results is the best evidence and within the Respondent's
sole control, I discredit all of Peterson's testimony concern-
ing his observations of Lawrey's work output
As to the General Counsel's contention of disparate
treatment, the record contains the testimony of five em-
ployees and a former supervisor concerning the
Respondent's policy of issuing warning slips to employees
before effecting their termination On a composite of this
testimony it is clear that, except in cases of particularly
egregious misconduct such as theft or destruction of com-
pany property, it is the Respondent's practice to issue writ-
ten warnings on the first two instances of misconduct or
inferior performance In the event of a third warning the
employee is generally disciplined by a suspension from
work without pay, and in the event of a further violation
the employee is discharged.
To rebut the evidence adduced through the General
Counsel's witnesses, the Resondent proffered the testimony
of its personnel director, Albert W. Gerval. According to
Gerval, who exemplified an astounding lack of knowledge
of the Respondent's personnel policies and practices, the
Company has no uniform practice with respect to the num-
ber of warnings issued to an employee before a discharge is
effected. To bolster Gerval's testimony, the Re iondent in-
troduced its so-called employment agreemen' intaimng,
BARKO HYDRAULICS, INC
inter aka, 37 plant rules and regulations with the caveat,
"Any violation or violations of the above will be subject to
reprimand, time-off or discharge, depending on the nature
of the violation." To the small extent the document but-
tresses the Respondent's contention of no established prac-
tice, it is the less persuasive in the light of Gerval's testimo-
ny that the "Employment Agreement" has not been
distributed to the Respondent's employees since 1973.
Gerval also testified to about 25 discharges of employees
which the Respondent effected in the 2 years prior to the
hearing in these cases. The testimony reflects that the 25
employees were discharged for varying reasons, most for
aggravated misconduct in violation of company rules, and
after receiving written warnings varying from 0 to 5. The
evidence is not persuasive of the Respondent's contention
that it has no established warning policy and is even less
persuasive in the light of the fact that the Respondent with-
held evidence of the number of employees still on its pay-
roll who have received three or more written warnings.
There is other evidence in the record that the Respon-
dent has an employment policy which, though not uni-
formly applied to all breaches of its employment rules, gen-
erally includes three written warnings before final
termination As a part of its preelection campaign propa-
ganda the Respondent distributed a five-page letter of
questions and answers, containing the following reference
to its warning policy:
"Will the Union help me keep my job9"
No. With or without a Union an employee of Barko
Hydraulics is discharged for just cause only. Barko
has in the past been very reluctant to discharge an
employee and has chosen instead to work with an em-
ployee to try and correct the problems that he or she
may have. Barko is dedicated to the policy that they
have a substantial investment in each of their employ-
ees and will and have tried to correct employees rather
than discharge them. It is also the Company's policy
not to discharge anyone unless they have received
prior warning except in those cases where the violation
is so severe that it would result in an immediate dis-
charge Most union contracts provide the same protec-
tion that you are already getting
There is other evidence that the above-recited expression
of a warning policy is a correct recitation of the
Respondent's general practice Roger Gellerstedt, chair-
man of the Union's negotiating committee, testified that
the subject of warning notices was discussed by the com-
mittee at a meeting with Ed Bartell and Charles Schweikert
on November 18 or 19. According to the uncontradicted
testimony of Gellerstedt, Bartell and Schweikert confirmed
the employees' belief that the Company's practice is to is-
sue three written warnings for the same offense before an
employee is discharged.
There is also evidence in the record of individual inci-
dents which support the General Counsel's contention that
the Respondent subjected Lawrey to precipitous and un-
usual treatment in his summary termination on January 2.
As is evident from the Respondent's campaign propagan-
da, the Company has followed a policy of working with its
employees to correct employment-related shortcomings,
1383
and customarily employees have been discharged without
prior written warning only in cases of aggravated miscon-
duct As an example, among the 25 employees discharged
within the 2 years preceding the hearing was I employee
who was discharged after 38 absences, but who had never
received any written warning. As another example, Do-
rence Erickson received a warning slip on November 7,
which notified him that he had been dismissed after repeat-
ed warnings of poor production procedures as to the quan-
tity and quality of his work. Notwithstanding that Erickson
had received written prior warning notices in August and
September 1975, the notice of dismissal was rescinded, and
a 3-day suspension substituted therefor However, the 3-
day suspension was also rescinded and Erickson was still
employed as of the date of the hearing in these cases.
On all of the facts I am unable to find that Lawrey's
discharge was motiviated by the reasons asserted by the
Respondent. Lawrey was employed by the Respondent for
more than 2 years, and except for one prior written warn-
ing for horseplay there is no evidence that he was less than
a fully satisfactory employee Lawrey's history of wage
progression establishes that his services were satisfactory,
and the Respondent's contention that he was summarily
discharged for inadequate production is no more than a
carelessly contrived device to rid itself of a union activist.
Lawrey's discharge followed closely on the heels of his
union activities and the Union's certification as the bar-
gaining representative. The discharge without prior warn-
ing contradicted the Respondent's established and pub-
lished practice, and it was effectuated by Charles
Schweikert, a management representative with a known
history of retaliation against union activities
The Respondent contends, nevertheless, that no case of
discrimination had been proven because there is no direct
proof that Lawrey was discharged for union-related rea-
sons, and no evidence that Lawrey's discharge had the ef-
fect of discouraging union activities. As to the latter con-
tention, it is axiomatic that proof of actual discouragement
of union or concerted activities is not an essential element
of proof in unfair labor practice cases, and it is sufficient
that the conduct had the tendency to interfere with, re-
strain, or coerce employees in the exercise of their Section
7 rights
As to the Respondent's first legal contention, there is no
direct proof that Lawrey was dismissed because of his
union activities and interests. But in the circumstances of
this case such direct proof is not required as the basis for a
finding of discrimination I have found above that the
Respondent's justification for Lawrey's discharge is
false-a hastily contrived pretext unsupported by the facts.
This being the case some other explanation for the dis-
charge must be forthcoming, and in the absence of any
credible explanation by the Respondent an inference can
be drawn that the discharge was motivated for reasons pro-
hibited by the Act. In the words of the circuit court of
appeals in Shattuck Denn Mining.'
If [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
3 Shattuck Denn Mining Corporation [Iron King Branch] v N L R B, 362
F 2d 466, 470 (C A 9, 1966)
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another motive. More than that , he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
I find and conclude accordingly , that the Respondent
violated Section 8(a)(3) and ( 1) of the Act by discharging
Larry Lawrey because of union interests and activities.
C. The Unilateral Discontinuation of the Wage Progression
Policy
On December 17, Roger Gellerstedt, in his capacity as
chairman of the Union's negotiating committee, received
the following letter from the Respondent:
This is to notify the Bargaining Group for Internation-
al Brotherhood of Boilermakers, that effective January
1, 1976, all wages will be frozen at existing rates for all
classifications. Management feels that this issue is sub-
ject to negotiation. Should you have questions on this
matter contact the Plant Superintendent or the Front
Office.
Gellerstedt delivered the letter to Roland P Achen, the
Union's International representative. Achen had been in-
formed by some of the employees that they had been de-
nied their periodic wage increases, and on November 19 he
had filed the charge in Case 18-CA-4796, alleging that the
Respondent's withholding of the wage increases violated
Section 8(a)(5) of the Act In addition, on December 22,
Achen sent a letter to the Respondent protesting the unila-
teral discontinuance of the periodic wage increases, and
suggesting that the Company continue its past practice. As
of the date the hearing closed in this proceeding, the Re-
spondent had not replied to the Union's letter of December
22.
Upon the relevant testimony in this proceeding I find
that the Respondent had a practice and policy of periodi-
cally increasing the wage rates of its employees until each
employee reached the top of the classification rate. Upon
the testimony of the several employees who appeared in
this proceeding, it is unquestioned that the wage progres-
sion policy was explained to each employee at the time of
hire as an established condition of employment As a gen-
eral practice each new employee was rated for a wage in-
crease at the end of the 30-day probation period, and was
subsequently rated each 90 days thereafter until he reached
the top rate for his classification. The periodic wage in-
creases were usually in the amount of 25 cents, but both
the amount of the increment and the elapsed time between
increments varied from time to time in some minor degree.
It was the practice for the line supervisors to recommend
employees for wage increases, which were transmitted to
Schweikert and on to top management for approval. An
employee's entitlement to a periodic wage increase depend-
ed in some measure on satisfactory performance, as well as
tenure However, on the testimony of former Assembly
Foreman Bert Winans, which I credit, the rating system
was pro forma upon the elapse of the specified time, and
increases recommended by the foreman were customarily
approved by management. The record also reveals that in
addition to periodic individual wage increases, the Respon-
dent granted across-the-board increases , the last of which
was effective in May 1975.
The Respondent submits that upon the advice of coun-
sel, Employers Industrial Relations Council, it suspended
the periodic wage increases because of the belief that it was
a bargainable issue under the rule of N L R B. v. Benne
Katz, Alfred Finkel, and Murray Katz, d/b/a Williamsburg
Steel Products Company a For the reasons related below I
find that these cases do not equate either factually or legal-
ly within the framework of the Supreme Court' s decision in
Katz.
In Katz the employer undertook negotiations with the
certified bargaining representative on certain terms and
conditions of employment, including a merit wage increase
plan. During the course of negotiations, and without hav-
ing reached impasse or notifying the Union, the employer
granted merit increases to approximately 20 of 50 employ-
ees in the bargaining unit. The employer sought to defend
its action on grounds that the increases were in line with its
longstanding practice of granting quarterly or semiannual
merit reviews In sustaining the Board's finding of an
8(a)(5) violation the Court held-
We hold that an employer's unilateral change in con-
ditions of employment under negotiation is similarly a
violation of §8(a)(5), for it is the circumvention of the
duty to negotiate which frustrates the objective of
§8(a)(5) much as does a flat refusal 5 [Emphasis sup-
plied.]
Further, in response to the employer's contention that
the unilateral grant was privileged in accordance with its
established practice, the Court held that the merit raises
granted were not automatic increases to which the employ-
er had already committed itself, but were attended by a
large measure of discretion and, accordingly, the bargain-
ing agent could properly insist that the merit increases be
negotiated.6
As found above, the Respondent's wage progression pol-
icy does not fit within the close confines of "merit raises"
distinguished in Katz Little if any discretion was exercised
by the Respondent's management in granting the quarterly
increases , and employees were recommended by their im-
mediate foremen largely on the basis of the requisite time
in employment status. To the extent satisfactory perfor-
mance, attitude, attendance, or other factors were factors
applied in granting periodic wage increases , the Respon-
dent has failed to carry the burden of going forward with
the evidence.
Assuming, arguendo, that the Respondent's established
wage progression policy was attended by some measure of
discretion, and that the Union therefore had the right to
demand that the issue be negotiated, I find a plentitude of
evidence in the record that the unilateral discontinuation
of the wage progression policy was not motivated by the
Respondent's studied regard for the rule of law expressed
369 U S 736 (1962)
S N L R B v Katz, supra at 743
6 N L R B v Katz, supra at 746
BARKO HYDRAULICS, INC. 1385
in N L.R.B. v Katz. Contrary to the contents of its letter of
December 17, wages were not frozen effective January 1,
1976, or even on the date of the Respondent's notice to the
Union. International Representative Achen filed the
charge in Case 18-CA-4796 on November 19, on informa-
tion from the employees that they had not received peri-
odic wage increases when due. From other evidence in the
record it is obvious that the information furnished to
Achen was correct, and that the discontinuation of the
wage progression policy was unilaterally imposed long be-
fore notice was given to the Union.
About November 19, Gellerstedt contracted Schweikert
and asked him to check into the raises that were due two
employees Schweikert agreed and on the afternoon of the
same day showed Gellerstedt a list of 10 or 11 employees
for whom periodic wage increases had been recommended.
Schweikert said that he had approved the wage increases,
and expected that they would be received by the employees
in the following week's check.
Gellerstedt subsequently contacted some of the employ-
ees on the list and determined that they had not received
their wage increases. In a later meeting with Schweikert
and Bartell, Gellerstedt again asked about the wage in-
creases. Schweikert replied that he had submitted the re-
quests, but the wage increases had not been approved be-
cause management felt the issue was subject to
negotiations.
The Respondent adduced no specific evidence as to the
exact date when the wage progression policy was discontin-
ued, but from the record as a whole I find that the existing
practice was changed on or immediately after the date on
which the Union was selected as the employees' bargaining
representative. It is clear, moreover, that the Respondent
did not totally rescind its wage progression policy. Gerval
was questioned by counsel for the Respondent and admit-
ted that the Company has continued to grant merit increas-
es. Gerval furnished no specifics with respect to names,
numbers, or dates, but conceded that probationary em-
ployees have been reviewed at the end of the 30-day peri-
od, and if they were the type of employee whom the Re-
spondent wished to encourage to remain in its employ, the
employees were granted a 25-cent-wage increase Gerval
expressed his inability to recall whether merit wage increas-
es had been granted since October 30 to employees other
than those in probationary status, but later testified that
the periodic increases were limited to those finishing their
first 30 days of employment
Upon the basis of all of the evidence, I find that the
Respondent's defense that it unilaterally discontinued its
wage progression policy with due regard for its obligation
to bargain with the Union is a packet of arrant nonsense.
There is not one iota of evidence in the record that the
Respondent has bargained, or ever offered to bargain, with
the Union on the merit raises due its employees. On the
contrary, having discontinued merit increases immediately
after the employees selected the Union as their bargaining
agent, the Respondent waited until December 17 to notify
the Union of its contention of a bargainable issue, simulta-
neously misleading the Union to the belief that wages
would not be frozen until January 1, 1976. When the
Union protested, the Respondent ignored the protest, and
similarly ignored the Union's request that the Company
continue its practice of granting periodic wage increases to
its employees. Furthermore, the Respondent did not totally
abolish its wage progression policy, but continued to apply
its practice of granting periodic wage increases, at least to
those employees completing their probationary period If,
as the Respondent here contends, the wage progression
policy was a mandatory subject of bargaining, it was obli-
gated to bargain over the wages and terms and conditions
of employment of all the employees in the bargaining unit,
including probationary employees.
Finally, the Respondent's unilateral discontinuance of
its wage progression policy must be assessed together with
the other unfair labor practices found herein. Immediately
after the employees selected the Union as their bargaining
representative the Respondent threatened to cancel ex-
isting employment benefits, and within a short period
thereafter it discharged Larry Lawrey for discriminatory
reasons. Contemporaneously with this unlawful conduct
the Respondent discontinued its wage progression policy
for some employees, while continuing to apply the policy
to other employees of its own selection. In this framework
the Respondent's conduct is not only condemned as a vio-
lation of its duty to bargain, but is an exemplification of
bad faith and a retaliatory motive
THE REMEDY
Having found that the Respondent violated Section
8(a)(1),(3), and (5) of the National Labor Relations Act, I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative actions to reme-
dy the unfair labor practices and to effectuate the policies
of the Act.
As I have found that the Respondent discharged Larry
Lawrey in violation of Section 8(a)(3) and (1) of the Act, I
shall order that the Respondent offer Lawrey immediate
and full reinstatement to his former position of employ-
ment or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges previously enjoyed, and make
Lawrey whole for any loss of earnings he may have suf-
fered by reason of the discrimination, by payment to him
of the sum of money he normally would have earned from
the date of his discharge to the date of the Respondent's
offer of reinstatement, together with interest thereon, less
net earnings, if any, during such period. Backpay and in-
terest shall be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289 (1950) and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962)
In view of the finding above that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally discon-
tinuing its wage progression policy for some of its employ-
ees, I shall order that the Respondent reinstate the policy
and make whole those of its employees who were deprived
of wage increases by reason of the Respondent's unilateral
conduct, together with interest thereon as provided in Isis
Plumbing & Heating Co, supra.
Further, in view of the nature of the Respondent's unfair
labor practices, I shall order that the Respondent cease and
desist in any other manner from interfering with, restrain-
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mg, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Barko Hydraulics Inc., is an em-
ployer within the meaning of Section 2(2) of the Act and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, International Brotherhood of Boilermak-
ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is now, and at all times material to this
proceeding has been, the duly certified bargaining repre-
sentative of the Respondent's employees in the following
described unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours, and other terms
and conditions of employment:
All full-time and regular part-time production and
maintenance employees employed by Barko Hydraul-
ics, Inc. at its Superior, Wisconsin, location, including
over-the-road truck drivers, but excluding office and
plant clerical employees, professional employees, re-
search and development employees, engineering em-
ployees, technical employees, guards and supervisors
as defined in the National Labor Relations Act, as
amended.
4. By threatening its employees with the loss of estab-
lished employment benefits because of their union activi-
ties and the selection of the Union as their bargaining rep-
resentative, the Respondent violated Section 8(a)(1) of the
Act.
5. By discharging Larry Lawrey because of his union
activities, sympathies, and interests, the Respondent violat-
ed Section 8(a)(3) and (1) of the Act.
6. By unilaterally discontinuing its wage progression
policy without giving notice and an opportunity to bargain
to the Union, the Respondent violated Section 8(a)(5) and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Upon the foregoing finding of fact, conclusions of
law, and upon the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER7
The Respondent, Barko Hydraulics, Inc., Superior, Wis-
consin, its officers, agents, successors and assigns, shall.
1. Cease and desist from:
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
(a) Threatening its employees with a loss of established
employment benefits because they have engaged in union
activities or have selected a union as their bargaining repre-
sentative
(b) Discharging Larry Lawrey, or any other employee,
because of his union activities, sympathies, or interests.
(c) Refusing to bargain collectively with the Internation-
al Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO, by unilaterally
and without notice or opportunity given to the said Union
to bargain, discontinuing its established practice of grant-
ing periodic wage increases to its employees
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act
(a) Offer to Larry Lawrey immediate and full reinstate-
ment to his former position of employment or, if thatjob is
no longer available, to a substantially equivalent job, to-
gether with all seniority, rights, and privileges previously
enjoyed, and make Lawrey whole for any loss of earning
he may have suffered in the manner prescribed in the Rem-
edy section hereof.
(b) Upon request, bargain collectively with the Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO, with respect
to rates of pay, wages, hours and other terms and condi-
tions of employment. The appropriate unit for the purposes
of collective bargaining is:
All full-time and regular part-time production and
maintenance employees employed by Barko Hydraul-
ics, Inc. at its Superior, Wisconsin, location, including
over-the-road truck drivers, but excluding office and
plant clerical employees, professional employees, re-
search and development employees, engineering em-
ployees, technical employees, guards and supervisors
as defined in the National Labor Relations Act, as
amended
(c) Make whole its employees for any loss of wages they
suffered by reason of the Respondent's unilateral discon-
tinuance of its wage progression policy, together with inter-
est thereon as prescribed in the Remedy section hereof.
(d) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze and compute the amounts of backpay due
under the terms of this recommended Order.
(e) Post at its plant at Superior, Wisconsin, copies of the
attached notice marked "Appendix." 8 Copies of said no-
tice on forms to be provided by the Regional Director for
Region 18, after being duly signed by the Respondent's
8In the event that the Board's 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 "
BARKO HYDRAULICS, INC. 1387
authorized representatives, shall be posted by it immedi- notices are not altered, defaced, or covered by other mate-
ately upon receipt thereof, and be maintained by it for 60 rial.
consecutive days thereafter, in conspicuous places, includ- (f) Notify the Regional Director for Region 18, in writ-
ing all places where notices to employees are customarily mg, within 20 days of the date of this Order, what steps
posted. Reasonable steps shall be taken to insure that said have been taken to comply herewith.
7 U S GOVERNMENT PRINTING OFFICE 1977-241-596/2