Brom Machine and Foundry Co.

National Labor Relations Board - Board Decisions

Jan 9, 1976

222 N.L.R.B. 74 (N.L.R.B. 1976)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brom Machine and Foundry Co. and International
Molders and Allied Workers Union, AFL-CIO,
CLC. Case 18-CA-4443
January 9, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO -
On September 23, 1975, Administrative Law Judge
Marion C. Ladwig 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.'
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 Respondent, Brom
Machine and Foundry Co., Winona, Minnesota, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended order,
as so modified:
1. Substitute the following for paragraph 1(d):
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
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
-The National Labor Relations Board having found,
after a hearing, that we violated Federal law by giv-
ing written warnings to, transferring, and discharging
an employee for supporting the Union, and by with-
drawing an employee benefit because our employees
voted for the Union, we notify you that:
WE WILL offer full reinstatement to Ernest
Vanderau on the speed muller or, if that job no
longer exists, to a substantially equivalent one,
with backpay plus 6-percent interest.
WE WILL remove from our records the written
warning notices given to him.
WE WILL NOT transfer or discharge any of you
for supporting International Molders and Allied
Workers Union, AFL-CIO, CLC, or any other
union.
WE WILL NOT issue any of you a warning no-
tice, or otherwise discriminate against you, for
supporting a union.
WE WILL NOT withdraw, or threaten to with-
draw, any employee benefit for voting in favor
of a union.
WE WILL restore to you the benefit of having
an employee fill the pop machine, and make
change, on company time.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under Section 7 of the
Act.
BROM MACHINE AND FOUNDRY CO.
DECISION
STATEMENT OF THE CASE
' In par 1(d) of his recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "like or related," rather than the
broad injunctive language, "in any other manner," the Board traditionally
provides in cases involving serious 8(a)(3) discrimination conduct, such as
that found here. See N L R B. v. Entwistle Mfg. Co, 120 F 2d 532, 536 (C A
4, 1941); Electrical Fitting Corporation, a subsidiary of I-T-E Imperial Corpo-
ration, 216 NLRB No 179 (1975). Accordingly, we shall modify the order to
require Respondent to cease and desist from in any other manner infringing
upon employee rights
MARION C. LADWIO, Administrative Law Judge: This
case was heard at Winona, Minnesota, on May 29-30,
1975.' The charge was filed by the Union on January 20
(amended at the hearing), and the complaint was issued on
April 2. The case arose when the Company discharged Er-
nest Vanderau, who had been active in the successful cam-
paign to replace the Brom Foundry Workers Association
with the Union, which the Company opposed. The primary
issues are whether the Company (a) unlawfully issued Van-
derau two discriminatory warning slips after the election,
discriminatorily transferred him to a more onerous job,
and discharged him when he did not quit, (b) before the
1 All dates are between June 1974 and May 1975 unless otherwise stated.
222 NLRB No. 13
BROM MACHINE AND FOUNDRY'CO.
election threatened plant closure and instituted an employ-
ee warning system, and (c) after the election encouraged
the circulation of an open -shop petition , unilaterally with-
drew - certain benefits , and threatened to withdraw others,
in violation of Section 8(a)(3) and (1) of the National La-
bor Relations Act.
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following, -
FINDINGS OF FACT
1. JURISDICTION
The Company, a Minnesota corporation, is engaged in
the manufacture of castings at its foundry in Winona, Min-
nesota, where it annually purchases goods valued in excess
of $50,000 directly from outside the State. The Company
admits, and I find, that-it is an employer engaged in com-
merce within- the meaning of Section 2(2), (6), and (7) of
the Act, and that-the Union is, a labor organization within
the meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Background
Ernest Vanderau, a 58-year-old man, hired in November
1967, was injured on- the job sometime in 1968 or -1969,
when he was working as a cupola man. (Evidently because
of negligence-on the-part of Vanderaifs assistant, an iron
bar, ropes, pulley, and a bucket-of bricks "came down and
hit me on the helmet, landed off my shoulder and went
down my side..")" Since that time; his arm and shoulder
have "ached more or less continuously," and he has had
difficulty lifting'-and pulling down. He was transferred to
various jobs in the foundry. Although he was a conscien-
tious worker, he was unable to do some of the work as fast
as other employees. (It is undisputed that one foreman told
him that he did his work "too good," and was too slow for
that reason. Apparently his age, as well as his'injury, were
also factors. One foreman told him, "You don't need to tell
me. I know-you are suffering. 4 know [your arm] hurts. I
can see that.)"' -
Finally in January 1973, the Company assigned him to
the speed muller, telling him (as he credibly testified) that
"There is an opening and you can have this job as long as
you want-it." (Emphasis supplied.) The speed muller was
largely automatic,, and= the job required little physical ef-
fort."The credited evidence reveals that he did this job-sat-
isfactorily for •21 or 22 months, until the latter part of Octo-
ber or November, when the Companysuddenly removed
him from the job and transferred him to -the facing muller,
where the work was much dirtier and dustier, and required
much physical labor which was difficult for him to per-
form. He proceeded to do the work, without complaining.
However, on January 17,^without prior warning about his
work, the Company summarily dischargedhim.
The General Counsel contends that Vanderau's, last
transfer and his discharge, as well as his two union-related
warning slips, were discriminatorily motivated and, along
75
with various preelection and postelection conduct, violated
the Act. The Company denies that it discriminated against
Vanderau , and contends that "the evidence taken as a
whole does not -give rise to sufficient anti-Union activity so
as to amount , to a violation of the rights guaranteed in
Section 7."
B. Alleged- Coercion
1. Preelection conduct
Members of the Brom Foundry Workers Association
(the certified bargaining representative) voted 29 to 1 on
July 30 to affiliate with the Union. On August 1, the Union
requested in writing that the Company meet with certain
union officials "and designated representatives of the for-
mer Association including Ernest Vanderau" to•negotiate a-
new collective bargaining agreement. The Company filed a
petition for an election, which was held on September 26
and which resulted in a vote of 20 for the Union, 15 for the
Association, and 3 challenged ballots. The Union was cer-
tified, in a production and maintenance unit.
The Company opposed the Union during the preelection
campaign. It posted on the-bulletin board a notice which
concluded, "Think for yourself-VOTE AGAINST JOINING THE
INTERNATIONAL." President Paul Brom read, and mailed to
each-employee, a speech which included the statement,
"Right now, I think you should understand that Leo
[Brom] and I and the rest of management are strongly op-
posed to having the International Union in our company."
In, a second speech, Paul Brom stated, "Men, I cannot be
more serious. We really feel an International Union in this
small plant would be a disastrous thing for both you and
the company." (Nothing in the speeches is alleged to-
,vio-late the Act.)
The complaint,(as amended at the hearing) alleges that
about August 1 (the date. of the Union's bargaining re-
quest), the Company "instituted an employee warning sys-
tem and began issuing warning slips to employees" because,
of their selection of the Union. However, the,undisputed
evidence establishes that the employee warning notice
forms were ordered in early June, a number of weeks be-
fore the employees' union affiliation- vote, and that they
were intended primarily to keep an accurate record of tar-
diness and absenteeism. Although the slips were later used-
in connection with Vanderau's union activity, I find that
there is insufficient, evidence to support the allegation that
the warning system was unlawfully established.
Sometime- during the election campaign, patternmaker
Robert Brom (President Brom's son) told an employee that
if the Union did not go through, the company would prob-
ably keep this plant running and,also build another one,
but that if the Union-won, the Company would cut down
production at this plant and lay off about 12 people includ-
ing Vanderau. The General Counsel contends that, Robert
Brom, as son of the president, is an agent of the Company,
and that the layoff threat constitutes unlawful coercion on
the part of the Company.,Tbe Coinpany;denies this, point-
ing,out -that Robert Brom was- in -the bargaining unit, that
he signed a union card, that the'statement was,made to a
coemployee after work over a glass of beer, and that there
is no evidence that Robert was acting as agent of the Com-
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany. I agree with the defense , and find that the General
Counsel failed to prove either that Robert Brom was, or
that the employees were given reason to believe that he
was, speaking for management in making the statement. I
therefore find that the Company was not responsible for
the statement.
Also before the election, in a casual conversation during
work, the subject of plant closures was raised . As credibly
testified by employee Joseph Brabbit, "When you're work-
ing and you go by somebody, a word is said and all of a
sudden you get started on a subject." Brabbit asked Fore-
man Lambert Styba if he thought the foundry would be
closed because of the Union and Styba said he "wouldn't
put it past them ." The complaint alleges that this statement
was unlawful coercion . I disagree, and find that in the con-
text of the statement, it was clear to the employee that it
was not a threat of closure , and that the foreman was not
speaking for management.
2. Postelection conduct
For about 16 years before the election , maintenance
man Richard Hartwick filled the pop (cold drink) machine,
and gave the employees change, on company time. (Net
proceeds from the machine went to the employees.) On
September 27, the day after the election , Superintendent
William Armstrong told Hartwick that President Paul
Brom and Vice President Leo Brom had given instructions
"that from now on I would have to fill the pop machine on
my own time and make change on my own time." (Al-
though Armstrong did not impress me as being a trustwor-
thy witness, I note that he did admit telling Hartwick that
the pop machine could no longer be filled , and change
would no longer be made, on company time .) That af-
ternoon, as Vanderau (the union observer at the election
the day before) was leaving the plant, Leo Brom shouted to
him, "Aren 't you going to put any pop in the machine? It's
empty, you know. . . . It's not going to be put in on com-
pany time. Don't you care about the men ? You're the sec-
retary." (Vanderau had served as secretary of both the as-
sociation negotiating committee and later the union
committee .) At the morning break, near this same time,
employee Larry Wick told Foreman Styba that "it was
kind of serious, they're trying to take the pop away from
us." It is undisputed that Styba responded , "If you want to
play union, you'll have to play union all the way." I find it
clear that this sudden withdrawal of the benefit-requiring
the filling of the pop machine on an employee 's own time
and depriving employees of the use of the machine in the
hot foundry when the machine ran out or when the em-
ployees did not have change-constituted a reprisal for the
employees ' union vote at the election the day before, and
constituted an interference with their-Section 7 rights, in
violation of Section 8(a)(1) of the Act.
It is also undisputed that after the election, Foreman
Styba approached employee Stanley Grzybowski (the an-
tiunion former association president) :and two other em-
ployees who were standing by the pop machine . As one of
the employees (Brabbit) credibly testified , Styba told them
that there would be a loss of benefits, and specifically stat-
ed that there would not be any more employee insurance.
Styba also made evidently the same comment about insur-
ance to employee Evarist Sobotta in the grinding room.
Styba came in and told Sobotta , who was grinding along-
side employee Wick , "something about insurance." Then
Wick overheard Sobotta respond , "It doesn ' t make any dif-
ference because my wife has it where she works." I find
that these statements by the foreman were made in reprisal
for the union vote , and violated Section 8 (a)(1) of the Act.
When employee Grzybowski , the antiunion former offi-
cial of the Association , was called as a General Counsel
witness, he testified that after the election (on Monday,
September 30), he asked President Brom "if I could have
Doris [an office secretary] type a heading," that "I wanted
to go around with a petition ." Brom said , "0. K. I'll tell
her." (Brom evidently was aware that Grzybowski planned
to circulate the petition on company time , because previ-
ously, Brom had assigned him to passing around a petition
to determine if the employees wanted to work straight time
on a particular Saturday in exchange for taking another
day off .) After the secretary helped word and typed the
heading on an open-shop petition (asking the Company to
keep the shop open), Grzybowski placed the petition on a
company clipboard and spent parts of 2 days circulating
the petition in the plant and after work . He solicited em-
ployees at work , on company time, without any objection
from the Company. As he went around the plant on his
job, "whenever I saw a man, if I had a minute or so, I
would stop right there ." He approached employees Van-
derau and Hartwick at work about 11:50 that Monday
morning, showed them the petition with about 19 or 20
names on it, and said, "I don't suppose either one of you
will sign this , will you?" They both said no . At the end of
the day, the petition was left in the office for safekeeping.
On the third morning , when Grzybowski went to President
Brow's office to pick up the petition (to give to a private
attorney for filing with the Board ), Brom asked him how
many names he had , and he answered that he did not
know, he had not counted them.
The complaint alleges that the Company "assisted and
encouraged an employee in the preparation and circulation
of a petition for an open shop." Although the circum-
stances may be suspicious , the General Counsel has failed
to prove that the Company did more than permit a nonsu-
pervisory office employee to help word and to type the
open-shop petition, permit the antiunion former associa-
tion official to circulate the petition on working time, and
keep the petition in the office overnight for safekeeping.
Insofar as the evidence establishes , the antiunion employee
initiated the preparation of the petition , circulated it with-
out the participation of the management, and arranged for
its filing. I therefore find that the General Counsel has
failed to prove that the Company unlawfully assisted or
encouraged the preparation or circulation of the petition.
However, I take into consideration the great disparity be-
tween the Company's actions in permitting the circulation
of this antiunion petition on company time and its actions
in giving Vanderau two warning notices for union-related
activity, as discussed later.
BROM MACHINE AND FOUNDRY CO. 77
C. Discrimination Against Vanderau
1. His protected and union activities
The Company indicated its displeasure with Vanderau's
protected concerted activities when he was secretary of the
association committee . He was the most active member of
the committee . He pressed the Company for wage increas-
es when the employees' 6-month raises were due, and was
told once to leave the meeting when such a raise was being
discussed . After he went to an out-of-town plant at the
request of other employees to get a copy of a union agree-
ment, to verify the accuracy of one furnished to the com-
mittee , Vice President Leo Brom told the committee, "I
was shocked this morning to realize that anyone would
question our honesty ... about the Prospect contract and
someone in this foundry was up to Prospect." He stated
that as soon as the person at the Prospect foundry returned
from vacation, and "we find out for sure" who went up
there, "we will decide as to what punishment or discipli-
nary action we will take."
It was Vanderau who signed and posted a notice on the
bulletin board, announcing the Association's July 30 meet-
ing at the Labor Temple, where he told the members that
they were getting about $1,000 a year less at the Company,
and the members voted in favor of affiliation with the
Union. As indicated above, Vanderau was specifically
named as an employee representative of the Union in the
Union's August 1 bargaining request. Vanderau was active
in the election campaign, and served as the Union' s elec-
tion observer. As previously mentioned, Leo Brom singled
Vanderau out and taunted him concerning the welfare of
the employees after unilaterally withdrawing the pop-ma-
chine-filling and change-making benefit on the day follow-
ing the Union's victory at the election.
It is clear that the Company associated Vanderau with
the replacement of the favored Association with the disfa-
vored Union.
2. The first warning notice
On October 11, less than 2 weeks after the Company
permitted an antiunion employee to spend parts -of 2 days
circulating an open-shop petition in the plant, the Compa-
ny gave union committeeman Vanderau a written warning
notice for giving one employee one piece of paper, an-
nouncing a union meeting. General Superintendent Arm-
strong admitted that when Molding Foreman George Thil-
many came to him and reported that Vanderau had given a
union slip to employee Rolland Hansen on company time,
"we went in and talked to Leo Brom and he instructed me
to make out the warning slip and issue it to Ernie Vander-
au." The written warning, which indicated that it was the
"1st Notice" for "Doing non Company business on compa-
ny time," was, the first such warning ever given for such
conduct. Vanderau had handed the slip to Hansen in pass-
ing, without stopping to talk or interrupting Hansen's
work.
In an effort to justify this use of the new-warning system,
Foreman Thilmany gave testimony which I find was clear-
ly fabricated. He claimed that before he learned about
Vanderau handing employee Hansen the union slip, he
personally saw Vanderau standing and talking to two other
employees for "about ten minutes," keeping them from
their work. Surely if this had actually happened, the warn-
ing notice would have been given for such work interfer-
ence, not for handing out the one union slip without stop-
ping to talk.
I find that the first warning notice was given in reprisal
for Vanderau's union activity, in violation of Section
8(a)(1) of the Act.
3. His discriminatory transfer
In October, facing muller Carlos Calhoun, age 63, placed
his bid for a molder's job, but Superintendent Armstrong
later told him that he was not qualified to become a mold-
er. Then, as Calhoun credibly testified, he asked for a high-
er wage scale on the facing muller job to "help me out on my
social security in later years." Armstrong instead offered
him the speed muller job (held by Vanderau), without any
wage increase . Calhoun accepted the .offer, and Armstrong
ordered Vanderau to take the facing muller job-despite
Armstrong's promise to Vanderau in January 1973 (before
his union activity) that he could have the speed muller job
"as long as you want it."
In sharp contrast to this credited testimony by facing
muller Calhoun, Superintendent Armstrong claimed that
Calhoun stopped him, said "I have had a backache for
about a week now and it is getting worse," and asked for
the speed muller job. (Calhoun credibly testified that he
injured his back 5 or 6 years ago and "it did bather me a
little but not so much because I asked for the raise in the
next bracket to stay on the [facing muller] job really." )
Armstrong claimed that he told Calhoun, "Well, you have
seniority over Ernest Vanderau," and proceeded to transfer
Vanderau from the speed muller to the facing muller. Simi-
larly, President Paul Brom claimed on cross-examination
that the transfer was "beyond our control" because Cal-
houn wanted the speed muller job and he had more senior-
ity. (To the contrary, I note that the most recent associa-
tion working agreement contained no seniority bumping
rights, and the new union agreement was not signed until
the following April.) Neither Armstrong nor Paul Brom
impressed me as being a candid witness, and I discredit
their testimony that Calhoun asked for the speed muller
job.
When notified of the sudden transfer, Vanderau asked
for a meeting with management. "I figured I could not
push . _ . or tip the facing buckets" (because of his on-the-
job injury to his shoulder and arm). Superintendent Arm-
strong first agreed to have a ,meeting when President Paul
Brom returned. However, later that morning, Foreman
Thilmany advised, "Paul told me to tell you there will be
no meeting with management. The transfer will be made
and if I have any questions to contact my business agent."
Vanderau later asked Armstrong about a meeting,' and
Armstrong said, "No, and if you have any questions, con-
tact your business agent."
As an additonal defense for requiring Vanderau to trans-
fer off the speed muller job, the Company contends that it
"legitimately felt that the employee Vanderau could not
-78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly operate the speed muller." To the contrary, I find
that the -preponderance of the credible evidence shows that
Vanderau was a satisfactory speed muller. There were diffi-
culties in operating the speed muller (such- as sand conung
too wet from the silo, the sand failing to drop from the silo,
and the automatic equipment not working properly), but
these were not the fault of the operator. I note that at one
point, Superintendent Armstrong claimed that the Compa-
ny discussed discharging Vanderau in June, but decided to
leave him on a little longer because "we couldn't get the
help." Yet, President Brom was not aware of any purport-
ed reason for later transferring Vanderau, other than
Calhoun's greater seniority. I draw the inference that un-
less Armstrong's testimony about an earlier discharge dis-
cussion is a mere fabrication, the discussion concerned his
protected activity as an association committeeman, not his
work. -
Also in its brief, the^Company contends that "There is
absolutely nothing in the record to establish that the trans-
fer resulted in a more onerous working condition for the
employee Ernest Vanderau." To the contrary, the speed
muller operated largely automatically, at a constant speed;
whereas the facing muller required the manual mixing of
the ingredients, the handling of 50- and 100-pound bags,
heavy buckets, and hoists, and "Every time they dump
their mixtures, then the dust would come up in a cloud,"
requiring -the use of a mask to avoid breathing the dust.
I find that the, Company transferred Vanderau to the
more onerous facing muller job in the hope that he would
quit, and thereby discriminated against him in violation of
Section 8(a)(3) and (1) of the Act.
4. The second warning notice
Despite his-industrial injury, making the facing muller
work quite difficult for him to perform, Vanderau worked
on the job without complaining-while continuing his
union activity.
In January, after Vanderau was on the job several weeks,
the Company took the word of another employee, without
any investigation, and decided to give Vanderau -a second
warning notice. Superintendent Armstrong testified that on
.January 9, about 11:45 a.m., employee Louis Wera came to
his office and complained to him about being "harassed"
and "bugged" by Vanderau about joining the Union or
about taking Wera's name off the open-shop petition. Then
about 12-45, Wera returned and complained that Vander-
au was doing-it again. "So I said, `Well, all right, I will issue
him a warning slip on that."' (The warning notice, marked
"2nd Notice," read, "Harassing an employee to join the
union during working his, this happened at 11:45 A.M. &
12:45 P.M. on 1/9/75." Thus, according to this testimony,
Armstrong decided to give this second warning (the last
warning before discharge), without even getting
Vanderau's version of what happened. Thereafter Vander-
au "explained it to me that he wasn't harassing the man,
that he just said something to him and went right back
about his job," but Armstrong refused to revoke the warn-
ing. -
Vanderau, who impressed me as a conscientious, forth-
right witness, credibly testified that about 11:45, employee
Wera stopped by, presumably "just-killing time," and said
something about the Union. (Wera was already a member.)
"I said, `Well, Louis, when are you going to take your
name off of this list?"' Wera said nothing more and left.
Then about an hour later,' Wera returned and said, "Give
me one good reason why I should take my name,off of that
petition." Vanderau replied, "If the Union goes through
with the contract and we get a pension you stand to get
roughly $50 a month for the rest of your life." Wera said he
did not need the money, to forget it, and left. (Finding
Vanderau to be the more trustworthy witness, I discredit
Wera's version of the conversations, and his claim that he
was- working on the muller the first time, and checking it
out-the second.)
I find that the Company was seeking a pretext for'dis-
charging Vanderau, and discriminatorily gave him the sec-
ond, January 9 warmng notice because of his union activi-
ty, in violation of Section 8(a)(1) of the Act.
5. His, summary discharge
The facing muller job was not only dirtier and more
physically demanding, but it involved more difficulty in its
performance. The molders requested facing sand of differ-
ent moisture content for different types of molds; the job
required the mixing of special sand, such as for the air set
cores; and hoists would sometimes not be available to sup-
ply the regular facing sand to the molders when the special
sand was being mixed. However, despite his physical pain
in performing the heavy work, Vanderau was told by most
of the molders that he was doing better than most of the
previous facing muller operators had done. - -
There was a continuing problem of getting the facing
sand dry enough not to cause damage to the molds, yet wet
enough-particularly. on molds with a complicated pat-
tern-to make a tight mold.-Finally on January 16 or 17,
the Company began an experiment to standardize the
moisture content of the facing sand for all molds. Foreman
Thilmany instructed Vanderau to keep the content from
3.3 to 3.6 percent. On January 17, the molders were using a
complicated pattern, requiring a wetter mix, and com-
plained about the sand being too dry when they found that
"the molds aren't standing up, they're crumbling, we're
having more waste or throwaways than, anything else."
Thilmany took a sample of the facing sand, and it tested
3.6 percent, -the top limit-which- the Company had set. Fi-
nally, as employee Donald Marin credibly testified, he
complained to Superintendent Armstrong that the sand
was too dry and that the molds were tearing up. Armstrong
responded, "Yes, the sand is too dry and you know whose
fault it is." Marm said no; and Armstrong stated, "You
know, the guy in the back room, that guy" (referring to
Vanderau), and returned to his office. That afternoon, the
Company called Vanderau and two other union commit-
teemen in the office. Armstrong repeatedly stated that
what he had to say had nothing to do with the Union and,
as Vanderau credibly testified, stated that "after 3:15, Er-
nie will no longer be with us. He can't do his work and he
won't 'take instructions but it [has] nothing to do with the
Union..... The castings are rough. The sand is too wet.
That makes the castings rough. He takes longer to grind
BROM MACHINE AND FOUNDRY CO. - 79
[where he worked before going on the speed muller in Jan-
uary 19731. We can't get the work out: The customers are
not getting the castings on time. So we are letting him go."
Superintendent Armstrong and Foreman Thilmany gave
conflicting testimony about the discharge. On cross-exami-
nation, Armstrong variously testified that the molders'
complaints that the-sand was -too dry entered into the deci-
sion to discharge Vanderau; that the moisture of the facing
sand was "so high," and Thilmany came in "and told me
that [Vanderau] just refused to follow instructions"; that
no, the molders did not complain that the sand was too dry
at this period of time; that the molders "thought" it was
too dry; that Vanderau did produce the facing sand "in the
afternoon on the 16th- and the 17th -the way he was - in-
structed"; that "I didn't hear any complaints" about that;
that "I didn't hear- none of them complaints [that the sand
was too dry]. George Thilmany might have, their molding
foreman might have heard some of them"; that yes, he did
hear about the complaints; and yes, the complaints by the
molders that the sand was too dry did have a bearing on
his decision to discharge Vanderau. (When giving these an-
swers, he appeared to be attempting to fabricate answers
which would sound plausible, rather than reporting accu-
ratelywhat had happened.)
Foreman Thilmany-completely ignoring the mass com-
plaining on January 17 about the sand being too dry-
testified' that only once in January, about 2 days before
Vanderau's January 17 discharge, did any molders com-
plain about the facing sand being too dry_ He claimed that
about a week before the discharge, Vanderau had the sand
so wet that it caused a blow hole on a large mold (requiring
the mold to be scrapped, at the cost to the Company of
$425). He testified that he did not mention it to Vanderau
because "I didn't think of telling him." He then changed
his testimony, stating "I didn't really think it would do
much good." He thereafter testified that he did not know
whether he did not think about mentioning it to Vanderau,
or whether he did think about it but decided not to men-
tion it. I discredit this testimony about Vanderau mixing
the facing sand so wet in the last week of his employment
that it caused the scrapping of a large mold. I also discredit
his testimony that Vanderau would not follow his instruc-
tions concerning the moisture content of the sand, and his
claim that he told Armstrong that Vanderau "just will not
do what I tell him and to me it looks like he seems to be
doing it intentionally." Not only did Armstrong, at one
point, testify that Vanderau was following Thilmany's in-
structions at the time of the discharge, but he also testified
that there was "no specific act of misconduct on the part of
Vanderau" between his January 9 (union-related) warning
notice and his January 17 discharge which "specifically led
to the discharge." (At another point, Armstrong claimed
that "it wasn't just that specific day [January 17]. It was the
days in the last seven years that had built up, that is the
reason we discharged him.") Thilmany, as well as Arm-
strong, denied that Vanderau's union activity had anything
to do with his discharge. I discredit the denials.
After carefully weighing the foregoing and all the other
testimony, and after considering all the circumstances, I
find that the Company was seeking a pretext for discharg-
ing.-Vanderau when he continued to work on the facing
muller job despite his injured arm and shoulder. I further
find that the foregoing and other conflicts in the testimony
given by Superintendent Armstrong and Foreman Thilma-
ny resulted largely from their efforts to conceal the
Company's discriminatory motivation for discharging Van-
derau.
Accordingly I find that the Company discriminatorily
discharged union committeeman Vanderau because of his
union and protected concerted activity, including' his suc-
cessful efforts in the campaign to replace the -Association
with the Union, and that Vanderau's discharge-as well as
his earlier transfer to the onerous facing muller job-vio-
lated Section 8(a)(3) and (1) of the Act.
- CONCLUSIONS OF LAW -• -
1. By discriminatorily transferring Ernest Vanderau to a
more onerous job and thereafter discharging him from that
job on January 17, because of his union and other concert-
ed protected activities, the Company engaged in unfair la-
bor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By giving Vanderau two warning notices in reprisal
for his union activity, the Company violated Section
8(a)(1) of the Act.
3. By unilaterally withdrawing the employee benefit of
having a maintenance man fill the cold drink machine and
make change on company time in reprisal for the employ-
ees' union vote at the election the day before, and by
threatening to discontinue the employees' insurance, the
Company further violated Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
The Respondent having discriminatorily transferred an
employee from the speed muller to a more onerous job
from which he was later discharged, I find it necessary to
order the Respondent to offer him full reinstatement to the
speed muller job, with backpay computed on a quarterly
basis plus interest at 6 percent per annum as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER2
Respondent, Brom Machine and Foundry Co., Winona,
Minnesota, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Transferring, discharging, or otherwise discriminat-
ing against any employee for supporting International
Molders and Allied Workers Union, AFL-CIO, CLC, or
any other union.
(b) Issuing a warning notice to any employee in reprisal
for his union activity.
(c) Withdrawing, or threatening to withdraw, any em-
ployee benefit because of employees' union support.
(d) In any -like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Ernest Vanderau immediate and full reinstate-
ment to his former job as speed muller operator or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for his lost earnings in the man-
2 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.
ner set forth in the Remedy.
(b) Expunge from its records the written warning no-
tices given to him.
(c) Restore to the employees the benefit of having the
pop machine refilled, and change made, on company time.
(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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its plant in Winona, Minnesota, copies of the
attached notice marked "Appendix." 3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 18 , after being duly signed by Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
anly posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed mso-
far as it alleges violations of the Act not specifically found.
3 In the event the Board's Order is enforced by a Judgment of the 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."