Broyhill Company, The

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1366 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Broyhill Company and District No. 162, Inter-
national Association of Machinists and Aero-
space Workers, AFL-CIO. Case 17-CA-9581
March 31, 1982
DECISION AND ORDER
On February 13, 1981, Administrative Law
Judge Leonard N. Cohen issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. How-
ever, in light of our colleagues' dissent, we find it
appropriate to set forth our reasons for adopting
the Administrative Law Judge's conclusions that
Respondent effectively disavowed the unlawful
conduct of Supervisor Junker and that further re-
medial action is not warranted herein.
On several occasions during the month of April
19802 Supervisor Junker made statements to certain
employees in the fabrication department which
were violative of Section 8(a)(1) of the National
Labor Relations Act, as amended. Neither the
charge filed on April 14 nor the amended charge
filed on May I made reference to these statements.
It does not appear that Respondent learned of
Junker's conduct until May 5, when the Board
agent conducting the investigation met with offi-
cials of Respondent and its attorney.
The next day, Respondent posted on its bulletin
board a "NOTICE TO ALL EMPLOYEES,"
which is set forth in full in the Administrative Law
Judge's Decision. In the notice, Respondent re-
ferred to the pending Board investigation and ex-
pressed its regret that improper conduct may have
occurred. By use of the "we will not" language
that is traditionally employed in Board notices, Re-
spondent's notice specifically disavowed statements
made by Junker that were violative of the Act.
The notice even included the analogue of the so-
called broad order. Thus, it stated that Respondent
would not "in any other manner" interfere with its
employees' Section 7 rights, and it affirmatively set
'The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect 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 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings
2 All dates hereinafter are in 1980 unless otherwise noted
forth for the employees exactly what those rights
were. The notice was signed by Respondent's plant
manager.
Applying the standards set forth in Passavant Me-
morial Area Hospital, 237 NLRB 138 (1978), the
Administrative Law Judge concluded, and we
agree, that the May 6 notice to employees effec-
tively disavowed Junker's unlawful statements and
obviated the need for additional remedial action.
Thus, the Administrative Law Judge emphasized
that the notice was posted immediately after Re-
spondent learned of Junker's conduct; that "Re-
spondent's notice specifically [and], in statutory
language, assures its employees that it will not
engage in the type of conduct of which it had been
accused or engage in any other types of unlawful
conduct"; that "the employees working under
Junker's supervision, as well as all other production
employees, had an adequate opportunity to read
the notice if they so chose"; and that "Respondent
did not in any other manner violate the Act."
Our dissenting colleagues would reverse the Ad-
ministrative Law Judge, and find that Respondent's
notice did not adequately repudiate the unlawful
conduct. In reaching this conclusion, they apply
the Passavant criteria in a highly technical and me-
chanical manner. First, the dissenters claim that the
notice was not timely because it was posted 5
weeks after the first unfair labor practice. Howev-
er, they do not dispute that Respondent acted in
good faith and lacked knowledge of Junker's con-
duct prior to May 5. In this connection, it must be
remembered that in litigated cases Board notices
are never posted within 5 weeks of the commission
of the unfair labor practice. In the instant case, Re-
spondent would be ordered to post our colleagues'
notice well over a year after the conduct in issue.
Second, our dissenting colleagues disagree with
the Administrative Law Judge's conclusion that
there had been adequate publication of the notice,
even though they acknowledge that it was posted
on the company bulletin board and that three em-
ployees testified that they had seen it. The dissent
implies that other employees may not have had an
opportunity to see the notice, but this is pure spec-
ulation.
Finally, the dissent claims that the notice was
not "sufficiently specific" because it "does not
name Junker or mention the circumstances under
which Junker made the unlawful statements."
However, it should be noted that Board notices do
not contain this kind of specificity. Indeed, it is
anomalous that our colleagues, after faulting Re-
spondent's notice on these grounds, would provide
as their remedy that Respondent shall post another
notice disavowing the unlawful conduct in terms
260 NLRB No. 183
1366
THE BROYHILL COMPANY
virtually identical to those appearing in the notice
Respondent has already posted.
In sum, the conclusion is inescapable that Re-
spondent did all that it reasonably could do to dis-
avow the unlawful conduct of its supervisor. Such
voluntary action by employers should be encour-
aged by this Board. Accordingly, we adopt the
Administrative Law Judge's conclusion that Re-
spondent's notice adequately repudiated Respond-
ent's unlawful conduct.
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBERS FANNING AND JINKINS, dissenting in
part:
We disagree with our colleagues' decision insofar
as it adopts the Administrative Law Judge's con-
clusion that Respondent effectively disavowed the
unlawful conduct of its supervisor, Junker. For the
reasons set forth below, we would reverse the Ad-
ministrative Law Judge with regard to Respond-
ent's attempted disavowal and would order appro-
priate remedial action.
The complaint alleges and the Administrative
Law Judge found that in April 19803 Willis Junker,
supervisor in Respondent's fabrication department,
made a series of unlawful remarks to employees
within his department. These remarks, as more
fully set forth by the Administrative Law Judge,
consisted of Junker's telling one employee that "the
old man would probably shut the doors" if the
Union came in, and telling another employee that
Respondent was "cracking down on absences" be-
cause of the advent of union activity and that Re-
spondent's owner would close the plant if the
Union came in. Additionally, Junker told an em-
ployee to keep him informed about the employees'
union activity and questioned another employee
about his attendance at union meetings and the
prospects of the Union's coming in. The Adminis-
trative Law Judge concluded that Junker's state-
ments violated Section 8(a)(1) of the Act, but no
remedial action was warranted because Respondent
effectively disavowed Junker's unlawful conduct.
We disagree with the conclusion that no further re-
medial action is warranted here.
On May 6, Respondent posted the following
notice on a bulletin board:
' All dates hereinafter are in 1980
NOTICE TO ALL EMPLOYEES
On April 14, 1980, District No. 162, Interna-
tional Association of Machinists and Aero-
space Workers, AFL-CIO filed an unfair labor
practice charge against us with the National
Labor Relations Board. The Seventeenth Re-
gional Office of the National Labor Relations
Board is in the process of investigating the
unfair labor practice charge.
We have made an investigation of the unfair
labor practice charge allegations and have
concluded that a supervisor of the company
may have acted in an improper manner. We
regret this and we want each of you to know
that the National Labor Relations Act gives all
employees the following rights: to organize
themselves, to form, join, or support unions, to
bargain as a group through a representative
they choose, to act together for collective bar-
gaining or other mutual aid or protection.
We will not request that any employees keep
us informed about what is going on insofar as
the Union is concerned and we will not in any
way interrogate employees about their union
activities and whether they went to union
meetings or the activities of other employees.
Further, we will not interrogate employees as
to whether the union will come in.
We will not threaten to close the plant if the
union succeeded in organizing the employees.
We will not in any other manner interfere
with or coerce employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist the above
named union, or any other labor organization,
to bargain collectively through representatives
of their own choosing, to engage in concerted
activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to re-
frain from any and all such activities. All of
our employees are free to become, remain, or
refrain from becoming or remaining members
of any labor organization.
THE BROYHILL COMPANY
By /s/ Robert E. Tongish
Robert E. Tongish
Plant Manager
May 6, 1980
The Administrative Law Judge concluded that
this notice effectively repudiated Respondent's un-
lawful conduct. In so doing, the Administrative
Law Judge correctly set forth the standards for ef-
fective repudiation contained in Passavant Memorial
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Area Hospital, 237 NLRB 138 (1978). As stated
therein, to be effective such repudiation must be
timely, unambiguous, specific in nature as regards
the coercive conduct, and free from other pro-
scribed conduct. Additionally, there must be ade-
quate publication of the repudiation and it must
contain assurances that such conduct will not recur
in the future. While we agree with the Administra-
tive Law Judge's enunciation of Board standards
for effective repudiation, we do not agree with his
application of these standards to the facts of this
case. In this regard, we would find that, although
Respondent's notice to its employees accords with
these standards in some respects, in other signifi-
cant respects it does not meet them.
We note first that Respondent's notice was not
posted until the Board was in the process of inves-
tigating the instant charge, fully 5 weeks after the
first threat of plant closure. The Administrative
Law Judge implied that this delay in posting is of
no significance because Respondent may not have
been aware of the unlawful remarks of Supervisor
Junker until the Board agent investigating the case
met with Respondent's officials. However, it is axi-
omatic that the possibility that an employer may
not have authorized or known of its agent's unlaw-
ful acts does not free it from responsibility for that
agent's action.4 Thus, while the apparent lack of
prior knowledge of the unlawful conduct in the
upper echelons of Respondent's management may
indicate Respondent's good faith in posting the
notice, it should have no bearing on our inquiry
into the effectiveness of Respondent's attempted
disavowal of the unlawful conduct. In our view,
the 5-week delay between the first threat of plant
closure and Respondent's posting of the notice is
sufficient to prevent the attempted disavowal from
effectively dissipating the severe impact of Re-
spondent's threat to close the plant.
Further, although the Administrative Law Judge
states, and the majority apparently agrees, that it is
"abundantly clear that the employees working
under Junker's supervision, as well as all other pro-
duction employees, had an adequate opportunity to
read the notice if they so chose," there is no indi-
cation in the record of the location of the bulletin
board on which the notice was posted, or the dura-
tion of the posting. Only 5 of the approximately 50
unit employees were called upon to testify. Of
these, just three stated that they had seen the
notice, but no evidence was presented with regard
to the likelihood that other employees would have
seen it. Additionally, there is no evidence that Re-
'See, e.g., Jays Foods. Inc., and Nielsen Brothers Cartage Co.. Inc. v.
N.LR.B., 573 F.2d 438 (7th Cir 1978), enfg. in relevant part Jays Foods,
Inc., 228 NLRB 423 (1977).
spondent made any other effort to communicate its
disavowal to the employees in the fabrication de-
partment who were supervised by Junker and who
worked with the employees whom he threatened
and interrogated. Thus, although our colleagues
chide us for speculating about this aspect of the
case, it is they who engage in speculation at the
risk of employee rights protected by the Act.
Finally, Respondent's notice is not sufficiently
specific. In this regard, the notice does not name
Junker or mention the circumstances under which
Junker made the unlawful statements. It merely
states that a supervisor "may have acted in an im-
proper manner." (Emphasis supplied.) This defi-
ciency is particularly significant with respect to the
threats of plant closure. As the Board stated in El
Rancho Market:5
This Board has long recognized that . . .
threats of job loss and of closing if employees
select union representation are among the most
serious and flagrant forms of interference with
employees' Section 7 rights. [Irving N. Rothkin
d/b/a Irv's Market, 179 NLRB 832 (1969);
General Stencils, Inc., 195 NLRB 1109 (1972).]
And the Supreme Court has expressed its view
that such threats are among the less remedi-
able unfair labor practices. [N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 611 (1969).]
For, when all is said and done, the specter of
job loss and of closing once conjured up is not
easily interred.
Thus, we conclude that Respondent's promise, con-
tained in the posted notice, not to "threaten" to
close the plant was not sufficient to erase the coer-
cive effect of Junker's earlier statements to the
effect that Respondent would close the plant if the
Union succeeded in organizing the employees.6
In view of all the foregoing, we conclude that
Respondent violated Section 8(a)(l) of the Act by
interrogating employees about their union activities
and by threatening employees with reprisals and
with plant closure if the Union succeeded in orga-
nizing Respondent's employees. Moreover, since
we conclude that Respondent has not effectively
repudiated its unlawful conduct, we would order it
5 El Rancho Market, 235 NLRB 468, 476 (1978).
6 The majority asserts that Respondent's notice was as efficacious as
would be one provided for by the Board, particularly as to timeliness and
content. They fail, however, to consider an important difference. The
Board's notice states, under the Board's seal, that it is posted by order of
an agency of the United States Government because the Respondent's
conduct has been found by the Government to contravene Federal law,
and that Respondent's compliance with our order is to be monitored by
the Government. Additionally, the Board's notice must remain posted for
60 days. Clearly, these factors enhance the relative effectiveness of the
Board's notice in mitigating the impact of Respondent's coercive con-
duct.
1368
THE BROYHILL COMPANY
to cease and desist from such conduct, and to post
an appropriate official Board notice for the usual
60 days.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was heard before me in Dakota City, Nebraska,
on August 23, 1980. ' On May 22, the Regional Director
for Region 17 of the National Labor Relations Board
issued a complaint and notice of hearing based on an
unfair labor practice charge filed on April 14 and amend-
ed on May I alleging violations of Section 8(a)(l) and (3)
of the National Labor Relations Act, as amended (herein
called the Act).
Issues
1. Whether The Broyhill Company (herein called Re-
spondent) through its supervisor and agent, Willis
Junker, committed various independent violations of Sec-
tion 8(a)(l) of the Act during the month of April and, if
so, whether a remedial order is required.
2. Whether Respondent violated Section 8(a)(3) and
(1) of the Act when it discharged employee Bill Bennett
on or about April 4.
3. Whether Respondent violated Section 8(a)(3) and
(I) of the Act by laying off its employee Gary Custer on
or about April 11.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Coun-
sel for the General Counsel and Respondent filed briefs
which have been carefully considered.
Upon the entire record of the case and from my obser-
vation of the witensses and their demeanor, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that at all times materi-
al herein it has been a Nebraska corporation with an
office and principal place of business in Dakota City, Ne-
braska, where it is engaged in the manufacture and distri-
bution of agricultural, industrial, and turf equipment.
During the last 12 months, Respondent purchased and
received goods and services valued in excess of $50,000
directly from suppliers located outside the State of Ne-
braska. Accordingly, I find that at all times material
herein Respondent has been an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that District No. 162,
International Association of Machinists and Aerospace
Workers, AFL-CIO (herein called the Union), is, and
Unless otherwise stated, all dates occurred in 1980
has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE All EGED UNFAIR L ABOR PRACTICES
A. Facts2
1. Background
Respondent employs overall approximately 50 produc-
tion and maintenance employees with 13 to 15 of these
employed as machine operators in the fabrication depart-
ment. Although Willis Junker supervised the day-to-day
operation of the fabrication department at all times rele-
vant herein, all decisions regarding hirings and termina-
tions, with rare exceptions, were made by Robert Ton-
gish, plant manager.
Bill L. Bennett was hired by Respondent in mid-Octo-
ber 1979 as a machine operator and he remained so em-
ployed until his discharge on April 4. On July 26, Ben-
nett, on the advice of Respondent's counsel, was rehired.
Gary D. Custer was hired on January 28 as a lathe
and boring mill operator in the fabrication department
and remained employed until laid off on April I1. Like
Bennett, Custer was recalled to work in mid-July.
2. Union activity
At some point during the last week in March, Bennett
approached Custer and inquired whether the latter
thought it would be advisable for the employees to orga-
nize. Custer responded that he did and asked Bennett if
Bennett wanted him to contact the Union. Bennett
agreed and Custer in turn contacted a business repre-
sentative of the Union. On or about March 26, a meeting
for Respondent's employees was held at the union hall.
Bennett and Custer, along with approximately eight
other employees, attended. The union representative ex-
plained the general organizing process and urged the em-
ployees to sign authorization cards and secure the signa-
tures of their coworkers.
Within the next week or two, Bennett and Custer each
solicited, while at work on breaktime, the signatures of
approximately 10 employees. However, neither Bennett
nor Custer was alone in this activity and at least three
other employees were similarly actively engaged in solic-
iting signatures on union authorization cards. Almost im-
mediately following the union meeting of March 26,
Bennett and Custer, as well as approximately 15 other
employees, commenced wearing various paraphernalia
on their clothing, which clearly indicated their support
of the Union. These included buttons, stickers, union
jackets, and plastic pencil pouches or holders. By the
time the Union held its second meeting on April 5,
nearly all of Respondent's employees had signed union
authorization cards.3
I Except wherein specifically noted. the material facts are not in dis-
pute.
I A petition seeking an election among Respondent's production and
maintenance employees was filed by the Union on April 14 in Case 17
RC-9021 Pursuant to a Stipulation for Certification upon Consent Elec-
tion, an election was conducted on June 19 with 16 vsotes being cast for
the Union and 21 votes cast against No objections were filed and the
results were certified on June 27
1369
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Respondent's plant manager, Tongish, admitted that he
became aware of the union activity in late March but
denied knowing that either Bennett or Custer were two
of the Union's leading adherents prior to their discharge
and/or layoff. Apart from one conversation between
Custer and Junker, set forth below, which took place
after Tongish had already reached the decision to lay
Custer off, the only evidence offered to show that any
official of Respondent was aware of Bennett's and Cus-
ter's activities in securing other employees' signatures
was the testimony of employee and fellow union activist
Robert Moon. According to Moon's undenied account,
shortly after the first union meeting, he observed, on one
occasion, Frank Baird, a supervisor in another depart-
ment, standing approximately 5 feet behind Bennett and
Custer in the lunchroom while the two were signing up
an unidentified employee. Moon did not testify how long
Baird remained watching the pair.4
3. The alleged 8(a)(l) conduct
The General Counsel, through various witnesses, in-
troduced evidence that, on several occasions between
April 1 and late April, Supervisor Junker made remarks
to certain fabrication employees that constitute both in-
dependent 8(a)(1) violations, as well as evidence of gen-
eral union animus on the part of Respondent. Junker,
who himself was discharged in early May, did not tes-
tify.
Incident No. 1: On or about April 1, according to the
testimony of fabrication employee Leslie Bennett, s the
brother of alleged discriminatee Bill Bennett, he went
into Junker's office to discuss a blueprint. During their
discussion, the subject of the Union was somehow
brought up and Bennett stated that he hoped that it
would come in. Junker replied that if it did "the old man
would probably shut the doors."
Incident No. 2: On either the day before or the actual
day itself that Custer was informed that he would be laid
off, Leslie Bennett and Custer were in Junker's office
when one of the two asked Junker if the rumors that
Custer was to be laid off were true. When Junker an-
swered, "[N]o," that he had not heard of it, Custer stated
that he was afraid for his job since he was one of the
main people distributing cards and talking to employees.
Junker responded that he wanted Custer to keep him in-
formed about the Union and what was going on.6
' Both Bennett and Custer, as well as others, testified that they ob-
served Junker observing them while they were soliciting signatures on
several occasions from a window in his office some 20 to 25 feet away
In view of the distance involved, as well as Junker's inability on any of
these occasions to hear their discussions, this testimony is no! probative
on the question of Respondent's specific knowledge. Additionally, Hen-
nett and Custer each testified that during the same time period they car-
ned union authorization cards in their front pockets The evidence estab-
lishes that at the most only the top one-third of the card was visible Al-
though durng this time both Bennett and Custer had many face-to-face
conversations with Supervisor Junker, no mention was ever made to
them regarding the cards.
' Leslie Bennett worked from February 1980 until sometime in July
when he voluntarily left Respondent's employ.
6 The above account is based on a synthesis of the somewhat confusing
testimony of Leslie Bennett and Custer regarding this incident
Incident No. 3: On the morning of April 23, employee
Moon received a warning from Junker for absenteeism.
Later that same day, Moon went to Junker's office and
spoke to him in private about the warning. According to
Moon's account, Junker stated that the reason the Com-
pany was cracking down on absenteeism was because the
employees were trying to get the Union in and that the
employees were bringing problems among themselves.
Junker added that, if the Union came in, Broyhill, the
owner, would close the plant. Junker further stated that
Broyhill had enough money to live on and that he could
make it by simply cutting back from eight to four Cadil-
lacs.
Incident No. 4: Sometime during the latter portion of
April, Leslie Bennett and Junker had a conversation in
the welding area. According to Leslie Bennett, Junker
stated that he had heard from Custer that Custer had ob-
tained a better job and that Junker had actually done him
a favor by laying him off. Junker then asked Leslie Ben-
nett if he (Bennett) had attended any union meetings and
if he thought the Union was going to come in. Bennett
answered "[N]o" and that ended the conversation.
On May 6, during the investigation of the instant
charge, Respondent posted on its bulletin board the fol-
lowing notice:
NOTICE TO ALL EMPLOYEES
On April 14, 1980, District No. 162, International
Association of Machinists and Aerospace Workers,
AFL-CIO filed an unfair labor practice charge
against us with the National Labor Relations Board.
The Seventeenth Regional Office of the National
Labor Relations Board is in the process of investi-
gating the unfair labor practice charge.
We have made an investigation of the unfair labor
practice charge allegations and have concluded that
a supervisor of the company may have acted in an
improper manner. We regret this and we xwant each
of you to know that the National Labor Relations
Act gives all employees the following rights: to or-
ganize themselves, to form, join, or support unions,
to bargain as a group through a representative they
choose, to act together for collective bargaining or
other mutual aid or protection.
We will not request that any employees keep us in-
formed about what is going on insofar as the Union
is concerned and we will not in any way interrogate
employees about their union activities and whether
they went to union meetings or the activities of
other employees. Further, we will not interrogate
employees as to whether the union will come in.
We will not threaten to close the plant if the union
succeeded in organizing the employees. We will not
in any other manner interfere with or coerce em-
ployees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist
the above named union, or any other labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
1370
THE BROYHILL COMPANY
other mutual aid or protection, or to refrain from
any and all such activities. All of our employees are
free to become, remain, or refrain from becoming
or remaining members of any labor organization.
THE BROYHILL COMPANY
By /s/ Robert E. Tongish
Robert E. Tongish
Plant Manager
May 6, 1980
4. Bill Bennett's work history
Bennett first worked for Respondent in 1974 and on
that occasion he either quit or was discharged after ap-
proximately 30 days for failing to return to work. In Oc-
tober 1979, Bennett was working for approximately 2
weeks at Respondent's facility as an employee of Man-
power, a supplier of temporary employees. On October
15, while Tongish was out of town, Junker, without the
knowledge or approval of Tongish, hired Bennett as a
full-time machine operator.
Bennett testified that, in mid-January, he received his
first warning from Junker. On that occasion, Junker in-
formed him that, if he continued to waste time by wan-
dering around the building and conversing with other
employees, he would be subject to discharge.
In mid-February, Junker spoke to Tongish about his
continuing problem with Bennett's wandering away from
his work area. Junker informed Tongish that he was
transferring Bennett to the "marval" saw which he
hoped would reduce Bennett's continuing problem.7 At
the time Junker made this assignment, he informed Ben-
nett that he was giving him his last opportunity.
Sometime around March 20, before the employees
even began discussing the Union, Bennett asked Junker
for a raise. Junker said no, that Bennett's work was not
good enough.
Bennett testified that, "shortly" before he was termi-
nated, his car broke down and he asked Junker for an
hour off. Junker gave him the hour off but informed him
that any further absences would result in his termination.
Bennett further testified that he was neither absent nor
tardy after he received this "final" warning.
Attendance records were introduced into evidence
that indicate that Bennett was absent for part of the day
on both Monday, March 31, as well as on Wednesday,
April 2. Bennett was totally unable to recall a second ab-
sence during the week of March 31 to April 4. Tongish
credibly testified that after the second absence he re-
viewed Bennett's personnel file on either April 2 or
April 3 and, at that time, instructed Junker to discharge
Bennett on April 4.
On Friday afternoon, April 4, Junker called Bennett
into his office and informed him that Tongish had decid-
ed to terminate him for wasting too much time and for a
bad absentee record.
The attendance records indicate that from January I
through April 1 Bennett was tardy once, sick once, and
' The "marval" saw was used in the manufacture of nearly all Re-
spondent's equipment and was to be run for a full 8 hours a day
had 19 "excused absences." 8 A review of the attendance
records for all production and maintenance employees
indicates that, during the first 3 months of 1980, Bennett
had by far the worst attendance record.
5. Gary Custer's work history
Custer was hired to operate the lathe in connection
with making parts for a four-wheel drive refuge vehicle
that Respondent manufactured. His rate of pay was $5 an
hour, a figure substantially higher than the normal start-
ing rate for fabricating employees of $3.80 an hour. 9
Custer testified that, at the time he was hired, Supervisor
Junker informed him that if work slowed on the lathe he
would be transferred to operate the less sophisticated
machines at a reduction in pay. Tongish, however, testi-
fied that Respondent had never transferred an employee
to a lesser job classification at reduced wages.
On April 10, Junker informed Custer that he would be
laid off on the following day because work orders for
the refuge vehicles had stopped due to the tight money
situation. At the time of his April II layoff, approximate-
ly I month's back orders for refuge vehicle parts re-
mained unfinished. Custer testified that these same orders
were awaiting him on his recall in July.
6. Respondent's economic defense
With the exception of the four-wheel drive refuge ve-
hicle, Respondent, for the most part, operates on a "job
shop" basis maintaining a minimum inventory and manu-
facturing its products as orders are received. The refuge
vehicle, an approximately $40,000 item, was being built
during the first half of 1980 without any orders for their
sale. 'o
According to the uncontroverted and credible testimo-
ny of Tongish, between mid-February and the beginning
of March, Respondent experienced a sharp decline in
business. From the beginning of March through mid-
June, no new employees were hired and Respondent's
payroll was reduced by the discharge of four individuals,
Bennett, a janitor. a purchasing agent, and Supervisor
Junker: the temporary layoff of Custer; and the volun-
tary quitting of six production an6 maintenance employ-
ees. None of these employees were replaced. Additional-
ly, during this period of time, Respondent ceased its
prior common practice of employing temporary Man-
power assistance. "
' The term "excused absences" as used by Respondent at that time re-
ferred to any absence of which the supervisor had notice
While the starting rate for machine operators was S3 80 an hour, the
experienced operators could earn as much as S440 an hour
1' longish testified that no refuge vehicle had been sold since at least
October 1979 The record does not disclose how many of these sehicles
were in inventory as of April
," Counsel for Respondentl in his post-hearing brief, states that during
this time plant hours sere reduced from 9 to 8 hours a day and half days
on Saturdalys ,were eliminated I am unable to find any reference to such
changes in the record
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and Conclusions
1. The alleged 8(a)(1) violations
Supervisor Junker's undenied statements, threats, and
questions directed to certain employees in the fabrication
department on several occasions during April, as set
forth in detail above, are clearly the type which the
Board has routinely found in similar situations to unlaw-
fully interfere with, restrain, and coerce employees in the
exercise of their Section 7 rights. Respondent's counsel,
in his post-hearing brief, in essence, argues that Junker's
interrogation of employees and threats that the plant
would close if the employees successfully organized, as
well as his statement that Respondent was "cracking
down" on absenteeism because of the advent of the
Union, do not amount to independent 8(a)(1) violations
since there was no showing that such conduct had a co-
ercive effect on the employees. Clearly, the subjective
effect of conduct on employees is not a proper consider-
ation in determining whether such conduct on the part
of Respondent constitutes a violation of Section 8(a)(1)
of the Act.
The question then becomes whether Plant Manager
Tongish's notice to employees posted on Respondent's
bulletin board constituted an effective disavowal of
Junker's conduct as to obviate the need for additional re-
medial action by Respondent.
In Passavant Memorial Area Hospital, 237 NLRB 138
(1978), the Board, in finding the employer's purported
disavowal ineffective, restated the applicaple standards to
be applied in such cases:
It is settled that under certain circumstances an
employee [sic] may relieve himself of liability for
unlawful conduct by repudiating the conduct. To be
effective, however, such repudiation must be
"timely," "unambiguous," "specific in nature to the
coercive conduct," and "free from other proscribed
illegal conduct." Douglas Division, The Scott &
Fetzer Company, 228 NLRB 1016 (1977), and cases
cited therein at 1024. Furthermore, there must be
adequate publication of the repudiation to the em-
ployees involved and there must be no proscribed
conduct on the employer's part after the publica-
tion. Pope Maintenance Corporation, 228 NLRB 326,
340 (1977). And, finally, the Board has pointed out
that such repudiation or disavowal of coercive con-
duct should give assurances to employees that in
the future their employer will not interfere with the
exercise of their Section 7 rights. See Fashion Fair,
Inc., et al., 159 NLRB 1435, 1444 (1966); Harrah's
Club, 150 NLRB 1702, 1717 (1965).
Although Respondent did not post its notice until 5
weeks after the first threat, it does not appear that Re-
spondent had specific notice of the alleged transgressions
of its agent, Junker, until on or about May 5, when the
Board agent conducting the investigation met with offi-
cials of Respondent and its attorney for the purpose of
taking evidence. In this regard, I note that neither the
original charge filed on April 14 nor the first amended
charge filed on May I and served on Respondent May 5
specifically alleges as violative any conduct other than
the unlawful discharges of employees Bennett and
Custer.
With the exception of naming Junker as the supervisor
who "may have acted in an improper manner," Respond-
ent's notice specifically, as well as in statutory language,
assures its employees that it will not engage in the type
of conduct of which it had been accused or engage in
any other types of unlawful conduct. The notice goes on
to clearly and correctly state in the affirmative the rights
its employees are guaranteed by Section 7 of the Act.
The notice was posted on the company bulletin board
and apparently remained posted for some indefinite
period of time. While the location of the bulletin board
and the exact length of time for posting was not clarified
on the record, it appears abundantly clear that the em-
ployees working under Junker's supervision, as well as
all other production employees, had an adequate oppor-
tunity to read the notice if they so chose.
In these circumstances and in view of my findings and
conclusions that Respondent did not in any other manner
violate the Act, I am persuaded that Respondent's May 6
notice to employees effectively disavowed Junker's un-
lawful statements and obviates the need for additional re-
medial action. Kawasaki Motors Corporation USA, 231
NLRB 1151 (1977).
2. The discharge of Bill Bennett and the layoff of
Gary Custer
While it is admitted that Respondent acquired a gener-
al knowledge of its employees' union activities almost
immediately following the union meeting of March 26, I
am not persuaded that the evidence establishes that Re-
spondent knew of Bennett's and Custer's leading roles in
the organizing effort until after the decisions to discharge
and lay off Bennett and Custer, respectively, had been
made by Plant Manager Tongish. In this regard, I do not
view Moon's testimony that on one occasion he observed
a supervisor from another department observing Bennett
and Custer while they were soliciting the signature of an
unidentified employee as sufficient evidence of specific
knowledge on the part of Respondent. Further, it does
not appear that Respondent would have reason to be-
lieve that either Bennett or Custer was any more active
or responsible for the union campaign than any of the
other employees who wore or prominently displayed
union paraphernalia or otherwise clearly identified them-
selves as advocating the Union.
Likewise, I am not persuaded that the General Coun-
sel has established that Plant Manager Tongish, the indi-
vidual responsible for the actions taken against Bennett
and Custer, harbored any union animus. Tongish im-
pressed me as an honest and entirely reliable witness and
I therefore credit his testimony that he was, until early
May, unaware of Junker's unlawful conduct.
Even assuming that Respondent's plant manager both
harbored union animus and knew for certain that Bennett
and Custer were the two leading union adherents, the
General Counsel has not made out a prima facie showing
sufficient to support the inference that the protected con-
duct was a motivating factor in Respondent's decisions.
1372
THE BROYHILL COMPANY
Wright Line, a Division of Wright Line. Inc., 251 NLRB
1083 (1980).
With respect to Bennett, in mid-January he was in-
formed that if he continued to waste time wandering
about the plant he would be subject to discharge. Just a
month later, Respondent was forced to transfer him to
the "marval" saw in an effort to insure that he would not
continue wandering away from his work station. At that
time, Bennett's immediate supervisor, Junker, informed
him that this was his last opportunity. In mid-March, still
prior to any union activity, Bennett asked Junker for a
raise which was denied on the grounds that Bennett's
work was not good enough.
Against this background, Bennett sought and was
given permission to take an hour off from work to repair
his car early in the week of March 31. However, Junker
informed him that any further absences would result in
his termination. Two days later, he was absent for part
of the day and it was at this point that Tongish decided
to terminate Bennett's services. Based on this scenario
alone, it is abundantly clear that the General Counsel has
not met her burden with regard to Bennett.
The General Counsel, in her post-hearing brief, does
not directly attack Respondent's evidence that commenc-
ing in late February Respondent experienced a sharp de-
cline in sales, and that over the next several months Re-
spondent made significant cuts in its payroll. The Gener-
al Counsel argues that since Custer had the skill to oper-
ate all of the fabrication equipment Respondent should
have retained Custer and merely cut his wages as Junker
had promised him in January. Notwithstanding Junker's
promise, Tongish credibly testified that Custer was spe-
cifically hired to perform the sophisticated work on the
lathe in connection with Respondent's manufacture of
the four-wheel drive refuge vehicles and that when that
work was suspended Custer was simply laid off since Re-
spondent had a policy against transferring employees to
lower paying jobs. The evidence establishes that Re-
spondent's decision in this regard was based on legiti-
mate business considerations and Custer's union activities
were not a "motivating factor" in Respondent's decision-
making. Even if a contrary conclusion were to be
reached, the evidence of Respondent's economic plight
during this portion of 1980 adequately demonstrates that
the same action would have taken place even in the ab-
sence of the protected conduct. Wright Line, supra.
CONCL.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. While Respondent violated Section 8(a)(1) of the
Act as alleged in the complaint, no remedial order is re-
quired.
4. Respondent did not violate Section 8(a)(3) and (1)
of the Act by discharging employee Bill Bennett on
April 4, 1980.
5. Respondent did not violate Section 8(a)(3) and (1)
of the Act by laying off employee Gary Custer on April
11, 1980.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 12
The complaint is dismissed in its entirety.
1 In the evenl no exceptions are filed as provided by Sec 10246 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, he adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall he deemed .aived for all purposes
1373