Commerical Honing of Detroit

National Labor Relations Board - Board Decisions

May 25, 1984

270 N.L.R.B. 909 (N.L.R.B. 1984)

COMMERCIAL HONING OF DETROIT
Commercial Honing of Detroit, Ltd. and Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW) and William Williams, et al. Cases
7-CA-20037, 7-CA-20381, and 7-RC-16566
25 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 6 May 1983 Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
' The Respondent has excepted to some of the judge's credibility find-
ings, contending, inter alia, that in crediting employee Mario DiCiesare's
testimony the judge disregarded critical evidence concerning DiCiesare's
character. The judge extensively discussed the issue of DiCiesare's credi-
bility. There is no basis for concluding that in finding DiCiesare's testi-
mony credible the judge failed to consider all the evidence relevant to
this issue. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing any of his findings.
In sec. IV,C of his decision, the judge found that the Respondent vio-
lated Sec. 8(aXl) by promising benefits to employees during the Union's
organizing campaign to discourage them from supporting the Union. In
so finding, however, the judge not only discussed the subject of promis-
ing benefits, he discussed the granting of benefits as well. As the latter
part of his discussion concerning the granting of benefits is inapposite in
this context, we do not rely on it in adopting the judge's finding that the
Respondent promised benefits in violation of Sec. 8(a)(1).
In sec. IV,C of his decision, the judge also found that the Respondent's
owner and president William Yates and employee James Beck unlawfully
threatened employees with plant closure. Although James Beck is an em-
ployee, the judge found the confidential relationship between Beck and
Yates a sufficient basis for holding the Respondent responsible for Beck's
statements. We agree with the judge that the Respondent, through Yates,
threatened employees with plant closure in violation of Sec. 8(a)(l). We
find it unnecessary, however, to reach the issue whether Beck's similar
threat to close the plant also violated Sec.
8
(aXl). Such a finding would
only be cumulative, with no effect on the Order,
2 In sec. IV, par. 7, of his decision, the judge found that the General
Counsel met his initial burden of demonstrating that the union activities
of employees Jackie Burton and Zef Camaj were a motivating factor in
the Respondent's decision to discharge them. In sec. IV,B, he stated that
the Respondent may have partly relied on certain lawful considerations
for its actions, but ultimately concluded that the preponderance of the
record evidence established that the Respondent's real reason was dis-
criminatory. Although we agree with the judge's conclusion that the Re-
spondent discriminatorily discharged Jackie Burton and Zef Camaj, we
find that his analysis, while essentially correct, does not comport in all
respects with the requirements of Wright Line, 251 NLRB 1083 (1980).
Thus, in adopting his conclusion, we find that the General Counsel made
a sufficient prima facie showing that the discharges were unlawful and,
further, that the Respondent failed to demonstrate that it would have
taken the same action even if it had not suspected Burton and Camaj of
engaging in union organizing activities. See Wright Line, supra.
270 NLRB No. 124
conclusions2 and to adopt the recommended Order
as modified.3
AMENDED REMEDY
We adopt the judge's remedy except the require-
ment that the Respondent discharge, if necessary to
facilitate the reinstatement or recall of the discri-
minatees, production employees who were not
hired in chronological order based on their seniori-
ty. The record does not establish that the Respond-
ent utilizes a seniority system in making employ-
ment-related decisions. Therefore, we shall require
instead that the Respondent offer Jackie Burton,
Michael Burton, Leroy Burton, Harry Brown, Zef
Camaj, Mario DiCiesare, and William Williams im-
mediate and full reinstatement or recall, as appro-
priate, to the positions in which they would have
been working at the Warren, Michigan facility,
absent the discrimination against them or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to any rights or privi-
leges previously enjoyed, discharging, if necessary,
any persons hired to replace these employees as a
result of the discrimination.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Commercial Honing of Detroit, Ltd.,
Warren, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Jackie Burton, Michael Burton, Leroy
Burton, Harry Brown, Zef Camaj, Mario DiCie-
sare, and William Williams immediate and full rein-
statement or recall, as appropriate, and make them
whole for losses they incurred as a result of the
discrimination against them in the manner set forth
in the remedy section of this Decision."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly.
"(c) Remove from its files any reference to the
delayed recall of Leroy Burton and Harry Brown
and the failure to recall Mario DiCiesare and Wil-
liam Williams, and notify them in writing that this
has been done and that evidence of these unlawful
actions will not be used as a basis for future per-
sonnel actions against them."
3. Substitute the attached notice for that of the
administrative law judge.
s We will modify the judge's recommended Order to conform to our
amended remedy and to include the appropriate expunction provisions.
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the Regional Di-
rector for Region 7 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the
date of this Order, open and count the ballots of
Jackie Burton and Zef Camaj and prepare and
cause to be served on the parties a revised tally of
ballots on the basis of which he shall issue an ap-
propriate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge, refuse to recall, or oth-
erwise discriminate against employees in retaliation
for engaging in suspected union activities or other
protected concerted activities.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed
them in Section 7 of the Act by interrogating em-
ployees concerning their union activities and those
of other employees; creating the impression that
employees' union activities are under surveillance;
promising benefits; threatening plant closure, dis-
charge, and loss of benefits to discourage member-
ship in a labor organization or other protected con-
certed activities; and failing to offer recall to em-
ployees in retaliation for engaging in suspected
union activities or other protected concerted activi-
ties.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Jackie Burton, Michael Burton,
Leroy Burton, Harry Brown, Zef Camaj, Mario
DiCiesare, and William Williams immediate and
full reinstatement or recall, as appropriate, to the
positions in which they would have been working
absent our discrimination against them or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to any rights or privi-
leges they previously enjoyed, discharging, if nec-
essary, any persons hired to replace these employ-
ees as a result of such discrimination. WE WILL
also make them whole, with interest, for any loss
of pay suffered by them as a result of the discrimi-
nation practiced against them.
WE WILL remove from our files any reference to
the discharge of Jackie Burton and Zef Camaj on
29 October 1981, the discharge of Michael Burton
on 5 November 1981, the delay in recalling Leroy
Burton and Harry Brown, and the failure to recall
Mario DiCiesare and William Williams, and WE
WILL notify them in writing that this has been done
and that evidence of these unlawful actions will not
be used as a basis for future personnel actions
against them.
COMMERCIAL HONING OF DETROIT,
LTD.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
These consolidated cases were heard in Detroit, Michi-
gan, on October 13, 14, and 15, 1982. The proceedings
are based on charges filed November 18, 1981, and
March 3, 1982, and the reopening on October 12, 1982,
of the related representation case, Case 7-RC-16566.
The General Counsel's complaints, as amended, allege
that Respondent Commercial Honing of Detroit, Ltd.
violated Section 8(a)(1) and (3) of the National Labor
Relations Act by discharging certain employees because
of their suspected union activities and by interrogating
employees; threatening them with loss of benefits, jobs,
and plant closure; promising them benefits; creating an
impression of surveillance; and otherwise interfering
with, restraining, and coercing employees in the exercise
of their rights under Section 7 of the Act.
Briefs were filed by the General Counsel and the Re-
spondent. On a review of the entire record in this case
and from my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is engaged in the honing of metal
tubing and related services. It maintained a facility at
Roseville, Michigan, until January 1982 when it was re-
located at Warren, Michigan, and at all times material
herein it derived gross revenues in excess of $500,000
and performed services at these facilities valued in excess
of $50,000 for customers outside Michigan. It admits that
it is and has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), the Union, is a labor organiation within the
meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
On May 1, 1981, William Yates became the owner and
president of Commercial Honing of Detroit, Ltd. and
Commercial Honing of Jackson. At the same time, he
also acquired 95 percent interest in Commercial Honing
of Texas. All three plants are primarily engaged in the
910
COMMERCIAL HONING OF DETROIT
"honing" or precision grinding of the inside diameters of
pipe.
Yates also is the owner of Yates Industries, a business
which requires honing services. Prior to May 1981,
Commercial Honing of Detroit had performed all of its
work. At the time of purchase, the Jackson plant had ap-
proximately 60 employees, Texas 17, and Detroit 12.
Employees of the Jackson plant are represented by a
union other than the Charging Party herein. Prior to the
purchase, Yates was aware that the Jackson and Texas
plants were doing well and that the Detroit operation
had lost money for 3 or 4 years. After the purchase
Yates and Henry Yoe, who is a vice president of the Re-
spondent and Yates Industries, began observing the oper-
ations of the several plants, with Yoe spending most of
his time in Texas. During July and August he became
aware of specific problems at the Roseville plant which
centered around poor employee work habits, including
irregular work hours and inattention to machines. Yoe
subsequently wrote up a company policy that basically
requires the employees to stay by their machines. In ad-
dition to several honing machine operators, who require
special skills, the Roseville plant employed Mark Cook
as materials manager for the handling of paperwork and
phone calls and the scheduling of orders. Cook was an
hourly paid employee who generally wore casual cloth-
ing at work. Although he was not assigned to any super-
visory duties, he would give work orders to Leroy
Burton, the senior machine operator, and he assigned the
jobs to specific machines or workers. He also was asked
by Yoe about the work habits of other employees and
for his advice about which employees should be disci-
plined or discharged. James Beck was employed as a sal-
aried truckdriver and sales representative. He had no
specific supervisory duties in connection with the pro-
duction workers, although he also sometimes assigned
jobs to production employees. When Yates purchased
the Respondent Company, he discharged the former
manager, and, in substance, the Roseville facility operat-
ed without any foreman or supervisor after it was pur-
chased on May 1, 1981, except for occasional observa-
tions by Yoe, when he was not in Texas, or Yates, when
he was in the Roseville production area.
Although Yoe became aware of productivity problems
by being "told about them" or stopping in on "occa-
sion," he did not post his policies about staying by ma-
chines until at least October 25, 1981. No other attempts
were made to take any specific disciplinary or corrective
action. During the summer of 1981, Yates became in-
volved in negotiating the purchase of the Roseville
building (its lease was due to expire at the end of the
year). In anticipation of the purchase, he painted, in-
stalled new lights, and built a glass walled office that
would allow observation of the production area. Yates,
who had no prior knowledge of the honing process, tes-
tified that he "really couldn't figure it out," referring to
apparent problems with productivity and quality of
workmanship at Roseville. Yates had visited the Texas
plant and he visited the Jackson plant at least once a
week. Otherwise, he testified that he was at the Roseville
plant everyday (sometimes on Saturdays), and that he su-
pervised the production workers until November 5, 1981,
when Foreman Ed Moore was brought there from the
Jackson facility.
Sometime during July 1981, some employees became
concerned about the way things were going and Leroy
Burton contacted the Union. He was sent union cards
which he and employee Zef Camaj handed out to other
employees during late July.
The employees then decided to wait and see what
would happen as they received the impression that Yates
was going to be fair and perhaps give some added bene-
fits; however, shortly before October 29, 1981, Burton
again contacted the Union and a representation petition
was filed on that date.
Yates testified that on October 27 or 28, 1981, he had
pretty much made up his mind to lay off employees
Leroy Burton, Jackie Burton (Leroy's son), and Zef
Camaj because he had gone through records and found
that they were frequently tardy or absent and also had
produced excessive scrap. He then told his brother, John
Yates, to inform them of this on Thursday, October 29.
On Thursday morning, Bill Yates spoke to Jackie Burton
about staying by his machine and he then asked Jackie's
father, Leroy, to warn Jackie that he would be fired if
he did not do so.
Between 1 and 2 p.m., on October 29, 1981, Yates
called employee Mario DiCiesare away from his ma-
chine. DiCiesare testified that as they walked outside the
plant Yates started the conversation by telling him that
he knew who had started the union drive and that he
was letting Leroy and Jack Burton and Camaj go be-
cause they "weren't working properly" and "weren't
making money for the Company." Yates asked DiCiesare
if he would agree to open the plant each morning (ap-
parently in place of Leroy Burton) and when he said yes
he was instructed to return that evening to pick up the
key and not to tell anyone about the conversation.
Yates' brother terminated the three employees about
2:30 p.m. on the same day; however, Leroy Burton re-
turned a few hours later. He asked Yates why he was
being let go after 29 years and Yates agreed to give him
another chance.
Although Yates agreed that he had a general conversa-
tion with DiCiesare on the afternoon of October 29, he
denied that any mention was made of the Union then or
later that evening when DiCiesare picked up the key.
DiCiesare testified, however, that when he returned to
the shop, at approximately 6 p.m., he met with Yates and
Jim Beck in the back office along with employees Art
Oswald and Pero Grozdrovski. DiCiesare further testi-
fied that Yates told them that "he did not need the
people who started the Union in the shop and that he
would retain the employees who had no connection to
the Union." Yates also said he would give them a raise at
the end of the month if "things went smooth."
Yates, however, testified that he did not learn of the
employees' union activities until November 3 when he
returned a call received in the Respondent's office on
November 2 by his secretary from the Regional Office of
the Board. He also testified that on November 3 he saw
an envelope from the Board and an election notice but
that he otherwise never read the material in the envelope
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other material that came from the Board. The
General Counsel presented an exhibit that indicated cer-
tified receipt of notification from the Board of the filing
of the representation petition, signed by Donna Burnes,
Yates' secretary, on October 30, 1981.
Harry Brown was employed by the Respondent as a
machine operator. He was on sick leave during October
1981 but visited the plant on October 29 in order to
bring in papers related to his hospitalization and he was
present when Yates' brother laid off the three employees.
The next day, October 30, 1981, he received a call at his
home from Yates. He testified that Yates asked, "What
the hell do you want a union for?" Brown responded
that the employees wanted a union for "protection."
Yates asked "protection from what." Brown explained
"from the shit you pulled last night," referring to the ter-
mination of Burton and Camaj. Yates informed Brown
that Jack Burton and Camaj would never work for him
again, complaining about their work habits. Yates then
said that he "would close the shop before he would let
the Union in."
Leroy Burton testified that during the first week of
November 1981 Yates informed him that some employ-
ees were trying to start a union at the shop. Burton re-
sponded, "Oh yeah," and Yates said, "Yeah." On either
November 1 or 2, 1981, Jim Beck spoke to Burton out-
side the shop door and said that if they found out who
was trying to start a union "his ass would be out the
door." A few days later Yates again approached Leroy
Burton and asked if Burton had heard anything about the
Union. Burton responded negatively and Yates said that
if the employees called off the union drive, he would
give them the same benefits as employees at Commercial
Honing of Jackson.
Michael Burton, another son of Leroy Burton, testified
that he was approached by Yates on November 3, 1981,
and was asked where he had been on October 29, a day
Mike Burton had been absent. When Burton told Yates
he had been taking care fo his car, Yates said he was
lying and accused Burton of going to the NLRB on that
date with his father, brother, Camaj, and Brown. Mike
Burton denied the accusation and the conversation
ended. Two days later Vice President Yoe terminated
Burton, saying it was because of attendance problems.
This termination followed certain previous conversations
with Yates about Burton's performance but it was preci-
pitated when Yoe observed Burton walking around the
shop rather than staying by his machine. Yoe admitted
he was then aware of the union drive but testified he was
unaware of any union activity by Burton at that time.
Burton noted that shortly after the union cards had been
passed out he had indicated to Art Oswald that he was
for the Union.
Leroy Burton testified that later in November he was
again approached by Yates and asked if he had learned
who had started the union drive. Burton said he had not
heard and Yates asked Burton to talk to other employ-
ees. On some other occasion, also during November,
Yates then told Burton several times that he knew that
"damn" Camaj was behind the union drive.
Also in mid-November, DiCiesare was called to the
office phone by Cook. Yates was on the line and he
asked DiCiesare if he would like to work overtime. Di-
Ciesare said "sure" and Yates said that he did not need
people who started the Union and did not want them
working overtime. Yates then asked DiCiesare to meet
with him later that evening. After DiCiesare hung up,
Cook told him that if he did not attend the meeting he
would not be Yates' friend anymore. Yates appeared at
the shop later in the day and again advised DiCiesare to
"stick with him and Art."
DiCiesare went to Yates Industries that same evening.
When he arrived, he first spoke with Yoe, who asked
DiCiesare what he thought about the Union. Both Bill
and John Yates came in with the Respondent's attorney
John Youngblood. DiCiesare testified that Youngblood
asked DiCiesare what he thought about the Union and
why other employees wanted union representation. Di-
Ciesare said he was against it and Youngblood said that
was nice. Youngblood then informed DicCiesare that he
was the deciding vote but did not have to tell him how
he was going to vote because they would be able to tell
how he voted if the Union came in. Youngblood con-
firmed that he met with employee DiCiesare at Yates In-
dustries. Youngblood further testified that on being intro-
duced he advised DiCiesare that he was there on his
own volition and did not have to speak to them, and that
he had suggested the meeting because the Respondent
had advised Youngblood that DiCiesare had received
threats from his coworkers and Youngblood wished to
advise DiCiesare that he did not have to endure such
threats. DiCiesare testified he was never threatened and
the only time this was discussed was when Yates,
Youngblood, and Beck asked him about it. DiCiesare fur-
ther testified that Youngblood had said to let him know
and they would call the Union off.
Bill Yates also spoke to DiCiesare at this meeting and
offered him a raise but Youngblood warned Yates against
such action. DiCiesare testified that Yates went on to say
that he would "close the shop if the Union came in."
Yates offered to employ DiCiesare's brothers if things
"went smooth[ly]." He said he did not need the people
who supported the Union, and mentioned Leroy Burton,
Harry Brown, and Bill Williams and advised DiCiesare
that he intended to get rid of those employees after the
union drive was finished. Around the same time, Yates
also spoke with employee Williams in a conversation
outside the shop. Williams testified that Yates asked him
if he knew anything about the Union. Williams told
Yates that he had heard some rumors. Yates mentioned
that Williams had been tardy on several occasions, but
then assured Williams that it did not matter. Yates then
mentioned some scrap that lost money for the Company
and continued his discussion of the union drive, inform-
ing Williams that it was costing the Respondent money
to fight the Union, and implied that he figured that
Larry Matthews, the former manager of the plant, was
the one who had started the Union. He reminded Wil-
liams that he gave turkeys to employees at Thanksgiving
and hams at Christmas. Yates then elaborated, telling
Williams he could be spending money on Christmas gifts
for employees rather than spending money on fighting
the Union.
912
COMMERCIAL HONING OF DETROIT
During this period of time Yates also informed Leroy
Burton of his problem with the lease on the building, and
had Burton go with him on one occasion to look at an-
other building. On December 10, 1981, a week before the
union election, Yates called Burton to his office and re-
quested that Burton attempt to get the employees to
abandon their organizing efforts. Yates pulled out finan-
cial records and showed Burton that he was making
more money that other employees and said he would
make less if the Union came in. Yates then said he would
close the shop if the organizing drive was successful.
The election was held by the National Labor Relations
Board on December 17, 1981. The Union made no objec-
tion to the Excelsior list and no ballots were challenged
by the union observer, Leroy Burton. Jackie Burton and
Zef Camaj voted; however, their votes were challenged
by the Board agent because their names did not appear
on the Excelsior list. The employees voted five to four to
reject representation by the UAW.
The Regional Director subsequently reviewed the fail-
ure to count the ballots of Jackie Burton and Camaj
noting the allegation that they had been unlawfully ter-
minated; however, the allegations pertaining to such dis-
charges were dismissed on December 29, 1981, and on
February 9, 1982, the Regional Director recommended
certifying the results and this was adopted by the Board
on March 2, 1982.
On December 18, 1981, the day the following the elec-
tion, the employees reported to work as usual but at the
end of their shift they were called to the timeclock.
Leroy Burton testified that Yates said they were "not to
return to work anymore . . . as of 11 tonight the plant is
closed." Burton asked if they were fired or laid off and
was told "laid off." Brown recalled that Yates said, "I'm
not making any money, I'm closing the shop," and in re-
sponse to a question said they would get unemployment.
Yates testified that he told the employees there was a
lack of work and the Respondent was going to be
moving, but the Respondent had to lay off everyone be-
cause it did not have a new building and they all could
collect unemployment.
DiCiesare had left work early on December 18 and
did not see any other employees on the weekend or oth-
erwise learn of the closing. He came to work on
Monday, December 21, and was told by Cook that the
plant was closed and to go down for unemployment. He
later returned to the office to see about his paycheck. He
saw Yates who told him "it was a shame that everybody
wanted a union and everybody now is out of a job."
Yates said that "Mark Cook, Pero is out of a job . . .
and was at home crying" and that all were "starting to
do good. Brown was improving in his work and Bill
Williams was improving and Leroy," and "now you
guys are all out of a job." DiCiesare testified that Yates
then told him that if he had voted against the Union he
and everyone would still have a job.
The Respondent had found a new facility in Warren,
Michigan, and prior to reopening in January 1982 Yates
selected Cook, Moore, and Art Oswald to help with the
moving of equipment. Yates testified that he did not
select Burton and Brown to help move because he did
not think they were physically capable. DiCiesare was
not picked because Yates did not feel he was capable as
he would not take orders specifically. '
Cook and Moore moved to the Warren facility; how-
ever, Moore (who acted as foreman) and Oswald were
the only production workers employed until Groz-
drovski was recalled. In July 1982, Leroy Burton was re-
called and shortly thereafter he took a medical leave of
absence. When he later brought in a doctor's slip saying
he could work, the Respondent said it was short of work
and he remained out. He testified that Cook, Beck, and
Moore were there as well as Oswald, Grozdrovski, and
two other workers he had never seen before. Subse-
quently, Brown also left work as a result of a medical
problem. Brown subsequently indicated his availability to
the Respondent but as of the time of the hearing the Re-
spondent indicated it did not have the work.
IV. DISCUSSION
The issues in this case arise from the events surround-
ing the purchase of the Respondent by William Yates,
his subsequent discharge of the former manager, his at-
tempts to run the facility without an experienced super-
visor, and his attempts beginning October 29, 1981,
through discharge of employees to cure work and pro-
duction problems. At the same time, several employees
became concerned with their working conditions under
the new ownership and contacted the Union and, subse-
quently, initiated the filing of a union representation peti-
tion on October 29, 1981.
The apparent union proponents made no overt show
of their union interest and activities and the Respondent
claims it had no knowledge of any union activities until
November 3, 1981, when Copmany President Yates re-
turned a call to the Board's Regional Office and first saw
an envelope from the Board, together with an election
notice. The Respondent terminated employees Zef
Camaj, Jackie Burton, and Leroy Burton (Leroy's termi-
nation was later dropped) on October 29, 1981, allegedly
without knowledge of any union activities and allegedly
because of dissatisfaction with their attendance and pro-
duction.
The testimony of witness DiCiesare, however, shows
that, in a conversation shortly before the three employ-
ees were terminated on October 29, Yates told him that
he was aware of who had started the union drive. Later
that same evening Yates told DiCiesare and employees
Beck, Oswald, and Grozdrovski that he "did not need
Moore testified that he and a Jackson employee agreed to help
straighten out the Roseville facility. At that time Moore did not supervise
the Roseville workers but made suggestions and observations and report-
ed his observations to Yates. He noted that Leroy Burton was a fair
honer and that he could not say a whole lot against his work habits. He
felt production by Williams was way down from what it should be and,
although it improved, it was not enough to be considered satisfactory. He
felt Brown did a fairly good day's work but had a habit of constantly
complaining. He worked with DiCiesare quite a bit as he was a fairly
new employee and found that "he caught ahold real good" and "started
doing a lot better job." In December DiCiesare was doing "a fairly de-
scent job" and Moore could not say anything bad about his work habits.
Michael Burton was criticized for not staying by his machine and keep-
ing it cutting. Moore considered Oswald a "good worker . . one of the
better workers . . . at Commercial Honing," although he had been one
of the least experienced until Moore began working with him.
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the people who started the Union," and would keep em-
ployees "who had no connection with the Union," and
would give them raises if things went smoothly.
DiCiesare was subjected to extensive and repetitive
cross-examination, apparently designed to confuse him
and to discredit his memory, character, and credibility.
DiCiesare, however, whose personal mannerisms are
casual, friendly, unsophisticated, and touched by distinc-
tive speech, showed an attempt to answer questions to
the best of his ability and to be agreeable with whoever
was questioning him, and he consistently held to his
basic description of the events that he had participated
in. Although the Respondent's witness Youngblood later
attempted to disparage DiCiesare's character and testi-
mony by implying that DiCiesare's mannerisms during
their meeting suggested he had been drinking or using
drugs, I find that witness Youngblood's demeanor was
supercilious in nature, sometimes presumptive, and some-
times evasive where as DiCiesare's demeanor was
straightforward, dispassionate, and honest. I therefore
find DiCiesare's testimony should be credited over that
of both Youngblood and Yates.
The Respondent's records show that on October 30,
1981, Yates' secretary signed a certified receipt of the
Board's notification of the filing of the representation pe-
tition, and Yates' disclaimer that he otherwise never
bothered to read material from the Board and that he did
not know of the Union until November 3 strains credibil-
ity. Moreover, the disclaimer is refuted by the credible
testimony of employee Brown, who was called by Yates
on October 30 and asked why the employees wanted a
union, and it therefore supports the inference that Yates'
testimony is an attempt to cover up his actual awareness
on October 29, 1981, that some employees were pursuing
union activities.
This conclusion is reinforced by the unchallenged evi-
dence that employees Oswald and Grozdrovski (as well
as Cook) were also present at the evening meeting on
October 29 when, as DiCiesare testified, Yates indicated
his awareness of union activities, that these other em-
ployees were among those given apparent preferential re-
hiring by the Respondent when and after it relocated,
and that they were not called as witnesses by the Re-
spondent. Also Michael Burton testified specifically that
he had talked to Oswald at the time union cards were
first passed out and indicated that he was for the Union.
Accordingly, I infer that one or more of these employees
had promanagement sympathies and a probable aware-
ness of the talk and activities of other employees and in-
formed the Respondent of the other employees' develop-
ing prounion plans.
As noted above, I credit the overall testimony of wit-
ness DiCiesare and I therefore find that the Respondent,
by its words and actions beginning on Octoner 29, 1981,
had knowledge of employees' union activities and
wanted to get rid of prounion workers. I therefore con-
clude that the General Counsel has met his initial burden
in a case of this nature by presenting a prima facie show-
ing sufficient to support an inference that the employees'
union activities were the motivating factor in the Re-
spondent's decision to discharge the involved employees.
Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 (1980), and Castle Instant
Maintenance, 256 NLRB 130 (1981), to consider the Re-
spondent's defense and, in the light thereof, whether the
General Counsel has carried his overall burden.
A. The Discharges of Employees Jackie Burton and
Zef Camaj
On October 29, 1981, the Respondent laid of (with the
intention that they not be recalled) employees Jackie
Burton and Zef Camaj for the asserted reason that their
records showed they were frequently tardy or absent
and had production problems, especially producing too
much scrap. Prior to that time, however, none of the em-
ployees had been warned or disciplined for problems
except for the morning of that same day when President
Yates warned Jackie and his father that Jackie would be
fired if he did not stay by his machine. As argued by the
General Counsel, however, there was an absence of any
prior discipline and the only new factor arising on Octo-
ber 29 was the activation of a dormant union organiza-
tion plan. Yates revealed his knowledge of the union ac-
tivity, as well as his union animosity, when he told Di-
Ciesare during the early afternoon that he knew who
had started the Union and later said that he did not need
the union people in his shop. Although Yates sought to
justify his sudden termination of Burton and Camaj on
the basis of their alleged poor work habits and perform-
ance, his loss of tolerance occurred only after the em-
ployees initiated the filing of the union representation pe-
tition. Although the Respondent may have partly relied
on unacceptable work attitude or performance for its ac-
tions, union animus cannot lawfully be the moving cause
of their dismissal. See Marathon LeTourneau Co. v.
NLRB, 699 F.2d 248 (5th Cir. 1983), enfg. 256 NLRB
350 (1981). Accordingly, and in view of the Respond-
ent's contemporaneous illegal practices and corrobora-
tive factors discussed below, I conclude that the prepon-
derance of the evidence shows that the Respondent's real
motivation for its discharge of Jackie Burton and Zef
Camaj on October 29, 1981, was in retaliation for their
suspected union organizing efforts and therefore I find
they were discharged in violation of Section 8(a)(3) of
the Act as alleged.
As noted, the ballots cast by Jackie Burton and Camaj
during the election on December 17, 1981, were not
counted. Inasmuch as they were discharged unlawfully,
they should have been considered as eligible voters and
their ballots counted. Inasmuch as the challenged ballots
are determinative of the election outcome it is necessary
that they be counted and a new certification of results of
election be issued in the embraced representation case.
B. The Discharge of Employee Michael Burton
Michael Burton was discharged on November 5, 1981.
The Respondent contends that this was because of his
continued attendance problems and that, otherwise, it
was precipitated on November 5 by his failure to follow
the new company policy that employees should stay by
their machines. Other reasons for his discharge were
914
COMMERCIAL HONING OF DETROIT
proffered in an attempt to provide justification for the
Respondent's action.
Although Michael had probably the worst attendance
record, he was not selected for the initial "layoffs" on
October 29. Moreover, he was not fired when he re-
turned to work after again being absent on October 29.
Instead, he was met with questions and accusations about
having gone to the National Labor Relations Board on
that date with his father, brother, and Camaj. Oswald, a
management sympathizer, knew Burton has expressed
prounion feelings. The Respondent had backed off on its
plan to terminate Burton's father; I infer that the Re-
spondent then substituted Michael Burton in his place,
along with his brother and Camaj, as the suspected union
organizers. Also, by the date Michael was discharged the
Respondent had engaged in threats, interrogation, and
other practices, as discussed below, and its demonstrated
continuation of these practices shows the Respondent's
union animosity. I find that this animosity controlled the
Respondent's motivation at the time Burton was dis-
charged. I conclude that the preponderance of the evi-
dence shows that Michael Burton was discharged on No-
vember 5 because of his suspected union activities and
those of his brother and the Respondent's union animosi-
ty which surfaced and developed as President Yates
learned of the representation petition about October 29
and as he began to receive communications from the
Board over the next few days. Accordingly, I find that
Michael Burton was discharged in violation of Section
8(a)(3) of the Act as alleged. See Marathon LeTourneau,
supra.
C. Interrogation, Threats, and Other Alleged Unfair
Labor Practices
In contrast to the Respondent's vague and general de-
nials, the several employee witnesses have given credible
testimony which support the General Counsel's charges
regarding numerous alleged instances of illegal practices.
See generally Fibracan Corp., 259 NLRB 161 (1981), and
cases cited therein.
The Respondent's president Yates questioned Brown,
Williams, and Leroy Burton on several occasions, asking
who had started the Union and why employees had initi-
ated the union campaign. The Respondent's attorney
Youngblood questioned DiCiesare regarding the same. I
find such interrogation during the time prior to a repre-
sentational election to be coercive in nature, especially
when viewed in the context of the Respondent's other
practices, and I find that the General Counsel has estab-
lished that the Respondent unlawfully interrogated em-
ployees as alleged in the complaint.
On October 29, 1981, Yates told DiCiesare that he
knew who had started the union drive at the shop. Also,
the Respondent's attorney told DiCiesare at the meeting
in mid-November that he was the deciding vote in the
union election and that they would be able to tell how
he voted. These statements created and furthered the im-
pression of surveillance and violated Section 8(a)(1) of
the Act.
Employees Leroy Burton, Williams, and DiCiesare
gave credible testimony that Yates offered them various
benefits such as benefits similar to those of the Respond-
ent's Jackson employees-promises of increased Christ-
mas bonuses, giving a relative a job, increased overtime,
and higher wages.
The promise of benefits during a union campaign vio-
lates the Act, unless an employer shows that the granting
of benefits occurred as the result of an established com-
pany policy; however, the Respondent presented no such
defense. Accordingly, I find the promises of benefits
herein were attempts by the Respondent to dissuade em-
ployees from their union support and therefore in viola-
tion of Section 8(a)(1) of the Act as alleged.
Employees Leroy Burton, DiCiesare, and Brown all
testified regarding numerous threats made by Yates and
James Beck to close the shop. Although Beck held no
formal supervisory position, he had worked for Yates In-
dustries prior to the purchase of the honing business, he
continued with the Respondent when the facility closed
and moved, he sometimes assigned work and gave verbal
warnings, and he had significantly different working con-
ditions than other employees. His confidential relation-
ship with Yates is sufficient to show that the Respondent
is chargeable with responsibility for his statements.
Yates also told DiCiesare that he would not assign
overtime to employees who supported the Union, and
Yates told Leroy Burton that he would earn less money
if the union drive succeeded. As otherwise noted above,
Yates told some employees that he did not need those
who started the Union and implied that those who start-
ed the Union would not work for him again and would
be "out the door." He also implied a threat of loss of job
by telling DiCiesare that he would still have a job if he
voted against the Union. I find that these threats were
made by the Respondent and, accordingly, I find that
they infringed on employees' Section 7 rights and reflect
further violations of Section 8(a)(1) of the Act as alleged.
D. Failure to Recall Union Supporters
After closing its Roseville facility the day after the
election, the Respondent moved and in January began
recalling certain employees at its new facility. However,
known or suspected union supporters were not offered
reemployment until mid-1982, when Leroy Burton and
Brown were recalled for a short period of time. On the
other hand, both Oswald and Grodrovski, known man-
agement supporters, were early recalls dispite their ap-
parent lesser amounts of experience. The Respondent at-
tempts to assert a valid business reason for its failure to
offer recall to DiCiesare and Williams by suggesting that
they were not capable employees; however, DiCiesare
was described by Foreman Moore as a worker who was
learning "real good" and doing a "fairly decent job,"
while Williams was one of those initially mentioned by
Yates (along with Leroy Burton and Brown) as one he
wanted to get rid of because of suspected union support.
It appears that Yates somehow believed (apparently mis-
takenly) that DiCiesare had supported the Union (or he
thought it desirable to separate himself from someone he
had used but who had knowledge of potentially damag-
ing practices) and I infer that he was motivated by the
latter reasons to discriminatorily fail to offer him recall.
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the overall record, including the animus pre-
viously discussed, I conclude that the General Counsel
has shown that the Respondent's selective recall of pro-
duction workers to its relocated facility was discrimina-
torily motivated by a desire to reward employees who
were not for the Union and to otherwise retaliate against
union supporters and to discourage employees from sup-
porting the Union. Accordingly, I find that the Respond-
ent is shown to have violated Section 8(aX3) of the Act
in this regard as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. By interrogating employees concerning their union
activities and those of other employees; creating the im-
pression that the employees' union activities were under
surveillance; promising benefits during a union campaign;
and threatening plant closure, discharge, and loss of ben-
efits, the Respondent violated Section 8(a)(1) of the Act.
4. By discharging Jackie Burton, Michael Burton, and
Zef Camaj, the Respondent engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the Act.
5. By failing to offer recall to employees Mario DiCie-
sare and William Williams, and by its belated recall of
Leroy Burton and Harry Brown, the Respondent dis-
criminated against them thereby discouraging employees
from supporting the Union and engaged in unfair labor
practices in violation of Section 8(a)(3) of the Act.
6. On December 17, 1981, Jackie Burton and Zef
Camaj were eligible voters as a result of their unlawful
termination, and their ballots should be counted, result-
ing in a new certification in Case 7-RC-16566.
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
certain affirmative action designed to effectuate the poli-
cies of the Act,
The Respondent having discriminatorily discharged
three employees, belatedly recalled two employees, and
failed to offer recall to two others, I find it necessary to
order it to offer them reinstatement or recall, discharging
if necessary any production employees not hired in
chronological order based on their seniority when the
Respondent's Roseville facility was closed, and to other-
wise place their names on a preferential hiring list and
offer them the first such positions that become available
with compensation for loss of pay and other benefits, in
accordance with F. W Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp.,
138 NLRB 716 (1962). Inasmuch as the Respondent en-
gaged in misconduct resulting in the challenge of two
ballots, which challenge is not sustained herein, it is nec-
essary that these ballots be counted and that there be a
new certification in Case 7-RC-16566. Moreover, the
repetitious nature of the Respondent's misconduct dem-
onstrates a general disregard for the fundamental rights
of employees and therefore issuance of a broad order is
necessary.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Commercial Honing of Detroit, Ltd.,
Warren, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or refusing to recall any employees or
otherwise discriminating against them in retaliation for
engaging in suspected union activities or other protected
concerted activities.
(b) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act by interrogating employees con-
cerning their union activities and those of other employ-
ees; creating the impression that employees' union activi-
ties are under surveillance; promising benefits; and
threatening plant closure, discharge, and loss of benefits
to discourage membership in a labor organization or
other protected concerted activities.
(c) Failing to offer recall to employees in retaliation
for engaging in suspected union activities or other pro-
tected concerted activities.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act.
(a) Offer Jackie Burton, Michael Burton, Leroy
Burton, Harry Brown, Zef Camaj, Mario DiCiesare, and
William Williams immediate and full recall or reinstate-
ment and make them whole for the losses they incurred
as a result of the discrimination against them in the
manner and subject to the conditions specificed in the
section above entitled "Remedy."
(b) Expunge from its files any reference to the dis-
charges of Jackie Burton and Zef Camaj on October 29,
1981, and Michael Burton on November 5, 1981, and
notify them in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Warren, Michigan facility, copies of the
attached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
916
COMMERCIAL HONING OF DETROIT
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
l If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that in view of the conclu-
sions herein a new certification of results of election be
issued in Case 7-RC-16566.
917