Custom Window Extrusions

National Labor Relations Board - Board Decisions

Aug 24, 1994

314 N.L.R.B. 850 (N.L.R.B. 1994)

850
314 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
We grant the General Counsel’s motion to correct an inadvertent
error in the administrative law judge’s decision. We find no merit
to the Respondent’s argument that it was denied an opportunity to
present relevant evidence.
2 All dates are in 1992 unless otherwise noted.
3 The complaint also alleged that a similar notice posted on Octo-
ber 20 violated the Act. The judge made no findings with respect
to this notice, and the General Counsel did not except to the failure
to find a separate violation. Thus, it is unnecessary for us to pass
on this allegation.
Custom Window Extrusions, Inc. and United Elec-
trical, Radio and Machine Workers of America
(UE). Case 6–CA–25151
August 24, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On November 12, 1993, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions as modified and to adopt the rec-
ommended Order as modified.
The Respondent excepts, inter alia, to the judge’s
finding that it violated Section 8(a)(1) of the Act by
informing its employees by letter of October 14,
1992,2 that it would be futile for them to select the
Union as their bargaining representative. The letter was
sent during a time when the Union was engaged in or-
ganizing activities aimed at the Respondent’s workers.
We find merit in this exception of the Respondent and
reverse the judge’s finding that this letter unlawfully
conveyed to employees that their selection of the
Union would be futile.3
The relevant language of the October 14 letter is as
follows:
FACT: Only the Company can raise wages. All
the Union can do is call a strike in an attempt to
force the Company to do something.
FACT: By striking, a union is gambling with its
members’ future, hoping that it can shut off ship-
ments to the employer’s customers to gain lever-
age in the negotiations.
FACT: [the Respondent] is a member of the
Royal Plastics Group. If our production is inter-
rupted in Delmont, our customers can easily be
supplied from other plants, both in the United
States and Canada.
FACT: Once negotiations start, all things are ne-
gotiable and wages and benefits can and often do
go down because the union ‘‘trades them’’ for
other things like a union security or dues check-
off provision. [Emphasis in the original.]
The General Counsel argued before the judge that
the first paragraph implied to employees that union
representation would be futile through its suggestion
that the Union could not improve employees’ wages
except by striking. The Respondent asserted that there
was no violation because nowhere in the document did
it state that a strike would be inevitable or that the Re-
spondent would not negotiate with the Union.
The judge found that the Respondent’s assertion
that, ‘‘only the Company can raise wages, all the union
can do is call a strike in an attempt to force the Com-
pany to do something,’’ was an unlawful statement of
futility, because it implied that the Union can make all
the demands it wants but the employer does not have
to agree to anything. He cited Seville Flexpack Corp.,
288 NLRB 518, 534–535 (1988), in which the Board
found that the employer violated Section 8(a)(1) by
stating to its employees that the union had two choices
in the face of a final offer by the company, accepting
the offer or going out on strike. There, the employer
asserted that in negotiations, the union could make all
the demands it wanted but the employer did not have
to agree to a thing. The Board adopted the judge’s rea-
soning that by telling employees that it did not have
to agree to any union demands, even before any were
made, the employer informed employees that its own
intransigence and ‘‘not economic necessity or the give-
and-take of negotiations—would render it useless to
support a union.’’ 288 NLRB at 535. The Board
agreed with the judge that this expression of employer
intransigence was unlawful.
We find Seville Flexpack distinguishable from the
instant case, because in that case the employer official
who made the remarks made no mention of bargaining
in good faith, instead stressing that its role in negotia-
tions was going to be to make a take-it-or-leave-it
offer, which the union could either take or strike. To
drive the point home, he followed up these remarks by
noting that ‘‘bitter strikes have long been the hallmark
of the printing and publishing industry,’’ and by refer-
ring to several examples of failed strikes involving the
same international union.
By contrast, in the instant case, the October 14 letter
stated that all things were negotiable. It went on to
state that even though ‘‘wages and benefits can and
often do go down,’’ this was not due to employer in-
851CUSTOM WINDOW EXTRUSIONS
4 Member Browning, dissenting in part, would adopt the judge’s
conclusion that the Respondent violated Sec. 8(a)(1) of the Act by
informing its employees, in its October 14, 1992 letter, that it would
be futile for them to select the Union as their bargaining representa-
tive. Member Browning agrees with the judge that Seville Flexpack
Corp., 288 NLRB 518, 534–535 (1988), is dispositive of this issue.
In that case, as in this one, the respondent informed its employees
that it did not have to agree to any wage demands, and that the only
action which the union could take to increase wages for the employ-
ees would be to strike. Moreover, as in Seville Flexpack, the Re-
spondent in this case made these statements in the context of other
coercive and unlawful actions. In fact, the Respondent issued its let-
ter to the employees on the same day that it unlawfully discharged
a leading union supporter. In Member Browning’s view, Fern Ter-
race Lodge, 297 NLRB 8 (1989), relied on by the majority, is clear-
ly distinguishable. There, the respondent simply informed its em-
ployees, accurately, that the law did not require it to agree to any
union demands, and that the employer had the right to ask, during
negotiations, that wages be reduced. Unlike in this case, there was
no implication that the respondent would not agree to any union de-
mands for a wage increase, and that the only action that the union
could take in that event would be to strike. For all these reasons,
Member Browning would adopt the judge’s conclusion that the Re-
spondent’s letter of October 14, read in its entirety and in context,
clearly imparted the message that selecting the Union would be fu-
tile, and thus violated Sec. 8(a)(1) of the Act.
transigence, but to the parties bargaining for other con-
cessions. Thus, the Respondent gave no indication that
it planned to bargain in bad faith or issue take-it-or-
leave-it offers, but instead allowed for the eventuality
that negotiations would determine what happened in
the employees’ workplace, were a union to be elected.
We find the facts of this case to be closer to those
found in Fern Terrace Lodge, 297 NLRB 8 (1989).
There, the Board reversed the judge’s finding that the
following speech to employees was unlawful under
Section 8(a)(1):
You should know that voting the union in does
not automatically guarantee any increase in wages
or other benefits, because under the law a com-
pany does not have to agree to any demand or
proposal that a union might make. Even if it got
in here, a union couldn’t force us to agree to any-
thing that we could not see our way clear to put-
ting into effect from a business standpoint.
. . . .
[W]e have just as much right under the law to ask
that wages and other employee benefits be re-
duced as the union would have to ask that they
be increased.
The Board found that the employer’s speech to the
employees implied no futility, but was in fact an accu-
rate statement of the law. As in the case at bar, this
language makes the point that voting in a union will
not result in automatic increases in wages and benefits;
such things may or may not result from the bargaining
process.
Although the letter at issue here, unlike the speech
in Fern Terrace Lodge, mentions a union’s resort to
striking to secure its aims, we see no critical distinc-
tion between the cases. As noted above, the Respond-
ent’s reference to strikes as a Union’s option to ‘‘at-
tempt to force the Company to do something’’ is quali-
fied in the same document by statements that ‘‘all
things are negotiable’’ and that if wages and benefits
were negotiated ‘‘down,’’ it might be because the
Union traded them off in the bargaining process for
other things. In short, taken as a whole, the Respond-
ent’s letter indicates that the Respondent will partici-
pate in the bargaining process even without the pres-
sure of a strike and that results of the process could
be dictated by tradeoffs agreed to by the parties. Such
a description of the bargaining process, albeit skewed
in the service of the Respondent’s campaign effort to
encourage votes against the Union, is an expression of
opinion protected by Section 8(c) of the Act and there-
fore is not a violation of Section 8(a)(1).
In all other respects, we adopt the decision of the
administrative law judge.4
AMENDED CONCLUSION OF LAW
Delete Conclusion of Law 6 and renumber the re-
maining paragraphs accordingly.
ORDER
The National Labor Relations Board orders that the
Respondent, Custom Window Extrusions, Inc.,
Delmont, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified below.
1. Substitute the following for paragraph 1(c).
‘‘(c) Threatening its employees with closure of the
plant if they supported the Union; soliciting employee
complaints and grievances and impliedly promising to
rectify them by improving benefits, terms, and condi-
tions of employment; informing employees that union-
ization would have detrimental results concerning their
terms and conditions of employment; and threatening
employees with nonspecific threats of reprisals if the
Union came in.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discriminate against unit employees
by disciplining or discharging them because of their
activities on behalf of and in support of United Elec-
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent admitted the timely filing and service of the under-
lying unfair labor practice charges by United Electrical, Radio and
Machine Workers of America (UE) (the Union or the Charging
Party): the original charge was filed on December 23, 1992, and
served on Respondent on December 26, 1992; and the amended
charge was filed and served on April 28, 1993. In addition, I grant
General Counsel’s unopposed motion to correct the transcript.
2 In its answer, Respondent admits that the following persons are
Respondent’s supervisors and agents within the meaning of Sec.
2(11) and (13) of the Act: Ernest Felt, president; Angelo Laquatra,
vice president; Robert White, assistant production manager; Heather
Werner, administrative assistant; Dan Porembka, production man-
ager; Bradford Mourant, tooling manager; Tony Leppo, foreman; and
Leonard Feather, purchasing scheduler. At the hearing, Respondent
conceded that its ‘‘salaried supervisors,’’ Chuck Dowling and Gomer
Ralph, were also statutory supervisors and agents within the meaning
of the Act. As many as eight production employees as well as assist-
ant foremen reported to the ‘‘salaried supervisors’’ (known as ‘‘fore-
men’’ until 1991); they give work orders to the employees under
them, change the nature of the work orders, and effectively rec-
ommend discipline to the production manager or assistant production
manager.
trical, Radio and Machine Workers of America (UE),
a labor organization, or any other labor organization.
WE WILL NOT coercively interrogate our employees
concerning their membership in, sympathy for, or ac-
tivities on behalf of the Union.
WE WILL NOT threaten our employees with closing
the plant or nonspecific threats of reprisals if they sup-
port the Union or if the Union comes in.
WE WILL NOT solicit our employees concerning their
complaints and grievances, impliedly promising to in-
crease benefits and improve their terms and conditions
of employment if they abandoned support for and sym-
pathy for the Union, or any other labor organization.
WE WILL NOT inform our employees that unioniza-
tion would have detrimental results concerning their
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer to Robert Penman, unlawfully termi-
nated on October 14, 1992, immediate and full rein-
statement to his former position of employment at our
Delmont, Pennsylvania location, or if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges he previously enjoyed, and WE WILL make
him whole, with interest, for any loss of earnings or
benefits he may have suffered by reason of our unlaw-
ful discharge of him on October 14, 1992.
WE WILL expunge and remove from our files any
memoranda, records, or other references to our unlaw-
ful warnings and discipline of Robert Penman in the
period September to October 14, 1992, and notify him,
in writing, that this has been done and that disciplinary
action will not be used against him in any way.
CUSTOM WINDOW EXTRUSIONS, INC.
Janice A. Sauchin, Esq., for the General Counsel.
Mark E. Scott, Esq., of Bridgeville, Pennsylvania, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in Pittsburgh, Pennsylvania, August 5, 6, and
10, 1993, on General Counsel’s complaint, as amended at the
hearing, which alleges, in substance, that the above-captioned
Custom Window Extrusions, Inc. (Respondent) committed
independent violations of Section 8(a)(1) of the Act by var-
ious statements and actions of its supervisors, including doc-
uments distributed among Respondent’s employees; and Sec-
tion 8(a)(3) of the Act by unlawful disciplining and termi-
nation of its employee, Robert Penman, on August 14, 1992.
Respondent filed a timely answer to the General Counsel’s
complaint wherein it denied certain allegations, admitted oth-
ers, but denied the commission of unfair labor practices.1 It
avers that it discharged Penman solely because he violated
Respondent’s ‘‘no fault’’ absentee rules.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant, oral, and written evidence, and to argue
orally on the record. At the close of the hearing, the parties
waived final argument and elected to submit posthearing
briefs which have been received and carefully considered.
On the entire record, including the briefs and on my most
particular observation of the demeanor of the witnesses as
they testified, comparing their testimony to testimony of ad-
verse witnesses, the interest of the witnesses, and the credi-
bility of the testimony in the light of the surrounding cir-
cumstances, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find that,
at all material times, Respondent, a Pennsylvania corporation
with an office and place of business in Delmont, Pennsyl-
vania, has been engaged in the manufacture and distribution
of vinyl extrusions used in the manufacture of window
frames and other window treatments. During the 12-month
period ending November 30, 1992, Respondent, in the course
and conduct of its business operations above described, pur-
chased and received at its Delmont, Pennsylvania facility
goods valued in excess of $50,000 shipped directly from
points outside the Commonwealth of Pennsylvania. Respond-
ent concedes, and I find, that at all material times Respond-
ent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges and Respondent admits that at all
material times the Union has been a labor organization with-
in the meaning of Section 2(5) of the Act.2
853CUSTOM WINDOW EXTRUSIONS
3 It stipulated that in or about the period of September and October
1992, the relevant period, Respondent employed a total of about 85
employees in its clerical, shipping, packing, warehouse, quality con-
trol production, and machine shop, of whom 65 were in the produc-
tion and maintenance unit. According to Vice President Laquatra, the
tool department (machine shop) had about 10 to 15 employees under
Tool Department Manager Brad Mourant; and the production depart-
ment, under Dan Porembka, had about 24 to 25 employees. Re-
spondent worked 3 shifts in the fall of 1992: 24 to 25 employees
on the 8–4 p.m. shift; 10 employees on the 4 p.m. to midnight shift;
and 10 employees on the midnight to 8 a.m. shift.
4 Although Laquatra testified that other employees signed ‘‘key’’
agreements along with Penman, particularly Doug Matto, in 1985,
and although Respondent offered to produce the agreement, it did
not do so. I find that only Penman signed such an agreement. Key
employees are always paid more than other employees (Tr. 50).
5 Respondent argues (Br. 6) and apparently attempted to prove that
this clearly irrelevant January 1992 change from salary to hourly sta-
tus involved a demotion or at least an adverse action. The supervisor
who actually notified Penman of the change was Leonard Feather.
I forbade Laquatra to testify concerning the reasons for the change
in status since Supervisor Feather had the actual conversation with
Continued
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures sections of vinyl frames and
sashes for replacement windows which it sells to manufactur-
ers of replacement windows. The production process passes
a taffy-like plastic through a die, then cooled and cut to
length by extrusion machine operators each operating three
to four machines at a time.
Machine operators require a minimum of a year of experi-
ence and training for even reasonable skilled performance,
such fledgling machine operators being called ‘‘C’’ opera-
tors. As the operator learns to maintain and adjust the deli-
cate production machinery (‘‘very temperamental machines,’’
G.C. Exh. 26, p. 6), the operator is promoted to operator sta-
tus ‘‘B.’’ Such operators are capable of operating and main-
taining the machinery with some degree of independence.
Two, or more, additional years of experience are required of
the ‘‘B’’ operator to become an ‘‘A’’ operator. The ‘‘A’’ op-
erators can do original setup work. There must be at least
one ‘‘A’’ operator as well as a shift supervisor or assistant
shift supervisor on each shift.
All machine operators must eventually be capable of act-
ing as ‘‘die shooters.’’ The die shooter attaches the die di-
rectly to the machines through which the extruded plastic
material flows. An operator with extruder experience and ap-
titude for machine shop work works well as a die shooter.
In addition to ‘‘die shooters,’’ there is the rarer classifica-
tion of ‘‘die tuner.’’ The ‘‘die tuner,’’ acting as a liaison be-
tween Respondent’s tool or machine shop and its production
floor, corrects problems which arise from the flow of the ma-
terial through the dies causing uneven walls in the extruded
product. The die tuners fine-tune the dies, not on the produc-
tion floor, but in the machine shop or tool shop.
Unlike any other employee in Respondent’s employ3 only
Robert Penman, the alleged discriminatee, was an ‘‘A’’ oper-
ator, a die shooter, and a die tuner.
In January 1992, Respondent terminated its then produc-
tion manager, Jim Bentley, because he was unwilling to put
in the number of hours required of the production manager
and because he was constantly late to work (Tr. 493; 498).
Prior to being discharged on October 14, 1992, Penman was
transferred to the midnight shift because he could run ma-
chines, tune dies, and shoot dies with the least amount of
support and supervision. No other employee could do this ac-
cording to Vice President Laquatra (G.C. Exh. 26, pp. 8–9).
Indeed, Vice President Laquatra said that Penman was the
‘‘de facto’’ assistant production manager on the night shift
(G.C. Exh. 26, p. 9).
B. Robert Penman
1. There is no dispute that Angelo Laquatra, Respondent’s
vice president (son-in-law of Respondent’s president, Ernest
Felt) and Robert Penman have been friends for more than 10
years, indeed, from time-to-time, drinking buddies. Their so-
cializing, however, slackened in recent times due to
Laquatra’s domestic obligations. This did not prevent Pen-
man from calling on Laquatra to bail him out of jail in the
summer of 1992. Laquatra used his own money to provide
the bail.
2. Both Laquatra and Penman were employed by Poly-Tex
Company (now known as Chelsea Industries) prior to the for-
mation of Respondent; Laquatra as production accountant
and Penman in charge of the warehouse. In 1985, Felt,
Laquatra, and Leonard Feather left Poly-Tex to form Re-
spondent. Respondent hired Penman as its first and only pro-
duction employee in 1985. He has therefore been steadily
employed by Respondent for 8 years. Although Laquatra and
Feather are shareholders in Respondent, the controlling inter-
est is owned by Victor DeZen (a principal in a Canadian En-
terprise, Royal Plastics Group) who is not active in the man-
agement of Respondent. In any event, when Respondent first
hired Penman, he was required to sign a ‘‘key employee’’
agreement (G.C. Exh. 5).4
Although the key agreement is designed to protect the em-
ployer (Respondent) from the employee revealing trade se-
crets, in fact, Vice President Laquatra testified (Tr. 47 et
seq.) that a key employee ‘‘really affects how the business
will run [and] has the knowledge and the ability to keep the
place going.’’ Penman progressed from his original position
of operator trainee to become a class A machine operator,
and then a die shooter and a die tuner, the only employee
in Respondent’s employ having such flexibility and skills.
Penman worked in most of the functional areas in the plant
and knew everything going on in the plant from working
with all the employees (Tr. 59).
3. For reasons unknown on this record, Supervisor Leon-
ard Feather terminated Penman’s employment in March 1986
but, on Penman’s immediate appeal to President Felt, was re-
instated without loss of employment status. In 1991, Penman
was promoted from hourly to salaried status to work under
Production Manager Jim Bentley and attended foremen’s and
management meetings; but on or about January 6, 1992, with
the discharge of Bentley, for reasons unknown on the record,
was returned to hourly status. He was given no reason for
this change but Supervisor Leonard Feather told him that he
would keep both the increased vacation allowance and the
pay raise he had received in salaried status (Tr. 176–178). In
fact, Penman preferred the hourly rate because he was paid
for overtime (Tr. 178).5
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Penman describing the reasons for the change. I insisted that Feather
testify as to his conversation with Penman concerning the Penman
change of status to hourly wages (Tr. 479–480). Feather, still in the
employ of Respondent at the time of the hearing, was never pro-
duced. I would find that the status change was not a demotion or
adverse action if the finding were necessary. Rather, in the change
of status, Penman retained increased net pay and vacation benefits
he enjoyed in salaried status, as Penman testified.
6 There is no dispute that at the time of the October 14, 1992 dis-
charge, Penman was under the supervision of Machine Shop (Tool
Room) Manager Brad Mourant. Mourant controlled his pay, attend-
ance records, his days off, and was ‘‘strictly responsible’’ for his
work (Tr. 274). Mourant testified that Penman was more under his
supervision and Mourant was responsible for Penman’s actions (Tr.
274). At the same time, however, Production Manager Porembka tes-
tified (Tr. 586) that it was he who evaluated Penman notwith-
standing that Mourant was Penman’s supervisor. He did so, accord-
ing to Porembka, contrary to Mourant’s testimony, because, although
Penman spent some of his time in Mourant’s die shop, most of Pen-
man’s time was spent with Porembka, shooting dies (Tr. 586). Since
Mourant estimated that Penman spent 98 percent of his working day
with him (Tr. 274–275), it is difficult to understand how Porembka
testified that ‘‘most of the time,’’ Penman worked with him (Tr.
586). Mourant testified that 2 weeks before Penman’s July 1992 an-
nual evaluation, he met informally with Porembka regarding the
evaluation. He allegedly told Porembka that although Penman was
highly skilled, he ‘‘couldn’t rely on [Penman].’’ Porembka allegedly
made no comment (Tr. 277). When it was pointed out to Mourant
that in the annual evaluation, Porembka rated Penman’s ‘‘reliability’’
as a ‘‘3,’’ Mourant testified that he had told Porembka only that he
had ‘‘concerns’’ for Penman’s reliablity. On the basis of the evalua-
tion, Mourant admitted that Porembka did not take Mourant’s opin-
ion seriously (Tr. 277). Moreover, while Mourant testified that he
did not define or debate what he meant by ‘‘concerns’’ with Pen-
man’s ‘‘reliability’’ when he spoke to Porembka, Porembka testified
that Mourant did not mention any attendance or absentee problems
(Tr. 587).
7 I rejected Respondent’s attempt to place in evidence (R. Exhs.
9–15, rejected), the annual evaluations of other employees with
equal or higher scores than Penman. These documents, I ruled, were
irrelevant because Respondent failed to offer to prove that any of
them had been terminated by Respondent. In addition Respondent
did not offer to prove that Penman’s ‘‘49’’ was meaningless because
the grading system was meaningless—that all employees received
high grades.
8 7/8/92
Bob Penman:
Bob without a doubt has played a key roll in establishing the
melt conditions and stability in processing we have achieved to
date. He very willingly shared his experience and knowledge
with myself and very quickly applied the concepts of plastic or
melt technology to the application. On occasion Bob has assisted
in training sessions with different shifts. Bob communicates well
and interacts well with management and engineering as well as
operators on the floor.
He possesses the uncanny ability to diagnose a problem in a
profile, be it calibration, melt flow etc. and through a team effort
assist in providing solutions. Many times when an operator or
die shooter has difficulty getting a part or feeding a calibrator
Bob is elected the task to ascertain the problem and correct [it].
His organizational skills and documentation of facts are excel-
lent and vital to the success of the program, providing the prop-
er input back to engineering. He requires very little supervision
if any in performance of his tasks. Once given proper direction
to take [he] acts well on his own. His judgment calls regarding
die tuning coincide well with engineering and has accepted read-
ily the concepts given him from the design engineer. Basically
Keith and myself trust his work and ability. I recommend for
training purposes in the future any new hirees be assigned to
Bob where this can be and learn all the key aspects of propile
extrusion. Bob very clearly exhibits in his actions that he has
the Company’s best interest in mind through his daily effort.
The only thing causing Bob to be a borderline outstanding em-
ployee is his exposure and experience in the machine shop. But
also here Bob is making great progress, as his time and expo-
sure increases [emphasis added]. The operators and supervisors
hold Bob in high regard. He could with very little difficulty fill
in if needed in a supervisory capacity. Neither a die tuner from
the machine shop or supervisor from the floor could perform his
daily tasks. Bob in his position provides the much needed link
that ties design, engineering, machine shop and production to-
gether. Bob has much greater potential and expects his contribu-
tions to the organization in the future to be many. In light of
his performance I feel he should be rewarded with an annual in-
crease of 13 percent. An investment well taken.
Daniel J. Porembka Current $11.50—[recommended] $13.00.
Penman received the increase to $13 per hour.
4. Penman’s July 7, 1992 Annual Evaluation: Respondent
annually evaluates each of its employees. The most recent
and only record evaluation for Robert Penman is dated July
7, 1992, approximately 3 months before his October 14,
1992 discharge. The purposes of the evaluation (G.C. Exh.
7) appearing on its face, are (a) to provide objective criteria
for personnel performance evaluations on a standard basis;
(b) to compel examination of all (emphasis in the original)
individual traits affecting employee performance; (c) to help
the evaluating supervisor to support his conclusion and rec-
ommendation for job classification and compensation im-
provements; and (d) to produce fairer evaluations.
The form supplied for each evaluation contains 13 cat-
egories, each of which is to be graded on a scale of 0–4; the
‘‘0’’ rating is defined as unsatisfactory with a ‘‘4’’ rating
being the highest.
The July 1992 Penman annual evaluation was made by
Production Manager Daniel J. Porembka and approved by
Vice President Laquatra. Penman signed the evaluation, ap-
proving its contents, on July 14, 1992.6
The 13 categories supporting the evaluation are knowledge,
quantity [of production], accuracy, judgment, innovation, ap-
pearance and habits, orderliness, courtesy, cooperation, ini-
tiative, reliability, perseverance, stability, attendance, and
alertness. In these 13 categories, Porembka rated Penman in
the highest category (‘‘4’’) in 5 categories. These 5 out-
standing categories were for accuracy, judgment, exception-
ally precise organization (‘‘orderliness’’), cooperation, and
alertness. In seven of the eight remaining categories,
Porembka rated Penman as ‘‘3’’ (innovation, appearance and
habits, courtesy, initiative, reliability, perseverance, and sta-
bility). The only grade lower than 3 is in attendance. The
‘‘2’’ in attendance carries the conclusion that Penman dis-
played a ‘‘satisfactory attendance record.’’ The sum total
evaluation rated Penman as ‘‘49,’’ which, as Respondent
conceded, was a very high grade.7
On the day after Porembka executed the July 7, 1992 eval-
uation, he appended his further two-page analysis and cri-
tique of Penman’s attitude and performance, supplying the
details of Porembka’s portrait of a gifted, loyal, devoted, co-
operative, and innovative employee (G.C. Exh. 7).8
855CUSTOM WINDOW EXTRUSIONS
9 Following the testimony of General Counsel’s witnesses with re-
gard to the statements and actions of Werner and Hammer at these
September 8–10, 1992 meetings, on Respondent’s motion, I dis-
missed amended complaint pars. 7(e), 9(c), and 10(a) relating to alle-
gations that Werner and Hammer threatened the employees with
plant closing if they supported the Union; unlawfully solicited griev-
ances; and informed employees of the futility of their selecting the
Union as their bargaining representative.
C. The Union Organizational Campaign August–
October 1992
In the summers of 1990 and 1991, the Union distributed
leaflets at Respondent’s plant for a couple of weeks. In Au-
gust 1992, the Union again distributed leaflets at the entrance
to Respondent’s plant, once a week during the month. On
one such occasion, Penman spoke to the union representa-
tives and was wearing a T-shirt bearing the union label. Fol-
lowing the leaflet distributions, Penman attended union orga-
nizational meetings and thereafter allowed the Union to hold
organizational meetings at his residence on four occasions:
from in or about mid-September to early October 1992. In
August 1992, when Penman spoke to a union representative
at the plant entrance, he took literature and punched in at
about 8 a.m. Vice President Laquatra asked him who was
outside and what they were doing. Penman said that they
were union organizers. Laquatra wanted to know what the
Union was saying and what the literature said. Penman gave
Laquatra the literature.
D. Violations of Section 8(a)(1) in September 1992
(1) Respondent held meetings of its employees and super-
visors in its conference room on September 8, 9, and 10,
1992, and in October 1992, which meetings were sometimes
conducted by Supervisor Heather Werner and office clerical
employee Kelly Hammer (Tr. 560). At those meetings, Ham-
mer and Werner were accompanied by other supervisors in-
cluding Robert W. White, a salaried supervisor at that time
(soon to become, October 2, the assistant production man-
ager). On other occasions, Production Manager Daniel
Porembka attended.
At the meetings, Hammer and Werner reviewed Respond-
ent’s employee handbook policies on pay raises, insurance,
the bonus and pension programs for almost an hour before
the particular employees’ shift. The meetings were attended
by 7–10 employees on each occasion. Werner and Hammer
spoke not only of Respondent’s employee benefits but nego-
tiations with the Union and strikes. They told the employees
that they could lose benefits if the Union got in but that it
was a give-and-take proposition. They made no promises or
uttered no threats to the employees.9
(2) The testimony of Frank Blazek: Blazek, a former em-
ployee, testified that after Kelly Hammer and Heather Wer-
ner left the room, Shift Supervisor White asked each of the
assembled employees what they thought of the Union.
Blazek, who stated that White knew that Blazek had for-
merly been employed in a union shop, answered that a union
had its good points and its bad points. Although White did
not ask all the employees about what they thought of the
Union, he did ask most of the 7–10 employees at the meet-
ing the same thing (Tr. 222–223). I conclude that White’s
systematic questioning of individual employees at a Re-
spondent compulsory meeting concerning their union sym-
pathies constituted coercive interrogation in violation of Sec-
tion 8(a)(1) of the Act.
(3) The testimony of Michael E. Jellison: Jellison, like
Blazek, a former employee of Respondent laid off on Feb-
ruary 2 and recalled on March 2, 1993, refused the recall be-
cause Respondent offered only the 4 to 12 shift rather than
the midnight to 8 a.m. shift.
Jellison testified about an October 1992 morning meeting
of six employees in the conference room, after the end of his
12–8 a.m. shift, which was addressed by Production Manager
Porembka. Porembka first spoke to them on their work prob-
lems and then, according to Jellison, ‘‘out of the blue’’ start-
ed talking about the Union (Tr. 250). Porembka told them
that he had heard a lot of talk about the Union and that the
employees had good benefits. He wanted to know what the
employees felt about the Union and particularly whether the
Union would ‘‘get in there or if it didn’t get in there’’ (Tr.
250). Jellison testified clearly and credibly that although
Porembka promised no benefits, he said that the employees
would ‘‘probably lose benefits if the Union would get in
there . . . lose our health care . . . might lose the profit
sharing’’ (Tr. 250).
Porembka did not deny Jellison’s testimony. Rather, Re-
spondent defends on the grounds that since Jellison answered
Porembka’s questions by stating that the employees ‘‘didn’t
know’’ (Tr. 245) about their feelings about the Union,
Porembka’s question, as a matter of law, was de minimis and
not a violation of the Act. In fact, however, that interrogation
was joined by a threat of loss of benefits: the health care
program and the profit sharing-program (Tr. 250). Where al-
legedly minor interrogation (Porembka, however, was con-
ducting systematic interrogation) is joined by unlawful
threats especially from a hostile high management official,
the interrogation becomes coercive, violating Section 8(a)(1)
of the Act. Masland Industries, 311 NLRB 184 fn. 2 (1993).
Not only is the interrogation unlawful, but here, Porembka
threatened the employees, if the Union got in, with loss of
their profit sharing plan and their health plan. Such threats
independently violate Section 8(a)(1) of the Act, as alleged.
Respondent’s defense—the employees’ answers—is irrele-
vant. The violation derives from Respondent’s questions and
statements rather than the employees’ answers.
(4) The testimony of Allen Gardner: Gardner recalled a
conversation with Supervisor Robert White in September
1992, after White emerged from a foremen’s meeting. Fore-
men’s meetings, held regularly on Thursday of each week,
were attended by the production manager. Garner testified
that White, emerging from a September foremen’s meeting,
nodded his head back toward the offices from which he had
just emerged and said that ‘‘they want us to talk to you
about the union’’ (Tr. 256). White wanted to know ‘‘where
the Union stood . . . as far as the employees and the union’’
(Tr. 256). When he asked Gardner ‘‘how does the Union
stand [with the employees], Gardner replied that ‘‘all the op-
erators were for it. Probably 50 percent of the people in the
plant.’’ White failed to specifically deny the Gardner testi-
mony concerning the alleged interrogation (Tr. 570–571). To
the extent that his testimony, however, constitutes a denial of
this interrogation, I discredit any such denial. I find that
White’s questions to Gardner concerning how the Union
stood with him and how it stood with the other employees,
are precisely the type of information (in the presence of con-
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
temporaneous union activity) that employees are privileged
to keep from their employer. NLRB v. Laredo Coca-Cola
Bottling Co., 613 F.2d 1338 (5th Cir. 1980), cert. denied 105
LRRM 2658 (1980). This White interrogation violates Sec-
tion 8(a)(1) of the Act as alleged.
Gardner, however, mentioned two other conversations with
White. In the second conversation, White came out of the of-
fices and said: ‘‘Ernie [President Ernest Felt] said he can
shut down the plant and replace everybody with employees
from Chelsea [Chelsea Industries, a/k/a Poly-Tex] [Tr. 257–
258]. Gardner told White that he could not see how Felt
could do that (Tr. 258). No one else was present and Gardner
noticed that most of the conversations he had regarding the
Union with White and Assistant Foreman DiBase occurred
on a one-on-one basis. I credit Gardner and find that this
White threat that Felt would shut down the plant and replace
the employees violates Section 8(a)(1) as alleged. NLRB v.
J. W. Mays, Inc., 356 F.2d 693 (2d Cir. 1966).
On a third occasion, while White was assisting Gardner
with one of his machines, he asked Gardner: ‘‘why are you
for the union, what do you think they can do to help you?’’
Gardner answered that the Union would provide improved
working conditions (Tr. 259). White responded that working
conditions were negotiable and wages could be ‘‘cut down
to minimum wages, no benefits.’’ (Tr. 261.) Gardner had not
previously been identified as a union supporter.
Respondent defends against Gardner’s testimony in the
following respects: (1) that since the conversations between
White and Gardner occurred on one-on-one basis, there is an
alleged fatal variance between such proof and the allegations
of the complaint wherein White allegedly threatened ‘‘em-
ployees’’ with plant closing. On this basis, Respondent ar-
gues that Gardner’s testimony is not credible. I reject Re-
spondent’s positions: Gardner’s testimony is clearly credible;
White, as I observed him and compared his testimony with
that of Blazek, Gardner, and Penman (infra), is not credible;
and there is no fatal variance between the allegations of the
complaint (in the plural) and the proof which is merely a
one-on-one threat. With regard to White’s denial of any such
conversations (Tr. 571), he predicates the ‘‘absurdity’’ of
Gardner’s testimony on his assertion that in his 5 years of
employment with Respondent, he had no more than two con-
versations with Felt and had no such conversation with Gard-
ner (Tr. 571–572). White’s ‘‘indignation’’ with respect to
Gardner’s testimony notwithstanding, I credit Gardner and
discredit White’s denial. The threat, of course, is White’s
threat, regardless whether Felt made any such comment.
NLRB v. J. W. Mays, Inc., supra.
Lastly, Gardner testified that on an occasion apparently
after the October 14, 1992 discharge of Penman, there was
posted on the bulletin board a document requesting the pres-
ence of an employee ‘‘willing to talk to Ernie [Felt] and An-
gelo [Laquatra] about the union.’’ In substance, the posted
notice ‘‘wanted somebody to represent the employees to
come in and talk to them’’ (Tr. 262). Gardner, without iden-
tifying the person, testified that he was ‘‘being bugged to go
in and talk to them’’ (Tr. 262) and finally agreed to speak
to them on condition that he would get a written agreement
that his job would not be terminated if he did so (Tr. 262).
He spoke to Supervisor White and agreed to speak to Felt
and Laquatra but they were out of town at the time (Tr. 263).
Instead, White then spoke with Production Manager
Porembka and told Gardner that Porembka would be willing
to talk to him. Gardner at that point laughed and walked
away. White, however, went into the office, and emerged
with two notebooks: one for writing down notes of conversa-
tions with employees that Gardner had talked to and the
other one to prepare for a conversation that he would have
with Laquatra and Felt (Tr. 263). Gardner never met with
Felt and Laquatra.
I discredit White’s testimony that Gardner requested a
notebook to record safety problems and conclude that
White’s conduct was an open solicitation of employee com-
plaints, for the purpose of solving them, in the presence of
concurrent union organizational attempts, thus violating Sec-
tion 8(a)(1) of the Act as alleged. It is noteworthy that
White’s solicitation of Gardner to present employee griev-
ances to Laquatra and Felt occurred after he unlawfully inter-
rogated Gardner and identified him as being prounion. With
regard to White’s credibility, I observed that White, a facile
witness, testified that although, from time to time, he had
conversations with employees concerning the Union, he did
so only when the employees would first bring up the subject
(Tr. 568–569). A moment before such testimony, he testified
that none of the employees would talk to him about the
Union because they knew that he took a management posi-
tion (Tr. 556–557). If the employees feared and avoided
speaking to him about the Union because they knew he rep-
resented management, it is difficult to understand why em-
ployees, as he testified, would approach him and bring up the
subject of the Union.
Furthermore, there is the question of matching White’s
credibility with that of employee Jeffrey Nordquist.
(5) The testimony of Jeffrey Nordquist: At the time of his
giving testimony, Nordquist, employed by Respondent since
May 1991, was a current employee of Respondent, an extru-
sion operator (Tr. 230). In the fall of 1992, his supervisor
was Tony Leppo along with Assistant Supervisor Gomer
Ralph. He testified concerning conversations with both Su-
pervisors White and Leppo at different occasions. With re-
spect to conversations with White, he testified that sometime
in October 1992, on the production floor, at the start of his
4 p.m. to midngiht shift, in the presence of Supervisor
Leppo, ‘‘Mr. White just asked me what I thought of the
union?’’ and Nordquist responded that he did not really care
one way or the other (Tr. 238). About a week thereafter, in
the same production area, at about the same time, Leppo
asked him: ‘‘So what do you think of the Union? and
Nordquist responded that he didn’t care one way or the
other’’ (Tr. 239). Such repeated interrogation is coercive.
Aside from Nordquist’s testimony demonstrating Respond-
ent’s systematized, unlawful interrogation by its supervisors,
for purposes of determining White’s credibility as a witness,
rejecting his various denials of having interrogated and
threatened employees, there are two facets of Nordquist’s
testimony that bear observation. In the first place, there was
no question that Nordquist, a current employee of Respond-
ent at the time of giving his testimony, was testifying in the
presence of Vice President Laquatra among other supervisors
in the hearing room. He appeared to be so frightened in giv-
ing his testimony that, to my observation, he feigned inabil-
ity to read the Board agent’s handwriting in his sworn state-
ment (Tr. 234 et seq.). Nordquist, a large, well built fellow,
testified in such low tones that, on the record, I urged him
857CUSTOM WINDOW EXTRUSIONS
10 In September, Penman, arguing with Porembka on the plant
floor, told him that a union would offer job security and make the
plant a better place to work. Porembka answered that it didn’t matter
whether there was a union; that employees could lose their jobs at
any time; and that a union would not save Penman’s job (Tr. 114).
I do not credit any Porembka denial of this conversation.
11 The verbal warning, signed by Penman on September 11, 1992,
is itself dated September 11, 1992. In a later written warning of Oc-
tober 13, 1992, the original September 11, 1992 warning was alleged
to be for being late 3 days in 1 week. (G.C. Exh. 12.) There was
no explanation for this discrepancy. Penman testified that no one
told him what days he was late or in which time periods he was
late (Tr. 109) and that he did not know whether he was late three
times in the prior 3 weeks. He testified that he punched in on his
timecard each day (Tr. 109–110). Respondent failed to produce Pen-
man’s timecards to show such latenesses. The only document actu-
ally submitted by Respondent to show Penman’s latenesses appears
to show that in the week ending September 13, 1992, Penman was
late on only one occasion (G.C. Exh. 6). Again, Respondent sub-
mitted no timecards to support this assertion notwithstanding, as Re-
spondent’s office clerical, Kelly Hammer testified, the document
submitted by Respondent to show latenesses (G.C. Exh. 6) was pre-
pared by her from Penman’s timecards.
12 President Felt, who did not testify or appear at the hearing, first
consulted Production Manager Daniel Porembka prior to offering
Penman the job. Porembka said that he told Felt that although Pen-
man had the ‘‘tools’’ for the job, he recommended against appoint-
ing Penman and highly recommended Supervisor Robert White (Tr.
603–604). White testified that Penman, though hourly paid, was
higher paid than White, a salaried supervisor. While Porembka
warned Felt that the position required more effort than from an aver-
age employee (Tr. 603), and that he didn’t feel that Penman was
willing to put that kind of time in, Felt, overruling both Porembka’s
objection to Penman and his recommendation of White, told
Porembka that he would trust his own judgment (Tr. 603) and ap-
point Penman. Porembka admitted that he did not mention Penman’s
alleged chronic lateness to Felt (Tr. 603) because Felt himself told
Porembka that he knew that Penman was a chronically tardy em-
ployee (Tr. 604).
to stop whispering and to speak up (Tr. 237). As a current
employee, he is to receive relatively high marks for credi-
bility while testifying against his employer, under his super-
visor’s gaze. Georgia Rug Mill, 131 NLRB 1304, 1305 fn.
2 (1961).
Lastly, and most important, it was clear from his testi-
mony that in his conversation with Supervisor White, he did
not raise the question of the Union with White; rather, as
Nordquist testified: ‘‘Mr. White just asked me what I thought
of the Union’’ (Tr. 238). It is equally clear that White (and
Supervisor Leppo) were systematically interrogating employ-
ees, including Nordquist. For credibility purposes, contrary to
White’s testimony, it was White who raised the question of
Nordquist’s union sympathies rather than Nordquist gratu-
itously raising the question to White. Former employee Gard-
ner testified to the same effect concerning White in a Sep-
tember interrogation. On this ground, in particular, I discredit
White’s self-assured testimony in its entirety. I conclude that
Supervisors Leppo and White, in October 1992 unlawfully
interrogated Nordquist concerning his union sympathies, just
as White had earlier interrogated Blazek and Gardner in vio-
lation of Section 8(a)(1) of the Act.
E. The October 14, 1992 Discharge of Robert Penman
Former employee Frank Blazek’s credited testimony was
that, in a September 1992 meeting, where Respondent pre-
sented its antiunion position, Supervisor White asked the em-
ployees what they thought of the Union. Similarly, former
employee Gardner’s credited testimony was that also in Sep-
tember 1992, after one of the foremen’s meetings, in the
morning, Supervisor White told him, while nodding his head
toward Respondent’s offices, that ‘‘they’’ wanted White to
talk to the employees about the Union. Particularly, ‘‘they
. . . wanted to know where the union stood . . . as far as
the employees in the union’’ (Tr. 256).
Similarly, Penman testified that, in September 1992, in the
morning, Supervisor White emerged from a foremen’s meet-
ing (at which were present all production foremen) and ap-
proached Penman at the water cooler. Penman asked White
(Tr. 103 et. seq.): ‘‘Did they [at the Foremen’s Meeting] tell
you anything good?’’ White responded that Penman should
‘‘just watch [yourself]; that [your] name came up several
times at the meeting; that [I] did not want you to repeat that
to any one [because I] did not want it to get back to inside
[Tr. 103]; and . . . he didn’t want no one to know’’ (Tr.
107). White denied this conversation (Tr. 549–550, 554). I
do not credit White’s denial or any of his contradicted testi-
mony for the reasons above stated. Moreover, I conclude that
White’s warning to Penman, notwithstanding its otherwise
ambiguous nature, was a warning against Penman’s contin-
ued participation in union activities. Since this warning was
not alleged as a violation of Section 8(a)(1) of the Act, I
need not pass on statutory effects of the warning.
In the months of September and October, the uncon-
tradicted testimony was that Penman held four union meet-
ings in his house. Although there is no proof that Respondent
had knowledge of Penman’s participating in these union
meetings, Supervisor White admitted that he knew of a
rumor that Penman, contrary to any alleged prior antiunion
position, was for the Union in the period August through Oc-
tober 1992 (Tr. 556–557).
After White’s warning, above, Production Manager
Porembka10 and Machine Shop Manager Mourant together
presented Penman with a written ‘‘verbal warning’’ for being
late three times in 3 weeks (G.C. Exh. 8).11
1. Late September; Respondent offers Penman the
position of assistant production manager
Either on Friday, September 25 or Monday, September 28,
1992, 2 weeks before the discharge, Respondent’s president,
Ernest Felt, offered Penman the position of assistant produc-
tion manager in Respondent’s plant.12 Penman told Felt that
he needed some time to think about the offer (Tr. 94).
On Friday, October 2, 1992, Penman told Felt that he did
not feel that he was ready for the new position. Felt told him
that if that was his decision, that was his decision (Tr. 95).
A short time later, still on Friday, October 2, 1992, Penman
telephoned Vice President Laquatra and asked him whether,
if Penman took the job, and did not care for it, he could re-
turn to his old hourly position. Laquatra told him that he
could not return to his old position but that, in any event,
it was too late because the position had been filled. There
is no dispute that in the 2-hour period between Penman’s
speaking to Felt in Felt’s office and his later telephone call
to Laquatra, the job was offered to and accepted by Shift Su-
pervisor Robert White.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Laquatra admitted the substance of the conversation with Pen-
man and recalled that it occurred on a Thursday in late September,
a payday, at the water fountain (Tr. 482).
14 Victor DeZen, majority shareholder in Respondent, is associated
with Royal Plastics of Canada (G.C. Exh. 25).
15 See the similar testimony of former employee Gardner, supra.
16 In his sworn pretrial statement (G.C. Exh. 26), Laquatra says
that he wanted to know what made the employees ‘‘mad.’’
2. October 7, 1992; Laquatra’s unlawful conversation
with Penman
In early October 1992 (Tr. 110), around the time that
President Felt offered Penman the position of assistant pro-
duction manager, Vice President Angelo Laquatra asked Pen-
man, on the plant floor, if he could talk to Penman ‘‘off the
record’’ (Tr. 110). Penman asked him what he wanted to talk
about and Laquatra said it was about the Union. Penman
agreed to talk (Tr. 110).13
I find, however, that it occurred on Wednesday, October
7 or Thursday, October 8. Penman testified that Laquatra
asked to speak to him ‘‘off the record’’ and Laquatra admit-
ted that he asked Penman to speak ‘‘privately’’ (Tr. 484).
Thereafter, Laquatra testified merely that he ‘‘met [Penman]
outside and had a further conversation with him’’ (Tr. 485).
I credit Penman’s version that Laquatra asked him to ‘‘go
somewhere where nobody is going to see us talk’’ and that
Penman agreed to Laquatra’s suggestion that they meet out-
side the building in the parking area for office personnel (Tr.
110).
Laquatra asked Penman ‘‘how the Union was doing’’ and
Penman answered that it was ‘‘going the same as it has
been’’ (Tr. 111). Laquatra then asked Penman what the em-
ployees were so upset about and why they wanted a union
(Tr. 485), and what Respondent was ‘‘doing right and what
Respondent was doing wrong’’ (Tr. 485). Penman said that
he was not sure because no one even had approached him
to sign a union card (Tr. 485). Laquatra then asked why Pen-
man himself wanted the Union because, if the Union got in,
he would be taking a pay cut; that Penman would lose
money and that wages would start from a $9-per-hour base
(Tr. 111–112). Laquatra suggested that Penman gather em-
ployees for a meeting with management, perhaps at the home
of President Felt. Apparently after Penman then told
Laquatra that he would talk to the employees about the meet-
ing with management, Laquatra told him that President Felt
was out of town at the time; that they were waiting for (ma-
jority stockholder) Vic DeZen to come down from Canada;
that DeZen14 knew nothing of the union activity going on in
Respondent (Tr. 112); and that Respondent’s management
and shareholders, Angelo Laquatra and Leonard Feather, in-
cluding President Felt who wanted to retire, were afraid what
Victor DeZen might do if he learned of the union activity
at the plant (Tr. 112–113). When Penman asked him what
he meant by what DeZen ‘‘might do,’’ Laquatra answered
that ‘‘they were scared that he might shut the plant down’’
(Tr. 113).15
When Penman agreed to speak to the employees and after
Laquatra suggested that they might meet at President Felt’s
house, Laquatra said that he would let Penman know of the
date and time for the meeting and wanted to know how
many employees he could get for the meeting (Tr. 113).
While I find that he asserted that negotiations start from
ground zero and could go up and down, I do not credit his
denial that he told Penman that Penman would lose money
if the Union came in (Tr. 510). I do not credit, moreover,
any of his contradicted testimony. I was particularly im-
pressed with the progression of Laquatra’s equivocal testi-
mony whether he, in the first place, mentioned the Union to
Penman (Tr. 483). His first version (Tr. 483) was that he was
not sure if he or Penman had brought up the subject of the
Union in this private conversation. He finally settled on the
position that he ‘‘probably’’ brought up the subject of the
Union and that he ‘‘probably’’ asked Penman why the em-
ployees were so ‘‘upset’’ (Tr. 485).16 Notwithstanding
Laquatra’s testimony that he chose to speak privately to Pen-
man because Penman was his ‘‘friend’’ and a long-time em-
ployee who knew a lot of what was going on in the plant,
I also conclude that, by this time, whether in late September
or in early October, especially in view of Respondent’s
knowledge (White) of the ‘‘rumor’’ concerning Penman’s
current prounion stance, Laquatra chose Penman because he
knew that Penman was a supporter of the Union. He explic-
itly warned Penman, in this same conversation, of a dimin-
ished wage rate if the Union came in and expressed puzzle-
ment why Penman nevertheless supported the Union. I make
this finding of Respondent’s knowledge of Penman’s union
sympathies independent of White’s previous warning that
Penman ‘‘watch himself’’ because his name was being re-
peatedly mentioned in the contemporaneous foremen’s meet-
ing.
The complaint alleges that this conversation contains var-
ious violations of Section 8(a)(1) of the Act. I conclude, in
the first place, that when Laquatra asked Penman why he
was for the Union, how the Union was doing, and why he
wanted the Union in view of the pay cut that he would re-
ceive if the Union got in, such questions amounted to unlaw-
ful interrogation in violation of Section 8(a)(1) of the Act.
Questioning by a top supervisor, hostile to union activities,
designed to have an employee divulge the extent of his or
coemployees’ union activities or sympathies constitutes un-
lawful, coercive interrogation, for it is precisely the type of
information which employees, under the Act, are privileged
and permitted to keep to themselves, NLRB v. Laredo Coca-
Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), cert. de-
nied 105 LRRM 2658 (1980); Masland Industries, 311
NLRB 184 fn. 2 (1993). Respondent’s citation of Ernest
Home Centers, 308 NLRB 848 (1992), to support the propo-
sition that such discussions took place between ‘‘friends’’ (R.
Br. 42) and did not violate Section 8(a)(1) of the Act, is mis-
placed. In that case, the Board, affirming the administrative
law judge, found no unlawful interrogation, notwithstanding
that the conversation occurred between friends in the super-
visor’s office, because (1) the employee commonly engaged
in conversations in his supervisor’s office; because (2) it was
the employee, rather than the supervisor, who raised the
question of the circulation of a decertification petition; and
because (3) the supervisor asked only a single question con-
cerning what was happening to the decertification petition. In
the instant case, Laquatra invited Penman to speak ‘‘off the
record’’ outside the office so that they could not be seen; it
was Laquatra who raised the question of Penman’s union ac-
tivities; and it was Laquatra who urged both the desirability
of a meeting to blunt union organization and threatened a po-
859CUSTOM WINDOW EXTRUSIONS
17 Respondent argues against Penman’s crediblity on the ground
that Penman testified extensively that, in his 8 years’ employment
he never received a copy of Respondent’s employee handbook (Jt.
Exh. 1). There is no question, however, that Penman’s personnel file
shows that although he received various respondent publications and
distributions, he clearly did not receive the handbook according to
Respondent’s own records (G.C. Exh. 3). On the other hand, I agree
with Respondent (R. Br. 24) that Penman was not credible in his de-
nial of knowledge of the existence of the employee handbook in the
8 years of his employment. I further agree that it is highly unlikely
that Penman was unaware of Respondent’s formal antipathy to ab-
senteeism and a policy against it. While there is no evidence, and
I do not find, that he knew of any ‘‘no-fault’’ absentee rule requiring
termination on the 12th day of unexcused absences in any 12-month
period, there is no question in my mind that Penman, contrary to the
tenor of his testimony, understood that Respondent frowned on ex-
cessive absenses. To the extent that Laquatra, for instance, testified
that the absentee policy in the handbook was discussed in detail with
Penman at the time of Penman’s termination on October 14, such
testimony, though denied, may be true but it does not suggest that
Penman knew about the rule before the discharge. His knowledge on
or after October 14 is irrelevant. Lastly, I agree that Penman’s testi-
mony, apparently denying his signature on Respondent’s December
30, 1985 oral warning for being 15 minutes late, is not credible. I
further agree, that this incrediblity is based not on Penman’s failure
to suggest that he did not remember the existence of that warning
but that the signature appearing on it, although it looked like his sig-
nature, was not actually his. Like Respondent, I do not accept his
testimony that he did not know whether the signature was his (Tr.
158). Lastly, I was not impressed with Penman’s testimony con-
cerning the circumstances under which he came into possession of
certain original respondent records which Respondent had not sur-
rendered pursuant to General Counsel’s subpoena. While there is no
evidence that Penman himself stole the documents, I do not credit
his evasive and unconvincing testimony concerning his lack of
knowledge how the documents turned up in his mailbox.
While I am fully aware of the legal apothegm that bad men tell
the truth and good men lie (who are the bad men?), the problem in
this case, as in other discharge cases, is evaluation of who is credible
in establishing or rebutting the existence of an inference of unlawful
motive in the discharge. In evaluating all the testimony, and particu-
larly on my observation of Penman and Supervisors Laquatra,
Mourant, Porembka, and White, I have come to the conclusion that,
in the pertinent parts of Penman’s testimony, he is credible and that
in pertinent parts, Respondent’s witnesses were not credible. The
reasons, apart from observation of demeanor, appear in detail in the
text hereafter.
18 Although employees on the night shift, like Penman, actually
punch in a few minutes before midnight, and although the actual
working hours occur between midnight and 8 a.m. of the next day,
Respondent records the work, for payroll purposes, as of the pre-
ceding night when the employee punches in. Thus, Penman punched
in a few minutes before midnight on October 8 and worked from
midnight to 8 a.m. on October 9, but is recorded, for payroll pur-
poses, as having worked on October 8.
tential shutdown of the plant if the majority shareholder got
wind of union activity in the plant and also a loss of wages
to Penman. See Masland Industries, supra at fn. 2.
Penman’s uncontradicted testimony (Tr. 112–113), as
above noted, was that Laquatra told him that if Vic DeZen
discovered the union activity in Respondent’s plant, he
would shut the plant down. I credit it. Respondent neverthe-
less defends against this finding on the ground that all Pen-
man’s testimony was totally incredible and since there was
no corroboration it should be given no weight. I find, on the
contrary, that Laquatra was present throughout the hearing
and should have denied Penman’s testimony. No corrobora-
tion, under those facts was possible or necessary. Although
Penman’s own veracity was hardly unblemished,17 I credit
Penman in this regard. Such a result flows from my observa-
tion of the witnesses, a review of the entire record, and an
analysis of the veracity of all witnesses. I find that
Laquatra’s threat, like White’s threat to Gardner, that DeZen
would close the plant (White said Felt would shut it down)
if he discovered union activity in the plant violated Section
8(a)(1) of the Act as alleged as did the interrogation.
Lastly, I find that Laquatra’s October 7, 1992 ‘‘off the
record’’ conversation with Penman included an unlawful so-
licitation of employee complaints and grievances which an
implicit promise to rectify them. Laquatra asked Penman to
set up a meeting of employees to determine what made the
employees sufficiently angry or upset to cause them to sup-
port the Union and requested that Penman gather the employ-
ees at President Felt’s house to see what Respondent was
‘‘doing wrong,’’ implicitly promising that the wrongs could
be rectified. Such a request, in the face of concurrent union
organization, is the unlawful solicitation of grievances with
the implicit promise of rectifying them, all in violation of
Section 8(a)(1) of the Act as alleged. Enterprise Products
Co., 265 NLRB 544, 549 (1982).
Respondent’s general defense—that Laquatra’s acts of in-
terrogation, threats, etc. were not coercive because of
‘‘friendship’’—has again been specifically rejected by the
Board in Sage Dining Service, 312 NLRB 845 (1993).
3. The October 8, 1992 arm injury; October 13 medical
treatment; the discharge of October 14, 1992
In October 1992, as above noted, because of Penman’s
outstanding skills and ability to work without supervision, he
had been transferred to the night shift (midnight to 8 a.m.).18
Thus, on the day following Laquatra’s unlawful ‘‘off the
record’’ parking-lot conversation with Penman, Penman re-
ported for and worked the night shift of October 8/9. During
the shift, while trying to release certain bolts on machinery,
he injured his shoulder. Pursuant to Respondent’s outstanding
instructions he told his night-shift supervisor, Chuck
Dowling, of the injury (Tr. 117), requested him to execute
an accident report and make sure it went to Machine Shop
Manager Brad Mourant (Tr. 201). Other than mentioning the
injury to Shift Supervisor Dowling, he did not mention it
later in the morning to either Porembka or Mourant in the
overlapping 2-hour period, 6 to 8 a.m. (October 9) when
Mourant and Porembka reported for, and were present at,
work and while Penman had not yet finished his shift. It is
undisputed that Mourant nevertheless saw the report of the
injury on the production report that Dowling submitted to
Mourant by 10:30 a.m. on the same day (October 9). It is
further undisputed that Penman was following normal proce-
dure in reporting the injury to his immediate supervisor,
Chuck Dowling (Tr. 299).
On the night following his injury, the night of October 9,
Penman did not report for work that Thursday/Friday night
but, pursuant to Respondent’s rules, telephoned to the Re-
spondent, asked for Shift Supervisor Chuck Dowling and was
told that he was not there. Penman, pursuant to authorized
procedure, then told the employee who answered the phone
(whose name he did not know) that Dowling was supposed
to have filled out an accident report and notified Mourant.
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Respondent’s records (Jt. Exh. 7) show that for a 2-month pe-
riod (April 14–June 9, 1991) Penman was paid full salary while not
working because of a medical problem. More important, the evi-
dence shows (Jt. Exh. 9) that 2 months before this October injury,
in or about August 1992, Penman had an upper back injury and was
treated by a physician who performed a bone scan and prescribed
a pain medication (Darvoset) (Tr. 126; Jt. Exh. 9). At that time, Pen-
man missed 1 week of work and thereafter had a week of light work
before returning to his regular job in Respondent’s plant (Jt. Exh.
9).
20 As will be seen in the text hereafter, I discredit all of Supervisor
Mourant’s testimony, where controverted in this hearing, and par-
ticularly his testimony that Penman telephoned him on October 9.
21 I discredit any Mourant contrary testimony (Tr. 300 et seq.).
Thus, there was no conversation between Penman and Mourant on
October 9; Penman never told Mourant (he told an employee) on
October 9 that he would not work that evening; and the first con-
versation between Penman and Mourant, as noted in the text, oc-
curred on October 12 in the morning. Lastly, I discredit Mourant’s
testimony that he did not speak to Penman on October 12 (Tr. 301);
that Penman’s failure to work on both October 9/10 and October
12/13 came as a surprise to him; that Penman did not tell him on
October 12 that he would not be in that night because of pain in
the shoulder and because of the doctor’s appointment the next day.
I have referred to G.C. Exh. 15, allegedly Mourant’s contempora-
neous notes allegedly recorded 2 hours after an alleged single con-
versation with Penman, only for the purpose of admissions against
Respondent’s interest. Further reference to this spurious document
will appear hereafter.
22 Respondent did not produce Supervisor Ralph to contradict this
Penman testimony notwithstanding that Ralph is still in the employ
of Respondent. I credit Penman’s testimony regarding this telephone
call.
He told the employee that he was in pain, trying to get a
doctor (Tr. 124). He did not see a doctor on Friday, October
9. He also did not attempt to visit the emergency room be-
cause of his desire to be treated by an orthopedist (Tr.
171).19 Thus, Penman’s October 9 telephone call to the em-
ployee, that he would not work that night because of the in-
jury (‘‘called off’’ from work) was his only communication
to Respondent. Penman had no conversation with any other
employee or management representative on October 9.20
On Monday, October 12, Penman twice telephoned to
Mourant. In a morning conversation he told Mourant (Tr.
125 et seq.) that he was trying to get in touch with a doctor
who would give him an early appointment; was taking pain
medications (Darvoset) (Tr. 126; G.C. Exh. 15); and asked
if he could come to work notwithstanding taking the pain
medication. Mourant, first blaming Penman himself for caus-
ing the injury because of his failure to properly loosen the
bolts, told him that he could not come to work while taking
Darvoset because of the possibility of Respondent’s ‘‘liabil-
ity’’ (G.C. Exh. 15). There is no dispute that Mourant said
nothing to Penman, at this or any other time, that questioned
the bona fides of the injury.
Penman then telephoned Kelly Hammer, Respondent’s of-
fice clerical, for the name of a specialist. She gave the name
of orthopedist, Jay Peterson, M.D., a member of a physi-
cians’ group practicing in nearby Carnegie, Pennsylvania. Dr.
Peterson’s name and phone number, along with the names of
other specialists (other than orthopedists) in the medical
group, was posted on Respondent’s production floor at the
time of the injury (apparently since June 1992). Penman was
unaware of the list. He then telephoned Peterson’s office and
received an appointment for the afternoon of the next day,
Tuesday, October 13.
After receiving the appointment with Peterson, Penman, at
about 4 p.m. on October 12, again telephoned Supervisor
Brad Mourant. In this 4 p.m. conversation (Tr. 127; G.C.
Exh. 15), Penman told Mourant of his appointment with Pe-
terson for the next day (October 13) and told him that he
would not be in to work that night (the night of
Monday/Tuesday, October 12/13) because he was still on
medication, his arm was bothering him, and that he wanted
to wait and see what the doctor had to say on the next day
concerning the extent of the injury. Mourant told him to keep
Mourant advised of what the doctor found (Tr. 127).21 Pen-
man did not make a further telephone call to notify Respond-
ent that he would not work that Monday/Tuesday shift (Oc-
tober 12/13), i.e., he did not further ‘‘call off work’’ on
Monday night (Tr. 127), because he believed that his con-
versation with Mourant at 4 p.m., in which he told him that
he would ‘‘probably’’ not work that night, was sufficient no-
tification to Respondent (Tr. 127).
In any event, in the afternoon of the next day October 13,
he visited Peterson who, after a physical examination (Jt.
Exh. 9), told him that he would prescribe pain medication
and would put him on light duty (Tr. 127–128). Penman told
Dr. Peterson to contact Respondent because light duty work
was not available for everyone in the plant and only certain
departments had light duty (Tr. 128). Peterson requested the
name and telephone number of Penman’s supervisor, appar-
ently tried to reach Mourant, but then told Penman (who re-
mained in Peterson’s office) that he had telephoned Respond-
ent and no one had returned the call (Tr. 128–129). He told
Penman that he was going to permit him to work light duty
and give him a slip relating to such permission (Tr. 129). He
gave him the slip for light duty work (G.C. Exh. 9). The slip
shows that Penman was released for light work commencing
October 14 (Tr. 130).
Following his October 13 afternoon visit to the physician,
at about 11 p.m., he telephoned Assistant Production Fore-
man Gomer Ralph (conceded to be a Respondent supervisor
and agent) (Tr. 132) and told Ralph that he had a release to
return to work on October 14. Ralph told him that Respond-
ent had light duty work set up for him. Penman told Ralph
that his release to return to work was for October 14 and that
he would be ready to perform light duty work on the fol-
lowing night (October 14/15). Supervisor Ralph told Penman
that he would ‘‘let them know’’ that Penman would be to
work on the night of October 14/15 (Tr. 133).22
As he had informed Ralph, Penman reported for work on
the next night, Wednesday/Thursday (October 14/15) and
punched in. He there met a machinist, Robert Keeler, who
told him that the light duty work was available for him (Tr.
135), but added: ‘‘Hey, something is going on, Brad and ev-
erybody is in the office . . . Angelo [Laquatra], Lenny
[Feather].’’ At that point, Supervisor Brad Mourant emerged
from the office and told him to come into the office. Present
in the office were Vice President Laquatra, Production Man-
ager Porembka, Mourant, and Supervisor Feather. As Pen-
man walked into the office, Mourant handed him a bunch of
papers including the printout of his absences and latenesses
which, as will be discussed hereafter, Kelly Hammer created
861CUSTOM WINDOW EXTRUSIONS
23 Respondent conceded that a printout for the purpose of sup-
porting the discharge of an employee had never been created prior
to the discharge of Penman.
24 The second ‘‘written’’ warning and the third ‘‘final’’ warning
are for the same alleged act.
25 Respondent ‘‘frankly acknowledges . . . a number of serious
short comings [sic] with respect to the administration of its attend-
ance control system.’’ (R. Br. at 30.)
at Mourant’s or Laquatra’s direction on October 13/14;23 a
warning notice (G.C. Exh. 10) showing that he had been ab-
sent on Friday, October 9, without excuse; a second ‘‘writ-
ten’’ warning, because of Penman’s failure to report to work
on October 12, 1992 (G.C. Exh. 11); a third written ‘‘final’’
warning dated October 12, 1992, because of absences from
work24 on October 12, 1992 (G.C. Exh. 12); and an October
14, 1992 termination notice (G.C. Exh. 13) which cites ‘‘ter-
mination effective immediately,’’ repeating the existence of
the September 11 oral warning for 3 days’ lateness in 1
week; the failure to report his absence from work on October
12, 1992, and the third warning of October 13, 1992, for
being absent on October 12, 1992. Penman told Mourant that
he was protesting the papers because of the discrepancy be-
tween the alleged 3 days’ lateness in 3 weeks and 3 days’
lateness in 1 week (Tr. 137) and because he was being given
two written warnings for his activities on October 12; failure
to report and being absent (Tr. 138). In fact, however, Pen-
man repeated that he had formally ‘‘called off’’ from work
both on October 9 and 13 (for work on October 13/14) in
his conversations with an employee on October 9 and with
Supervisor Gomer Ralph on October 13 (Tr. 138–139). In
addition, he had spoken to Mourant himself on the afternoon
of Monday, October 12, advising him that he would not be
in that night (October 12/13; G.C. Exh. 15). In addition, Pen-
man told the assembled group of supervisors that the discipli-
nary documents they gave him were for the days that he was
hurt (Tr. 139). They responded that he had been absent on
even more days than appeared on the documents which they
handed him (Tr. 139).
There is no dispute that although the warning of October
12 (G.C. Exh. 10) for unexcused October 9 absence was
handed to him at the time of the October 14 discharge, there
was no such warning given to Penman on Monday, October
12 or Tuesday, October 13. Similarly, there is no dispute that
the ‘‘final’’ written warning (G.C. Exh. 11) dated October
13, 1992, which was handed to Penman by Mourant at the
midnight October 14/15 discharge, was untimely served on
Penman because it did not give him the timely prior notice
of alleged misconduct which is required in Respondent’s em-
ployee handbook (Jt. Exh. 1, p. 6). In short, under Respond-
ent’s ‘‘no-fault’’ handbook rules he should have received his
first written warning no later than on the 10th day of absence
from employment; and his final written reprimand no later
than on the 11th day of unexcused absence from employ-
ment. There is no dispute that he received neither on a time-
ly basis.25 On the contrary, they were all grouped in one
bunch of papers given to him simultaneously with his dis-
charge on October 14/15.
In addition, as will be noted hereafter in greater detail, Re-
spondent’s position at the hearing was that under Respond-
ent’s employee handbook (Jt. Exh. 1), Respondent’s ‘‘no-
fault’’ absence policy automatically required the termination
of any employee absent 12 or more days in any 12-month
period. Not only do Respondent’s supervisors have discretion
in recording absences as ‘‘excused’’ or ‘‘unexcused,’’ but, as
General Counsel’s brief observes (App. A; see Jt. Exhs. 6
and 7; and G.C. Exh. 19), even the most superficial analysis
of Penman’s absentee record demonstrates, in the period
1990 through 1992, that, for instance, in the period April 13,
1990, through April 5, 1991, less than a 12-month period,
Penman was absent without excuse 13 times. In the period
March 19, 1991, through February 27, 1992, Penman was ab-
sent 13 times. In the period April 5, 1991, through August
13, 1992, a period of only 10 months, Penman was absent
13 times. In none of these periods did Respondent serve on
Penman, pursuant to its absentee rules or otherwise, any oral
or written notice for excessive absences or give him any
warnings regarding any absences whatsoever, much less
threaten to discharge him. All the warnings and all this activ-
ity regarding latenesses and absences leading to the discharge
follow union activity in the plant and Penman’s identification
therewith.
4. Discussion and conclusions: General Counsel’s
prima facie case
To prove a prima facie case of unlawful discharge, Gen-
eral Counsel must first demonstrate that a motivating factor
in Respondent’s decision to terminate Penman on October
14, 1992, was his union activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393, 400–401 (1983). Respondent, in de-
fending against such a prima facie case, must either then
rebut the prima facie case by showing that the facts, as dem-
onstrated by the General Counsel, never happened; and in
this regard, Respondent must bear the burden of proof by a
preponderance of the credible evidence, Merillat Industries,
307 NLRB 1301 (1992); or, in the alternative, again by a
preponderance of the credible evidence, that Respondent
would have taken the same action against Penman regardless
of his protected or union activity, NKC of America, 291
NLRB 683 fn. 4 (1988). An ultimate inference of Respond-
ent’s unlawful motivation under Wright Line may be drawn
from Respondent’s hostility toward employees’ union activi-
ties and the coincidence between such union activities and
the date of the discharge. Lemon Drop Inn v. NLRB, 752
F.2d 323 (8th Cir. 1985); NLRB v. Minette Mills, 983 F.2d
1056 (4th Cir. 1993), enfg. 305 NLRB 1032 (1991). Re-
spondent’s burden to prove that, notwithstanding Penman’s
union activities, it would have terminated his employment re-
gardless of such activities, effectively imposes an affirmative
obligation to convince the trier of fact that the legitimate mo-
tive for the discharge existed and was sufficiently compel-
ling, NLRB v. Horizon Air Services, 761 F.2d 22 (1st Cir.
1985).
General Counsel’s first obligation, therefore, is to prove
that Respondent had knowledge of Penman’s union activities
prior to the October 14 discharge. Assistant Production Man-
ager White admitted (Tr. 556–557) that he knew of ‘‘ru-
mors’’ in the plant wherein Penman was identified, in the pe-
riod prior to his discharge, as being prounion. Moreover,
Penman identified himself as prounion in a September argu-
ment with Porembka (Tr. 114). Furthermore, Penman’s cred-
ited testimony was that in his October 7, 1992 conversation
with Vice President Laquatra (1 week before the discharge),
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 I omit from the elements of the prima facie case Respondent’s
offering Penman the position of assistant production manger, which
offer was still outstanding as late as October 2, 1992. President
Felt’s offer was made with full knowledge of Penman’s attendance
record (according to Porembka), in the face of Production Manager
Porembka’s hostile, contrary recommendation. It is omitted because
the offer is arguably an element rebutting Respondent’s good-faith
assertion of a defense rather than an element of the prima facie case.
See NLRB v. Vemco, Inc., 989 F.2d 1468 (6th Cir. 1993). In par-
ticular, however, whether properly in the prima facie case or in re-
buttal of the defense, Felt’s offer, with full knowledge of, and in
spite of, Penman’s attendance record can reasonably establish con-
donation of Penman’s past attendance inadequacy up to October 2.
when Laquatra asked to speak to Penman ‘‘off the record’’
about union activities in the plant, Laquatra told Penman that
he could not understand why Penman was for the Union
since Penman’s $13-per-hour wage rate would be subject to
a starting rate of $9 if the Union came in. Such evidence is
sufficient to prove Respondent’s knowledge of Penman’s
union activities and sympathies prior to the discharge. In ad-
dition, I do not credit Laquatra’s testimony that he chose
Penman as the employee to round up other employees for a
meeting with President Felt (in order to thwart employees’
union support) merely because Penman knew all the employ-
ees in the plant. Rather, it was because Penman, a prounion
activist, could sway other prounion employees to attend the
meeting. It is not necessary, however, that the General Coun-
sel prove that Penman was actually more active on behalf of
the Union than other employees; it is enough that Respond-
ent knew that he was in favor of the Union in order to prove
the element of knowledge. See Langston Cos., 304 NLRB
1022 (1992). I conclude that the General Counsel has proved
the element of Respondent’s knowledge of Penman’s
prounion sympathy prior to the October 14 discharge.
A second element often required by the Board and courts,
in inferring an unlawful motive is animus against employees’
union activities. With regard to Respondent’s animus, there
is no question that its letters and postings to employees, of
October 14 and 20 (Jt. Exhs. 4 and 5) were heavy medicine
evincing Respondent’s dislike of the Union. Respondent con-
cedes that these documents ‘‘admittedly contained strong
statements of company opinion that the Union would be a
mistake.’’ (R. Br. 36.) In addition, the above unlawful acts
of Respondent’s systematic interrogation, threats, and warn-
ings to employees in September and early October, all in
violation of Section 8(a)(1) of the Act, are no mere technical
violations. They evince an active animus against employees
engaging in union activities and selecting the Union as their
collective-bargaining representative. Indeed, Vice President
Laquatra’s and Penman’s testimony of their October 7 con-
versation can be construed only that Laquatra desired to de-
feat the Union through the efforts of Penman. No further evi-
dence is of animus is required. Manifestation of union ani-
mus, particularly the October 7 conversation came within a
week of the October 14 discharge.
A third element is the question of timing of the discharge:
the coincidence between the date of the discharge and Pen-
man engaging in union activities together with Respondent’s
manifested animus against union activities.
In NLRB v. Rain-Ware, Inc., 732 F.2d 1349 (7th Cir.
1984), the court noted that ‘‘timing alone may suggest anti-
union animus as a motivating factor.’’ See Equitable Re-
sources Energy Co., 307 NLRB 730 (1992). In the instant
case, Supervisor White, in September 1992 warned Penman
to ‘‘watch yourself’’ because Penman’s name came up an
‘‘awful’’ lot at the foremen’s meeting from which White
emerged (Tr. 103). The credible evidence suggests that
White, and other foremen, at foremen’s meetings, evidently
discussed the Union and that, on emerging from such meet-
ings, White, pursuant to higher authority, unlawfully interro-
gated employees (credited testimony of Allen Gardner, Tr.
255–257). Thus, I have concluded that White’s otherwise
ambiguous warning, in the context of its timing and sub-
stance, related to Penman’s union activities. In view of
White’s denial that any such conversation took place, and in
view of my specific discrediting of White’s testimony, I con-
clude that there is no preponderant testimony rebutting Pen-
man’s credited prima facie assertion of the existence of that
warning and that the warning related to Penman’s union ac-
tivities. Furthermore, 1 week before the discharge, on Octo-
ber 7, 1992, Laquatra identified Penman as a union activist
and as such, attempted to recruit him as Respondent’s instru-
ment to combat union activity by his soliciting employees to
attend a meeting at which President Felt would apparently
determine what Respondent was doing ‘‘wrong’’ and
impliedly rectify it. In that same conversation, Laquatra en-
gaged in unlawful interrogation concerning Penman’s
prounion sympathies and a warning and threat concerning
Penman’s loss of his $13-per-hour wage scale if the Union
came in.26
On the basis of the above unfair labor practices contem-
poraneous with and immediately preceding Penman’s dis-
charge, Respondent’s knowledge and particular identification
of his prounion sympathy, White’s ominous warning, its ani-
mus against the employees’ union activities, and the timing
of the discharge only a week following Vice President
Laquatra’s unlawful interrogation and threat to Penman be-
cause of his union sympathy, I conclude that the General
Counsel, in the absence of credible rebutting testimony from
Respondent’s witnesses, has proved by a preponderance of
the credible evidence, a prima facie case. Wright Line, supra;
NLRB v. Transportation Management Corp., supra; NLRB v.
Rain-Ware, Inc., supra, and NKC of America, supra at fn. 4
(1988). See also Lemon Drop Inn v. NLRB, supra (inference
of unlawful discrimination is to be drawn where the dis-
charge is coincidental with animus and the employee engag-
ing in union activities).
F. Respondent’s Defense
Repeatedly on the record and in its brief, Respondent as-
serts that the sole reason it terminated Penman’s employment
was pursuant to Respondent’s absentee policy (e.g., R. Br.
28). There is no dispute that Respondent’s absentee policy is
contained in Respondent’s employee handbook, page 5 (Jt.
Exh. 1):
6 days absence—verbal warning
7 to 10 days absence—first written reprimand
11 days absence—final written reprimand
12 days absence—termination
It is also not disputed that the 12-month period in which
the 12 days’ absence is to be calculated is a continuing, ro-
tating 12 consecutive month period ending with the most re-
863CUSTOM WINDOW EXTRUSIONS
27 Penman testified that in 1991, while he was a salaried employee,
certain of his 1991 absences were excused by then Production Man-
ager Jim Bentley. There is no further support for such a contention
and I reject it as unconvincingly general and unproven.
28 Respondent asserts that, in any event, Penman received ‘‘the re-
quired number of oral warnings, and written reprimands prior to his
termination’’ (R. Br. 31). What Respondent is arguing is that at the
moment of discharge, Respondent heaped a bunch of papers, most
of which were untimely under the employee handbook, on Penman
in an effort to conform to some technical idea of regularity in the
support of the discharge. Such an attempt failed, and Respondent’s
midnight, untimely attempt at technical compliance with its own
rules underscores counsel’s concessions that Respondent failed to
observe or comply with its rules.
cent absence (Jt. Exh. 1, p. 5; R. Br. 29). As Respondent ob-
serves (R. Br. 29, fn. 19), there was no dispute that in the
period October 10, 1991, through September 25, 1992, Pen-
man was guilty of 11 unexcused absences, at least on this
record.27
Respondent, however would add Penman’s 3 absences of
October 9, 12, and 13, 1992, to reach a total of 14 absences.
These, of course, are the dispositive absences. With such a
record, Respondent asserts that it sustained its burden ‘‘of es-
tablishing a lawful, independent reason for terminating Pen-
man on October 14, 1992’’ (R. Br. 29–30). Respondent
thereafter asserts that the burden then shifts to the General
Counsel to prove that the reason for the discharge (excessive
absenteeism contrary to Respondent’s existing absentee pol-
icy) was a pretext to mask unlawful motivation (R. Br. 30).
1. Respondent’s concessions concerning its absentee
policy and recordkeeping
Respondent concedes the following specific failures, short-
comings, omissions, and mistakes in recordkeeping and ad-
ministration of its absentee policy:
(a) The daily, weekly, and monthly attendance calendars
showing tardiness, lateness, and absence of employees, alleg-
edly regularly kept by high-level, departmental supervisors,
like Machine Shop Manager Mourant, were inaccurate and
seldom kept in any substantial form (G.C. Exh. 4; R. Br. 30).
(b) Respondent concedes that its supervisors did not issue
discipline or absentee warnings in accordance with the
schedule established in its employee handbook (Jt. Exh. 1).
By virtue of this concession, Respondent necessarily admits
that notwithstanding that Penman had achieved his 11th day
of unexcused absence on September 25, 1992, no ‘‘final’’
written reprimand was given to him on or about that date
to timely permit him to mend his ways and thereafter to
avoid a critical 12th day of unexcused absence. Rather, the
untimely final written reprimand for his 11th day of absence
was untimely served on him 3 weeks too late among the
bunch of papers presented to him at the very moment of his
discharge.
Respondent attempts to excuse this last element and its
generalized failure to follow its own clearly defined program
on the ground that it actually worked to the advantage of the
absentees and not to their disadvantage. Such an excuse ad-
mits Respondent’s failure to follow and observe its own
rules. Whatever advantages it might have worked for certain
other unnamed speculative discriminatees, it most certainly
did not work to Penman’s advantage. Not only was he not
given the timely final written warning on the September 25
absence, but Respondent untimely served this crucial rep-
rimand on Penman, together with a multitude of other pa-
pers, all betokening technical compliance with its rules, at
the very moment that it was discharging him on October 14.
This hardly worked to Penman’s advantage.
(c) Similarly, Respondent concedes that no timely, or un-
timely, verbal warning was served on Penman on the occur-
rence of his sixth absence, according to the employee hand-
book. It should have been served on February 27, 1992.28
Finally, Respondent argues, contrary to the assertion of
pretext, that the above failings and inconsistencies do not es-
tablish a pretext; rather, they merely are evidence that Re-
spondent’s control system was poorly designed and suffi-
ciently inaccurate so as not to permit proper administration
(R. Br. at 31). I find to the contrary: that sudden, untimely
enforcement of an unenforced rule is evidence of its
pretextual application.
2. Respondent’s defense as pretext
Respondent defends on the ground that it discharged Pen-
man on October 14, 1992, solely on the ground of his exces-
sive absences measured against its employee handbook for-
mula requiring termination on the 12th occurrence of unex-
cused absences in any 12-month period. There is no dispute,
on this record, that Machine Shop Manager Bradley Mourant
was the moving force in procuring the discharge. His self-
assured testimony that no one else participated in the deci-
sion to terminate Penman (Tr. 305) was not credible in view
of his later testimony that he ‘‘highly recommended’’ the
discharge to Laquatra who gave final permission (Tr. 398).
Similarly false was Laquatra’s sworn pretrial statement that
he did not have any role in the discharge decision itself (Tr.
505–507). His sworn testimony at the hearing was that he
did participate in the decision to terminate Penman (Tr. 505).
Indeed, what actually happened was that Mourant brought to
Laquatra’s attention the possibility of firing Penman, rec-
ommended the discharge and came to Laquatra for his deci-
sion and blessing (Tr. 508). Also false is the assertion that
automatic discharge occurs on the 12th absence. The fallacy
follows Laquatra’s admissions that supervisors have ‘‘leeway
in interpreting whether to charge [an employee] with a
chargeable day under no-fault’’ (Tr. 439, 445–446). Thus,
one employee’s 12 days’ absences are not necessarily the
equivalent of another employee’s 12 days, depending on the
discretion of the supervisor (Tr. 445–446). Laquatra further
early testified (Tr. 31) that Mourant did not ask his permis-
sion to terminate Penman but later testified (Tr. 431–432)
that Mourant, stating that Penman had missed the forbidden
number of days, asked him: ‘‘What do you think.’’ When
Laquatra then said that Respondent ‘‘had to be fair to every-
body’’ Mourant said (Tr. 431–432): ‘‘I recommend [sic] to
fire Bob Penman under the . . . no-fault absenteeism pol-
icy.’’
With Mourant as the moving party in the discharge, it is
necessary to recite the facts leading up to that event, the
facts which spurred Mourant to bring Penman’s absences to
Laquatra’s attention and then to make his recommendation to
fire Penman.
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After confirming that he, Mourant, was the sole person
recommending the termination (Tr. 305–306), he testified
that he reached the decision to terminate him, not when Pen-
man had exceeded the forbidden 12 days, but ‘‘once he got
close’’ (Tr. 306). It was then that he decided to speak to
Laquatra about terminating Penman. A review of Mourant’s
wholly unreliable testimony, in conjunction with Laquatra’s
testimony, as modified by the testimony of office clerical
Kelly Hammer, shows the following chronology:
(a) After Penman telephoned Mourant in the afternoon of
Monday, October 12, 1992, advising him that he would not
be in that night for work, Penman was seen as coming
‘‘close’’ and Mourant decided to see if he could fire Penman
on the ground of absenteeism.
On the morning of the next day, October 13 (Tr. 61–62),
Mourant, charged with keeping Penman’s attendance records,
visited Laquatra in his office and asked Laquatra how many
days Penman had been absent. Laquatra did not know and
told Mourant to give the problem to office clerical Kelly
Hammer who would review Penman timecards and run off
a computer printout concerning the matter (Tr. 306, 377–
378).
(b) The testimony of Kelly Hammer: Hammer is in charge
of personal records and accounts payable. She is experienced
in running computer printouts. At the time of giving her tes-
timony, she was married to Respondent supervisor, Chuck
Dowling.
While I do not credit her testimony that on October 12,
when she gave Penman the name of Dr. Peterson, Penman
told her that he was going to work that evening, I do credit
her testimony that on the next afternoon, Penman telephoned
to tell her that he would not be in to work that night (Octo-
ber 13/14) and would not return to work until the night of
October 14 for light duty (Tr. 516). Not only would she ordi-
narily give testimony favorable to Respondent in view of her
existing relationship to Supervisor Dowling, but she first
gave Dr. Peterson’s name to Penman on the midmorning of
October 12, and he told her he would see the doctor there-
after. I regard it as unlikely that he would have told her that
he was coming to work that night, before seeing the doctor.
She did recall, however, with great difficulty with regard
to the actual dates or days, that on a particular day in mid-
October, either Laquatra or Mourant told her that there was
a question concerning Penman’s attendance record (Tr. 526),
and they asked her to gather Penman’s timecards for the pre-
ceding 12 months to determine what his attendance record
was (Tr. 527). She did recall that it was either October 12
or 13. Laquatra’s credited testimony was that Mourant first
approached him on the morning of October 13 concerning
Penman’s attendance record. Hammer’s testimony was that
the review of 12 months of timecards (extracting Penman’s
timecards from Respondent’s records) took her 2 days: to ex-
amine the timecards, collate them, and create the spread
sheet reporting that information (Tr. 530–531). Therefore it
appears, and I find, that either Laquatra or Mourant requested
the spread sheet on October 13 and it was not delivered into
their hands until the next day, October 14. Hammer admitted
that she had never been asked to prepare a spread sheet for
such purposes before this occasion.
(c) Thus on October 14, after Hammer delivered the
spread sheet to Mourant, he had in his possession docu-
mentation showing Penman had unexcused absences of 14
days ending with and including the alleged 3 days of unex-
cused absences, October 9, 12, and 13.
Sometime, therefore, on October 14, Mourant paid a sec-
ond visit to Laquatra, this time in possession of the spread
sheet (G.C. Exh. 6) demonstrating the forbidden 14 absences
in the 12-month period. Coincidentally, however, before
Mourant later visited Laquatra with the spread sheet, Peter-
son had already faxed Penman’s medical examination records
to Respondent and Respondent had received those records on
October 13, a full day before Mourant visited Laquatra with
the spread sheet and received permission to terminate Pen-
man.
Dr. Peterson’s records of this October 13 examination
(G.C. Exh. 17), faxed to and received by Respondent on the
same day, demonstrate that the injury occurred on October
9, 1992; that the medical examination took place on October
13; that there was a diagnosis of a right-shoulder strain; a
prescription of the pain medication ‘‘Ansaid’’; a requirement
for a recheck of Penman’s condition on October 20; and per-
mission for a limited return to work (with restrictions), on
October 13. However, accompanying that rough document,
was Peterson’s signed statement that Penman would be avail-
able for work as of October 14, 1992, rather than October
13, 1992.
(d) Mourant admitted that at midnight October 14/15, at
the time he discharged Penman, Penman gave him a copy of
Peterson’s light-duty slip showing light duty permission as of
October 14, 1992 (Tr. 401). Mourant, noted infra, swore that
he had never before seen that slip.
(e) On October 14, when Mourant visited Laquatra, armed
with the spread sheet (G.C. Exh. 6) showing Penman’s ab-
sences, however, he had received the medical records (G.C.
Exh. 17; Tr. 420–422), including the light-duty slip, and he
discussed these medical records with Laquatra well before he
discharged Penman at midnight that night. As will be noted
in particular in the next subparagraph, Mourant’s continuous
self-contradictory testimony makes it difficult to determine
exactly when and to what extent, before the termination, he
and Laquatra discussed the medical evidence supplied by Pe-
terson. Thus, Mourant swore that he did not see the light
duty slip permitting light duty on October 14 until he had
already terminated Penman (Tr. 401–402). He then testified
that he recalled a conversation with Laquatra in Laquatra’s
office in which he discussed with Laquatra the existence of
the medical records (Tr. 417). Mourant then admitted that, as
early as October 13, he possessed not only the single sheet
(G.C. Exh. 9) containing the light duty instruction for Octo-
ber 14, but had Peterson’s October 13 examination report as
well (G.C Exh. 17).
(f) Mourant’s credibility: While much of the testimony of
Angelo Laquatra, Supervisor White, and Daniel Porembka
was manifestly incredible, the self-contradictions of Machine
Shop Manager Mourant were so widespread as to cause an
otherwise garden variety pretextual defense to be unneces-
sarily confused.
As a preliminary matter, I had to remind this department
supervisor to keep his voice up while testifying and to re-
member that his continued alleged inability to remember
conversations was as much a statement of fact as any other
fact.
His testimony with regard to certain notes he kept of the
telephone conversations with Penman was particularly dis-
865CUSTOM WINDOW EXTRUSIONS
29 Penman, as Laquatra admitted, was following Respondent’s
practice (Tr. 35–37). Respondent’s otherwise admittedly incomplete
call-in log (G.C. Exh. 4) shows that Penman indeed ‘‘called off’’
sick on October 9.
30 With regard to Porembka’s joining Mourant in disbelieving the
extent of Penman’s alleged injury, it might be noted that after
Porembka wrote the glowing evaluation of Penman in July 1992,
they had a severe argument, in the second week of August 1992 (Tr.
598–600) on the work floor, in which Penman threatened to take
Porembka outside and beat him up (Tr. 599–600). Penman was
never disciplined or warned for this conduct. There is no evidence
that he was identified as a union supporter at this August date.
tressing. Penman injured his arm in the early morning hours
of October 9. Mourant testified in direct and cross-examina-
tion that Penman telephoned him in the late afternoon of that
same day, Friday, October 9 (Tr. 299–300, 366–367). On
cross-examination, he testified that he memorialized (G.C.
Exh. 15) the conversation within a couple of hours of that
conversation (Tr. 368). It appears from the face of these al-
leged contemporaneous notes, however, that Mourant actu-
ally dated the conversation as occurring on October 12, 1992
(Monday), the day Penman testified to and not October 9
(Friday). Since October 12 was a Monday, and since the
notes carry the date of October 12, it seemed odd that
Mourant, allegedly within a few hours of the conversation,
would date the alleged, Friday, October 9 conversation as
having occurred on Monday, October 12. He insisted, how-
ever, that he wrote the notes on Friday (October 9) and that
his dating the note October 12 was a mistake (Tr. 369).
It was then brought to his attention that the word ‘‘Fri-
day’’ (next to the ‘‘mistaken’’ October 12) appeared in the
same written line with his date, October 12. Mourant admit-
ted that he had placed the word there (Tr. 369–370). ‘‘Fri-
day,’’ transcribed on an angle different than ‘‘October 12,’’
was not placed on the document when ‘‘October 12’’ was
transcribed. When the above discrepancies were called to his
attention, he was asked whether, in fact, he had drafted the
document on October 12 and thereafter put the word ‘‘Fri-
day’’ next to the words October 12. He testified, in answer,
that he did not ‘‘believe’’ that he had drafted it on October
12 and thereafter put the word Friday next to the incorrect
date (Tr. 369). When I then urged him to ‘‘think the matter
over,’’ he next testified that he did not recall whether he had
done so (placed the word ‘‘Friday’’ into the notes at a time
other than a few hours after the conversation) because ‘‘I
don’t really know back that far’’ (Tr. 369). He then testified
that he was not ‘‘certain’’ whether he actually drafted the
document on October 12 and wrote the word Friday there-
after (Tr. 370). He ultimately testified that he believed that
he had the conversation with Penman on October 9 and did
not think that he wrote in the word Friday after drafting the
document on October 12 (Tr. 370).
Apart from the apparent tampering and inconsistencies ap-
pearing on the face of the document and the vague and in-
consistent testimony explaining them, Mourant’s memo-
randum, which at one time he insisted was drafted by him
by about 6 p.m. on October 9 (Tr. 367–368), ends with the
words: ‘‘he [Penman] called off that night.’’
Penman testified that he telephoned the plant that night,
October 9, at about midnight, and told an employee29 that he
had injured his arm, that he had mentioned this to Dowling
who knew about the injury, and that Penman would not be
to work that night. If, as Mourant testified, he memorialized
(G.C. Exh. 15) this alleged October 9 conversation as early
as 6 p.m., then he must have had a separate conversation
with Penman before Penman spoke to the employee that
night. Penman testified that he spoke only to the employee
of October 9 and that the telephone conversation was near
midnight. If Penman’s testimony is credible, and I have cred-
ited it, Mourant had no such conversation with Penman on
October 9. Rather, as Penman testified and as Mourant’s doc-
ument states in its heading, the first conversation between
Penman and Mourant took place on October 12. Manifestly,
Mourant could not know at 6 p.m. on October 9 that
Mourant had ‘‘called off’’ when Penman did not call off
until midnight on October 9.
I was also not impressed with Mourant’s testimony that he
pulled Penman’s timecards on October 12 or 13 for ‘‘no par-
ticular reason . . . . Just a feeling that he had missed enough
time’’ (Tr. 359). As General Counsel observes (Br., App. A)
there were at least three or four occasions in the period 1990
through 1992 in which Penman had missed more than the re-
quired 12 days to subject himself to termination under Re-
spondent’s ‘‘no fault’’ system. His absences on those occa-
sions resulted in no Respondent reaction. But coincidentally,
in the autumn of 1992, Respondent was conducting antiunion
seminars on October 10 and Laquatra had had his October
7, 1992 ‘‘off the record’’ conversation with Penman in which
he was surprised at Penman’s support for the Union. In short,
Mourant pulled Penman’s cards only after first visiting
Laquatra to get the ‘‘go ahead’’ on discovering whether Pen-
man had sufficient unexcused absences to qualify him for
discharge. Insofar as Morount had ‘‘no particular reason’’ I
believe he had a particular reason: Penman’s union support
and activities.
I was also not impressed with Morant’s repeated failure to
recall his conversation on October 14 with Vice President
Laquatra concerning the effect of Peterson’s medical advice
that excused Penman from anything but light duty to com-
mence no earlier than October 14. Although Mourant admit-
ted that there was such a second conversation with Laquatra,
Mourant retreated continuously into a failure to recall the
substance of this second conversation (Tr. 413 et. seq.). I did
not, and do not, credit his lack of recollection.
(g) Laquatra, Porembka, and Mourant with regard to
the consequences of Doctor Peterson’s recommendation
Laquatra, Porembka, and Mourant testified that they be-
lieved that Penman lied concerning his alleged injury of Oc-
tober 9, 1992. The ultimate reason for the alleged lie was
that Penman had failed, in the 2-hour overlap period (6–8
a.m.) in the morning of October 9, in which Porembka and
Mourant were present on the premises, to inform them of the
injury. Mourant concedes that he saw Supervisor Dowling’s
writeup of the injury on the next day but asserts that Penman
lied because Penman did not tell him of the injury.30
As above noted, Mourant’s testimony varied from the fact
that he had never seen any of Peterson’s reports until after
he had discharged Penman to the fact that his sworn pretrial
statement showed that he had seen them as early as October
13 (Tr. 411–412) and then to a recollection that, indeed, he
had discussed this matter with Vice President Laquatra be-
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore the discharge but could not remember anything of the
conversation (Tr. 413).
Mourant admits that if Penman was injured on October 9
to a sufficient degree permitting him not to work on October
9, 12, and 13, then these days would be subtracted from the
alleged 14 days of unauthorized absence, leaving Penman
with only 11 unexcused days and therefore not subject to ter-
mination under the ‘‘no-fault absence policy’’ (Tr. 415).
Mourant testified, and Respondent’s brief continues to affirm
(R. Br. 22 et. seq.), that Respondent could reasonably con-
clude that Penman suffered no injury and was lying in claim-
ing such an injury because of his failure to inform Mourant.
Respondent points to Dr. Peterson’s report of October 13
(R. Exh. 6) as demonstrating a lack of objective medical
findings on which to base a conclusion of injury (R. Br. 23).
Unfortunately for Respondent’s argument, Respondent had
never seen this document (Jt. Exh. 9) dated October 14,
1992, until after it had discharged Penman (Tr. 468). More-
over, even if Respondent had had this document in its pos-
session, the actual diagnosis appearing in that document
(which Respondent’s brief fails to cite or mention) is
‘‘strained right shoulder.’’ This conclusion repeats Peterson’s
assertion which Respondent did have in its possession prior
to the time it discharged Penman: for Respondent did have
Dr. Peterson’s faxed consultant report form (G.C. Exh. 17)
a well as his light duty admonition, before it discharged Pen-
man. That document (G.C. Exh. 17) has a diagnosis of
‘‘right shoulder strain.’’ This is the same diagnosis as that
which appears in Joint Exhibit 9 (dated October 14, 1992)
which Respondent did not have in its possession when it dis-
charged Penman. The crucial point, of course, is that prior
to the discharge, Respondent had Dr. Peterson’s conclusion.
It had no knowledge, on midnight of October 14/15, of the
physical or laboratory findings on which that conclusion rest-
ed. Respondent did not know of the basis of Peterson’s con-
clusion and particularly whether objective medical evidence
supported it.
In short, therefore, Respondent’s defense is that it was
privileged to disbelieve the diagnosis of a specialist ortho-
pedist, whom it specifically recommended to Penman, and
whose name was posted by Respondent as the specialist to
whom its employees should report in case of injury (R. Exh.
18; Tr. 621–622). Respondent’s Wright Line defense, which
effectively imposes an affirmative obligation to convince the
trier of fact that the legitimate motive for the discharge ex-
isted and was sufficiently compelling, NLRB v. Horizon Air
Services, 761 F.2d 22 (1st Cir. 1985), requires that that bur-
den be supported by a preponderance of the credible evi-
dence, Merillat Industries, 307 NLRB 1301 (1992). In and
of itself, Respondent’s position, rejecting the conclusion,
after physical examination, of its own orthopedic specialist,
is not credible, much less preponderantly compelling, in the
presence of a prima facie case. To reject the postexamination
diagnosis of one’s own medical specialist requires some rea-
sonable support, apart from merely doubting his findings,
and substituting Mourant’s and Laquatra’s intuition for the
experience and judgment of an orthopedic specialist.
And what is the basis for Respondent’s intuitive refusal to
accept the conclusions and diagnosis of its own orthopedic
specialist? It is the testimony of Mourant, Laquatra, and
Porembka: that although Penman timely and correctly noti-
fied his shift supervisor of the injury, he did not mention it
to Porembka or Mourant in the 2-hour overlap period which
they shared on Friday morning, October 9.
What actually prompted Respondent to rely on Mourant’s,
Laquatra’s, and Porembka’s intuitive disbelief in the injury
was its October 13 receipt, after the October 13 decision to
discharge Penman, of Dr. Peterson’s diagnosis and rec-
ommendations (G.C. Exh. 17). It was the October 14 con-
versation between Mourant (whose recollection was vacant
on this matter) and Laquatra, with Mourant and Laquatra in
possession of Dr. Peterson’s October 13 fax, which prompted
the necessity for an immediate, contrived, and false defense:
to disbelieve Dr. Peterson’s diagnosis. This conclusion is
based in part on Mourant’s own record of his conversation
with Penman (G.C. Exh. 15) which follows.
Regardless of Mourant’s variable testimony concerning
when his conversation with Penman occurred—whether it
was October 9 or 12—there is no question that Penman com-
plained of having injured his shoulder and Mourant re-
sponded by blaming Penman for his own injury (G.C. Exh.
15): ‘‘if he had followed proper procedures for loosening
bolts and used a pipe for leverage his shoulder would be
fine. . . . I told him to get some help putting tooling on the
line if he needed it . . . [when he said he would be in that
night] he asked would it be okay to take Darvocet to ease
the pain? and I said no because of Company liability!’’ (G.C.
Exh. 15.) If Mourant had any question, whether on October
9 or even October 12, of the bona fides of Penman’s injury,
he might reasonably have inquired of Penman, in that con-
versation, and recorded in his alleged contemporaneous notes
(G.C. Exh. 15), not whether Penman was faking, but simply
why Penman had not reported the injury to him, or to
Porembka, while they shared the overlap of 2 hours (6 to 8
a.m.) on the Friday morning shift (8 a.m. to 4 p.m.). There
is no suggestion even in Mourant’s testimony that he made
such an inquiry to Penman in the phone conversation and,
of course, he failed to record any such inquiry in his alleged
contemporaneous notes (G.C. Exh. 15)
If Penman’s failure to notify Mourant (and Porembka) of
the injury was the dispositive basis for their doubt of his
bona fides, it was certainly unnecessary for either of them
to mention this doubt to Penman before he left work early
Friday morning without notifying them. Rather, in Penman’s
subsequent phone call to Mourant, 10 or more hours later (if
Mourant’s notes were recorded on October 9) or 72 hours
later (if recorded on October 12), Mourant might be expected
to have inquired merely why Penman failed to notify either
of them of the injury notwithstanding that he properly and
adequately notified Supervisor Dowling. Again Mourant’s
notes of the phone conversation contain no hint of such a
question; nor did Mourant testify that he asked Penman why
he did not notify him before leaving.
All the above demonstrates that the false reason of ‘‘fail-
ure-to-notify’’ Mourant was contrived sometime after Octo-
ber 12 (which is the date on which I have found Mourant
to have recorded G.C. Exh. 15) and indeed was contrived
after October 13 receipt of Peterson’s medical diagnosis. It
was contrived on October 14 in order to proceed with the de-
termination of the day before (October 13) to discharge Pen-
man in the face of the later receipt of Dr. Peterson’s medical
diagnosis and recommendation.
Contemporaneously, Respondent had offered to promote
Penman to the position of assistant production manager.
867CUSTOM WINDOW EXTRUSIONS
31 Respondent’s proof with regard to its treatment of former Pro-
duction Manager Jim Bentley is irrelevant. While it is true that Bent-
ley, a supervisor, was equally subject to Respondent’s ‘‘no fault’’
absentee policy, as were its employees, Respondent’s offer to prove
treatment similar to Penman by its discharge of Bentley was a mis-
fire. The evidence showed that Bentley was not fired pursuant to the
‘‘no fault’’ absentee policy, but, rather, was discharged because he
was unwilling to work an adequate number of hours to fulfill his job
as production manager. Respondent’s introduction of their
irrelevancy further weakened its defense of attempting to show
equal, automatic enforcement of its rule.
While there is no question that Penman’s skills and ability
merit such promotion, overcoming strenuous Porembka ob-
jections, the effect of such a promotion would take Penman
out of the production and maintenance unit. He would no
longer be an employee protected by Section 7 of the Act. He
would then be engaged in prounion activities at his peril
when promoted to such a supervisory position. Whether Re-
spondent’s motive was to bribe him by such a promotion and
cause him thereby to lawfully refrain from such union activi-
ties; or, perhaps, contained a more ominous element, i.e., to
promote him and then discharge him for union activities,
compare NLRB v. Bell Aircraft Corp., 206 F.2d 235, 237 (2d
Cir. 1953): ‘‘The Act protected him so long as he held a
nonsupervisory position, and it is immaterial that the protec-
tion thereby afforded was calculated to enable him to obtain
a position in which he would no longer be protected’’), the
effect, in any case, is a promotion offered to an outstanding
employee. This October 2 contemporaneous offer of pro-
motion, with full knowledge of and in spite of Penman’s
dangerous attendance record, is simply not consistent with
discharging him on October 14 under the no-fault plan. If
anything, it is evidence of President Felt’s implied condona-
tion of Penman’s attendance record through the end of Sep-
tember 1992.
In sum, the sole basis for concluding that Penman had vio-
lated the ‘‘no-fault’’ absentee policy, was the 3 days of ab-
sence due to an alleged shoulder injury which brought him
from a permitted 11 days of absence in the 12-month period
to a prohibited 14 days of absence. Those 3 days, in turn,
rest solely on Respondent’s disbelief of its own orthopedic
specialist’s evaluation and diagnosis. The alleged sole basis
for Respondent’s disbelieving its own medical specialist is
Penman’s failure to report that injury to either Mourant or
Porembka in the 2-hour overlap period. Notwithstanding that
Penman lawfully and accurately advised his shift supervisor
(Chuck Dowling) of that injury at the time of its occurrence
on October 9, Mourant, who recommended the discharge for
Penman’s violating the ‘‘no fault’’ absentee policy, never
mentioned it to Penman when he had the full opportunity to
do so in his October 9 or 12 phone call from Penman. Nor
did he later record Penman’s failure in his record of the con-
versation. Rather, the evidence, so far as it is available and
reconstructible, demonstrates that Respondent falsely con-
trived this defense after it had determined to terminate Pen-
man on October 13 but then received Dr. Peterson’s faxed
medical diagnosis. This diagnosis, tending to support the
bona fides of Penman’s alleged injury, would prevent Re-
spondent from adding Penman’s 3 days’ absence (October 9,
12, and 13) to the existing 11 days of absence, bringing him
into an area forbidden by the ‘‘no-fault’’ absentee policy.
Thus, to rid itself of the inconvenient medical evidence, there
arose the necessity to concoct the defense of disbelieving Pe-
terson’s diagnosis and the bona fides of the injury.
While, as Respondent observes, Penman’s testimony is not
a model of credibility or veracity, I accepted much of it not
only because of the probability that it was reasonably direct
and truthful, but because of the uninterupted demonstrations
of Respondent’s witnesses’ lack of veracity in dealing with
the same subject matter. This lack of veracity flowed, in my
opinion, principally from their contradicting otherwise cred-
ible, independent witnesses with regard to their commission
of unfair labor practices in violation of Section 8(a)(1) of the
Act; from Mourant’s dazzling performance on the witness
stand and his failure to exaplain away the inconsistencies of
his alleged contemporanious notes (G.C. Exh. 15); from
Laquatra’s and White’s incredibility and the clear strength of
General Counsel’s prima facie case. In no event can Re-
spondent be said to have demonstrated its defense on the
basis of preponderant credible evidence. Especially in view
of Respondent’s repeated failure to apply its own ‘‘no fault’’
absentee rule to Penman’s past absences in the period 1990–
1992 and its admitted failure to provide him with timely
warnings under the same handbook rule, I find it unneces-
sary, on this record, to inquire into General Counsel’s proof
with regard to Respondent’s disparate treatment of Penman
compared to its other employees.31
If Respondent’s defense is that the ‘‘no fault’’ rule was
automatic in its application, then the defense is rejected as
unproven: (a) the supervisors, including Laquatra and
Mourant, had discretion in determining whether the absences
should be excused (as Laquatra admitted); (b) the rule was
not applied to Penman on the several occasions in which his
absences exceeded 12 days in 12 months in the period 1990–
1992 (G.C. Br., App. A); and (c) Laquatra failed to save his
drinking buddy, in spite of any other supervisor’s rec-
ommendation, on the ground of treating all employees ‘‘fair-
ly.’’ In any event, the defense is purely pretextual since the
addition of the 3 days of absence was based on Mourant’s
belief that the injury was faked because not reported to him,
in the overlap period. This belief, rejecting the medical con-
clusion of Respondent’s own specialist, was invented in
order to explain rejection of Dr. Peterson’s medical conclu-
sion. Mourant allegedly held this belief in the face of Pen-
man properly and timely reporting the injury pursuant to Re-
spondent’s rules and, most important, Mourant’s failure to
mention this allegedly dispositive Penman oversight either to
Penman, or in his ‘‘contemporaneous’’ notes regarding this
very injury, recorded on October 12, long after Penman’s
oversight. If Penman’s failure to report was so important,
Mourant would have mentioned it to Penman or in his
record. (I am not suggesting that either Mourant or Porembka
should have mentioned to Penman their doubts as to the bona
fides of the injury.)
When these facts are placed alongside Respondent’s un-
convincing lateness and absentee record system, the admitted
failure to enforce its own rules and particularly to timely
warn Penman, the heaping of untimely warnings on him at
the moment of his discharge, the unique creation of the
spread sheet to discover his total absences, the intuitive re-
jection of Dr. Peterson’s conclusion, Mourant approaching
Laquatra merely when he suspected that Penman was getting
‘‘close’’ (to the prohibited 12 absences) and the unique, mid-
night appearance of the entire supervisory hierarchy at Pen-
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 In view of my conclusions that Laquatra, on October 7, 1992,
in his conversation with Penman, unlawfully solicited employee
complaints and grievances and implied a promise to meet those com-
plaints and grievances in order to thwart employees’ support for the
Union, I need not determine whether the posted notice of October
20 reached the same result.
man’s October 14 discharge while his light work was waiting
for him, the ‘‘no-fault’’ defense loses its probity.
In the end, Laquatra failed to use his undoubted power to
save his old drinking buddy—a superlatively skilled, de-
voted, and reliable employee—in order to treat all the em-
ployees ‘‘fairly.’’ He acted ‘‘fairly’’ toward his old friend by
overruling the diagnosis of Respondent’s own orthopedic
specialist and dispositively crediting Mourant’s wholly con-
trived suspicion that Penman faked the injury because it was
reported only to Supervisor Dowling and not to him. This
defense is not credible. I need not and do not make any find-
ing regarding the nature and extent of Penman’s arm injury.
I find only that Respondent’s rejection of the medical evi-
dence is false and wholly pretextual.
The preponderant credible evidence of motive is else-
where; I find that the Consel for the General Counsel has
proved her case. Instead of showing gratitude for his training
and advancement (including the offer of supervisory pro-
motion which would have halted his union activities), Pen-
man supported the Union. Respondent’s retaliation, perhaps
understandable, is unlawful.
3. Violation of Section 8(a)(1)
The ‘‘futility’’ of employees engaging in union activity:
Lastly, the General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act by informing its employees that
it would be futile for them to select the Union as their bar-
gaining representative.
The exclusive basis for the General Counsel’s allegation of
unlawfully advising employees of the futility in their select-
ing a union is Joint Exhibits 4 and 5. Respondent concedes
that these documents admittedly contained strong statements
of Respondent’s opinion that employees choosing the Union
would be a mistake (R. Br. 36). On October 14, 1992, the
day on which it unlawfully terminated Penman, it sent a let-
ter (Jt. Exh. 4) to all its employees in which, attempting to
contradict alleged union prapaganda and mistatements, it stat-
ed:
THE TRUTH IS AS FOLLOWS:
FACT: Only the Company can raise wages. All the
union can do is call a strike in an attempt to force the
Company to do something.
Further ‘‘facts’’ asserted by the Company include (1)
by striking, the union is gambling with its members’ fu-
ture, hoping that it can shut off shipments to the em-
ployees’ customers to gain leverage in a negotiation;
(2) [Respondent] is unique in that it is a member of the
Rooyal [sic] Plastic Group. If our production is inter-
rupted in Delmount, our customers can easily be sup-
plied from other plants, both in the United States and
Canada. And (3) once negotiations starts, all things are
negotiable and wages and benefits can and often do go
down because the union ‘‘trades and benefits’’ can and
often do go down because the union ‘‘trades them’’ for
other things like a union security or dues check-off pro-
vision.
The General Counsel urges that this message implies to em-
ployees that union representation is futile as the Union can-
not improve employees’ wages except by striking (G.C. Br.
27). Respondent defends (R. Br. 36–37) on the ground that
nowhere does this document, or its sister document of Octo-
ber 20, state that a strike would be inevitable.
These facts, however, appear to come within the decision
in Seville Flexpack Corp., 288 NLRB 518, 534–535 (1988).
In that case, there had been a reference to bargaining in good
faith in a prior employer statement. In the statement alleged
to be a violation, however, the employer said that the union,
which had not presented any demands, would have to strike
to be heard. This statement, in conjunction with the employ-
er’s assertion that only it could raise wages, implied that the
union would either have to agree to Respondent’s offer or to
strike. This amounted to a statement of employer intran-
sigence. Rather than economic necessity or the give and take
of negotiations, the employer alone would determine the
raise in wages, if any, thus rendering it useless to support the
union. See NLRB v. Gissel Packing Co., 395 U.S. 575, 619
(1969); E. I. Dupont & Co., 263 NLRB 159, 165–166
(1982).
In the instant case, Respondent similarly said that ‘‘only
the Company can raise wages, all the union can do is call
a strike in an attempt to force the Company to do some-
thing.’’ As in Seville Flexpack Corp., supra, such a statement
of futility may be found since, in Seville Flexpack Corp., the
employer said that the union can make all the demands it
wants, but the employer does not have to agree to a thing.
The employer alone would determine wages. In the instant
case, Respondent said the same thing. The charging party’s
sole available response, according to Respondent, is not bar-
gaining, but a strike.
On these facts, Respondent violated Section 8(a)(1) of the
Act by informing its employees it would be futile to select
the Union as their bargaining representative.32
Respondent’s defense that it nowhere stated that a strike
would be inevitable is not controlling in the face of Respond-
ent’s statement itself that: ‘‘all the union can do is call a
strike in an attempt to force the Company to do something.’’
CONCLUSIONS OF LAW
1. Custom Window Extrusions, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. United Electrical, Radio and Machine Workers of
America (UE) (the Union) has been and is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, by and through its supervisors, in the pe-
riod September and October 1992, coercively interrogated its
employees regarding their union membership, activities, and
sympathies and the union membership, activities, and sym-
pathies of their fellow employees in violation of Section
8(a)(1) of the Act.
4. Respondent, in September and October 1992, by its su-
pervisors Robert White and Angelo Laquatra, in violation of
Section 8(a)(1) of the Act, threatened its employees with the
closing of Respondent’s facility if they supported the Union.
869CUSTOM WINDOW EXTRUSIONS
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
34 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
5. Respondent, by its Supervisor Angelo Laquatra, on or
about October 7, 1992, solicited employee complaints and
grievances, impliedly promised both increased benefits and
improved terms and conditions of employment in order to
thwart the employees’ support for and sympathy with the
Union, all in violation of Section 8(a)(1) of the Act.
6. Respondent, by its President Ernest Felt, in his letter to
employees of October 14, 1992, informed its employees that
it would be futile for them to select the Union as their bar-
gaining representative in violation of Section 8(a)(1) of the
Act.
7. On or about October 7, by Supervisor Angelo Laquatra,
Respondent informed its employees that unionization would
have a detrimental result with respect to the employees’
terms and conditions of employment thereby violating Sec-
tion 8(a)(1) of the Act.
8. On or about October 14, 1992, Respondent, by its ma-
chine shop manager, Mourant, its vice president Laquatra, its
production manager Porembka, and its supervisor, Leonard
Feather, unlawfully discplined and on the same date unlaw-
fully discharged its employee, Robert Penman, because he
engaged in union activities and in order to discourage him,
and other employees, from engaging in such activities there-
by unlawfully discriminating against him, and them, in viola-
tion of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
I recommend to the Board that it order the Respondent to
cease and desist therefrom and to take certain affirmative ac-
tion to effectuate the policies of the Act. In addition to post-
ing notices which prohibit repetition of Respondent’s viola-
tion of Section 8(a)(1) and (3) of the Act, I shall recommend
that Respondent make Robert Penman whole for any loss of
earnings and benefits he may have sustained by virtue of Re-
spondent’s unlawful discharge of October 14, 1992, to be
computed in the manner established by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended33
ORDER
The Respondent, Custom Window Extrusions, Inc.,
Delmont, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, disciplining, or otherwise discriminating
against employees in order to discourage them from joining
or supporting United Electrical, Radio and Machine Workers
of America (UE) or any other labor organization.
(b) Coercively interrogating its employees regarding their
union membership, activities, and sympathies and the union
membership, activities, and sympathies of their fellow em-
ployees.
(c) Threatening its employees with closure of the plant if
they supported the Union; soliciting employee complaints
and grievances and impliedly promising to rectify them by
improving benefits, terms, and conditions of employment;
threatening employees with nonspecfic threats of reprisals if
the Union came in; and informing them of the futility of
their selecting the Union, or any other labor organization, as
their collective-bargaining representative.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Robert Penman immediate and full reinstate-
ment to his former position of employment at the Delmont,
Pennsylvania location, or if that position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority and other rights and privileges previously enjoyed,
and make him whole, with interest, for any loss of earnings
and benefits he may have suffered as a result of Respond-
ent’s October 14, 1992 unlawful discharge all as set forth in
the remedy section of this decision.
(b) Expunge and remove from its file any memoranda,
records, or other references to any oral or written warnings
or discharge of Robert Penman commencing September 1992
and ending October 14, 1992, and notify him, in writing, that
this has been done and that these disciplinary actions will not
be used against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents, for examination or copying all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its faciities located in Delmont, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’34 Copies
of the notice on forms provided by the Regional Director for
Region 6, after being signed by Respondent’s authorized rep-
resentative, shall be posted by Respondent immediately on
receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, 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 Respondent has
taken to comply.