Daco Industries of Mississippi, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1973

207 N.L.R.B. 968 (N.L.R.B. 1973)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daco Industries of Mississippi , Inc. and International
Association of Machinists & Aerospace Workers,
AFL-CIO. Cases 15-CA-4596 and 15-CA-4620
December 17, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PANELLO
On February 28, 1973, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and finds merit in certain of the General Counsel's
exceptions. Accordingly, the Board has decided to
affirm the rulings, findings, and conclusions' of the
Administrative Law Judge to the extent they are
consistent herewith and to adopt his recommended
Order as modified herein.
The complaint alleges, inter alia, that the Respon-
dent discharged employee Rose because of his union
activities in violation of Section 8(a)(1) and (3) of the
Act. The Administrative Law Judge found that
Rose's discharge was for cause and thus not violative
of the Act.
The facts surrounding Rose's discharge can be
summarized as follows: Respondent is engaged in
metal fabrication at its Biloxi, Mississippi, plant. On
May 22, 1972,2 Rose was hired as quality control
inspector and remained in that job until his discharge
on July 20. In June or July, Rose and Bremenkamp,
another quality control inspector, contacted the
Teamsters to assist them in organizing Respondent's
plant employees. On July 14, they left Teamsters
authorization cards in employees' cars in the compa-
ny parking lot. On July 14, upon hearing that some
of the quality control personnel were soliciting cards,
Vice President Stevens instructed General Manager
Shappard and Quality Control Supervisor Sipes to
investigate and to make sure that no solicitation took
place during working hours. The same day Bremen-
kamp and Rose were summoned to the quality
control office and were repeatedly questioned by
Sipes and Shappard for 45 minutes about their union
activities.3 As they had agreed beforehand, both men
denied any involvement in union activities. Shappard
advised that the Company was "not ready for a
union" at its Mississippi plant and that union
organization would not be feasible in Mississippi
because it was a "right-to-work" State.4
Because of the unlawful interrogations, the men
toned down their union activities considerably.
On July 19, the International Association of
Machinists & Aerospace Workers, AFL-CIO (herein
IAM), began a rival organization drive by distribut-
ing IAM literature at the plant gate. Later that day,
Bremenkamp handed Vice President Schollian a
copy of the IAM literature which he had removed
from General Manager Shappard's desk.5
The next morning (July 20) Young, having learned
that Bremenkamp had removed the IAM literature
from Shappard's desk, told Cohen about the matter
and added that Bremenkamp and Rose had "ap-
proached [him] about a union on company time"
and that Rose had asked his permission "to see Young's
painters about organizing," and that he (Young) had
refused to grant Rose permission to do so. (Emphasis
supplied.) Cohen then asked Sipes to bring the
employee who had removed the IAM literature to his
office. Sipes mistakenly summoned Rose. When
Rose denied any knowledge of the matter, Cohen
summoned Bremenkamp. Cohen informed Bremen-
kamp that he had learned of Bremenkamp's unau-
thorized removal of literature, which in Cohen's view
revealed his dishonesty, and he was firing him for
this reason. Cohen told Bremenkamp he was not
discharged because of union activities, but, neverthe-
less, Cohen asserted that he could bring in somebody
who "could connect [Bremenkamp ] with union
activities." Bremenkamp said that was not necessary
since he had already been terminated. As Bremen-
kamp left the office, his supervisor, Sipes (who was
present throughout the interview), told Bremenkamp
that he "should have called a witness" to prove that
he was not "connected" with the Union. The
Administrative Law Judge, noting that Bremenkamp
had not denied his "connection" with the Union,
found that Respondent's contention that it had
discharged Bremenkamp because he had removed a
"confidential" envelope from Shappard's desk was
pretextual. He, accordingly, concluded that reports
of Bremenkamp's activities with the Union was the
motivating reason for his discharge, which thus
1 General Counsel excepts to the Administrative Law Judge's dismissal
of an 8(axl ) allegation based on President Cohen's interrogation of Walter
Rose on July 20, 1972. We find it unnecessary to pass on the question
whether Cohen's remarks to Rose on that date amounted to coercive
interrogation, as a finding on the matter would only be cumulative to the
Administrative Law Judge's finding of 8(a)(1) interrogation on July 14,
which we are adopting herein.
2 The events herein occurred in 1972.
3 The Administrative Law Judge found that this was unlawful interroga-
tion. The Respondent does not except to this finding.
4 Shappard reported the results of the interrogations to Stevens, who in
turn recounted them to Cohen
5 Bremenkamp had learned about this literature from Paint Supervisor
Young, who had placed it on Shappard's desk for his information.
207 NLRB No. 144
DACO INDUSTRIES OF MISSISSIPPI , INC. 969
violated Section 8(a)(3). The Respondent does not
except to this finding.
Cohen subsequently received reports that Rose had
been telling employees that Bremenkamp had been
discharged for union activities. Cohen called a
meeting of the employees and informed them that
Bremenkamp had been terminated for removing a
letter from Shappard's desk without authorization.
Cohen asked why they were interested in a union and
what the difficulties were. When one outspoken
employee (Tobias) complained about the equipment
and indicated his distaste for working conditions,
Cohen fired him on the Spot .6 Employee Lange
called attention to the "poor" morale of employees.
Cohen disputed this assertion at the time and later
discharged Lange on August 10. Employee Mickel
also complained about the condition of the ma-
chines. He, too, was discharged on August 10.7
Cohen summoned Rose to his office and asked
why he had told the employees that Bremenkamp
was fired for union activity. Rose denied having
done so and disclaimed any involvement in union
activity. Cohen asserted that Rose "was going
throughout the plant soliciting for a union"-activity
that he would not tolerate if done on company time.
Rose replied that it was Paint Department Supervisor
Young and not he (Rose) who was involved. Young
was then summoned to the office where he denied
Rose's allegation. When Rose said he could prove
that Young was involved through employee Smith,
Cohen summoned Smith. Smith denied Rose's
assertion. Cohen accused Rose of lying to him and
offered him the opportunity "to tell the truth" or else
be fired. When Rose insisted it was Young and not
he behind the union activity, Cohen discharged him,
assertedly for lying.
The Administrative Law Judge found that al-
though the General Counsel had established an
unrebutted prima facie case for finding an 8(a)(3)
violation as to Bremenkamp, Rose, Lange, and
Mickel, the Respondent had rebutted the General
Counsel's case as to Rose under the circumstances
described above. We disagree.
Contrary to our dissenting colleague, we find for
the reasons set forth below that the record requires a
finding that the asserted cause for Rose's discharge
was pretextual. Rose and Bremenkamp were equally
active in bringing in the Teamsters and their
common activities were met with unlawful interroga-
tions and confrontations creating the impression of
management surveillance of their union activities.8
6 Tobias was not encompassed in the charge. Therefore, the unlawfulness
of his discharge was not litigated in the instant case
T The Administrative Law Judge found that, in violation of Sec. 8(a)(3),
Lange and Mickel were discharged because of their activities on behalf of
the IAM, including attendance at a meeting of that Union on August 9 The
Respondent does not except to these findings.
The Administrative Law Judge found that Bremen-
kamp was discharged as the result of his union
connections. We find unpersuasive the Administra-
tive Law Judge's conclusion that Rose was not
discharged for the same union connections. When
Rose was summarily called to Cohen's office, the
discharge of Bremenkamp had to be fresh in his
mind as it had only occurred a few short hours
before. Upon arriving in the office, Rose immediate-
ly was accused by Cohen of spreading a "false"
rumor about the circumstances leading to Bremen-
kamp's dismissal . Closely following that Rose was
confronted by Cohen with being a union activist. In
such circumstances, Rose's effort to conceal his
union activities by trying to shift the spotlight to
someone else was certainly understandable. For,
Rose was well aware of the precarious position he
had been placed in by Cohen, in view of the graphic
example Respondent had set in the case of Bremen-
kamp, and in light of the extensive interrogation
concerning his union activities Rose himself had
undergone only a week before. These facts clearly
would give any employee cause to fear that he would
receive the same fate as Bremenkamp if he admitted
his union sympathies and acknowledged responsibili-
ty for spreading the truth about Bremenkamp's
termination.
It was in this context that Rose insisted that none
of what Cohen said was true. But in this context,
having forced Rose into making a reply by question-
ing which, if not unlawful, at best trod a very thin
line,9 Cohen could not complain because Rose did
not respond truthfully. And, contrary to our dissent-
ing colleague, it is clear that Rose, although he may
have lied about Young's involvement in union
activity, did not seek to implicate Young through
malice or any desire to sow dissension in manage-
ment. Nor was Respondent misled in any way.
Rose's fabrication was so transparent and unbelieva-
ble to all concerned that Respondent could not have
taken it seriously, and Cohen must have called
Young to the meeting knowing full well that he
would deny the assertion. Thus, the evidence
establishes that before the discharge interview
occurred, Cohen knew of Rose's union involvement
through Young, who had told him not only that both
Bremenkamp and Rose were "involved" but also that
Rose had requested Young's permission to see the
painters about organizing. Under all the circum-
stances we are compelled to conclude that, contrary
to the Administrative Law Judge's view, the Respon-
8 We do not find unlawful surveillance herein in the absence of
exceptions by the General Counsel to the Administrative Law Judge's
failure so to find.
9 See Roane Hosiery, Inc, 169 NLRB 1006, where an employer's warning
to an employee not to spread "rumors" concerning the union was held to
violate Sec . 8(a)(1).
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent did not rebut the prima facie case which, as
found by the Administrative Law Judge, had been
established by the General Counsel. Rather, we are
persuaded that Respondent seized on this unfortu-
nate act of Rose, as it had on the letter incident with
Bremenkamp, as a pretext to rid itself of a known
union adherent. Accordingly, we find that Rose was
discharged for his union activities, and that Respon-
dent thereby violated Section 8(a)(3) and (1) of the
Act.10
CONCLUSIONS OF LAW
Consistent with our findings herein, we shall
substitute the following for the Administrative Law
Judge's Conclusions of Law 2 and 4, while adopting
his Conclusions of Law 1 and 3.
"2. By discharging Glenn S. Bremenkamp, Wal-
ter Rose, Stuart A. Lange, and Thomas R. Mickel,
and thereafter failing or refusing to reinstate them, in
order to discourage union activities, Respondent has
discriminated in regard to hire and tenure of their
employment, in violation of Section 8(a)(3) and (1) of
the Act.
"4. It has not been established that Respondent
has violated Section 8(a)(1) of the Act by creating the
impression of surveillance of union activities."
THE REMEDY
Having found that Respondent has engaged in
certain additional unfair labor practices, we shall
order that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate
the purposes and policies of the Act, in addition to
that already set forth in the remedy section of the
Administrative Law Judge's Decision.
In addition to -adoption' of the Administrative Law
Judge's recommended remedy in all other respects,
we shall order Respondent to offer Walter Rose
immediate and full reinstatement to his former job
or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by
reason of the discrimination against him in the
manner set forth in the section of the Administrative
Law Judge's Decision entitled "The Remedy."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Daco Industries of Mississippi, Inc., Biloxi, Missis-
sippi, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following paragraph for para-
graph 2(a):
"(a) Offer Glenn S. Bremenkamp, Walter Rose,
Stuart A. Lange, and Thomas R. Mickel immediate
and full reinstatement to their jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
pay they may have suffered as a result of their
discharge in the manner set forth in this Decision,
with interest thereon at 6 percent per annum."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MILLER, dissenting in part:
I dissent from my colleagues' reversal of the
Administrative Law Judge's conclusion with respect
to employee Rose.
At the outset of the meeting that led to Rose's
discharge, President Cohen had matter of factly
informed him that he was aware of the latter's
prounion efforts. Rather than making a simple
denial, Rose falsely implicated another, Supervisor
Young. Certainly Rose must have known that Cohen
would have reacted strongly to a statement that one
of his supervisors had, engaged in union activities to
which Respondent was demonstrably hostile. As
found by the Administrative Law Judge, such an
accusation sought to sow dissension in the manageri-
al hierarchy.
In my view, Rose's discharge was brought on by his
own misconduct in continuing to bear false witness
against Young after being clearly warned to desist
from such untruths or else face discharge. When
Rose ignored that admonition and reasserted the lie
about Young's union involvement, he was discharged
because, according to Cohen's testimony, credited by
the Administrative Law Judge, he would not put up
with such falsehoods and Rose's efforts thereby to
jeopardize the employment of another." Like the
Administrative Law Judge, I am unable to attribute
Rose's discharge to his own union activities, rather
than to his conduct with respect to Supervisor
Young.
I would affirm the Decision of the Administrative
Law Judge in its entirety.
10 In so finding we do not condone Rose's trying falsely to place the
blame for the presence of a union on Young.
11 Cohen's concern was obvious. As the majority points out, Young was
summoned to the office and denied Rose's allegations. When Rose said he
could prove Young's involvement through employee Smith, Cohen
summoned Smith; Smith also denied Rose's assertion.
DACO INDUSTRIES OF MISSISSIPPI , INC. 971
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before an Administrative Law Judge, at
which all sides had the chance to give evidence, it has
been decided that we,. Daco Industries of Mississippi,
Inc., have violated the National Labor Relations Act,
and we have been ordered to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
organization, to form, join, or help unions, and to
bargain collectively through a representative of
your own choosing.
Accordingly, we give you these assurances:`
WE WILL NOT coercively question you concern-
ing your union sympathies and activities.
WE WILL NOT fire or take any reprisal against
any of you because you have joined or supported,
support, or will support, a labor organization of
your choice, including International Association
of Machinists & Aerospace Workers, AFL-CIO.
WE WILL offer Glenn S. Bremenkamp, Walter
Rose, Stuart A. Lange, and Thomas R. Mickel
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs, with full seniority and all
other rights and privileges, since they were found
to have been discharged by us violation of the
National Labor Relations Act.
WE WILL also make up all pay lost by the
above-named employees, with interest.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection or refrain from engaging in such
activities.
DACO INDUSTRIES OF
MISSISSIPPI, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Plaza Tower, Suite 2700, 1001
Howard Avenue, New Orleans, Louisiana 70113,
Telephone 504-527-6361.
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This
case was 'tried before me in Biloxi, Mississippi, on
December 19 and 20, pursuant to a charge and amended
charge filed on August 3 and 28, and complaint issued on
October 12, 1972.1 The complaint alleges that Respondent
(herein sometimes called the Company) violated Section
8(a)(1) and (3) of the National Labor Relations Act
through interference, restraint, and coercion (including
interrogation and creating impression of surveillance) and
by discharging and refusing to reinstate four employees
because of their protected concerted and union activities.
All parties appeared at the trial and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Briefs were
filed by General Counsel and Respondent by January 29,
1973. Upon the entire record,2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION
INVOLVED
Respondent, a Biloxi corporation with office and place
of business in Biloxi, Mississippi, is engaged in metal
fabrication work oriented toward the marine industry. It
annually purchases and receives from sellers in other States
materials and supplies valued in excess of $50,000. I find
that at all material times Respondent has been and is an
employer engaged in commerce within the meaning of the
Act.
Charging Party (IAM) is a ,labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background; employees Rose and Bremenkamp
attempt to organize the plant
Respondent, a subsidiary of Daco Industries, Inc.,
located near San Diego, California, commenced operations
in Biloxi, Mississippi, in September 1970, and employed
about 200 employees during the period here involved.
David Cohen is president and Chris Stevens is executive
vice president of both companies. Cohen spends two-thirds
of his time at the Mississippi plant; Stevens all but a small
portion of his time at the California plant. John Shappard
1 Dates are 1972 throughout unless otherwise stated.
2 Transcript corrected by my order on notice dated February 13, 1973
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was general manager at Biloxi during the times material
here. Among other managerial officials involved in this
proceeding were Larry Schollian (vice president for
production and construction), Woody Sipes (quality
control inspection supervisor), Douglas Young (door shop
supervisor), and Eugene Young (paint supervisor).
While the California plant, in existence for many years,
is unionized, the newer one in Mississippi is not. In the past
year and a half, at least three unions, including Charging
Party, have attempted to organize the Mississippi plant. In
June or July 1972, two of Respondent's recently hired door
shop quality control inspectors (Bremenkamp and Rose) 3
decided to contact the Teamsters to assist them in
organizing the plant. Seeking to sound out the employees'
interest in unionization, the two talked to employees before
and after working hours, during the lunch hour, and
occasionally "during periods of low rate activity in the
plant." Encouraged by the employees' interest, Bremen-
kamp and Rose decided to distribute the first Teamsters
authorization cards on July 14 by leaving the cards (with
return envelopes) in employees' cars' in the company
parking lot.
2. Two company officials interrogate Bremenkamp
and Rose concerning their union activity
Company Vice President Stevens testified that after it
came to his "attention that . . . some of our quality control
personnel were soliciting to bring a union in the facility,"
he instructed General Manager Shappard and Quality
Control Supervisor Sipes to "find out . . . whether there
was any truth to it" and, if so, "to make sure it wasn't done
during working hours."4 On July 14, the day on which they
intended to distribute union cards, Bremenkamp and Rose
were summoned to the quality control office. Sipes put
some questions concerning the two employees' involve-
ment in union activities and then left to get Shappard to
join him. While awaiting Shappard's arrival, the two men
decided to deny having had anything to do with the
organizational drive in order to avoid placing their jobs in
jeopardy. During the interview Shappard referred to Vice
President Stevens' instruction that he (Shappard) question
the two men concerning their union activities and asked
whether they had been going around holding meetings and
signing up employees. The men assured him that "this was
not the case." Shappard "implied" that as quality control
inspectors they were part of management, indicating that
they "wouldn't belong to the union even" if they
established it at Daco.5 He went on to tell them that "the
Company wasn't antiunion but they felt at this time that
the Company was not ready for a union"; and that
3 Rose was hired on May 22; Bremenkamp on May 31.
4 Admittedly there was no posted company rule on soliciting for any
cause, but, according to Company President Cohen, he had "on many
occasions" advised employees that he "wouldn't tolerate" union solicitation
on company time.
5 Quality control inspectors check the products to make sure that they
meet contract specifications. According to Company President Cohen, they
shoulder considerable responsibility and their work "is really part of the
backbone of our company because the reputation, the work that we receive,
is based on our ability to produce a quality item." It was stipulated that
during the period here involved there were three quality inspectors (Rose
and Bremenkamp in the door shop and Smith in the buoy shop), in addition
to Supervisor Sipes. Although rank-and-file employees, these inspectors
although his California plant was unionized, a union would
not be feasible in Mississippi, a "right to work" State where
"one man could belong to the union and the man next to
him" not-yet both would draw the same pay and benefits.
Supervisor Sipes admitted that the 15 or 20 questions put
to Rose and Bremenkamp included references to distribu-
tion of union cards and organization of the plant; and that
these inquiries were not restricted to the subject of union
activity "on Company time." According to Sipes, after the
employees' "firm denial that they hadn't been involved in
union activities," he was "convinced" that they "weren't
involved."
After the interview-which lasted 45 minutes-Bremen-
kamp and Rose agreed to "tone down" and limit their
union activity to talking with employees they could trust
and only during preworking and lunch hours. They
arranged that instead of themselves, the Teamsters repre-
sentative would distribute the authorization cards "around
the parking lot."
Shappard reported the results of the interview to
Company Vice President Stevens and the latter in turn to
Company President Cohen. Stevens testified that he was
informed that Bremenkamp and Rose "denied the charge
that they were involved in soliciting of the people for the
Union and they [Shappard and Sipes] were convinced that
[the two employees] were in fact not involved in that
endeavor." 6
B. Discharge of Bremenkamp and Rose
1. Glenn Bremenkamp
On July 19, Machinists (IAM), a rival of Teamsters with
which Bremenkamp and Rose had no previous contact,
was distributing envelopes containing campaign material.
As Rose was leaving the plant for home at 3 p.m., some of
the employees asked him if IAM was the union he had
been promoting. Rose said no, but told them "to go ahead
and sign the cards and send them in" so that they later
"could decide which union [they] wanted." Bremenkamp,
who was working late that night, noticed employees
coming in with the yellow IAM envelopes, some of them
explaining that they were being handed out at the plant
gate.
Around 4:15 p.m., as he was going upstairs to the main
office to turn in reports, Bremenkamp met Eugene Young,
the paint department supervisor, heading for the same
office with an IAM envelope in his hand. When Bremen-
kamp asked where he had obtained the envelope, Young
said the guard had given it to him to deliver to General
Manager Shappard and that it was "confidential." In the
were excluded from the unit represented by the Machinists in Respondent's
California plant by agreement of the parties.
6 According to Stevens, the next day (Saturday, July 15), he had a 2-or 3-
minute "discussion" with Bremenkamp and Rose at which he "wanted to
make the point" that management did not oppose union solicitation during
nonworking hours. Stevens was vague as to details of the events and could
not recall the employees' response . Bremenkamp and Rose denied having
such discussion, explaining they seldom worked on, and never together on,
Saturdays since Supervisor Sipes "would distribute the weekends between
the two [quality control inspectors I " I do not credit Stevens' testimony in
this regard. No company records were produced to contradict the
employees' denial that they worked on the Saturday in question.
DACO INDUSTRIES OF MISSISSIPPI , INC. 973
absence of Shappard, Young left the envelope on Shap-
pard's desk and Bremenkamp placed his report on another
desk in the office.
Before leaving the office Bremenkamp noticed Vice
President Schollian seated at a nearby desk and asked him
if he was aware that union material was being distributed.
When Schollian said he was not, Bremenkamp removed
the envelope from Shappard's desk and handed it to
Schollian. Schollian testified that he opened the envelope,
read the three pieces of literature therein (two sheets and a
card), remarked that "this [IAM] was the union that was
trying to organize" the plant previously, and then handed
the envelope back to Bremenkamp after putting back its
contents. He also testified that Young was no longer in the
office at the time, although two girls were; that nothing
was said about where the envelopes came from; that it was
unaddressed and unsealed (the "flap ... tucked inside");
and that he "couldn't hardly see why it was confidential"
since they "were passing it out to everybody." Bremen-
kamp admitted that before removing the envelope from
Shappard's desk, Supervisor Young told him he should not
pick it up because it was meant for Shappard.
The next morning (July 20), Supervisor Eugene Young
went to see Schollian. According to the latter, Young
"seemed a little disturbed and upset" because although
Young was told to keep it "confidential," Bremenkamp
had removed it from Shappard's desk. Schollian then
reported this conversation to Company President Cohen,
who in turn instructed hint to send Young to his office.
Young testified that he told Cohen "the same thing" he
had told Schollian about Bremenkamp's removal of the
letter. He also testified that he told Cohen about Bremen-
kamp and Rose "approaching [him] about a union on
company time" and recounted an incident when Rose had
asked his permission "to see [Young's] painters about
organizing," which Young refused to grant.?
Company President Cohen thereupon requested Sipes,
the quality control supervisor and Bremenkamp's superior,
to bring in Bremenkamp.s At 11 or 11:30 a.m., in Cohen's
office, Cohen informed Bremenkamp that he had learned
of his removal of the envelope from Shappard's desk; that
he had "committed an unauthorized act" which "possibly
could lead to . . . things like going through somebody's
desk or taking other material off other people's desks"; and
that he was firing him because what he did "wasn't an
honest act." Cohen went on to say how he had built up his
company; pointed out that he and his father had dealt with
unions and that the California plant was unionized; and
asserted that he was not being fired for his activities on
behalf of the Union. Bremenkamp admitted that he
7 The described testimony of Bremenkamp, Shappard, and Eugene
Young, as summarized in this section, is credited.
a Cohen testified that Sipes first brought in Quality Control Inspector
Rose in response to his (Colien's) request to fetch one of the inspectors,
without specifically naming the inspector involved; that after questioning
Rose about the incident, the latter claimed that he did not know what
Cohen "was talking about"; that he was thereupon convinced that Sipes
"got the wrong man" and "apologized" to Rose; and that Sipes
subsequently brought in Bremenkamp. It is difficult to understand why and
how Cohen could have made the "mistake" as to identity in view of his
testimony that Eugene Young had shortly before named Bremenkamp as
the alleged culprit. Cohen's testimony in this respect, however, is
corroborated by Sipes, an essentially credible witness; and the substance of
removed the envelope, indicating that it involved only a
union circular and nothing of great importance. In course
of the "general conversation" about unionism, Cohen said
that he could bring up somebody who "could connect
[Bremenkamp] with union activities," but Bremenkamp
answered that he "didn't think that was ... necessary"
since he already was terminated. As Bremenkamp left the
office, Bremenkamp's supervisor, Sipes (who was present
throughout the interview), told Bremenkamp that he
"should have called a witness" to prove that he was not
"connected" with the Union. Sipes testified that he made
this statement because at the time he was "convinced" that
Bremenkamp was not involved with the Union and he
"wanted the man to clear his name." Sipes also offered to
give Bremenkamp a recommendation "anytime" he want-
ed one.9
2. Walter Rose
While going to pick up his paycheck, Bremenkamp met
Rose (the quality control inspector with whom he had
collaborated in seeking to organize the plant) and told him
that although Company President Cohen said that he was
fired for removing the envelope with union literature from
Shappard's desk, he (Bremenkamp) "felt that [he] had been
terminated for Union activity." Rose in turn told the door
shop employees that Bremenkamp was discharged for
attempting to bring in the Union. According to Cohen, he
became "very upset" when Rose's activity came to his
attention and he called a meeting of the door shop
employees to give them his version of the events leading to
Bremenkamp's termination. Cohen told the 20 or 25
employees at the 1 p.m. meeting that Bremenkamp had
been fired for removing a letter from the manager's desk
without authorization and not for union activity; remarked
that in the past management had been able to solve labor-
management problems; insisted that he had no objections
to the employees' joining a union if they wanted one; and
then asked "why the men were interested in belonging to a
union, what the difficulties" were. When one "outspoken"
employee (Tobias) complained against the, equipment he
had to work with, adding that he `just didn't given a s-"
about working under such conditions, Cohen fired him on
the spot. When another (Lange, infra, sec. C) called
attention to the "poor" morale among the men, Cohen
disputed the claim, stating he did not consider him "an
authority on morale of the men." A third (Mickel, infra,
sec. C) complained about the condition of the grinders he
had been working with, but Cohen indicated that it was the
men who were at fault, not the Company.10
At the end of the meeting, Cohen requested Quality
his remarks to Rose is in large part consistent with the latter's recollection of
the incident.
9 The findings in this paragraph are based primarily on the credited
testimony of Bremenkamp, who impressed me as a frank and forthright
witness, and whose testimony is in significant part corroborated by
Respondent's witness Sipes. Cohen's testimony that Bremenkamp first
denied removing the envelope from Shappard's desk and later admitted
doing so only after he summoned Eugene Young to confront Bremenkamp,
is inconsistent with that of Sipes as well as of Bremenkamp . Sipes conceded
that Bremenkamp "readily" admitted removing the envelope and, like
Bremenkamp, he could not recall Young's being called to confront
Bremenkamp.
10 Based upon credited testimony of Lange, Rose, and Cohen.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Control Supervisor Sipes to bring Rose to his office. Cohen
asked Rose why he was trying to make a "martyr" out of
Bremenkamp by "circulating" the story that Bremenkamp
was fired for union activity when he had fired him only
because of the envelope incident. Rose denied having done
so, disclaiming involvement in any union activity. Cohen
answered that he did not summon him to discuss his union
activity, although he had been informed that Rose "was
going throughout the plant soliciting" for a union-activity
he "will not tolerate" if done on company time. Rose
insisted that he had not been "doing any of this" and said
it was Eugene Young, Respondent's paint department
supervisor, who "was the man involved in the Union
activities." Rose stated that Young had even asked him to
secure union cards for the 15 painters in his department
who "were ready to join the Union"; and that Young had
claimed credit for trying to bring in the Machinists (IAM)
into the plant a year earlier. A "little taken aback," Cohen
sent for Young.
When Young entered the office, Cohen said that Rose
had just told him that he (Young) had-been soliciting for
the Union on company time. Young turned to Rose, called
him "a damn liar," and protested to Cohen that Rose had
been bothering his painters "talking to them about union
activity" all hours. Rose accused Young of not telling the
truth, stating that he could prove it through employee
Smith (a quality control inspector in the buoy shop) who,
according to Rose, witnessed and overheard a conversation
2 weeks earlier when Young said he "was sure [Young]
would have 16 men ready to sign Union cards if [Rose]
would get the Union cards for them." Cohen thereupon
sent for Smith who, on being questioned about the
statement Rose attributed to Young, flatly denied hearing
"anything like that."
Cohen then told Rose, "I think you are lying to me. I am
going to give you one final opportunity to tell the truth .. .
because if you are lying to me, I am going to fire you."
When Rose insisted that it was Young and not he who was
behind the union activity, Cohen said that he did not
believe him for two reasons: first, because Young could not
have made the statement that he was responsible for trying
to bring in the Machinists a year ago since Young had not
been employed by the Company at the time of the previous
IAM campaign;11 and, secondly, because it was not likely
that Young would have asked Rose to supply him with
union cards to sign up the painters in view of Rose's claim
that he was in no way involved in union activity. Cohen
said, "I feel you not only lied to me but you tried to
jeopardize other peoples' jobs and that I can't put up
11 In April 1971, the Regional Director dismissed IAM's petition for an
election and in May 1971, the Board denied its request for review. Eugene
Young was employed by Respondent as paint department supervisor in
early 1972.
12 It will be recalled that prior to that date Rose and Bremenkamp had
been campaigning for Teamsters, neither having had any contact with IAM.
Rose testified that after telling the JAM business representative about his
discharge, the latter directed his secretary to send a letter to Respondent
notifying it that Rose was an IAM organizer, "backdating" the letter to the
"day before" (July 19).
13 The above findings concerning the events leading to Rose's discharge
are based mainly on the testimony of Cohen, in part corroborated by
Supervisor Sipes who, as already indicated (supra, fn. 8), was an essentially
credible witness. (Indeed, General Counsel in his brief (p. 15) characterizes
with." Cohen went on to say, "Mr. Rose, I am going to fire
you because I don't believe you and I don't trust you and
because I don't trust you, I can't leave you in a position of
honor and integrity [i.e., quality control inspector] as far as
my products are concerned."
Rose left the office, picked up his check, and later on the
same day contacted IAM, which then hired him as
organizer.12 Before leaving the plant, Supervisor Sipes told
him that he would recommend him for another inspector
position elsewhere if he needed one.13
C. Discharge of Lange and Mickel
1. Their employment and union activity
Stuart A. Lange and Thomas R. Mickel worked under
Douglas Young, Respondent's door shop supervisor,14 and
both were discharged by Young on August 10. Mickel,
hired as a grinder on March 10, was promoted (with a wage
increase) to lead grinder in May. As lead grinder, he was
"in charge" of two or three grinders, assisted them when
they needed help and instruction, and made sure the
grinding was done correctly. Lange, who was hired on May
1, worked at two jobs (assembler and machine operator)
until he was made shipfitter about 4 weeks before his
discharge. As shipfitter (or fitter), he fabricated frames for
doors.
Early in the Teamsters campaign, Rose (then leading
that campaign with Bremenkamp) solicited Lange's sup-
port. Lange indicated that Rose could count on him, but
heard no more about the campaign until July, 19. On that
date Lange asked Rose if he was behind the IAM
distribution, but Rose said "no." Lange nevertheless signed
an IAM card on that date. He in turn asked Mickel
whether he was "interested" in joining IAM. Mickel said
he would because the men "needed a umort at Daco in
order to straighten out the problems."
It will be recalled that at Company President Cohen's
July 19 meeting with the door shop employees, at which
Cohen explained his reasons for discharging Bremenkamp,
Cohen asked the men why they wanted a union and "what
the difficulties" were. Both Lange and Mickel spoke
up-Lange to call attention to the "poor" morale and
Mickel to the poor condition of the grinders. During the
exchange Cohen addressed Lange "in an aggressive
manner," asking what made Lange "an authority" on plant
morale; Lange countered by telling Cohen that he had
asked for opinions and he was only giving his.
A day or two later, Lange again spoke up at a meeting
called by Vice President Schollian. When Schollian
Sipes as Respondent's only "truthful witness.") While Rose claimed that
Eugene Young was in the office at the beginning of the interview, Sipes (and
also Young) supported Cohen's testimony that Young was brought in only
after Rose had accused Young as being behind the organizational drive in
order to enable Young to confront his accuser. Rose admitted accusing
Young of trying to sign up the painters under his supervision, of requesting
cards from him for this purpose, and of quoting Young that he had tried to
organize the plant a year earlier. He also admitted that Smith (who,
according to Rose, could verify the incident) supported Young's rather
Rose's version of the events; and that Cohen ultimately told him he was
being fired for "lying" and not for union activity, indicating that he (Cohen)
"couldn't expect [Rose's ] loyalty" anymore.
14 Not to be confused with Eugene Young, the paint department
supervisor heretofore referred to (sec. B).
DACO INDUSTRIES OF MISSISSIPPI , INC. 975
"implied" that Rose-then already an IAM representative
(supra, fn. 12)-was a "liar" and "not the kind of man .. .
to represent the men," Lange disagreed, telling Schollian
that Rose "wasn't here to defend himself and we are all
getting this information secondhand."
After the- discharge of Rose and Bremenkamp, Lange
and Mickel became the only IAM "promoters" in the
plant. On July 27, Lange obtained authorization cards and
he and Mickel then talked to the men about IAM and
solicited their signatures in the parking lot. Lange signed
up four or five men between July 20 and August 10. Both
urged employees to attend the August 1 and 9 IAM
meetings. As he announced the August 9 meeting to a
group of employees at the start of the lunch hour on that
day, Douglas Young (Lange's and Mickel's supervisor)
said that he, too, intended to be there. When on the next
morning (August 10) Lange and Mickel "kidded" Young
for not attending the meeting, the latter said that he had to
work late.15
2. Lange's termination
Early in the afternoon of the same day (August 10),
Supervisor Young told Lange that one of the frames he had
fabricated was off specifications by one-eighth of an inch.
When Lange said that he would correct it (as he had
previously done others similarly off specifications), Young
inquired how many frames he had produced on that day.
Lange replied that he had built three. Young said he should
be producing more, that the man before him had produced
five a day, and that he would have to let him go.16 The
terminal slip signed by Young-an internal company
document not shown or given to the terminated employ-
ee-states as the reason for the discharge, "work quality
and production not up to Daco standards."
At the hearing, Young assigned several additional
reasons for Lange's dismissal. Thus, he testified that he had
been obliged to speak to Lange about absenteeism, but he
also admitted that this was true "mainly . . . in the first
days [of his employment] in final assembly." He further
testified that he had spoken to him about "standing around
and talking while he was supposed to be working," but
admitted that this "isn't a rare thing" in the plant, that
"most of the men have been informed" similarly, and that
this was really a "minor offense." Finally, he implied that
is According to Young, the whole "episode" was a "joke," and he
"assumed" the ' men took it as such.
is Based on the testimony of Lange who impressed me as a frank and
forthright witness, often testifying against his personal interest. Young
testified that he found two or three frams "out of tolerance," but he could
not tell if all were fabricated on that day. As between Young and Lange, I
prefer to credit the latter whenever their testimony conflicts. Young was a
witness at times given to evasion . He impressed me as an individual who as
a loyal member of the managerial hierarchy felt impelled to conform his
testimony to what, he regarded to be in the best interest of his employer.
17 As previously noted, Lange testified credibly that Young mentioned
only one frame off specifications (one-eighth of an inch). According to
Young, one-sooteerith of an inch off specifications was tolerable and passed
inspection . Young 'testified that, "As I remember , these frames [the alleged
two or three he inspected. before the discharge ] were an 1 /8 or better out of
tolerance."
18 Cripe, a ,generally credible witness still employed by Respondent,
testified that his supervisor Sipes had informed him that one-eighth of an
inch off specifications was tolerable and acceptable. (Sipes, a Company
witness whom I found to be credible, supra, fn. 8, was not called-to rebut
Lange had been transferred from job to job (three in 2
months) because of inability to perform generally, but this
was not supported by credible evidence; moreover, Young
admitted that interplant transfers were common.
As to Lange's rate of production, Young testified that
Lange "went a little bit slow" and that he "wanted a little
bit faster work out of [Lange]." Asked how often he spoke
to Lange about this, Young said, "I couldn't tell you
exactly . . . two or three times possibly." As to improper
production-specifically the two or three frames Young
claimed to have found "out of tolerance" dust before he
fired Lange 17-Young admitted that they could have been
"rectified" (as Lange had claimed). Additionally, Young
indicated that he had often tried "to sneak" by or get
material past quality control inspectors even though the
materials (frames) exceeded allowable deviations from
standards. And Cripe, the quality control inspector who
checked the disputed frames here involved, testified
credibly that he made the inspection in Young's presence
and found them within tolerance. According to Cripe, the
quality of Lange's work "was as good as anyone else's." 18
3. Mickel's termination
At about 3 p.m. on the same day (August 10), Supervisor
Douglas Young informed Mickel that he was being fired
for talking "too long" with Cripe, the quality control
inspector. According to Young, while in the general
manager's office on the mezzanine before the discharge he
could see the two through the office window converse
twice-first for 3 or 4 and then again for 4 or 5
minutes-and it was "at that time" that he made up his
mind to fire Mickel When Mickel protested that he had
been talking about some bent frames that had to be
straightened out, Young said that he was only "bullsh- "
Mickel told Young that he could verify his statement by
checking with, Cripe, but Young insisted that he had to fire
him "anyway" because he had been talking too much.
Pointing to the circumstance that he and Lange had just
"last night" attended a union meeting and that Lange was
fired several hours earlier that day, Mickel suggested that
his discharge was motivated by union activity, but Young
denied this.19 As in the case of. Lange, the terminal slip,
signed by Young, states (in identical language) that he was
discharged because "work quality and production [were]
Cripe). Crape recalled that of the three Lange frames here involved one was
off a sixteenth of an inch and two an eighth . Cripe passed upon frames
produced by Lange and others during the last 2-1/2 weeks of Lange's
employment (ie., July 23-August 19).
19 Based primarily on the credited testimony of Lange who impressed me
as an essentially credible witness . Mickel's testimony as to the discharge
interview is essentially consistent with that of Young. Young testified,
however, that in denying that union activity was a factor in the discharge, he
told Mickel "I don't have any idea who was Union, who was pushing
it...." Yet, Young also admitted hearing Lange urge employees on the
very day before the discharge to attend the meeting scheduled for later that
evening (August 9); he also admitted telling Mickel on the morning
preceding his discharge (August 10) that he could not attend the union
meeting because he had been too busy although he had previously indicated
("jokingly" according to Young) that he would . Additionally, it is strange
that although Young testified that he had decided "to remove some of the
people who were giving [him ] trouble" a week earlier when he learned that
he was to leave for a 2-week trip-in order that whoever had to supervise
the door shop during his absence "wasn't going to put up with the stuff [he]
had put up"-he nevertheless did not select Mickel (nor Lange) until the
(Continued)
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not up to Daco standards"; there is no mention of Mickel's
talking too much to Cripe or to other employees.
Also as in Lange's case, Young advanced additional
grounds for Mickel's discharge, including absenteeism-in
Mickel's case also tardiness. However, he could not
remember when he talked to him about these alleged
derelictions or how often-although he "believe[d]" it was
after Mickel became a lead grinder when he "likely" talked
to him more than once. Young also testified that Mickel
"developed . . . the habit of wandering around, just
talking a little too much." However, he had difficulty
recalling when this "habit" originated, estimating it was
"maybe a month or a month and a half after [Mickel]
became lead grinder." According to Young, he talked to
Mickel about this problem three times-once when
Company President Cohen "got on [him]" as Mickel was
talking to an employee, another time 2 or 3 weeks before
his discharge, and a third time the day before the discharge
when he saw him talk to Quality Control Inspector Cripe.20
There is no evidence that in any of these conversations
Mickel talked about matters other than work, nor that
Young checked or attempted to check whether Mickel was
only "goofing off." Young only surmised that Mickel "had
to be just shooting the bull" because he talked "too much
to be correcting work." Moreover, he conceded that he
would "not likely" terminate a man for standing around
and talking unless "it's cutting into his production"; but
there is no evidence whatever that Mickel's alleged "habit"
adversely affected production.
As to the August 10 incident precipitating Mickel's
discharge, Young could not and did not overhear Mickel's
conversation with Cripe and he admittedly did not
investigate to find out what it concerned. Nor did Young,
as he admittedly could, report Cripe's alleged dereliction to
Cripe's superior. I credit Mickel's testimony, corroborated
by Cripe, that the subject matter of their August 10
conversation leading to Mickel's discharge pertained to
work.
Finally, although Young tried to convey the impression
that Mickel's work deteriorated some time after he became
a lead grinder, there is no evidence that the quality or
quantity of his production was other than satisfactory. In
addition, Young could not recall specifically warning
Mickel (nor Lange) that their jobs were "m jeopardy"
because of their alleged derelictions.
D. Conclusions
1. Coercive interrogation
As found (supra, sec . A, 2), on July 14 General Manager
Shappard and Quality Control Supervisor Sipes, at the
direction of Vice President Stevens, summoned employees
Bremenkamp and Rose to the company office and
there-m a 45-minute interview-questioned them con-
cerning their union activities, including employee solicita-
tion and card distributions . While the questions put to the
men related to activities on company time they also related
to activities on noncompany time . Fearing that their jobs
were in jeopardy , the employees falsely denied any union
involvement . Subsequent to the interview the two employ-
ees continued their union activity, but more guardedly.
I find and conclude that by the interrogation of
employees Bremenkamp and Rose were "beyond the
bounds of permissible interrogation ." (N.L.KB. v. Clap-
per's Manufacturing, Inc., 458 F .2d 414 (C.A. 3, 1972)).
Considering the nature of the inquiries , the place (the
company office), the fact that the chief interrogator was a
high managerial official (general manager), the fact that
the questioning was unaccompanied by assurances against
reprisals, and that the questioned employees found it
necessary to conceal their activity by untruthfully denying
union involvement , it is clear that the interrogation was
restrainful and coercive . See N.LR.B. v. Camco, Inc., 340
F.2d 803 , 804, 806-807 (C.A. 5, 1965); International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW-AFL-CIO [Preston Products
Co.] v. N.L.R.B., 392 F.2d 801 , 809 (C.A.D.C., 1967).
Interrogation about union matters in such circumstances
"leave the employees to conjure up various images of
employer retaliation ." Dubin-Haskell Lining Corp. v.
N.L.R.B., 375 F.2d 568 , 571 (C.A. 4, 1967).21
2. The alleged discriminatory discharges
a. The factors supporting discriminatory motivation
This case presents the familiar situation in which the trier
of fact is required to draw inferences from evidence largely
circumstantial, since direct evidence of a purpose to
discriminate is rarely obtainable. As stated in N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965),
"It would indeed be the unusual case in which the link
between the discharge and the union activity could be
supplied exclusively by direct evidence. Intent is subjective
and in many cases the discrimination can be proven only
by the use of circumstantial evidence. Furthermore, in
analyzing the evidence, circumstantial or direct, the Board
is free to draw any reasonable inferences." See also
Hartsell Mills Company v. N.L.R.B., 1I1 F.2d 291, 293
(C.A. 4); Shattuck Denn Mining Corporation v. N.LR.B.,
362 F.2d 466, 470 (C.A. 9, 1966).
The record here amply supports a finding that General
Counsel has made out a prima facie case of discrimination
alleged incidents precipitating the discharge took place, at the end of the
week, indeed, he testified that it was only when he "observed" Mickel
converse with the quality control inspector (Cnpe) shortly before the end of
the shift that "I made up my mind that I would terminate Tommy
[Mickel I." The record shows that in addition to Mickel and Lange, Young
also discharged employee Switzer on August 10, according to Young, he
issued warnings to three additional employees on that date.
20 Mickel admitted that Young had once spoken to him about standing
around and talking with employees, but he claimed that this did not
interfere with production; he also admitted that when he was promoted to
the lead grinder position, Young told him he was not to "goof off" as the
previous lead grinder (who left to join the Army) had done.
21 The original complaint named Executive Vice President Stevens as the
official conducting the July 14 interrogation. At the outset of the trial, I
granted General Counsel's motion to amend the complaint to name General
Manager Shappard as one of the interrogators.
In addition to Shappard, the complaint also alleges that Company
President Cohen on July 20 unlawfully interrogated an employee (identified
at the trial as Rose) and conveyed to an employee (identified at the trial as
Bremenkamp) the impression of surveillance. The preponderance of
credited evidence and reasonable inferences to be drawn therefrom do not
support either allegation.
DACO INDUSTRIES OF MISSISSIPPI , INC. 977
as to all four dischargees . Although Company President
Cohen told his employees that he did not object to
organization of the Biloxi plant and pointed to the
unionization of his older California plant, the fact is that
his general manager (Shappard) told employees Bremen-
kamp and Rose in his July 14 interview that Respondent
was not yet "ready for a union" in its relatively new
Mississippi plant . Shappard declared that a union was not
feasible in a "right to work" State like Mississippi where
nonunion men would draw the same benefits as dues-
paying members ; and "implied" that quality control
inspectors like Bremenkamp and Rose-whom the Compa-
ny regarded as an arm of management-should not belong
to a union . Suspecting that they were seeking to organize
the plant, Vice President Stevens had directed his general
manager and the immediate supervisor of the two men
(Sipes) to interrogate Rose and Bremenkamp as to their
union activities . This they did and the men were ques-
tioned not only as to their activities on company time but
also as to such activities on their own time. Even if
Respondent's expressed distaste for organizing the Missis-
sippi plant were privileged and free from coercion-which
it was not-yet "its expressed attitude is one of the factors
which must serve to measure its motivation " in determin-
ing the legality of discharge of an'active union adherent.
See Revere Camera Co. v. N.L.R.B., 304 F.2d 162, 165
(C.A. 7, 1962). Cf. Deering-Milliken, Inc. [Darlington Mfg.
Co.] v. N.LR.B., 397 F.2d 760, 768, 769 (C.A. 4, 1968).
That all four dischargees here involved (Bremenkamp,
Rose, Lange, and Mickel) were the most outspoken and the
leading unionists is not open to question . Rose and
Bremenkamp initiated the Teamsters drive in June or July
and then sought support from fellow employees. Lange
and Rose led the IAM drive after Rose and Bremenkamp
were fired on July 20, each soliciting signatures . Addition-
ally, both openly voiced dissatisfaction with working
conditions at Company President Cohen's July 20 meeting
with employees; a day or two later Lange also disputed
Vice President Schollian's attack against Rose (then a paid
IAM organizer) as unsuitable to represent the employees.
While the active role of an employee in a union drive, as
well as an employer's opposition to the drive, are not in
themselves sufficient to establish a discriminatory dis-
charge, "[s]till, where the discharge in question involves [a]
`key' employee in an organizational drive, it may supply
shape and substance to otherwise equivocal circum-
stances." N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166,
169 (C.A. 1, 1962). "Obviously, the discharge of a leading
advocate is a most effective method of undermining a
union organizational effort." N.L.R.B. v. Longhorn Trans-
fer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965).
The record amply demonstrates that Respondent was
fully aware of all four employees' union activities . As far as
Bremenkamp and Rose are concerned, it was Respondent's
suspicion that they were involved in union activity that
prompted the coercive July 14 interview by two company
officials . And on July 20, during his discharge interview,
Company President Cohen specifically told Bremenkamp
that he could bring in somebody who "could connect [him ]
with Union activities"-action Bremenkamp "didn't think
... necessary." Later on the same day, in the discharge
interview of Rose , Cohen told Rose-who (unlike Bremen-
kamp) kept disavowing union involvement-that he was
fully aware of his union activities although he (Cohen) did
not call him to the office to discuss that matter. As to
Lange and Mickel, it is undisputed that their supervisor
(Douglas Young) knew that they were going to a union
meeting the evening before their discharge; indeed, Young
heard Lange urge fellow employees to attend and, if
Young's testimony is to be credited, Lange himself invited
Young to attend. The next morning Young told Lange and
Mickel that he was too busy to make the meeting.
Also significant is the timing of the dischargees.
Bremenkamp and Rose were discharged within a week of
their July 14 coercive interrogation and only one day after
IAM began handbilling the plant. Lange and Mickel were
dismissed the day after they attended the August 9 union
meeting that came to the attention of their supervisor
(Douglas Young). Surely, "the coincidence in time .. .
would seem somewhat significant ." (N.L.R.B. v. Geraldine
Novelty Co., Inc., 173 F.2d 14, 18 (C.A. 2)). "Coincidence in
union activity and discharge renders an employer vulnera-
ble... " N.L.R.B. v. Council Manufacturing Corp., 334
F.2d 161, 164 (C.A. 8, 1964), and cases cited therein.
All of the above factors-Respondent's distaste for
unionizing its Mississippi plant, the circumstances that the
four discharged employees were key unionists, Respon-
dent's knowledge of their connection with the organiza-
tional drives, and the timing of the discharges-establish a
prima facie case of unlawful discharges . "Hence it became
incumbent upon the Company, if it would avoid that
result, to come forward with a valid explanation for 'the
discharge[s]." N.L.R.B. v. Miller Redwood Company, 407
F.2d 1366, 1370 (C.A. 9, 1969). "The Company had the
burden to come forward with an adequate explanation for
discharging [the employees ] once a prima facie case of
possible discrimination had been established by the
General Counsel ." NLRB. v. Standard Container Compa-
ny, 428 F.2d 793, 794 (C.A. 5, 1970). See also Evans
Packing Company, 190 NLRB 401, enfd. 463 F.2d 193
(C.A. 6, 1972).
b. The defenses
For reasons stated below, Respondent has rebutted the
prima facie showing that its motive for terminating the
employees was unlawful as to only one of the four
dischargees (Rose) here involved.
Bremenkamp . Respondent 's contention that Bremen-
kamp was discharged because he had removed a "confi-
dential" envelope from General Manager Shappard's desk
is unpersuasive. It will be recalled that the envelope
contained IAM literature , that Bremenkamp knew that it
contained such material , and 'all that was involved was
removing the envelope from the desk of one official
(Shappard) to bring it to the desk of another official (Vice
President Schollian) in the same office in order to prove
Bremenkamp's point that a new union (IAM) was
handbilling the plant. Scholhan (as well as -Bremenkamp)
apparently considered the incident unimportant and of
little consequence , since as Schollian testified he "couldn't
hardly see why it was confidential" since the envelope-as
was apparent and known to all-only contained union
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propaganda being handed "to everybody." According to
Supervisor Sipes, Bremenkamp "readily" admitted "re-
moving" the envelope and handing it to another company
official when questioned concerning the incident by
Company President Cohen. Bremenkamp's conduct hardly
fits Cohen's overblown characterization of a "dishonest"
act which "could lead to things like going through
somebody's desk or taking other material off other people's
desks." The key to Cohen's motivation is found in his
statement to Bremenkamp in course of the terminal
interview that he could bring in somebody who "could
connect - [Bremenkamp] with Union activities" and by
Sipes' testimony that as he left Cohen's office he told
Bremenkamp that he "should have called a witness" to
prove that he was not connected with such activities and
thereby "clear his name."
Under all of the circumstances, including Cohen's
exaggeration of the impropriety of Bremenkamp's conduct,
I conclude that Cohen seized upon the envelope incident as
a pretext to rid the plant of a leading union advocate, in
violation of Section 8(a)(3) and (1) of the Act. I am
convinced that Respondent would not have meted out the
extreme penalty of discharge "but for" Bremenkamp's
identification with the union drive. Cf. Cooperative Associa-
tion [Certified Foods] v. N.L.R.B., 461 F.2d 33 (C.A. 7,
1972).
Rose. Although Rose, like Bremenkamp, was• an ardent
Teamsters protagonist, Respondent's explanation for his
discharge adequately dispels the inference of discrimina-
tion. It will be recalled that in seeking to disavow
involvement in union activity, Rose in his July 20 interview
pointed an accusing finger at Respondent's paint depart-
ment supervisor Eugene Young, insisting that it was
Cohen's own supervisor who was behind the current union
drive. Rose sought to buttress his accusation by claiming
that Young had asked him for union cards so that he could
sign up the 15 painters in his department; and by asserting
that Young had claimed credit for seeking to bring in IAM
in a campaign a year earlier. Young denied these charges
and Smith, an employee on whom Rose relied to support
his accusations, failed to corroborate Rose. After giving
Rose "one final opportunity to tell the truth," Rose stuck
to his charges against Young. Cohen then told Rose that he
knew Rose was "lying" because Young was not employed
by the Company a year earlier to lead the then IAM drive;
and he found it difficult to believe that Young would have
requested union cards from Rose in the current drive if, as
Rose stressed, he was not involved in union activities.
I credit Cohen's explanation in this instance since it rang
true and carried conviction. In my view, Rose went far
beyond permissible bounds in falsely seeking to implicate a
supervisor in union activity-for which he could be
discharged lawfully since supervisors are not in this regard
within the Act's protection. As Cohen told Rose, "I feel
you not only lied to me but you tried to jeopardize [a
supervisor's] job and_ that I can't put up with." By his
conduct, Rose did indeed seek to sow dissension in the
managerial-hierarchy-at least between company head and
supervisor. The means used by Rose in an apparent
attempt to conceal his own union activity did not justify
the end.
I conclude that as to Rose, the substantial credible
evidence rebuts General Counsel's prima facie case of
unlawful discrimination. Here, his "union activity or
membership confer[red] no immunity against discharge."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5, 1965).
Lange. The incident leading to Lange's discharge was his
production (on August 10) of frames allegedly off
specifications-one frame according to Lange, but two or
three according to his supervisor, Douglas Young. Accord-
ing to Young, Lange was also discharged because of slow
production, absenteeism, standing around and talking to
employees, and frequent job transfers (three within two
months) purportedly evidencing inability to perform
generally. However, Lange's termination slip lists only two
grounds for his separation, i.e., quality and rate of
production. As to the latter, Young testified only that
Lange was "a little bit slow," but he made no attempt to
compare his production with that of others of like
experience-in Lange's case a mere 4 weeks on the job.22
As to work quality, Respondent produced evidence only as
to 1 day's performance-his last day on the job when,
according to Young, two or three frames were off
specifications. However, the credited proof shows that
these were actually tolerable and acceptable; even Young
conceded that they could have been "rectified" to pass
inspection. As to Lange's transfers from job to job, no
evidence was presented to show that these were due to
inadequate or improper performance and, insofar as
appears, interdepartmental transfers were not unusual. As
to absenteeism, Young testified that this had concerned
him mainly while Lange was in "final assembly"-his first
of three jobs with Respondent. Finally, as to standing
around and talking with other employees, Young admitted
that this was a "minor offense" and quite common in the
plant.
Under the circumstances shown, Respondent's explana-
tions for Lange's discharge fall far short of overcoming the
prima facie case of discriminatory motivation established
by the record. "The Company's vacillation and the
multiplicity of its alleged reasons for firing [Lange] render
its claims of nondiscrimination the less convincing."
N.L.R.B. V. Schill Steel Products, Inc., 340 F.2d 568, 573
(C.A. 5, 1965).
Mickel. As in Lange's case, Supervisor Young advanced
a variety of grounds for his dismissal although the wording
of his termination slip-in language identical to Lange's-
-lists only "work quality and production ... not up to
Daco's standards." There is no credible evidence whatso-
ever substantiating these two assigned reasons. The
incident leading to his discharge-talking with quality
inspector Cripe-was characterized as "goofing off." But
the proof shows that the conversation in question pertained
to work, i.e., the need to straighten out bent frames-a
matter in which Mickel (a lead grinder) and Cripe (a
22 Although Young claimed that Lange's predecessor produced five (as which such production was allegedly maintained; nor any documentary
compared to Lange's three) frames a day, there is no evidence as to the corroboration or comparison.
length of time his predecessor worked on frames, nor the span of tune over
DACO INDUSTRIES OF MISSISSIPPI , INC. 979
quality inspector) were directly concerned. It is undisputed
that Young could not (and did not) overhear the
conversation and that he did not bother to check on
Mickel's version of the episode. In seeking to give credence
to his action, Young referred to three prior incidents in
which Mickel allegedly "goofed off," but again no
evidence was adduced to demonstrate that these incidents
involved conversations dealing with matters other than
work. Young, as he testified, simply surmised that Mickel
"had to be just shooting the bull" because he talked "too
much to be correcting work"-presumably the work of
grinders working under him. As to the claimed absenteeism
and tardiness attributed to Mickel, there is evidence that he
(and also Lange) had absented themselves, but there is no
indication that they were unexcused or so excessive as to
interfere with production. Young had difficulty recalling
when and how often he spoke to Mickel about his
attendance, indicating only that it was "likely" that he had
talked to him more than once.
Under all the circumstances, it would seem that Mickel's
behavior "apparently became intolerable only" (N.L.R.B.
v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3))
when the need for a plausible defense arose. I find that as
to Mickel, as well as to Lange and Bremenkamp,
Respondent's explanations fail to stand up under scrutiny
and fail to rebut the prima facie case of discrimination
established by General Counsel.
I conclude that the discharges of the above-named three
employees were discriminatorily motivated to discourage
union activities, in violation of Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
their union activities Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By discharging Glenn S. Bremenkamp, Stuart A.
Lange, and Thomas R. Mickel, and thereafter failing or
refusing to reinstate them, in order to discourage union
activities, Respondent has discriminated in regard to hire
and tenure of their employment, in violation of Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices and each of
them affect commerce within the meaning of Section 2(6)
and (7) of the Act.
4. It has not been established that Respondent has
violated Section 8(a)(3) and (1) of the Act by discharging
and refusing to reinstate employee Walter Rose; nor
Section 8(a)(1) of the Act by creating the impression of
surveillance of union activities.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The affirmative relief will include the customary provi-
sion that Respondent offer to the three employees
discriminated against (Glenn S. Bremenkamp, Stuart A.
Lange, and Thomas R. Mickel) immediate and full
reinstatement to their former jobs or, if _ those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered by reason thereof, by payment to each of
them of a sum of money equal to that which each normally
would have earned as wages from the date of such
unlawful discharge to the date of Respondent's offer to
reinstate them, together with interest thereon, less net
earnings if any during such period, backpay and interest to
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Because the unfair labor practices committed are of a
character striking at the roots of employees' rights
safeguarded by the Act, it will also be recommended that
Respondent be required to cease and desist from interfer-
ing in any manner with the rights of employees guaranteed
in Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 23
The Respondent, Daco Industries of Mississippi, Inc., its
officers, agents, successors, and assigns, shall.
1. Cease a nd desist from:
(a) Discouraging membership and activities in any labor
organization (including International Association of Ma-
chinists & Aerospace Workers, AFL-CIO), by discriminat-
ing in regard to the hire and tenure of employment of
Respondent's employees, or by discriminating in any other
manner in regard to any term or condition of their
employment, in order to discourage or interfere with
membership or activities therein.
(b) Coercively questioning employees concerning their
sympathies and activities for any labor organization; and
in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Glenn S. Bremenkamp, Stuart A. Lange, and
Thomas R. Mickel immediate and full reinstatement to
their jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of pay they may have suffered as a result of their
discharge in the manner set forth in the Remedy section
herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
23 In the event no exceptions are filed as provided by Sec. 102.46 of the provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Rules and Regulations of the National Labor Relations Board, the findings , Board and become its findings , conclusions , and order, and all objections
conclusions, recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. -
(c) Post at its plant in Biloxi, Mississippi, copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 15, shall after being duly signed by Respondent's
representative, be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
24 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."
Order of the National Labor Relations Board" shall be changed to read