DBM, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1991

304 N.L.R.B. 1110 (N.L.R.B. 1991)

1110
304 NLRB No. 145
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel filed a motion to strike the final sentence of the Re-
spondent’s brief in support of its exceptions, arguing that the brief’s final sen-
tence is an exception that does not conform to Sec. 102.46 of the Board’s
Rules and Regulations. The Respondent did not respond to this motion. To
the extent that the final sentence of the Respondent’s brief is a nonconforming
exception, rather than a shorthand reiteration of an argument that appropriately
could be placed in a brief, we grant the General Counsel’s motion to strike
it.
2 The General Counsel and the Respondent except to some of the judge’s
credibility findings. The Board’s established policy is not to overrule and ad-
ministrative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
In its exceptions, the Respondent alleged bias on the part of the judge in
deciding the case. We have carefully considered the record as a whole and
the judge’s decision in light of the Respondent’s argument and find no basis
for finding bias by the judge.
1 All dates are in 1989, unless otherwise noted.
2 Also called the Union.
3 Also called the Respondent.
4 Respondent’s motion to strike the General Counsel’s reply brief is denied.
5 The General Counsel’s motion to correct the record, unopposed, is granted.
6 The complaint alleges and the answer admits that the Board has jurisdic-
tion and that the Union is a labor organization within the meaning of the Act.
DBM, Inc. and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America. Cases 18–CA–10771, 18–
CA–10790, and 18–CA–10806
September 27, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 28, 1991, Administrative Law Judge
William F. Jacobs issued the attached decision. The
General Counsel and the Respondent filed exceptions,
supporting briefs, and answering briefs.
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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, DBM, Inc., Cedar Falls,
Iowa, its officers, agents, successors, and assigns shall
take the action set forth in the Order.
Everett Rotenberry, Esq., for the General Counsel.
Harry W. Zanville, Esq., of Waterloo, Iowa, for the Respond-
ent.
Walter Schneider, Esq., of Waterloo, Iowa, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried before me on July 18–20 and September 12, 1989,1
in Waterloo, Iowa.
The International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America2 filed
charges in Cases 18–CA–10771, 18–CA–10790, and 18–CA–
10806 on January 30, February 22, and March 10, respec-
tively. Consolidated complaints issued March 15 and 28 al-
leging that DBM, Inc.3 violated Section 8(a)(1) of the Na-
tional Labor Relations Act by threatening and interrogating
its employees and by otherwise interfering with, restraining,
and coercing them in the exercise of the rights guaranteed
them in Section 7 of the Act, and violated Section 8(a)(1)
and (3) of the Act by suspending, laying off, and discharging
certain of its employees because of their union activities. Re-
spondent denies the commission of any unfair labor prac-
tices.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and argument.
The General Counsel and Respondent filed briefs.4 On the
entire record,5 my observation of the demeanor of the wit-
nesses and after giving due consideration to the briefs, I
make the following
FINDINGS OF FACTS6
The Respondent, DBM, was established in August 1987
and from the beginning was engaged in the operation of a
machine shop in Cedar Falls, Iowa, where it performed chip-
ping, grinding, and blasting services on various parts sup-
plied to it by its nonretail, commercial customers. Although,
from its inception, Respondent serviced a number of cus-
tomers, as months passed, John Deere and Company became
one of its most important customers. By April and May
1988, the ‘‘Pontiac block,’’ the part which Deere supplied to
Respondent for servicing, had become a more and more sig-
nificant portion of the work being performed at Respondent’s
shop, representing 40 to 50 percent of sales.
As of May 1988, Respondent was receiving $5.05 for each
Pontiac block which it serviced. At that time, it was paying
its employees a per piece rate of $1.45 for each Pontiac
block they chipped and ground. On July 29, 1988, Deere ad-
vised Respondent that henceforth it would pay only $4.45
per block, an immediate reduction of 60 cents. Respondent
accepted the reduction in order to keep the account but did
not, at the time, pass on the loss to its incentive employees
working on the Pontiac blocks. The result was that the labor
costs on the block ate up the profits that would have been
earned had Deere not reduced the price on the blocks.
By June, the servicing of Deere’s Pontiac blocks ac-
counted for 80 percent of Respondent’s sales. Yet, these
sales generated no profits. The situation continued in this
state into the fall.
1111DBM, INC.
7 January 1, 1989, fell on a Sunday and employees of Deere and of Re-
spondent were given January 2 off.
Meanwhile, about the first of June 1988 there was a fall-
ing out among Respondent’s owners, as a result of which
one of them left. He had been in charge of the computer sys-
tem which contained profit-and-loss data and various other
accounting records. The two remaining coowners, President
Douglas McCalley and Vice President Sidney Bunger, were
unfamiliar with the system and were at a disadvantage under-
standing the precise financial condition of the Company. To
compound the difficulty, the part-owner who left the Com-
pany had attempted to retrieve certain data from the system
for his own purposes before he left, and in the process blew
out of the system much of the valuable financial data it con-
tained. As a result of the destruction of Respondent’s records
and their general lack of understanding of Respondent’s fi-
nancial situation, McCalley and Bunger did not immediately
realize the seriousness of their profit-and-loss status. They
did, however, assign their bookkeeper the job of putting back
into the computer, all the lost information, a project which
was to take 2 to 3 months.
In late summer or early fall 1988 Respondent’s bankers
advised management that its financial figures ‘‘did not make
sense’’ to them. The bankers suggested, following an analy-
sis, that Respondent do something so that its management
could determine its financial status.
On receiving the bankers’ advise, Respondent hired a cer-
tified public accountant, to reconstruct its financial records.
He began working on Respondent’s records September 30,
1988, and shortly discovered that Respondent had been re-
ceiving erroneous profit-and-loss statements from its account-
ing system and set about cleaning up the inconsistencies and
establishing a better system, concentrating on the period Oc-
tober through December 1988.
On November 16 and 17, 1988, the CPA supplied manage-
ment with reliable profit-and-loss statements for the previous
September and October. On analyzing these statements, man-
agement realized that whereas earlier in the year labor costs
had been 45 percent of sales and averaged 50 percent for the
year, for November it was 63 percent. Management under-
stood that changes would be necessary or else the Company
would be in dire financial trouble. McCalley and Bunger,
nevertheless, decided to wait until they obtained the figures
for November before taking steps to alleviate the situation.
On December 15, the CPA provided management with Re-
spondent’s profit-and-loss statement for November. McCalley
decided that drastic steps would be necessary but did not
know exactly what steps to take. After having the CPA’s fig-
ures confirmed by Respondent’s bankers, McCalley and
Bunger decided to take a working vacation in Florida over
the Christmas holidays and determine a course of action.
In Florida, McCalley and Bunger studied the Company’s
financial situation using the information obtained from the
CPA. The focus of their study was on how to adjust the cost
of labor to make the Company more profitable. Clearly, the
Pontiac block was the single biggest labor cost factor as well
as the single biggest gross revenue producer so that probably
that was the area that should be targeted. Since Deere had
reduced the price it would pay Respondent for chipping and
grinding Pontiac blocks by 60 cents per piece, McCalley and
Bunger decided that it would be fair to reduce the amount
it paid to its employees by 30 cents, from $1.45 per block
to $1.15 per block, thus sharing the loss equally between the
company and the employees. It was further decided to advise
the employees of the reduction in the incentive by memoran-
dum, through Harlan Weltzin, the chief supervisor, who had
been left in charge of the shop, while McCalley and Bunger
were in Florida.
Deere was shut down from Christmas through January 2,7
and no parts were shipped from Deere to Respondent’s shop
during that period. Consequently, production was limited to
work on materials already in the shop. Since there was little
work to be performed, Respondent permitted its employees
to take voluntary time off during the holiday season and over
50 percent of them did so, at various times during the period.
Respondent’s employees returned to work on January 3
and the rest of the week was a regularly scheduled work-
week. However, since Deere’s employees did not return to
work until January 3, shipments of parts from Deere did not
reach Respondent immediately so work continued slow, and
employees continued to take voluntary time off during the
week of January 3, with Respondent’s permission.
Also on January 3, McCalley returned to the plant for the
first time since leaving for his Florida vacation with Bunger.
The record is silent with regard to any discussion between
McCalley and Weltzin on the subject of reduction of the
Pontiac block incentive rate, but on the basis of probabilities
and subsequent events, I find that McCalley fully informed
Weltzin about the discussion to reduce incentive.
I find further, on the basis of both probability and evi-
dence, that Weltzin, on January 3, passed on to the employ-
ees the information that he had received that morning from
McCalley that there was a planned 30-cent reduction in the
Pontiac block incentive rate. Although employee Todd Salis-
bury testified that shortly after January 3, Weltzin made an
announcement in the breakroom, to the entire first shift that
the price of blocks was going to be cut from $1.45 to $1.15,
I find for reasons stated, infra, that before the official an-
nouncement was made Weltzin informed the employees of
the reduction unofficially on January 3.
Weltzin testified that in the first part of January, January
5, 6, or 7, when he went into the breakroom, to call the first-
shift employees back to work after the break, he heard em-
ployee Rod Lesh say, ‘‘It’s not fair. Maybe we ought to see
about a union.’’ I find that when Lesh said, ‘‘It’s not fair,’’
he was referring to the reduction in the Pontiac block incen-
tive rate and that for reasons explained below, the incident
occurred on January 3, not later in the week.
I reach the conclusion that Weltzin informed the first-shift
employees on January 3, not later, that there was going to
be a reduction in the Pontiac block incentive rate because of
the fact that late in the afternoon and evening of January 3,
three employees of Respondent, without apparent planning,
independently and precipitously contacted the Union.
Employee Mike Derbyshire contacted the Union and ad-
vised one of its agents, Walt Schneider, that Respondent’s
employees were interested in being organized. Schneider told
Derbyshire that he would have to talk to a few follow em-
ployees and try to set up a meeting to be attended by at least
8 or 10 of their number.
Employee Hershel Hamilton also contacted the Union on
January 3 about 4 p.m. and spoke with David Neil, an Inter-
national representative of the Union. In answer to several
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Hamilton’s testimony concerning his reasons for calling the Union are not
credited.
9 A number of witnesses for the General Counsel denied ever seeing the
notice or attending the meeting discussed here. Nevertheless, I credit Weltzin.
10 Par. 5(a).
questions posed by Neil, Hamilton advised the union agent
that DBM employed 35–40 employees, and that there was
considerable interest in union representation. Neil advised
Hamilton to get 8 or 10 interested employees together and
a meeting would be scheduled for January 10 at 7 p.m. at
the union hall. Neil also advised Hamilton to bring with him
a list containing the names of rank-and-file employees, su-
pervisors, and owners.
On the evening of January 3, employee Rod Lesh called
the Union, just as he had suggested he might do earlier that
day in the breakroom, and spoke with Neil, identifying him-
self as an employee of Respondent. He told Neil that he and
his fellow employees were interested in being organized.
Neil told Lesh about Hamilton’s earlier call and about the
meeting scheduled for January 10. Still later in the evening,
Neil advised Schneider about the January 10 meeting sched-
uled with Respondent’s employees.
The record reveals no general dissatisfaction with working
conditions as they existed during the weeks just prior to Jan-
uary 3. The workload was light and employees were per-
mitted to voluntarily take off, thus working the hours that
pleased them. There had been no meetings among the em-
ployees to discuss obtaining union representation because of
concerns about health and safety, increased wages, holidays,
or other working conditions.8 Indeed, the three employees
who contacted the Union in the late afternoon and evening
of January 3 did so spontaneously and individually. Since it
was their first day back at work, I find that their calls were
precipitated by something that happened that day. The only
thing of any significance that could have occurred which
might have resulted in their contacting the Union would have
been their learning of the planned reduction in the incentive
rate. Since any reduction in the incentive rate would auto-
matically result in a cut in pay, the affected employees
would certainly have been concerned enough to seek the aid
of a labor organization. I find that this is what occurred on
January 3.
Following his discussion with Schneider on January 3,
Derbyshire contacted 10 or 11 fellow employees, sometimes
at the shop on breaks, at other times by phone at their
homes, and asked them if they would be interested in obtain-
ing union representation. Similarly, Hamilton did as in-
structed by Neil and contacted several fellow workers and
spoke to them concerning union representation. He also com-
piled the requested list of employees.
Weltzin testified credibly that during the rest of the week,
beginning on January 3, the employees were doing a lot of
standing around. Though they all had work stations, most of
the employees who were standing around were doing so
away from their work stations, talking to each other. Weltzin,
on a number of occasions, had to tell employees singely to
return to their stations and get to work. Though Weltzin fre-
quently could hear the employees talking on these occasions,
he testified that he could not hear what they were talking
about. Of 18 to 22 employees working on the first shift,
Weltzin testified that 8 or 10 would be away from their work
areas at any given time. The fact that the employees were
wandering around, away from their working areas, talking
with one another, probably reflects an attitude of disgruntle-
ment brought about by the expected forthcoming reduction in
the incentive rate. It may also have had something to do with
their union activity. At any rate, it came to Weltzin’s atten-
tion and he eventually called a meeting to discuss the matter.
This meeting became the subject matter of certain allegations
discussed infra.
After discussing the possibility of union representation
with 8 or 10 of his coworkers, Derbyshire called Schneider
at the union hall to advise him of his progress. Schneider in-
formed Derbyshire of the meeting scheduled for January 10.
Derbyshire then contacted the employees with whom he had
spoken earlier and told them about the forthcoming meeting.
On January 9, Bunger returned to the shop from vacation
and it was agreed at that time that the planned reduction
should be officially announced and implemented. Bunger
typed the following memo pertaining thereto:
TO ALL EMPLOYEES:
09 JANUARY 1989
THE PRICE ON PONTIAC BLOCKS PER PIECE,
WILL BE REDUCED TO $1.15 ON 16 JANUARY
1989. DBM HAD A PRICE DECREASE FROM THE
SUPPLIER TO KEEP ALL BLOCKS IN HOUSE.
DBM MANAGEMENT
The memo was then given to Weltzin to post and explain to
the employees.
Both McCalley and Bunger testified that the announce-
ment was delayed until January 9 because Bunger was not
back from vacation until that date and a number of rank-and-
file employees were still out on voluntary time off up until
that date. Thus, it was determined to wait until January 9
when everyone had returned before making the announce-
ment. Also, management decided to wait until January 16 to
implement the new incentive rate in order to give the em-
ployees time to adjust to the planned reduction in wages.
Weltzin received the memorandum and instructions on
January 9, a little after 7 a.m. He then went around to every-
one and told them to remain in the breakroom after their 9
a.m. break because he wanted to speak with them for about
5 minutes.
At 9 a.m. Weltzin went down to the breakroom and waited
there until the 15-minute break was over. He then explained
to the employees what he had been told by McCalley and
Bunger. He also read the memorandum to them. There was
some question from the employees as to whether there had
really been a decrease in the price of blocks paid by Deere.
Weltzin defended the honesty of McCalley and Bunger to as-
sure the employees that what he had been told was true.
After some further discussion, Weltzin posted the notice.9
In accordance with the information contained in the
memorandum, the employees continued to receive $1.45 per
block through January 16. After January 16 they received
$1.15 per block.
By January 9 the union activity of certain of Respondent’s
employees came to the attention of management. According
to the complaint,10 on this date, Foreman Michael Johnson,
an admitted supervisor, interrogated a number of employees
1113DBM, INC.
11 Respondent takes the position that its withdrawal of answers to certain
8(a)(1) allegations was motivated solely by a desire to avoid unnecessary liti-
gation expenses and that the General Counsel should not be permitted to use
the consequentially resulting admissions as support for the 8(a)(3) allegations.
I find that the General Counsel never gave any indication that he would con-
sider joining in such an agreement. Counsel for Respondent’s reasons for with-
drawing his answers are irrelevant. The effect is the same, i.e., an admission.
12 Ambrose’s affidavit, which contains this information, and which was sub-
mitted as G.C. Exh. 20 is admitted as an admission against interest.
13 Par. 5(b).
14 Complaint, par. 5(c). Answer to allegation withdrawn at hearing.
15 Complaint par. 5(d). Answer to allegation withdrawn.
16 Complaint par. 5(e). Answer to allegation withdrawn.
17 Complaint par. 5(f).
concerning their activities for and on behalf of the Union.
The answer to this allegation was withdrawn at the hearing.
I therefore find the allegation meritorious and the violation
proven.11
Weltzin’s explanation that the memorandum bearing the
unpopular announcement had been torn down by the follow-
ing morning is credited.
On January 9 also, John Ambrose, an admitted supervisor
under the act, wore a sign on which was printed the slogan,
‘‘Down with the Union.’’12 Thus, Johnson’s interrogation of
employees and Ambrose’s wearing of the sign, both of which
occurred on January 9, evidence company knowledge of its
employees’ union activities, as of that time, as well as
antiunion animus.
Weltzin testified, as noted above, that since January 3 the
employees had been standing around, talking, and wandering
away from their work stations. He testified further, that on
January 10 he gathered the employees together before they
left for the day, and warned them that if they continued to
stand around he would discharge them.
The complaint13 alleges that on January 10 Weltzin
‘‘threatened an employee with discharge because of employ-
ees’ activities for and on behalf of the Union.’’ Respondent,
after initially denying this allegation, withdrew its answer
thereto at the hearing. The effect is an admission of the vio-
lation alleged and I so find.
On the evening of January 10, the meeting was held as
scheduled at the union hall. Ten of Respondent’s employees
attended. Of the 10 employees, 4 were among the employees
alleged in the complaint as discriminatees. Those were Mi-
chael Derbyshire, Todd Salisbury, Rodney Lesh and Keith
Diesburg. Of the three employees who contacted the Union
on January 3, all three were in attendance. Hamilton deliv-
ered to the Union the list of employees which had been re-
quested.
At the meeting, the Union and Respondent’s employees
decided to go ahead with the organizing drive. The Union
distributed buttons and scheduled the next meeting for Janu-
ary 14, at 4 p.m. After January 10, many employees wore
their union buttons at work. Thus, the campaign was brought
into the open.
On January 11, Foreman Chris Wilkenson, a supervisor
under the Act, admittedly14 interrogated an employee about
that employee’s union activities and desires and about those
of other employees in violation of the Act.
On January 12, Foreman Johnson admittedly15 threatened
that employees’ wages would be reduced and that Respond-
ent would discontinue operations, in order to discourage em-
ployees’ activities for and on behalf of the Union in violation
of the Act.
As noted above, the second union meeting was scheduled
for January 14. This scheduled union meeting came to the
attention of management and on January 13, Foreman John
Ambrose, a supervisor under the Act, admittedly16 directed
that a group of employees not attend this union meeting.
The union meeting was held on January 14 as scheduled.
Twenty-three of Respondent’s employees attended the meet-
ing. Of the 10 employees alleged as discriminatees in the
complaint, 9 of them attended the meeting. All employees in
attendance signed union authorization cards.
Present at this meeting was Foreman Michael Johnson, the
supervisor who, during the previous several days, had en-
gaged in acts of violative interrogation and threats. Johnson
had appeared on Hamilton’s list as a supervisor and his pres-
ence appeared to make the employees nervous so Neil asked
him if he was a supervisor. When Johnson denied being a
supervisor, Neil asked him a number of questions concerning
his authority to hire, fire, and reprimand. Johnson denied
having any such authority. Johnson had signed the sign-in
sheet. When Neil later collected and checked out the signed
union authorization cards, he found that Johnson had filled
out his card lightly in pencil and had failed to sign it. When
Neil asked Johnson if he was going to sign the card, Johnson
did so, but Neil never saw him again.
The following day, and thereafter, most of Respondent’s
employees wore union buttons on the job. This, of course,did
not go unnoticed by management. Bunger testified that the
first time that he heard about the Union and the organiza-
tional drive was about January 15 or 17. However, inasmuch
as Respondent admits that members of management engaged
in antiunion activities as early as January 9, it is clear that
management was aware of union activity among its employ-
ees prior to their wearing their union buttons.
The week ending January 15 marked the last week during
which employees received the $1.45-per-piece incentive for
Pontiac blocks. Beginning January 16, they received $1.15
per block. Although January was Martin Luther King’s birth-
day and was celebrated at the shop as an unpaid holiday,
some employees worked. Those who did and worked on the
Pontiac blocks were paid at the new reduced rate.
The complaint17 alleges that on January 17, Foreman
Weltzin announced the institution of new plant rules and in-
stituted such plant rules as a reprisal for employees’ activities
for and on behalf of the Union. Respondent denies this alle-
gation.
With regard to this allegation, the record indicates that Re-
spondent, on January 17 announced the implementation of a
set of work rules. These rules are quite diverse in nature,
some being typical of plant rules everywhere, some being
distinctly unique. Some of the rules announced on January
17 had been in effect prior thereto while others were new.
McCalley and Bunger testified that together they were re-
sponsible for composing the list of rules. They defended each
rule as a good one and offered explanations as to why the
implementation of each rule was necessary. They did not,
however, explain why suddenly, it became necessary to issue
the list of rules at this particular time, right in the middle of
a union organizing campaign, 3 days after a union meeting,
well attended by Respondent’s employees, a meeting which
one supervisor directed these employees not to attend. I find
that the timing of the issuance of these rules, and the nature
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of some of them, reflect a discriminatory motivation, while
others do not. In my opinion, no set of rules would have
issued at this time but for the union activity of Respondent’s
employees.
Apparently, however, in composing the list of rules de-
signed, in part, as a reprisal for its employees’ union activity,
McCalley and Bunger decided to reiterate some preexisting
legitimate rules and to implement certain new ones designed
merely to improve the quality of production. To the extent
I find certain of the rules to be motivated by antiunion con-
siderations, I reject Respondent’s explanation that the rules
were designed merely to remind old employees and advise
new employees of their existence.
Once McCalley and Bunger composed the list of rules,
they gave it to Weltzin to present to the employees. There-
after, Weltzin read the list to the employees, verbatim, then
offered explanations concerning each rule. The list reads as
follows:
17 January 1989
You have the right to organize and belong to a
union.
Company rules:
When called in sick, you will need a doctor’s excuse.
You need to call each and every day missed, whether
sick, injured or [for] any reason you are absent.
If you have car trouble coming to work, notify DBM
immediately and you must be at work as soon as pos-
sible that day.
If late for work you will be reprimanded and allowed
a 5 minute grace period, if not misused.
Any time you take off work for personal reasons,
you must notify the company 24 hours in advance and
have it okayed by supervision.
No afternoon break.
If you are capable of making more than 150% [of
your] job, the job will be looked at.
If out of work area without a reaonsable reason, you
will be reprimanded.
If late coming back from breaks, you will be rep-
rimanded.
All blocks and other parts must be stamped.
If anyone is caught damaging company property or
parts because of their own recklessness, they will be
reprimanded.
If below base rate when running parts, it will be
looked at and you will be reprimanded.
While on company property or company time, if you
are in possession or under the influence of alcohol,
drugs or contraband, you will immediately be dis-
missed. (The only exception is tobacco.)
Insubordination to any company personnel will result
in immediate reprimand.
With regard to the reference in the document, to ‘‘the right
to organize and belong to a union,’’ McCalley testified that
it was put in there to put the employees at ease. I find, how-
ever, that the reference to union organizing immediately
above the list of rules proves, even more than the timing of
their issuance, that the organizational activity of Respond-
ent’s employees was the occasion for the institution of the
rules. The purpose of the inclusion of the reference in the
document was to make it clear to the employees that the in-
stitution of the rules was Respondent’s answer to its employ-
ees’ union activity.
Concerning the need for a doctor’s excuse, McCalley testi-
fied that employees had been taking off whenever they want-
ed and the Company was having a serious absentee problem
as a result. The institution of the requirement that employees
obtain a doctor’s excuse was meant to solve this problem.
Bunger testified that he had listened to McCalley interview
prospective employees and heard him tell them that a doc-
tor’s excuse would be required when they call in sick, thus
implying that the requirement was a nonwritten rule. How-
ever, the set of written rules in effect prior to January 17
contains no reference to the doctor’s excuse requirement.
Concerning the second rule on the list—that which re-
quires an employee to call in if he is going to be absent for
any reason, McCalley testified that the purpose of the rule
was to enable Respondent to know in advance that an em-
ployee would be absent and thereby make the necessary per-
sonnel change to cover his absence. The rules in effect prior
to January 17 were silent as to any call-in requirement.
Concerning the third rule which requires an employee who
has car trouble on the way to work to call in immediately,
McCalley testified that its purpose was merely to let manage-
ment know, one way or the other, whether the employee was
going to report for work. Bunger did not testify and there is
no evidence that this requirement was in existence prior to
January 17.
Neither McCalley nor Bunger testified concerning the
fourth rule—that regarding tardiness, and the old rules are si-
lent on the subject.
The fifth rule which requires an employee who wishes to
take a day off to give 24 hours’ notice, was touched on by
McCalley in his testimony. He did not, however, claim that
this was a requirement prior to January 17 and, once again,
the old rules are silent on the subject.
Concerning the sixth rule which abolishes the employees’
afternoon break, McCalley testified that he decided to do
away with the break because it was supposed to be a 5-
minute break and employees stretched it to between 10 and
20 minutes. Bunger also testified that the afternoon break
was taken away from the employees because they had been
abusing the privilege. He explained that Weltzin reported to
him and to McCalley that the employees had been taking too
long on the afternoon break and that he had tried to limit the
time they took but had been unsuccessful. According to
Bunger, it was Weltzin who had suggested that the afternoon
break be discontinued.
Though not clear from the document itself, the seventh
rule referred to a 150-percent cap placed on the incentive
rate on the production of Pontiac blocks. McCalley and
Bunger decided on the cap on incentive production, accord-
ing to McCalley, because of the safety factor involved.
Bunger testified that the cost of workmen’s compensation in-
surance had gone up substantially from 1988 to 1989. Ac-
cording to Bunger, it was decided to put a cap on production
as an experiment, in an attempt to reduce injuries and there-
by bring down the cost of insurance. The theory was that if
the employees on the line did not try to push themselves to
produce 200 percent, there would be fewer injuries. Bunger
admitted that the effect of the cap was to reduce the wages
of those previously producing 200 percent from $10 per hour
to a maximum of $7.50 per hour.
1115DBM, INC.
18 Par. 5(f).
The eighth rule which threatened a reprimand for employ-
ees who were caught out of their work area without a good
reason was instituted, according to McCalley, in order for
management to keep track of the whereabouts of its employ-
ees. He testified that this rule had been in effect before and,
indeed, the old written rules includes a loitering prohibition.
McCalley testified that the ninth rule, which states that
employees will be reprimanded for coming back late from
breaks, was part of a continuous effort to get the employees
to return to their work stations promptly and not remain in
the breakroom 5 to 10 minutes past breaktime. As it was,
their supervisor would have to go down to the breakroom to
call them back to work. This rule is not contained in the old
written rules.
The 10th rule which requires that parts be stamped was in-
stituted for the purpose of tracing the part back to the em-
ployees who worked on it as a matter of quality control, ac-
cording to McCalley. He did not testify as to whether this
rule existed prior to January 17. The old rules make no ref-
erence to this subject.
The 11th rule which calls for the reprimanding of any em-
ployee caught damaging company property or parts because
of recklessness was not a new rule, according to McCalley,
but a rule which every company has. He implied that this
was an unwritten company rule before January 17. The old
written rules are silent on the subject.
McCalley testified concerning the 12th rule that it might
be necessary to reprimand an employee who continuously
fails to produce at base rate. He did not testify as to whether
the rule was an old one or a new one. The old written rules
make no reference to the subject.
The 13th rule prohibiting the use or possession of drugs
on company time and threatened discharge for violation of
the rule, McCalley testified, is a standard rule at any com-
pany. Indeed, the old company rules include such a prohibi-
tion.
The 14th and final rule concerning reprimand for insubor-
dination was not, according to McCalley, a new rule and, in-
deed, is listed among Respondent’s old rules. McCalley com-
pleted his testimony on the list of rules by stating that all
of them were rules typically found at other companies.
Weltzin testified that it was necessary to read the rules
given to him by McCalley and Bunger to the employees be-
cause some of the employees were new and the older em-
ployees had either misunderstood the existing rules or had
forgotten them, implying that the rules dated January 17 had
always been in effect.
Weltzin testified that a day or two before January 17
Bunger and McCalley drew up the list of rules and showed
them to him and asked him if he had anything to add. Then,
in accordance with their directions, on January 17, he held
a meeting with the first-shift employees a few minutes after
7 a.m., then one with the second-shift employees about 2
p.m. According to Weltzin, he read each rule directly from
the sheet, then explained to the employees what the rule
meant.
Weltzin first discussed the Union with the employees. Ac-
cording to him, he told them that they had a right to organize
and belong to a union; that they could, during breaks, talk
about organizing and visit with each other, but during actual
worktime he expected them to do the work and not be walk-
ing back and forth talking.
Employee Steven Belz testified briefly about Weltzin’s
discussion of the Union at his meeting with the first-shift
employees. Belz could not remember Weltzin telling the em-
ployees that they had the right to organize and belong to a
union. Employee Howard Howe testified that Weltzin told
the second-shift employees that there would be no talking
about the Union during working hours and that the penalty
for breaking this rule was suspension. According to em-
ployee Boyd Niedert, who attended the second meeting,
Weltzin said that he could not stop a union drive if the em-
ployees felt that they needed a union but that he did not feel
that they needed one. He stated that he did not want to be
hassled with a union or people hassling other employees on
company time. He added that it would be all right for em-
ployees to discuss the Union on breaks.
The complaint does not allege that Weltzin’s preliminary
discussion of employees’ union activities, just prior to his
discussion of the institution of new plant rules, was violative
of the act, and I do not find that it was. On the other hand,
I find that the fact that the subject of union organizing was
placed at the top of the list of rules, precludes any possibility
that the institution of the rules and the initiation of the union
organizational campaign were purely coincidental. Indeed,
the effect of most of the rules, though perhaps not all, was
either to restrict or inhibit employees’ freedom of movement,
or to punish them or to show them how well off they were
before they chose to engage in organizational activity. Where
I find below, that the institution of a particular rule was mo-
tivated by antiunion considerations, I shall find a violation as
alleged in the complaint.18
Before actually reading the rules to the employees,
Weltzin announced that the reason he was reading them was
to refresh the memories of old employees as to their exist-
ence and to advise new employees of the rules to the extent
that he had not already done so. He then read each rule, ex-
plained it, and asked if there were questions.
With regard to the first rule, Weltzin testified that he told
the employees that when they call in sick, they would need
a doctor’s excuse for each and every day they were off sick,
and that failure to provide the excuse would result in the em-
ployee being given the day off without pay, maybe more, de-
pending on circumstances.
A number of employees testified that Weltzin threatened
that failure to provide a doctor’s excuse would result in dis-
ciplining, reprimanding, or termination. They testified further
that there had never been such a rule in effect prior to Janu-
ary 17, either written or otherwise and that some of them had
been sick in the past and had returned to work without a
doctor’s excuse, without any disciplinary action being taken
against them.
I find this rule to be a new one or an old one not pre-
viously enforced, and in the total absence of any other expla-
nation, instituted or newly enforced for the sole purpose of
intimidating the employees because of their union activities.
The rule was meant to and did adversely affect the employ-
ees’ working conditions. The timing of the institution of this
rule, in the midst of the organizing campaign and its appear-
ance, along with the other rules, immediately below the Re-
spondent’s reference to the employees’ organizing activities,
is clear evidence of the obvious connection, cause and effect,
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Joe’s Plastics, 287 NLRB 210 (1987); and Economy Foods, 294 NLRB
660 (1989).
between the two. I shall so find with respect to most of the
other rules without engaging in unnecessary repetition of this
reasoning.
Weltzin testified with regard to the second rule, namely,
that any employee who intends to be off from work for any
reason must call in and notify the Company beforehand. He
warned the employees that failure to follow the rule would
result in a reprimand, a written warning, a day off without
pay for a second occurrence, 3 days off without pay for a
third occurrence, and possible termination for an employee
missing more than 1 day without calling in.
Employees testified that there were no written rules con-
cerning having to call in before taking off and no penalties
for failure to do so. Some employees testifying on the sub-
ject stated that they would call in when they expected to be
absent while others testified that they, on several occasions,
missed work without calling in and nothing was ever done
about it.
For reasons stated above, I find this rule, newly instituted,
or newly enforced, to be discriminatorily motivated and a
violation of the Act. Its reasonableness is not in question. Its
implementation, and that of the other rules, as a reprisal for
union activities is what is relevant.19
Weltzin, according to at least one witness did discuss with
the employees, the third rule—that concerning the necessity
for employees to call in immediately if they have car trouble.
Weltzin did not, however, testify concerning this rule. I find,
for reasons discussed above, that its institution, or sudden en-
forcement, was discriminatorily motivated.
Weltzin testified with regard to the fourth rule, that he told
the employees that if they were late for work they would be
reprimanded but that they would be given a 5-minute grace
period as long as they did not take advantage of it. He
warned that employees who abused the grace period would
be disciplined.
According to employee witnesses, Weltzin told them that
they would have to be on time or they would have to take
the day off or that other action would be taken. These wit-
nesses testified further that before the January 17 announce-
ment, although employees were expected to report on time,
there had been no problem; that ‘‘lots of people had come
in late’’ and no one had been sent home. Moreover, there
had been no stated penalty for arriving late at work; there
had been no disciplining and no warnings issued.
I find that the rule concerning lateness and the penalties
announced for violation of the rule were newly instituted. No
explanation having been offered for its institution, I find that
it was discriminatorily motivated for the reasons discussed
above in connection with other rules.
The fifth rule concerns the requirement that employees de-
siring to take a day off for personal reasons, notify the Com-
pany 24 hours’ in advance and obtain the permission of their
supervisors. Weltzin read the rule and explained it to the em-
ployees. He did not, however, offer any explanation for the
institution or sudden enforcement of this rule.
According to one employee who testified, Weltzin stated
that failure to call in 24 hours in advance, as required, would
result in a written warning for the first infraction and time
off for the second infraction. Another employee credibly tes-
tified that prior to January 17 there was no 24-hour notice
required. If he wanted the day off, he could call in that
morning and would be told, ‘‘fine.’’ Another testified that if
he wanted a day off, all he had to do was ask.
I find that the 24-hour rule was newly instituted for dis-
criminatory reasons in retribution for the employees’ union
activities and was therefore violative of the Act.
The sixth rule concerned the abolishment of the afternoon
break. Weltzin testified that when he announced the abolish-
ment of the afternoon break, he explained to the employees
the reason for its discontinuance. He told them that he had
initiated the break for the block line employees, in particular,
so that all four employees could take their break and go to
the restroom or smoke a cigarette at the same time because
if any one of them left, it would stop the line anyway. Thus,
the idea was to benefit the Company by having just one
break instead of four. The break was being discontinued, ac-
cording to Weltzin, because instead of taking 5 to 10 min-
utes, the employees were taking 15 to 20 minutes and this
was adversely affecting production. Men on the line were
complaining because fellow workers were taking too much
time, and they were losing incentive. Weltzin testified Em-
ployees, other than block line employees, also began taking
afternoon breaks, and they too began to abuse the privilege.
Robert Folkers, a supervisor at the time of the hearing, and
a witness for Respondent, supported Weltzin’s testimony that
employees had been abusing the privilege by overstaying the
break. He testified that this was the reason that the afternoon
break was discontinued and this was the explanation given
by the Company.
Most employee witnesses testified that Weltzin announced
the discontinuance of the afternoon break but did not testify
as to whether or not he gave any explanation for its dis-
continuance. One employee witness specifically stated that
Weltzin gave no reason for discontinuing the afternoon break
when he announced it on January 17. This witness also testi-
fied that when Weltzin read the list of rules, he referred to
them as ‘‘new rules.’’
For several months prior to January 17, block line employ-
ees had been taking the 5- to 10-minute break as Weltzin had
suggested. These employees were later joined by nonblock
line employees who also took the break but apparently with-
out permission. The time spent on these breaks tended to get
longer and longer. Weltzin would visit the breakroom to
order the men back to their work stations. He warned them
about losing the privilege if they continued to abuse
Respondent takes the position that the afternoon break was
taken away from the employees because the employees
abused the time limitations. I find, however, that although
there is evidence that certain employees did extend their
breaks beyond the 5 to 10 minutes they should have taken,
the breaks would not have been discontinued except as part
of the Employer’s campaign of retaliation against its employ-
ees because of their union activities. It was just one of a
dozen rule changes instituted on the same day, January 17,
to make working conditions tougher for those employees. It
should not go unnoticed that during the same speech in
which Weltzin announced that employees were free to talk
about union organization during their break periods, he also
effectively did away with the afternoon break and the oppor-
tunity to engage in organizational activity. I find the dis-
1117DBM, INC.
continuance of the afternoon break discriminatorily moti-
vated.
The seventh rule concerned the capping of the incentive
rate at 150 percent of base. This rule is quite different from
those previously discussed. Whereas the first six rules tend
to have the effect of merely making working conditions less
pleasant for the employees, they could arguably indirectly
benefit the employer. The rule capping the incentive rate, on
the other hand, seriously affected the income of employees
while it also adversely affected that of the Respondent.
Weltzin testified that when he read the rules to Respondent’s
employees on January 17, Respondent had just hired a num-
ber of new employees.
Indeed, he claimed that to be one of the reasons he was
reading the rules to them; to acquaint the new employees
with these rules. Weltzin also testified that the reason new
employees were hired was because new extra work was com-
ing in and the Company was stepping up the production of
Deere blocks and other parts which it had to get out. Thus,
Weltzin testified, on the one hand, to planning greater pro-
duction, and on the other, to capping production. The incon-
sistency is blatant and is not explained by Respondent’s in-
credible and totally unsupported claim that the capping was
an attempt to lower insurance costs. That defense will be dis-
cussed infra.
According to Weltzin, when he advised the employees of
the rule capping the incentive rate at 150 percent, he told
them that McCalley and Bunger felt that the employees were
getting too fatigued and the quality of work on the blocks
was suffering. He testified further that he also told them that
employees had been complaining about their wrists and
hands and the safety factor involved.
Robert Folkers testified that whereas there had been a
shortage of parts early in January, and management gave em-
ployees the option of taking time off, by January 17 the
Company had a lot of parts stacked up and a lot of things
to do throughout the entire week. Despite this fact, Respond-
ent decided to put the cap on production, effective imme-
diately.
Folkers testified in support of Weltzin that when he ad-
vised the employees of the 150-percent cap, he mentioned
the safety factor to them. Folkers testified further that em-
ployees had come to him with carpal tunnel, tendonitis and
smashed hands, in effect, agreeing that there was, in fact, a
safety consideration.
Whereas Respondent’s witnesses testified that Weltzin ex-
plained the reasons for the institution of the 150-percent cap,
rank-and-file employees denied that Weltzin gave any expla-
nation. According to employee Boyd Niedert, Weltzin told
the second-shift employees that although they had previously
been allowed to run as many blocks as they could up to that
date, thereafter they would be limited to 150 percent of base.
Weltzin added that there was nobody there that was going
to make over $7.50 an hour; that $10 an hour was gone.
Niedert testified affirmatively that Weltzin gave no reason
for the institution of the 150-percent cap rule, but it would
appear that Weltzin’s statement that the $10-an-hour wage
was gone, implied that limiting the employees income was
the object. Prior to the institution of the rule limiting produc-
tion, employees frequently produced 200 percent or more of
base.
According to Niedert, Weltzin explained that in order to
keep production down to the 150-percent limit, he expected
the employees either to pace themselves over the entire shift
or if they reached their limit early, they could stand around
on the line, at their work stations, or push a broom. They
were not to be permitted to leave the shop or to just wander
around the building.
Employee Hershel Hamilton testified that he attended the
meeting of the first-shift employees where Weltzin read the
rules. Like Niedert, Hamilton testified that Weltzin gave no
reason for the institution of the 150-percent cap rule. Specifi-
cally, he denied that Weltzin mentioned safety in connection
with the new rule.
Employee Steven Belz testified concerning Weltzin’s
meeting with the first-shift employees. According to Belz,
Weltzin stated that henceforth employees would be limited to
150 percent of base rate, which is $7.50 an hour and after
reaching their limit, they were to quit work and remain at
their work stations. Belz specifically denied that Weltzin of-
fered any explanation for the institution of the 150-percent
limitation on incentive production.
Other employees testified with regard to Weltzin’s an-
nouncement of the institution of the 150-percent cap rule and
none of them recalled any explanation of the reason for the
rule’s implementation being given by Weltzin.
With regard to the disparity in testimony between Weltzin
and the rank-and-file employees, I credit that of the employ-
ees and find that Weltzin did not give any reasons for the
institution of the 150-percent cap rule. I find further, that if
the safety of employees or insurance costs or quality of prod-
uct were really considerations, Weltzin would have said so
because the employees were about to suffer a severe cut in
wages and, assuming no animosity present, the naturally
sympathetic thing to do would be to try to explain the neces-
sity for the action. If, on the other hand, Weltzin and Re-
spondent’s management intended the production cap as retal-
iation for the employees’ union organizing efforts, Weltzin
might simply have said, ‘‘No more $10 an hour’’ and, in
fact, that is what he did say.
Moreover, McCalley testified that statistics concerning the
nature and number of injuries to Respondent’s employees
were recorded by the Company nurse. If these statistics
would have reflected a basis for a cause for concern, serious
enough for Respondent to institute the 150-percent incentive
limit, and thus support Respondent’s position, Respondent
would have, of course, introduced them and placed them in
the record. It did not do so. I therefore conclude that there
was no safety factor involved in Respondent’s decision to in-
stitute the 150-percent limitation on incentive earnings. I
find, on the contrary, that the rule was discriminatorily moti-
vated and a violation of the Act.
The eighth rule stated that employees found out of their
work area without a reasonable reason would be rep-
rimanded. Weltzin testified that after reading the rule to the
employees he explained that it did not concern employees
who left their work area to visit the restroom or to get a
drink but those who left their work area to go down ‘‘to talk
to the next guy down the line’’ or to do things that did not
involve the work which they were supposed to be doing.
There was little testimony from rank-and-file employees
with regard to the requirement that they stay at their work
stations while they were supposed to be performing their du-
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ties—grinding and chipping. No employees testified that
there was a change with regard to this requirement and I find
none. However, the requirement that the employees stop
working after producing 150 percent of the incentive base
and stand at their work stations, producing nothing and doing
nothing, was a change in working conditions but was part
and parcel of the violation which I have already found in
connection with the institution of the 150-percent limitation
rule. The remedy I shall propose for the violation found ear-
lier will also remedy the rule requiring the employees to
stand idle at their stations after completing their 150-percent
incentive quota.
The ninth rule states that employees returning late from
breaks will be reprimanded. According to Weltzin, the em-
ployees had a 30-minute break and a 15-minute break. He
testified that frequently they would overstay their breaks by
10 or 15 minutes and he would speak to them about it. Often
he would have to go to the breakroom and admonish the em-
ployees for overstaying their allotted breaktime. On January
17, he read the rule which, though not previously in writing,
had been in practice prior thereto. I find no violation here.
The 10th rule stated that all blocks had to be stamped.
With regard to this rule, Weltzin testified that although cer-
tain parts had been stamped before, it had not been done in
all cases. Weltzin testified that about the time the rules here-
in discussed were issued, management felt a particular need
‘‘to get a handle on our quality problems.’’ The requirement
that all blocks be stamped was merely a quality control
measure taken at this time to remedy problems the Company
had recently been having with quality.
Weltzin testified that he told the employees on January 17
that the blocks had to be stamped so that they could be
traced back to the line and to the individual employees who
had worked on them so that any problems with the blocks
could be corrected. Without knowing which line produced
the flawed block, there was no way of telling who was re-
sponsible for the workmanship; no way of correcting mis-
takes and improving quality. According to two witnesses,
Weltzin threatened to discipline or write up any employee
who forgot to stamp a part.
With regard to this rule, I find that the stamping of parts
had always been required by Respondent, albeit to a lesser
extent than required under the January 17 rule. It was part
of the job legitimately required of employees and if an em-
ployee failed to do his job, it should go without saying, that
action could lawfully be taken against the offending em-
ployee. I find that Respondent expanded the use of the
stamping procedure for the purpose of improving quality
control, that it threatened discipline to ensure compliance
with its requirement, and that the ultimate object was a le-
gitimate business aim and not retaliation against its employ-
ees because of their union activities.
The 11th rule states that if any employees are caught dam-
aging company property or parts because of their own reck-
lessness they will be reprimanded. Weltzin testified that the
occasion for issuing this rule was the fact that certain em-
ployees were damaging the tooling or the parts they were
running. Employees had used pencil grinders to write graffiti
on a number of blocks which, if not caught, might have re-
sulted in a loss of business. All but one such block was dis-
covered before being shipped, but the one that was missed
caused some problems with the customer. Weltzin also testi-
fied to air hoses being deliberately cut and nuts loosened on
air grinders, actions which could have resulted in serious in-
jury. These matters were discussed with the employees on
January 17, according to Weltzin, and given as the reason for
the rule.
Weltzin testified that prior to January 1989 these kinds of
problems had not occurred. They began between January 1
and 17, thus, necessitating issuance of the rule.
One employee testified that Weltzin stated that any em-
ployee caught damaging company property would be termi-
nated. Another, however, testified that the subject was never
discussed.
I find that the rule concerning the disciplining of employ-
ees for damaging company property to be a legitimate one
aimed at protecting the Company’s property. The rule exists
throughout industrial society everywhere, whether in written
form or not. It is implicit in all employer/employee relation-
ships. I find that Respondent’s drawing attention of employ-
ees to the existence of this rule had nothing to do with the
employees’ union activities.
The 12th rule concerned the reprimanding of employees
who ran parts below base rate. Weltzin testified that he ex-
plained this rule mostly for the benefit of those employees
who had been working for Respondent for a number of
weeks or months and producing at or above base rate but
who, just prior to January 17, suddenly began running parts
at below base rate. He explained to these employees that
they would have to get their production up to base rate be-
cause the Company could not afford to pay them more than
they actually earned. He added that they would be rep-
rimanded if they failed to run the parts at base rate.
Employee witnesses did not testify at length with regard
to this rule. Employee Derbyshire testified that Weltzin
threatened employees with termination if they failed to make
rate. I credit Weltzin that he used the term ‘‘reprimand.’’
The record is clear that there was always a base rate con-
nected with the incentive program, and one must assume that
if an employee consistently failed to make the base rate his
supervisor would talk to him about it. I find that the rule,
though not in written form, was one that was in practice
prior to the advent of the Union and its reiteration on Janu-
ary 17 was not discriminatorily motivated.
The 13th rule which prohibited the use of alcohol and
drugs and the 14th rule which dealt with insubordination had
been included in the company’s original written list of rules,
published and in effect long before the advent of the Union.
Their inclusion in the new list did not violate the Act.
As noted above, the decision to reduce the price paid to
employees for block production from $1.45 to $1.15 was
made and announced prior to January 17. However, the re-
duced price first went into effect that day for most employ-
ees, since many of them did not work January 16, a holiday.
It is therefore natural that during the question period which
followed the meetings Weltzin held on January 17 to discuss
the rules the subject of the block price reduction would have
been brought up by concerned employees, even though it
was not one of the rules, new or old, which Weltzin read to
them during the meetings proper. This would account, in
part, for the discrepancies and confusion in the testimony of
various witnesses trying to remember precisely when they
first heard about the block price reduction. When the subject
1119DBM, INC.
20 Par. 5(g).
21 Par. 5(h).
22 Par. 5(i).
23 Par. 5(k).
24 By stipulation at the hearing.
25 Par. 5(i ).
26 By stipulation at the hearing.
27 Par. 6(b).
was brought up, Weltzin explained to the employees the
basis for the reduction.
The reduction in the block price meant that at $1.45 per
block, the employees had only to produce 112 to 115 blocks
to reach their 100 percent base whereas at $1.15 per block,
the employees then had to produce about 140 blocks to reach
their 100 percent base. Thus, under the new rate, the employ-
ees had to work longer to make the same amount of money.
The institution of the 150-percent cap rule automatically lim-
ited employees’ income to $7.50 per hour, whereas prior to
January 17, Respondent’s employees could and did produce
200 percent or more of incentive and thereby earned $10 or
more per hour. Thus, the lawful implementation of the block
price reduction and the unlawful institution of the 150-per-
cent limit on production rule had an immediate adverse effect
on the income of Respondent’s employees. From $450 to
$500 per week, some employees’ income dropped to $300
per week.
The institution of the 150 percent rule affected the em-
ployees’ working conditions as well as their paychecks.
Whereas prior to January 17, the employees reached their
100 percent of base at 11 a.m. or noon, then earned incentive
pay the rest of their shift, after January 17 they were forced
to stop working shortly after noon, having reached 150 per-
cent, and had to stand at their work stations, doing nothing,
producing nothing and earning nothing, unless, of course,
they chose to, or were told to, push a broom.
In addition to Weltzin’s announced institution of new plant
rules, the complaint alleges that other incidents occurred on
January 17 which were violative of the Act. Thus, the com-
plaint20 alleges that Foreman Michael Johnson, on that date,
threatened employees that Respondent would relocate its op-
erations as a reprisal for employees’ activities for and on be-
half of the Union. This violation was admitted by Respond-
ent at the hearing. The complaint21 further alleges that on
January 17, President McCalley and Vice President Bunger
solicited employees’ complaints concerning working condi-
tions, impliedly promised that such complaints would be cor-
rected, and threatened that it would discontinue operations
because of employees’ activities for and on behalf of the
Union. This violation was likewise admitted by Respondent
at the hearing. Finally, on the same date, the complaint22 al-
leges that Respondent, by its foreman, Weltzin, told employ-
ees, that Respondent was not soliciting business because of
employees’ activities for and on behalf of the Union. Re-
spondent admitted this violation at the hearing.
These violations, particularly the threats to relocate and to
cease soliciting business, support the earlier finding that the
150-percent cap on production was discriminatorily moti-
vated. The reduction in production would tend to prove that
Respondent was serious when it threatened to relocate and to
cease soliciting new business. The fulfillment of any of these
threats would injure these employees financially.
Late in the evening of January 17, after Weltzin had held
his two meetings with employees, Boyd Niedert asked em-
ployee Doug Akely for some union cards that Akely had in
his locker, advising him that he had a couple of employees
interested in filling them out. Akely supplied the cards and
Niedert distributed about six of them to fellow employees
during the remainder of the break which took place early in
the morning of January 18. He explained to them that the
first shift had started a union organizing drive and had al-
ready held some meetings. He asked those present to go
along with the effort. One employee filled out the card,
signed it, had his signature witnessed and returned it to
Niedert who eventually gave it back to Akely.
John Ambrose, Niedert’s supervisor at the time, had taken
Niedert and the other employees to the breakroom for their
supper break. While Niedert distributed the cards, Ambrose
was standing about 10 feet away, talking to another table of
employees. Ambrose did not address Niedert nor any of the
employees to whom Niedert was talking, nor did he com-
ment on the distribution of the cards.
The employees to whom Niedert distributed the union
cards were all younger than Niedert, some with just 4 to 6
weeks of service with Respondent. After the supper break,
Ambrose took the employees back to their work stations
where they worked for 3 more hours to finish the shift. They
then worked the next shift and some, though not Niedert,
even worked the following shift.
Ambrose, in an affidavit supplied to the Board by him, ac-
knowledged seeing union authorization cards in the break
room on January 18, but denied witnessing anyone sign the
cards. Nevertheless, the complaint23 alleges, and Respondent
admits,24 that Ambrose, on January 18, threatened employees
with layoffs because of their activities for and on behalf of
the Union.
The complaint further alleges,25 and Respondent admits,26
that on January 18 Foreman Michael Johnson threatened an
employee with layoffs by telling him that Respondent was no
longer bidding on jobs as a reprisal for its employees’ activi-
ties for and on behalf of the Union.
I find each of these incidents violative of Section 8(a)(1)
of the Act and evidnce supportive of allegations of violations
of Section 8(a)(3). On January 18 Johnson made his sym-
pathies and loyalties clear by telling certain employees, in-
cluding Boyd Niedert, that he had told the Union to ‘‘screw
off,’’ that he did not need it. Since Johnson had attended the
meeting at the union hall, in light of his sympathies, I find
it likely that he informed management of whatever he knew
of employees’ union activities.
On January 19 Respondent laid off employees Michael
Derbyshire, Larry Latham, and Boyd Niedert. The complaint
27 alleges that the layoffs were discriminatorily motivated
and in violation of Section 8(a)(1) and (3) of the Act. Re-
spondent denies the allegation. Though Respondent admits
that these three employees were laid off, it denies that the
layoff was discriminatorily motivated.
The evidence on which the General Counsel relies to
prove its allegation is substantial. With regard to Derbyshire,
the record indicates that he was one of the three employees
who first contacted the Union on January 3. When Schneider
told him to contact fellow employees in order to schedule a
meeting, he contacted 10 or 11 of them and solicited their
cooperation on behalf of the Union. After advising the Union
of his contact with the other employees, he contacted them
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Par. 5(l).
29 By stipulation at hearing.
30 Par. 5(m).
31 By stipulation at the hearing.
a second time to advise them of the union meeting scheduled
for January 10. The record clearly reflects that Derbyshire
was among the first and most important activists.
When Johnson began to interrogate employees concerning
their union activity on January 9, and Ambrose, on the same
date, wore a sign with the caption ‘‘Down with the Union’’
and Weltzin, the following day, threatened an employee with
discharge because of his union activities, it clearly indicated
that Respondent was aware of its employees’ union activities
and resented it to the extreme.
Derbyshire attended the union meeting on January 10, ob-
tained union buttons, and wore them thereafter, thus specifi-
cally identifying himself as a union adherent. Meanwhile,
Respondent’s supervisors continued their campaign of inter-
rogation and threats over the next several days, including
threats to discontinue operations.
When Ambrose warned employees on January 13 not to
attend the union meeting scheduled for the following day,
Respondent not only violated the Act but indicated that Re-
spondent was probably aware of what went on at the union
meeting of January 10 because it was there that the meeting
for January 14 was scheduled. It is therefore more than likely
that Respondent was aware of Derbyshire’s presence at the
meeting of January 10 and of the extent to which he partici-
pated in it.
Despite management’s warning that its employees should
not attend the meeting on January 14, more than 20 of them
did so, including Derbyshire, Latham, and Niedert, who also
signed union cards as did everyone present. Since Michael
Johnson also attended, there is no doubt that their presence
and activities there were reported back to management as
was the presence and activities of all of the employees who
attended the meeting.
When, on January 17, Johnson threatened employees that
Respondent would relocate its operations, and McCalley and
Bunger threatened them that Respondent would discontinue
operations and Weltzin told them that Respondent was no
longer soliciting business, all because of the employees’
union activities, these members of management were not just
threatening the ringleaders but all of the employees engaged
in the organizational campaign, virtually the entire first shift,
the 22 two rank-and-file employees whom it knew had at-
tended the meeting and signed union cards on January 14.
When, on January 18, Ambrose reiterated Weltzin’s earlier
threat that Respondent was no longer soliciting business be-
cause of the employees’ organizational efforts he, as second-
shift supervisor, was adding to the list of threatened employ-
ees, those on the second shift whom he had seen accept
union cards from Niedert the evening before.
The complaint28 alleges and Respondent admits29 that on
January 19, McCalley and Bunger assembled Respondent’s
employees and solicited their complaints concerning working
conditions and impliedly promised to correct such com-
plaints, in order to discourage employees’ activities for and
on behalf of the Union.
The complaint30 further alleges, and Respondent admits,31
that on January 19, Foreman Michael Johnson told employ-
ees that Respondent had rejected orders from customers and
that it was going to discontinue operations because of its em-
ployees’ activities for and on behalf of the Union.
On January 19, Derbyshire worked the first shift. At 2
p.m., Weltzin called him away from his job and took him
to the breakroom. There, he told Derbyshire to turn in his
helmet, that he was being laid off for lack of work.
Derbyshire was third in seniority at the shop and neither he
nor the two employees senior to him had ever been laid off
before.
Derbyshire testified that in previous layoffs Respondent
had always laid off according to seniority. The subject of
layoffs according to seniority had been brought up on pre-
vious occasions of layoffs and Derbyshire received the im-
pression that this had been the practice. On January 19, how-
ever, Respondent did not follow this practice in Derbyshire’s
case nor in the case of the two other employees laid off that
day.
After being laid off, still on January 19, Derbyshire went
to McCalley’s office to talk to him about it. When he entered
the office, McCalley was walking toward a filing cabinet,
just 5 or 6 feet away. McCalley neither said anything nor ac-
knowledged Derbyshire’s presence. Derbyshire asked
McCalley why he had been laid off. McCalley remained si-
lent and did not look at Derbyshire. Derbyshire said, ‘‘Well,
Doug, this has never happened this way before. Why did you
do it?’’ McCalley replied tersely, ‘‘That’s the way it goes.’’
Derbyshire left.
Shortly after January 19, several of Respondent’s employ-
ees had a meeting with McCalley and after the meeting was
over asked him why he had laid off Derbyshire when he was
near the top of the seniority list. McCalley replied that the
Company was laying off the slower chippers and Derbyshire
was one of them.
The second employee laid off on January 19 was Larry
Latham. Evidence concerning Latham and his layoff was en-
tered into the record chiefly by stipulation. Thus, it was stip-
ulated that Latham had been hired on June 30, 1988. In Janu-
ary 1989 he was working on one of the block lines. He was
laid off on January 19 at the end of his shift, which was the
first of the day. As noted earlier, Latham attended the union
meeting on January 14 and signed a card.
It was further stipulated that as of January 19 Latham had
a hiring date earlier than some full-time block line employees
who were retained on first shift and who were not laid off
before the time of his recall at the end of January. He also
had a date of hire earlier than some full-time employees who
were transferred from the second shift to first shift on or
about January 19, and who remained on the first shift, and
not laid off before Latham was recalled.
Boyd Niedert is the third employee alleged to have been
laid off on January 19 for discriminatory reasons. He wore
union buttons every day at work after obtaining them at the
January 14 union meeting where he, like the others, signed
a union card. As noted above, Niedert had distributed union
cards to certain second-shift employees during break early in
the morning on January 18. Later that day there was a layoff
of a number of recently hired employees, apparently by se-
niority. Thereafter, at the 8 p.m. second-shift supper break,
Niedert asked Ambrose why certain employees had been laid
off. He commented that it seemed awfully funny to him that
three quarters of the guys to whom he had given union cards
the night before had been laid off. He added that he thought
1121DBM, INC.
32 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
the Company was wrong laying them off. Ambrose replied
that Respondent was not a union shop, that the Company did
not have to go by seniority to lay off and that there was
going to be some more layoffs.
On January 19, as Niedert was getting ready to go into the
locker room before the second shift, he was stopped by Am-
brose who asked him if he wanted to work that night or just
go home since it was his last day. Niedert stated that if he
was being laid off he might as well go home.
Niedert testified that he did not know if there were other
second-shift employees who were laid off, but he did know
that two employees with less seniority than he were kept on,
one or both being transferred to the first shift later on.
Further, with regard to seniority, Niedert testified that un-
like Derbyshire, he had been laid off once before. Presum-
ably this was the previous October. On this occasion,
Weltzin took Niedert to the maintenance room to let him
know about the layoff. According to Niedert’s very credible
testimony, Weltzin told him that he hated to let him go be-
cause his work was a lot better than that of many of the
other employees, but he had to lay Niedert off by seniority.
He added that he did not want to do it but Niedert had less
time than anyone else. At that time, Niedert was on the first
shift and he and the other two first-shift employees laid off
along with him were the most junior of any employees on
the first shift. Niedert did not know if Weltzin was referring
to plant seniority or shift seniority. The layoff in October
lasted 2-1/2 to 3 weeks and when called back, Niedert was
put on second shift.
Employee Hamilton also testified concerning the procedure
used by Respondent on occasions of previous layoffs and
stated that it was by seniority. Moreover, according to Ham-
ilton, Weltzin specifically stated that the Company laid off
by seniority.
With regard to the layoffs of Derbyshire, Latham, and
Niedert on January 19, I find that the General Counsel has
established a prima facie case. The three were all involved
in the union organizational campaign and this fact was
known to Respondent’s supervisory staff. Antiunion animus
was clearly established and the timing of the layoffs, coming
at the height of the union campaign, supports the General
Counsel’s case. In addition, I credit the General Counsel’s
employee witnesses that testified that previous layoffs had
been in accordance with seniority whereas the layoffs of Jan-
uary 19 were not. I also credit the General Counsel’s wit-
nesses that testified that by January 19 there was plenty of
work to be performed, but also find that if there was not, it
was because Respondent actually carried out the threats of its
supervisors that new orders would not be filled and would,
on the contrary, be rejected because of the union activities
of Respondent’s employees. I find, in accordance with the
numerous 8(a)(1) allegations contained in the complaint and
equally numerous admissions thereto, that Respondent’s
agents threatened Respondent’s employees with layoff be-
cause of their union activities. I also find that the General
Counsel has proven a prima facie case that Respondent’s
threats were carried out with the layoff of Derbyshire,
Latham, and Niedert on January 19.
Once the General Counsel has established a prima facie
case, the burden shifts to Respondent to show that
Derbyshire, Latham, and Niedert would have been laid off
regardless of their union activities.32
Respondent called several witnesses to testify to the rea-
sons the three alleged discriminatees were laid off. Certain
members of management testified that the layoffs in January
basically followed the procedure used in previous layoffs.
Weltzin testified that the layoffs on January 18 and 19 were
necessitated by the fact that John Deere had not yet geared
up, that therefore there were insufficient parts to keep every-
body busy. This being the case, according to Weltzin,
McCalley and Bunger requested Weltzin to lay off a certain
number of employees and to decide himself, which employ-
ees should be laid off.
Weltzin testified that in choosing employees for layoff in
January he followed the same criteria he used during the lay-
off which had occurred October 21, 1988, and lasted until
November 10, 1988. He did not choose according to senior-
ity in January any more than he had the previous October.
Rather, he chose to keep those employees whose quantity
and quality of production and ability to run different parts
was superior to that of other employees.
On January 18 he laid off three to five newly hired em-
ployees and on January he laid off the three alleged
discriminatees.
Three supervisors were called to support Weltzin’s testi-
mony. Gary Nie testified that in October employees were
laid off in accordance with the types of parts being run. Em-
ployees had experience running only certain parts. If an em-
ployee ran out of the parts which he knew how to run, he
was laid off because he did not know how to run the other
parts which were available. Nie, who was a supervisor at the
time, stated that employees were unhappy that Respondent
did not lay off according to seniority.
On cross-examination, however, Nie admitted that neither
Bunger nor McCalley ever confided in him how they chose
employees for layoffs nor conferred with him on the subject.
He further admitted that the layoff in October 1988 had noth-
ing to do with him and that his testimony on the subject of
how management chose employees for layoff was merely an
assumption on his part.
Folkers, a supervisor, who was a rank-and-file employee
in October 1988, testified that the layoff, which lasted until
mid-November, pretty much followed seniority; that one or
two employees had been laid off out of seniority if their per-
formances were not good enough to keep them.
Todd Salisbury, another supervisor, who was a rank-and-
file employee at the time of the October 1988 layoff, testi-
fied that layoffs then were determined by which employee
was running what parts and what parts were needed. Salis-
bury was not laid off at the time and did not notice if em-
ployees were irritated because seniority was not followed.
Bunger testified, like Weltzin, that the procedure followed
during the January layoff was the same as the one used the
previous October and that the determination as to which em-
ployees would be laid off was made by McCalley and
Weltzin, based on Weltzin’s recommendations. Bunger de-
nied that he had much input as to which employee was going
to be laid off.
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bunger explained that Weltzin’s recommendations were
considered most important because he was on the floor with
the employees most of the time and could best determine
which employee was doing the best and most productive
work and who was most suited for what job.
Production is most important, according to Bunger, when
determining which employees to lay off. Production records
for each employee are kept by the Company. Each employee
writes down on his job card precisely how many pieces of
a given part that employee has run. Since Bunger, in the
usual course of his job function, handles these job cards, he
has a good sense of which employees are most productive
and occasionally will indicate to McCalley or Weltzin that a
certain employee, not previously chosen for layoff, should be
considered for layoff since his dollar output is not as great
as that of other employees.
McCalley testified basically in agreement with Bunger and
Weltzin. He stated that the October 1988 layoff was the only
other layoff that the Company had had prior to January 1989
and that the procedure followed and the criteria used for de-
termining which employees to lay off was the same.
McCalley further testified that employees from both the first
and second shifts were laid off on January 18 and 19 and
that some employees were transferred to the first shift from
the second shift which was eliminated. He explained that the
layoff was caused by the fact that the Company did not have
enough customer parts to justify two shifts.
McCalley testified that the layoffs were necessary because
Respondent did not have the parts to run. The laid-off em-
ployees, he said, were specialists on the parts which were no
longer in supply and Respondent had nowhere to employ
them. It was hoped that in a few weeks when parts arrived,
the laid-off employees could be recalled. McCalley added
that as a service company Respondent had no control over
when parts would be delivered and he could not keep the
idle employees just standing around until parts arrived. He
testified that there was no intention not to recall the laid-off
employees because it would take too long to break in new
employees.
McCalley agreed with the testimony of Weltzin and
Bunger to the effect that Respondent depended on Weltzin
to make the decision on layoffs because he was out on the
floor and was familiar with the employees’ work and with
the available workload.
McCalley testified that the newly hired employees were
laid off on January 18. They were, he said, not put to work
on Pontiac blocks because of their inexperience and because
the customer supplying Pontiac blocks was particular. These
employees were put on other parts and when Respondent ran
out of these other parts the new employees were laid off.
They were also laid off because they were the least produc-
tive. On January 19, Derbyshire, Latham, and Niedert were
laid off, McCalley testified, because Respondent ran out of
the type of parts on which they had been working.
According to the undisputed credited testimony of em-
ployee Hershel Hamilton, a day or two after the layoff of the
three alleged discriminatees, he asked Johnson why
Derbyshire had been laid off when he was at the top of the
seniority list. Johnson winked at Hamilton and said, ‘‘We
both know why.’’
Nie testified that beginning January 19 and continuing
until the end of January only the first shift worked and there
was no second shift. This, he said, was because of a shortage
of parts to chip and grind. Hamilton, on the other hand, testi-
fied that after the layoffs he saw another employee drilling
suitcase weights on several occasions, a job normally done
by Derbyshire and Hamilton.
I find with regard to the layoff of Derbyshire, Latham, and
Niedert that Respondent has failed to carry its burden of
showing that they would have been laid off regardless of
their having participated in union activities. Not only do I
find the testimony of the General Counsel’s witnesses more
convincing and credible than that of Respondent’s witnesses,
but I also find that with regard to a number of issues Re-
spondent failed to offer documentation in its possession
which, if it supported Respondent’s position, should have
and would have been placed in the record.
Thus, Respondent’s assertion that historically it never fol-
lowed seniority during layoffs could easily have been proven
by introducing personnel files into the record indicating dates
of hire of employees laid off in October 1988. Failure of Re-
spondent to produce and offer into the record these docu-
ments, gives rise to the presumption that the documents, if
produced, would not have supported Respondent’s case but
would do the opposite, and I so find.
Further, Respondent’s position that in January it chose to
keep junior men working while laying off more senior em-
ployees because the junior employees were working on avail-
able parts while the senior employees did not have any parts
available on which to work, could easily have been proven
by introducing into the record the timecards, which reflect
the type of part which employees worked on prior to and
after the layoff. Respondent’s failure to offer these records
raises the presumption that if they had been introduced they
would not have supported Respondent’s position but would
do the opposite, and I so find.
Respondent takes the position that it kept employees work-
ing regardless of their seniority if their production was great-
er than that of other employees. However, Respondent failed
to offer the timecards which reflect the number of pieces
each employee produced each day. Respondent’s failure to
produce this evidence in support of its position warrants the
presumption that if it were introduced it would not support
Respondent’s position but would do the opposite, and I so
find.
I therefore conclude that Derbyshire, Latham, and Niedert
were laid off on January 19 in retaliation for their union ac-
tivities in violation of Section 8(a)(1) and (3).
Though there had been two shifts prior to the layoff of
January 18 and 19, about the time of that layoff the Re-
spondent eliminated its second shift. It laid off certain of the
second-shift employees and transferred the remainder to the
first shift.
On January 23, the Union filed its petition for a represen-
tation election and the following day held its third organiza-
tional meeting at the union hall with Respondent’s employ-
ees, 18 of whom attended. Following the union meeting, of
January 24, and on the same day, Foreman John Ambrose in-
terrogated an employee concerning the number of employees
who had attended the meeting and threatened the same, or
another, employee that Respondent would discontinue oper-
ations if the employees voted for union representation.
1123DBM, INC.
33 Pars. 5(g) and (r), respectively.
34 Par. 5(n).
35 By stipulation at the hearing.
36 The precise date of Derbyshire’s reinstatement is not clear from the
record so no conclusion is possible as to the effect of the filing of the charge
on the decision to recall Derbyshire.
37 Pars. 5(o) and (p), respectively.
38 The complaint alleges no violation in connection with the hiring of new
employees. Although the Respondent and Union had signed a Stipulation for
Consent Election on February 2, the agreed-upon payroll ending date was Feb-
ruary 1, and the election was not affected by the new hires.
Both the interrogation and threat were alleged in the com-
plaint33 as violative of Section 8(a)(1) and both allegations
were admitted at the hearing by stipulation. I find both inci-
dents violative of the Act, as alleged.
The complaint alleges34 that on January 25, Respondent
violated Section 8(a)(1) of the Act by its Foreman Johnson,
who interrogated an employee about that employee’s union
activities and desires. The Respondent admitted,35 and I find,
the violation.
Toward the end of January, McCalley called Derbyshire
and told him that he had some work available for him on
the third shift. Derbyshire had never worked on third shift
prior to his layoff. Indeed, there had not been a third shift
in existence immediately prior to the layoff. Derbyshire ac-
cepted the recall offer and began working on the 10:30 p.m.
to 7 a.m. shift with John Ambrose as his supervisor. Niedert
was also recalled.
At the time of his return, Derbyshire noted that engine
blocks were being run both on the first and third shifts. The
third shift had just one block line running with only two men
on the line instead of the usual four. Derbyshire automati-
cally attempted to fill in on the block line since he had expe-
rience on the blocks but Ambrose told him that McCalley
had said that Derbyshire was not to work on the blocks.
When Derbyshire asked why, Ambrose replied that he did
not know, that McCalley had written these instructions on a
note for him. Ambrose then assigned Derbyshire to chip and
grind axles and miscellaneous parts. The axles were bigger
and a different type than any that he had run before and al-
though it was incentive work, he was only able to produce
at 50 percent initially. No one else on the third shift was as-
signed the same job that Derbyshire was doing. Eventually
he was able to meet the incentive requirements.
After being called back to work on third shift, after the
first night’s work, Derbyshire went to McCalley’s office and
asked McCalley how long he was going to be on third shift.
McCalley replied that he did not know, that Derbyshire was
lucky to have a job. He then accused Derbyshire of trying
to run the Company and said that Derbyshire’s attitude was
poor. Derbyshire defended himself, stating that he thought
things should be fair, and that ‘‘it wasn’t meant that way.’’
I find that, in the conversation between McCalley and
Derbyshire, described immediately above, McCalley was ac-
cusing Derbyshire of taking over the running of Respond-
ent’s business by helping organize on behalf of the Union;
that the reason that he was put on third shift rather than first
was because of his union activity. I find, further, that when
McCalley told Derbyshire that he was lucky to have a job,
he was telling him that, but for circumstances beyond his
control, he would not be recalling Derbyshire at all.
Based on the circumstances and this discussion, I find fac-
tually that Respondent’s recalling Derbyshire to the third
shift rather than to the first shift was discriminatorily moti-
vated and that his assignment to the heavy axle work rather
than to the block work was also discriminatorily motivated.
I do not, however, find violations with respect to either the
shift assignment or the work assignment inasmuch as they
were not alleged as such. I do rely on them, however, as evi-
dence of continued animosity toward employees who were
active on behalf of the Union.
The factual finding that Respondent’s treatment of
Derbyshire, after his recall, was discriminatorily motivated
raises the question: ‘‘Why, then, did Respondent bother to
recall Derbyshire at all?’’ Unfortunately, the record does not
supply a definitive answer to this question but does supply
three possible answers. First, Respondent hired counsel and
received its first legal advice on January 20. Second, the
charge in Case 18–CA–10771 was filed on January 30 and
Respondent may have been advised that if the layoff were
determined to have been a violation of the law, it could cost
Respondent substantial backpay unless it rehired
Derbyshire.36 Finally, Respondent was party to a contract
with the agency which administers the Job Partnership Train-
ing Act. The Job Partnership Training Act provides that if
an employer hires an employee in a disadvantaged category,
the agency will pay half of the employee’s wages, up to 11
weeks. The Job Partnership Training Act also provides, how-
ever, that if one of these disadvantaged employees is laid off,
he must be rehired before any new employee is hired, other-
wise the agency will discontinue paying part wages. The
record is unclear as to whether Derbyshire was a participant
in this program. In any case, for whatever reason, I find that
Respondent continued to bear animosity toward Derbyshire
because of his involvement with the Union, but nevertheless
felt constrained to rehire him.
On February 3, Foreman Michael Johnson told an em-
ployee that Respondent was laying off senior employees and
replacing them with newly hired employees because of the
employees’ union activities. The same day Weltzin told em-
ployees that Respondent was not soliciting business because
of their union activities. Both of these statements were al-
leged in the complaint37 and were admitted at the hearing.
I find them both violative of Section 8(a)(1) of the Act.
On February 3, as though in partial fulfillment of John-
son’s threat, Respondent hired seven new employees, mostly
as chippers.38 Within the next 3 weeks, Respondent hired 11
more new employees. According to Respondent’s witnesses,
although the Company had three shifts going and employees
were working overtime, Respondent was still falling behind
in production and so had to hire additional employees. The
150-percent cap was still in effect.
Hamilton asked Weltzin and McCalley, about this time,
why Respondent was hiring new employees when he had
been told earlier that there were going to be no new jobs and
no bidding for new jobs. McCalley and Weltzin both replied
basically that it was none of Hamilton’s business, that there
was work there and there was more work coming in.
About February 6 McCalley finally recalled Niedert. This
was several days after he began hiring new employees. That
McCalley chose to employ new, inexperienced help rather
than recall Niedert is further evidence of discriminatory mo-
tivation.
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Pars. 6(e) and (h).
40 Testimony to the contrary is not credited.
41 Par. 6(e).
42 Murphy Oil, USA, 286 NLRB 1039 (1987).
43 Wright Line, supra.
44 Pars. 6(g) and (h).
The complaint39 alleges that Respondent discharged its
employee Howard Howe on February 20 because of his
union activities. The record indicates that Howe worked Sun-
day, February 12 through Friday morning, February 17.
Howard Howe was a known union activist among Re-
spondent’s employees. He attended the union meeting on
January 14 and signed a union authorization card on that oc-
casion. Since this meeting was also attended by Michael
Johnson, an admitted supervisor, it is certain that Howe’s at-
tendance was known to Respondent. Following the meeting,
Howe attempted to get other employees to sign union cards
both at their homes and at the shop. After January 14, Howe
conspicuously wore union buttons every day at the shop. I
conclude that Respondent was well aware of his union sym-
pathies.
On the morning of Friday, February 16, during the third
shift, Howe’s supervisor, John Ambrose, approached a group
of employees which included Howe and told them that be-
cause Respondent was behind schedule there was going to be
overtime beginning that evening. Howe objected that he
could not work because he had already made plans with his
wife to go to Des Moines over the weekend to celebrate their
second wedding anniversary. Ambrose instructed Howe to
talk to McCalley about the matter. Howe sought out
McCalley and told him what he had told Ambrose. McCalley
merely stated that he ‘‘could really use’’ Howe but said
nothing more. Howe rejoined that he had already made plans
and could not change them. McCalley did not reply. He did
not instruct Howe that he had to work the overtime, nor did
he threaten Howe with discipline if he failed to work over-
time. He did not state that overtime was mandatory.40 Howe
did not work overtime that Saturday.
When Weltzin reported to work Sunday morning, Ambrose
told him about Howe’s failure to work overtime. Weltzin tes-
tified that Howe’s failure to work the assigned overtime hurt
the Company because running a four-man block line with
just three men was not as efficient. He emphasized that ev-
eryone who was not sick worked overtime that weekend, par-
ticularly on the block line, Howe being the exception.
I do not doubt that Respondent could have used Howe on
the evening in question but find that his absence from the
block line was not as serious a matter as Weltzen portrayed.
After all, just a few weeks before, when Derbyshire first re-
turned to work and joined two coworkers on the understaffed
block line, management immediately took him off the block
line, letting it continue to run understaffed, so that he could
be assigned more difficult work at which he could not make
rate.
When Howe returned to work on his next regular shift,
Sunday, February 19, his supervisor, John Ambrose, asked
him if he had a doctor’s excuse to cover his absence on Sat-
urday. Howe replied that he did not, that McCalley knew the
reason that he had not worked overtime. Ambrose stated that
he had been told by Bunger that if Howe did not have a doc-
tor’s excuse, to let him go. Howe argued briefly that Am-
brose knew why he had not worked overtime on Saturday.
He then went to his locker, gathered his belongings, and left.
After his discharge, Howe applied for unemployment ben-
efits at Job Services of Iowa. He supplied that agency with
a statement concerning the circumstances of his discharge.
His statement was basically the same as his later testimony
at the Board hearing. Howe subsequently received a few pay-
ments but these were stopped after Respondent successfully
appealed Howe’s case and Howe then had to repay the agen-
cy the money he had received earlier.
The appeal took the form of a telephonic hearing in which
an administrative law judge listened to Howe and McCalley
explain their positions. McCalley emphasized the importance
of the overtime which Howe failed to work and the fact that
Howe had missed work on one previous occasion. Howe of-
fered no defense but merely agreed to McCalley’s descrip-
tion of events. Neither the question of discriminatory motiva-
tion nor the fact of Howe’s union activity were considered.
The judge found against Howe. He appealed the judge’s de-
cision to the Employment Appeal Board but lost.
On February 24 Howe visited the plant and asked
McCalley to be reinstated. McCalley told Howe that he
would like to rehire him, that he had never had any com-
plaints about his work but he could not do so because of the
union negotiations. Precisely what McCalley meant by this
statement is not clear from the record. However, the state-
ment does clearly establish a connection, in McCalley’s
mind, between Howe’s employment, or lack thereof, and the
Union.
The complaint41 alleges and I find that Howe’s discharge
was discriminatorily motivated. I make this finding based on
the following considerations: Howe was active in the union
campaign. He attended a union meeting, spoke in favor of
the Union to fellow employees both at the shop and away
from it, and openly wore union buttons. Respondent was
fully aware of Howe’s prounion sympathies because Johnson
attended the same meeting that Howe attended and so was
aware of his attendance and, of course, Howe’s wearing of
the union buttons at work, in front of management, pro-
claimed his union sympathies. Supervision’s threat to replace
senior, reads prounion, employees with newly hired employ-
ees because of their union activities was an accurate forecast
of exactly what happened in Howe’s case. The discharge of
Howe at this time, if effective, would have precluded his
casting a ballot for the Union in the forthcoming representa-
tion election, scheduled for March 10. Respondent’s insist-
ence that Howe’s presence was vital to his four-man Pontiac
block team lacks credibility in light of its treatment of
Derbyshire whom they removed from an already understaffed
team on his return from layoff. Finally, application to Howe
of the ‘‘doctor’s excuse’’ rule, which I have found to have
been discriminatorily implemented in violation of Section
8(a)(1), is unlawful42 and requiring a doctor’s excuse for an
absence due to celebrating a wedding anniversary is stupid.
But for the fact that Howe was a known union adherent
who would certainly cast his ballot for the Union, Respond-
ent would not have discharged him for celebrating his wed-
ding anniversary rather than working one shift of overtime.43
The complaint44 alleges that on March 8 Respondent dis-
charged employee Steve Belz because of his union activities.
The record reveals that Belz was an active union adherent.
He attended at least two union meetings including the Janu-
1125DBM, INC.
45 Belz’ version of this conversation differs markedly from Folker’s version
which appears above in the text. Where the testimony of Belz differs from
that of Folkers, I have credited Folkers.
46 Wright Line, supra.
47 Klate Holt Co., 161 NLRB 1606 (1966); A&T Mfg. Co., 276 NLRB 1184
(1985).
48 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
ary 14 meeting where he signed the sign-in sheet imme-
diately after Michael Johnson, then sat next to him during
that meeting. Belz also signed a union card at that meeting.
Thereafter, he wore union buttons every day to work. Obvi-
ously, Respondent had knowledge of Belz’ prounion sym-
pathies.
Belz had been employed by Respondent since March
1988, most recently as a chipper and grinder. On March 7,
the date of his discharge, Belz rode to work with fellow em-
ployee Brian Lampman because Belz no longer had a driv-
er’s license. At 11:30 a.m., Belz and the other employees on
his Pontiac block team, on the first shift, reached the 150-
percent production mark and, under the rule still in existence,
stopped production. Weltzin told Belz to remain at his work
station and push broom or do ‘‘odd stuff.’’ Belz swept
around his work station and generally cleaned up the area.
The other members of his team just sat at their work stations.
There was a half hour break at noon after which the em-
ployees went back to their work stations and Belz pushed a
broom up and down the main floor. Bob Folkers, a close
friend of Belz’, had been assigned as supervisor over Belz
and his fellow workers on the block line just 2 or 3 days
before. On the afternoon of March 7 he did not assign any
work to Belz so Belz and his coworkers were expected to
sit around, sweep, or do ‘‘odd things’’ until 3:30 p.m. when
the shift was scheduled to end.
About 1:30 p.m., Lampman came over to Belz and in-
formed him that he had gotten permission from Sid Bunger
to leave work early because he was not feeling well. Belz
then went over to Folkers and asked him if he could leave
early because his ride was leaving. Folkers replied that Belz
could not leave just because his ride was leaving.45 He then
offered to give Belz a ride himself, something which he had
done numerous times before, after the shift was over. He
then sent Belz back to work by telling him to ‘‘find some-
thing to do.’’ Belz left the maintenance room where he had
been talking to Folkers. The latter assumed Belz was return-
ing to his work station after being refused permission to
leave. Instead, Belz picked up his tools, left the floor, and
the plant with Lampman. Half an hour later, Folkers went to
look for Belz and found out that he had gone for the day.
Belz, at the time of his discharge, was the second most
senior employee and it is undisputed that he was one of Re-
spondent’s most productive employees, turning out quality
work in great quantity. His attendance was good and he re-
ceived no warnings and few criticisms since working for Re-
spondent. Nevertheless, with regard to this incident, accord-
ing to Folkers, he was not treated any differently from any
other employee. It was company policy, at the time, to keep
the employees at the plant until the shift ended even though
they may have met the 150-percent cap hours earlier. No one
was permitted to leave simply because the production cap
had been reached. The employees, rather, were expected to
sweep, band or unband blocks, or just remain at their work
stations.
On March 8, Belz again rode to work with Lampman.
When he arrived, Folkers told him to go see Bunger. He did
so and was told to go get Weltzin and Folkers. When he re-
turned with the two supervisors, Bunger told him he was
fired for leaving without filling out his timecard. Belz com-
plained about not receiving a written warning before being
terminated but Bunger noted that the matter was too serious
to warrant a mere warning. He instructed Weltzin and
Folkers to take Belz to his locker and clean it out. They did
so and Belz left the plant. Later, Belz returned to the plant
to pick up his check. He asked Bunger for a good work rec-
ommendation. Bunger agreed to provide one noting that there
was nothing wrong with Belz’s work, that he had ‘‘just
stepped out of line.’’
I find with regard to Belz’ termination that although Re-
spondent was undoubtedly happy to get rid of another
prounion vote it would have terminated any employee who
walked off the job in the face of a direct order to remain.
I recommend that the allegation be dismissed.46 An employ-
ee’s union activity does not protect him from discharge for
legitimate cause.47
Three days after the March 10 election, Respondent issued
a memorandum announcing that it was going to two shifts
and because material was accumulating and production had
to increase, it was going to open up incentive earnings. In
effect, this meant removal of the 150-percent cap. The
memorandum made no mention of injuries on the job or in-
surance costs, the ostensible reasons for implementing the
150-percent cap rule. Weltzin, however, testified that he dis-
cussed the reasons for implementing the cap and removing
it on March 13 and at that time mentioned injuries in that
context when he addressed the employees. I do not credit
Weltzin with respect to this testimony.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operation described above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take appropriate and affirmative action de-
signed to effectuate the policies of the Act. In particular, as
I have found that employees Michael Derbyshire, Larry
Latham, and Boyd Niedert were discriminatorily laid off and
employee Howard Howe was discriminatorily discharged, I
shall recommend that Respondent be required to offer them
full and immediate reinstatement, with backpay to be com-
puted in the manner prescribed in F .W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).48
I shall further recommend that employees be made whole,
in similar fashion, for any losses suffered by them, as a re-
sult of the implementation of new company rules on January
17.
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act and committed unfair labor practices in
violation of Section 8(a)(1) of the Act by:
(a) Unlawfully interrogating its employees as to their ac-
tivities on behalf of the Union.
(b) Threatening an employee with discharge because of the
employee’s activities for and on behalf of the Union.
(c) Threatening that employees’ wages would be reduced
in order to discourage employees’ activities for and on behalf
of the Union.
(d) Threatening to discontinue operations in order to dis-
courage employees’ activities for and on behalf of the Union.
(e) Directing that a group of employees not attend a union
meeting.
(f) Announcing the institution of new plant rules and insti-
tuting such plant rules as a reprisal for employees’ activities
for and on behalf of the Union.
(g) Threatening to relocate its operations as a reprisal for
its employees’ activities on behalf of the Union.
(h) Soliciting employees’ complaints concerning working
conditions and impliedly promising that such complaints
would be corrected, in order to discourage employees’ activi-
ties for and on behalf of the Union.
(i) Telling employees that Respondent was not soliciting
business because of employees’ activities for and on behalf
of the Union.
(j) Threatening an employee with layoffs by telling the
employee that Respondent was no longer bidding on jobs as
a reprisal for employees’ activities for and on behalf of the
Union.
(k) Threatening employees with layoffs because of em-
ployees’ activities for and on behalf of the Union.
(1) Telling employees that Respondent had rejected orders
from customers because of employees’ activities for and on
behalf of the Union.
(m) Telling an employee that Respondent was laying off
senior employees and replacing them with newly hired em-
ployees because of employees’ activities for and on behalf of
the Union.
(n) Engaging in the conduct specified below in paragraph
4.
4. Respondent engaged in unfair labor practices and com-
mitted unfair labor practices violative of Section 8(a)(3) of
the Act by:
(a) Laying off Michael Derbyshire, Larry Latham, and
Boyd Niedert because of their activities for and on behalf of
the Union.
(b) Discharging Howard Howe because of his activities for
and on behalf of the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended49
ORDER
The Respondent, DBM, Inc., Cedar Falls, Iowa, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from discouraging membership in, ac-
tivities on behalf of, or sympathies towards International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, or any other labor organization
by:
(a) Unlawfully interrogating its employees because of their
activities on behalf of the Union.
(b) Threatening an employee with discharge because of the
employee’s activities for and on behalf of the Union.
(c) Threatening that employees’ wages would be reduced
in order to discourage employees’ activities for and on behalf
of the Union.
(d) Threatening to discontinue operations in order to dis-
courage employees’ activities for and on behalf of the Union.
(e) Directing that a group of employees not attend a union
meeting.
(f) Announcing the institution of new plant rules and insti-
tuting such plant rules as a reprisal for employees activities
for and on behalf of the Union.
(g) Threatening to relocate its operations as a reprisal for
its employees’ activities for and on behalf of the Union.
(h) Soliciting employees’ complaints concerning working
conditions and impliedly promising that such complaints
would be corrected, in order to discourage employees’ activi-
ties for and on behalf of the Union.
(i) Telling employees that Respondent was not soliciting
business because of employees’ activities for and on behalf
of the Union.
(j) Threatening an employee with layoffs by telling the
employee that Respondent was no longer bidding on jobs as
a reprisal for employees’ activities for and on behalf of the
Union.
(k) Threatening employees with layoffs because of em-
ployees’ activities for and on behalf of the Union.
(l) Telling employees that Respondent had rejected orders
from customers because of employees’ activities for and on
behalf of the Union.
(m) Telling an employee that Respondent was laying off
senior employees and replacing them with newly hired em-
ployees because of employees’ activities for and on behalf of
the Union.
(n) Laying off employees because of their activities for
and on behalf of the Union.
(o) Discharging employees because of their activities for
and on behalf of the Union.
(p) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.
(a) Offer Michael Derbyshire, Larry Latham, Boyd
Niedert, and Howard Howe immediate reinstatement to their
former positions of employment or, if such positions no
longer exist, to substantially equivalent positions without
prejudice to the seniority or other rights or privileges pre-
viously enjoyed, and expunge from its files any reference to
the unlawful layoffs/discharge and notify them in writing that
this has been done and that the layoffs/discharge will not be
used against them in any way.
1127DBM, INC.
50 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(b) Make Michael Derbyshire, Larry Latham, Boyd
Niedert, and Howard Howe whole for any loss of pay that
they may have suffered as a result of their layoffs/discharge
in the manner set forth in the remedy section of this deci-
sion.
(c) Revoke all rules implemented on January 17, found to
have been discriminatorily motivated, and make whole all
employees for any losses suffered by them as a result of the
unlawful implementation of those rules.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary or useful in com-
plying with the terms of this Order.
(e) Post at its facility in Cedar Falls, Iowa, copies of the
attached notice marked ‘‘Appendix.’’50 Copies of the notice,
on forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT unlawfully interrogate you as to your activi-
ties on behalf of the Union.
WE WILL NOT threaten you with discharge because of your
activities for and on behalf of the Union.
WE WILL NOT threaten you that your wages will be re-
duced in order to discourage your activities for and on behalf
of the Union.
WE WILL NOT threaten to discontinue operations in order
to discourage your activities for and on behalf of the Union.
WE WILL NOT direct you not to attend union meetings.
WE WILL NOT announce the institution of new plant rules
nor institute such rules as a reprisal for your activities for
and on behalf of the Union.
WE WILL NOT threaten to relocate our operations as a re-
prisal for your activities for and on behalf of the Union.
WE WILL NOT solicit your complaints concerning working
conditions and impliedly promise that such complaints will
be corrected in order to discourage your activities for and on
behalf of the Union.
WE WILL NOT tell you that we are not soliciting business
because of your activities for and on behalf of the Union.
WE WILL NOT threaten you with layoffs by telling you that
we are no longer bidding on jobs as a reprisal for your ac-
tivities for and on behalf of the Union.
WE WILL NOT threaten you with layoffs because of your
activities for and on behalf of the Union.
WE WILL NOT tell you that we have rejected orders from
customers because of your activities for and on behalf of the
Union.
WE WILL NOT tell you that we are laying off senior em-
ployees and replacing them with newly hired employees be-
cause of your activities for and on behalf of the Union.
WE WILL NOT lay you off because of your activities for
and on behalf of the Union.
WE WILL NOT discharge you because of your activities for
and on behalf of the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
WE WILL offer Michael Derbyshire, Larry Latham, Boyd
Niedert, and Howard Howe immediate reinstatement to their
former positions of employment or, if such positions no
longer exist, to substantially equivalent positions without
prejudice to the seniority or other rights or privileges pre-
viously enjoyed, and expunge from our files any references
to their unlawful layoffs or discharge and notify them in
writing that this has been done and that their layoff or dis-
charge will not be used against them in any way.
WE WILL make Michael Derbyshire, Larry Latham, Boyd
Niedert, and Howard Howe whole for any loss of pay that
they may have suffered as a result of their layoffs or dis-
charge, with interest.
WE WILL revoke all rules implemented on January 17
found to have been discriminatorily motivated, and make
whole all employees for any losses suffered by them as a re-
sult of the unlawful implementation of those rules.
DBM, INC.