Dealers Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 18, 1996

320 N.L.R.B. 947 (N.L.R.B. 1996)

947
320 NLRB No. 111
DEALERS MFG. CO.
1 On September 25, 1995, Administrative Law Judge Irwin H.
Socoloff issued the attached decision. The Respondent filed excep-
tions and a supporting brief. The General Counsel filed an answering
brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 There are no exceptions to the judge’s recommendation to dis-
miss several 8(a)(3) allegations with respect to the discharge of
Terry Bradley and the imposition of discipline on Barbara Koch.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 We agree with the judge that the Respondent’s changes to its
401(k) plan, which were first announced and implemented on April
25, 1994, were motivated by antiunion considerations. Even if the
changes were decided on in the fall of 1993, that decision was made
after the Respondent had knowledge of the Union’s campaign. Fur-
ther, the changes were announced and implemented 17 days before
the scheduled election. Since the changes were unlawfully motivated,
the announcement and implementation of them were unlawful and
objectionable.
Dealers Manufacturing Company and International
Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America, AFL–
-CIO. Cases 30–CA–12542, 30–CA–12542–2,
30–CA–12587, 30–CA–12639, and 30–RC–5569
March 18, 1996
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
This case presents questions whether the judge cor-
rectly found that the Respondent violated Section
8(a)(1) and interfered with a Board representation elec-
tion by interrogating an employee about union activi-
ties and by making changes in the unit employees’
401(k) savings plan, and that the Respondent further
violated Section 8(a)(3) and (1) of the Act by granting
unit employees a wage increase after the election.1
The Board has reviewed the record in light of the
exceptions2 and briefs and has decided to affirm the
judge’s rulings, findings,3 and conclusions,4 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, Dealers Manufacturing
Company, Portage, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
IT IS FURTHER ORDERED that the proceeding in Case
30–RC–5569 is severed and remanded to the Regional
Director for Region 30 for further processing consist-
ent with the following.
[Direction of Second Election omitted from publica-
tion.]
Paul Bosanac, Esq., for the General Counsel.
Steven C. Miller, Esq., of Minneapolis, Minesota, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
charges filed on May 16 and 17, June 30, and August 18,
1994, by International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, AFL–CIO
(the Union or UAW), against Dealers Manufacturing Com-
pany (the Respondent), the General Counsel of the National
Labor Relations Board (the Board), by the Regional Director
for Region 30, issued a consolidated complaint dated Sep-
tember 30, 1994, alleging violations by Respondent of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the National
Labor Relations Act (the Act). Respondent, by its answer,
denied the commission of any unfair labor practices. Also on
September 30, the Regional Director issued an order consoli-
dating Case 30–RC–5569 with the unfair labor practice cases
for purposes of hearing, ruling, and decision with respect to
the representation case issues raised by certain postelection
objections filed by the Union.
Pursuant to notice, trial was held before me in Portage,
Wisconsin, on January 30 and 31, 1995, at which the Gen-
eral Counsel and the Respondent were represented by coun-
sel and were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence.
Thereafter, the parties filed briefs which have been duly con-
sidered.
On the entire record in these cases, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in Portage, Wisconsin, is engaged in the business of
manufacturing automobile engines and other automotive
parts. During the calendar year ending December 31, 1993,
a representative period, Respondent, in the course and con-
duct of its business operations, purchased and received, at the
Portage facility, products, goods, and materials valued in ex-
cess of $50,000, which were sent directly from points located
outside the State of Wisconsin. I find that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The factfindings contained here are based on a composite of the
documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates manufacturing facilities in Minneapo-
lis, Minnesota, and Portage, Wisconsin. Some 120 individ-
uals are employed at the Portage, plant, the facility involved
in this case, and an equal or slightly greater number work
in Minneapolis, where corporate headquarters are located.
Union activities among the Portage facility employees
started in July 1993. On March 9, 1994, the Union filed a
petition seeking a representation election among the produc-
tion and maintenance employees working at that plant. On
April 12, the Regional Director issued his Decision and Di-
rection of Election, directing that an election in the unit be
held on May 12, 1994. The Union lost the ensuing election,
53 to 40, and, thereafter, filed timely objections.
In the instant unfair labor practice cases, the General
Counsel contends that, prior to the election, on April 25,
1994, Respondent made changes to its 401(k) plan in order
to influence the vote and, on June 16, 1994, after election
objections had been filed, granted its employees a wage in-
crease in order to undermine support for the Union, in viola-
tion of the Act. Respondent asserts that its actions in these
regards were motivated by lawful considerations. Also at
issue is whether the March 2, 1994 termination of employee
Terry Bradley, and the imposition of discipline on employee
Barbara Koch in April and, again, in June 1994, were viola-
tive of Section 8(a)(3) of the statute. Finally, the General
Counsel contends, and Respondent denies, that during the
course of an employment interview conducted by the Portage
plant manager, in March 1994, the Company unlawfully in-
terrogated an employee about his union sympathies, in viola-
tion of Section 8(a)(1) of the Act.
B. Facts1 and Conclusions
1. The alleged interrogation
Randy Swalheim was hired by Respondent as a temporary
employee in February 1994. In mid to late March, he sought
a permanent position and, in that connection, he was inter-
viewed by the Portage plant manager, Jeanenne Marhevko, in
her office. Swalheim testified that, during the course of the
interview, Marhevko asked him, ‘‘how I felt about union ac-
tivities there.’’ Swalheim, who did not, until a much later
point in time, wear indicia of support for the Union, told the
plant manager that he did not think that a union was needed.
Thereafter, the employee testified, he told other employees
about this occurrence. Marhevko, in her testimony, denied
that she questioned Swalheim about his union sympathies.
Swalheim impressed me as an honest and forthright wit-
ness, in possession of a clear recollection of the event in
question. While I generally found Marhevko to be a credible
witness, and, infra, I have relied on her testimony concerning
critical matters, I found her testimony about this incident so
vague as to be unworthy of credence. Accordingly, based on
Swalheim’s credited testimony, I find that Respondent,
through Marhevko, by its March 1994 interrogation of
Swalheim, violated Section 8(a)(1) of the Act. The question-
ing, by a high-level company official, was without legitimate
purpose, occurred without assurances against reprisals, took
place in the office of the plant manager, and was inherently
coercive in nature.
2. The changes to the 401(k) plan
Employee activities looking toward representation by the
Union began, at the Portage plant, when employee Laurie Al-
exander contacted the UAW in July 1993. Soon thereafter,
an employee organizing committee was created.
After hearing rumors of the foregoing, Respondent’s presi-
dent, David Goodwin, and its vice president of manufactur-
ing, John Mathiesen, decided to retain a consultant, Ed
Brekke, to conduct a ‘‘climate survey’’ of and among the
employees. Thereafter, beginning in August, Brekke met with
the Portage plant employees, in small groups, and asked
them to tell him about their concerns, needs, and feelings to-
ward the Company. In response, the employees expressed to
Brekke their dissatisfactions concerning the 401(k) plan, par-
ticularly, that Respondent had ceased to make matching con-
tributions and that the administration costs were so high.
Brekke reported to Goodwin and Mathiesen that, as
Mathiesen testified, ‘‘401(k) concerns were some of the top
concerns by the employees.’’
In July or August, Mathiesen also conducted group meet-
ings of the employees. He advised them that he was aware,
at least unofficially, that there were union activities going on.
Concurrently, Goodwin began to conduct a series of inter-
views with Dennis Heiken, looking toward the hiring of that
individual as vice president of finance and operations. In the
course of those meetings, which occurred during the August
to November period, when Heiken was hired, effective Janu-
ary 1, 1994, Goodwin and Heiken discussed changes to the
401(k) plan. They decided, Heiken testified, to reinstate the
matching contributions, and on a monthly rather than, as
theretofore, on an annual basis, and to replace the plan’s ad-
ministrator.
On December 3, 1993, Goodwin announced to the em-
ployees that, effective January 1, 1994, Respondent was ‘‘re-
suming the 401(k) match,’’ discontinued beginning in 1992,
on a companywide basis. The announcement did not contain
any indication that there would be further changes in the
plan. Heiken began work on January 1, with, he testified, a
mandate to effectuate the specific changes decided on during
his fall 1993 meetings with Goodwin.
As noted, on March 9, the election petition was filed. That
month, Heiken held a series of meetings with the Portage
employees, seeking input for changes to the 401(k) plan.
Nonetheless, Heiken testified, despite the meetings, the plan
changes had already been decided on.
On April 25, 1994, 17 days before the election, the Com-
pany announced, in writing, that it was instituting,
corporatewide, ‘‘tremendous improvements’’ in the 401(k)
plan covering the areas suggested by the employees. Included
in the announced changes were the conversion to monthly
matches, by the Company, and the retention of a new admin-
istrator, effective, July 1, 1994.
Mathiesen testified that Respondent operated at a loss in
1989, 1990, 1991, 1992, and for the first quarter of 1993.
However, he further testified, by November 1993 the Com-
pany’s financial statements revealed ‘‘sufficient evidence’’
949DEALERS MFG. CO.
2 At the time that Mathiesen addressed the employees, he knew
that Respondent had lost approximately $100,000 for the quarter
ending March 31, 1993. 3 Holly Farms Corp., 311 NLRB 273 (1993).
showing that the Company had returned to profitability and,
thus, could afford reinstatement of the match and improve-
ments to the 401(k) plan. Respondent offered no documen-
tary evidence, in the form of business records or otherwise,
to support these assertions.
When Respondent instituted ‘‘tremendous improvements’’
to its 401(k) plan, on April 25, 1994, after the representation
petition had been filed and 17 days before the scheduled
election, it acted in an area, 401(k), which its climate survey
had revealed in 1993, was at the top of the list of employee
concerns. The climate survey was, itself, conducted only
after Respondent learned that the Portage plant employees
were engaged in union activities. While Respondent has set
forth a partial economic explanation for the timing of its ac-
tions, it was unsupported by financial statements or other
business records.
In light of the timing of the changes to the plan, Respond-
ent’s knowledge of its employees’ union activities and the
apparent cause and effect relationship between that knowl-
edge and its actions regarding the 401(k) plan, both in 1993
and in 1994, the inference is amply warranted that the
changes to the plan, instituted in April 1994, were for the
purpose of interfering with employee free choice. Respondent
has failed to establish that there was a legitimate reason for
the timing of its action. Accordingly, I conclude that the in-
stitution of improvements to the 401(k) plan, as announced
in April 1994, was violative of Section 8(a)(1) of the Act.
3. The wage increase
Respondent granted pay increases to its employees, on a
corporatewide basis, in June 1990 and again in January 1991.
Thereafter, Mathiesen testified, in 1992, the Company de-
cided on June, increases and a wage adjustment was made
at that time. However, in May 1993, Mathiesen further testi-
fied, he met with the employees and told them that there
would not be a wage increase then, and, further, that there
would not be an increase until Respondent had achieved 3
profitable months and could forecast profitability for the 3
months after that.2
As noted, after the onset of union activities in Portage, in
July, and after the retention of Brekke to conduct a climate
survey, Mathiesen met with the Portage employees, in small
groups, and revealed his knowledge of their actions concern-
ing a union. Soon thereafter, on August 16, President Good-
win delivered a speech to the employees and announced a
wage increase, effective in September, predicated on the
Company’s profitability in July, and the fact that the inven-
tory count, at the end of that month, did not result in signifi-
cant writedowns. Acknowledging in the speech that, thereto-
fore, Respondent had stated that, for an increase to occur, the
Company would have to earn ‘‘a profit for three consecutive
months’’ and enjoy a ‘‘favorable outlook for the next three
months,’’ Goodwin did not explain why he was abandoning
that standard and acting on the basis of profitability for 1
month. Mathiesen testified, in vague fashion, that he believes
that May and June were also profitable. At another point in
his testimony, he indicated that it was not until November
that the Company knew that it had achieved profitability.
Neither financial statements, nor other business records, were
offered into evidence.
Against this background, in June 1994, after the represen-
tation election, but while the Union’s objections were pend-
ing and the possibility of a rerun election existed, Respond-
ent, again on a corporatewide basis, granted its employees a
wage increase. At trial, the Company offered no documen-
tary evidence to suggest that its operation was profitable at
that point in 1994, despite Mathiesen’s testimony that profit-
ability was one of the essential factors necessary to support
such an increase. Respondent defends the granting of the
wage increase by reliance on its claim that, in 1992, it estab-
lished the practice of effectuating wage increases in June.
Although the wage increase granted in September 1993
cannot be the subject of an unfair labor practice finding, as
it occurred outside the Act’s 10(b) limitations period, the evi-
dence bearing on the circumstances surrounding that wage
action sheds light on Respondent’s motives in granting an in-
crease in June 1994. In 1993, the Company instituted a hur-
ried wage increase at a time when it knew that the employ-
ees had begun an organizational campaign. Respondent ad-
vised the workers that it was in possession of that knowledge
and, then, proceeded to grant the increase in clear contraven-
tion of the standards it had established as necessary to trigger
such an action.
The 1994 postelection increase was also instituted during
the course of the union organizing campaign.3 An inference
of improper motivation and interference with employee free
choice may be drawn from a review of Respondent’s action
in granting a similar increase in September 1993 and its fail-
ure to establish a legitimate reason for the timing of the
wage increase in 1994. In this latter connection, I note the
failure of Respondent to show that when it granted the 1994,
increase, the Company was profitable. Further, I reject the
argument that Respondent acted in accordance with past
practice in announcing an increase in the month of June,
when only the 1992 increase (and not the increase in 1993)
may be cited to support such a claim.
As Respondent has not shown a past pattern of June wage
increases, and in light of the evidence showing that the June
1994 increase was unlawfully motivated, I conclude that the
increase granted at that time, following the election and
while objections were pending, was violative of Section
8(a)(3) and (1) of the Act.
4. The discharge of Terry Bradley
Terry Bradley was employed by Respondent from April
29, 1991, until he was discharged on March 1, 1994. He
worked in one of the small parts departments under the su-
pervision of Team Leader Eugene Mravik. During the course
of the union campaign, Bradley, as did many of the Portage
plant employees, wore a UAW pin to work. Also, he at-
tended union meetings where he solicited employees to sign
authorization cards, and he assisted in the distribution of
union literature. Bradley was not a member of the employee
organizing committee. Indeed, the record evidence does not
suggest that Bradley, in comparison to his fellow employees,
was a highly active or avid supporter of the Union, or that
he was perceived as such by company officials.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There is some suggestion in the record evidence, primarily the
testimony of employee Linda Bortz, that certain unidentified super-
visors did apply the rule to require, only, presence in the building
by 7 a.m. It was the same Bortz who first claimed that she observed
that Bradley was not late for work on December 21, 22, or 23, 1993,
but later allowed that she, Bortz, was not herself at work on 2 of
those days. In any event, Bortz conceded that Team Leader Mravik
strictly required that departmental employees be at their work sta-
tions by 7 a.m. As a result, Bortz testified, most of the employees
in Mravik’s department arrived there at 6:55 a.m., so as to avoid
problems.
I note, too, that, for pay purposes, Respondent sometimes allowed
employees, Bradley and others, to make up late time at the end of
the day.
In April 1993, preceding the advent of the Union, Bradley
was given a verbal warning by Mravik for failure to arrive
at his work station on time on the morning of April 4. On
that day, the disciplinary report states, he did not reach his
work station until 7:10 a.m., rather than the 7 a.m. start time.
Bradley, who had been late to work on four occasions in
1992, accumulated 10 ‘‘tardies’’ during 1993, including 5 to-
ward the end of the year. On January 4, 1994, Mravik gave
Bradley a written warning for arriving late to his work sta-
tion on December 21, 22, and 23, 1993, and on January 4,
1994, ‘‘by at least 3 minutes per occurrence.’’ The warning
notes, under the category ‘‘goals and time frame for im-
provement,’’ that Bradley must ‘‘report to work station on
time.’’ After conferring with Bradley about the matter, Chris
Blalock, Respondent’s production manager for small parts,
agreed, in writing, to remove the written warning from the
employee’s file if there were no further instances of lateness
for 90 days.
Blalock issued another written warning notice to Bradley
on January 31, 1994, for arriving at work one-half hour late
on January 27. Regarding that incident, Bradley claimed in
his testimony that he was only 20 minutes late that day, as
he arrived at the plant at 7:20 a.m., and spent the next 10
minutes drinking coffee and smoking a cigarette, before re-
porting to his work station at 7:30 a.m. In this connection,
Bradley mistakenly believed that, as 7:20 a.m. was after the
quarter hour, he would not be paid for worktime commenc-
ing before 7:30 a.m.
The next disciplinary notice received by Bradley was on
Friday, February 18, for late arrival at his work station.
Bradley was suspended, without pay, for 1 day, February 21.
Bradley testified that, on many of the occasions he re-
ceived discipline, he was not, in fact, late. However, a read-
ing of his testimony makes clear that his claim is premised
on the belief that he was not required to be at his work sta-
tion at 7 a.m. but, merely, to be in the building at that time.
In this regard, Bradley testified that, up to and including the
time of his discharge, he was never advised, orally or in
writing, that company rules required that he be at his work
station at 7 a.m. As that requirement was clearly stated on
each and every disciplinary notice received by Bradley, and
as, in his pretrial affidavit, Bradley conceded that he knew
that company policy required that he be at his machine by
the 7 a.m. start time, the belated claim, at trial, of lack of
knowledge of the rule, rings hollow, and calls into question
the alleged discriminatee’s entire testimony.4
Respondent’s concern with on-time arrivals, generally, re-
sulted in synchronization of the plant clocks, and instructions
to Senior Team Leader Lloyd Bratsch to lock the back door
at precisely 7 a.m. in order to prevent people from entering
the plant late and undetected. Given this policy, an employee
arriving late for work would have to enter through the front
door. Bratsch, who impressed me as a highly honest witness
with a sure memory of the event about which he testified,
stated that, on February 25, 1994, just as he was ready to
lock the back door, at precisely 7 a.m., employee Arnold
Simonson ran through and proceeded to his work station,
which was right at the door. When Bratsch and Simonson
were some 20 feet away from the door, they heard pounding
on it. Bratsch turned around, walked back to the door,
opened it and found that it was Bradley who was trying to
come in. Letting him enter, Bratsch testified that he told
Bradley, ‘‘[Y]ou are a little late, Terry.’’ Bradley then pro-
ceeded to the other end of the building, where his work sta-
tion was located. Simonson, in his testimony, corroborated
Bratsch’s version of the event. Simonson also stated that he,
Simonson, did not arrive at his work station, by the back
door, until 7 a.m.
Team Leaders Mravik and Dan Maahs testified that they
were together in Bradley’s work area on the morning of Feb-
ruary 25, and that Bradley was not there on time. They ap-
proached Bradley, after his arrival, a few minutes after 7
a.m., and accused him of lateness. Bradley claimed that he
was there on time, and he referred to Mravik as a
‘‘butthead.’’ The supervisors testified that they reported the
matter, and their observations, to Blalock, who conducted an
investigation.
Bradley testified that, on the morning in question, he ar-
rived at his work station, located some 50 feet from the back
door through which he entered, ‘‘just before’’ 7 a.m. Fellow
departmental employees Bortz and Kehoe testified that Brad-
ley arrived some 1 to 3 minutes before the hour. Each of
these individuals reported their observations to Blalock.
Blalock testified that, at the conclusion of his investiga-
tion, he formed the belief that the February 25, event, oc-
curred as reported by Supervisors Bratsch, Mravik, and
Maahs, noting that, in offering contrary versions, Bradley, on
the one hand, and Bortz and Kehoe on the other hand, did
not entirely agree with each other. Stating that he ‘‘gave cre-
dence where credence was due,’’ Blalock further testified
that, on March 1, 1994, he discharged Bradley for dishonesty
(in denying he had been late on February 25) and repeated
tardiness.
The record evidence amply demonstrates that Bradley was
a union supporter and Respondent knew it. However, as
noted, he did not, in that regard, ‘‘stick out’’ from fellow
employees and he was not a member of the employee orga-
nizing committee. Respondent has shown that Bradley would
have been discharged, even in the absence of his protected
conduct. He had a chronic tardiness problem which was the
subject of discipline meted out to him, under a progressive
system, starting before the advent of the Union. There is no
showing whatsoever that he was treated in a disparate man-
ner. After the incident of February 25, Blalock investigated
the matter and he reasonably concluded, from the evidence
before him, that Bradley had been untruthful about his re-
porting time on that day and that, again, he had arrived late
to his work station. On the basis of credibility determina-
tions, and considering the great likelihood that the version of
events on which Blalock claimed to act was the true one, I
951DEALERS MFG. CO.
accept Respondent’s defense, and conclude that the March 1
discharge of Bradley was not in violation of the Act.
5. The imposition of discipline on Barbara Koch
Barbara Koch has been employed by Respondent since
1985. At all times relevant to this case, she worked in the
valve department under the supervision of Team Leader
Brian Kelly and, then, Team Leader Donna Gabbei. Pri-
marily, Koch operated the centerless grinder machine, and
she kept track of the inventory of valves in a book she main-
tained for the Company. During the course of the union cam-
paign, Koch signed an authorization card, solicited others,
away from the plant, to sign cards, and wore a union pin to
work. In the weeks preceding the election, she began to
wear, also, a union hat and a union shirt at her work station.
It is not disputed that Respondent’s officials were aware of
her support for the Union. Like Bradley, she did not serve
on the employee organizing committee and there is a lack of
record evidence indicating that she was a leader in the orga-
nizational effort, or that Respondent believed that she was.
However, Koch testified, on May 13, 1994, the day after the
election, Plant Manager Marhevko told her that she,
Marhevko, knew that Koch was having ‘‘a real rough day
today.’’
On November 15, 1993, Supervisor Kelley issued to Koch
two written warnings, for refusal to follow work instructions
and failure to participate with her coworkers in cleaning up
the department. Marhevko credibly testified that, soon there-
after, she received complaints from department employees
Robert Deshaw and John Gabbei concerning Koch’s behavior
toward fellow workers, which included berating and belittling
a handicapped employee. Marhevko had Koch prepare a cor-
rective action plan with regard to her behavior. Sometime
prior to March 1994, Donna Gabbei replaced Kelley as team
leader in the valve department.
Marhevko testified that, in April 1994, the Company expe-
rienced inventory shortages in the department, and found that
the inventory book maintained by Koch did not accurately
reflect the number of valves on hand. When Respondent
would unexpectedly run short of inventory, it would either
have to slow down production or incur the expense of pur-
chasing valves from an outside vender. Marhevko assigned
to Gabbei the task of straightening the matter out. Gabbei
credibly testified that she attempted to reorganize the system,
on April 13 and 14, but was repeatedly told by Koch that
there was nothing wrong with it as it stood, and that she,
Gabbei, did not know what she was doing. Koch pointed her
finger at Gabbei, yelled at her, and stated that Gabbei should
leave the inventory book alone. This conduct continued over
a 2-day period. Koch refused Gabbei’s requests to settle
down and or go to the office. After learning of these inci-
dents from the reports of Gabbei, Marhevko investigated the
matter by talking to other members of the department. She
verified Gabbei’s account of the matter, and heard from
Koch’s fellow employees that Koch continually failed to get
along with her supervisor and the other people in the depart-
ment. On April 18, Marhevko and Gabbei issued to Koch a
disciplinary report, including a 3-day suspension. Koch in
her testimony stated that she denied to Marhevko that she
had argued with or hollared at Gabbei.
In mid-June, Gabbei testified, Koch refused repeatedly
Gabbei’s requests that she, Koch, work on a particular Satur-
day to make up inventory shortages. Koch told Gabbei that
she did not care if the inventory ran out, and she accused
Gabbei of lying about other matters. The next week, Gabbei
further testified, Koch walked out of a departmental meeting
dealing with inventory. Gabbei reported the incidents to
Marhevko. On June 27, Marhevko and Gabbei issued to
Koch a ‘‘final warning,’’ for repeated refusals to follow the
work directions of her supervisor, and for ‘‘belittling, over-
bearing and confrontational behaviors.’’
As in the case of Bradley, Koch was a union supporter
and Respondent knew it when it meted out discipline. How-
ever, she was not on the employee organizing committee
and, apparently, she did not occupy a leadership position in
the organizational effort. Through the credited and largely
uncontradicted testimony of Marhevko and Gabbei, Respond-
ent has shown that it would have disciplined Koch, even in
the absence of her protected conduct, for insubordinate, loud,
uncooperative, and confrontational behavior that few employ-
ers would tolerate. In light of the defense, I find and con-
clude that, by disciplining Koch in April and June 1994, Re-
spondent did not violate Section 8(a)(3) of the Act.
6. The representation case
The tally of ballots following the election conducted on
May 12, 1994, showed that 40 votes were cast for the Union
and 53 votes were cast against representation. There was one
void ballot and nine challenged ballots which were insuffi-
cient in number to affect the election results.
The objections to conduct affecting the results of the elec-
tion, filed by the Union on May 17, generally track the com-
plaint allegations with respect to conduct occurring between
the time the petition was filed on March 9, 1994, and the
time the election was held on May 12. In light of my earlier
findings, that Respondent, during the critical period, made
changes to its 401(k) plan in order to influence the outcome
of the election, and engaged in coercive interrogation, I con-
clude that the corresponding objections should be sustained
and the election set aside.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship 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 certain un-
fair labor practice conduct in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Dealers Manufacturing Company is an employer en-
gaged in commerce, and in operations affecting commerce,
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, AFL–CIO is a
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
labor organization within the meaning of Section 2(5) of the
Act.
3. By interrogating an employee concerning his union
sympathies, Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(1) of the Act.
4. By implementing changes to its 401(k) plan in response
to its employees’ union activities, and in order to influence
the outcome of a scheduled NLRB-conducted election, Re-
spondent has engaged in unfair labor practice conduct within
the meaning of Section 8(a)(1) of the Act.
5. By granting its employees a wage increase in response
to their union activities, and while objections to conduct af-
fecting the results of an NLRB-conducted election were
pending, Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act as al-
leged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Dealers Manufacturing Company, Por-
tage, Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees concerning their union sym-
pathies.
(b) Implementing changes to its benefit plans in response
to employees’ union activities, and in order to influence the
outcome of a scheduled representation election.
(c) Granting its employees a wage increase in response to
their union activities, and while objections to conduct affect-
ing the results of a representation election are pending.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Portage, Wisconsin facility, copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 30, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
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.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Nothing here shall be construed as requiring Respondent
to vary or abandon conferred benefits.
IT IS FURTHER ORDERED that Case 30–RC–5569 is severed
and remanded to the Regional Director for the purpose of
setting aside the election and conducting a new election at
the earliest appropriate time.
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.
WE WILL NOT interrogate employees concerning their
union sympathies.
WE WILL NOT implement changes to our benefit plans in
response to employees’ union activities, and in order to influ-
ence the outcome of a representation election.
WE WILL NOT grant employees a wage increase in re-
sponse to their union activities, and while objections to con-
duct affecting the results of an NLRB-conducted election are
pending.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
Nothing here shall be construed as requiring us to vary or
abandon conferred benefits.
DEALERS MANUFACTURING COMPANY