Design and Mfg., Corp.

National Labor Relations Board - Board Decisions

Jul 16, 1979

243 N.L.R.B. 487 (N.L.R.B. 1979)

DESIGN AND MANUFACTURING CORPORATION
Design and Manufacturing Corporation and Willie
Carpenter. Case 25-CA 9526
July 16, 1979
DECISION AND ORDER
BY MEMBERS PENELI. O, MURPHY, AND TRIESD)ALE
On March 28, 1979, Administrative Law Judge Ir-
win Kaplan issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and counsel for the General Coun-
sel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Design
and Manufacturing Corporation, Richmond, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
I. Substitute the following for paragraph (c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Insert the following as the final paragraph of the
Order:
I Respondent has excepted to certain credibility findings made h the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence cons inces us that the
resolutions are incorrect. Standard Dry) Wall Products. Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
I In par. I(c) of his recommended Order, the Administratise Law Judge
provided that Respondent shall cease and desist from "[iln any other man-
ner" infringing on employee rights guaranteed in Sec 7 of the Act. However.
we have considered this case in light of the standards set forth in Hckmott
Foods. Inc., 242 Nl.RB 1357 (1979). and have concluded that a broad reme-
dial order is inappropriate inasmuch as it has not been shown that Respon-
dent has a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental statutory rights. Accordingly. we shall modify the rec-
ommended Order so as to use the narrow injunctive language. "in any like or
related manner."
"IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of Section 8(a)(1) of the Act other than specifi-
cally found herein."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WIL.. NOT discourage membership in or ac-
tivities on behalf of Local Union No. 589, Up-
holsterers International Uinion of North Amer-
ica, AFL-CIO. or any other labor organization,
by denying employment to applicants because of
their activities on behalf of a labor organization,
or otherwise discriminate in regard to hire or ten-
ure of employment or any terms and conditions
of employment of our employees.
WE WIII. NOT make any statements to our em-
ployees indicating that we would not hire appli-
cants because of their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain. or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act,
as amended.
WE WILL offer Willie Carpenter full and im-
mediate employment to the position in which he
would have been employed but fbr our discrimi-
nation against him or, if that position no longer
exists, to a substantially equivalent position,
without prejudice to his seniority and other privi-
leges, and wiv WInl. make him whole for any loss
of earnings, with interest.
DESIGN AND MANUFACTURING CORPORA-
TION
DECISION
STATEMENT OF THE CASI
IRWIN KAPI.AN, Administrative Law Judge: This pro-
ceeding was heard before me in Richmond. Indiana, on
July 17 and 18, 1978. The underlying unfair labor practice
charges were filed by Willie Carpenter. an individual. on
December 23, 1977. and a complaint thereon issued Febru-
ary 24. 1978, alleging principally that since on or about July
22, 1977. Design and Manufacturing Corporation (herein
also called Respondent or D & M) unlawfully refused to
employ Willie Carpenter in violation of Section 8(a)(3) and
( I ) of the National Labor Relations Act, as amended. The
complaint (amended at the hearing), also alleges that Re-
243 NLRB No. 82
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent coercively interrogated employees, created the
impression of surveillance, and made coercive statements
tending to chill union activity thereby independently violat-
ing Section 8(a)(l) of the Act. Respondent filed an answer
(amended at the hearing), admitting, inter alia, jurisdic-
tional facts and the supervisory and agency status of indi-
viduals named in the complaint but denying all of the sub-
stantive allegations.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by counsel for the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FAC(1
t. JURISDICTION
Respondent, an Indiana corporation, has maintained its
principal office and place of business at Connersville, Indi-
ana. It also maintains a factory in Richmond, Indiana, the
facility involved herein. At all material times herein, Re-
spondent has been engaged at said Richmond facility in the
manufacture, sale, and distribution of automatic dishwash-
ers and related products. During the past year with regard
to the operation of its Richmond facility, Respondent has
derived revenue in excess of $50,000 directly from the sale
and shipment of its products to points outside the State of
Indiana. Respondent admits and I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that Local Union No. 589.
Upholsterers International Union of North America, AFL
CIO, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Respondent has operated a plant in Connersville, Indi-
ana, since about 1958, and for most of that period including
the present time its production and maintenance employees
have been represented by International Union, United Au-
tomobile Implement Workers of America (UAW). In 1975
Respondent expanded its operations and purchased a fac-
tory building in Richmond, Indiana, the facility involved
herein. Respondent commenced production at the Rich-
mond plant in April 1977, steadily increasing its work force
so that by the time of the hearing it employed approxi-
mately 465 production and maintenance employees at that
facility. In the fall of 1976 Respondent extended recogni-
tion to the UAW on an accretion basis for the Richmond
production and maintenance unit. This recognition, how-
ever, did not serve as a bar to a representation petition filed
on July 13, 1977, by Eastern Indiana District Council a/w
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, in Case 25-RC-6686 (Resp. Exh. 8). The UAW
had to postpone its bargaining status on behalf of the pro-
duction and maintenance employees employed at the Rich-
mond plant until it won a Board-conducted election in Sep-
tember 1977' and obtained a certification thereon.
Willie Carpenter, the alleged discriminatee. applied for a
job at Respondent's Richmond facility on July 22. Prior
thereto and since 1964 Carpenter had been employed at
Wallace Metal Products, Inc. (herein Wallace), a company
also located in Richmond. Wallace's employees were repre-
sented by Local Union No. 589, Upholsterers International
Union of North America, AFL CIO (herein Upholsterers
Union), and they had been engaged in a strike over a new
contract since May 5 which did not end until March 1978.
The bargaining unit at Wallace at the time of the strike
consisted of 159 employees. Carpenter was elected to serve
on a five-member negotiating committee to negotiate the
new contract. He had served in this capacity for the three
prior contracts. Carpenter had also served as a union shop
steward for approximately 10 years. During Carpenter's
tenure of employment at Wallace the employees, including
Carpenter, had been involved in two or three other strikes.
The General Counsel asserts, in essence, that Respondent
refused to hire Carpenter because he was viewed as a strike
oriented person and because he was otherwise a union ac-
tivist.
As previously noted, Carpenter applied for a job at Re-
spondent's Richmond plant on July 22 while the strike at
Wallace was still in progress. He had obtained an applica-
tion from his friend and neighbor Robert Curtis, an em-
ployee at Respondent's Richmond facility. Curtis had ob-
tained the aforenoted application from Foreman Floyd
Day, and after Carpenter filled out said application he gave
it back to Curtis who then submitted it to Day. Carpenter's
employment application reflected that he was interested in
any position, and it was noted therein, inter alia, that he
had welding experience. At about the same time Carpenter
registered with the ndiana State Employment Service for
referrals, and he learned from that agency that Respondent
had an opening for a welder, and an interview was set up
for him on July 22.
Carpenter appeared on July 22 at approximately 2:30
p.m. for the interview as scheduled and was asked to fill out
a second application.' He was met by Foreman Day who
looked at the application and recalled that Carpenter was
the same individual who Curtis spoke to him about. Day
told Carpenter that the opening was for an acetylene
welder. While Carpenter had done some acetylene welding,
it was minimal and never in connection with his employ-
ment. Carpenter's welding experience, while considerable
(approximately 10 years), involved principally arc welding,
an electrical process. He also did some mig, heliarc, and
spot welding at Wallace. Carpenter testified that Day
pointed out that if he (Carpenter) had welded, he "prob-
ably" would not have any trouble with acetylene welding.
Day then escorted Carpenter into the plant to test him on
acetylene welding. After Carpenter completed 8 to 10 weld-
ing jobs, he asked Day if he thought he could handle the
job to which Day responded affirmatively. Day testified, "I
told him [Carpenter] that I could tell that he had definitely
I All dates hereinafter refer to 1977 unless otherwise noted.
2 See J. Exh. 6.
488
DESIGN AND MANUFACTURIN(G CORPORATION
welded before. and that I knew he was nervous . .. And I
told him that he hadn't done too bad."
Carpenter and Day returned to the office and further dis-
cussed the terms of employment including the hourly pay
rate. Day asked Carpenter if he would sign a "quit slip"
terminating his employment at Wallace if he was offered a
job at D & M. Carpenter told Day that if he got the job he
would not go back to work for Wallace. He also stated that
he would sign the "quit slip" if required but was hoping
that it could be deferred because he had 3 weeks' vacation
pay due from Wallace and did not know what effect the
"quit slip" would have on vacation pay. Carpenter testified
that Day told him that he had interviewed three other ap-
plicants that day, but that he was the one he was going to
hire. He added that Carpenter could not tell Curtis to get
off his back. With regard to the quit slip, Day said that he
would check with his "boss" (David Riehle. production
manager in charge of personnel at that time), although he
did not think that it would be necessary for Carpenter to
sign it. In either case Day assertedly told Carpenter that he
would call him Monday morning to advise as to whether he
had to sign the quit slip. According to Day, he told Carpen-
ter that he was the best of the applicants that he had come
across, but that he still had a few more applicants to inter-
view. Day denied that he offered Carpenter a job. but
merely that he advised him that if it was decided to hire
him that he, Day, would call him to make arrangements.
Later that afternoon and before the end of the 3:30 p.m.
day shift, Foreman Day approached Curtis and told him
that he had just interviewed and tested his "buddy" on the
welding job. Day told Curtis that Carpenter was a little
nervous on the first job but then calmed down and did
"very good." Day remarked "that man [Carpenter] is a
welder" and assertedly told Curtis that he was going to hire
him. He added, "the only thing I've got to do [is] check with
Dave Riehle on his quit slip from Wallace and call Carpen-
ter Monday to advise and to make arrangements for his
physical." Day confirms that such a conversation occurred,
and that he related to Curtis that Carpenter did "pretty
good" but denies that he told Curtis that Carpenter was
hired. According to Day, he interviewed six applicants on
July 22 for the welding job, and that two of them, Carpen-
ter and David Drew, appeared qualified and were also
tested. Day hired Drew although he did not have any fac-
tory experience because he had high school training on
acetylene welding and because he assertedly performed bet-
ter than Carpenter did when tested.
Curtis had several conversations' with Day the following
week with regard to the hiring of Carpenter and was told by
Day that Riehle told him that they were not going to hire
Carpenter. In substance, Curtis testified that Day told him
that there was a problem either with Carpenter's references
or with the "quit slip" and asked whether he. Curtis, knew
that Marvin was Willie Carpenter's brother and whether
there could have been a mix-up between the brothers. Cur-
tis4 also asserted that Day commented that he did not know
3 While Curtis was unclear as to what Day told him on each occasion, he
asrted that he was certain with regard to the substance of what Day told
him that week.
4 In September Curtis was elected union local president of he UAW for
the Richmond unit.
that Willie Carpenter had been on the bargaining commit-
tee at Wallace.
[)ay testified that he had heard from someone in connec-
tion with the strike at Wallace that Marvin Carpenter was
quite a character, and he inquired of Curtis whether he
knew that Marvin was Willie's brother to which Curtis re-
sponded affirmatively. According to Day. Curtis told him
that Willie is "okay" and not like Marvin, that Willie was
on the union bargaining committee. and that he (Day) did
not know that Willie was on the committee prior thereto.
In August Paul Tegeler became manager of industrial
relations and assumed the personnel functions previously
handled by Riehle. Tegeler testified that in August and
from time to time thereafter there were openings for repair
or gas welders, spot welders. spray painters, and other
skilled and nonskilled positions in the pressroom and as-
sembly department. On Carpenter's employment applica-
tion he indicated that he was desirous of obtaining any po-
sition and noted further therein, intr alit, that he was
qualified in welding. spray painting, and had experience in
the press room (Jt. Fxh. 6). Carpenter continued his efforts
to secure employment at D & M as a welder or in some
other position, and in furtherance thereof he submitted ad-
ditional resumes and spoke with Tegeler but was not of-
fered a job. Curtis testified that in October he gave Tegeler
one of Carpenter's resumes, and Tegeler gave it back to him
assertedly declaring that he would not hire Carpenter be-
cause he was "a union activist." Tegeler denies making any
such reference to Carpenter as a union activist. According
to Tegeler. Carpenter was not hired in July because some-
one else was better qualified, and it was the Company's
policy not to hire applicants who had previously been re-
jected. Thus Tegeler testified that as Carpenter had been
turned down previously. it was the (ompany's informal
polic . . . that he was not given an further consideration
for other jobs." Tegeler asserted that he had. on occasion.
attempted to hire someone who had applied and been
turned down, but Riehle told him "We ought to let some-
one else apply for the job rather than someone who's al-
ready applied for it."'
The General Counsel contends that by Tegeler's refusal
to hire Carpenter because he was a union activist Respon-
dent continued to violate Section 8(a)(3) and (I) of the Act.
In addition, the General Counsel contends that by Tegeler
assertedly describing Carpenter as a union activist to (Curtis
as noted above Respondent thereby independently violated
Section 8(a)( I ). Further, the General Counsel contends that
after the underlying unfair labor practice charges herein
were filed Tegeler verbally abused Curtis for providing in-
formation to the National Labor Relations Board in sup-
port thereof. According to the General Counsel. Tegeler
thereby conveyed the impression that he was keeping Cur-
tis' protected activity under surveillance in further violation
of Section 8(a)(l). Still further, the General Counsel con-
tends that Tegeler coercively interrogated applicant Robert
Austin concerning his union sentiments in violation of Sec-
'David Riehle and Robert Scelze. executi.e ice president and general
manager of the Richmond dlsn. also rlellied regarding the Company',
"informal policy" on reconsidering applicants who) had preslousl) been re-
jected his so called "informal polic)" 'ill he dscussed more ull) beloa
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)( 1). As noted previously, Respondent denies all the
substantive allegations in the complaint.,
B. Credibilifv Re.volutions
The substantive allegations herein depend largely on
credibility resolutions. Thus, a separate section is devoted
to resolving the material credibility conflicts.
The record discloses that on July 22 at or about 2:30 p.m.
Foreman Day interviewed and tested aplicant Carpenter
for a position as an acetylene welder. The General Counsel
contends that Day hired Carpenter at the conclusion of the
interview. In support thereof Carpenter testified that L)ay
told him that he was hired, but that he, Day, had to check
with Riehle with regard to whether Carpenter would have
to sign a quit slip signifying that he would not go back to
Wallace after the strike ended. According to Day he
merely told Carpenter that he was the best of the applicants
that he had seen, but that he still had other applicants to
interview. Day testified that he interviewed six applicants
on July 22. and onl? two of them. David Drew and Carpen-
ter, were good enough to be tested. Day asserted that he
decided to hire Drew although the latter did not have anN
factorN experience on the basis of his high school training in
acetylene welding and because he was fster and better
than Carpenter when tested. )ay also asserted that he in-
terviewed and tested D)rew on July 22 sometime after he
had concluded his interview with Carpenter.
While counsel for the General Counsel does not dispute
that Dl)a interviewed and tested Drew on July 22, she as-
serts that it occurred at about 12 noon, before Carpenter
was interviewed and tested. According to the General
Counsel's theory I)ay hired Carpenter, but when he
checked with Riehle with regard to the quit slip the latter
refused to give his imprimatur because, inter alia, Carpenter
was a member of the union bargaining committee, and said
Union had a history of strikes at Wallace which Respon-
dent did not want transported to its Richmond facility.
At the top of David Drew's resume is the notation
"12:00" with the name "Dave" written in immediately un-
derneath (Jt. Exh. 9). Day denied that he made the afore-
noted markings on the resume. However, in the absence of
any evidence showing who was responsible, the notations
appear consistent with the General Counsel's contention
that Day interviewed Drew at 12 o'clock, before he inter-
viewed Carpenter. While Drew was employed by Respon-
dent at the time of the trial, it is noted that he was not
called to testify. Moreover, Day's standing with regard to
accuracy is-a-vis time, dates, and other matters involved
herein has to be strongly suspect. At one point he testified
"I didn't keep none (sic) of the facts straight. I didn't have
no [sic] reason to note and document in any kind of way the
people, the dates, or nothing."
Robert Curtis testified that on July 22 as he was getting
ready to go home at the end of the day shift, Day told him
that he had hired Carpenter and mentioned that he still had
to check with Riehle with regard to a quit slip. Curtis also
testified that when he spoke with Day again the latter re-
6 The acts and conduct alleged to be violative of Sec. 8(aX I ) will be treated
separately infra.
ferred to Carpenter's membership on the union bargaining
committee. Day acknowledged that such conversations
took place but denied telling Curtis that he hired Carpenter.
Day's account of the conversation is that he told Curtis that
Carpenter was the best that he had come across, but that he
still had some applicants to interview. With regard to Car-
penter being a member of the bargaining committee, ac-
cording to Day', it was Curtis who made said reference not
the reverse.
On the basis of demeanor, consistency of testimony, plau-
sibility, and the entire record I am persuaded that Day
hired Carpenter on July 22, but that Day's decision was
rescinded by Riehle. I further credit General Counsel's wit-
nesses over Day in all material areas where the testimonies
are in conflict.
Riehle and l)ay both assert that Day made the decision
to hire Drew, but that Day, on July 22, merely informed
Riehle of that decision. However, this assertion is at odds
with the statements Day made to other employee. Employ-
ees Coleman Collier and Roy Patton credibly testified that
on a Saturday in late September or early October they
pressed Day on why Carpenter had not been hired, and he
told them that Carpenter could do the job but that the
Company would not let him hire Carpenter. When day was
questioned whether he told Patton or C'ollier that the ('om-
pany would not let him hire Carpenter he responded "I
don't remember it. I could have but I I don't remember
making the statement." Day recalled having a discussion
with Patton on a Saturday concerning Carpenter but was
not certain whether Collier was present. Day testified that
Patton asked him if the Company was going to hire Car-
penter, and he responded "I didn't know, that wasn't up to
me, that was up to the Company." )ay's credibility is fur-
ther impaired by his affidavit given to the Board agent
wherein he asserted that he spoke with Patton about Car-
penter before tl:e latter was interviewed and tested (July
22). However, the parties stipulated, the record reveals, and
I find that Patton did not begin working for Respondent
until July 26.
The record discloses that Day made similar statements to
employees Cleatus Abrams and Dewey Malicoat. Malicoat
credibly testified that Day told him that "Willie Carpenter
was the only one that tried out on the [welding] job that
could keep it up" and that Day did not know why the
Company would not let him hire Carpenter.
While the record discloses that Collier, Patton, Abrams,
and Malicoat were formerly employed with Carpenter at
Wallace and were interested in Carpenter's employment
status, the record discloses other factors which tend to sup-
port their testimonies. It noted that the above-named em-
ployees were all employed by Respondent at the time of the
hearing, and as such they testified adversely to their pecuni-
ary interest, a matter not to be lightly disregarded. 7 Further,
a substantial portion of their testimonies if not fully cor-
roborated by Foreman Day was not denied by him either.
In view of the foregoing and on the basis of my observation
of their demeanor, I credit the testimonies of Collier, Pat-
ton, Abrams, and Malicoat.
See, e.g., Federal Stainless Sink Di'. of LUnarco Industries. Inc., 197
NLRB 489, 491 (1972); Gateway Transportation, Inc., 193 NLRB 47, 48
(1971): Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961).
490
DESIGiN ANI) MANI FACT1RIN( CO(RPORA ION
Another critical credibility conflict to he resolved involve
the statements ascribed to Tegeler by Curtis. As noted pre-
viously, the General Counsel contends that Respondent not
only discriminatorily refused to hire Carpenter on July 22
hut continued to thwart his efforts to secure employment. It
is undisputed that after July 22 Carpenter made further
attempts to get a job at Respondent's Richmond facility.
On one of these occasions in October, as testified to by
Curtis, he gave one of Carpenter's resumes (.('. Fxh. 3) to
Tegeler who looked at it and after noting that it was C'ar-
penter's resume, returned it to Curtis. assertedly saying that
he could not hire him. According to Curtis, the reason
Tegeler advanced was that Carpenter was a "union activ-
ist." Tegeler denied that he referred to Carpenter as a union
activist. Tegeler testified that Curtis asked him why the
company did not hire Carpenter, and he responded that
"Willie Carpenter was like 150 or 200 or 300 other people
that we had not hired." Tegeler asserted. "I didn't really
know why we didn't hire him." According to Tegeler. he
was always being stopped by someone asking about jobs for
applicants, and this was one such occasion. Thus Tegeler
asserted, "I tried to pass it off (conversation relative to Car-
penter) as quickly as I possibly could." Tegeler could not
recall anything else of the conversation and denied taking
Curtis into his confidence. However, the testimonies of Cur-
tis and Tegeler regarding a subsequent spirited conversa-
tion between them sometime after the unfair labor practice
charges herein were filed (December 23). tend to support
Curtis' account rather than Tegeler's version.
Curtis testified that shortly after the charges herein were
filed Tegeler came over to him at a time when Curtis was
having a conversation with Foreman Jackson concerning a
work related matter. According to Curtis, Tegeler got angry
with him because the information Curtis had given to the
Board was related to him by Tegeler in "strict confidence."
Tegeler conceded that he got angry at this encounter but
only because Curtis assertedly had lied to the Board. How-
ever, when Tegeler was asked what he said, he testified "[II
don't] remember exactly, because, as I say. I got very angry.
And something to the effect . . . he could not he trusted, and
that-he in effect didn't always tell the truth." (Emphasis
supplied.)s Tegeler's admitted reference to "trust" tends to
lend credence to Curtis' testimony that Tegeler told him
that he could not hire Carpenter because he was a "union
activist," and Curtis' disclosure of this to the Board
breached something that Tegeler told him in confidence. In
the circumstances of this case I consider it more plausible to
attribute the term "trust" and Tegeler's concomitant anger
to Curtis' breach of a confidence, i.e., revealing the union
activist remark, rather than to Curtis' honesty. Accordingly,
I credit Curtis' testimony over the testimony given by
Tegeler.
The record in other respects also reflects unfavorably on
Tegeler's credibility. Tegeler denied that he had ever con-
tacted an applicant's employer with regard to references.
However, when confronted with some written notations on
' It is not clear from the record how much of the conversation was wit-
nessed by Foreman Jackson. No explanation was provided for the failure to
call Jackson as a witness.
the application of employee Ishmael Smith ((;.(C. i.xh. 4).
Tegeler admitted that he called Smith's prex iou cplo!, el.
and the notations reflected the infonrinlationll tal sas pro-
vided by that employer. Still liter wlhen e ;Ias asIked
whether he had made inquiries concerning olther emploccs
to other employers he responded occasionall I did A hen I
had time."
A further critical credibility conflict in,olved a conersa-
tion between egeler and emiploee Wendell Pope in Octo-
her. Pope asked 1legeler about emplo,menit opportunities
for two friends of his and indicated. inter atia, that they
were honest. reliable. and good workers. lie pointed out
that he had worked with them at Haughton ElIvalors for
about 5 years. According to Pope, Tegeler told him "oka"':
he was concerned who he was going to hire because I) & M
could not afford a strike, and he did not w ant to hire an
radicals. Pope testified that legeler made reference to some
employees on the second assembly line who would go out
on strike even if they were offered $7 an hour just to get out
of work. Tegeler denied that he made any reference to
union activity. union radicals, or strike. loweser. as
Tegeler acknowledged that he might have used the term
"radicals" in his conversation with Pope an(d further admit-
ted that he made reference in said conllversation to second
line assembly workers reflecting extreme behavior. I am
persuaded that Tegeler delineated strike oriented employees
from other kinds of employees. It is noted that Tegeler
hired the two individuals recommended b Pope, and he
would appear to have little reason to fabricate his tsti-
mony. Further, it is noted that Pope did not work with
Carpenter and they were not friends. At the time of the
hearing. Pope was still in the employ of Respondent, a tac-
tor reflecting favorably on his credibility.5 Accordingly I
credit the testimony of Pope in all material respects.
On the basis of the implausibility of Tegeler's explana-
tions, his material contradictions, and demeanor, I find that
he was not a reliable witness. Thus I am unpersuaded with
Tegeler's efforts to establish that Carpenter was not hired
after July 22 because of the Company's policy regarding
previously rejected applicants.
As noted previously. Carpenter submitted additional re-
sumes after he failed to obtain a welding job at D & M in
July. On Carpenter's resume dated October 15, Tegeler
wrote the word "no" on the upper right hand portion of the
document (Jt. Exh. 7). His explanation r doing so was
tantamount to conjecture and did not smack of candor. He
explained, ". .. our sort of informal policy was once a per-
son was considered for a particular reason. and for any
reason or other he was not awarded that job then he was
not given any further consideration for other jots. And
probably what I did, If ound his [previous applicationl had no
on it so I wrote no on this." (Emphasis supplied.) his de-
scription of the so-called "informal policy"' contrasts
sharply with an illustration of said policy given by Produc-
tion Manager Riehle. According to Riehle, if an applicant
for a welding position is rejected because someone else is
better qualified, the rejected applicant ill be considered
for future welding jobs but not for other jobs. As the record
discloses that the Company had openings for welders after
9 See fn. 7 above.
4 1
I)l:('ISIONS OF NA' IONAI ILABOR REI.ArIONS BOARD
July."' Carpenter, a welder, would have been considered for
employment if the Riehle standard had been applied.
According to Respondent's witnesses, as there were a
great many applicants interested in obtaining employment
at I) & M at its Richmond facility, its hiring policy from
early 1977 was predicated on giving the Company as much
exposure to the largest number of applicants possible. The
policy was assertedly set in motion by Robert Scelze, execu-
tive vice president and general manager, Richmond divi-
sion. Scelze explained that he decided on the policy because
the Company had been charged with sex discrimination in
1975. 1 cannot discern a nexus between sex discrimination
or any other form of discrimination and the ('ompany's
policy regarding previously rejected employees. For exam-
ple. there is not the slightest intimation that the policy was
designed to help women or members of minority groups. It
is not the wisdom or even the legitimacy of the Company's
policy that is questioned but rather whether on the basis of
the credited testimony it can be determined that it has such
a policy. On the basis of my observation of Tegeler. Scelze,
and Riehle as witnesses and the entire record, I conclude
that Respondent had no such policy and its reliance
thereon is pretextual.
('. Di.scussion and ('onclusions
I. The 8(a)( I ) allegations
As noted above, Curtis testified credibly that Tegeler told
him in October that he could not hire Carpenter because he
was a "union activist." Carpenter was not a member of the
UAW, the bargaining agent fo)r Respondent's employees at
its Richmond facility. but belonged to the Upholsterers
Union which engaged in two or three strikes at Wallace. On
the other hand, Respondent's bargaining relationship with
the UAW has been admittedly "amicable" and free from
strikes. Respondent voluntarily extended its bargaining re-
lationship with the UAW from covering the employees at
its Connersville plants to its newer Richmond facility.
While the parties had to postpone bargaining for the Rich-
mond employees until the UAW won a Board-conducted
election, it does tend to show that Respondent was favor-
ably disposed toward the UAW for collective-bargaining
purposes.
The record discloses that Curtis was the UAW local pres-
ident for the Richmond employees at the time Tegeler
made the "union activist" remark. Tegeler was obviously
cognizant of Curtis' high official standing in the union.
However, given the admittedly "amicable" relationship
with the UAW, Tegeler apparently assumed that he could
safely make discriminatory remarks about a strike oriented
employee (Carpenter) who was a member of a different
union." Tegeler's anxiety relative to strikes and strike ori-
10 For example, employee Malicoat credibly testified that in late Novem-
ber or early December Foreman Day asked him if he was interested in
transferring to a welding job. Malicoat recommended Carpenter but was told
by Day that he did not know why, but the Company would not let him hire
Carpenter
u' See, e.g.. Medicine Bow (Coal Compuan 217 NLRB 931. 939 940 (1975).
ented employees (radicals), was noted previously as cred-
ibly testified to by Wendell Pope.
While it is noted that Curtis was UAW president at the
time Tegeler made the disputed statement, I find it signifi-
cant that he was also Respondent's employee. In these cir-
cumstances, I find that Tegeler's "union activist" statement
to employee Curtis about another individual constitutes a
violation of Section 8(a)( I ) of the Act.'
It is undisputed that sometime after the underlying unfair
labor practice charges herein were filed Tegeler had an an-
gry encounter with Curtis. According to Tegeler. he was
angry because Curtis lied to the Board about him, and he
could not be trusted. According to the General Counsel,
Tegeler's angry outburst was tantamount to conveying the
impression to Curtis that he had his protected activity (co-
operating with the Board) under surveillance. I disagree.
While it is well settled that cooperating with the Board is
protected activity, the facts as developed in this record are
far too vague for establishing that Tegeler created the im-
pression of surveillance or otherwise coercively threatened
Curtis for engaging in such activity.
Carpenter filed charges on December 23 naming Tegeler
therein as the employer representative to contact (G.C.
Exh. I(a)). In connection with the investigation of the
charges, Carpenter's witnesses and Respondent's witnesses
including Tegeler were interviewed by Board agents. In
these circumstances Tegeler could reasonably conclude that
Curtis passed on to the Board agent the "union activist"
remark he made to Curtis, vis-a-0vis Carpenter. I find that
these facts alone do not support the strained construction
placed on them by the General Counsel. In view of the
foregoing and noting that the complaint does not otherwise
allege that Tegeler unlawfully coerced Curtis during the
aforementioned spirited encounter, I shall dismiss this alle-
gation.'
It is further alleged that in August Tegeler coercively
interrogated applicant Robert Austin concerning his union
sentiments. Austin testified that Tegeler looked at his appli-
cation and noted that he had been laid off from Wayne
Works. According to Austin, Tegeler drew to his attention
the fact that D & M does not deal with unions the way
Wayne Works does. Tegeler assertedly declared, "this com-
pany (D & M) runs the company: [at] Wayne Works [the]
union runs the company." Austin testified that Tegeler
asked him if he strongly supported unions to which he re-
sponded that he did. Still further, Austin asserted that
Tegeler predicted that the pay rate at D & M would go up
$1 per hour after the union came in. Tegeler could not
recall interviewing Austin and denied making any anti-
union remarks.
I found Austin to be vague, unresponsive, equivocal, in-
consistent, and incredible. I cannot accept, for example,
without supportive evidence, Austin's assertion that Tegeler
on one hand underscored D & M's freedom to operate
without union interference and on the other hand attribute
to the union a $I-per-hour wage increase on the basis of
it Fla-o-Rich, nt'. 234 NLRB 1011. 1016 (1978); Mason ('iiy Dressed
Beej: 231 NLRB 735, 749 (1977); Medicine Bow (oaol Company, supra.
1 I do, however, note Tegeler's anger as a further reflection of his union
animus. See, e.g.. Medicine Bow ('oal Company. supra at 931, fn. 2.
492
[)I:SI(;N AND MANUIFAC IURIN(i (ORPORAIION
future negotiations. In view of' the foregoing and the entire
record, I find that the General Counsel has failed to estab-
lish on the basis of the credited testimony that Tegeler coer-
cively interrogated Austin in violation of Section 8(a)( 1 ) of
the Act. Accordingly. I shall dismiss this allegation.
2. The 8(a)(3) allegation refusal to employ Willie
Carpenter
The credited testimony discloses that on July 22 Fore-
man Day interviewed Carpenter for a welding position and
asked him whether he would sign a quit slip signifying that
he would not return to Wallace after the strike at that Com-
pany ended, and Carpenter responded aftfrmatively. Day
told Carpenter that the job was his, but that he had to clear
with Production Manager Riehle as to whether he had to
sign the quit slip, and that he would advise him on that
matter Monday morning. As Day conceded that Carpenter
expresed his willingness to sign the quit slip, I find that Day
made a firm offer which was accepted unconditionally by
Carpenter.
Both Riehle and Day asserted that it was Day's decision
as to which applicant to select for the welding position. For
reasons stated previously, I reject Respondent's assertion
that Day hired David Drew because he was better and
faster than Carpenter. Rather. I find on the basis of the
credible evidence that Day hired Carpenter on July 22, and
Respondent's failure to implement this decision was for dis-
criminatory reasons in violation of Section 8(a)(3) and (I)
of the Act.
The credited testimony discloses that after Day told Car-
penter that he was hired he confirmed this to Carpenter's
friend Curtis as the latter was getting ready to go home at
the end of the shift, but he noted that he still had to check
with Riehle regarding the quit slip.
The totality of the record convinces me that Riehle ve-
toed hiring Carpenter because he was considered a strike
oriented employee. It is noted that on Carpenter's employ-
ment application he gave as the reason for not working "on
strike for [b]etter [e]mployment" (Jt. Exh. 6)." Further.
within a few days after Day informed Curtis that he had
hired Carpenter, he indicated that there was a problem with
Carpenter's quit slip or references. Day raised with Curtis
the fact that he had not known that Carpenter was a mem-
ber of the union negotiating committee at Wallace. As
noted above, Respondent's witnesses assert that it was en-
tirely Day's decision to hire Drew. However, Day told a
number of employees that Carpenter was the' best of the
applicants, but the Company would not let him hire Car-
penter.
It is undisputed that Carpenter continued to press for
employment at D & M after July by, inter alia, submitting
additional resumes and talking to Tegeler without success.
Tegeler, who had succeeded Riehle with regard to person-
nel functions in August, told Curtis in October that he
would not hire Carpenter because he was "a union activ-
14 By contrast, Respondent hired former Wallace emploee Ismael Smith
in August with virtually the same experience as Carpenter. Smith's applica-
tion gave as the reason for leaving Wallace "to [sic] man) strikes (family)"
(See G.C. Exh. 4 at p. 2).
ist." 'Thus the Company's posture with regard to hiring em-
ployees supportive of strikes or union militancy was main-
tained b) Tegeler. IThis was further evident b Tegeler's
statement to employee Pope that D & M could not afford a
strike, and he would not hire [union] radicals. egeler, on
the other hand, asserted that he did not ofler Carpenter a
job in October or thereafter because he had been previously
rejected, and it was the Company's inforntal policy not to
consider rejected applicants for future employment. How-
ever. for reasons stated previously. I have determined that
Respondent had not maintained any such policy., and its
reliance thereon is pretextual.
Respondent points to its long "amicable" history that it
has enjoyed with the UAW in support of its contention that
it has never harbored any union animus. It denied that
union activity was ever a basis for deciding not to hire an
applicant. In further support thereof it adduced testimony
showing that it hired several former Wallace employees
who had been active in union affairs.
With regard to Respondent's amicable relationship bely-
ing the allegation that it would discriminate against individ-
uals supporting other unions, Administrative Law Judge
Pannier III cogently met virtually the same contention as
follows:
That Barnett would feel this way is only natural in
light of the fact that Respondent was satisfied with its
relationship with Progressive - a relationship unsullied
by either striAes or unjair labor practices. " [Emphasis
supplied.]
Insofar as Respondent had hired a few former Wallace
employees who had served in some union capacity, I find it
significant that there is no evidence tending to show that
Respondent had knowledge of their union activity at the
time they were hired. Moreover, the record discloses that
these individuals were active in union affairs long before the
current strike at Wallace, and none of them was on the
most recent union negotiating committee.
On the basis of the foregoing and the entire record, I find
that the General Counsel has established by a preponder-
ance of the credible evidence that Respondent has, since on
or about July 22, refused to employ Willie Carpenter. Ac-
cordingly. I find that Respondent has thereby violated Sec-
tion 8(a)(3) and () of the Act.
Ill. THE EFFECTS OF HE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above in section II,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
CONCI USIONS OF LAW
1. Respondent, Design and Manufacturing Corporation.
is an employer within the meaning of Section 2(2) of the
Is Medicine Bo. Coal Companr, supra at 939.
493
I)E('ISIONS OF NATIONAI. LABOR REI.ATIONS BOARD
Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local Union No. 589, Upholsterers International
Union of North America. AFI. CIO (herein Upholsterers
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By making statements to employees that it would not
hire applicants because of their union activity Respondent
violated Section 8(a)(I) of the Act.
4. By discriminatorily refusing to employ Willie Carpen-
ter since on or about July 22. 1977, Respondent violated
Section 8(a)(3) and (I) of the Act.
5. General Counsel has failed to establish by a prepon-
derance of evidence that Respondent engaged in interroga-
tion of employees in violation of Section 8(a)(1) of the Act.
6. General Counsel has failed to establish by a prepon-
derance of evidence that Respondent conveyed the impres-
sion of surveillance to employees in violation of Section
8(a)(1) of the Act.
TItE REMIt)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent refused to employ
Willie Carpenter in violation of Section 8(a)(3) and (1) of'
the Act, I shall recommend that Respondent be ordered to
offer him employment to the position for which he would
have been employed but for the discrimination against him
or, if that position no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority and other
privileges, and make him whole for any loss of earnings he
may have suffered with interest. Backpay shall be com-
puted according to the Board's policy set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950). Payroll and
other records in possession of Respondent are to be made
available to the Board or its agents to assist in such compu-
tation. Interest on backpay shall be computed in accord-
ance with the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977).'6
It will be further recommended, in view of the serious
unfair labor practices herein found, that Respondent be or-
dered to cease and desist from "in any other manner" in-
fringing upon the rights of employees guaranteed in Section
7 of the Act. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d
532, 536 (4th Cir. 1941); N.L.R.B. v. Bama Company, 353
F.2d 323-324 (5th Cir. 1965).
On the basis of the above findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
"See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
ORI)ER' 7
The Respondent, Design and Manufacturing Corpora-
tion Richmond, Indiana, its officers, agents, successors, and
assigns, shall:
1. ('ease and desist from:
(a) Discouraging membership in or activities on behalf
of Local Union No. 589. Upholsterers International Union
of North America. AFL CIO. or any other labor organiza-
tion, by denying employment to applicants because of their
activities on behalf of a labor organization or otherwise dis-
criminating in regard to hire or tenure of employment or
any terms and conditions of employment of its employees.
(b) Making statements to employees indicating that it
would not hire applicants because of their union activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Willie Carpenter employment to the position
for which he would have been employed but for the dis-
crimination against him or, if that position no longer exists,
to a substantially equivalent position, without prejudice to
his seniority and other privileges, and make him whole for
any loss of earnings with interest in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Richmond. Indiana, plant copies of the
attached notice marked "Appendix." '" Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 25, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply therewith.
'7 In the event no exceptions are filed as provided by Sec. 102,46 of the
Rules and Regnlations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
'8 In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
494