Didde-Glaser, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1977

233 N.L.R.B. 765 (N.L.R.B. 1977)

DIDDE-GLASER, INC.
Didde-Glaser, Inc. and District Lodge No. 70,
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 17-CA-7326
November 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 6, 1977, Administrative Law Judge David
G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
an answering brief in response to the General
Counsel's exceptions and in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge,
only to the extent consistent herewith.
The General Counsel has excepted, inter alia, to the
Administrative Law Judge's failure to find that
Respondent violated Section 8(a)(1) of the Act by
Industrial Relations Manager McClenney's interro-
gation of employee Krueger. The General Counsel
has also excepted to the Administrative Law Judge's
failure to provide a remedy for certain other 8(a)(1)
violations which he found. We find merit in these
exceptions.
The record indicates that on April 8, 1976, while
giving employee Krueger a written warning of
insubordination, McClenney asked Krueger why a
handful of employees, including Krueger, felt they
needed an outside organization to help them. The
Administrative Law Judge found this statement to be
only a "gratuitous allusion to unwelcome association
with outsiders." We disagree.
We find that coercion is implicit in the questioning
because it implies that the Employer does not look
with favor upon employees who engage in such
activities. This in turn discourages employees from
engaging in protected activity guaranteed them by
Section 7 of the Act. Accordingly, we conclude that
Respondent, by questioning Krueger in the manner
described, violated Section 8(a)(l) of the Act.
I The General Counsel has excepted to certain credibility findings made
by the Administrative 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
convinces us that the resolutions are incorrect. Standard Dr, Wall Products.
233 NLRB No. 115
We agree with the Administrative Law Judge's
findings that Respondent, by its fabrication manager,
Neinstadt, violated Section 8(a)(l) of the Act by
engaging in the following coercive conduct: Just
prior to the Board election in July 1976 Neinstadt
spoke privately with employee Brown and told him
that "after the union was over with, the people who
were pushing the Union wouldn't be around."
Neinstadt also asked Brown how he intended to vote
in the upcoming election and, according to Brown's
uncontroverted testimony, requested that Brown talk
to his fellow employees and "convince them that the
Union was bad for the company and so forth and
persuade them to vote no." Also, shortly before the
election, Neinstadt asked employee Ernst if he had
decided how he was going to vote. Finally, in
February 1976, during the early stages in the
organizing campaign, Neinstadt repeatedly asked
employee O'Brien whether he knew of rumored
union activities, whether he knew how many cards
had been distributed, and whether he knew exactly
who was for the Union. While finding the foregoing
unlawful under Section 8(a)(1), the Administrative
Law Judge nevertheless concluded that no remedial
order is required since these activities were, in his
opinion, isolated. We cannot agree.
The above instances of interrogation and threats
are not so isolated and insignificant as to preclude
the need for a remedial order. To the contrary, we
regard such conduct as serious violations of the Act
and view it as an attempt by Respondent to coerce
and restrain its employees from exercising rights
guaranteed by Section 7 of the Act. Accordingly, we
shall issue our usual order with respect to the
violations.3
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Didde-Glaser, Inc., is, and at all times material
herein has been, an employer engaged in commerce
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We disavow the Administrative Law Judge's subjective charactenza-
tion of the witnesses in the second from the last paragraph of his Decision.
as totally irrelevant, gratuitous, and inappropnate.
3 Groendske Transport, Inc., 211 NLRB 921,922 (1974).
765
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act, the Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Didde-Glaser, Inc., Emporia, Kansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees for engaging in
union activities or interrogating them about those
activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Emporia,
Kansas, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed to the extent that it alleges
violations not established by the General Counsel.
I 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
present evidence and arguments, the National Labor
Relations Board has found that we have violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice and carry out its terms.
The National Labor Relations Act gives you, as
an employee, these rights:
To engage in self-organization
To form, join, help or be helped by unions
To bargain collectively through a repre-
sentative of your own choice
To act together with other employees to
bargain collectively or for mutual aid or
protection, and
If you wish, not do any of these things.
WE WILL NOT threaten our employees for
engaging in union activities or interrogate them
about those activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by the
National Labor Relations Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
DIDDE-GLASER, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Emporia, Kansas, on March 28, 29, and
30, 1977, based on a complaint issued November 26, 1976,
alleging that Didde-Glaser, Inc., herein called Respondent,
violated Section 8(a)(1) and (3) of the Act by interrogating
and threatening employees with respect to activities
supportive of District Lodge No. 70, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
herein called the Union, by demoting and later construc-
tively discharging Dean Rhudy and by also discharging
Earl Bess, because of the refusal by these named individu-
als to participate in, and cooperate with, the commission of
unfair labor practices, and by suspending employee John
Chris Krueger for 3 days without pay and constructively
discharging employee Orval Van Hardesty because of their
activities on behalf of the Union.
766
DIDDE-GLASER, INC.
Upon the entire record,' my observation of the witnesses,
and consideration of briefs filed by General Counsel and
Respondent, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
About July 1975 certain employees of the fabrication
department formulated a list of questions respecting
operational and personnel matters. 2 These were taken by
Leadman Richard Krueger to Fabrication Department
General Foreman Earl Bess "for going through the chain
of command." Bess promptly gave them to Fabrication
Department Manager Dean Rhudy, who in turn took them
to Manufacturing Division Manager George Markowitz
within the next couple of days. Rhudy testified that
Markowitz was too busy at the time to do more than place
them in his desk, offering also to "get together later on and
to go over these questions." About a month later Rhudy
was called into Markowitz' office for the purpose of
discussing the questions. In this process Markowitz
specifically assigned Rhudy to devise answers for certain
questions and contact other managerial personnel on the
balance. This was done over the next 30 days and when
answers were assembled, Rhudy delivered them to Richard
Krueger as a package response.3 Related to this back-
ground is the fact that a comparable list of questions had
earlier arisen from the assembly department and that
before final completion of this asking-answering cycle,
Richard Krueger, accompanied by another rank-and-file
employee, had a meeting with Company Owner Carl Didde
respecting their inquiries.
In late January 1976 machine operator (now technical
advisor) John Chris Krueger (brother of Richard) contact-
ed John Overman, a Wichita-based district representative
for the Union.4 Organizing efforts ensued, with Chris
Krueger actively involved in passing authorization cards,
planning employee meetings, and displaying union insignia
on his personal vehicle. Machine operator Orval Van
Hardesty also functioned actively in this regard, and served
as union observer in a representation election conducted
July 28.
On April 1, Milie Wade was elevated from executive vice
president in training to become chief operating officer.
Wade had previously identified poor internal communica-
tions as a corporate problem and commissioned a consult-
ing firm to recommend solutions. From this, over 100
meetings were held during the February-April period
between Wade and small groups of employees, during
which he sought to sound out the rank-and-file on their
concerns and suggestions. Concurrently, management
I Certain inadvertent errors in the transcript are hereby noted and
corrected.
2 Respondent corporation is engaged in manufacture of printing
equipment at a plant located in Emporia, Kansas. and annually purchases
materials valued in excess of S50,000 directly from sources located outside
Kansas. I find that Respondent is an employer within the meaning of Sec.
2(6) and (7) of the Act, and that the Union is a labor organization within the
meaning of Sec. 2(5).
3 Markowitz' contrary testimony that he had commissioned Rhudy and
other subordinates to develop an immediate response upon first receiving
the list from Rhudy is discredited. I am satisfied that Rhudy more correctly
described actual happenings, and that on this point Markowitz was
manifesting faulty memory plus the inclination to avoid blame.
having learned of the Union's organizing drive shortly after
inception, a sequence of near-weekly supervisory meetings
was held during which officials orchestrated resistance to
the Union's campaign. This resistance, coordinated chiefly
by then Industrial Relations Manager Dan McClenney,
had two main thrusts. The first was assertedly to avoid
commission of any unfair labor practices, and the second
was to capitalize on opportunities for supervisors to speak
permissibly with employees about the advantages of not
selecting the Union as a collective-bargaining representa-
tive. 5
Rhudy testified that at a supervisory meeting in July,
attended and ostensibly run by Markowitz and newly hired
Personnel Division Manager Feegeebee Parish, the assem-
bled supervisors were told to "go out in the shop and find
out who was for the Union and who was against the Union
even to the point to ask how they were going to vote, yes or
no, a direct question to the people." Markowitz generally
denied ever giving such instructions. Bess testified to
attending approximately 30 or more supervisory meetings
between February and July at which supervisors were
"kept posted" by McClenney and told to "try to find out or
to talk down the Union and to talk up the Company and
encourage the employees to stay on the Company's side."
He further recalled urgings "to engage employees in a
conversation and try to address the Company's points, the
good points, to talk down the Union and, if we could, feel
an employee out as to how he felt about the Union,
whether he was for or against it." In this regard McClen-
ney's teaching was to "approach employees on a one-to-
one basis whenever possible, the reason for that being if I
as a supervisor said something that possibly wasn't right
that it could be denied at a later date if the employee
brought it up." Rhudy and Bess dutifully obeyed, in a
manner respectively described as never actually asking an
employee "point-blank whether he would vote for or
against a union," and never "specifically approach[ing] the
subject about the Union" but instead trying to stimulate
the subject from the employee in order to "explain the
Company's standpoint" and why "we thought the Union
would harm them." Related to this is Rhudy's testimony
that he instructed his own subordinate supervisors in
nondeviation from the do's and don'ts.
In context of a fiscal year beginning April I and Wade's
newly assumed executive role, Respondent planned major
reorganization in a manner generally described in Wade's
4-page memorandum entitled "Improvement Projects" sent
May 13 to division managers. This document confirmed
the present reassignment of Rhudy to a technical training
position, contemplated abolishment of the fabrication
department's general foreman position, and, among other
4 All dates and named months hereafter are in 1976, unless indicated
otherwise.
5 Five years earlier the Union had conducted an organizing effort which,
as here, was unsuccessful. In the process of supervisory meetings much
discussion was keyed to a written list of"Do's and Don'ts" and "What You
as a Supervisor can/cannot Do." to which all supervisors were expected to
adhere. Another tactic was to extraordinarily channel all personnel matters,
particularly discipline, through McClenney for an assessment of lawfulness.
Additionally, as the election neared, supervisors were importuned to
"forecast" the sentiments of employees within their own organizational unit,
and "guesstimate" individual votes for purposes of mock tallying.
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things, alluded to the "outside organizing attempt" which
Wade felt would be defeated upon informed employees
being rallied to the Company's nonunion philosophy.
Rhudy's job change stemmed from meeting with Marko-
witz on April 22, and being abruptly advised of imminent
replacement with the only alternative (other than resigna-
tion) that of phasing into direction of a newly created
machine operator training section. Rhudy testified that
Markowitz explained the change as being based on
Respondent's current "fight" with the Union, in regard to
which Rhudy's "cooperation" was below expectations.
Rhudy tacitly accepted the change and promptly phased
out of the fabrication department manager position into
one titled "training coordinator." Subsequently, employee
action notices recorded this change, and an assigned salary
range that would have caused Rhudy a weekly reduction of
over $100 in gross wages. Officially the change was
effective August 15, although a 13-week salary hold was
allowed both as temporary income preservation and to
avoid prejudice of any ultimate severance pay calculation.
As the 13-week period neared its end Rhudy determined he
no longer wanted to perform training work, nor to accept
the imminent salary cut. He informed his supervisor,
Employment Manager Leslie Neff, of this decision and
signed as a voluntary termination on November 10. As
matters were unfolding with Rhudy, Bess had been
informed by Markowitz in early May of his position being
abolished and reassignment (without cut in pay) as
machine shop foreman II. In this position he came to be
supervised by Byron Neinstadt, newly appointed fabrica-
tion department manager and the same individual who
until recently had been subordinate to Bess as a foreman of
the machine shop's third shift. In September, Neinstadt
took Bess to the office of Parish, where he was unex-
plainedly informed of termination. Markowitz, who per-
sonally had no role in the decision, testified to knowing of
"complete discontent" within the manufacturing division
because Bess habitually failed to discipline employees in
regard to general plant rules and specifically as to the
"Start/Stop and Wash Up Time" policy.
As these dynamics resulted in cessation of employment
by Rhudy and Bess, a separate set of facts surrounds other
allegations of the complaint. On April 7, Chris Krueger had
informed Bess (his supervisor at the time) that he (Krueger)
would likely not have his toolbox at work the following day
in protest of job classification policies. This occurred and
Krueger was, shortly after so appearing the morning of
April 8, brought to McClenney's office by Bess with
Markowitz also present. Krueger testified that in a 20-
minute conversation he was given a written warning of
insubordination midst much comment by McClenney of
why such "a handful of employees, including myself . . .
felt we needed an outside organization to help us" and
which, if such activities were to continue, would result in
being called "back up for it, that I would be terminated."
McClenney testified that he had expressly prefaced the 1-
1/4-hour discussion by saying there was no connection
between "this particular disciplinary situation" and the
organizing campaign. He added that any further remarks
about the union campaign were "probably" introduced by
6 1 find contrary to Van Hardesty's recollection that the document as
Krueger. Predictably, Bess partially corroborates Krueger
while Markowitz' testimony supports McClenney. I discre-
dit Krueger to the extent that he recalled McClenney
threatening him with termination. I am convinced that in
this regard Krueger has confused discussion of his outside
activities with management's immediate distaste for the
reckless caper of that morning. Bess, present for all but
several minutes of what he estimated was an hour long
meeting, did not recall the utterance. The probabilities do
not run toward this having been said and I credit
McClenney's express denial. I find as fact only that
McClenney gratuitously alluded to unwelcome association
with outsiders.
In further relation to what allegations are contained in
paragraph 5 of the complaint, former employee Fred
Brown testified that shortly before the representation
election Neinstadt spoke privately with him saying that
people who were pushing the Union wouldn't be around
when it was over and asked that Brown talk with other
employees to urge that they vote no. Former employee
Robert Ernst testified that several days before the election
Neinstadt spoke with him alone in the shop, asking if he
had decided how he was going to vote and whether any
deceit injected by company officials as to how authoriza-
tion cards were handled would be enough to cause Ernst
himself to sign a card. Finally, employee Jimmy O'Brien
testified that in February, when Neinstadt was still a shift
supervisor, the latter repeatedly asked O'Brien whether he
knew of rumored union activities, whether he knew how
many cards had been distributed, and whether he knew
exactly who was for the Union.
In July employee Robert Rumold began displaying
symptoms of nervousness while at work. Through Lead-
man Charlie Young, Rumold requested discussion with the
first-shift foreman, Leroy Phillips. In this, Rumold told of
being harassed by Chris Krueger and Van Hardesty with
name calling of "brown nose" and "kiss ass." Rumold
found this disturbed him both at work and home to the
point that he obtained medical treatment. Phillips visited
the Rumold home to acquire more details on the matter,
solicited Rumold's signed statement on the point, and
presented the situation to Parish. On the strength of this,
Neinstadt disciplined Krueger with a 3-day suspension
while Phillips administered a verbal warning to Van
Hardesty. Both these actions occurred September 22.
Krueger's was essentially uneventful, however, much more
unfolded for Van Hardesty.
He reacted angrily to the discipline, demanding to know
the informant's identity. Phillips declined to reveal this and
upon continuing the discussion in Parish's office, this
official did the same. It was soon necessary to summon
Lloyd (Bud) Utley, Respondent's acting chief executive for
that day. Utley appeared, took over Parish's office in an
attempt to calm the persons involved, and excused Phillips
in order to converse privately with Van Hardesty. The
employee angrily told of seemingly having three choices
presented by Phillips. These were to sign the employee
action notice (embodying a "verbal warning") 6 as an
"admission of guilt," not sign it and be fired, or leave
employment with severance pay. Van Hardesty elaborated
presented to him at the time did contain the typed phrase "verbal warning."
768
DIDDE-GLASER, INC.
with strongly held belief that during all his years with
Respondent he "never harassed a soul," and stated that
Phillips had threatened him with "terrible job recommen-
dations" should he be fired. Utley told him to return that
Friday afternoon after discussing matters with his family
and reaching a personal decision. 7 On Thursday, Van
Hardesty telephoned Utley to verify that severance pay
would be granted, and ultimately appeared with his wife on
Friday afternoon at which time he signed a resignation and
related separation papers. In accordance with earlier
assurance by Utley, he was provided at the time an
estimate of monthly retirement benefits should he instead
remain working until at least his 10-year vesting date of
May 1977.
What has been seen here is an employer relentlessly
determined to prevail against another specter of unioniza-
tion. In the process it was willing, as an adjunct to both
normal operational throb and fundamental changes in
organization, management, and capital investment, to fully
gird for the expected balloting climax. Reaction to word of
a union drive was swift, thorough, and expensive. Supervi-
sors were carefully coached to play an effectively watchful
role, an administrator expressly functioned to coordinate
the overall defense, clearly allowable persuasions were
employed (this refers to Wade's three deliberately spaced
speeches to assembled employees prior to the election), and
legal advice was never more than a telephone call away.
Cannily, Respondent also announced the soothing news
that upon the Union's defeat no recriminations would
ensue. While such conduct may be argued as only
deceptively superficial, it is at least a point of departure for
decision.
As to the "supervisory discharge" issue of the case,
General Counsel's complaint is woefully unsupported in
fact and law. In this area the key question is whether
employees were coerced by events affecting their supervi-
sors and whether this derivatively subjected them to the
vice of Section 8(a)(1). This may take several forms and has
done so from the time of originating doctrine in such cases
as Better Monkey Grip Company, 115 NLRB 1170 (1956), in
which the violation was for discharging a supervisor upon
his giving needful testimony under the Act. Here the more
classic instance of supposed refusal to commit unfair labor
practices is the theory, and in this regard General Counsel
I am satisfied that his failure to recall this was based on poor observation
while distraught, and confidently accept Utley's (and Phillips') express
testimony that the phrasing was there.
7 Parish had previously imposed a 2-day suspension because of Van
Hardesty's provocatively menacing response to Phillips' discipline. Septem-
ber 22 was a Wednesday.
I There is no bar to employer tactics designed to stay nonunion, where
these are permissibly structured and implemented. Here a main theme was
information gathenng, from which further steps could be planned. Standing
alone there is no wrongdoing in deliberate tabulation of how votes may fall,
even though this is done during intramanagement councils that columnize
employee names and have as an outgrowth specific plans to convert voters.
A tangential aspect of the case, one involving Markowitz' claimed statement
to the effect that "union pushers" would ultimately not be around. I resolve
by finding it made only as a statistical prediction of attritional employment
patterns after the trauma of a union election defeat, and otherwise
completely immaterial to the case since not made to any employee nor
constituting a showing of animus that might tie in to other issues.
9 Rhudy's demotion and ultimate separation (constructive only in the
sense of otherwise facing reduced income) was based on Respondent's
dissatisfaction with his willingness to feed an appetite for strategy input (the
relies most significantly on Russell Stover Candies, Inc., 223
NLRB 592 (1976). The defect is that this case bears only
slight resemblance to Russell Stover. Initially I find that
Rhudy and Bess are both poor sources from whom to learn
the essence of what supervisors were taught over the course
of many meetings on the subject of resisting the Union.
Rhudy was vague and unspecific as to key articulations,
while Bess testified only to what must be taken as
interpreted impression of words spoken and not actual
exhortation. Neither of them had any enthusiasm for the
project nor did they appear sensitive to nuances of what
was being told. I discredit each in this regard and find that
management spokesmen demanded only that supervisors
be deftly partisan, and constantly strive to assess voting
inclinations among the rank-and-file. Specifically, I find
that here both McClenney and Markowitz are the reliable
witnesses, and each spoke only in implementation of
Respondent's do's and don'ts. 8 Reflecting their own
personalities and inclinations neither Rhudy nor Bess ever
remotely approached any employee impermissibly and the
uncooperativeness voiced against Rhudy must be seen only
as that of failing to produce feedback. The Russell Stover
case was characterized essentially by the demand of an
employer that one supervisor of a small operating unit
persistently insinuate himself into daily activities of his
subordinates, and so vex him as to eventually inform
employees he was actually engaged in surveillance of their
union activities. That is not the case here and Respondent's
assertion that Western Sample Book and Printing Co., 209
NLRB 384 (1974), controls is well taken. In truth, National
Industrial Constructors, Inc., 225 NLRB 672 (1976), in
which recommended dismissal of Case 17-CA-6760 was
adopted, is much closer on the facts.
I therefore find that essentials of a "supervisory dis-
charge" case are not present, as the persons were not in fact
directed to commit unfair labor practices and thus this
could not (as Respondent has argued vigorously from the
time of its motion to dismiss made during hearing) have
been left undone for that reason. In fact, I summarily find
that both discharges were for good cause in a sense that
would allow Respondent to prevail on this branch of the
case even had the foundational conclusions been contrary.9
Chris Krueger's suspension was not discriminatory as
alleged. A general aura of animus is lacking, and Nein-
essence of complaint pars. 6 read in connection with 8), with claimed
laggardness in responding to employees (embracing recorded reference to
three despised "unionization attempts" originating from his department).
and with poor planning ability (here concerned mostly with a new paint
operation). I suspect that Markowitz may not have been above shunting
blame toward Rhudy where not fully deserved, however, this is but a normal
indicia of intracorporate maneuvering. Bess' situation is more transparent.
General Counsel argues his case as though he were not a supervisor within
the meaning of the Act. In this regard length of service is largely immaterial,
as is the astonishingly naive characterization of General Counsel's brief that
his ascension to general foreman in the year 1968 after hire as a rank-and-
file in 1959 was for "exemplary" employment and "high caliber" perfor-
mance. In truth Bess was a hail fellow to his subordinates who (with other
general foremen) was caught up in Wade's merciless systems and methods
type of modern business operation, and ultimately left so starkly anachron-
istic that the triumphant Neinstadt simply eased him out. The modified
appraisal of Van Hardesty, so greatly relied on by General Counsel for
sinister significance, is but a reflection of Neinstadt's harder supervisorial
line. Again the realities of managerial employment is shown, and the
purposes of congressional exclusion of supervisors from most NLRA
purposes clearly seen.
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stadt's discipline of him was restrainedly related to the
depth of effect on Rumold. Commonality of rough shop
talk may be granted; it is still within an employer's
province to deal severely with dispiriting harangue of one
employee by another. To urge as General Counsel does
that this chief union instigator, still employed 16 months
after the time he so first functioned, tolerated through a
deliberately insubordinate act, and since promoted with a
pay increase, was nonetheless discriminated against is
unpersuasive to a point some might label as sheer folly.
The Van Hardesty matter is even less meritorious. Here a
seasoned union activist and election observer was, with one
exception,l unjarred by any aspect of the entire organizing
campaign or its immediate aftermath. While obviously no
love was lost between Phillips and Van Hardesty, the
former still possessed ample justification, as to which I
have no basis to impose substitutional judgment, for
rendering some discipline against Van Hardesty. As with
Krueger, Rumold had specifically testified to certain
continual name calling by Van Hardesty, which Respon-
dent is entitled to squelch at the source with the objective
of maintaining general orderliness to its manufacturing
operations. From that it was Van Hardesty all the way,
escalating the issuance of verbal warning to a near-frenzied
state in which he convinced himself that resignation was
the only honorable out. I expressly find that Van Hardesty
was completely in error to understand he faced "perma-
nent probation," a notion foreign to Respondent's person-
nel policies, credibly denied by all other participants and
obviously arising only as a figment of Van Hardesty's
imagination during this agitated period. The truth of Van
Hardesty's fanciful "three choices" is found in Utley's
credible description of having emphasized that regardless
of whether the employee action notice was acknowledged
with signature, the underlying discipline would be "sup-
port[ed and sustain[ed]" as having been openly given. It is
unnecessary that I comment on the subtle emotional and
intrafamily realities of the eventful September 22-24 span
in Van Hardesty's life. His heart was in a new career and,
from what is known, his wife meekly endorsed the petulant
act of quitting. Suffice it to know that the astute Utley
vainly attempted to bathe Van Hardesty in reason, and for
purposes of this case to preserve for him the very
employment General Counsel alleges was constructively
taken away. Again as with Krueger there is no hint of any
contrary influence relating to the long-concluded union
activities of early 1976, and I am left genuinely puzzled
why such an assertion was even pressed.
Respecting allegations of an independent 8(aXl) viola-
tion, I largely find for General Counsel on the factual
plane." Based on stated credibility findings, McClenney is
1o Around August 1. Van Hardesty's leadman obliquely conceded, but
simultaneously retracted as devoid of expressed intent, a remark tattled to
by Rumold that unless Van Hardesty got his "head out of my butt over this
union, I was going to get fired." This was not alleged to be a violation and
considering its source I find no reason to treat it further.
1i The original charge in this matter, alleging in "catchall" fashion the
commission of specified "and other acts" in violation of Sec. 8(aX I), was
filed and served October 6. This charge was first amended October 28 and
second amended November 22, in the latter case raising for the first time
explicit issues relating to Rhudy and Bess. I find that remarks of McClenney
believed to have departed from his opening disclaimer of
seeking to relate the April 8 meeting to a contemporaneous
organizing campaign, and instead slipped into animated
remarks seemingly critical of Krueger for associating with
the outside organization. So the theoretical ingredients are
present to argue that Respondent's agent impermissibly
connected up the holding of a disciplinary conference to an
employee's legitimate protected activities, and thus injected
implicit job coercion into the episode. Considering that this
was barest verbalism, and, even if as Bess testified repeated
several times, the essence of the discussion was Krueger's
deliberate insubordination which could only have the
effect of goading superiors into exasperated dismay. I see
no reason here, nor as viewed in connection with the
uncontradicted Neinstadt utterances, to take remedial
action. Neinstadt did not testify and description of his
remarks are entitled to face value. Should these inquiries of
a person newly promoted to higher supervisory office and
hyped with his employer's tightly knit plan of combating
unionism warrant the ordinary remedial machinery of the
Board? I view them, and McClenney's of April 8, as
isolated, inconsequential mouthings of picayune concern
with respect to the industrial realities of this 500-person
work force and not of a character that warrants further
action. Overall, the relationship of these utterances to the
long settled organizing campaign and, indeed, basic rights
under Section 7 of the Act is so tenuously insignificant as
to compel an ultimate conclusion that General Counsel's
entire complaint was improvidently drawn.
In the last analysis this is a case of distinct personalities,
each displaying individual uniqueness of style and purpose
even in the narrow range of life that constitutes one's
employment. Wade, the suave executive; Markowitz, the
entrenched manager; McClenney, the bluff functionary;
Parish, the exasperable official hired into the final throes of
a major organizing campaign; Neinstadt, the ambitiously
loyal employer's man; 12 Rhudy, the gently rigid technician
who time may have passed by; Bess, lovable to a fault;
Chris Krueger, feisty, but compromised in the end; and
Van Hardesty, aspiring cosmetologist hopefully afield
where the absence of manufacturing-type pressures will not
again tax his rather easily distorted perceptions of truth.
Two other individuals deserve comment. Rumold was a
most pathetic figure and it would be well only to say that
his fragile sensitivities were regrettably exploited by both
sides. Finally: Utley, on whom I rely so much for
acceptable facts relative to paragraph 10 of the complaint
was a witness of the finest impression from standpoints of
demeanor, consistency, clearmindedness and perspicacious
recall. That is the story; this was the cast. The Board would
be wise to leave matters where they lie.
uttered April 8 are within the Act's 10(b) period (as for the same reason is
the allegation addressing Rhudy's demotion on April 22). since the
utterance, if it be an actionable threat, is closely related to matters raised in
the original charge. I therefore reject that portion of Respondent's defense
which relies on the limitation period of Sec. 10(b). See Benner Glass Co., 209
NLRB 686 (1974); N.L.R.B. v. Gaynor News Company, Inc., 197 F.2d 719
(C.A. 2. 1952), affd. 347 U.S. 17.
LZ Characterization of Parish and Neinstadt, neither of whom testified,
are deductible from the record as a whole.
770
DIDDE-GLASER, INC.
Accordingly, I render as conclusions of law that
Respondent has not interrogated and threatened its
employees in any manner warranting remedial action by
the Board, has not violated Section 8(a)(1) in any manner
with respect to Rhudy or Bess, nor has it violated Section
8(a)(3) as alleged.
[Recommended Order for dismissal omitted from publi-
cation.]
771