Dumbauld Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1990

298 N.L.R.B. 842 (N.L.R.B. 1990)

842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dumbauld Corporation and United Electrical, Radio
and Machine Workers of America (UE). Cases
9-CA-26458 and 9-CA-26582
June 22, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
- CRACRAFT AND DEVANEY
On January 17, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, - and
conclusions2 and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Dumbauld Corporation, Xenia, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order, as modified.
1. Substitute the following for paragraph 1(b).
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge that it is reasonable to infer that group leader
David Funk informed management of the remarks of Donald Meredith
that "what this place needs is a good union I think we ought to orga-
nize," made one day prior to Meredith's discharge Although the judge
did not discuss Funk's denial that he passed on Meredith's remarks to
management and described Funk at the outset as a "seemingly honest
witness," the judge also found that Funk's testimony was biased, and he
credited the testimony of employees Meredith and Kenneth Kleiner over
the testimony of Funk when their testimony was in conflict Because the
judge clearly found that Funk reported Meredith's remarks to manage-
ment, he implicitly discredited Funk's denial that he engaged in such con-
duct We adopt his finding
The judge inadvertently failed to note the Respondent's admission that
it is an Ohio corporation and that during the previous 12 months it per-
formed services valued in excess of $50,000 for customers located outside
the State of Ohio and is now, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec 2(2), (6), and (7)
of-the Act Further, at the hearing the Respondent admitted that the
Union is a labor organization within the meaning of Sec 2(5) of the Act.
2 In adopting the judge's conclusion that the Respondent terminated
employee Meredith because of his expression of prounion sentiment, we
do not rely on the testimony of employee Glen Rector, noted at fn 27 of
the judge's decision, that Rector heard unspecified accounts that Mere-
dith was discharged for his union sentiments.
a Under the circumstances of this case, we find it appropriate to substi-
tute a narrow cease-and-desist provision for the broad order recommend-
ed by the judge
"(b) In any like or related manner interfering
with, restraining, or coercing employees in their
right to self-organization, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such ac-
tivities."
2. Substitute the attached notice for that of the
administrative law judge.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discriminate against employees for
supporting a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to form, join, or assist
unions, to bargain collectively through representa-
tives of their own choosing, to engage in other
mutual aid or protection, or to refrain from such
activities.
WE WILL offer Clarence E. Hawkins and Donald
R. Meredith immediate and full reinstatement to
their former jobs, or similar jobs, if their former
jobs no longer exist, without prejudice to their se-
niority and other rights and privileges, and WE
WILL make them whole, with interest, for losses
they may have suffered as a result of our discrimi-
nation against them.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
DUMBAULD CORPORATION
Engrid Emerson Vaughan, Esq., for the General Counsel.
Richard A. Wead, Esq., of Xenia, Ohio, and Alan Fry, of
Cincinnati, Ohio, for the Respondent.
Dennis Painter, of Springfield, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BERNARD RIES , Administrative Law Judge. This
matter was heard in Xenia, Ohio, on September 5 and 6,
298 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 843
1989.1 The consolidated complaint alleges that
the discharges of Clarence Hawkins on April 24,
1989, and Donald Meredith on May 6, 1989, violat-
ed Section 8(a)(3) and, derivatively, Section 8(a)(1)
of the National Labor Relations Act.
Briefs were filed by the General Counsel and the Re-
spondent on or about October 27, 1989. On the basis of
the record, the briefs, and my impression of the wit-
nesses, I make the following2
FINDINGS OF FACT
L THE DISCHARGE OF CLARENCE HAWKINS
Respondent is principally engaged in the fabrication of
bulk material handling equipment and structures for the
sand and gravel industry, and performs other assorted
services. Most of its employees-perhaps 10-15 during
the busy winter season-are welders.
In the fall of 1988, Respondent, which is not union-
ized, hired five welders who had been laid off recently
by American Builders Company, a large firm located
nearby. American Builders employees were represented
for collective-bargaining purposes by the Charging Party
(UE), a fact which was very likely known to area busi-
nessmen.3 The five welders were given MIG and stick
welding tests by Plant Foreman David Baker prior to
being employed. Two of the five, Clarence Hawkins and
Donald Meredith, were discharged some 7 months after
being hired, discharges which are here alleged to have
been violative of Section 8(a)(3).
During his appearance as a witness, Clarence Hawkins
engendered no special feeling of reliability, and a review
of the record confirms that impression. However, Haw-
kins had been, I believe, a strong supporter of the UE
while employed by American Builders, and he continued
to maintain his membership and to help UE organizer
Dennis Painter in his proselytizing activities at other
plants even after Hawkins came to work for Respondent.
At the hearing, presumably to strengthen the factor of
timing as it related to his April 244 discharge, Hawkins
testified that his efforts toward organizing Respondent's
own employees began in the "last part of March," when
he talked to "better than half' of the employees to "find
out how they felt about a union." This testimony is con-
tradicted, however, by the great weight of the evidence
(including that given by General Counsel's witnesses)
which, while far from consistent, clearly indicates that
Hawkins began discussing unionization with the other
employees soon after he commenced employment with
Respondent.5
' The charge in Case 9-CA-26458 was filed on May 22, 1989, and a
complaint based on,that charge was issued on June 23, 1989 The charge
in Case 9-CA-26582 was filed on June 23, 1989, and a complaint thereon
(and an order consolidating the two cases) issued on July 21, 1989.
2 Counsel for the General Counsel has filed an unopposed motion to
correct the record. The motion is granted.
3 Respondent's president Richard Turner testified that he knew Amen-
can Builders was unionized , but did not know the name of the union
° All dates hereafter refer to 1989, except as indicated.
s For example, his fellow alleged discnminatee, Donald Meredith, testi-
fied that discussions about the Union began about a month after his hire
in September. See also the testimony of General Counsel's witness David
Bauer (Tr. 160-161, 177-178).
Nonetheless, it does appear that Hawkins spoke fre-
quently and openly about the possibility of unionization
to groups of employees, usually in the breakroom and
frequently in the presence of one or more of the three
group leaders.6 Moreover, while it may be that Hawkins,
contrary to his testimony, wore a jacket with a union
emblem on it from the outset of his employment, rather
than first beginning to do so in March or April (see the
testimony of General Counsel witnesses Kleiner and
Turner), an issue as to which the evidence is in conflict,
I am inclined to believe that he raised his public level of
commitment to a new height in mid-March, when, as he,
Painter, and employee David Bauer credibly testified in
combination, Hawkins received from Painter and began
to wear daily on his hat a button reading "United Radio
and Machine Workers of America Organizing Commit-
tee."?
Hawkins testified that Foreman David Baker saw the
button and "made a remark about it, but I can't remem-
ber what he said," and Hawkins further asserted that he
could tell that Plant Manager Richard Stitt and President
Robert Turner had seen the button by the manner in
which they had "tried to gooseneck around, you know,
to get a look at it and stuff"; I am not inclined to rely on
the alleged forgotten remark by Bakers or the goose-
necking, but I think it most likely that Baker, Stitt, and
Turner were, in this small and intimate -setting, quite
aware of both Hawkins' "Organizing Committee" button
and of his efforts to incite interest in a union.9 Employee
Rector opined that Turner would have had to be "blind"
not to notice Hawkins's button.
I lay much stress in this case upon the confused and
contradictory nature of the testimony presented by Re-
spondent's witnesses at the hearing regarding the reason
for Hawkins' discharge. While it is true that frequently
witnesses for one side or another (or often both) in these
proceedings will stretch or exaggerate the facts in hopes
of supporting what they believe to be an ultimate truth,
there was here, I think, some blatant, old-fashioned, flat-
out lying by Respondent's witnesses as to the circum-
stances in which Hawkins was fired. When such vivid
untruths issue from representatives of an employer
6 These three employees were not alleged or shown to be "supervi-
sors" within the contemplation of Section 2(11) of the Act The record
discloses, however, that they maintained a close alliance with manage-
ment, meeting periodically with managerial officials to discuss production
and personnel matters.
7 General Counsel witness Todd Turner, an employee whose demeanor
made a very good impression on me, testified that while Hawkins "talked
about unions from October on," he "got stronger toward the end," at
which time he was discharged. I credit Turner's assessment of the situa-
tion. While I was also generally impressed that employee Bauer was
making an earnest effort to tell the truth, his opinion that Hawkins's
union talk was stronger before he got the button came from a witness
whose problem with recalling the timing of occurrences was obvious.
8 Hawkins' pretrial affidavit states that Baker "did not say anything to
me about the Union."
9 While other employees occasionally or often wore garb with union
symbols, and one had an emblazoned lunchbox, no other employee wore
a button proclaiming himself to be an "Organizing Committee " I am in-
chned to doubt on this point the memory of Bauer, who testified that he
was "pretty sure" that Hawkins wore a hat with a union emblem from
the beginning of his employment Bauer's recollection of timing was, as
noted, poor
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
charged with discrimination in a union organizing con-
text, it is almost a logical imperative that the employer is
attempting to conceal the true reason for the adverse
personnel action; and when no other reason but the orga-
nizational context presents itself, it is hard not to relate
that imperative to that context.
I refer here, for starters, to the testimony of President
Turner. Evidence that Respondent knew that a union
effort was afoot may be found in the testimony of several
witnesses that prounion (and, subsequently, antiunion)
scribblings appeared on the wall of the only men's rest-
room in the plant. Yet Turner, who used the restroom,
denied having ever seen the slogans, although Plant
Manager Stitt answered "Sure" to the question, "Was
there [in the restroom] any union-type graffiti?" 10
Respondent's explanation of the situation which
brought about the discharge of Hawkins on April 24
was, to say the least, discordant, and it became even
more clangorous as the case progressed.
President Turner testified that there had been a costly
"screw-up, to put it lightly" in a job done in the latter
part of 1988 (more fully discussed hereafter), so that
when, one night in late March or early April, he was ex-
amining a silo being made for a steady customer named
MECO, and found that some "atrocious" welding had
been done on it ("really crap"), Turner became quite
angry. The next day, he called together Stitt, Baker, and
the group leaders, told them that he was determined not
to repeat the expensive error committed in December
1988, and:
Whoever made those, welds is out of here. I don't
know who it is. I don't care if it's a group leader. I
don't care if it's down to a guy that's been here 50
years. Makes no difference to me. That guy is gone.
We're done.
He told Stitt to investigate the matter and "come back
to me with an answer. But that person's gone." When
Stitt told him 2 days later that the culprit was Hawkins,
Turner said, "You heard my decision two days ago . . .
That man is gone."
Stitt, testifying after Turner, gave some very erratic
testimony which in many ways did not seem to coincide
with Turner's. Without going into all the wrinkles, it
may be said that Stitt eventually agreed that Turner had
been angry about the quality of the work on the MECO
job and that he had been told to investigate, but then
Stitt's testimony diverged dramatically from that of
Turner's. While somewhat unsure of precisely all the
events, Stitt was certain that the group leaders "wouldn't
divulge names to me" and they asked to speak directly
to Turner. That was arranged, the meeting was held, and
"I think at that point, a name came up," the name being
Clarence Hawkins. Stitt did not recall exactly what oc-
curred thereafter, but his sequence of events would natu-
rally rule out any occasion on which he reported the
name to Turner (as Turner had testified) since (according
to Stitt) Turner had himself pried the name loose from
the group leaders. Thus, a striking distinction appears be-
tween the stories of Turner and Stitt.
The matter becomes even more confusing when the
testimony of Foreman Baker is considered. Baker gave
straightforward testimony that he knew who had done
the bad welding on the silo "[b]ecause I spent time on
that particular weld with Clarence Hawkins," and he re-
ported this fact to, he believed, Stitt. Thus, according to
Baker, no elaborate investigation or display of coyness
by the group leaders was initiated or appropriate: "I
looked at it and verified who put that particular weld on,
and told Rick [Stitt]."
The course of events becomes still further muddled
when Stitt's testimony as to what he told Hawkins at the
termination interview is considered. Turner, it will be re-
called, says that he instructed Stitt and the others in no
uncertain terms to ferret out and discharge the man who
laid the bad welds on the MECO silo. This would seem-
ingly have been a simple enough thought to convey at
the discharge interview, but Stitt had more in mind:
"And I was going to sit down and go over our reasons,
but the man had just lost his job; he wasn't exactly in the
greatest mood." He did, however, speak to Hawkins of
his "quality of workmanship," to which Hawkins replied,
"I do as good a [sic] work as anybody else." Stitt then
stated (he now testifies), "Clarence, it's your peers that
asked for this to be done, not us."
Stitt was not asked at the hearing what his reference
to the "peers" complaint involved. It is, obviously, a far
cry from Turner's single announced criterion for the dis-
charge of Hawkins: the fact that Hawkins had made the
bad welds on the MECO silo ("Mr. Hawkins was fired
because I said the man that did that work would be
gone. That was the reason").11
There is in evidence a document drawn from Haw-
kins's personnel file, dated April 24, in Stitt's handwrit-
ing, which purports to set out various facts concerning
Hawkins's termination. Reaching far beyond the poor
work on the MECO silo-and in fact not specifically
mentioning that job-the memorandum lists five reasons
for the discharge of Hawkins. They are:
1. Quality of workmanship, causing rework to
have to be performed.
2. Overall bad work ethic which was a factor
causing other employee's [sic] to change their atti-
tudes toward doing ambitious type work.
3. Group leader complaints about quality of work
in their groups.
4. Work stoppage on outside job causing us to
pull off job early on that day.
5. Lack of overall shop expertise:
10 Not only that, but Stitt personally "removed" the writings, and kept
doing so as they reappeared. After a break in the hearing, however, and
prior to Stitt's testimony, Turner testified that he had gone to the rest-
room to examine it, that the walls were of drywall composition, to which
marks would adhere unless the writings were done with chalk or a like
substance, and that "there's no marks in that drywall "
1 r Hawkins testified that Stitt told him that he was being discharged
"for lack of enthusiasm and lack of quality welds" The affidavit of em-
ployee Glen Rector, no friend of Hawkins, states that Hawkins told him
on April 24 that he had been discharged for "bad welds and lack of en-
thusiasm " This corroboration leads me to believe Hawkins' version
DUMBAULD CORP. 845
Lacked skill w/cutting torch which is basic to
our shop. The weak skills had not improved over
the (7) seven months of employment at Dumbauld.
At time of hiring DumbaulLd was led to believe that
this employee was not weak in this area.
The MECO job can be fitted into the unspecific cate-
gory of the first reason given; ii will be discussed hereaf-
ter. The other four reasons extend beyond the single ex-
planation given by Turner and indicate padding of the
most extreme kind.
Reason 2-the bad "work ethic" which caused other
employees to "change their attitudes toward doing ambi-
tious type work"-finds its closest record support in
Stitt's testimony that Hawkins "[s]tood around a lot,
talked a lot, drew a crowd." But Stitt conceded that he
personally did nothing to "break up the crowds," leaving
that to the foreman. Baker, however, did not testify to
any such behavior by Hawkins, and it sounds exceeding-
ly exaggerated.
The third "reason" appears to have nothing to do with
Hawkins himself, but is rather a generalized statement re-
garding complaints by group leaders about the quality of
work "in their groups." The fourth reason refers to an
occasion early in Hawkins' employment when, while out
of town on a job, he refused to work more than 10
hours; he received no discipline for his refusal. Finally,
the alleged lack of "overall shop expertise" and "skill
w/cutting torch" is, supported only by Baker's testimony
that Hawkins, "wasn't very good at all" with a cutting
torch (which unc(introverted testimony I credit), evi-
dently a minor part of the work. Baker also said that
Hawkins was "good at MIG welding," and not "very
good" at stick welding. 12 But since Turner testified that
the overwhelming majority of Respondent's work is
done by the MIG process, and since Hawkins testified
that he performed equal amounts of MIG and stick weld-
ing for Respondent, it would seem unlikely that Hawkins
was really a bad stick welder, since, if he was, he could
have been assigned mostly to MIG welding, at which, he
was concededly "good." Employee Meredith, for exam-
ple, testified that he stick-welded only "maybe five per-
cent of the time."
There is also in evidence a June 2 statement of posi-
tion signed by Turner and sent to the Region, assertedly
giving the "reasons" for Hawkins' termination. The rea-
sons set out in this letter depart from those listed in
Stitt's April 24 memorandum and in one way or another
contradict the testimony of Turner (who told us that
Hawkins was fired for one bad piece of work), Stitt
(who wrote on April 24 that Hawkins' refusal to work
beyond 10 hours in December 1988 played a part in the
termination decision), and Baker (who testified that
Hawkins was "good" at performing the most frequent
welding process in the shop).
The reasons for his termination are as follows:
(1) Mr. Hawkins claimed good welding and cut-
ting skills when he was hired; however, these skills
12 Like Respondent 's other witnesses, Baker generally appeared to be a
decent citizen, but biased in Respondent's favor
were not satisfactory for our shop requirements and
he did not improve these skills during his period of
employment.
(2) His quality of workmanship was very poor
and had not improved after repeated requests from
his group leader, the foreman, or the plant manager.
(3) It was in large part due to his ignoring repeat-
ed requests to better his skills that the employees in
the various groups as well as his group leaders and
shop foreman requested his termination . [Emphasis
added.]
It seems almost beyond belief that the same person who
testified at the hearing in September 1989 that Hawkins
was discharged because "I said the man that did that
work would be gone" could have written in June, inter
alia, that the discharge was "in large part" based upon
the fact that, because Hawkins had not improved his
skills, "the employees . . . as well as his group leaders
and shop foreman requested his termination."
A final item in Hawkins' personnel file added some
new twists and eliminated some old ones. This memoran-
dum, dated June 13 (after the Hawkins charge was filed),
was signed by both Turner and Stitt; it reads:
Clarence Hawkins was discharged for poor work
performance as demonstrated by his inabilities to
stick weld and use a cutting torch and his poor
layout and fitup work.
Several employees, including foreman David
Baker, periodically complained about the poor qual-
ity of his work and his occasional unwillingness to
work efficiently or productively, as demonstrated
by the time he spent standing around and talking in-
stead of working. Mr. Hawkins was either unwilling
or unable to learn his welding, cutting, and other
duties well enough to meet the Company's stand-
ards and our customers' standards.
We know nothing of Mr. Hawkins' interest in
forming or joining any union during the entire time
he worked for the Dumbauld Corporation. At no
time did we ever see Mr. Hawkins wearing any
union apparel or union button. No one ever told
either one of us that Mr. Hawkins wore such items
and no one ever told either of us of Mr. Hawkins'
interest in joining or forming a union.
Turner testified that this memo was suggested by Stitt
as "something that ought to be in" Hawkins' file, and
was to be used "for our reference." Given the fact that
Stitt had already, on April 24, written out and inserted in
the file one list of "reasons" for the discharge, it is hard
to conceive why he should think in June that another
would be advisable.' 3 In addition to the fact that the
later memo brings up such new matters as Hawkins'
"poor layout and fitup work," it seems astonishing that
the MECO silo appears to have been completely forgot-
ten by June. Unlike the April 24 memo, which at least
13 It is perhaps for this reason that, on voir dire, Respondent 's counsel
led Turner into agreeing , contrary to his prior testimony , that the memo-
randum was prepared for purposes of submission to the Region
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
referred to "causing rework to have to be performed,"
the "poor work performance" as defined in June broadly
and without differentiation referred to Hawkins' s "inabil-
ities to stick weld and use a cutting torch and his poor
layout and fitup work."
Moreover, the reference to employee complaints about
Hawkins' "standing around and talking instead of work-
ing" stands in glaring contrast to the testimony of Stitt
that the problem of "standing around" was "shop-wide"
and not confined to "any specific employees."
There is no question that there was some inferior work
done on the MECO silo. Jude Groeschen, called as a re-
buttal witness by General Counsel, testified that he spent
"not more than two, maybe three days, at the most" per-
forming rework on the silo. There were, Groeschen (a
credible witness) testified, "some welds that were ques-
tionable . . . and there was two parts in it that had to be
cut out and rebuilt, reworked"; the original work was
"definitely unsatisfactory." Foreman Baker did not, how-
ever, as Turner had, express outrage in his testimony
about the welding; he merely testified that it "wasn't that
good." Baker also did not seem to think that the work
warranted discharge; when asked if he participated in the
termination , Baker responded, "Well, I had to back the
plant manager [Stitt] up, you know, in his decision . . . I
agreed to it."
This last answer is particularly interesting in view of
its express statements that the "decision" was, made by
Stitt and "agreed to" by Baker. If, as Turner testified, he
had told Stitt and Baker that the employee responsible
for the poor welding, whoever he might be, was "gone,"
there would scarcely be any room for the exercise of
such discretion by Stitt and Baker.
Whether, in fact, Hawkins was responsible (and was
unquestionably so thought by Respondent) for the bad
welds is not clear. Hawkins was discharged without
being told about the silo problems or given the benefit of
defending himself.. Hawkins testified that he worked on
the MECO silo "a long time before that job got out of
there." Turner testified that he himself noticed the "atro-
cious" work only a day or two before the silo was to be
shipped. The answer given by group leader David Funk
to the question of why the flaws were not noticed by
him, the group leader in charge at the time the work was
being done, was that it required a special physical effort
to detect these errors because of their, obscure loca-
tion.14 One wonders, however, given that obstacle, how
it was that Turner "got to looking at that thing" one
evening and spotted the "atrocious" work. On the as-
sumption that President Turner did not go crawling
around on the 12-foot-high and 30-foot-long silo, how
did he notice the problems, which evidently had eluded
the group leader, whose job it was to monitor this work?
And the logical question that follows is why the group
leader was not himself disciplined for failing in that job?
Another, and telling, example of disparate treatment is
found, by comparing the discharge of Hawkins with the
earlier "screw-up" described by Turner. Around Decem-
ber 1988, Respondent had sent a completed job to
Fenton Rigging in Mishawaka, Indiana, some 6 hours
driving time away. The work was rejected by Fenton
because of bad welds. Respondent then dispatched an un-
stated number of "employees" to Mishawaka to redo the
work. The repair took "two to three" weeks and it cost
a "lot of money." Yet Turner conceded that no one was
discharged for this "screw-up," and there is no evidence
that any discipline was meted out.
That it was not uncommon for bad welding to be done
is made evident by the testimony of several witnesses.
While the evidence does not show that the poor quality
of the work on the MECO silo was frequent, the failure
to discipline anyone for the Fenton job, which actually
was sent to the purchaser in bad condition, suggests a
high tolerance on Turner's part for poor performance.
Indeed, he agreed at the hearing that he does not dis-
charge every employee "when they do bad work."15
Another peculiarity about the discharge of Hawkins
has to do with its timing. In Stitt's April 24 memo, it is
said that the termination "was to take place on [Friday]
04-14-89," but due to the death of Hawkins' mother on
April 12, which led to his being away from work until
(as he testified) Tuesday, April 18, the discharge was
"postponed until 04-21-89." On Friday, April 21, howev-
er, Hawkins suffered a flash burn and, after medical
treatment, took the rest of the day off. Thus, he was not
discharged until Monday, April 24.
The question that naturally arises is if, as Turner testi-
fied, he had given unequivocal instructions to find and
fire the welder who had performed the bad work on the
MECO silo, and if Hawkins' identity had been discov-
ered by April 14, why was he allowed to return to work
on Tuesday, April 18, after his mother's death, with the
contemplation that he would continue working until the
following Friday? Since he was actually let go on the
next Monday, there was obviously no administrative ne-
cessity to discharge only on Fridays. The least that can
be said is that Hawkins' work performance was not con-
sidered so intolerable that Respondent felt compelled to
rid itself of him before he caused even greater damage.
The record shows that Respondent- maintains a list of
"Employment & Safety Rules" which, except for three
categories calling for immediate discharge, provides for
discipline consisting of a reprimand for a first offense, a
3-day suspension for a second offense, and discharge for
a third. Under these rules, such seemingly serious behav-
ior as "ringing time clock for 'another employee,"
"unsafe conduct in the shop area," "making unnecessary
scrap either from carelessness or sabotage," and "abuse,
misuse or deliberate destruction of 'company property"
(emphases added) would all, for a first offense, receive
only a reprimand. And yet Hawkins, for what' could at
most be termed negligence, was not put on notice of im-
minent peril by issuance of a reprimand or a suspension,
but was discharged without benefit of even an opportuni-
is Apparently, unacceptable welding is still accepted Turner, having
testified that the MECO work was "crap," went on to say, "It still both-
i4 "Until you can get up on top of them and roll them around . it's ers me, to see some of that kind of work, when I know they can do
almost impossible Now, after you once get up there and go to checking better." The record does not reflect any further discharge or discipline
it can be found that way " for poor welding after the termination of Meredith
DUMBAULD CORP. 847
ty to defend himself. While Turner testified that Re-
spondent does not impose discipline for bad work, as op-
posed to misconduct, it would seem only rational to, at
the very least, warn an employee whose performance
had declined that he stood at risk of losing his job if he
failed to improve.
The record also shows that it was unusual for Re-
spondent to discharge employees. According to a stipula-
tion, of the five instances of termination elicited by the
General Counsel's subpoena covering the period January
1, 1987-June 30, 1989, four took place in early 1987:
two employees were let go at the end of their probation-
ary periods for lack of skill, absenteeism, etc.; one for
"never return[ing] to work" after 3 straight days of ab-
sence without calling in ; and one (after 9 days employ-
ment) because he "would not follow orders to perform
jobs." The last, in early 1988, after having stated that he
was "tired of doing everyone's job" and having been
told to "start working or get out," "chose to leave"
(which was apparently a quit, not a discharge). No other
employees were discharged during that 2-1/2-year period
except Hawkins and the other alleged discriminatee,
Meredith, both of which terminations occurred during an
11-day span.
Perhaps the most potentially valuable evidence intro-
duced by Respondent is a document captioned "Meeting
With Group Leaders And R'WT," bearing a date of
April 26, 1989. Turner testified that this was a typescript
of notes he had taken (and had thereafter elaborated) at a
meeting with group leaders which they had requested;
the meeting was field, he believed, on the date shown. i 6
The meeting notes purport to show the matters dis-
cussed, such as how to handle personnel problems, the
group leaders' complaint that "[p]eople cannot weld,"
materials needed, etc. Of particular interest here is item
3:
(3) I asked the group leaders to give me an eval-
uation (by name) of the people they have trouble
with.
(A) A large part of the problem has been solved
since Clarence Hawkins is no longer with us.
(B) Don M-could be a good man; moody and
talks too much. Does not take directions from
group leaders unless he wants to. Group leaders
asked that foreman or plant manager have a talk
with him. If his attitude and work habits don't
change-let him go.
(C) Dave Bauer, Ken Kleiner, Bill Brest All
three are good people to work with and take direc-
tions well. They are learning and will make good
fabricators.
(D) Todd, Turner-Could be a good man, he
can't stick weld and does not seem to be interested
in learning. If he does not start improving-let him
go.
16 Turner's testimony as to how often he met with group leaders was
inconsistent At Tr. 302, he stated that during the winter of 1988 and
early spring of 1989, he was meeting with the group leaders "maybe a
month , six weeks apart " At Tr . 306, however, he testified that the group
leaders had specifically requested the April meeting with him because,
before that, Stitt and Baker were "having the meetings" with the leaders
I find this to be a suspicious entry. Why, first of all,
would Turner have written "(by-name)" into his para-
phrase of the request made by him for an evaluation "of
the people they have trouble with?" How else is such a
question answered except "by name"? Secondly, having
asked for such evaluations "of the people they have trou-
ble with," why was reference made to Clarence Hawkins
who, by April 26, was "no longer with us"? When asked
at the hearing what was meant by "the problem" which
was solved by Hawkins' termination, Turner gave a non-
answer.
The only group leader asked to testify about this meet-
ing was Tim Timberman. His testimony, however, makes
it sound as if the meeting was held Prior, not subsequent
to, Hawkins' discharge. When asked "what was said"
about Hawkins at the meeting, Timberman seemed to in-
dicate that Hawkins had not yet been discharged at the
time of the meeting:
THE WITNESS: He just wasn't doing the work
. . I mean-to me, I don't know, he's had his
fair shot.
JUDGE RIES: Is that what was said at that meet-
ing with Mr. Turner?
THE WITNESS: We described what was going on. I
mean, you, know, the welds and-basically, every-
thing we talked about that day.
Turner, on the other hand, testified that the "only dis-
cussion we had about Hawkins was basically that that
was-he had been a problem and it's over with, so he's
gone, don't concern ourselves; let's go on with what
other problems we have." Thus, while Timberman por-
trayed an apparently detailed discussion about an em-
ployee who was impliedly still employed, Turner said
that the reference to Hawkins was conclusionary and ret-
rospective.
Why, one might further ask, if Turner requested an
evaluation of "the people they have trouble with," did
the group leaders bring up Dave Bauer, Ken Kleiner,
and Bill Brest, all of whom were certainly described in
laudatory terms? I found unconvincing Turner's explana-
tion that because the three were characterized as "learn-
ing," they were somehow in the category of "the people
they have trouble with." In context, the discussion of
these three simply does not fit.
For the foregoing reasons, I am sufficiently mistrustful
of item 3 of the memorandum as to question its genuine-
ness . There may have been such a meeting on or about
April 26-the remainder of the document seems real-
but I am inclined to believe that the exhibit has been
typed or retyped in an attempt make it appear that the
discharges of Hawkins and Meredith were made in the
ordinary course of business. Even if I am wrong on this
score, however, it may be said that, on this record, the
principal way in which Hawkins had been "a problem"
was not his welding, but his sustained talking in favor of
the Union. And as for Meredith, as we shall see, no
"foreman or plant manager" ever had a talk with him
and gave him an opportunity to change his "attitude and
work habits" before he was "let . . . go."
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In my view, the foregoing analysis establishes that the
discharge of Clarence Hawkins on April 24 was actuated
by a desire to squelch an incipient union effort. Hawkins,
a welder with 5 years of experience at American Build-
ers, passed the MIG and stick welding test given by Re-
spondent in 1988 and seems to have been accepted as a
satisfactory employee until he identified himself as an
"Organizing Committee" in March 1989. In view of the
credible testimony of Todd Turner, a current employee
of Respondent, that, although Hawkins spoke to other
employees about the Union from the beginning of his
tenure, he "got stronger towards the end," I find it most
unlikely that Respondent's managers did not get wind of
this effort, given the small size of the operation, Haw-
kins' predilection for speaking out in the breakroom in
the presence of group leaders, and the prounion writings
on the restroom walls. See BMD Sportswear Corp., 283
NLRB 142, 143 (1987). The differing versions by Re-
spondent's witnesses of how Hawkins came to be fired,
the suspiciously contradictory explanations, both testimo-
nial and written, of the reasons for his discharge, the
grossly disparate treatment accorded him compared to
the employees responsible for the much more costly and
embarrassing December 1988 mishap, and all the other
reasons discussed above, lead me to conclude that Haw-
kins' union activity was a "motivating factor" in his dis-
charge. NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). I further conclude that the bad welding
attributed to Hawkins was merely a pretext for removing
him from the employment rolls; with that conclusion, no
further analysis is required. Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
But, in any event, Respondent has failed to establish that
it would have discharged Hawkins even in the absence
of his well-publicized support of the Union.
II. THE DISCHARGE OF DONALD MEREDITH
Meredith was hired by Respondent, after having
worked 3 years for American Builders, in September
1988. He was discharged on May 517 for, I find , a reason
which is proscribed by Section 8(a)(3) of the Act.
Meredith's union activity was not extensive. He testi-
fied that he only said "a couple of times" after Hawkins
was fired that "I think we ought to have a union in
here." 1 s The most important occasion upon which he
made this remark was May 4, while standing at his weld-
ing station speaking to fellow employee Kenneth Kleiner
(a former colleague of Meredith's at American Builders)
and group leader David Funk, who has worked for Re-
spondent for 35 years. Apparently because of turmoil fol-
lowing Hawkins' discharge, Meredith told Funk that
"what this place needs is a good union. I think we ought
11 The complaint alleges "on or about May 6," but Meredith was quite
sure that the discharge occurred on a Friday, which, as I noted at the
hearing, would have been May 5
18 At various points in his testimony , Meredith seemed to expand upon
the expression and the level of intensity of his interest in unionism, but
the evidence as a whole leads me to believe that his ardor was a some-
time thing General Counsel's witness Bauer testified that Meredith's in-
terest seemed "borderline " Nonetheless, group leader Timberman and
employee Rector both recalled Meredith discussing the Union (according
to Timberman , both in the breakroom and on the shop floor).
to organize ." Both Meredith and Kleiner testified that
Funk replied that Turner would not let that happen and
would "close the place down" first.19
Not long thereafter, according to Meredith, he saw
Turner and Funk talking and "pointing in my general di-
rection." Shortly after that, Meredith saw Funk speaking
to Baker and "they were doing the same thing , pointing
in my general area." I believe that such conversations
were held; Kleiner testified credibly that he saw Turner
and Funk "talking and looking in our direction," and he
"thought" that Funk "pointed over in our direction."
It seems likely that Funk reported Meredith's com-
ment to Turner and Baker. Funk, it may reasonably be
inferred, was opposed to unionization, despite his testi-
monial assertion to the contrary. Kleiner told of an occa-
sion in the breakroom when someone had asked Hawkins
about holding a union meeting and Funk had interjected
that he "would get his own meeting"; according to
Kleiner, Funk made this remark "kind of like sarcastic"
and left Kleiner believing that Funk "probably wasn't in
favor of the union." The same impression is left by
Funk's virtual admission at the hearing that he had pre-
dicted plant closure by Turner if the Union won recogni-
tion.
The following afternoon, Baker called Meredith to the
breakroom and said that he hated to have to do it, but
"I've got to let you go." Meredith inquired as to the
reason, saying "Is it for talking union?"20 In response,
Baker exhibited to Meredith a document which, upon
scrutiny, is indeed a peculiar piece of work.
The two-page document, according to Baker, is a sum-
mary of entries made by him from separate sheets of
paper inserted at various times in Meredith's personnel
file; the summarization was purportedly prepared for
convenience of use in explaining to Meredith why he
was being discharged.21
The summary is an odd melange of entries to select for
inclusion in a document intended to explain a discharge.
While some of the entries relate to Meredith's conduct,
such as having been warned on January 23 about not
keeping busy and his initial refusal in February to obey
an order to turn off a radio,22 others appear to have
is Funk answered "no" to the question whether he had ever discussed
"anything about unions" with Meredith, but he did concede on cross-ex-
amination that he "might have made a statement" to employees in the
breakroom that Turner would close the plant if the Union came in Em-
ployee Glen Rector also heard Funk make such a statement in the break-
room Although Funk was a seemingly honest witness , I also thought I
recognized in him a bias favoring his longtime employer , and I am in-
clined to credit Meredith and Klemer (a very impressive witness and a
current employee) over Funk
20 Baker did not specifically deny Meredith's testimony in this regard,
and I credit Meredith That Meredith would have leaped to this conclu-
sion further supports his and Klemer's testimony about the events of the
previous day
21 Baker testified that he thought he had the underlying sheets of paper
in his office When counsel for General Counsel asked to see them, an
arrangement was made for posthearing delivery of any such notes to
General Counsel and a posthearing proffer by either party which might
wish to offer them into evidence No such proffer has been made
22 There are four entries of this sort altogether, all of which Meredith
in one way or another attempted to explain away or minimize at the
hearing
DUMBAULD CORP.
nothing to do with misconduct by Meredith ("NO
DATE-Whole shop was warned about too much talking
and not enough work"; "3/22/89 Cut on chin by a piece
of scrap material went to hosp. for stitches"). Three of
the entries, all undated, read mysteriously "Rule #13
Broken," "Rule #15 Broken," and "Rule #16 Broken."
The notation with which Baker began his May 5 dis-
cussion of the reasons for the discharge was, according
to Meredith's credited testimony, a reference to some
"bad welding" by Meredith discovered by Baker on
April 28.23 According to Baker, Meredith had done 10
very bad welds on a conveyor job for Wysong Gravel,
which was assertedly consistent with a decline in his
work and attitude over the past few months.
Meredith testified that he had made some mistakes on
the Wysong job, as Baker stated, and he says he told
Baker that he had been rushed that day and "anybody
can make a mistake." Just how bad a job Meredith had
done is impossible for me to determine, except for the
fact that Baker ended the written entry with "Will talk
to him on May 1, 1989." When asked at the hearing
whether he did so, Baker said that he had spoken to
Meredith (but, Meredith testified, it was more likely on
May 2) and that he had told Meredith that the Wysong
welds were not "passable" and he would have to redo
them (which, Meredith testified, took about 30 min-
utes).24 '
Baker was thus content to do nothing by way of disci-
pline of Meredith as a result of the Wysong Gravel
welds. This obviously raises the question of why, if Mer-
edith was not within firing range on May 2, he was ter-
minated on May 5. I did not find Baker's answer to this
question very persuasive:
Oh, it's just a number of things. He just-he
didn't want to work no more. He give me that im-
pression, that he didn't want to work at all. He
just-every chance he would get, he would stop
work, or he would go talk with other guys and
wouldn't be doing his job. And it just come to the
point where I'd made up my mind to let him go, be-
cause he wasn't doing the company any good at all.
There was, it will be noted , not a single specific in-
stance given in the foregoing explanation. Baker conced-
ed that he made no separate entries memorializing any
such conduct after April 28, despite the fact that he had
detailed in his summary an incident, dated April 20,
which fits into the same general category as described in
the above quotation ("Observed him talking to others
and disrupting the concentration of their work Jude &
David B.").25
23 Baker testified that he simply handed the list to Meredith and let
him read it, but I find Meredith's detailed description of their conversa-
tion to be a more convincing version of what occurred.
24 General Counsel witness Todd Turner testified on cross that shortly
before Meredith left, he had missed some welds and laid some bad ones,
and employee Turner fixed them Apparently, since this was also on a
truss conveyer, Meredith only repaired a portion of the "15 to 20" bad
welds which Turner attributed to him.
25 Meredith did not specifically recall any such incident ; neither did
employees Jude Groeschen or David Bauer I find it quite troublesome
that Baker purportedly witnessed such an incident, assertedly made a
849
The inability to identify any instance in which Mere-
dith misbehaved after the bad welds of April 28 and
being spoken to by Baker on or about May 2 leads me to
believe that Meredith did only one thing of any conse-
quence after May 2.26 That was his prounion remark to
company loyalist and group leader David Funk on May
4, immediately preceding Meredith's discharge on May
5, a remark which I infer was passed on by Funk to
Turner and Stitt soon after it was uttered. I believe it
highly probable that one or both of the foregoing manag-
ers played a role in the decision to fire Meredith; while
Baker testified that discharging Baker was his "exclusive
decision," he also said that he "normally" consulted with
Turner or Stitt before taking the "fairly serious and rare"
step of terminating an employee. Baker did not explain
what there was about this situation which would have
led him to deviate from the past practice.
It is my best judgment, given the foregoing findings
and the contemporaneous unlawful discharge of Haw-
kins, that the termination of Meredith was also the direct
result of his expression of a prounion sentiment.27
This is not necessarily to say that Meredith was a
model employee. He apparently was a stubborn and ab-
rasive personality. But he had managed to hold his job at
American Builders for 3 years before he was laid off
there, and he had exhibited these same annoying charac-
teristics on an "ongoing" basis during his employment
with Respondent, starting, according to Respondent's
witness group leader Tom Houser, since "maybe a
month" after he began work in September 1988. This at-
titude "did not get better or worse "and" stayed about
the same . . . the whole time," but it was not until May
5, 1989, the day after he told group leader Funk that a
union was needed, that he was discharged. T11 The entire
concatenation of factors and circumstances outlined
above, taken together with the very recent discharge of
Hawkins, convinces me that General Counsel has estab-
lished that "a motivating factor"-indeed, the only moti-
vating factor-in the discharge of Meredith was his ill-
timed prounion remark. On such a finding, I conclude
that the discharge violated Section 8(a)(3) and (1).
NLRB v. Transportation Management Co., supra; Lime-
stone Apparel Co., supra.
note of it, and yet said nothing directly to Meredith about it. This omis-
sion is even more troubling in view of the fact that employee Bauer testi-
fied that Baker has previously told him to stop talking on other occa-
sions.
26 Indeed, at one point, Baker contradicted the explanation earlier
quoted by saying, "It was the very last one [the April 28 welds] that
really got him discharged "
27 While not technically what might traditionally be considered proba-
tive evidence, the testimony by Glen Rector that he heard "from the day
[Meredith] got fired" that the discharge was predicated on Meredith
having said "This place needs a union" lends some support to this find-
ing Rector seemed a reluctant witness for General Counsel , perhaps
trapped by his pretrial statement, and the fact that he conceded having
heard such unattnbuted "hearsay" lends , in my view, a certain credence
to the notion
28 Compare Houser's description of a constancy in Meredith 's attitude
and performance with Baker's statement that in "the last two or three
months of his employment, [Meredith] got real bad ," referring to his
"welds," "his overall attitude," and the claims that "he didn't want to
work, he stood around a lot, he talked with everybody, just overall bad "
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent, Dumbauld Corporation, is an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Electrical, Radio and Machine Workers of
America (UE) is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Clarence E. Hawkins on April 24,
1989, and Donald R. Meredith on May 5, 1989, Respond-
ent has discriminated against the aforementioned employ-
ees in violation of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It is appropriate that Respondent be required to rein-
state the two aforementioned employees, if Respondent
has not already done so, to the positions from which
they were discharged, with all seniority, rights, and
privileges, and to make them whole for any loss of earn-
ings which they may have suffered, with backpay to be
computed, with interest, in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), Isis Plumbing Co., 138
NLRB 716 (1962), and New Horizons for the Retarded,
283 NLRB 1173 (1987).
Provision will also be made for the posting of an ap-
propriate notice to employees.
On these findings of fact and conclusions of law and
on the entire record in this case, I issue the following
recommended29
ORDER
The Respondent, Dumbauld Corporation, Xenia, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in United Electrical,
Radio and Machine Workers of America (UE), or any
other labor organization, by discriminating against any of
29 If no exceptions are filed as provided by Sec 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102 48 of
the Rules and Regulations, be adopted by the Board and become its find-
ings, conclusions, and Order, and all objections shall be deemed waived
for all purposes
its employees in regard to tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining,
or coercing employees in their right to self-organization,
to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for
the purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Clarence E. Hawkins and Donald R. Mere-
dith immediate and full reinstatement, if Respondent has
not already done so, to their former positions or if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination
against them in the manner set forth in the remedy sec-
tion of this decision entitled
(b) Expunge from the personnel files of Hawkins and
Meredith and other files any reference to their dis-
charges on, respectively, April 24 and May 5, 1989, and
notify these employees in writing that such discharges
will not be considered in any future personnel actions in-
volving them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its places of business in Xenia, Ohio, copies
of the attached notice marked "Appendix."30 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply.
30 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 Nation-
al 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."