Fansteel VR/Wesson

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 428 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428
Fansteel VR/Wesson and Teamsters Local Union
#651, affiliated with the International Brother-
hood of Teamsters, AFL–CIO. Case 9–CA–
36083
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On December 1, 1999, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fansteel VR/Wesson, Lex-
ington, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

James E. Horner, Esq., for the General Counsel.
Eric Hemmendinger, Esq., of Baltimore, Maryland, for the
Respondent.
Carl E. Simpson, of Lexington, Kentucky, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Lexington, Kentucky, on January
5, 6, and 7, 1999, pursuant to a charge filed against Respondent
Fansteel VR/Wesson by Teamsters Local Union No. 651, af-
filiated with the International Brotherhood of Teamsters, AFL–
CIO (the Union) on July 1, 1998, and a complaint issued on
August 19, 1998, and amended on January 5, 1999. On January
26, 1999, after the close of the hearing, counsel for the General
Counsel filed a motion, opposed by Respondent, to amend the
complaint; this motion is denied for the reasons set forth below
in section II,B,3,a.1 The complaint in its final form alleges that
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) by telling an employee that he was being
harassed and kept busy because of his union activities, by
threatening employees with plant closure if the Union became
the employees’ collective-bargaining representative, and (dur-
ing meetings with employees in the lunchroom) by soliciting
employee complaints and grievances and implying that Re-
spondent would remedy them. The complaint further alleges
that Respondent violated Section 8(a)(1) and (3) of the Act by
discharging employee Gary Vinegar because of his union ac-
tivities.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by soliciting grievances and impliedly promising employees
benefits during lunchroom meetings, we note that no exceptions were
filed to the judge’s findings that these allegations were closely related
to timely filed unfair labor practice charges.
On the basis of the entire record, including the demeanor of
the witnesses, and after due consideration of the briefs and
subsequent memoranda filed by counsel for the General Coun-
sel (the General Counsel) and Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND THE UNION’S STATUS
Respondent is a corporation which is engaged in the manu-
facture of tungsten carbide products at its Lexington, Kentucky,
facility. During the 12 months preceding the issuance of the
complaint, Respondent sold and shipped from its Lexington,
Kentucky facility goods valued in excess of $50,000 directly to
points outside Kentucky. I find that, as Respondent admits, it is
engaged in commerce within the meaning of the Act, and that
assertion of jurisdiction over its operations will effectuate the
policies of the Act.
The Union is a labor organization within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the summer of 1995, the Union engaged in an effort to or-
ganize Respondent’s plant. During this campaign, employee
Gary Vinegar distributed union literature and spoke to other
employees on behalf of the Union. He also acted as union ob-
server in an October 1995 representation election, which the
Union lost.
In October 1997, Vinegar and employee Mary Sturgill (who
had engaged in union activities in the summer of 1995) went to
the union hall and discussed with the Union’s chief organizer,
Carl Simpson, a renewed effort to organize Respondent’s plant.
About 2 weeks later, Simpson mailed to Vinegar a number of
blank union authorization cards, which were distributed among
the employees by employees Vinegar, Sturgill, Rose Rhodus,
and Dennis Howard. Operations Manager Larry Fraher (admit-
tedly a supervisor) admittedly learned from Plant Superinten-
dent Stephen Meuler (admittedly a supervisor) that the employ-
ees were discussing unionization. On an undisclosed date in the
spring of 1998, upon seeing Vinegar and Sturgill eating lunch
together, Meuler remarked that he did not like them, because
they had tried to get the Union in before, and that he could not
1 The complaint in its final form does not allege that Respondent en-
gaged in unlawful interrogation. Accordingly, such allegations in the
General Counsel’s posthearing brief (p. 27) will be disregarded.
332 NLRB No. 38
FANSTEEL VR/WESSON 429
believe they had “brought the Union back out here.” Fraher
testified that Respondent was opposed to the organizing cam-
paign. On February 23, 1998, the Union, through Simpson,
filed with the Board’s Regional Office a representation petition
seeking certification as the representative of Respondent’s pro-
duction and maintenance employees.
B. Alleged Independent Violations of Section 8(a)(1)
1. Alleged threats of shutdown
When Vinegar started to distribute union cards in the fall of
1997, he began to wear a union jacket to and from work and
while he was in the plant. Also, beginning in late February, he
regularly wore to work a union button which said, “Promises,
Promises, Promises Let’s Get It In Writing/Vote Teamsters.” In
late February or early March 1998, while he was in the bath-
room, Foreman Allan Bartlett (admittedly a supervisor) entered
the bathroom and told Vinegar, “Well, you’re a sorry ass.”
Vinegar replied, “[Y]ou’re one to talk . . . it looks like you’ve
been sitting in your office all morning and I’ve been working.”
Bartlett said, “I don’t know about all this union stuff, I believe
if the Union gets in here they’ll close the plant down”. Vinegar
replied, “[A] man’s got to do what a man’s got to do.”2
About March 31, 1998, when employees Charles Hisle and
Ernest Winburn were discussing the Union while awaiting the
beginning of their shift, Supervisor Bartlett approached. After
listening to them for a minute, Bartlett said that during a fore-
men’s meeting, Group General Manager Robert Hughey had
said that he “won’t tolerate a union . . . if you all vote it in, they
would close the place up.”3
2. Alleged statement to employee that he was being harassed
and kept busy because of his union activity
As previously noted, employee Howard was one of the em-
ployees who were involved in union activities in the fall of
1997 and the spring of 1998. He signed a union card on Octo-
ber 21, 1997, tried to induce other employees to sign cards; and
wore a union button which he had received from Vinegar.
Howard is a maintenance employee whose duties required
him to work at various locations in the plant. He credibly testi-
fied that during the union campaign, while he was working he
did not initiate conversations about the Union, but did give a
favorable opinion about the Union if other employees brought
up the subject and asked him about it.
On a day in late February or early March (see fn. 4, below),
Meuler received a call from Eva Hall, an inspection employee
who worked in the basement, asking what Howard was sup-
posed to be doing in the inspection area. Meuler replied that he
had no idea. Hall said that Howard was interrupting people
from getting their work out by trying to get union cards signed.

2 My findings in this paragraph are based on Vinegar’s testimony.
Although admitting having called Vinegar a “sorry ass” in the bath-
room in about January 1998, Bartlett denied having ever “discussed”
with employees the prospect of the plant’s being permanently closed.
To the extent that this may constitute a denial, for demeanor reasons I
credit Vinegar.
3 This finding is based on the testimony of Winburn, who at the time
of the hearing was still in Respondent’s employ. For demeanor reasons,
I do not credit Bartlett’s denial. Hughey and Hisle did not testify.
Meuler thereupon telephoned Bartlett and asked what he had
Howard assigned to do. Bartlett replied that he did not know
what Howard was doing at that moment. Meuler said that he
had received a call from “inspection” that Howard was “down
there bothering people, talking about the Union.” Meuler told
Bartlett to make sure that Howard was kept busy. Inferentially
after this conversation, Bartlett began “riding [Howard] pretty
hard,” and getting “on [his] back,” while Howard was perform-
ing on a machine work which was dangerous and required his
full concentration. Also, while Howard was still working on the
machine, Bartlett told him to perform two or three other jobs.
Eventually, Howard told Bartlett that he was going to have to
“get off [Howard’s] back,” he could not keep his mind on his
work. Bartlett said that Meuler had told Bartlett to “ride the hell
out of” Howard, that all he was trying to do was solicit union
votes. Howard said that this was “a damn lie . . . The manage-
ment will get all the votes we need.” Howard asked Bartlett
who had told “him” (inferentially, referring to Meuler) that
Howard had been soliciting union votes, but Bartlett refused to
tell him. Bartlett said that there were “some piddling jobs back
here in maintenance . . . just go on back there and do them and
just stay out of trouble the rest of the day.” Two or 3 days later,
Bartlett told Howard that Bartlett wanted to “rephrase”
Meuler’s message, that Meuler had told Bartlett “to just keep
[Howard] busy.”4
Thereafter, during an employee meeting convened by man-
agement about March 28 (see infra sec. II,B,3,a), Howard asked
Meuler about Bartlett’s remarks. Meuler replied that this was
none of Howard’s business. Howard said that it was his busi-
ness, because it concerned his job. Meuler merely repeated that
this was none of Howard’s business.
3. Alleged solicitation of employee complaints and grievances
and implied promises of remedial action
a. Background; the conference room meetings
Between about March 9 and about April 2, 1998, Fraher
conducted a series of 20 employee meetings in the conference
room during working hours. The employees were divided into 5
groups, consisting of 8 to 11 employees each, and each group
was required to attend one 45-minute meeting per week over a
4-week period. From the appearance of the posted schedule for
these meetings, and from Vinegar’s credible testimony as to
4 My findings as to this incident are based on a composite of credible
parts of the testimony of Meuler, Bartlett, and Howard. My finding as
to the date is based on Howard’s testimony. Bartlett and Meuler dated
these events as late December 1997, more than 6 months before the
charge was filed. However, when asked whether he had heard before
the February 1998 filing of the representation petition about Vinegar’s
and other employees’ campaigning for the Union, Meuler replied, “Not
really anything specific, no.” Further, when asked whether he had heard
before the filing of the petition that a union organization campaign was
about to begin, he replied, “Not really.” Moreover, although Meuler
testified that Bartlett’s report to Meuler (allegedly in Dec. 1997) about
Howard’s union activity caused Meuler to report to Fraher that union
cards were being circulated in the plant, Fraher testified that until about
March 9, 1998, he did not know the names of any employees who
favored the Union. For these and demeanor reasons, except as reflected
in the text I do not credit Bartlett’s testimony as to the contents of his
conversation with Howard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
who else attended the four meetings attended by him, I infer
that the employee personnel in each group remained about the
same throughout the meetings.
As of the close of the hearing on January 7, 1999, the com-
plaint included no allegations that Respondent made any
unlawful statements during these conference-room meetings.
Over date of January 26, 1999, the General Counsel moved to
amend the complaint to add, as paragraph 5(d), an 8(a)(1) alle-
gation which reads as follows:

During March 1998, Respondent, by Larry Fraher, in a series
of weekly meetings with small groups of employees in the
conference room . . . solicited employee complaints and
grievances and implied that Respondent would resolve those
complaints and grievances.

Respondent opposed this motion on the ground, inter alia, that
“if [Respondent] had been placed on notice of the issue, it
would have offered testimony that Fraher was aware of the
rules against making promises of benefit before an election,
that he used the employees’ complaints as a springboard to
argue why the issue was not a good reason to vote for the un-
ion, and that he did not promise, implicitly or explicitly to rem-
edy grievances.” In view of this representation by Respondent’s
counsel, the motion for leave to amend is hereby denied, on the
ground that as to the conference-room meetings the issue was
not fully litigated. Great Scott Supermarkets, 206 NLRB 447
(1973). However, because events at these conference-room
meetings are material to issues raised by the complaint as of the
first day of the hearing, such events will be described here on
the basis of the evidence which was in the record as of the close
of the hearing.
Fraher testified that the purpose of these meetings was to
give the employees Respondent’s position on the union orga-
nizing campaign. Normally, at the beginning of each of these
meetings, Fraher would show a 10- or 15-minute videotape and
then would allow a set period of time, probably for at least half
of the meeting, where employees could voice their opinions or
concerns that they might have. According to Fraher, “I encour-
aged people to speak freely.”
The first of these meetings, on about March 9, was attended
by about 11 employees, including Vinegar, Howard, Tommy
Rhineheimer, Ray Doolin, and John Van Dyke. Management
was represented by Fraher, and Company Attorney Mike Moc-
niak, whose office is in North Chicago, Illinois. Fraher said that
he had come into Respondent’s Lexington, Kentucky plant after
the 1995 election, and that he was “appalled” that the employ-
ees at Respondent’s plant would want a union to represent
them. He showed a videotape, asked the problems that people
had, and then opened the meeting up for discussion. The first
employee to speak was maintenance employee Rhineheimer.
He said that no matter what he did, Foreman Bartlett (Rhine-
heimer’s immediate supervisor) would always be on him about
it at the end of the day. Rhineheimer said that he did not care if
Bartlett dropped dead under his feet.5 Fraher looked at Rhine-

5 This finding is based on Howard and Vinegar’s testimony, partly
corroborated by Ray Doolin. For demeanor reasons, I do not credit
Fraher’s denial.
heimer and said, “[W]ell, we won’t have none of that in here”
and that it was not very nice to say that. Rhineheimer said that
Bartlett was not a very nice person. Employee Howard said that
Bartlett rode the employees all the time, that the employees had
nobody to go to, and that Meuler told Bartlett to ride Howard
because he was downstairs trying to recruit union votes (see
sec. II,B,2, above). Fraher said that they could talk about that at
a later time. Howard asked about raises for office people and
the rest of “us” in the shop that had not had raises in about 8
years; Fraher said that this “wasn’t none of [Howard’s] damn
business.” Fraher said that he had heard that the biggest prob-
lem which had led the employees to seek union representation
was Respondent’s attendance policy. Vinegar said that this was
not an issue, and that the issue was that Bartlett and Meuler
were “allowed to approach people and talk to them any way
they wanted to and certain individuals [in the] plant did not get
talked to in that manner.” Vinegar said that Bartlett would
never use customary pleasantries in approaching employees,
but “would just come up to you and [say], I want you to do this
or I want you to do that.”
Some of the employees believed that as to personnel matters,
Respondent’s management was favoring certain employees
with whom Plant Manager Meuler socialized outside of work-
ing hours. Employee Van Dyke complained that he had been
transferred in order to give his old job to an employee favored
by management. Vinegar too, complained about favoritism in
job assignments and job rotation and about Respondent’s fail-
ure to post vacancies. Vinegar also brought up certain safety
matters, including the presence of tungsten carbide powder
particles in the air and a claim that some machines were unsafe
because they had cardboard where there should be shields.
Fraher said that he agreed that Respondent needed a better sys-
tem of monitoring the particles that got into the atmosphere
when a press was cleaned. However, he said, putting guards on
the machines would make no sense, because the employees just
took off the guards. Employee Ray Doolin told Attorney Moc-
niak that the employees had previously told him about the prob-
lems with favoritism, “it’s not as if you don’t know about it.”
Mocniak replied that he and management had heard about these
problems before, but had ignored them in the belief that they
were “no big deal.”
The second such meeting was attended by about 10 employ-
ees, including Sturgill. She complained about perceived favorit-
ism in requiring employees to rotate between jobs, disregard of
seniority in job placement, and failure to post vacancies. Stur-
gill credibly testified that Fraher responded to her favoritism
complaint by saying that he had not been there long enough, “I
don’t know; I will have to check into that, that kind of an-
swers.”
The fourth conference-room meeting was attended by about
10 employees, including Rhodus. During this meeting, Rhodus
said that favoritism “was one of the issues of why we needed a
union, so things would be fair.” She said that job assignments
were given on the basis of the employees’ personal friendship
with management. Fraher said that management gave jobs to
the employees whom management believed to be more quali-
fied. Rhodus said that she had been replaced on her laboratory
job, which she had held for a year and a half, by an employee
FANSTEEL VR/WESSON 431
whom she testimonially identified as David Johnson, who had
been hired as a temporary employee and whom Rhodus had
trained to perform her job. Fraher said that he was not going to
discuss that at this time.
The sixth meeting, on about March 20 or 21, was attended by
about the same employees as the first meeting. Some of the
employees complained about perceived favoritism. Employee
Howard complained that employee Rhodus’s laboratory job had
been transferred to another employee after she had trained him
for it, to which Fraher replied that the latter employee “had
schooling background and other knowledge in that area in
which he could run the lab operations.”6 Vinegar again com-
plained that the use of cardboard instead of metal safety shields
on a particular machine presented a safety hazard. This time,
Fraher said that he would look into the problem right away; the
following week, guards were put on six machines. Some of the
employees complained that jobs were assigned without being
posted; Fraher said that he was going to look into it and see
why these jobs had not been posted.
Because of the number of employee complaints during the
first 10 meetings, about Meuler’s perceived favoritism with
respect to employees with whom he socialized outside of work,
Meuler attended the third batch of meetings (the 11th through
the 15th). The first meeting in this batch was held about March
28, and was attended by about the same employees who had
attended the first and sixth meetings. As to the “favoritism”
complaints, Meuler said at this meeting that it was no one’s
concern whom he socialized with. Vinegar stood up and said
that this became the employees’ concern when the people with
whom Meuler socialized brought “our business back into
work.” Thereupon changing the subject, Meuler said that the
Union could not guarantee any merit raises, that Respondent
could, and that he knew this was something that management
stood behind. Employee Howard said that Meuler had told
Supervisor Bartlett to “ride” Howard because he was down-
stairs trying to get union votes. Meuler said that this was none
of Howard’s business. Howard said that it was his business,
because it concerned his job. Meuler again said that this was
none of Howard’s business.
At the 12th meeting, where management was represented by
Fraher and Meuler and which was attended by (among other
employees) Shirley Storie,7 Kevin Adkins, Willie Honshul, and
Sturgill, Fraher said that because there were so many com-
plaints about Meuler’s conduct, Fraher had brought him there
to take up for himself. Meuler said that as to his socializing
with plant employees, that was his business. Sturgill said that it
“was okay to socialize but you do not bring it back into the

6 This finding is based on Vinegar’s uncontradicted testimony.
Vinegar testified that Howard identified the allegedly favored employee
as Chris Boggs; as previously noted, Rhodus testimonially identified
the allegedly favored employee as Johnson. Both Boggs and Johnson
are laboratory technicians. Which employee in fact replaced Rhodus,
and what name was given by Vinegar at this meeting, are irrelevant to
the issues in the instant case.
7 The record indicates that Shirley Storie attended only two meetings
(the fourth and the 12th) and that the other employees present during
the first meeting she attended were different from the other employees
present at the second meeting which she attended.
plant. You do not flaunt it in front of the other employees. You
do not make special concessions for [the employees you social-
ize with] nor do you tell our personal business that we have told
you in privacy, to these people and then they come back into
the plant and everybody knows about it. [That’s when it be-
comes] our business.” Meuler did not reply. Fraher asked why
the employees wanted a union (see fn. 1, above), and said that
the meetings were to let the employees tell him how they felt,
or what was bothering them.
Respondent has a practice of conducting an annual vote
among its employees as to whether they want a 6 a.m. starting
hour during the summer, and of honoring the result of the vote.
Employee Adkins said that Meuler would probably kill him for
saying this, but that a majority of the employees wanted to
come in at 6 a.m. all year round, and asked why management
could not just let everybody come in at 6 o’clock. After Meuler
said that the employees would have to vote on it, Fraher asked
why Adkins had said that Meuler would probably kill him. At
this point, Shirley Storie said that people were afraid to speak
up. Fraher asked why, and Honshul said, “Retaliation.”
At the 14th of these meetings, where management was repre-
sented by Fraher and Meuler, Fraher said that Meuler was pre-
sent to speak for himself, because the employees were picking
on him. As to employee complaints about perceived favoritism
on jobs and with respect to taking time off, Meuler said that it
was none of the employees’ business whom he socialized with
in his personal life, and that the employees should not say any-
thing more about his personal business. Employee Rhodus then
said that it became business when it involved work and he
brought it into the office.
The 16th of these meetings, on about April 2, was attended
by about the same employees who had attended the first meet-
ing. At this meeting, management was represented by Fraher
and Group General Manager Robert Hughey, Fraher’s immedi-
ate supervisor. Hughey said that he had heard that there was a
rumor going around that if the Union was elected, people would
get a raise of $2 an hour. Vinegar said that he had heard a ru-
mor attributing such a statement to himself, and that he had not
promised anyone anything because he could not promise any-
one anything. Vinegar said that the employees had gone to the
Union, the Union had not come to the employees. Hughey
asked whether management had ever closed the doors to Vine-
gar. Vinegar said that since October 1997, members of man-
agement had walked around the plant and greeted other em-
ployees in front of Vinegar and would not even acknowledge
Vinegar’s presence. Vinegar said that Fraher would fail to ac-
knowledge “hellos” from Vinegar and would not wish him a
merry Christmas. When Hughey looked at Fraher, he said, “I
know what [Vinegar is] talking about.”8 At the end of this
meeting, Hughey said that he believed Meuler and Fraher were
doing a good job, and that Hughey was going to stay with them.
8 When Fraher started to work at the plant in April 1997, he had
started to follow the practice of greeting the employees, and exchang-
ing customary courtesies, on a daily basis. Shortly before Christmas
1997, he orally delivered Christmas greetings in the plant to at least
most of the employees, but did not thus greet Vinegar, who credibly
testified to the belief that he was being deliberately snubbed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
Hughey was also one of management’s representatives at the
17th meeting, which was attended by about the same employ-
ees who had attended the second, seventh, and 12th meetings.
Employee Sturgill asked Hughey why he had failed to keep his
promise, during the 1995 union campaign, to work beside the
Kentucky plant employees and find out why they were dissatis-
fied. Hughey, who is responsible for Respondent’s Connecticut
plant as well as the Kentucky plant, said that he had “a lot more
things to do besides just worry about this place.” Sturgill asked
him why he had made all these promises. He did not reply.
During one of these meetings, Sturgill said that Bartlett was
an abusive man who misused his supervisory power, that she
thought something should be done about this, and that she had
repeatedly seen him follow Vinegar into the bathroom.
Sturgill had passed a written fork-truck examination about
early 1997 but had never received a license. About February
1997, she had asked Clyde Corman, who was her immediate
supervisor when she was driving the fork truck, why she had
never received her license. He had said that he would check
into the matter, but nothing happened. Thereafter, she asked
Fraher whether she had received her license. He said that he
would talk to supervisor Bartlett about this matter. She testified
that this conversation occurred during one of the March confer-
ence-room meetings; Fraher did not testify about the context of
this conversation. His eventual response to her inquiry is sum-
marized below section II,D,2.
b. Management’s records of individual employees’ union views
On an undisclosed date in March 1998, Fraher and Meuler
prepared a list of employees who they believed were in favor of
the Union, and a list of the employees who they believed did
not favor the Union. The list also showed whether each em-
ployee in question was believed to have strong views on the
subject. Fraher and Meuler concluded that 18 employees (10 of
them strongly) favored the Union and 27 (18 of them strongly)
did not. On undisclosed dates in March, Fraher also prepared a
list of 24 employees who he believed would vote against the
Union, and a list of 12 employees of whose likely vote he was
uncertain. For reasons not shown by the record, Vinegar’s name
was not on either list. Fraher testified that these lists were made
for the purpose of “tallying up our results where we thought we
were at a particular point in time; where we might need to di-
rect our future efforts” and focus management’s attention.
On an undisclosed date during the period of time (March 9 to
April 2) when the group meetings were in progress, Fraher,
Meuler, and employees Shirley Storie and Pat Christin con-
ferred about which employees on a written list (namely, a copy
of a list, which had been posted on the plant bulletin board, of
which employees were required to attend which meetings) fa-
vored the Union, and which did not. In the others’ presence,
Christin made an appropriate entry beside each name on the
list. The group concluded that 21 employees favored the Union
and 26 did not.9

9 My findings as to Meuler’s and Fraher’s participation are based on
Shirley Storie’s testimony. Meuler was not asked about this matter. For
demeanor reasons, I do not credit Fraher’s and Christin’s denials.
Christin’s testimony that Rochelle Petrucelli was present during this
c. The one-on-one meetings in the lunchroom
During the election campaign, Fraher conducted three man-
agement meetings, attended by Meuler and all the supervisors,
during which the supervisors discussed which individual em-
ployees favored the Union, which individual employees op-
posed the Union, which individual employees’ views were
unknown, and which individual employees would constitute a
possible “swing vote.” Vinegar’s name came up in these meet-
ings. Also, during these meetings, the supervisors discussed
trying to find out why some of the prounion employees wanted
the Union. During the third batch of conference-room meetings
with the employees, Fraher announced that he would be meet-
ing with each employee individually. Thus, during the 11th
conference-room meeting, which was attended by employees
Vinegar, Howard, Hall, Carolyn Bartlett (Supervisor Allan
Bartlett’s wife), and four or five other employees, Fraher said
that such one-on-one meetings were to be conducted with each
individual in the plant “to try to discuss what their problems
was and how they felt about the Union.” During the 12th con-
ference-room meeting, with a group which included employee
Sturgill, Fraher said that “he would be meeting with [Respon-
dent’s employees] one on one and he wanted to know the things
that [the employees] felt . . . could be changed to make things
better, [the employees’] complaints.” During the 14th meeting,
with a group which included employee Rhodus, Fraher said that
“he would like to meet one-one-one to . . . work out the prob-
lems with the management.”
Fraher prepared a list of the 47 employees who were eligible
to vote in the election, and checked off the name of each em-
ployee on meeting with him or her. Fraher conducted individual
interviews with 42 or 43 of these employees; but in conse-
quence of the Union’s April 2 withdrawal of its petition (see
below, sec. II,C), he decided not to interview the others. These
March 1998 meetings were the first such meetings he had con-
ducted since becoming operations manager in April 1997.
As to what happened during each of these one-on-one lunch-
room meetings, Fraher credibly testified to the following effect:
He asked the employee if he or she had any concerns. Some of
the employees stated that they had concerns. The three primary
concerns related to perceived favoritism (which was largely
attributed by employees to Meuler’s socialization with alleg-
edly favored employees), job rotation (related to the favoritism
complaints), and the attendance policy (also related to the fa-
voritism complaints); one of the employees complained about
the starting time in the winter versus the summer. As to some of
these concerns, Fraher replied that nothing could be done about
them, and explained why. As to complaints about perceived
favoritism with respect to temporary transfers (which many
employees disliked) and promotions (which had previously
been handled by Meuler), Fraher said that he was not sure how
he would handle such personnel actions, but that in the future

incident was not corroborated by Petrucelli, who testified for Respon-
dent, or by Shirley Storie. I find that Petrucelli was not there.
FANSTEEL VR/WESSON 433
they would be decided by him and that they would be handled
as equitably as possible.10
During the one-on-one meeting with employee Rose Rhodus,
who was wearing a union button and whom the Meuler-Fraher
list identified as a strong union supporter, Fraher asked why she
wanted the Union (see supra fn. 1). She said that she wanted to
keep her rights protected—more specifically, that, “when you
report something to someone in authority, no matter what, they
should report that,” and that a laboratory job had been given to
an employee whom she had trained rather than to her. Fraher’s
sole reply was to look at her.
Fraher began his one-on-one meeting with employee Ray
Doolin, whom the Meuler-Fraher list identified as a strong
union supporter, by explaining why Respondent did not want a
union, and why Fraher did not think a union was needed. Then,
Fraher asked Doolin why he thought one might be needed (see
fn. 1, above). Doolin replied that he was not sure whether the
employees needed a union, that the employees had a lot of
problems they needed to solve, and that the employees needed
somebody to go to, to solve these problems. Doolin said that
one of these problems was favoritism as to promotions. Fraher
said there was no such thing as favoritism out there. He said
that if the employees had a problem, they could always come to
management. Doolin said that he had done this several times,
that it just did not work.
During Fraher’s one-on-one meeting with employee Sturgill,
whom the Meuler-Fraher list identified as a strong union sup-
porter, he asked “what [she] had to say that maybe would make
things better for the people in the plant, . . . that maybe things
we could change and . . . make it a better environment.” Sturgill
complained about Supervisor Bartlett, including his perceivedly
abusive conduct, and about perceived favoritism by Meuler.
Fraher said that he stood by his management “110 percent.”
During employee Howard’s one-on-one meeting with Fraher,
he asked Howard, who was wearing a union button and whom
the Meuler-Fraher list had identified as a strong union sup-
porter, why he was for the Union (see fn. 1, above). Howard
replied that there was “a brick wall between management and
the people,” and that Howard believed that the Union was the
only way to get people to work together and enable Respondent
to survive. Howard further said that Bartlett “rode” him all the
time, that Meuler’s response to the employees’ complaints
about this was to tell the employees to ignore Bartlett, and that
“you shouldn’t have to ignore your foreman.”11 Fraher asked
whether Howard thought it would do any good to send Bartlett
to school. Howard replied that he did not know.
During Fraher’s one-on-one meeting with Vinegar, Fraher
asked him how he felt about the Union and why he was such a
strong union supporter (see fn. 1, above). Fraher said that Vine-
gar showed great leadership, and that people in the plant would
talk to him about problems which they would not talk about to

10 My findings in this paragraph are based on Fraher’s testimony. To
the extent inconsistent with these findings, I do not credit his testimony
that he made no promise that things were going to be taken care of.
11 I credit Meuler’s denial that he ever told Howard to ignore Bart-
lett. Howard may well have misunderstood something said by Meuler.
In any event, the issue is immaterial.
management. Vinegar said that the employees were tired of
management’s not taking their issues “at hand,” and that the
employees needed a union to speak for them. Vinegar also as-
serted that only a “select few” employees did not have to rotate
between jobs. Fraher said that management “have to look into
the job grades [which affect employees’ wages; see infra sec.
I,D,1] again because they [weren’t] too for sure on the grades
that they had made up and how to place people to where every-
body would do equal work.”12
C. The Union’s Withdrawal of its Petition
On April 2, 1998, the Union (through Simpson) asked the
Regional Director for leave to withdraw its representation peti-
tion, and the Acting Regional Director approved the with-
drawal. This action was taken following discussions between
Vinegar, Sturgill, Howard, and Rhodus, and a conference be-
tween Vinegar, Sturgill, and Simpson. The Union requested
such withdrawal because the 1995 election had been very close
(the Union had lost by a 3-vote margin), the Union anticipated
that the forthcoming election wold be close, two of the Union’s
supporters would be absent from the plant because of surgery
on the date for which the election was scheduled, the Union
believed that their votes would be needed for an election vic-
tory, and the Union preferred the 6-month election bar by virtue
of the withdrawal of the petition13 to the 1-year bar which by
virtue of Section 9(c)(3) of the Act would result from a union
election loss. Fraher credibly testified that he had no knowledge
of the employees’ discussions about whether the petition should
be withdrawn.
During the discussions which led up to this decision, the em-
ployees discussed giving management a chance to do some-
thing about the issues that had been brought up during the un-
ion campaign, and also discussed refiling the petition after 6
months. During the conferences with Vinegar and Sturgill
which led up to this decision, Simpson told Vinegar to “start
the campaign right back,” and gave him some more blank au-
thorization cards.
Fraher testified to the opinion that almost all of the employee
complaints advanced during his group and one-on-one meetings
were either unmeritorious (including the complaints about Bart-
lett) or stale. He testified to the opinion that there was not in
fact any favoritism in the plant, and further testified that
throughout Meuler’s exchanges with the employees during the
election campaign, he had said that he would continue the so-
cializing practices to which Vinegar and other employees had
attributed the perceived favoritism about which they had com-
plained. On April 3, the day on which the cancelled election
was to have been held, Hughey and Fraher went onto the pro-
duction floor and looked up at Vinegar. Hughey told the em-
ployees that there were no hard feelings. Then, Hughey told
Vinegar that there were no winners and there were no losers.
12 My findings in this paragraph are based on Vinegar’s testimony.
To the extent inconsistent with these findings, I do not credit Fraher’s
testimony that he made no promise that things were going to be taken
care of.
13 See Sears, Roebuck & Co., 107 NLRB 716 (1954); NLRB Case-
handling Manual (Part Two), Representation Proceedings, Sec.
11114.1a (Sept. 1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
Vinegar said that he agreed. Hughey said that “we needed to try
to work together to solve the problems in the plant . . . to keep
this to where we all could come in and work together and get
along.” Vinegar said that Hughey was right, and that “if we
don’t do something about the situation here, we’re looking at
the same thing.” Hughey and Fraher did not reply. For a few
days thereafter, Vinegar continued to wear his union jacket.
After the Union had withdrawn its petition, employee Ray
Doolin told Hughey that the employees were trying to organize
a union because of perceived favoritism and for other reasons.
At the end of this conference, Doolin told Hughey, “I guess you
know when you leave here, I’ve had it.” Hughey replied that he
would “guarantee” that nothing would ever be said about
Doolin’s talking to Hughey. A week or so later, Fraher ap-
proached Doolin while he was working at his machine, and
began to holler at him about “talking to people” and “running
[his] mouth.” Doolin said that he did not appreciate Fraher’s
screaming in Doolin’s face. Fraher said the he could do “any-
thing” to Doolin, and “there wasn’t a damn thing [Doolin]
could do about it.” Doolin said that he could indeed do some-
thing about it. Fraher said, “[Y]es, and I can fire you too.”14 At
the time of the January 1999 hearing, Doolin was still em-
ployed by Respondent.
D. The Allegedly Unlawful Discharge of Gary Vinegar
1. Vinegar’s work history
Gary Vinegar began to work for Respondent in January
1990. In May 1993, his then supervisor, Robert Sparks, gave
him a 2-day disciplinary suspension. The relevant “Disciplinary
Action Form” (signed by Vinegar, Sparks, and Meuler) states:

Employee objected to being given alternate work assignment
for the day. Employee openly argued with the supervisor in
the shop using objectionable language.

Further instance of this type to result in termination.15

So far as the record shows, this document is the only document
unfavorable to him which is in his personnel file. Meuler testi-
fied that according to Sparks’ report to him, Vinegar was asked
to do a different assignment for the day, to which he replied by
using a defiant obscenity. In the event, Vinegar went home for
the rest of the day, but Meuler asked him to return to work on
the following day, that Meuler needed him. This was the only
written discipline issued to Vinegar during his more than 8
years of employment with Respondent.
Meuler further testified that on a date he was not asked to
give, Joan Webb, who was the lead person on Vinegar’s shift,
told Meuler that Vinegar had been spending a good deal of

14 The complaint does not allege that these remarks by Fraher vio-
lated the Act.
15 The original of this document was not produced at the hearing. A
photocopy was received into evidence without objection. After consid-
ering the physical appearance of this document, and notwithstanding
Vinegar’s testimony that he did not remember this last sentence’s being
on the original form when he signed it (although this sentence “could
have been there”), I conclude that the sentence was in fact there when
he signed it. I note, however, that Respondent (inferentially, through
Sparks) had refused his contemporaneous request for a copy, and that
company witness Meuler was not asked about this matter.
working time conversing with off-duty employee Sturgill.
Meuler thereupon told Foreman Clyde Corman to tell Vinegar
that the employees could not have visitors while they were
working. After Corman reported to Meuler that Corman had
given this message to Vinegar, Webb told Meuler that when she
left the premises that day during her lunchbreak, Vinegar had
followed her, become verbally abusive with her, threatened her
that he would make trouble for her if she tried to make trouble
for him, and told her to stay out of his business.16 Meuler there-
upon told Vinegar that Webb was Respondent’s “authority
figure” on Vinegar’s shift and that it was her business to report
any problems to management. Meuler did not write down any-
thing concerning this incident, because (he testified) the inci-
dent did not occur on Respondent’s premises and had been
addressed with the employee.
On a date preceding 1994 but not otherwise shown by the re-
cord, while Vinegar was setting up a press whose weight was
incorrectly stated on the label, the punch exploded and sent
steel fragments into his safety glasses and his chest. Vinegar
reported these events to Foremen Jack Pittman and Bartlett,
admittedly supervisors. Thereafter, in 1994, Pittman told Vine-
gar that he was too slow in setting up presses. Vinegar said that
he was slow setting up the presses, but that he was making sure
that the presses were set up right, because if they were not,
someone could get seriously hurt. Later, Pittman told Vinegar
that because Vinegar was too slow setting up the presses,
Meuler did not want Vinegar to set them up any longer. Then,
Vinegar was transferred to another department. Thereafter, on a
date not shown by the record, Meuler told Vinegar that there
was a shortage of press set-up operators, and that Respondent
needed him to go back and set up the presses. Vinegar re-
minded Meuler that Vinegar was slow. Meuler said, “Don’t
worry about that. Take your time and do it right.”
In the late winter or early spring of 1997–1998, Pittman
again questioned Vinegar’s speed in setting up. Vinegar replied
that he was slow, but that he was being slow on purpose to be
careful, because if anything happened in being a little too fast
somebody could get hurt. Pittman replied that being careful was
good, but that Vinegar was supposed to reduce his setup time to
the level of other setup men. Pittman credibly testified to the
opinion that Vinegar “sort of got a little hot about it . . . got a
little offensive about it.” After that, Pittman told Meuler that
Vinegar was a good worker who did not like to take orders.
My findings as to the 1994 incident are based on credible
parts of Vinegar’s testimony; I believe that Pittman was mis-
taken in testifying that no such incident occurred at that time.
My findings as to the 1997 or 1998 incident, including its date
and the content of Pittman’s report to Meuler, are based on
Pittman’s testimony. As to the date, Meuler initially testified
that Pittman made his report about 2 weeks before Vinegar’s
discharge in late June 1998, and then testified that this report
was made “a couple months” before Vinegar’s discharge. For
demeanor reasons, except to the extent corroborated by Pittman
16 Meuler’s testimony about Webb’s and Corman’s reports to him
was not received to show the truth of the reports. Vinegar and Corman
were not asked about these at least alleged contacts between them and
Webb, who did not testify.
FANSTEEL VR/WESSON 435
I do not credit Meuler’s testimony about the contents of
Pittman’s report, or of Meuler’s reply.
Respondent divides its jobs into grades one through six,
grade one being the most skilled and highest paid. Vacancies in
jobs graded three through six are at least sometimes posted, and
are primarily filled by awarding the job to the bidder with the
highest seniority. At the time Vinegar was discharged, he was
in a grade three job. On occasion, he filled in for a grade two
operator. On an undisclosed date which likely fell before Fraher
became operations manager in April 1997, Vinegar bid on a
grade two vacancy. Respondent advised the bidders that the job
would be given to the bidder with the highest score on a
mathematics test administered by the personnel department.
Because Vinegar did not receive the highest score, he did not
receive the position.
Foreman Corman, an admitted supervisor who was Vine-
gar’s immediate superior for about the 3 years immediately
preceding his discharge, testified that Vinegar was a good
worker and that his attendance was good. Corman testified that
he had told Vinegar he was too slow setting up presses, but that
Corman had never written him up for this or any other reason.
Supervisor Pittman, who directly supervised Vinegar, on and
off, for 4 or 5 years, testified that he was a good worker who
did not like to take orders, and that Pittman had never issued
him a written reprimand for anything. Supervisor Bartlett, who
directly supervised Vinegar for about 3 years, testified that
Vinegar “would do you an excellent job as long as you let
[him] do it his way. I never had a problem with him as far as
. . . the competency of his work;” that at no time while he was
under Bartlett’s supervision had he ever written him up; but
that sometimes Bartlett complained that Vinegar was too slow
in setting up presses. Bartlett further testified that he had no
particular simmering personal disputes or arguments with
Vinegar (although “we’d had our little discussions, like every-
body”); and that Bartlett did not regard him as distasteful.
2. Vinegar’s union activity; union-related events between the
withdrawal of the petition and his discharge
As previously noted, Vinegar was an active participant in the
Union’s 1995 campaign, with employee Sturgill initiated the
union campaign in October 1997, distributed union cards, regu-
larly wore union insignia in the plant, and (during the meetings
conducted by Fraher for the avowed purpose of finding out why
the employees wanted the Union) voiced a number of com-
plaints, some of which Respondent did not want to satisfy.
Fraher credibly testified that he and Meuler discussed between
themselves that Vinegar was a union supporter. In late February
or early March 1998, foreman Bartlett, who was then Vinegar’s
immediate supervisor, told him that Bartlett believed the plant
would close down if the Union got in. The day after the Union
withdrew its petition, Vinegar told group manager Hughey, in
effect, that if Respondent did not make any changes, the union
drive would be renewed; as noted above, section II,B,3,d, Re-
spondent did not intend to effect a number of the changes
which the employees had requested of Fraher during the con-
ference room and lunchroom meetings. A week before Vine-
gar’s discharge, when Sturgill expressed dissatisfaction at Fra-
her’s statement that according to Bartlett and Meuler she had
not passed the fork-truck license test, he asked whether this
meant she was thinking of the Union, she said yes, and he said,
“I guess this means the Union is going to try to come back
in.”17
3. Vinegar’s discharge
During a period which began before Bartlett became mainte-
nance foreman about June 1995, some of the employees had
followed the practice of taking their lunch breaks is the mainte-
nance shop. Maintenance employee Howard, at least, preferred
to eat there because it was quieter during lunchtime than the
lunchroom. About early June 1998, Vinegar and Sturgill joined
the group of about six other employees (of whom only Howard
was a maintenance employee, so far as the record shows) who
had been habitually eating lunch there. In consequence of the
lunchtime use of the maintenance shop, certain portions of the
maintenance shop housed chairs which were used for break
purposes only. After repeatedly stumbling over these chairs,
Bartlett told maintenance employee Howard on the morning of
June 26, 1998, that Bartlett was tired of tripping over the chairs
and picking up trash, that nobody but Howard and maintenance
employee Bobby Doolin Jr. (not to be confused with employee
Ray Doolin) would be permitted to eat lunch in the mainte-
nance shop, and that in order to discourage other would-be
lunchers, Bartlett would prefer that Howard and Bobby Doolin
not eat lunch there either.18 Later that morning, during the lunch
break, Howard told Vinegar and Sturgill that Bartlett had said
they could no longer take their lunch breaks in the maintenance
area.19 Vinegar and Sturgill went to Meuler and asked to talk to
Fraher about what Bartlett had said concerning “us” taking a
break in the maintenance area. Meuler replied that Fraher was

17 Respondent’s insurance company requires any operator on the
forklift to have a license. The record fails to show whether issuance of
the license would have affected Sturgill’s pay. After administering the
test to her and employee Webb about January 1997, Bartlett told both
of them, as well as Meuler, that the two employees had “done okay.”
Meuler thereafter issued a license to Webb. However, although Sturgill
(as well as Webb) had passed the written part of the test, Bartlett told
Meuler that Bartlett thought Sturgill needed more training on driving
the fork truck itself. Sturgill had been operating the fork truck for three
years when she was first told, in June 1998, that she had failed to pass
the January 1997 test. There is no evidence that anyone ever told her
that she had passed the January 1997 written test, and that her per-
ceived need as of January 1997 for more training on the fork truck was
the reason for Fraher’s June 1998 statement that she had not passed the
fork truck examination.
18 My finding that Howard and Doolin were exempted from this or-
der from the outset is based on Howard’s testimony, which is indirectly
corroborated by Vinegar’s uncontradicted testimony that after Howard
had reported to his fellow employees on June 26 regarding Bartlett’s
June 26 order, during a conversation with Fraher later that same day
Vinegar described the exemption (see below). I believe Bartlett was
mistaken in testifying that not until the following week did he exempt
Howard and Doolin from this order. However, the issue is immaterial.
19 In the absence of corroboration by Howard or Vinegar, I do not
credit Sturgill’s testimony, on cross-examination by Respondent’s
counsel, that Howard said Bartlett did not want her and Vinegar in
there talking union. Respondent’s counsel did not ask me to limit the
purpose for which such testimony by Sturgill was received; but there is
no other evidence (from Howard or anyone else) that Bartlett so ad-
vised Howard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
out of the plant at that time, but was expected back that after-
noon.
After the lunch break, Vinegar returned to the task of using a
fork truck to pull baskets of materials from a shelf in the ship-
ping and receiving area and transport these baskets to the whee-
labrator wash area. When the bell rang at 1:30 p.m. for the af-
ternoon break, Vinegar parked the truck in the shipping and
receiving area and walked toward the breakroom. His path led
him through the brazer room, where he had been setting up
welders earlier that day. He put his safety glasses on top of a
welder and proceeded into the breakroom.
When the bell rang for the end of his break, he walked back
to his fork truck, where he believed he had left his safety
glasses. On realizing that he had left them in the brazer room
instead, he picked up his move tickets, which he was supposed
to attach to the baskets after transporting them to the work area,
and walked back toward the brazer room. His route initially
took him to the inspection area, where he encountered his im-
mediate supervisor, Corman. Corman asked Vinegar whether
he had finished pulling the job, to which Vinegar replied that he
had, that he was on his way to get his safety glasses, and that he
would be right back. Then, Vinegar left the inspection area for
the brazer area, a route which required him to go through the
wheelabrator wash room.
When Vinegar entered the wheelabrator wash area, the sand-
blaster, the wheelabrator, and (perhaps) the degreaser were
operating, and the area was exceeding noisy.20 Vinegar pro-
ceeded along a yellow-painted walkway on which the fork
truck is to be driven in the area, and which is considered the
safe route to use when walking through the area. Safety glasses
are required to be worn in that area. At that time, Bartlett was in
the area putting some tools into a basket. When Vinegar was 20
or 25 feet away from him, Bartlett yelled, “[H]ey bud, you need
to get your safety glasses on.” Vinegar raised his hands a little
above shoulder level, with the palms away from him, and made
a little pushing gesture. He said that he had told his foreman
that Vinegar was on his way to get his safety glasses, that Bart-
lett should verify this by talking to Vinegar’s foreman (who
was in the next room about 50 feet away), and that other than
that, Bartlett did not need to say anything to Vinegar.21 Then,

20 This finding is based on the testimony of Winburn, who at that
time was working in the wheelabrator wash area, and Vinegar. A
memorandum prepared by Meuler and dated July 1, which with some
doubt I received into evidence as a business record under Rule 803(6)
(at the hearing mistakenly described by me as 802(6)) of the Federal
Rules of Evidence, states that on June 29, Winburn had told Fraher,
Meuler, and Bartlett that he could not hear what was said during the
Bartlett-Vinegar conversation “due to the amount of noise in that work
area.” Bartlett testified that when all the machinery is running, the
wheelabrator wash room is the “most noisiest room in the house.” I do
not credit Bartlett’s testimony that none of the machinery was running
at that time. Respondent’s witness Corman, who at that time was in a
physical position to hear whether this machinery was operating, was
not asked about this matter.
21 On direct examination, Vinegar testified to having said, “I had told
my foreman, Clyde Corman, that I was on my way to get my way to get
my glasses, other than that [Bartlett] didn’t need to say anything to
me.” On cross-examination, Vinegar testified to having said that “if
[Bartlett] would talk to my foreman, [Bartlett] would know that I was
Vinegar continued on his way to the brazer room to retrieve his
safety glasses.
After Vinegar had left the area, Maintenance Foreman Bart-
lett engaged in some work-related discussion with maintenance
employee Winburn. Meanwhile, Vinegar retrieved his safety
glasses, put them on, came back to the wheelabrator wash area,
put his move tickets into the baskets, and got his weight count
off the ticket. Then, Bartlett told him that Bartlett did not ap-
preciate the way Vinegar had talked to him, and that he was
going to see Meuler. Bartlett thereupon walked toward the
shipping and receiving area, and Vinegar went to the office of
Corman, Vinegar’s immediate supervisor. Vinegar said that
Bartlett had said something to him about not wearing his safety
glasses and that Vinegar had told Bartlett that Vinegar had told
Corman that Vinegar was on his way to get his safety glasses.
Corman nodded his head, and Vinegar went back to work.22
Meanwhile, Bartlett went to Meuler’s office.
My findings as to the Bartlett-Vinegar conversation are
based on the testimony of Vinegar and Winburn, who at the
time of the hearing was still in Respondent’s employ. Bartlett’s
testimony that his remarks to Vinegar were made in a conversa-
tional tone, while the two men were side by side and during a
period when the machinery in the area was not operating, is
inconsistent with the testimony of Winburn, as well as Vinegar,
that at least two machines were then operating in the area, and
with Winburn’s testimony that Bartlett and Vinegar were “talk-
ing kind of loud to each other . . . louder than they needed to be
talking.”23 Bartlett’s testimony that Vinegar “was waving his
arms” at Bartlett is inconsistent with Winburn’s credible testi-
mony that Vinegar made a pushing motion with his raised arms.
For these and demeanor reasons, I credit Vinegar’s version of

on my way to get my safety glasses, other than that [Bartlett] had noth-
ing to say to me.” During one of Fraher’s March-April meetings with
employees, Fraher said that if “someone had a problem or situation
with you then they should go through your foreman [and] then to his
chain of command, which is Steve Meuler, and then to Larry Fraher.”
Moreover, Vinegar’s immediate supervisor, Corman, testified that if
there was a problem, you go through the chain of command. However,
Meuler testified that Bartlett had authority to give direction to Vinegar.
Further, Vinegar testified that Bartlett had the right to speak to him as a
boss if Vinegar was out of line.
22 My findings as to the content of this Vinegar-Corman conversa-
tion are based on Vinegar’s testimony. I regard as unlikely Corman’s
testimony that Vinegar was not then wearing his safety glasses, that he
did not say he was looking for or had misplaced his safety glasses, that
he brought up the subject of safety glasses by saying that he thought he
did not have to wear his safety glasses in the back but he had to wear
them up front, and that he then said that he was upset because Corman
was his supervisor and Corman rather than Bartlett should have talked
to Vinegar about his safety glasses. I note that both Bartlett and Vine-
gar testified that Vinegar was wearing his safety glasses during their
second conversation.
23 At that time, because Vinegar had a 60-percent hearing loss in one
ear, he was wearing hearing protection which consisted of both ear
inserts and ear muffs. The file memorandum at least allegedly prepared
by Meuler on July 1 states that on June 29, Winburn advised him, Fra-
her, and Bartlett that Winburn could not hear what was said during the
Bartlett-Vinegar conversation “due to the amount of noise in that work
area.”
FANSTEEL VR/WESSON 437
the conversation, and do not credit Bartlett except to the extent
specified in my findings of fact.
As to the Vinegar-Bartlett conversation in the wheelabrator
wash room, Bartlett testified as follows: Bartlett was walking
on the walkway toward the shipping and receiving area, and
Vinegar was walking on the walkway toward the production
area. The machinery in that room was not operating at that
time. When the two men were side by side, Bartlett said in a
pleasant tone of voice, at a conversational pitch, “Gary, you
need to get your glasses on, bud.” After taking a single step
beyond Bartlett, Vinegar “hollered . . . and I mean hollered”
that Bartlett “had no right to tell him to wear his glasses, that if
[Bartlett] had to say anything to anybody about [Vinegar’s]
glasses, to see his supervisor.” Vinegar said that he had thought
he had his glasses on his head, and that he was on his way to
get them off the forklift. Vinegar used a “very belligerent” tone
of voice, and “was waving his arms and shouting at” Bartlett.
After Vinegar had left this area and returned with his glasses
on, Bartlett told him that Bartlett was going to talk to Meuler
about the way Vinegar had just talked to Bartlett. Then, Vine-
gar “started on [Bartlett] again, in the same type of voice and
everything. [Vinegar] said [Bartlett] had no right to tell him
anything about his glasses.”
A few minutes after his conversation with Vinegar, Bartlett
went to Meuler’s office. As to what Bartlett told Meuler, Bart-
lett (who had just given the foregoing testimony about his con-
versation with Meuler), testified, “Just the same thing I told
you”—that is, Respondent’s counsel. As to what Bartlett told
him, Meuler testified as follows:

[Bartlett] told me that he had been going through the
basement area, and that he observed Mr. Vinegar in that
area without his safety glasses on, and that he walked up
to him and said something to the [effect] of “Hey, buddy,
get your safety glasses on.”
[Bartlett] said, at that point, that Mr. Vinegar became
very irate and began to . . . to scream back at him and
shout, telling him he had no business telling [Vinegar]
what to do, [Bartlett] was not [Vinegar’s] supervisor, and
. . . he’d get his glasses but [Bartlett] had no business tell-
ing him what to do, and began to verbally argue with him.
[Bartlett] said he then walked away a little bit. [Vine-
gar] went to get his glasses. [Bartlett] turned around to say
something further to [Vinegar], and [Vinegar] again
started . . . becoming very loud and argumentative with
[Bartlett].

After making his report to Meuler, Bartlett went to his office,
where he recorded “the events of what had happened.”24 About
10 minutes later, Meuler called Bartlett to Meuler’s office and
asked him to tell Meuler again what had happened. Bartlettt
testified that during this conversation, he told Meuler “again
what happened.”25 Meuler testified that he “discussed the situa-

24 This finding is based on Bartlett’s testimony. For unexplained rea-
sons, the record which he prepared was not offered into evidence.
25 Bartlett testified that during this conversation, Meuler said that
this was “the second time it happened. And [Vinegar] was told the last
time if it happened again what would be happening.” Inferentially,
Bartlett’s testimony referred to the incident which was the subject of
tion with [Bartlett], got the details,” and that after Bartlett re-
counted the incident, Meuler told him that Meuler “would not
tolerate that sort of insubordination towards our management,
that [Meuler] thought . . . it was above and beyond . . . what
should be expected of any employee and . . . that [Meuler]
would terminate [Vinegar] for it.” Meuler went on to testify
that he told Bartlett that Meuler “would like to . . . run it by”
Fraher; that Meuler tried to get in touch with Fraher “I guess to
. . . tell him what I thought, my decision;” and that when
Meuler could not reach Fraher Meuler “decided to go ahead
with [his] decision.”26
Then, Vinegar was summoned to Corman’s office, where he
met with Bartlett and Meuler. Meuler told Vinegar that Meuler
would not tolerate disrespect for management. Vinegar said,
“What disrespect?” Meuler said, “You’re fired.” Vinegar said
that he did not believe that his failure to wear safety glasses had
anything to do with his being fired, and that he was being fired
because he was the head of the union organizing. Meuler said
that Vinegar’s discharge had nothing to do with the Union.
Meuler credibly testified that during this discharge interview,
neither he nor any member of management asked Vinegar to
relate what had happened between him and Bartlett. Meuler
testified that no such question had been asked because “I had
no reason to not believe Mr. Bartlett’s account.” Meuler knew
that over the years, employees had had difficult times working
with Bartlett.27
Vinegar thereupon left the office, followed by Meuler and
Bartlett at a distance of 10 or 15 feet.28 Vinegar went to the
timeclock to punch out, but his card was not in the rack. Then,
he went toward the locker area to retrieve his personal effects.
Bartlett caught up with him and told him to wait across the
street for employee Sturgill, whose car was parked in the em-
ployee parking lot, to get off work. Vinegar said that he had
ridden to work with Sturgill, and that he would sit in the car
and wait for her until she got off work, about 25 minutes later.

the May 1993 disciplinary memorandum issued to Vinegar. Neither
Meuler’s testimony about his conversation with Bartlett, nor Meuler’s
subsequent file memorandum on this subject, refers to this 1993 matter.
Accordingly, and for demeanor reasons, I do not credit the testimony of
Bartlett described in this footnote.
26 During a meeting of employees about mid-1997, group manager
Hughey, in the presence of Fraher and Meuler, had stated that Meuler
was not allowed to fire people, and that any firing was strictly up to
Fraher. However, Meuler testified that he was responsible for hiring
and firing decisions.
27 My findings as to the discharge interview are based on a compos-
ite of credible parts of the testimony of Vinegar, Meuler, and Bartlett.
Bartlett’s testimony, and to some extent Meuler’s testimony, suggest
that Vinegar said his leadership in the union movement precluded him
from being terminated. Particularly because all three witnesses testified
(and Meuler’s file memorandum states) that Meuler replied by saying
that Vinegar’s discharge had nothing to do with the Union, I credit
Vinegar’s testimony that he said he was being fired because he was
head of the union organizing, and his denial that he said that he could
not be fired because he was a union organizer.
28 This finding is based on Vinegar’s and Bartlett’s testimony. I be-
lieve Meuler was mistaken in his testimony that after telling Vinegar
that he was discharged, Meuler told Bartlett to see to it that Vinegar left
the premises, and then left the area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
Bartlett said that if Vinegar did not wait across the street, Bart-
lett would get the police to escort Vinegar across the street.
Nonetheless, after retrieving his personal effects, he went to the
car to wait for Sturgill.
A few minutes later, Fraher, who had been conducting some
business away from the plant, drove into the plant parking lot,
parked his car there, and went to his office. After being advised
that Meuler wanted to see him, he went to Meuler’s office,
where Meuler (according to Fraher’s testimony) told Fraher
that Meuler had terminated Vinegar for insubordination toward
Bartlett. Meuler testified, without giving further particulars,
that he told Fraher “what I had done” in connection with Vine-
gar. Fraher testified, without giving further particulars, that he
approved of the discharge when Meuler “told me the circum-
stances.”
While sitting in Sturgill’s car, Vinegar saw Fraher pull his
car into the parking lot. Vinegar thereupon went back into the
building and knocked on Meuler’s door. When Meuler said,
“Come in,” Vinegar came in and saw Fraher and Meuler. Vine-
gar told Fraher that Meuler had terminated Vinegar for disre-
spect to management. Fraher said that he had talked to Meuler
and stood behind his decision. Vinegar said that the reason he
had been fired was that he was a union organizer. Fraher said
that he had nothing to do with it and that he stood behind the
decision which Meuler had made. Vinegar said that he guessed
Fraher had not received Vinegar’s message requesting a meet-
ing about Bartlett’s ban on breaks in the maintenance area.
Fraher said that he had not, and asked what Bartlett had said.
Vinegar said that Bartlett had told Howard that Bartlett did not
want anyone besides Howard and Bobby Doolin Jr., to take
breaks at the maintenance table any longer. Fraher said that the
maintenance area was not a break area. Vinegar replied that
neither were any of the other places in the plant where employ-
ees worked, but they were nevertheless allowed to take their
breaks there and eat there.
As previously noted, Meuler testified that he had not asked
Vinegar what had occurred between him and Bartlett on the day
of his Friday, June 26, discharge, because Meuler saw no rea-
son to disbelieve Bartlett. On the following Monday, June 29,
Meuler, Fraher, and Bartlett approached employee Winburn,
and asked him what he had seen or heard during the Bartlett-
Vinegar conversation. Meuler testified that Winburn “told me
that he observed Mr. Vinegar and Mr. Bartlett in some kind of
discourse, but [Winburn] was on the other side of the room and
he really did not know what had gone on.” On timely objection,
this testimony was not received to show the truth of Winburn’s
report to Meuler. Company witnesses Fraher and Bartlett, and
General Counsel’s witness Winburn, were not asked about this
Meuler—Winburn conversation. Winburn testified that during
the Vinegar-Bartlett conversation, they were standing about 12
steps from him, but that because of the machinery noise in the
area, he could not understand what they were saying. As previ-
ously noted, Bartlett testified, contrary to Winburn as well as
Vinegar, that during the Vinegar-Bartlett conversation, the
machines were not operating. Meuler’s file memorandum
(dated July 1) states that Winburn told him, Bartlett, and Fraher
that Winburn “had heard [Vinegar] get quite loud but that
[Winburn] could not hear what was said [during the Vinegar-
Bartlett conversation] due to the amount of noise in that work
area.”
My findings as to the events on the day of but after Vine-
gar’s discharge are based almost entirely on his testimony.
Bartlett testified to the following effect: When Bartlett told
Vinegar, shortly after the discharge interview, to wait on the
other side of the road, Vinegar said that the only way Bartlett
was going to get Vinegar off the property was with the police.
Then, Vinegar reentered the plant to pick up his tennis shoes.
While Bartlett was accompanying him toward the location of
his tennis shoes, Vinegar (who is non-Caucasian) told Bartlett
(who is white), in a “loud, aggravated voice,” that Bartlett was
a “racist” who had got three or four people fired. Vinegar said
that he was going to “put the word out on the street to have you
taken care of . . . no, better still . . . me and you will meet out on
the street and we’ll settle this man to man. And you can bring
your little pistol with you if you want to.”
Bartlett did not testify that he told anyone else about this al-
leged incident. Neither Meuler nor Fraher testified to any report
by Bartlett that Vinegar called him a racist. Meuler did testify,
and stated in his file memorandum dated July 1, that during
Vinegar’s postdischarge conversation with Meuler and Fraher
(both of whom are white), Vinegar said that he had been dis-
charged because Bartlett was a racist. However, Fraher did not
corroborate Meuler’s testimony that Vinegar made this state-
ment. Meuler testified that shortly after the termination inter-
view, Bartlett told Meuler that Vinegar had been “even more
abusive,” had threatened Bartlett with the use of a gun, and had
said that Vinegar would not leave the property unless manage-
ment called the police. However, Meuler’s file memorandum
and Bartlett’s testimony attribute to Vinegar the statement that
he and Bartlett could meet on the street to settle their dispute
and Bartlet could bring his little gun if he wanted to. In view of
the foregoing, and for demeanor reasons, I credit Vinegar’s
testimony that when asked to wait across the street, he did not
become loud or say that he would leave the property only if the
police were called; and that he did not tell Bartlett that Vinegar
would meet him on the street to settle this, or that Bartlett could
bring his little gun if he wanted to. Although Vinegar was not
asked whether he had raised a “racist” accusation against any
member of management, in view of the mutual inconsistencies
in Respondent’s evidence as to who was present when Vinegar
made this accusation I find that no such accusation was made.
In any event, both Meuler and Bartlett attributed Vinegar’s
alleged “racist” accusation to a time after his discharge, and
Respondent does not contend that such a remark, if made,
would affect Vinegar’s reinstatement rights.
On an undisclosed date prior to June 24, 1998, Meuler said
that if work was slow, the inspectors would have to start work-
ing on the brazer. On June 24, Foreman Corman instructed
inspector Rochelle Petrucelli to work on a brazer which is
sometimes referred to in the record as the Big Blue. Petrucelli
became angry, threw her arms, and loudly hollered, “I’m not
going to do that, I don’t want to work on Big Blue . . . I’ve had
a turn, and I’m not going until the rest of [the inspectors] go,”
naming inspectors Eva Hall and Walley Goldey. Petrucelli
thereupon began to perform inspector work. About 15 minutes
later, Meuler, Corman, Petrucelli, Hall, and Goldey (but not
FANSTEEL VR/WESSON 439
Shirley Storie) met for 20 minutes in Corman’s office.29 During
this discussion, which Vinegar could see through the office
window but could not hear, Petrucelli began to cry. After the
meeting broke up, Petrucelli asked Meuler whether he wanted
her to operate Big Blue now. Meuler told her no, to forget it,
and that Vinegar should run it. Corman then told Vinegar to
stay on the Big Blue for the rest of the afternoon. Vinegar
thereupon commented, “so you mean some people can cry and
get off the job where others have no say so at all.” Corman
replied that he did not want to discuss it. The Big Blue was
operated that day by Vinegar and not Petrucelli, who was not
disciplined in connection with this incident.30
About October 1997, when Petrucelli was not wearing her
safety glasses in an area where they were supposed to be worn,
during an argument with Bartlett she threw her arms and loudly
hollered, “Get out of [my obscenity] face;” whereupon he just
walked on.31 On other occasions, the most recent of which oc-
curred in September or October 1998, she failed to wear safety
glasses, where she was supposed to wear them, in the presence
of Bartlett, who said nothing to her.32 Petrucelli was never dis-
ciplined in connection with any of these incidents. On six or
eight occasions in 1998, Bartlett, Meuler, and/or Fraher saw
Shirley Storie without her safety glasses in areas where she was
supposed to wear them; but Meuler and Fraher said nothing to
her about the matter, and there is no evidence that Bartlett said

Meuler’s

29 My finding as to the length of this conference is based on the tes-
timony of Shirley Storie; I believe that Vinegar was mistaken in testify-
ing that the conference lasted for an hour and half. Storie and Vinegar
could see the conference, but could not hear what was said.
30 My findings in this paragraph are based on a composite of credible
parts of the testimony of Shirley Storie, Corman, Vinegar, Meuler, and
Petrucelli. Petrucelli testified that the June 24 meeting consisted of “a
discussion . . . pertaining to the inspection department, because there’s
a lot of confliction [sic] . . . of ‘He say, she say, we say,’ a lot of exag-
gerations of . . . pertaining of what [Shirley] Storie has claimed that I
have done”; Petrucelli denied having refused a foreman’s assignment to
work on Big Blue. Corman denied having ever had any problems with
Petrucelli. Meuler denied that Petrucelli had objected to operating Big
Blue that day. He testified that inspector Shirley Storie was present
during the June 24 conference; that it was prompted by the fact that the
inspection area was slow; that the purpose of the meeting was to ex-
plain that at some time after that day, management was going to start
rotating inspectors onto the brazer as Corman needed them; and that
Petrucelli expressed no objections to this proposed practice. For de-
meanor reasons, I do not credit the testimony summarized in this foot-
note to the extent it is inconsistent with my findings in the text.
31 This finding is based on Shirley Storie’s testimony. My finding as
to the date is based on her November 1998 affidavit, which I accept
because given closer to the event than her January 1999 testimony. She
initially testified that this incident occurred in the fall of 1998; but after
being shown her affidavit, she testified that it occurred a year or two
before November 1998. Partly on the basis of this inconsistency as to
dates, Respondent asks me to credit the denials of incumbent personnel
Christin (who according to Storie was present during this incident),
Petrucelli, and Bartlett. Because Storie gave her affidavit while still
working for Respondent, because no reason appears why she would add
to a fabricated story the fabricated presence of Christin, and for de-
meanor reasons, I credit Storie.
32 This finding is based on the testimony of Shirley Storie and How-
ard. For demeanor reasons, I do not credit Petrucelli’s testimony that
Bartlett told her to put on her safety glasses and she did so.
anything either. When asked on direct examination whether he
mentioned it every single time he saw somebody without safety
glasses, Bartlett replied, “Not every single time, no.”
On September 3, 1993, Bartlett prepared written formal
warnings for employees Gertrude Storie and Shirley Storie
(Gertrude’s sister-in-law) alleging that they had started to wash
themselves up, in anticipation of stopping work, before they
were permitted to stop.33 Notwithstanding the employees’
assertions that they had gone to the bathroom for purposes
other than washing up, Bartlett told them to sign their
respective warnings. The confrontation caused Gertrude Storie
to become, at the least, visibly upset. In Bartlett’s and
presence, Shirley Storie told her not to sign her warning slip.
Neither employee ever signed her warning slip, and neither of
them was ever disciplined in connection with the absence of
such signatures.
Fraher credibly testified that nobody had been discharged for
insubordination for at least 3 years prior to Vinegar’s discharge.
E. Analysis and Conclusions
1. The independent 8(a)(1) allegations
a. Alleged threats
In agreement with the General Counsel, I find that Respon-
dent violated Section 8(a)(1) of the Act when Supervisor Bart-
lett told employees Winburn, Hisle, and Vinegar that if the
Union came in, Respondent would close the plant down. Gene-
see Family Restaurant, 322 NLRB 219, 223 (1996), enfd. 129
F.3d 1264 (6th Cir 1997); and NLRB v. Grand Canyon Mining
Co., 116 F.3d 1039, 1044–1045 (4th Cir. 1997). Further, I agree
with the General Counsel that Respondent violated Section
8(a)(1) when Bartlett told employee Howard that plant superin-
tendent Meuler had told Bartlett to “ride the hell” out of How-
ard because he was trying to get union votes. Sunland Con-
struction Co., 307 NLRB 1036, 1043–1045 (1992). Because
Bartlett’s statement was not limited to prounion solicitation by
Howard when he and the solicited employee were supposed to
be actively working and during periods when Respondent pro-
hibited all conversations unrelated to work, such comments
violated the Act even assuming that they were prompted by
reports of such activity by Howard. See NLRB v. Miller, 341
F.2d 870, 874 (2d Cir. 1965); and Laidlaw Transit, Inc., 315
NLRB 79, 84 (1994).
b. Alleged unlawful solicitation of grievances and implied
promises during the lunchroom meetings
(1) Respondent’s 10(b) defense
On January 5, 1999, at the outset of the hearing, the General
Counsel moved to amend the complaint so as to add paragraph
5(c), which alleges, “During the weeks of March 22 and March
30, 1998, Lawrence Fraher, during meetings of employees in
the lunch room . . . solicited employee complaints and griev-
ances and implied that Respondent would resolve those com-
plaints and grievances,” in violation of Section 8(a)(1). Re-
spondent opposed this motion on the ground that these allega-
33 The record is unclear as to whether these events immediately pre-
ceded their break, or immediately preceded the end of their shift. The
question is immaterial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
tions were insufficiently related to the allegations in the only
charge in this case, which charge was served on July 2, 1998.34
At the hearing, I granted the motion for leave to amend, on the
ground that the amendment was “sufficiently close to the alle-
gations in the charge and to the subject matter and the union
campaign involved in the charge.”35 Although Respondent’s
post-hearing brief does not advance such a defense, I nonethe-
less regard it appropriate to address it in this decision.
The charge in this case alleges as follows (emphasis added to
the typewritten material; the rest of the quoted material is part
of the printed charge form):

The above-named employer has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a), subsection (1) and . . . (3) of the National Labor
Relations Act.
2. Basis of the Charge (set forth a clear and concise
statement of the facts constituting the alleged unfair labor
practices)

On or about 1–5–98 and since such date, the above
named employer has threatened Gary Vinegar and
other employees with plant closure, and by other acts
and conduct which interfered with, restrained and co-
erced employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
The above named employer has, in order to dis-
courage membership in [the Union], discriminated in
regard to the terms and conditions of employment of
Gary Vinegar by terminating him on 6–21–98 for his
Union Activities.

The lunchroom meetings occurred less than 6 months before
this charge was filed, although more than 6 months before the
General Counsel moved to amend the complaint as to such
meetings.
A complaint may be amended to add allegations relating to
conduct more than 6 months old as long as the conduct oc-
curred no more than 6 months before the filing of the charge
underlying the complaint, and as long as the allegations in the
amendment are closely related to that charge. Don Lee Dis-
tributor, Inc. v. NLRB, 145 F.3d 834, 844 (6th Cir. 1998), cert.
denied 119 S.Ct. 866 (1999); and Burlington Times, 328 NLRB
750, 751 (1999). In the case at bar, both the charge and the
amendment to the complaint allege 8(a)(1) conduct during the
same union campaign, during the same period (between Janu-
ary 5 and June 21, 1998); moreover, the typewritten portion of
the charge alleges 8(a)(1) violations by means of threats of
plant closure “and other acts and conduct.” Furthermore, as
discussed below in section II,D,2, Fraher’s lunchroom conver-
sation with Vinegar was one of the events at least allegedly
leading up to Vinegar’s discharge, which the charge unambigu-

34 Respondent’s counsel took no issue with the General Counsel’s
statement that prior to the opening of the hearing, he had sent counsel a
letter notifying him of the intended motion.
35 Respondent’s opposition to the General Counsel’s posthearing
motion to add a similar amendment as to the conference-room meetings
did not rely on Sec. 10(b). This posthearing motion has been denied for
other reasons (see sec. III,C,3,a, below).
ously claims to be unlawful. For the foregoing reasons, I hereby
adhere to my action at the hearing in permitting the amendment
of the complaint to allege that during the lunchroom meetings,
Fraher solicited employee grievances, and impliedly promised
to remedy them, in order to induce the employees to reject un-
ion representation. Burlington, supra at 751 and Ross Stores,
329 NLRB 573.
(2) The merits
During the conference-room meetings, which Fraher testified
were conducted for the purpose of giving the employees Re-
spondent’s position about the union organizing campaign that
Respondent admittedly opposed, Fraher admittedly told the
employees that he was going to meet with them individually.
During various conference-room meetings, Fraher told the em-
ployees that the purpose of these projected one-on-one lunch-
room meetings was to try to find out how the employees felt
about the Union, to try to discuss what their problems were, to
work them out with the management, to make them better.
Also, by Fraher’s admission, during the conference-room meet-
ings employees had attributed perceived favoritism toward
certain employees to their personal, off-the-job friendship with
Meuler; and during the one-on-one lunchroom conversations
with employees, Fraher admittedly told them that in the future,
he (and not Meuler) would handle personnel actions, and that
Fraher would handle them as equitably as possible. Further,
during Fraher’s one-on-one lunchroom conversation with
Vinegar, who had previously complained that because of some
employees’ personal friendship with Meuler they were not
required to rotate between jobs, Fraher responded to Vinegar’s
reiterated complaint about job rotation policy by saying that he
would “look into” the job grades in order to make sure that
everybody would do equal work. Unlike Respondent, I perceive
nothing in such remarks by Fraher which would suggest that he
was thereby trying to provoke a dialogue about the need for
union representation. Rather, I conclude that Fraher was
thereby promising benefits to employees in the form of a pro-
motion and job-content policy without the at least perceived
effect of Meuler’s out-of-plant socialization.36 Because Fraher’s
explanations for conducting these one-on-one lunchroom meet-
ings show that he gave such promises in order to induce em-
ployees to reject union representation, I find that such promises
violated Section 8(a)(1) even though he did not condition such
promises on the employees’ rejection of union representation.
Pincus Elevator & Electric Co., 308 NLRB 684, 692 (1992),
enfd. mem. 998 F.2d 1004 (3d Cir. 1996); Hertz Corp., 316
NLRB 672, 686–687 (1995); Complete Carrier Services, 325
NLRB 565, 566 (1998); Gull, Inc., 279 NLRB 931, 946–947
(1986); see also NLRB v. Exchange Parts Co., 375 U.S. 405,
408–410 (1964).37
36 See Andrex Industries Cora, 328 NLRB 1279 (1999); Traction
Wholesale Center, 328 NLRB 1058 (1999); Raley’s Inc., 236 NLRB
971 (1978), enfd. 608 F.2d 1374 (9th Cir. 1979), cert. denied 449 U.S.
871 (1980); and Forrest City Grocery Co., 306 NLRB 723, 728–279
(1992).
37 The cases cited by Respondent do not hold that promises for such
a purpose are unlawful only if accompanied by an express or implied
suggestion that the grievance would be resolved or acted upon only if
FANSTEEL VR/WESSON 441
2. Vinegar’s discharge
By its own admission, Respondent was opposed to the Un-
ion’s organizing drive. In late February or early March 1998,
foreman Bartlett told employee Vinegar that Bartlett believed
the plant would shut down if the Union got in. Similarly, about
late March 1998, Bartlett told employees Hisle and Winburn
that if the employees voted the Union in, Respondent “would
close the place up.” In March 1998, Respondent required em-
ployees to attend, during their working hours, a number of
meetings during which Fraher attempted to induce them to vote
against the Union by, among other things, promising that in the
future, promotions would be decided upon by him rather than,
as in the past, by plant manager Meuler, whose personnel deci-
sions the employees believed to be influenced by friendship.
Further, the evidence shows that employee Vinegar was the
Union’s principal advocate during the 1997–1998 union drive,
and that Respondent knew this. Thus, Vinegar had been an
active participant in the Union’s unsuccessful 1995 campaign,
and had served as the Union’s observer in that election. The
first 1997 contact with the Union was made by him and Stur-
gill. During the 1997–1998 union campaign, Vinegar distrib-
uted union cards and regularly wore union insignia in the plant,
as well as to and from work. Moreover, during Fraher’s March
1998 meetings with employees, for the purpose of ascertaining
what dissatisfactions had caused the reactivation of the union
movement, Vinegar voiced a number of complaints many of
which Respondent did not want to satisfy. Furthermore, after
the Union had withdrawn the petition in early April 1998,
Vinegar told management, in effect, that if the employees’
problems were not resolved, the union movement would re-
sume, and he continued to wear his union jacket to work. A
week before Vinegar’s June 26 discharge, a conversation with
Sturgill about her failure to receive a fork-truck license led
Fraher to conclude that the Union was going to resume its or-
ganizing efforts. Finally, foreman Bartlett’s March 1998 state-
ment to employee Howard, that Plant Superintendent Meuler
had told Bartlett to “ride the hell” out of Howard because he
was trying to get union votes, shows that Respondent’s man-
agement was prepared to take personnel action against individ-
ual employees because of their union activity.
Both the General Counsel’s and Respondent’s brief assume,
without discussion, that Bartlett accurately reported to Meuler
what had in fact happened between Bartlett and Vinegar. I con-
clude that Bartlett did in fact make such an accurate report, and
discredit Meuler’s testimony about what Bartlett told him. Such
an inference gains some support from Meuler’s failure (so far
as the record shows) to spell out to Vinegar Bartlett’s report of
his conversation with Vinegar, and Meuler’s admitted failure to
ask Vinegar for his version of this conversation, even after
Vinegar had claimed (in effect) that he had not engaged in any
conduct which he thought was insubordinate, and further
claimed that he was being discharged for union activity rather
than for failing to wear safety glasses; Bartlett’s testimonial

the employees reject union representation. The reference in some of
these cases to such a condition relate to the motive for the promise and
to the condition’s enhancement of the promise’s coercive tendency (i.e.,
a stick as well as a carrot).
version of this conversation would have been a far more effec-
tive response to Vinegar’s comments than a description of this
conversation in conformity with my findings (mostly based on
Vinegar’s testimony) about what was in fact said. On the basis
of my inference that Meuler received an accurate account of
this Bartlet-Vinegar conversation, I conclude that this conversa-
tion was not a motive for Vinegar’s termination. Vinegar’s
response to Bartlett’s somewhat discourteous reminder to put
on safety glasses was a “calm-down” gesture accompanied by
the truthful statement that Vinegar’s own foreman knew Vine-
gar was on his way to get his safety glasses and an expression
of irritation that Bartlett had brought up the issue with Vinegar
directly, and not with his foreman. Such conduct by Vinegar
would appear to be significantly less serious than Petrucelli’s
refusal to comply with a direct order to operate the Big Blue,
with the Stories’ refusal to comply with Bartlett’s direct order
to sign their warnings, with Shirley Storie’s conduct in telling
Gertrude Storie to disobey that order, and with Petrucelli’s
conduct in angrily directing an obscenity toward Bartlett, on an
occasion when she was not wearing her safety glasses in an
area where they were supposed to be worn; nevertheless, Re-
spondent did not discipline either Petrucelli or the Stories for
such conduct.37 Further indicating that this Bartlet-Vinegar
conversation was merely a pretext is Meuler’s admitted failure
to ask Vinegar what had happened, even though Meuler knew
that over the years, other employees had had difficult times
working with Bartlett.38 Meuler’s “failure to afford [the dis-
chargee] an opportunity to respond to the allegations against
him . . . lends support to an inference of unlawful motivation,
and shows that [Meuler] was not interested in determining
whether misconduct had actually occurred.” National Assn. of
Government Employees, 327 NLRB 676, 701 (1999). Indeed,
Vinegar’s timecard had been removed from the rack by the
time he reached it upon proceeding thereto immediately after
his discharge interview. Nor do I credit Meuler’s testimony that
he discharged Vinegar in June 1998 partly because of the 1993
incident involving Vinegar’s objections to a work assignment,
partly because of the Webb off-premises incident on an undis-
closed date, and partly because foreman Pittman reported to
Meuler that Pittman was having trouble with directing Vinegar
in that he was argumentative when told that he was using up
too much indirect time setting up a press. None of these inci-
dents was mentioned in Meuler’s file memorandum regarding
Vinegar’s discharge nor (so far as the record shows) during
37 Fraher and Meuler both testified, in effect, that their treatment of
Petrucelli and of Shirley Storie in personnel matters was unaffected by
these employees’ personal friendship with Meuler.
38 Meuler’s testimony that he made no such inquiries because he had
no reason to not believe Bartlett’s account is somewhat difficult to
reconcile with Meuler’s and Fraher’s admitted efforts to ascertain from
employee Winburn, the next working day after Vinegar’s discharge,
what had occurred during his conversation with Bartlett. Moreover,
there is no evidence that Winburn’s statement led Meuler to investigate
the veracity of Bartlett’s account, even through Bartlett’s alleged attri-
bution to Vinegar of screaming, shouting, and loud speech is somewhat
difficult to reconcile with Winburn’s statement, according to Meuler’s
memorandum, that because of the noise in the area, Winburn could not
understand what Bartlett and Vinegar had been saying.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
Vinegar’s discharge interview; the Webb and Pittman incidents
were not noted in Vinegar’s personnel folder; and Pittman
credibly testified that his only report to Meuler about Vinegar
was made in late 1997 or early 1998, when Pittman reported to
Meuler that Vinegar “was a good worker. He didn’t like to take
orders.” Moreover, I regard it as inherently unlikely that Re-
spondent discharged Vinegar—a good worker for more than 8
years—even partly because of a verbal incident which had oc-
curred 5 years earlier.40
In short, the record shows as follows: Respondent opposed
the Union’s organizational effort, and had expressed willing-
ness to take retaliatory personnel action to discourage union
activity. Vinegar had been an open union advocate during an
unsuccessful union campaign in 1995, and was an open and
known union advocate during the 1997–1998 union campaign.
After the Union withdrew its petition in early April 1998, Re-
spondent was advised that the Union would likely engage in
still another organizational effort. In June 1998, Respondent
summarily discharged Vinegar, and advanced several pretextu-
ous reasons therefor; including a 5-year-old offense which was
not mentioned in the file memorandum about his discharge (nor
to him when he was discharged, so far as the record shows);
and a report, which Respondent never asked him about, that he
had engaged in conduct which was less serious than conduct for
which other employees were never disciplined at all. I conclude
that the record preponderantly shows that Respondent dis-
charged Vinegar at least partly because of his union activity.
The pretextuous nature of the reasons advanced by Respondent
for his discharge precludes any contention that the evidence
preponderantly shows he would have been discharged for law-
ful reasons even if he had not engaged in union activity. W. F.
Bolin Co. v. NLRB, 70 F.3d 863, 873 (6th Cir. 1995); and Aero
Metal Forms, 310 NLRB 397, 399 (1993). Accordingly, I find
that his discharge violated Section 8(a)(3) and (1) of the Act.
I would reach the same result even were I to find that Bartlett
in fact gave to Meuler about the Bartlett-Vinegar incident the
untruthful report to which Meuler testified at the hearing. Al-
though testifying that Vinegar was a good worker with whom
Bartlett had had no particular personality clashes, Bartlett had
described the Union in scatological terms, regarded Vinegar as
“the number one ringleader of the Union” and testified that he
agreed with the discharge decision because Vinegar’s attitude
had changed to a bad attitude “Right after the last union vote,”
referring to the Union’s October 1995 loss of the election at
which Vinegar had served as the Union’s observer after urging
his fellow employees to vote for it. Bartlett’s temporal coupling
of this event with “ringleader” Vinegar’s perceived develop-
ment of a bad attitude indicates that Bartlett was equating this
development with Vinegar’s continuing (and, perhaps, increas-
ing) desire for union representation.41 I conclude that any mis-
representation to Meuler by Bartlett (an admitted supervisor)

40 In a possibly subconscious effort to depreciate this problem,
Meuler testified that the May 1993 incident had occurred “a couple
years” before Vinegar’s June 1998 discharge.
41 See L. S. Ayers & Co. v. NLRB, 551 F.2d 586, 587 fn. 1 (4th Cir.
1977); GATX Logistics, Inc., 323 NLRB 328, 335 fn. 23 (1997), enfd.
160 F.3d 353 (7th Cir. 1998); L. A. Baker Electric, 265 NLRB 1579,
1591 (1983); and Eby-Brown Co., 328 NLRB 496 (1999).
which adversely reflected on Vinegar’s conduct during this
conversation was motivated by Bartlett’s opposition to Vine-
gar’s union activity, by Bartlett’s hope and/or expectation that
this misrepresentation would lead to adverse personnel action
against Vinegar, and/or by Bartlett’s belief that because of
Vinegar’s union activity, his superiors would be pleased by
being afforded an opportunity to take such action and would
likely not look into, or care about, the accuracy of Bartlett’s
report. Accordingly, I conclude that Vinegar’s discharge vio-
lated Section 8(a)(3) and (1) even assuming that Bartlett inac-
curately reported the incident to Meuler and Meuler believed
Bartlett’s report when deciding on the discharge. See Grand
Rapids Die Casting Co. v. NLRB, 831 F.2d 112, 117–118 (6th
Cir. 1987); Boston Mutual Life Insurance Co. v. NLRB, 692
F.2d 169, 171 (1st Cir. 1982) (per then Circuit Judge Breyer);
and NLRB v. E.D.S. Service Corp., 466 F.2d 157 (9th Cir.
1972).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by en-
gaging in the following conduct:
(a) Threatening employees with plant closure if the Union
organizes the shop.
(b) Telling an employee that he is being harassed because of
his union activity.
(c) Promising employees benefits in order to discourage un-
ion activity.
4. Respondent has violated Section 8(a)(3) and (1) of the Act
by discharging employee Gary Vinegar.
5. The unfair labor practices described in Conclusions of
Law 3 and 4 affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in certain
respects, I shall recommend that Respondent be required to
cease and desist from such conduct, or like and related conduct,
and to take certain affirmative action necessary to effectuate the
policies of the Act. Thus, Respondent will be required to offer
Gary Vinegar reinstatement to his former position, or, if such a
position no longer exists, to a substantially equivalent position,
and to make him whole for any loss of earnings and other bene-
fits he may have suffered by reason of his unlawful termination,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). In addition, Respondent will be re-
quired to expunge from its records all references to Vinegar’s
unlawful termination and to notify him in writing that this has
been done and that the actions and matters reflected in these
documents will not be used against him in any way. Also, Re-
spondent will be required to post appropriate notices.
FANSTEEL VR/WESSON 443
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The Respondent, Fansteel VR/Wesson, Lexington, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure if the shop is
organized by Teamsters Local Union No. 651 affiliated with
the International Brotherhood of Teamsters, AFL–CIO, or any
other labor organization.
(b) Telling employees that they are being harassed because
of their activity on behalf of Local 651, or any other labor or-
ganization.
(c) Promising employees additional benefits, for the purpose
of inducing them to refrain from choosing representation by
Local 651 or any other labor organization.
(d) Discouraging membership in Local 651, or any other la-
bor organization, by discharging employees, or by otherwise
discriminating in regard to hire or tenure of employment or any
term or condition of employment.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Gary
Vinegar full reinstatement to his former position or, if such a
position no longer exists, a substantially equivalent position,
without prejudice to his seniority or any other rights and privi-
leges previously enjoyed.
(b) Make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files all references to Gary Vinegar’s unlawful termination,
and within 3 days thereafter, notify him in writing that this has
been done and that the action and matters reflected in these
documents will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form,
necessary or useful in analyzing the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by Region 9, post at its facil-
ity in Lexington, Kentucky, copies of the attached notice
marked “Appendix.”43 Copies of the notice, on forms provided

42 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
43 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at its Lexing-
ton facility at any time since February 15, 1998.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has ordered us to post and
abide by this notice.
WE WILL NOT threaten you that the plant will close if you
choose to be represented by the Teamsters Local Union No.
651 affiliated with the International Brotherhood of Teamsters,
AFL–CIO, or any other union.
WE WILL NOT tell you that you are being harassed because
of your activity on behalf of Local 651 or any other union.
WE WILL NOT promise you additional benefits, for the
purpose of inducing you to refrain from choosing representa-
tion by Local 651, or any other union.
WE WILL NOT discourage membership in Local 651, or
any other union, by discharging you, or otherwise discriminat-
ing in regard to your hire or tenure of employment or any term
or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under the
Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer Gary Vinegar reinstatement to his former job or, if
this job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Gary Vinegar whole, with interest, for any
loss of earnings and other benefits he may have suffered by
reason of his termination.

WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files all reference to Gary Vinegar’s
unlawful discharge, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and the actions

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
and matters reflected in these documents will not be used
against him in any way.
FANSTEEL V/R WESSON