Fimco, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1987

282 N.L.R.B. 653 (N.L.R.B. 1987)

FIMCO, INC.
Fimco , Inc. and Local Lodge 1426,lnternatfional As-
sociation of Machinists and Aerospace Workers,
AF'L-CIO.1 Case 18-CA-7513
9 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHEN$
On 21 December 1982 Administrative Law
Judge Richard H. Beddow Jr. issued the attached
decision . The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.
1. The Respondent contends that its change in
vacation policy, announced 25 June 1981, was not
unlawful because in an 18 July letter the Union
gave it permission to put into effect a regularly
scheduled cost-of-living raise and "to make any
other improvements you wish to make in wages,
i We adopt the judge 's findings that the Charging Party, District
Lodge 162, International Association of Machinists and Aerospace Work-
ers, AFL-CIO, was disbanded on 1 April 1982, and that its successor is
Local Lodge 1426, International Association , of Machinists and Aero-
space Workers , AFL-CIO. We, accordingly , have amended the name of
the Charging Party.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they , are incorrect. Standard Dry
AWal1 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.
The Respondent also excepts to the judge's. conclusion that President
Thomas Vaughn uncharacteristically made the actual discharge of Ted
Miller himself in that it was the only discharge in which Vaughn had
participated in 5 years. As the Respondent correctly notes, about the
same time as the Miller discharge Vaughn also informed another employ-
ee that be was no longer employed by the Respondent . That error does
not, howevei , make unreasonable the judge 's conclusion concerning the
significance of Vaughn's discharge of Miller, for it is fair to say that an
action taken only twice in 5 years is "uncharacteristic." The judge, there-
fore, properly relied on Vaughn's personal involvement in Miller's dis-
charge as part of the pattern from which he inferred discriminatory
motive.
The judge found that the Respondent related the 1 October 1981 wage
increase to withdrawals of both the representation petition and the unfair
labor practice charges. He, therefore, found that the Respondent violated
Sec. 8(axl) by granting the wage increase. We agree and note that, in
addition to the evidence cited by the judge , Vaughn directly conditioned
the wage increase on both withdrawals. Thus, there is undisputed testi-
mony that in a grievance committee meeting occurring after the one de-
scribed by the judge, Miller again asked about the increase and Vaughn
replied that he had received notice that the petition had been withdrawn
but was waiting for notice that the charges had been withdrawn.
In sec. IV of his decision, the judge incorrectly stated the date union
discussions began among the employees; they began 23 June 1981 . In sec.
1V,C, he incorrectly identifies Ted Miller as the principal union spokes-
man; it was Tim Miller.
653
hours and working conditions." However, not only
did the letter postdate the announcement by 3
weeks but, captioned "Re: Cost of Living Raise," it
was specifically in response to the Respondent's
hesitation to provide the semiannual wage increase
consistent with - past practice. In these circum-
stances, the general statement contained in the
Union's statement cannot serve as justification for
the Respondent's change in vacation policy. We,
therefore, adopt the judge's finding that the Re-
spondent's action violated Section 8(a)(1).3
2. The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by its discriminatory assignment of employee Tim
Miller to an isolated work station on 7 July 1981.4
He based this finding on the credited and unrefuted
testimony of Tim Miller5 that when welding lead-
man Kenneth Ingalls gave him this assignment he
told Miller that Plant Foreman Donald Trometer
had directed the assignment so that Miller would
not be accessible to his fellow employees to discuss
the Union.
In agreeing with the judge that the assignment
was unlawful, we rely additionally on the highly
suspicious timing of the assignment to fmd that it
was motivated by Miller's union ' activity. Although
the four welding employees were frequently inter-
changed among the four welding stations (and the
other three welding employees had worked at the
isolated southeast location), 7 July was the first
time in his 5 months' employment with the Re-
spondent that Miller had been assigned there. This
assignment occurred approximately 1 workweek
after the Respondent learned of Miller's union ac-
tivity. Furthermore , Miller remained at the south-
east location from 7 July until late' August, the ap-
proximate time that the petition to withdraw from
the Union was submitted, despite the frequent
interchanges that the other welding employees
8 In its exceptions, the Respondent renews its objections to the timeli-
ness of the amendment to the complaint, that alleges that the Respondent
unlawfully changed its vacation policy in order to discourage its employ-
ees from supporting the Union . This allegation is closely related to sever-
al other allegations , including the allegation that the Respondent unlaw-
fully solicited and promised to remedy grievances; therefore , the amend-
ment on the initial day of the hearing was timely. See, e.g., Clinton Corn
Processing Co., 253 NLRB 622 fn. 1 (1980).
4 The judge erroneously found that Miller was assigned to the welding
station known as "the hole" at the northwest comer of the building. Ac-
cording to Miller's uncontradicted testimony , he was assigned to the
welding station located in the southeast comer of the plant. There is un-
disputed testimony that this location was isolated . Ingalls, who made the
welding assignments , testified that it was "the quietest" of the four weld-
ing stations. Miller testified that the southeast location was located the
greatest distance from the other three welding stations . It is, therefore,
evident that Miller was assigned to an isolated location and the judge's
error in naming the location in no way , affects his conclusion that the as-
signment was discriminatorily motivated.
6 The judge incorrectly described this as Ted Miller's testimony; it was
that of Tim Miller, the employee who was reassigned.
282 NLRB No. 93
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made between locations during this period. The
Respondent failed to demonstrate that it had a busi-
ness justification for making this assignment at this
particular time.
In addition, we rely on Miller's testimony re-
garding Ingalls' statement . We need not, however,
adopt the judge's rationale for admitting the state-
ment, i.e., 'that Ingalls occupied a "semisupervi-
sory" position,6 and, therefore, his statement was
admissible as an admission by an agent of a party-
opponent under Rule 801(d)(2) of the Federal
Rules of Evidence (though Ingalls' statement was
made in apparent accordance with the authority
delegated to him by the Respondent). We note that
the Board is not required to follow the strict rules
of evidence applicable to the Federal courts, except
to the extent practicable.? Moreover, since neither
Ingalls nor Trometer, both of whom testified at the
hearing, denied that Ingalls had explained the as-
signment to Miller in this manner, the judge prop-
erly relied on Miller's testimony.
In sum, considering the timing and duration of
Miller's assignment to the isolated southeast loca-
tion, the reason given for the assignment, and the
Respondent 's failure to demonstrate a business jus-
tification for the assignment at that particular time,
we agree with the judge that the 7 July assignment
was motivated by Miller's union activities, and,
therefore, was in , violation of Section 8(a)(3) and
(1) of the Act.
3. The judge found that the Respondent violated
Section 8(a)(1) by interrogating employees Tim
Miller and Ted Miller. Subsequent to his decision,
the Board returned to an examination of the totali-
ty of all pertinent circumstances in determining
whether an interrogation reasonably tended to re-
strain, coerce, or interfere with rights guaranteed
by the Act.8 In these cases, the Board made clear
its purpose "was to signal disapproval of a per se
approach to allegedly unlawful interrogations in
general, and to return to a case-by-case analysis
which takes into account the circumstances sur-
rounding an alleged interrogation and does not
ignore the reality of the workplace."9 We have ex-
amined the interrogations of Tim Miller and Ted
Miller and adopt the judge's findings that the inter-
rogations were unlawful.
e No party contended that Ingalls was a statutory supervisor or pre-
sented any evidence with a view toward supporting such a contention. In
these circumstances , we conclude that Ingalls is an employee despite the
judge's comments suggesting otherwise.
7 See, e.g., Teamsters Local 769 v. NLRB, 532 F.2d 1385 (D.C. Cit.
1976); NLRB v. Addison Shoe Corp., 450 F.2d 115 (8th Cir. 1971); NLRB
Y. Operating Engineers Local 12, 413 F.2d 705 (9th Cit . 1969).
8 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Rossmore House,
269 NLRB 1176 (1984), enfd . sub nom . Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
9 Sunnyvale Medical Clinic, supra.
Thus, when Thomas Vaughn questioned Tim
Miller, an acknowledged open union adherent, on
25 June 1981, he asked to see the union authoriza-
tion cards so he could find out who was having
problems and what the Union's business agent
could do that he could not. When Miller com-
plained that a new welder was being paid more
than he, in response to Vaughn's inquiry "what the
hell was the matter," Vaughn also told him he
would admonish the responsible supervisor. Exam-
ining the totality of the circumstances, we fmd the
interrogation coercive and unlawful. Not only did
the questioning concern the union activity of other
employees but Vaughn's remarks solicited griev-
ances, also found to be in violation of Section
8(a)(1). Questioning with this pervasive a range and
accompanied by other unlawful activity is clearly
not the noncoercive questioning of union adherents
contemplated in Rossmore House.
In another incident of interrogation in October,
Vaughn stated to Tim Miller that Miller was not
"happy here ... I was told you're starting this
Union crap up again." Vaughn then told Miller he
had had enough of the Union, that he thought it
had been all over with, and that he thought Miller
should find another job. Vaughn not only ques-
tioned Miller's union activity, but expressed dis-
pleasure with it and even suggested that Miller
should look elsewhere for employment. Further, as
the judge properly found, Vaughn's statements also
unlawfully created the impression of surveillance.
For these reasons, the remarks by Vaughn violated
Section 8(a)(1).
Finally, we adopt the judge's findings that Plant
Foreman Trometer's interrogations of Ted Miller
were unlawful. Trometer not only asked Miller if
he had signed a union card or been a member of a
union before, he also said that if the Union got in
the employees would probably lose the liberal cof-
feebreak policy and that "there would be a lot of
things changed," a threat of loss of benefits in vio-
lation of Section 8(a)(1).1° In a later incident in
July, Trometer further asked Miller where the
Union was holding its meetings. Because the first
inquiry was accompanied by an unlawful threat
and the second concerned a matter in which the
Respondent had no legitimate interest, we adopt
the judge's finding that the Respondent violated
Section 8(a)(1) by interrogating Ted Miller.
'o The judge acknowledged that the complaint included an allegation
of an unlawful threat of loss of benefits, and, in his discussion of his rec-
ommendation for a bargaining order, he included the threat of loss of
benefits as one of the Respondent's numerous unfair labor practices, but
he failed to make a specific finding to that effect. As the foregoing cred-
ited evidence establishes that the Respondent asserted it would reduce
benefits if the Union won, we find that the Respondent threatened a loss
of benefits in violation of Sec. 8(a)(1).
FIMCO, INC.
4. We agree with the judge's finding that the Re-
spondents unfair labor practices were sufficiently
widespread and serious under NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969), to warrant the issu-
ance of a bargaining order. In reaching this conclu-
sion, we 'examined the severity of the violations
committed and the present effects of the coercive
unfair labor practices which would prevent the
holding of a fair election."'
Many of the violations present here were of a
very serious nature. These include the discharge of
Ted Miller, the assignment of Tim Miller to an iso-
lated work station, the remedying of a grievance
solicited by the Respondent, the grant of a substan-
tial benefit of an overall wage increase, and the, en-
couragement and assistance of the employees in
their withdrawal from the Union. As for the dis-
charge for a discriminatory motive, the courts and
the Board have frequently described this as miscon-
duct going "to the very heart of the Act." 2 A dis-
criminatory reassignment similarly signals the em-
ployees that they will be adversely affected if they
engage in concerted activity and, accordingly, has
been recognized as having a serious and longlasting
effect.'3
Also serious is the Respondent's intensified inter-
est in the employees' demands after the union ac-
tivity began-by soliciting grievances, including
the revival of a rare practice of holding employee
meetings,, and, more importantly, by expressing an
interest in resolving the grievances , most particu-
larly, by changing the vacation policy in response
to an employee's complaint. The Board has else-
where found similar conduct pernicious where ^ "de-
signed to convince the employees that their de-
mands [would] be met through direct dealing with
Respondent," thereby 'eliminating in an unlawful
manner the reason for a union's presence.14 The
overall wage increase, made in response to the em-
ployees' abandonment of the union effort and ap-
parently on the initiative of employee inquiries, is
similarly pernicious . Wage increases in particular
have been recognized as having a potential long-
lasting effect, not only because of their, significance
to the employees, but also because the Board's tra-
11 Quality Aluminum Products, 278 NLRB (1986). See NLRB v Davis,
W F.2d 350, 354 (9th Cir. 1981), in which the court stated that Gissel
instructed the Board to consider the extensiveness of the unfair labor
practices, their past effect on election conditions, the likelihood of their
recurrence, and the probability that a fair election can be held.
18 E.g., Land Printing, 264 NLRB 369, 370 (1982). See also NLRB v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
13 See C & E Stores, 229 NLRB 1250 (1977), enfd. 611 F.2d 654 (6th
Ca. 1979).
14 Teledyne Dental Products Corp., 210 NLRB 435 (1974).
655
ditional remedies' do not require the respondent to
withdraw the benefits from the employees.15
The Respondent's action of encouraging and as-
sisting the employees ' withdrawal from their union
effort, bolstered by the Respondent's rewarding the
withdrawal with the wage increase and a party;
also demonstrates the, Respondent's determination
to undermine the Union by unlawful means. It too
should be considered misconduct of a serious
nature, with probable lingering effects.
Further, the particular circumstances of the
unfair labor practices are likely to exacerbate their
lingering effects. These circumstances include the
small size of the unit (27 employees) and the result-
ing likely effect of the rapid and thorough dissemi-
nation of the coercive actions. This is verified by
the undisputed testimony of the Respondent's presi-
dent Vaughn that "we can't keep secrets in our
place and if somebody starts talking about some-
thing it goes around real fast." That the Respond-
ent's president was a main actor in most of the inci-
dents of interference with the Section 7 rights of
the employees also attests to the strength of the lin-
gering'effects of the unfair labor practices.16
In addition, the Respondent's immediate and per-
sistent response with unfair labor practices at the
start and at the time of a suspected revival of union
activity reveals a general campaign to destroy em-
' ployee support for the Union not only at the perti-
nent time discussed in this case, but whenever
union activity might be renewed in the future.,
Thus, within the first weeks of union activity be-
ginning 23 June, the Respondent engaged in a bar-
rage of misconduct: an unlawful assignment, solicit-
ing and promising to remedy grievances, granting
the benefit of a changed vacation policy, interroga-
tions, and threatening the loss of a liberal coffee-
break policy and other benefits. The Respondent
persisted, in this unlawful activity by its encourag-
ing and aiding the employees in their withdrawal
from the Union on 18 August and by rewarding
the employees for this action by the 21 August
party and the overall wage increase early in Octo-
ber. Further interrogation and the creation of the
impression of surveillance followed the Respond-
ent's suspicion of renewed union activity in early
October. Later in October, when four employees
contacted the Union about a possible grievance or
unfair labor practice charge, ° the 'Respondent
promptly discharged Ted Miller, one of the four.
Given the swiftness, persistence, and ' ,repetition
with which the Respondent reacted to the organi-
11 Red Barn System, 224 NLRB 1586 (1976), enfd. 574 F .2d 315 (6th
Cir. 1976).
16 Martin City Ready Mix, 264 NLRB 450, 452 (1982).
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zational efforts of its employees, the likelihood of
the Respondent again engaging in illegal conduct is
clearly present.17
That the Respondent succeeded in its unlawful
campaign is demonstrated by the clear dissipation
of union support following its most vigorous com-
mission of unfair labor practices. Thus, beginning
on 25 June, 16 employees signed union authoriza-
tion cards in a unit conceded to contain 27 employ-
ees. Approximately 6 weeks later, 12 of these same
16 employees, joined by 7 other employees, signed
the petition seeking withdrawal of the representa-
tion petition filed with the Board. This result
amply evinces the effectiveness of the Respondent's
course of conduct.
For all the above reasons, we find that the in-
hibitive effects of the unfair labor practices are
likely to persist despite the passage of time." Con-
sequently, we are convinced, given the nature and
extent of the Respondent's misconduct, that tradi-
tional remedies would be unlikely to dissipate the
effects of the Respondent's actions . We, therefore,
find in agreement with the judge that the employ-
ees' sentiment reflected by the valid authorization
cards 19 will be better protected, on balance, by a
bargaining order than by direction of an election.2 o
5. The Respondent contends that a bargaining
order would be inappropriate because all the em-
ployees in the unit did not vote when Local Lodge
1426 assumed all the assets and liabilities of District
Lodge 162. In support of its contention, it cites
Amoco Production Co., 262 NLRB 1240 (1982),
enfd. 721 F.2d 150 (5th Cir. 1983), which defined
due process requirements imposed upon a union
when it changes its organizational affiliation.
The Supreme Court in NLRB v. Financial Insti-
tution Employees, 475 U.S. 192 (1986), however, has
recently held that the Act does not require that
nonmembers be' allowed to vote in affiliation elec-
tions. We, accordingly, reject the Respondent's
contention as without merit. The Respondent pre-
sents no other basis for contending that the Union
did not provide adequate due process safeguards.
To the extent that the Respondent's exceptions
may put into question the continuity of bargaining
17 Id. at 453.
is See United Artists Communications, 280 NLRB 1056 fn. 4 (1986). No
evidence was adduced as to employee turnover.
19 We find it unnecessary to pass on the issue of whether employee
Everett Barclay signed an authorization card before the Union's request
for recognition as it is not essential to proof of the Union's majority
status.
Z EO See NLRB v. Regal Aluminum, 436 F.2d 525 (8th Cir. 1971), where
the Eighth Circuit enforced a bargaining order for similar violations of
Sec. 8(a)(1) (interrogations, polling, impression of surveillance , and prom-
ise and grant of benefits), without the even stronger facts here upon
which the 8(aX3) findings are based. Thus, the facts here similarly dem-
onstrate "that the employer's conduct was pervasive and effectively
interfered with the union's majority status." Id. at 529.
representation, we also find them without merit.
The record amply demonstrates that there has been
no change in the essential identity of the bargaining
representative. District Lodge 162 had consisted of
three locals since approximately 1970. However, by
January 1980, two of the locals had disbanded,
with their remaining employees, assets, and liabil-
ities going to Local 1426. Thus, by this time, Local
1426 became the only constituent local lodge of
District Lodge 162 and the need for the larger or-
ganization was eliminated . In December 1981 the
District Lodge delegates voted to disband the Dis-
trict Lodge. According to the undisputed testimo-
ny of Union Business Representative Richard Stur-
geon, this was because of the duplication of assets
and functions, i.e., there were "two sets of . . . ev-
erything and really it was one and the same." This
was followed the next month by the Local Lodge's
voting to accept all the District's liabilities and
duties. The membership then redrafted the Local's
bylaws, which were approved by secret ballot in
February or March 1982.
As of January 1980, 18 months before the re
quest for bargaining, all officers and delegates of
District Lodge 162 were members of Local Lodge
1426. Sturgeon was the business representative for
District Lodge 162, and he held that same office
with Local Lodge 1426's; his duties included nego-
tiating all labor agreements and handling all arbi-
trations and grievances not settled at the plant
level. The Local's officers elected in December
1981 continued in office following the Local's as-
sumption of the District Lodge's responsibilities in
April 1982. Further, according to unrebutted testi-
mony, even before the District Lodge disbanded, a
local would be assigned to provide representation
services for a plant, although the representation pe-
tition was filed in the name of the District Lodge.
Also, the Union has only one constitution, at the
International level, and it applies to district and
local lodges alike. In addition, the same individuals
were president and vice president of both the Dis-
trict and Local Lodges, respectively, at the, perti-
nent time. These facts amply demonstrate a sub-
stantial continuity in representation2 1 and basically
little beyond a change in name.
21 Moreover, as noted by the judge, the authorization cards did not
specify the particular subdivision of the International Union which em-
ployees were authorizing to bargain on their behalf. Consequently, the
judge correctly found that the intervening dissolution of District Lodge
162 did not disturb the Respondent 's duty to bargain with Local Lodge
1462, the remaining appropriate subdivision of the International with
which to bargain.
FIMCO, INC.
AMENDED CONCLUSIONS OF LAW
The judge's Conclusions of Law shall be modi-
fited as follows.
Substitute the following for Conclusion of Law
3.
"3. By interrogating employees concerning their
union activities and those of other employees;
threatening loss of benefits; soliciting employee
grievances, and promising to remedy employee
grievances; promising and granting benefits and in-
creased pay; encouraging and assisting employees
to circulate an antiunion petition; giving a party
during working hours to celebrate abandonment of
a union effort; and by creating the impression that
employees ' union- activities were under surveil-
lance, the Respondent viollated Section 8(a)(1) of
the Act."
- ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below, and orders that the Re-
spondent, Fimco, Inc., Sioux City, Iowa, its offi-
cers, agents, successors , and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Interfering with, restraining, or coercing its
employees in the ' exercise of the rights guaranteed
in Section 7 of the Act by encouraging and assist-
ing employees to 'circulate an antiunion petition; by
giving time off from work with pay and a party to
celebrate abandonment of a union election effort;
by interrogating employees concerning their union
activities and those ' of other employees; by threat-
ening the loss of benefits; by soliciting employee
grievances, and by promising to remedy employee
grievances; by promising and granting benefits and
increased pay; creating the impression that employ-
ees' union activities were under surveillance; or by
assigning employees to a remote and isolated work
station for the purpose of discouraging membership
in a labor organization."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 ,of the Act gives employees these rights.
657
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge you for engaging in
union activities or otherwise exercising any of the
rights guaranteed by Section 7 of the Act.
WE WILL NOT discourage your membership in
Local Lodge 1426, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization, by assigning you to a
remote work station; interrogating you concerning
your union activities and those of other employees;
threatening the loss of benefits; soliciting griev-
ances from you and promising to remedy those
grievances; promising and granting benefits and in-
creased pay; encouraging and assisting you to cir-
culate an antiunion petition; giving a party during
working hours to celebrate abandonment of a
union ' election effort; or creating the impression
that your activities were under surveillance.
WE WILL NOT in any other manner" interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed , you by Section 7 of the Act.
WE WILL, on request, bargain with Local 1426,
International' Association of Machinists and Aero-
space Workers, AFL-CIO, and put in writing and
sign -any agreement reached on terms and condi-
tions of employment for our employees in the bar-
gaining unit:
All full-time and regular part-time production
and maintenance employees including parts,
shipping, assembly, painting, washer, fabrica-
tion welding department employees and truck
drivers employed by us, at our facility located
at First and Court Streets, Sioux City, Iowa;
excluding office clerical employees, profession-
al employees, sales employees, and guards and
supervisors as defined in the Act, as amended.
WE WILL offer Ted Miller immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any, loss of earnings and
other benefits resulting from his discharge, ' less any
net interim earnings, plus interest.
WE WILL notify Ted Miller that we have re-
moved from our files any reference to his dis-
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge and that the discharge will not be used
against him in any way.
FIMco, INC.
Larry L. Witherell, Esq., for the General Counsel.
Roger J. Miller, Esq. and Dale E. Boch, Esq., of Omaha,
Nebraska, for the Respondent.
Richard D. Sturgeon, of Sioux City, Iowa, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR ., Administrative Law Judge.
This matter was heard in Sioux City , Iowa, on August 2
and 3, 1982 . This proceeding is based on a charge filed
November 20, 1981 , by District 162, International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO. The General Counsel's complaint as amended al-
leges that Respondent Fimco, Inc., of Sioux City, Iowa,
violated Section 8(a)(1), (3 ), and (5) of the National
Labor Relations Act by interrogating employees , threat-
ening loss of benefits, soliciting employee grievances,
promising benefits, engaging in surveillance of employ-
ees, soliciting an antiunion petition , giving a party and
granting wage increases, changing its vacation policy, as-
signing an employee to a remote work station, and dis-
charging an employee because of a union organizational
attempt, and by failing and refusing to recognize and
bargain with the Union.
Briefs were filed by the General Counsel and Re-
spondent. On a review of the entire record in this case
and from my observation of the witnesses and their de-
meanor, I make the following
FINDINGS - OF FACT
1. JURISDICTION
The Respondent is engaged in the manufacture of agri-
cultural spraying equipment at its place of business in
Sioux City, Iowa, it has a direct annual inflow and out-
flow of goods and materials in excess of $50,000, and it
admits that it is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
District 162, International Association of Machinist
and Aerospace Workers, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act. The
overall governing body and organization for the Union is
International Association of Machinists and Aerospace
Workers, (International). The International is then orga-
nized into a number of district lodges throughout the
country. Within the Sioux City , Iowa region District
Lodge 162 served as the constituent unit of the Interna-
tional. Within District Lodge 162 were three respective
constituent local lodges, including Local Lodge 1426,
which was an amalgamated local representing the em-
ployees in about 18 or 19 various plants within the Sioux
City, Iowa area . Subsequently , two of the local lodges
were disbanded and District Lodge No . 162 had only
one constituent local, Local Lodge 1426. The purpose of
the district lodge no longer existed and therefore District
Lodge 162 formally disbanded and ceased to exist on
April 1, 1982. Through appropriate procedures, Local
Lodge 1426 assumed all the assets and liabilities of Dis-
trict Lodge 162, and the International Union approved
its status as successor in interest of District 162. Officers
of Local Lodge 1426 essentially remain the same individ-
uals. Richard Strugeon served as the business representa-
tive for District Lodge 162 since about 1969 and he held
the same office with Local Lodge 1426.
Local Lodge 1426 is engaged in the activity of repre-
senting employees for the purposes of collective bargain-
ing. At the time it assumed the obligations of District
Lodge 162 it had collective-bargaining agreements with
various employers and has, since the change , renewed or
entered into original collective-bargaining agreements
with employers on behalf of its employees . Accordingly,
Local Lodge 1426 is the successor in interest of District
Lodge 162 and is a labor organization within the mean-
ing of Section 2(5) of the Act. Under these circum-
stances, and in view of the fact that the authorization
cards involved herein also designate a parent labor orga-
nization, the International Union , any obligation to bar-
gain with Local Lodge 1426, an affiliate of the IAM and
the former District Lodge 162, is not disturbed by the
dissolution of the intermediary District Lodge 162, see
Cam Industries, 251 NLRB 11 (1980), and Cf. Morse's
Food Mart of New Bedford, 230 NLRB 1092 (1977).
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent is essentially a family owned and
managed enterprise, with Thomas , F. Vaughn serving as
its president; his son, Thomas (Tim) E . Vaughn, its exec-
utive vice president; his son, Terrance J. Vaughn, its
vice president ; his son, Kevin Vaughn , an employee; and
his wife, Betty L. Vaughn, as treasurer . Donald Tro-
meter, a nonrelative, is the plant foreman. In addition to
manufacturing spraying equipment , it also makes pres-
sure-power washers and mixes compounds of motor oils.
At the time of this dispute, the Company also employed
approximately 28 full-time and regular part-time produc-
tion and maintenance employees.
Union activity involving Respondent 's employees
began on June 23, 1981 , after a discussion between em-
ployee Tim Miller and his coworkers . As a result of their
discussion, Tim Miller met with Union Representative
Dick Sturgeon later that same day. On returning to work
the next day, Miller told his coworkers about his meeting
with Sturgeon and on the next evening he obtained ap-
proximately 30 union authorization cards . Sturgeon in-
structed Miller to have the men read them and sign them
in his pressence . On the morning of June 25, 1981, Miller
began distributing the cards and soliciting signatures. In
addition to Miller, 15 other employees executed the
union authorization cards, including 12 who personally
signed in Miller's presence at his request : Arnett Gates,
Larry Hattig, David Higginbotham, Lloyd Kilker,' Ted
Miller, Harold Mills , Richard Morley, Richard Speck,
FIMCO, INC.
Russell Stokely, Fred Thompson, Charles Wilder; Jacob
Wingert. Although Miller did not personally witness the
execution, both Floyd Peres and Kenneth Ingalls testi-
fied that they signed the authorization cards. All cards
were given to Miller. In addition, Everett Barclay testi-
fied to signing a union authorization card a few days
later and personally giving it to Sturgeon , for a total of
16 signed 'cards from a total of 28 employees (the
number taken from the Excelsior list in the representation
petition 18-RC-13062).
At approximately 10:30 a.m. on June 25, 1981, after
Tim Miller had distributed union authorization cards,
Tom Vaughn approached Miller at his work station near
the middle of the production area. Vaughn told Miller to
shut off his machine and then asked Miller if he had been
passing out union cards . Miller answered "yes." Vaughn
responded, "On my time?" Miller explained that he had
been doing it prior to work and during his breaks.
Vaughn then asked to look at the cards to see who
signed them so he could find out who was having prob-
lems and what the problems were. When Miller refused
Vaughn's demand and Vaughn persisted, wanting to
know "what the hell was the matter," Miller explained
that his own problem was about a new welder being
hired at a higher rate of pay than Miller. Vaughn said he
would go back "and give Tim (Vaughn) shit about it."
Vaughn then asked Miller not to turn the cards into the
Union until Monday, June 29, 1981, so that he (Vaughn)
could get the men together and talk to them. Vaughn
admits that he 'was told on June 25, 1981, by employee
Mike Boden that employees were passing out union
cards and that he confronted Miller about the Union
card. Vaughn further testified, "We can't keep secrets in
our place and if somebody starts talking about something
it goes around real fast . So he [Boden] happened to hear
the rumor and came to me about it."
Vaughn also asked Miller where he obtained the union
cards, When Miller told Vaughn the cards were given to
him by Dick Sturgeon, Vaughn asked "what could he do
that I can't do?" Miller stated the employees were going
to find out.
Later that morning Vaughn called a meeting of all the
production employees near the timeclock. He began by
asking "what the hell was going on" and what were the
employees' problems. Several employees brought up
problems and Vaughn said that he would check into
them and get back to the men. Vaughn also stated that
these comments sounded like matters which should be
taken up,by the "grievance committee." In general, how-
ever, the employees had not heard that such a committee
existed.
Miller also inquired how the 'vacation policy was sup-
posed to work. Vaughn responded that the employees
were not to take a vacation in the busiest part of the
year which apparently is November through March. In-
asmuch as Miller started his employment in February
1981, Miller inquired whether he would be able to take
his vacation in February 1982, or if he had to wait until
the summer of 1982. Vaughn then announced that the
employees could take a prorated vacation during the
summer of 1981, instead of having `to wait beyond their
anniversary dates and taking it in the summer of 1982.
659
On the afternoon of June 25, 1981, plant foreman Tro-
meter approached Ted Miller at his work station and
asked Miller if he had signed a union card. Miller re-
sponded, "yes," and there was no further conversation at
that point. Either later that afternoon or the next day,
June 26, Trometer again spoke with Ted Miller, this time
in the breakroom where Miller was getting coffee. Tro-
meter asked Miller if he had ever belonged to a union
before. When Miller indicated that he had belonged to
the Teamsters, Trometer' stated that if the Union pre-
vailed and got in, the employees would probably lose the
liberal coffeebreak policy which was in effect and that
"there would be a lot of things changed."
The next day, June 26, 1981, Tim Miller approached
Foreman Trometer for the purpose of scheduling some
vacation days to accompany the July 4 weekend. Tro-
meter thereupon told Miller then "Tom [Vaughn] messed'
up because ... they had a meeting earlier, and they had
decided that they was going to make everybody work
over their year and then prorate their vacation in the
next following year." Miller testified that he was told on
being hired that he would receive 1 week's paid vacation
but only after completing 1 year of employment.
Later that day, as employee Stokely was using the
water fountain near Miller's work station, Trometer ap-
proached and told Stokely to return to his work station
and then told Miller "you could get in trouble for talking
union on Company time because we know you instigated
this all on Company time." Trometer testified and admit-
ted he had talked to Tim Miller and other employees
about standing around talking and he otherwise did not
refute his words in the latter statement attributed to him.
Tim Miller did take vacation time over, the July 4 holi-
day and when he returned on July 7 his, work station
was involuntarily moved to a remote area known as the
hole' at the northwest corner of the building near the
restrooms. At that time the plant had three other weld-
ing stations that were all near each other at the south
end of the plant. Miller's instruction came from Kenny
Ingalls who told Miller that it was ' at Foreman Tro-
meter's instruction so that Miller would not be so acces-
sible to the others to talk union. Trometer agreed that he
sometimes instructed Ingalls (who apparently served as
lead welder) to move people to the various welding sta-
tions . Trometer did not deny stating the reason for the
move that was attributed to him and Ingalls was not
asked to confirm or deny his statement in this regard.
Although the employee witnesses indicated that previ-
ously they had not heard anything about a "grievance
committee;" a few days after the June 25 meeting, Re-
spondent ' began holding meetings of an' in-house griev-
ance committee. The meetings were held every Friday
afternoon at 3 p.m. Tim Miller testified that he was re-
quired to attend a couple of these meetings . Others in at-
tendance would include all the° department heads, Tom
Vaughn, and Office Manager Jim Hardy. During the
meetings at which Tim Miller was in attendance,
Vaughn asked if there were any problems. On one occa-
sion, Miller inquired how the cost-of-living increases
were going to be determined. Employees Ted Miller and
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russ Stokely also attended a couple of grievance meet-
ings in July 1981.
On June 26, 1981, the Union sent a letter to Respond-
ent advising it that a majority of the production and
maintenance employees had designated the Union as
their bargaining representative and further requesting
Respondent to recognize and bargain collectively with
the Union. On July 2, 1981, the Union filed a representa-
tion petition with the Board in Case 18-RC-13062 seek-
ing to represent Respondent 's full-time and regular part-
time production and maintenance employees . Thereafter,
the Respondent and Union entered into an election
agreement whereby the Board would conduct an elec-
tion August 21, 1981.
Ted Miller also testified that on an occasion in July,
Trometer asked him where the Union was holding its
meetings with the employees. Trometer denied this as
well as Miller's earlier testimony that he had asked
Miller about signing a union card . The election agree-
ment was approved by the Regional Director for the
Board on July 23, 1981. On August 17, 1981, the Union
filed an unfair labor practice charge with the Board in
Case 18-CA-7383 alleging Respondent was engaging in
certain illegal acts . Also on August 17, 1981, a telegram
issued from the Regional Director postponing the elec-
tion set for August 21, inasmuch as the charge blocked
further processing of the union petition.
During the days prior to August 18, 1981 , personal
conflicts began to develop between the employees over
support for the Union and the pending election. On that
day, employees Ingalls and Speck approached Tim
Miller and asked if he would talk to Vaughn "about this
whole Union thing." Miller said he would, but not alone.
Ingalls then went to see Vaughn and then told Miller to
"go ahead and get [his]. guys together and go to the
center office." Miller told the various employees there
was going to be a meeting on the entire situation involv-
ing the Union.
After the employees entered the center office area
where both Tom and Tim Vaughn were already present,
Tom asked how they could go about resolving the union
matter. Tim Miller explained his position-how he felt
about the union problem, and his view that things were
at a standstill, and indicated he would have "to see who
was and wasn't still for it-the Union." Vaughn then said
he and his son would leave the room so that the employ-
ees could decide, what they wanted to do. The Vaughns
left, the employees discussed the matter, and voted
whether they wanted to continue their interest in the
Union. When the Vaughns returned, they were told the
employees would discontinue their union activities.
Vaughn then asked how to go about affecting that deci-
sion. Miller responded he would call Sturgeon during his
lunchtime and meet with Sturgeon later that night after
work. Miller indicated to Vaughn he was "pretty sure
that when Sturgeon finds out the way everyone feels
that he will back off and help finish everything that has
been started as far as stopping the charges ' against the
Company." Vaughn told Miller, "I want it taken care of
now. No one will be docked for anytime that is lost. See
if you can get ahold of him (Sturgeon), and get this-get
this straightened out now . . . because I want to get it
taken care of." Miller was unable to reach Sturgeon by
telephone as directed and advised Vaughn that he would
try again during his 3 p.m. break. Vaughn told Miller to
try sooner.
Miller then advised Vaughn that he was going to have
to have something drawn up in order for the men to sign
so that Sturgeon did not have to just take his word for
it. Vaughn indicated that they could help Miller with the
document and he thereupon transcribed what they felt
should be contained in such a document. Tim Vaughn
then had the document typed up on plain paper for
Miller to circulate to the employees. Miller told Tim
Vaughn that he would talk to the, men during the 3 p.m.
break. However, Tim Vaughn advised Miller they
wanted it taken care of "now" and Miller then circulated
among the employees securing a number of signatures
from the employees.
After Miller contacted Sturgeon shortly before 3:30
p.m., Vaughn directed that employee Bob Conley ac-
company Miller to the union hall. Employee Larry
Hattig also drove with them . Miller gave Sturgeon the
petition and then returned to work. A little later in the
shift, Tim Vaughn asked Miller if everything had been
taken care of and Miller advised him that Sturgeon "told
me that he'd kill it." Vaughn then asked Miller how he
would feel about having ,a little party that Friday in
order to smooth the bad feelings between the men.
Vaughn said, they could quit working at 1 p.m., have
lunch and refreshments, and be paid for the rest of the
afternoon. The party was held on August 21, 1981, with
food, soft drinks, and, beer. The employees were not re-
quired to punch out and were, in fact, paid for the after-
noon.
Approximately 2 weeks after the August 18 meeting
and the petition, Tim Miller went to see Tom Vaughn to
inform him the men were, upset over Respondent's fail-
ure to give them a raise they felt they had coming.
Vaughn told Miller he would discuss the matter after he
"received official notice that the Union had been
dropped." On September 3, 1981, the Regional Director
for the Board issued an Order Vacating Stipulation for
Certification Upon Consent Election and Approving
Withdrawal of Petition in Case 18-RC-13062.Thereafter,
on September 15, the Regional Director, by letter, ap-
proved the withdrawal of the charge in Case 18-CA-
7383. After Respondent received the above-described no-
tices from the Regional Director, Vaughn announced to
certain employees attending a grievance meeting (includ-
ing Tim Miller) that the employees would be receiving a
25-cent-per-hour increase effective October 1, 1981.
Shortly thereafter, Respondent implemented the increase.
This increase was in addition to a cost-of-living increase
,given after July 1981, which cost-of-living adjustment
had been historically and consistently given by Respond-
ent every January and July.
During the first part of October 1981, Tim Miller was
called to Tom Vaughn's office. Vaughn began the con-
versation by telling Miller that he (Miller) was not
"happy here." Miller said he was and Vaughn replied,
"No, you're not. I was told you're starting this Union
crap again." Vaughn said he had "enough of this shit"
FIMCO, INC. 661
about the Union, and he thought that it was all over and
done with . Vaughn said he thought Miller , should find
another job and offered to help Miller with time off for
applications and interviewing as well as providing refer-
ences.
Miller had not been in contact with Sturgeon since
August but did so along with employees Ted Miller,
Dick Morley, Everett Barclay , and Arnie Gates in mid-
October over a problem which arose between employee
Arnie Gates and Foreman Trometer . Later that same
week, on Thursday, October 29 , 1981, Tim Miller , Gates,
and Morley met with Vaughn over the problem. It was
brought out that the employees had been to see Sturgeon
and had talked about filing an unfair labor practice
charge. - '
Later that same day, at 3 or 3:30 p .m., Foreman Tro-
meter told Ted Miller, who worked in the paint shop,
that he was wanted by Tom Vaughn . Vaughn then asked
why Miller had applied for employment at another com-
pany and why Miller had indicated on his application
that Respondent was a "former , employer." Vaughn also
accused Miller of calling in sick on the day he filled out
the application.
Vaughn then advised Miller that he was being dis-
charged because it was the Employer 's policy to dis-
charge any employee who lied on an application to get
another job. Vaughn asked why Miller had filled out the
application and Miller replied he was looking for work
closer to home . Vaughn then said that because Miller
wanted the other job so badly , Vaughn was going to do
all he could to ensure that Miller obtained the job and
that he would complete the reference form sent by the
company and advised them that , Miller was a "good em-
ployee and that Respondent had no complaints against
[his] work." Miller was 'given his final paycheck which
already had been prepared and, in addition, he was given
another , check representing an additional -40 hours of
work and a check representing the amount of sick leave
which he had not used during 1981.
Miller was not told that he was a marginal employee
by Respondent ; ' however , on direct examination by Re-
spondent's counsel, Vaughn testified that "I terminated
him because he lied to me .- One, he was a marginal em-
plloyee and I had an opportunity to get rid of him."
When asked what the opportunity was, Vaughn testified,
"He had applied for another job . „ . saying he was a
former employee, l and I figured I'd help him get a job
up there ' and in doing so I'd keep him off unemploy-
ment." Vaughn returned the reference questionnaire,indi-
cating that Miller was a "good" employee in the 'four
questioned areas, In addition, Vaughn indicated that
Miller was "laid off due to a reduction in plant employ-
ees" and noted "he took his job very seriously." Last,
when asked on the questionnaire if Respondent would
re-employ Miller, Vaughn checked "yes." It also was es-
tablishedthat Tom Vaughn, as president of Respondent,
had not participated in a discharge or termination of any
employee in the 4 or 5 years prior to October 29, 1981.
1 It is noted that that company's application form did not bave a place
for any "present position" and that Miller listed Respondent under the
heading "Former Employer-most recent "
Likewise, he has not participated in the, termination of
any employee that has occurred after that date.
After his discharge Ted Miller pursued an unemploy-
ment claim which-the Company did not contest or chal-
lenge. It also was shown that as of October 29, 1981, Re-
spondent had' two employees employed in positions ' as
painters-Ted Miller and Charlie Wilder. On July 4,
1981, Wilder broke his leg and remained off the job until
almost ' 1982. Also, Miller had requested and received a
pay raise of $7 per week (as a clothing allowance) from
Vaughn shortly before his discharge. This increase was
in addition to the October 1, 1981 raise. Otherwise, it
was- shown that employees earn and receive 1 hour of
paid leave for each full week that-they work. According-
ly, in a -typical year an employee will earn 52 hours of
paid leave which he may take for any reason-personal
business, or illness. In the case of Ted Miller, he had
used 3 days of leave since being hired during the first
part of January 1981. At the end of the year the employ-
ee usually was given a check covering, the number of
leave hours the employee had accrued and not used. The
leave goes by the generic term of "sick leave," although,
it is utilized by employees for sickness or personal busi-
ness (so long as they have the hours built up to use).
Miller asserts that when he called in he told 'Foreman
Trometer that he had personal ' business to take care of.
Trometer -recalled that Miller called in sick on a
Monday, however, he did not make any notation to that
effect on Miller's timecard until later that week on
Thursday, when he normally picks up timecards. Tro-
meter testified that he felt Ted Miller was slow and lazy,
and he bad 'spoken to him about standing around talking
and not getting enough work done. Although Trometer
had the authority to fire, he did not do so with Miller
and did not recommend to the Vaughns that he be dis-
charged, although he did talk to them about Miller.
IV. DISCUSSION
The issues in this case arise from the events surround-
ing an attempt by a group of employees to pursue union-
affiliation. The Respondent reacted promptly and defen-
sively, however, as it is lacking sophistication in, union-
management matters, the manner in which it reacted
gave rise to alleged incidents of unfair labor practices in-
cluding interrogation, solicitation of grievances, the
promising of benefits, and, related charges. The employ-
ees correspondingly reacted by, withdrawing their orga-
nizational attempt under a background which included
alleged instances of actions on Respondent's part that
were designed to discourage the employees from engag-
ing in further union activities., Finally, events occurred
which indicated an apparent resurgence of union activi-
ties and this allegedly resulted in the reactive discharge
of an employee. As,a result of Respondent's alleged ac-
tions, the General Counsel contends that it should be
found to have violated Section 8(a)(1), (3), and (5) of the
Act and that, in view of the unlawful conduct, Respond-
ent should be ordered to recognize and bargain with the
Union.
As noted above, union discussions among the employ-
ees began on July 23, 1981. The next day, Tini Miller
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed his meeting with a union representative with
fellow employees and the following morning, June 25,
1981 , numerous union authorization cards were distribut-
ed and signed . Respondent's president, Tom Vaughn, ad-
mitted he was informed about the union cards by another
employee . Moreover, the plant is small in size and one of
Vaughn's sons is a regular employee in - the production
area, and as acknowledged by Tom Vaughn "we can't
keep secrets ... if somebody starts talking about some-
thing it goes around real fast." Accordingly, it is appar-
ent that the Respondent had actual knowledge of union
activity on the morning of June 25, 1981. Furthermore,
Vaughn testified that he had "just heard" Tim Miller
was the one behind this. It further appears that Respond-
ent also had suspicions about the union activities by
Tim's brother, Ted Miller.
A. Interrogation, Solicitation of Grievance& and
Related Allegations
I credit Tim Miller's testimony that on the morning of
June 25 Tom Vaughn asked him if he was passing out
Union cards and engaged in a conversation regarding
employee problems. Vaughn denies the former part of
the conversation, however, he admits that he was told
that employees had union cards and that Miller was the
one behind it, and I infer that the card inquiry was a log-
ical and likely entry into the conversation. I also credit
Miller's testimony that in early October he was 'ques-
tioned by Vaughn about not being "happy" at work and
"starting this Union crap again" and was told that
Vaughn "knew" Miller was again involved. Ted Miller
also gave credible testimony that Trometer asked him if
he had signed an authorization card, asked him about
prior union , membership, and asked the whereabouts of
the union meetings . Accordingly, I find that the General
Counsel has established that Respondent unlawfully in-
terrogated employees Ted Miller and Tim Miller as al-
leged in paragraphs 5(a), (d), (e), and (1) of the com-
plaint.
I further credit the employees' testimony that Tom
Vaughn asked Tim Miller alone and all employees at a
meeting near the timeclock what their problems were
and he then promised benefits and to act on their com-
plaints. It also is shown that in response to an inquiry on
vacation policy Tom Vaughn announced that employees
could begin to take prorated vacation time during the
summer of 1981 . This was a change from Respondent's
past practice of requiring employees to have worked
over a year before participation in earned vacations., Al-
though Respondent attempted to show that it had a past
regular policy of responding to employee problems
through a grievance committee and regular meetings at
the timeclock, it appears that such events were rare and
remote in time. Accordingly, I conclude that Respondent
resurrected the grievance committee in response to the
union organizational attempt and during July solicited
grievances and promised remedies as alleged in para-
graphs 5(b), (c), (g), and (n) of the complaint.
The record also shows that Tim Miller was moved to
a remote work station when he returned from vacation
on July 7. Although Respondent did show that such as-
signments were not uncommon occurrences in the shop
and that the conditions at the station otherwise were not
onerous, it did not ,refute Ted Miller's testimony that,
when he was being moved, he was told by Ingalls that
Foreman Trometer had ordered the move so that Miller
would not be so accessible to the other guys to talk
union . At the hearing Respondent objected to the hear-
say nature of the statement; however, I declined to strike
it. On brief, Respondent did not respond to my invitation
for renewal of its motion. Accordingly, and because of
Ingalls' semisupervisory position, 2 which provides a ra-
tionale for admissibility under Rule 801(d)(2) of the Fed-
eral Rules of Evidence , I credit Miller's testimony and
find that the change to an isolated work station was not
motivated by legitimate business reasons and therefore
was unlawful as alleged in paragraph 6(a) of the com-
plaint.
As indicated above, Tim Miller and the employees rec-
ognized that a divisive effect on their personal relation-
ships had resulted from the developing conflicts over the
pending election to choose or not choose union represen-
tation. After meeting together, they chose to resolve the
matter by seeking withdrawal of their petition seeking
union recognition . Although there is no indication that
the. Respondent initially solicited or instigated the peti-
tion, I conclude that the employees' action was the re-
sulting consequence of the Respondent 's illegal behavior
which had the effect of interfering with and discouraging
union activities as noted in the charges discussed above.
Once the employees brought the possibility of resolving
the union "thing" to Respondent's attention, Respondent
did not maintain a neutral position. Vaughn initially stim-
ulated the discussion by inquiring of the employees how
the union matter could be resolved. Although he left the
room so employees could have further private discus-
sions, he provided worktime for the meeting and then as-
sisted in the drafting and typing of the petition. More-
over, Respondent encouraged employees to solicit and
sign the petition during worktime and provided more as-
sistance and time off in order to get the petition finalized
and delivered immediately to the Union. Under these cir-
cumstances, Respondent did more than merely let the
employees exercise their Section 7 rights. See Texaco,
Inc., 264 NLRB 1132 (1982), and I conclude that Re-
spondent actively, effectively, and illegally participated
in the process of furthering employee withdrawal from
the union election as alleged in paragraph 5(h) of the
complaint.
Shortly after the petition was delivered and Vaughn
learned that the Union would go along with it, he pro-
posed a party for the employees. Although Respondent
contends the party, held 2 days later on August 21, 1981,
with free food during working hours, with full pay, was
given for legitimate business reasons to smooth out any
bad feelings between the men and thus promote produc-
tivity and harmonious operations, the party clearly was a
reward for the employees' actions in repudiating the
Union before an election was held. Based on the timing
of the party immediately after Vaughn learned of the
2 Ingalls identified his present position as "welding supervision" and he
indicated that on August 18, 1981 , one welder came to him with a con-
cern because Ingalls was "his immediate supervisor." .
FIMCO, INC.
Union's acquiescence in the petition,- -I infer- "that-,R`e'-
spondent's motivation was likely to have been construed
by the employees to be an expression of approval of the
Union's defeat by the employer and that it also conveyed
a promise of future reward for continuing to reject union
organization . Accordingly, I find that the -General Coun-
sel has established that Respondent unlawfully 'rewarded
employees in order to discourage union activities as al-
leged in paragraph 5(h) of the complaint.
I credit Tim Miller's testimony that in early September
1981 he spoke with Vaughn about a raise in pay the men
expected and was told that Vaughn would discuss it after
he "received official notice that the Union had been
dropped." The alleged reasons for the expectations were
not established during presentation of the General Coun-
sel's direct case and as they apparently were the antici-
pated support for paragraph 5(i) of the complaint. I find
that the General Counsel has not met his burden of
proof, and I will recommend that the charge be dis-
missed . Otherwise, however, the allegations related to
the charge in paragraph 5(k) -of the complaint are sup-
ported by Vaughn's subsequent announcement at a griev-
ance meeting , after Respondent- received a notice from
the Regional Director that all, employee's would receive
a 25-cent an, hour increase. The raise was implemented
on October , 1982, and was unrelated to the usual cost-
of-living increase of January and July. The only asserted
reason for the raise was "to get our scale up a little
higher than we had." I find that Vaughn related his issu-
ance of the general raise to both the September 3, 1981
Order Vacating Stipulation for Certification Upon Con-
sent Election, and Approving Withdrawal of Petition in
Case 18-RC-13062, and the Regional Director's letter, of
September 15 approved the withdrawal of the charge in
Case 18-CA-7383. Accordingly, I infer that Respond-
ent's motive was to reward the employees for their aban-
donment of the. Union and, correspondingly, to discour-
age them from engaging in future union activities. Ac-
cordingly, I find that the General Counsel has estab-
lished that Respondent acted unlawfully as alleged in
paragraph 5(k)'of the complaint.
I credit Tim Miller's testimony that Vaughn called
him to Vaughn's office and, in the course of a conversa-
tion alleging that Miller was not happy at work, said, "I
was told you're starting this Union crap up again." This
occurred shortly after some of the employees sat with
Miller at lunchtime, rather than at the table where they
sometimes play cards with ;Foreman Trometer. In view
of the past events, I find that Miller reasonably could be-
lieve that his every action was subject to Respondent's
unlawful surveillance as alleged in paragraph 5(1) of the
complaint. Although paragraph 5(f) 'of the complaint also
alleges acts of surveillance by Respondent during July
and August 1981, the record otherwise lacks specific evi-
dence in this respect and inasmuch as the General Coun-
sel's brief does not specifically point out any evidence
that would support this charge, it will be recommended
that it be dismissed.
B. Discharge of Ted Miller
Respondent argues that it cannot be charged with an-
tiunion motivation regarding Ted Miller because he en-
663
gaged-,hr no' unions activities beyond signing a union card
and, in fact, subsequently, had indicated he was against
the Union. The General Counsel has shown, however,
that Ted Miller was a former union member and was sus-
pected of having union sympathies and, as found above,
he was the recipient of interrogation and other illegal
practices by Respondent. Moreover, he was known to be
the brother of the principal union activist, Tim Miller
and, just a few weeks prior to the time of Ted Miller's
discharge, Tim Miller was accused by Respondent's
president of "starting this Union crap again." Under
these circumstances, I conclude that the General Counsel
has met his initial burden in a case of this nature of pre-
senting a prima facie showing sufficient to support an in-
ference that the employee's, union activities were the mo-
tivating factor in Respondent's decision to discharge or
discipline the involved employee. Accordingly, the testi-
mony will be discussed and the record evaluated in keep-
ing with the criteria set forth in Wright Line, 251 NLRB
1083 (1980), and Castle Instant Maintenance/Maid, 256
NLRB 130 (1981), to consider Respondent's defense and,
in the light thereof, whether the General Counsel has
carried his overall burden.
Respondent further argues that Miller was discharged
for cause and that the Company would have terminated
him regardless of whether he engaged in any protected
conduct.. The "cause" shown by Respondent' is that
Miller "lied" by indicating on an application form to an-
other employer that he was a "former" employee of the
Respondent and also by calling in on "sick" leave on the
day he applied for the 'other job. Respondent's president,
Vaughn, further testified, however, that in addition to
the "lies," Miller "was a marginal employee and I had an
opportunity to get rid of him." Although some reasons,
principally slowness, were given regarding why Miller
was considered "marginal," it is also shown, that Miller
had just received a new $7 weekly clothing allowance,
and he was the only painter employed at that particular
time.
The General Counsel has shown that in addition to
Vaughn's expression in early October of a belief that Ted
Miller's brother was starting the Union again (expressed
in terms that imply antiunion animosity), Vaughn also
suggested that Tim Miller should find, another job. Also,
both Millers visited the union hall in late October, and
on October 29, 1981, Tim Miller met with Vaughn over
an employee's problem and referred to having seen the
union representative. Ted Miller was discharged later
that same day ' and I infer from the timing and the se-
quence of events noted' above, as well as the fact that
Vaughn uncharacteristically made the actual discharge
himself, that Vaughn's decision to terminate Miller for
"lying was not the controlling `reason. I am, persuaded
that Miller, who was then the only painter available for
work, would not have been charged with "lying" based
on such a shallow rationale.3 I find Respondent's reason
8 Miller's actual indication on,his application was that Respondent was
his last employer and there was no place for "present" employer and, in
addition, Respondent's "sick" leave was the same as personal leave and
apparently referred 'to interchangeably and thus not a deceptive descrip-
Continued
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the discharge to be shifting , inconsistent, and without
basis or rationale , and I conclude that the preponderance
of the evidence shows that Ted Miller was discharged
because of his suspected union activities , the union ac-
tivities of his brother, Tim Miller, the Employer's union
animosity, and, its belief that the union activities were
being resurrected on October 29, 1981, and I conclude
that Ted Miller was discharged in violation of Section
8(a)(3) of the Act as alleged.
C. Bargaining Order
As set forth above, on June 25, 1981, 16 employees (of
28 on the Excelsior list), executed cards4 authorizing the
Union to represent them for purposes of collective bar-
gaining with Respondent . Respondent 's above-found
unfair labor practices commenced on June 25 , 1981, im-
mediately upon learning of the union activity. The
demand for recognition and bargaining was made - there-
after by the Union on June 26, 1981.
In light of the unfair labor practices alleged and con-
firmed in this proceeding, the General Counsel requests
this administrative court to issue an order directing Re-
spondent to recognize and bargain with the Union as the
exclusive bargaining representative of Respondent's em-
ployees, citing NLRB v, Gissel Packing Co., 395 U.S. 575
(1969); Chromalloy Mining, 238 NLRB 688 (1970), enfd.
620 F.2d 1120 (5th Cir. 1980); Ultra-Sonic De Burring,
Inc., 233 , NLRB ,1060 (1970), enfd. 593 F.2d 123 (9th Cir.
1979); Walgreen Co., 206 NLRB 124 (1973), enfd. 509
F.2d 1014 (7th Cir. 1975); Groendyke Transport, 204
NLRB 96 (1973), enfd . 498 F.2d 17 (5th Cir. 1974);
Regal Aluminum, 179 NLRB 431 (1969), enfd. 436 F.2d
525 (8th Cir. 1971); Ann Lee Sportswear, 220 NLRB 982
(1975), enfd. 543 F.2d 739 (10th Cir. 1976). Respondent
contends, however, that a fair election can be insured
through traditional Board remedies and that a bargaining
Order is not an appropriate remedy under the circum-
stances of this case, citing in particular, 7-Eleven Food
Store, 257 NLRB 108 (1981).
The record herein shows that Respondent has engaged
in numerous and pervasive unfair labor practices includ-
ing interrogations; solicitation of grievances; promises to
adjust such grievances; threats of loss of benefits; un-
itwide granting of benefits; ' creating the impression of
surveillance; rewarding employees for repudiating the
Union with a party and unitwide pay raises; and dis-
tion. Moreover, I credit Miller's testimony that he told Trometer that he
was taking personal leave inasmuch as Trometer 's written notation of the
occurrence was not made until 4 days later and , as noted , the terms were
used interchangeably.
4 Respondent questions the authenticity of eight of the cards admitted
into evidence and further asserts that Tim Miller made misrepresentations
in obtaining signatures by stating that the cards would be used solely for
the' purpose of obtaining an election . I find that the card itself unambig-
uously states it authorized the Union to act for collective-bargauvng pur-
poses and that Miller credibly testified that he gave other reasons in addi-
tion to it being for an election . I have also credited Miller's testimony
regarding cards signed in his presence and this is corroborated by the
personal testimony of a representative number of other witnesses. Also,
the signatures of a number of these employees are present on the, with-
drawal petition (G.C. Exh. 28), and further tend to corroborate the au-
thenticity of the card signatures (Exhs. 13-27). Accordingly, I find that
the General Counsel has shown 16 valid authorization cards from the
unit.
charge of the union organizer's brother. These practices
took place in three stages . First, in late June 1981, imme-
diately on learning of the employees' distribution of
union cards, Respondent commenced its unfair labor
practices of interrogations and solicitation of grievances,
etc., clearly supporting the inference that the design
thereof was to undermine the Union's signed-card major-
ity status. Next, after mid-August 1981, the employees
were rewarded with a party and pay raises after they, in
fact, had reacted to the Respondent's practices by repu-
diating the Union and seeking withdrawal of the pending
election . I infer that this indicates the effectiveness and
coercive nature of Respondent 's unlawful conduct as
well as a continued willingness by Respondent to commit
unfair labor practices . In the next stage, starting in Octo-
ber 1981, Respondent reacted to an apparent suspicion of
employee unrest by quickly concluding that the principal
union activist was "starting the Union crap again" and it
followed up with additional illegal acts in the nature of
further interrogation and surveillance which cumulated,
in the illegal and retaliatory discharge of the organizer's
brother.
In Gissel, supra, the Supreme Court established two
categories• of cases in which a bargaining order would be
appropriate . In category 1 are the "exceptional" cases
marked by "outrageous" and "pervasive" unfair labor
practices of such a nature that their coercive effects
cannot be eliminated by the application of traditional
remedies , with the result that a fair and reliable election
cannot, be had. In category 2 are "less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election process." The Court
held that in these cases, when there is a showing that at
one point the Union had a majority, the Board can prop-
erly take into consideration in fashioning a remedy
the extensiveness of an employer's unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order,
then such an order should issue. [395 U.S. at 614']
On reviewing Respondent's attitude and behavior
during the above-described series of events, I conclude
that Respondent has displayed a propensity for engaging
in unrelating antiunion conduct . In effect, Respondent
has had three principal opportunities to respond to dis-
plays of protected concerted activities on the part of its
employees. Although ignorance and inexperience could
be considered to mitigate the coercive nature of Re-
spondent's initial illegal practices , the effectiveness of
these practices in dividing the sympathies of the employ-
ees considered together with the repeated and almost
stubborn nature of Respondent's subsequent misconduct,
makes it evident that there is a strong likelihood that Re-
spondent would engage in recurring misconduct and thus
FIMCO, INC.
vitiate the potential effectiveness of the Board's ordinary
remedies.
On this record and as discussed above, it appears that
Respondent is willing to make repeated efforts, regard-
less of their legality, to thwart unionization of the Com-
pany. I infer from the success of its past unlawful con-
duct in forestalling the election and repetitious unlawful
conduct thereafter, that Respondent's past misconduct
would have a long-lasting residual impact and coercive
effect on the employees' free exercise of their Section 7
rights and would tend strongly to subvert the election
process. Here, Ted Miller, the principal union spokes-
man, had left the Employer after 'he was encouraged to
find another job and his brother was terminated. More-
over, the Employer has remedied grievances and granted
other benefits in order to undermine union support and
the Union's card majority apparently has been dissipated,
by Respondent's unfair labor practices. Because, of Re-
spondent's unlawful actions, the employees would now
be placed in the position of having to begin an organiz-
ing effort afresh to restore the Union's former support. I
find that under these circumstances, traditional remedial
actions would not be sufficient to dispel the lingering
fear of reprisals for supporting a union, or to nullify the
effect of the Company's granting of improvements in
working conditions to avoid unionization. I find that the
possibility of conducting a fair and meaningful election is
slight and that the employee sentiment, once expressed'
through the signing of union authorization cards, would
be best protected by issuance of ,a bargaining order. I
conclude that the General Counsel has made a showing
sufficient to satisfy the Gissel criteria, supra, and I find
that a bargaining order is necessary in order to remedy
Respondent's unfair labor practices.
There is no dispute ,that a unit of all full-time and reg-
ular part-time production and maintenance employees is
the appropriate unit herein. By virtue of the Excelsior list
submitted to the Regional Director on July 29, 1981, Re-
spondent concedes that the unit consists of no more than
28 employees. The General Counsel contends that the
name of Kevin Vaughn should be deleted from the list.
The testimony of President Tom Vaughn established that
Kevin Vaughn is his 21 year-old son and has stock or
shares in the corporation held for him in trust. He resides
with his father and mother, who is treasurer of the cor-
poration. Kevin's two brothers Thomas E. (Tim) Vaughn
and Terrance Vaughn are vice presidents of the corpora-
tion. Under' these circumstances, I find that Kevin
Vaughn should be excluded from the unit.
The General Counsel also seeks exclusion of three em-
ployees who were students and one part-time social secu-
rity recipient, however, I conclude that Respondent has
shown that their employment was of essentially regular
and substantial duration and they were treated the same
as other employees and therefore are properly counted
as being within the unit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
665
3.° Iiy interrogating employees concerning their union
activities and those of other employees; soliciting em-
ployee grievances, and promising to remedy employee
grievances; promising and granting benefits and in-
creased pay; encouraging and assisting employees to cir-
culate an antiunion petition; giving a party during work-
ing hours to celebrate abandonment of a union effort;
and by creating the impression that employees' union ac-
tivities were under surveillance, the Respondent violated
Section 8(a)(1) of the Act.
4. By assigning employee Timmy Miller to a remote
work station away from other employees and by dis-.
charging Teddy Miller on October 29, 1981, Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.,
5. By failing and refusing to recognize and bargain
with the Union on and since June 25, 1981, while engag-
ing in unfair labor practices , which undermined the
Union's majority status and impeded the election process,
Respondent violated Section 8(a)(1) and (5) of the Act.
6. A bargaining order is necessary'to. remedy Respond-
ent's unfair labor practices.
7. All full-time and regular part-time production and
maintenance employees including parts, shipping, assem-
bly, painting, washer, fabrication, welding department
employees and truck drivers employed' by Fimco, Inc., at
its facility located at First and Court Streets, Sioux City,
Iowa; excluding office clerical employees, professional
employees, sales employees, and guards and supervisors
as defined in the Act, as amended, constitute a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
8. Except as found herein, Respondent has not en-
gaged in any other unfair labor, practices as alleged in
the complaint.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged one
employee, I find it necessary to order it to offer him re-
instatement with compensation for loss of,pay and other
benefits, in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138' NLRB 716 (1962). Inasmuch as Re-
spondent has engaged in such repetitious misconduct as
to demonstrate a general disregard for the employees'
fundamental rights, I find it necessary to issue a bargain-
ing order and a broad order, requiring the Respondent to
cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's,
Rules and Regulations , the findings, conclusions, and recommended
Continued
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Fimco, Inc., Sioux City, Iowa, its of-
ficers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging any employees or otherwise discrimi-
nating against them in retaliation for engaging in union
activities or other protected concerted activities.
(b) Interfering with, restraining , or coercing its em-
ployees in the exercise of the rights guaranteed in, Sec-
tion 7 of its Act by encouraging and assisting employees
to circulate an antiunion petition; by giving time off from
work with pay and a party to celebrate abandonment of
a union election effort; by interrogating employees con-
cerning their union activities and those of other employ-
ees; by soliciting employee grievances, and by promising
to remedy employee grievances; by promising and grant-
ing benefits and increased pay; encouraging and assisting
employees to circulate an antiunion petition; creating the
impression that employees' union activities were under
surveillance; or by assigning employees to a remote and
isolated work station for the purpose of discouraging
membership in a labor organization.
(c) Refusing to recognize and bargain with Local
Lodge 1426, International Association of Machinist and
Aerospace Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the following appropriate
unit: `
All full-time and regular part-time production and
maintenance employees including parts, shipping,
assembly, painting, washer, fabrication, welding de-
partment employees and truck drivers employed by
Fimco, Inc., at its facility located at First and Court
Streets, Sioux City, Iowa; excluding office clerical
employees, professional employees , sales employees,
and guards and supervisors as defined in the Act, as
amended.
(d) In any other manner interfering with , restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
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 pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Teddy Miller immediate and full reinstate-
ment and make him whole for the losses he incurred as a
result of the discrimination against him in the manner
specified in the remedy section of this decision.'
(b) Remove from its files any reference to the dis-
charge of Teddy Miller on October 29, 1981, and notify
him in writing that this has been done and that evidence
of this unlawful discharge will not be used as a basis for
future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records, reports, and other documents necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) On request, bargain in good-faith with Local
Lodge 1426, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate unit and
embody in a signed agreement any understanding
reached.
(e), Post at its Sioux City, Iowa, facility copies of the
attached notice marked "Appendix."6 Copies of the
notice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the,Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint not found to have been sustained by the
evidence be dismissed.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."