Formold Plastics, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1965

154 N.L.R.B. 60 (N.L.R.B. 1965)

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain upon request with Insurance Workers International Union,
AFL-CIO, as the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay, hours of employment, or
other conditions of employment, and embody in a signed agreement any under-
standing reached. The bargaining unit is:
All our debit agents in Districts in Baltimore City and Anne Arundel
County, Maryland (Districts presently numbered 153, 159, 160, 161, 162,
164, 167, 168, and 174), but excluding all office clerical employees, guards,
professional employees, managers, assistant managers, special agents, in-
spectors and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively with Insurance Workers Inter-
national Union, AFL-CIO, as the exclusive representative of our employees in
the unit described herein.
WE WILL NOT in any like or related manner interfere with, restrain, or co-
erce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Insurance Workers International Union,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
UNITED INSURANCE COMPANY OF AMERICA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100.
Formold Plastics, Inc. and District No. 8, International Associa-
tion of Machinists , AFL-CIO. Case No. 13-CA-6641. Judy 30,
1965
DECISION AND ORDER
On May 11, 1965, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Decision and a supporting
brief, and the Respondent filed a brief in support of the Trial Exam-
iner's Decision and in opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
154 NLRB No. 16.
FORMOLD PLASTICS, INC. 61
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Based upon a charge filed August 26, 1964, and amended September 25, 1964, by
District No. 8, International Association of Machinists, AFL-CIO, hereinafter re-
ferred to as the Union , the complaint herein was issued October 14, 1964. Said
complaint alleges that Respondent , Formold Plastics , Inc., violated Section 8(a)(1)
and (3 ) of the National Labor Relations Act , as amended , by issuing a warning
notice to Klaus Kapke and discharging him because of his protected union activity.
Respondent , in its answer, denied that it committed the unfair labor practices
alleged.
Pursuant to notice, a hearing was held on December 7 and 8, 1964, in Chicago,
Illinois, before Trial Examiner Stanley Gilbert At the close of the hearing oral
argument was waived. Within the time set therefor , briefs were submitted by the
General Counsel and Respondent.
Upon the entire record herein , and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Formold Plastics, Inc., an Illinois corporation with its offices at Blue Island,
Illinois, is , and at all times material has been, engaged in the manufacture of plastic
products . In the course and conduct of its business operations during the calendar
year 1963 , a representative period, Respondent received goods valued in excess of
$50,000 directly from points outside the State of Illinois.
As is conceded by Respondent , it is, and has been at all times material herein,
engaged in commerce , and its operations affect, and have affected , commerce within
the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
All of the witnesses appeared to be candid and to be testifying to their best
recollection and there is little conflict in their testimony with respect to the facts
material to the issues herein I The conflict, rather , is with respect to the inferences
to be drawn from said facts. The issues are whether or not the warning notice
which Respondent issued to Klaus Kapke about 4 p . m. on August 21, 1964, and
his discharge , some minutes later, were unlawfully motivated.
'While there are some contradictions , for the most part they are with respect to mat-
ters which have no bearing on the issues.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Klaus Kapke entered the employ of Respondent in March 1963 as a machinist.
His rate of pay was $2 80 at the start of his employment , and he received increases
of 10 cents an hour in October 1963 and 20 cents an hour in June 1964.
On or about July 15, 1964 ,2 Kapke called the Union and, in the course of his
conversation with one of its representatives , Kapke asked him whether the Union
would be interested in organizing the employees of Respondent . About the middle
of August , a representative of the Union called upon Kapke at his home and dis-
cussed with him plans for organizing the employees . Kapke gave the representative
a list of employees which he had compiled.
Early in the morning of August 21, 1964 , a representative of the Union distributed
union literature and authorization cards to employees entering Respondent 's plant.
However, shortly after the representative started said distribution , he was asked by
a policeman whether he had a permit , and, upon being advised that he did not have
a permit, the policeman suggested that he discontinue his activity . There is no evi-
dence that Respondent was responsible for the appearance of the policeman.
About 8 a.m , Kapke had a conversation with his immediate supervisor , George
Arnold, foreman of the machine shop ( apparently also referred to as the toolroom).
Both Kapke and Arnold testified with respect to their conversation and there was
no material difference in their testimony . Kapke initiated the conversation by re-
ferring to the presence of the union representative outside the plant. According to
Arnold , Kapke commented that it looked like an "inside job" because the Union had
knowledge of some of the working conditions inside the plant, to which Arnold re-
plied that he did not think it was, because the working conditions were no secret.
They both testified that Kapke indicated that he thought there was a need for a
union and they discussed benefits given employees by the Respondent as compared
with union scale Further , they both testified that Arnold told Kapke of an attempt
by a union , some years prior thereto , to organize Respondent 's employees to which
they responded by signing a petition indicating their unwillingness to have that union
represent them, and that Kapke replied that he would not sign such a petition. Also,
it is clear from the testimony of both witnesses that Kapke indicated that he was
in favor of the Union
About an hour later, Arnold had a conversation with Henry Woike, who was also
employed in the toolroom Both Arnold and Woike testified to this conversation
and there is no material variation in their testimony with regard thereto . Accord-
ing to their testimony , Woike approached Arnold and commented on the presence
of the union representative outside the plant early that morning . Arnold
indicated that he knew about it and said that he did not think any of the employees
would be in favor of the Union except Kapke . During the course of their con-
versation they were joined by Richard Gerk , who was then assistant to the plant
manager and who had been, until about approximately a month prior thereto,
foreman of the machine shop Gerk commented to them, "Well , maybe the Union
would be a good thing for the foremen." 3
During the morning Kapke left his machine and went into the "elox room," a
separate room in the machine shop, where he was seen by Gerk. Both Gerk and
Kapke testified with respect to the incident , and, while there are variations in the
details of their testimony, the variations are of no materiality . Kapke testified that,
when he realized he was being observed by Gerk, he pretended to have business there
by looking into the toolbox of one of the employees in that room . He testified fur-
ther that he looked into the toolbox because "there could have been a possibility
that he borrowed a tool or returned a tool," and admitted that he figured that Gerk
might think he was there on legitimate business . It is apparent that Gerk realized
that Kapke was not in the elox room on business , for Gerk told him that his action
of looking into the toolbox was a "phony excuse" and admonished him for being
away from his machine.
Gerk testified that immediately after this incident he met Personnel Director Fred
Buursma. Both Buursma and Gerk testified as to the conversation they had at this
point and their testimony is substantially in accord . According to their testimony,
2 According to Kapke 's testimony , page 71, line 2, of the transcript, the date was July 15,
1963 , however, it is clear from the record that the correct year is 1964
3 This was the testimony of Woike, a witness called by the General Counsel , and his
testimony on this point was corroborated by Gerk.
FORMOLD PLASTICS, INC. 63
Gerk complained to Buursma that Kapke "was driving him nuts" and explained
that he had found him away from his machine again, and Buursma suggested he
issue a warning slip to Kapke.4 Both Gerk and Kapke testified that Gerk had ad-
monished Kapke on a number of occasions about leaving his machine, and Kapke
further testified that on some of the occasions Gerk spoke more harshly to him
than on others, depending on Gerk's mood at the time.
Gerk testified, and it is found, that he then instructed Arnold, Kapke's foreman,
to issue a warning slip to Kapke. It appears that Buursma, who had become per-
sonnel director approximately 5 months previously, had had warning slips printed
in June, primarily to curtail absenteeism in the production department. Buursma
testified, and it is found, that the slips were handed out to production foremen in
June or July, but that none had been given to Arnold (for the toolroom) until
2 or 3 days prior to August 21. It further appears that, while warning slips had
been issued to production employees, Kapke's warning slip was the first issued in
the toolroom.
Although Arnold was instructed by Gerk in the morning to issue a warning slip
to Kapke, it was not given to Kapke until 4 p.m. of that day. Arnold testified that,
when Gerk asked him in the middle of the day if he had issued the slip to Kapke,
he explained, "If I give him that slip now, there-this is going to be the topic of
the conversation all day and the whole shop is going to be chaos down there" and
that Gerk suggested that he give Kapke the slip before Kapke went home. Gerk
corroborated this testimony and it is credited.
The warning slip which Kapke received recited the offense to be that he "left
internal grinder for periods of time, while machine was running." According to
Kapke's testimony, Arnold stated to him when he handed him the warning notice
that he assumed Kapke knew what it was about and that he replied, "I think it is
because of the incident at the elox room " Kapke further testified that he told
Arnold he was going to protest the warning notice and asked if the personnel
director was "still in", that when Arnold answered that he thought he was, he
(Kapke) replied, "Oh, never mind, it is just a waste of time to talk to him, I am
just going to mail the union card, sign the union card, and mail it in if that is the
way it is going to be. We are going to get justice around here"; that he signed the
union card in the presence of Arnold; that Arnold left and went to the telephone
and a few minutes later returned and said that "personnel" wanted to see him; that
he replied that he did not want to go; and that Arnold said to him, "Well, personnel
wants to see you. Go up."
Arnold testified that when he handed the slip to Kapke, Kapke asked him what
it was for; that he replied, "Don't be so naive, Klaus, you know what it is for. You
had a discussion with Mr. Gerk this morning"; that Kapke's face turned scarlet, he
made a fist and said, "That God Damn Gerk, I will bust him right in the mouth";
that Kapke said he wanted to see Buursma; that he replied that if he wanted to do
so, to go up and see him; that about that time Gerk called him with regard to some
business matter; that, after talking about the business matter, he informed Gerk that
he had just handed the warning slip to Kapke and "the roof just went up"; that
Kapke had said he wanted to see Buursma and he had told Kapke to go up and
see him; that Gerk told him that Buursma was getting ready to leave but he would
have him wait; that he saw Kapke waving his slip around and several of the men
had gathered around him; that he told Kapke that it had nothing to do with the
other men and to "leave them out of this" and, if he had any complaint, to see him,
Gerk, or Buursma; that Kapke said that he did not want to see Buursma and stated,
"I am going straight to the Labor Relations Board. Give me two more of these
and I will go to the Labor Relations Board"; that Kapke said, "I'm going to fill out
this card," and went through the motions of filling out a union card; that he told
Kapke that he could not threaten him with "that," because he did not care if he
filled it out; that he told Kapke Buursma was waiting to see him and to go up and
see Buursma; that a short while later Gerk called him and asked why Kapke had
not arrived; that he went over to Kapke and told him that Buursma was waiting for
I In his brief General Counsel implied that this conversation between Gerk and Buursma
did not occur . However, the testimony is credible , appears to be in conformity with
surrounding facts, and both were convincing witnesses Therefore , their testimony as to
this conversation is credited.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him; that Kapke again told him that he did not want to see Buursma; that he was
going to the Labor Relations Board, to which he replied, "What you do tomorrow
is up to you but right now, you are going up to see Fred Buursma. You asked to
see him . I made arrangements for him to stay and you are going to see him now,"
and that Kapke turned off his machine, "slammed down on his bench," and left.
There are some differences in the testimony of Arnold and Kapke about this in-
cident. Arnold's testimony is substantially more detailed,5 and indicates that he
had two telephone conversations, not one as would appear from Kapke's testimony,
between the time he gave the warning slip to Kapke and Kapke left for Buursma's
office. His testimony as to the two telephone conversations (with Gerk) was
corroborated by Gerk,6 and his testimony with respect to Kapke's demonstration of
anger was convincing, not only by reason of the fact that it was uncontradicted
and that Arnold was an impressive witness, but also by reason of the fact that the
testimony of subsequent events was further evidence of Kapke's angry reaction to
the receipt of the warning slip. Therefore, it is concluded that Arnold's testimony
is an accurate and more complete recital of what occurred at that point.
Kapke, Gerk, and Buursma testified as to what occurred when Kapke arrived in
Buursma's office. Kapke testified as follows:
A. Richard Gerk said, "I see you are unhappy about the warning notice."
I told him, "I think you are only using this as an excuse because of the
[union] drive which took place in the morning."
A. He says that I was actually agitating and instigating the guys.
Q. What, if anything, did you say to him?
A. I asked him to get back to the point, to the warning notice.
He did not get back to the point.
I said, "Well, I'm going to mail this union card into the union office when I
get off today if that is the way you are going to-if that is the way I am going
to get justice around here."
I said, "If you don't like it, give me two more warnings and I will take them
down to the Labor Relations Board."
That is when Mr. Buursma said, "You are through, and you are through,
now."
Gerk testified as follows:
Q. (By Mr. LYON.) Will you please describe his [Kapke's] appearance as
he came into the office.
A. It goes back to the same story. He struck me as being belligerent.
TRIAL EXAMINER: What did you observe?
The WITNESS: He walked in fast.
TRIAL EXAMINER: Yes.
The WITNESS: His actions were quick. He was boistrus [sic]. He was
waiving [sic ] this here warning slip. He mentioned that he was being picked
5 Kapke was not called to testify in rebuttal of any of the details of Arnold's testimony
e According to Buursma 's testimony , Arnold did have two telephone conversations at
this point . But Buursma testified that the first was with him ( Buursma ) and that it
was initiated by Arnold to notify him that Kapke wanted to see him about his warning
slip , Buurma further testified that he told Arnold to tell Kapke " to come up" ; that
there was a delay; and that then Gerk called Arnold and told him that he (Buursma) was
waiting and to "make sure that Kapke comes on up " According to Gerk 's testimony,
he had two conversations with Arnold while he was in Buursma 's office. In his first con-
versation , he testified , he told Arnold "you better get him [Kapke] up here quick , George,
because Fred [ Buursma] wanted to leave." Gerk further testified that subsequently he
called Arnold , asked him where Kapke was , and told him that Buursma " needed to get out
of here." In view of this corroboration by Gerk of Arnold's version it is concluded
that Buursma was in error about Arnold 's first telephone conversation being with him.
However , this contradiction in the testimony does not appear to be of any significance,
since , even if it is concluded that Arnold did initiate the first call and talked to Buursma,
the resolution of the issues herein would not be altered.
FORMOLD PLASTICS, INC. 65.
on and I told him it was for the same reason if he figured he was picked on,
he should leave this other fellow, Johnny Klein alone. He was downstairs
antagonizing individuals.
I pointed out by telling people-I pointed out to him by telling him that
people did the same work he did for less money and when there is a real
tedious job it gets on people's nerves.
He said, "Give me two more of these and I will go to the National Labor
Relations Board."
And at that time I believe Mr. Buursma said, "You have it."
Buursma testified as follows:
Q. Did you observe Mr. Kapke as he came in'
A. Yes, I did.
Q. And what did you observe?
A. Well, I observed that Mr. Kapke was quite angry, was quite an angry
young man.
Q Why do you say that?
A. Well, he walked into the office and he had this warning slip and he started
shaking it. And in a very loud tone said, "Give me two more of these and I
will take it to the National Labor Relations Board."
Q. That is all he said to you as he walked in?
A. Well, he was addressing Mr. Gerk about the fact that Mr. Gerk-he
thought that Mr. Gerk was constantly picking on him. And after he made
this statement, I said that it won't be necessary for two more. This will be
sufficient.
Both Gerk and Buursma denied that Kapke said anything about a union card
or made a statement attributing the warning notice to the union drive.?
When Buursma was questioned as to why he discharged Kapke, he testified as
follows:
The WITNESS: For his attitude. He came up to the office-our office is one
of such that there are partitions.
He came up with his loud, boistrus [sic] attitude, yelling, threatening. I had
no choice but to discharge him.
I certainly could not have him going back down into the shop and saying,
"Well, I sure blew up at Buursma." I just couldn't afford that.
I am trying to finally establish some discipline at this company.
It does not appear reasonable to infer from all the circumstances that either the
issuance of the warning slip or the discharge was motivated by Kapke's protected
union activity or because of his prounion sentiments.
The record clearly demonstrates that Gerk had repeatedly warned Kapke about
leaving his machine and that the warning slip was issued because of Kapke's repeti-
tion of the offense that morning. It is clear from Kapke's testimony that, when he
realized that Gerk saw him in the elox room away from his machine, he anticipated
that Gerk would be angry and pretended to have business in the elox room.
While the timing of the issuance of the warning slip and of the discharge, on the
day the Union started its organizational drive, and the fact that Kapke had made
it evident to management that day that he was in favor of the Union,8 cast some
7 These denials are the only substantial contradictions between the testimony of Kapke
and the other two witnesses. While this conflict does not appear to be of any materiality,
it Is concluded that the denials should be credited. It appears that Kapke did make
somewhat similar statements about the Union to Arnold and It is possible that he was
confused in thinking that he repeated them In Buursma's office. It appeared to me that
all three of the witnesses were attempting to state their best recollection of what occurred.
In view of the denials by both Gerk and Buursma, it is my judgment that they should
be credited.
8 The record would not support an Inference that management had knowledge of the fact
that Kapke was Instrumental In Initiating the Union 's interest in organizing Respondent's
employees.
206-446-66-vol. 151-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspicion on Respondent 's motivation , nevertheless , in all of the circumstances, it
does not appear that there is sufficient evidence to warrant an inference of unlaw-
ful motivation . There was no showing of any animosity toward the Union on the
part of Respondent . On the contrary , the only evidence of management 's attitude
toward the Union was a favorable statement made by Gerk, who was responsible
for issuing the warning slip. He indicated , by his comment to Woike and Arnold
that morning, that he thought the Union would be a good thing for the foremen.
There appears to be no significance in the fact that Kapke's was the first warning
slip to be issued in the toolroom . This was reasonably explained by credited testi-
mony that Arnold had been given the printed warning slips only a short while prior
thereto. It is evident that they had not been printed in June in anticipation of the
events of August 21 . Furthermore , it appears that there was reasonable cause for
issuing the warning slip to Kapke (previous verbal warnings by Gerk about his
leaving his machine and his repetition of the offense that morning ). The General
Counsel elicited testimony with respect to the practice of employees in the toolroom
taking their "breaks" at their own discretion . It does not appear that this practice
has any bearing on the offense of leaving a machine while it is running, as evidenced
by the repeated warnings Gerk had given Kapke and Kapke's realization that he was
guilty of such an offense by being in the elox room.
As for his discharge , it is noted that it was Kapke who initiated the conference
with Buursma ( during which he was discharged ) by telling Arnold that he wanted
to see Buursma to protest the warning slip. While Kapke did indicate that he
changed his mind about seeing Buursma , and, nevertheless , Arnold insisted he do
so, it is concluded from the circumstances that this insistence was not for the pur-
pose of effecting Kapke's discharge , but for the purpose of resolving the personnel
problem created by Kapke's reaction to the warning notice.
It is further concluded that Kapke 's conduct in Buursma 's office reasonably could
have caused his discharge . Buursma credibly testified that he had no intention of
firing Kapke prior to his arrival in his office , but that he took such action because
of Kapke's "loud, boistrus [sic] attitude , yelling, threatening ." While it appears
that his threat was that he would complain to the Board if given two more warnings,
it is concluded that the discharge was not motivated by reason of the content of the
threat , but because of his conduct in the office while uttering it. While it appears
that Kapke had received merit raises , the last one about 2 months prior to his dis-
charge, this would not appear to be of any materiality . Respondent did not contend
that it discharged him for being incompetent as a machinist , but for his conduct in
Buursma's office.
In the absence of any showing that Respondent was hostile to the Union and in
view of the presence of reasonable cause for the issuance of the warning slip and
for the discharge , it is determined that a conclusion would not be justified that the
reasons relied upon by management for its action were merely pretextual or that
Kapke's prounion sentiment was a motivating factor. It is concluded , therefore,
that the General Counsel has not proved by a preponderance of the evidence that
either the issuance of the warning slip or the discharge was unlawfully motivated.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce within the meaning of Sec-
tion 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. General Counsel has failed to prove by a preponderance of the evidence that
Respondent, by issuing a warning notice to Klaus Kapke, violated Section 8(a)(1)
of the Act, as alleged in the complaint.
4. General Counsel has failed to prove by a preponderance of the evidence that
Respondent , by discharging Klaus Kapke, violated Section 8 ( a)(3) and ( 1) of the
Act, as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.