Gayston Corporation

National Labor Relations Board - Board Decisions

Oct 8, 1982

265 N.L.R.B. 1 (N.L.R.B. 1982)

GAYSTON CORPORATION
Gayston Corporation and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC, and its Local 768 and Althia Piercy.
Cases 9-CA-14838-4, 9-CA-15970, 9-CA-
17347, and 9-CA-16850
October 8, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 11, 1982, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Gayston Corporation, Dayton, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modi-
fied:
1. Substitute the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
layoff of Althia Piercy and notify her in writing
that this has been done and that evidence of this
discriminatory layoff will not be used as a basis for
future personnel actions against her."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
265 NLRB No. 1
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT threaten to discharge employ-
ees who join the Union, or who engage in
union or other protected concerted activities,
including seeking the assistance of the Occupa-
tional Safety and Health Administration of the
U.S. Department of Labor (OSHA), or other
Government agencies for the purpose of im-
proving working conditions of employees.
WE WILL NOT coercively interrogate our
employees concerning their own and other
employees' union sympathies.
WE WILL NOT coercively interrogate our
employees concerning their union membership
and/or their motivations for joining the Union.
WE WILL NOT order any employees to assist
us in unlawful interrogation of other employ-
ees' union sympathies.
WE WILL NOT attempt to give our employ-
ees the impression that we are monitoring the
union sympathies of employees and/or sur-
veilling their union activities.
WE WILL NOT imply to our employees that
they will be discharged if they do not with-
draw membership and support from the Union.
WE WILL NOT unlawfully encourage and un-
lawfully assist employees in withdrawing
membership and support from the Union.
WE WILL NOT encourage employees to assist
us in unlawfully encouraging other employees
to withdraw union membership.
WE WILL NOT unlawfully provide informa-
tion, materials, and personal assistance to em-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and expressions of personal gratitude
to employees in pursuance of an unlawful
scheme to encourage and aid employees to
withdraw membership and support from the
Union.
WE WILL NOT attempt to induce employees
to eavesdrop and report back to us conversa-
tions of union members.
WE WILL NOT discriminate against employ-
ees because of their union membership and ac-
tivities by placing them on forced leaves of ab-
sence, or by assigning them to work which is
personally onerous and burdensome to them
for no justifiable business reason.
WE WILL NOT, without bargaining and
agreement with International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO-
CLC, and its Local 768, as the exclusive bar-
gaining agent of employees in the appropriate
unit, in breach of our obligations under Sec-
tion 8(d) of the Act, unilaterally modify or
change the wages, benefits, or other terms or
conditions of employment set forth in the col-
lective-bargaining agreement with said bar-
gaining agent; or without notice to and giving
said bargaining agent an opportunity to request
bargaining, unilaterally institute or change any
other benefits, or terms or conditions of em-
ployment of employees in said appropriate unit
which is set forth as follows:
All production and maintenance employees
employed by Gayston Corporation at its
Dayton, Ohio facility including group lead-
ers, inspectors, material handlers, janitors,
job setters, operators, toolroom employees,
and assemblers, but excluding all office cleri-
cal employees, and all professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT attempt to give to our em-
ployees the false impression that the Union is
opposed to our granting of bonuses to our em-
ployees, or that your retention of any bonus or
other benefit will be jeopardized because the
Union filed with the Board and sought pros-
ecution by the Board of an unfair labor prac-
tice charge concerning the unlawful unilateral
manner in which such bonus or benefit was
granted, and we assure you that nothing herein
shall be construed as requiring us to withdraw
any bonus or wage increase or other benefit
presently enjoyed by our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL, if we have not done so already,
offer to Althia Piercy immediate and full rein-
statement to a position for which she has dem-
onstrated or will demonstrate, upon an oppor-
tunity provided by us, a capability of perform-
ing without adverse physical reactions if such
position is available, or reinstate her to such
position when it next becomes available, with-
out prejudice to her seniority or other rights
and privileges, and make her whole, with in-
terest, for any loss of pay she may have suf-
fered as a result of our discrimination against
her because of her union membership and ac-
tivities.
WE WILL expunge from our files any refer-
ence to the discriminatory layoff of Althia
Piercy and we will notify her in writing that
this has been done and that evidence of this
unlawful layoff will not be used as a basis for
future personnel actions against her.
GAYSTON CORPORATION
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This
case was heard at Dayton, Ohio, on August 10 and 11
and December 1, 2, and 3, 1981, pursuant to charges
filed by International Union of Electrical Radio and Ma-
chine Workers, AFL-CIO-CLC, and its Local 768,
herein called the Union, and Althia Piercy, an individual,
against Gayston Corporation, herein called Respondent,
and various complaints and consolidated amended com-
plaints issued thereafter by the Regional Director for
Region 9, and an order consolidating Case 9-CA-17347
with Cases 9-CA-14838-4, 9-CA-15970, and 9-CA-
16850, issued by me on November 10, 1981. The com-
plaints allege violations of Section 8(aX5) of the Act by
the granting by Respondent of a wage increase and
bonus to bargaining unit employees without affording
notice to and opportunity for bargaining with the exclu-
sive bargaining agent of unit employees, violations of
Section 8(a)3) of the Act by Respondent's discriminato-
ry treatment of employees Althia Piercy and Debra Gil-
more, and multiple violations of Section 8(aX1) of the
Act by engaging in various acts of unlawful interference
with employees' Section 7 rights.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed by both Respondent and the General Counsel.
Upon the entire record of the case, and from my ob-
servation of the witnesses, and their demeanor, I make
the following:
2
GAYSTON CORPORATION
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, an Ohio cor-
poration, has been engaged in the manufacture of aircraft
accessories at its plant in Dayton, Ohio, at which for a
representative period of time of 12 months preceding the
original complaint herein it shipped products and goods
valued in excess of $50,000 directly to places outside the
State of Ohio.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the production of defense
hardware under contract or subcontract to Federal Gov-
ernment procurement agencies. At the time of the hear-
ing it employed about 150 hourly rated employees at a
plant complex consisting of two adjoining buildings in
Dayton, Ohio. On April 27, 1979, the Union was certi-
fied by the Board, pursuant to a secret-ballot election
held in October 1978, as the exclusive bargaining agent
for the production and maintenance employees at the
Dayton plant. Thereafter, collective bargaining resulted
in agreement and execution on November 28, 1979, of a
contract which expired in November 1981. At the time
of the hearing, a new contract had been agreed upon.
The precise extent of union activity that occurred after
March 28, 1978, is unknown, but the record reveals that
union meetings were conducted and union leaflets were
distributed, one of which contained remarks which Re-
spondent considered a disparagement, and that according
to Personnel Director Burdzinski hundreds of grievances
were processed. According to Chief Steward Sondra
Johnson, in 1980 about 50 grievances were processed.
B. 8(a)(l) Allegations-Facts
1. The summer of 1980-OSHA investigations-
troublemakers
In January 1980, an unsigned notice was posted in the
plant lunchroom under circumstances which I conclude
justify an inference that the notice was authored by or at
the least adopted by Respondent. In that notice reference
was made to employees who appeared to desire disrup-
tion and loss of Respondent's business by deliberately
sabotaging its product and by complaining to DESC'
that Respondent permitted certain work to be performed
by hand at employees' homes. Further reference was
made to unidentified employees who were allegedly
"constantly" trying to cause harm to Respondent and
who had contacted OSHA that week and caused that
'Defense Electronic Supply Center, herein DESC, is the source of
Respondent's munitions contracts,
governmental agency to make "needless inspection"
which might result in costly fines that would cut profits
and jeopardize future wage increases. The memo called
for a cessation of such "negative thinking" and a state-
ment that Respondent "must and will put an end to all of
this. ... .. 2
Respondent's vice president in charge of manufactur-
ing, Robert Alexander, testified that a representative of
DESC had called him and informed him that some un-
named employees had contacted DESC and reported
that Respondent was not fulfilling its contract by assign-
ing certain work to be performed by employees at home.
Why this report was considered detrimental is unclear
because Alexander testified that such work assignment
was clearly permissible under the DESC contract. How-
ever, the Union had raised a question to Respondent as
to why some unit work was being assigned as work to be
performed in the employees' homes. Alexander also testi-
fied that over the period of 1978 through 1979 several
OSHA investigations of Respondent's facilities had re-
sulted in findings of violations of the Act administered
by that agency and that several fines had been levied on
Respondent. Further, according to Alexander, in early
1980 additional OSHA investigations occurred at Re-
spondent's facilities.3
On or about March 17, 1980, employee Eunice Flem-
ing wrote a letter to Respondent President Mark Stone
wherein, according to her uncontroverted credited testi-
mony, she stated that she was satisfied with her 35-cent-
per-hour merit review raise, but criticized the method of
the review itself and suggested it be changed. On March
26, she received a letter from Stone which, inter alia,
identified her as "among a group that actively supports a
wage structure established through a union-labor agree-
ment," and pointed out that under the union contract her
raise could have been 9-1/2 cents per hour but was
higher under the merit review system, and expressed
chagrin that she was unhappy with "Gayston Corpora-
tion, its supervisors, and its management." The letter
concluded: "My suggestion for you, Eunice, would be
either to accept Gayston, its management, and its policies
or to find a job at another company which is operated
more to your liking. " 4
On April 2, 1980, an unsigned notice was fixed, under
glass cover, Respondent's bulletin board near the plant
entrance where other Respondent notices to employees
are usually posted, and under circumstances where I
conclude that the notice was posted by or adopted by
Respondent. That notice set forth a query therein as fol-
lows: "Why does the IUE continually try to stir up our
employees [by making certain disparaging characteriza-
tions of the Respondent in a leaflet distributed by the
I Evidence of this incident was adduced only for purposes of setting
the background.
· OSHA refers to the Occupational Safety and Health Administration
of the U.S. Department of Labor.
4 Stone's letter was not alleged as a violation of the Act but was ad-
duced solely as evidence of Respondent's hostility toward employees
who complain about matters of mutual concern to all employees, i.e., the
method of effectuating the merit review affects all employees Fleming
was shop steward in the late summer of 1980. Her status in March is un-
clear.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union]." The notice asserted that the Union desires the
employees' "hard earned money in the form of Union
dues," and reminded employees of their right to join or
not join the Union. There is no union-security clause in
the contract."
On June 18, 1980, according to Alexander, Respondent
had been in the fourth day of an ongoing OSHA investi-
gation, employees had inquired as to the identity of the
investigators, and the OSHA agents had requested per-
mission to interrogate employees on Respondent's prem-
ises. Therefore Alexander testified that he decided to ad-
dress the employees in order to advise them of the visi-
tor's identity and their availability for employee inter-
views and to discuss the complaints filed with OSHA
which he felt were unwarranted. Accordingly, on June
18, Alexander prepared and delivered a speech to four
groups of employees from each shift and building.
According to Alexander and Respondent Personnel
Director Bernard F. Burdzinski II, Alexander delivered
verbatim and without deviation a prepared speech, the
text of which was adduced into evidence. That speech
alluded to the then-current OSHA investigation, and ad-
vised that Respondent had agreed to private interviews
of employees on the premises, and further contained on
its face a recitation of complaints filed with OSHA to
which largely unprepared extemporaneous comments
were made as to each complaint. Within the text of the
speech, employees were told of their rights to complain
to OSHA but were urged to alternatively utilize the ex-
isting employer-employee safety committee. In the pre-
pared text, Alexander proceeded to disparage the moti-
vations of employees who had resorted to OSHA, as
persons who desired to "cause problems for the company
and keep trouble stirred up." The current OSHA com-
plaint was referred to as only one incident evidencing
conduct by "certain people" who were characterized as
"constantly trying to cause disruption, trouble and [to]
run the company down in many ways." Employees were
urged to cooperate with the safety committee. The then-
current complaints filed with OSHA were characterized
as the product of unnamed "trouble maker or trouble
makers who are trying to jeopardize your job and the
future of the Company," and that such were ". . . an
unfair and unjust accusation against the Company and
we should put a stop to it now."6 The speech also com-
plained that other unspecified "things" were being done
by "certain people" which "downgraded" Respondent,
"jeopardized" its future, and kept "things in a constant
turmoil." Those persons were accused of self-interest and
characterized as being bereft of interest in Respondent's
well being, and aware that they are "wrong." The
speech purportedly ended with the following:
Now I am going to Give You Bob Alexander's
Opinion of the Situation as it stands today.
I. Gayston will run their own business in their
way to benefit their employees in the best possible
way.
Evidence of the April notice was also adduced solely for background
purposes, i.e., evidence of union animus.
6 Alexander testified that he had possessed no idea as to the identity of
the troublemakers, but testified further that he would like to have known.
2. Gayston will survive one way or the other,
with or without the help, and cooperation of the
employees who seem to be causing all the problems.
3. I truthfully believe that the troublemakers had
better shape up now and start working with the
company and other employees instead of fighting
the company at every turn and trying to stick a
knife in their back at every opportunity. We don't
need people like that and I don't believe the Com-
pany can tolerate it any longer.
The General Counsel adduced the testimony of seven
employees as to this speech. 7 Each of these witnesses
testified in generalized and conclusionary terms as to
small segments of the speech for the most part in accord
with the prepared test. Their testimony was rendered
with a high degree of uncertainty except for the recol-
lection of four of them that Alexander stated that the
troublemakers would be eliminated. Of these four wit-
nesses, three added that Alexander stated further that the
troublemakers would be eliminated "one by one." Be-
cause of the witnesses' certainty in this regard, and the
lack of any palpable bias, I credit their testimony that
Alexander did append his remarks by telling the employ-
ees that the troublemakers would be eliminated one by
one.8 In any event, Alexander's admitted statement that
Respondent did not need the troublemakers and would
no longer tolerate their conduct amounted to a clear pro-
nouncement that Respondent was determined to take
action to remove them from employment.
The General Counsel's witnesses also rendered some
minor variations of the speech such as references to
DESC, the Union, and the NLRB, which I do not credit
for the aforestated reasons. However, the admitted ver-
sion of the speech within the context of prior employee
notices clearly implied that Respondent viewed with
hostility troublemakers, i.e., employees who complained
to outside agencies such as OSHA or sought the assist-
ance of the Union inasmuch as Respondent explicitly al-
luded to the OSHA complainer as a troublemaker in the
January memo, and to the Union in the April notice as
an entity that stirs up trouble.9
On July 31, 1980, Respondent conducted an employee
meeting in its warehouse exclusively with those employ-
ees who had previously been invited pursuant to written
hand-delivered invitations. Those employees who had
been admitted to the meeting on presentation of their
written invitation were served soft drinks, and, after a
short wait, were addressed by Respondent's president,
Mark Stone. A prepared speech was delivered by Stone,
the text of which was adduced into evidence. In addition
I Fleming with great uncertainty placed the meeting in March 1980.
As no other witness testified to any such similar meeting in March, and
as Fleming was admittedly uncertain, I credit Alexander that the June 18
meeting had not been rendered in an earlier version in March.
a Alexander and Burdzinski clearly were not disinterested witnesses.
Alexander, moreover, resurrected a visible emotional agitation on the
witness stand whenever he alluded to employees who resorted to OSHA
or whenever he referred to "troublemakers."
a On January 31, 1980, the Union filed the unfair labor practice charge
against Respondent in Case 9-CA-14838-4.
4
GAYSTON CORPORATION
to laudatory remarks for employees and managers re-
sponsible for its business progress. Stone stated:
But as I paint this rosy picture I cannot forget that
a handful of troublemakers here at Gayston has
been attempting to interfere with our Company suc-
cess. For reasons which I do not understand these
employees seem intent on hurting our Company
through false statements and disruption. You can be
sure that these people will not harm our Company
or our employees and their job security. I will stick
to my conviction that Gayston is a family-owned
business whose management and employees must
work together in harmony.
Thereafter, Stone thanked employees for their hard work
and pointed out that, above and beyond the next regular-
ly scheduled merit review set for December, he desired
to grant the employees an additional reward, i.e., and
across-the-board flat 20-cent-per-hour general wage in-
crease, effective July 28, 1980. Burdzinski testified that
Stone did not deviate from the text of the prepared
speech. Several employees and former employees testi-
fied that Stone did indeed add a significant statement.
These witnesses have little to gain by testifying adversely
to their employer or former employer except to incur the
wrath of their employer or to jeopardize a possible job
reference source. Those employees who testified were
not shown to have been possessed of any bias.'I I find
them more credible than Alexander or Burdzinski who
suggested that he was personally responsible for Stone's
comments, and therefore obviously interested in the ex-
oneration of Stone. " Moreover, for no proffered reason,
Stone did not testify in this proceeding. I can only infer
that his testimony would be adverse to Respondent. I
credit the testimony of the General Counsel's witnesses
that during his speech Stone, within the context of his
reference to troublemakers, alluded to employees who
resorted to OSHA and further stated that troublemakers
would be eliminated by Respondent, I give no weight to
Alexander's testimony in that he did not testify as to
what he recalled but rather he merely denied that threat
by Stone.
Burdzinski testified that the July 31 meeting was a
"joyous occasion" held to celebrate the good success of
Respondent. Burdzinski initially testified that he partici-
pated in a managerial decision to invite only "good em-
ployees," i.e., those employees whom the individual su-
pervisors thereafter decided and ultimately reported to
him as "good." Elsewhere he testified that the "primary
concern" was to invite employees who were doing a
good job and who had good records, and that at a man-
agerial meeting "a group of us worked on compiling this
10 Particularly convincing was Thelma Clark, an employee of 6 years'
tenure and a nonunion member who appeared to have no trace of a bias
and as a nonunion adherent was not susceptible to imagining threats as
Respondent argues did the union adherents.
I Burdzinski testified regarding Stone's speech, "Right, he read it. I
had a copy too. I followed along as he read it. He'd gone over this
speech with me before he ever read it. Before this speech had been given,
That's customary. He would never, ever give a speech without showing
it to me first." Burdzinski testified to a similar practice with respect to
Alexander's speech.
list of invitees," i.e., Stone and factory managers, Don
Penny, Al Twehues, Les Sontarre, and Will Dewey. He
explained that he consulted those managers directly be-
cause he felt that they knew all employees. Accordingly,
under this second version individual supervisors were
not consulted as to who was a good employee.' 2 The
criteria applied by these managers, according to Burd-
zinski, was the individual's ability to produce the desired
quality and quantity of work exclusive of attitude and at-
tendance which were not to be considered. Counsel for
the General Counsel's inquiry of Burdzinski as to wheth-
er production readings were taken from employees' ma-
chines was met with an evasive discourse by Burdzinski
as to the inability to measure productivity for certain
classes of employees, i.e., janitors. I infer from his ob-
scure and evasive testimony that no recourse to produc-
tion or personnel records was made by the factory man-
agers as they sat and made notes on yellow pads at a
high-level managerial meeting with Stone and Burd-
zinski.
Contrary to Burdzinski's assertion that attitude was not
an indicator of a good employee, at least one employee,
Union Steward Eunice Fleming who had received a fa-
vorable job review for that year, was not invited despite
the fact that the only negative reference in her personnel
file was that she demonstrated a "poor attitude toward
the company" coupled with a demonstrated good atti-
tude toward coworkers and an absence of any problem
as to "cooperation." Her personnel file did not explain
the meaning of "poor attitude."
The General Counsel contends that union activists
constituted a disproportionate share of the noninvitees.
Of a work complement of about 150 to 200 employees at
the time of the meeting, about 55 to 60 were union mem-
bers.' 3 The exact number and identity of noninvitees is
clouded. Neither Burdzinski, who in many areas relative
to Respondent's defense testified with detailed and pre-
cise recollection, nor his assistant, Nancy Evart, who
participated in the invitation distribution, could recall the
number or identity of employees not invited. Burdzinski
reluctantly placed the figure as less than 27. Upon
persistent examination Burdzinski recalled the name of
one person who had not been invited, i.e., Union Stew-
ard Ruth Stevens. Evart testified that she did not recall
the actual list nor what became of it but could only ob-
scurely recall that Burdzinski in some fashion gave
instructions as to whom to invite. On August 7, 1981,
Evart composed lists of employees who attended and
who did not attend, based on source documents such as
an attendance check list which she destroyed on or after
August 7, 1981. This list of nonattendees reflects 26
names. But nonattendees are, of course, not necessarily
noninvitees. According to the uncertain testimony of em-
" Supervisor Larry "Fuzzy" Ray admitted that he was not consulted
as to who was a good employee, despite the fact that his machines retain
production records, and that he is directly aware of the abilities of em-
ployees under his supervision. Similarly Supervisor Gary Pfeiffer ad-
mitted that he was not consulted prior to the July meeting and that he
prepared no reports of employee qualities or productivity nor was he
asked to do so.
I3 At the time of the hearing herein, about 19 to 20 employees were
union members.
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee Thelma Clark, she observed all except 12 union
members attended the meeting of employees of both
buildings. However, no foundation was laid for her com-
petency to testify in this regard, i.e., it is not established
that she personally knew or was able to identify all 150-
200 employees employed in two buildings by sight or
otherwise, or that she took a count of attendance. More-
over, she testified that she had never been a union
member. Finally, there is no basis for her to have known
whether any of those not attending had received invita-
tions. Testimonial evidence establishes that the following
persons did not receive an invitation:
(1) Linda Collins, union committeeperson.
(2) Ruth Stevens, union steward.
(3) Linda Olinger, a union member who at one
time in 1978 or 1979 was accused by manager Twe-
hues but cleared by Alexander as having com-
plained to OSHA and who prior to the summer of
1980 was interviewed by OSHA agents in the plant
along with other employees.
(4) Eunice Fleming, shop steward.
(5) Sondra Johnson, chief steward.
(6) Merle Horton, member of the union executive
board and shop committee.
(7) Debra Meyers, steward and committeeperson.
(8-10) Mae Whitaker, Berry Smith, and Linda
Meeker, union members who had engaged in union
handbilling with steward Alice Hatcher, Sharon
Rawlins and the above-named employees, at the
plant, in the morning at the gates, on several occa-
sions, during one occasion of which they were ob-
served by maintenance manager Jerry Fetters [not
alleged as a supervisor in the complaint], who made
an obscene remark concerning the leaflets. 14
Although the General Counsel appears to have dem-
onstrated that a probability existed that a large portion of
those employees not invited to the July 31 meeting were
union officers or members who had leafleted the plant, it
does not appear whether or not the necessarily concom-
mitant large portion of union members invited to the
meeting were inactive. Nor does the evidence reveal that
the number of union officers and stewards not invited to
the meeting constituted a majority or even a large seg-
ment of all the Union's employee officers and stewards.
Except for the handbilling activity, the extent of which
was not clearly shown to be known by Respondent, and
some evidence of grievance activities, the extent of
actual union activity of these officers known to Respond-
ent is also unclear. Therefore, I cannot determine wheth-
er the union officers, the three leafleters, and union
member Olinger were the more active of the union mem-
bers. Thus, despite Burdzinski's suspect testimony, I
cannot find that the General Counsel has established that
Respondent excluded employees from the July 31 meet-
ing on the basis of known union activism or other con-
certed, protected strike activities.
Former employee Mary Thomas testified that some-
time during the summer of 1980 Alexander and Burd-
14 The record is unclear as to whether Union Steward Alice Hatcher
was invited, and as to the status of Sharon Rawlins and whether she was
invited. Both appeared on Evarts' list of nonattendance.
zinski held a meeting of employees in the plant cafeteria
wherein Alexander told employees that certain unidenti-
fied grievances had been filed against Respondent which
he felt were groundless and "that they wouldn't get any-
where, and that the company lawers would see to that."
No context was given for this statement, and no corrobo-
rative testimony was offered. However, inasmuch as her
testimony was not contradicted by Alexander, I credit
Thomas.
2. Fall of 1980-Dues checkoff and membership
withdrawal
Burdzinski testified: "In approximately the fall of 1980
a number of employees stopped me and said, 'How do
we get out of the Union?"' When asked whether he
could identify those employees he named one employ-
ee-Karen Hall-who purportedly asked him four or
five times how to "get out." Burdzinski testified that
when this occurred during one of his plant peregrina-
tions he was "kind of taken by surprise" and that he did
not know how to answer and accordingly he made
copies of the "authorization and assignment statements,"
and underlined pertinent explanatory portions relative to
revocation and sent them only to those persons he be-
lieved had made inquiries. It was not established who or
how many persons received this data. Burdzinski testified
that his relief of putting "the whole thing at rest" was
shortlived as "several employees" to whom he had
spoken returned and told him that they still did not un-
derstand despite their receipt of his mailing, and that he
accordingly on or about October 14 mailed the following
letter to those same employees who complained that
they still did not understand:
As you may recall, the contract between the
Company and the Union permits union members to
resign from the union after a minimum period of
nine months. The authorization is automatically re-
newed at that time, but is revocable upon twenty
(20) days written notice. The notice of revocation
must be received by the employer and the union
prior to the end of any month.
Accordingly, as a union member, you will have
an opportunity to resign from the union if you
choose to do so by following the procedure set
forth below.
The decision is yours to make. The Company
simply wants to be sure you know about, and un-
derstand, your rights and privileges. Whether you
resign from the union, or whether you remain a
member will not make any difference in your
wages, benefits, position or treatment by the Com-
pany.
If you want to resign from the union:
1. You should date and sign two copies of the
enclosed letter addressed to the Company and
the union. (Keep the third copy for yourself.)
2. After our membership period of nine months
has passed, you should mail the two signed
copies, one to the Company, and one to the
union, in the enclosed envelopes.
6
GAYSTON CORPORATION
3. Be sure that the letters are sent by registered
mail. The contract between the union and the
Company requires registered mail for those no-
tices to be effective.
We repeat, the Company is not urging you either
to remain a member of the union or to resign from
the union. As far as the Company is concerned, that
is a matter for each man or woman to decide for
himself or herself without pressure from either the
Company or the union.
Attached to each letter were three copies of the fol-
lowing prepared statement:
To: Local 768 I.U.E. and Gayston Corporation
Under Article III, Paragraph 3.2 of the contract
between the Company and the Union, I am hereby
notifying you that I revoke my authorization for de-
duction by the Company of union dues from my
wages and that I hereby resign my membership in
the Union.
Also attached to the letter were two envelopes ad-
dressed respectively to the Union and Respondent on
which the lower left corner was typed "Registered
Mail."
Burdzinski testified that some of the employees who
received the second mailing told him that they still did
not understand. Again he did not identify nor did he
specify the number of employees who received the
second mailing. He testified that he never initiated a
meeting with any employee who had expressed a desire
to withdraw from the Union, but that "several employ-
ees at various times" approached him, and that he met
with these employees individually and in groups. These
employees were not identified nor did Burdzinski re-
count those conversations.
Linda Olinger testified that she received both mailings
but that she had made no prior requests for information
relative to dues-checkoff revocation or union member-
ship withdrawal. Burdzinski testified that he sent the first
mailing to those employees whom he "believed" had re-
quested information but he did not explicitly contradict
Olinger nor did he allude to any particular conversation
with her. I therefore credit Olinger.
Sometime in October, between October 12 and 13, em-
ployee Mary Thomas engaged in a conversation in build-
ing 1, near the truck entrance, during worktime on the
second shift with Supervisor Larry "Fuzzy" Ray.
Thomas testified that Ray approached her, told her that
he thought the Union was not "doing anything" for the
employees but was just taking their money, and asked
her what she thought of the Union. According to
Thomas, she responded that it was nice to know that
there was someone "backing up" the employee, but that
Ray thereupon told her that Respondent was in the
process of sending out form letters to each employee that
must be filled out, certified, and sent to Respondent and
the Union for the purpose of withdrawing from the
Union. Ray then asked whether she had received these
documents and she answered negatively. He then told
her to report to him whether or not she received these
papers thereafter. At that time Thomas' coworker, The-
resa Long, was on sick leave from October 12 to about
the first week in November. Thomas testified that Ray
asked her if she knew "anything what Theresa Long was
going to do," but that she responded that she had not
talked to Long. Ray then told her that he knew that
there were several union members, whom he did not
identify, who were planning to withdraw from union
membership. On another occasion he told her that Dim-
ples Mayberry and the janitor intended to drop out of
the Union.
Thomas testified that she had several more conversa-
tions with Ray thereafter at work and that, during the
full week following the first conversation, "it was a con-
stant discussion between us-day, evening, day in, day
out, wanting to know whether I received my papers for
the [union withdrawal]." She testified that Ray told her
that Respondent's president, Mark Stone, would person-
ally thank her if she withdrew her union membership.
However, she did not narrate any of the details of these
conversations nor did she testify as to what responses she
gave Ray. She only added that, during these discussions,
Ray mentioned "a couple of names."15 On some date in
October, according to Thomas, Ray told her that he
would "get with personnel" in order that she would re-
ceive her union withdrawal forms.
Thomas testified that on October 16 or 17 after the last
break on her shift after 10 p.m., as she was emerging
from the washroom in the rear of the building, Ray ap-
proached her and asked her whether she thought that it
would be too late in the day to telephone Long. She
thought not. He then, according to her, directed and ac-
companied her to Manager Penny's office to a phone on
the desk and instructed her to telephone Long. Upon
getting Long on the phone, she handed the phone back
to Ray and immediately returned to her job.
Long testified that she had received telephone calls
from Thomas wherein Thomas had narrated conversa-
tions she had with Ray concerning withdrawal from tthe
Union, and that on one occasion thereafter Thomas tele-
phoned her and put Ray on the line, and that thereafter
Ray and she engaged in some bantering regarding her
injury but then Ray asked her whether she had received
some "papers" from Respondent. She replied that she
had.1 6 According to Long, Ray asked her if she intend-
ed to withdraw from the Union and she responded that
she was "thinking about it" and that she explicitly agreed
with his observation that she could use the $12.79
monthly dues as she had three children. At that point
Ray told her that "Mary [Thomas] was going to get
out," and she responded that she would do "whatever
'I On cross-examination she retracted her direct testimony that Ray
told her Stone would make it "worthwhile," as she admitted that this
was her interpretation of what he said. She testified as above after she
was confronted with her pretrial affidavit.
i6 Long testified that she received the October letter to which the
withdrawal forms and envelopes were attached, despite the fact that she
did not receive the first mailing, thus contradicting Burdzinski who testi-
fied that the second mailing was limited exclusively to those employees
who had received the first mailing and who had later complained of the
lack of understanding thereof. As Burdzinski did not rebut Long's testi-
mony nor allude to a specific conversation with her, I credit her testimo-
ny in this regard.
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary does," and would talk to Mary. In response to his
question, she told him she would return to work the fol-
lowing Monday.
Thomas testified that later in the evening after the
telephone incident, Ray came to her at her work station
and told her that Long said that she would do whatever
Thomas would do and that she needed the dues money
for her children.
The following Monday, according to Long, she re-
turned to her job and at or about 4 or 4:30 p.m. Ray ap-
proached her and asked her whether she intended to
withdraw from the Union, to which she responded that
she did not know. Thereupon Ray told her that the with-
drawal requests had to be "certified." In answer to her
questions, Ray said that this was to be done at the post
office at a probable cost of "seven or eight dollars," to
which she commented to him that she could not afford it
and that he then walked away.1 7 However, during this
conversation, according to Long, Ray told her that if
Respondent ordered him to "put her out the door," that
he was helpless, and the Union could do "nothing about
it." Long testified to two occasions in the past where
Ray had assisted her and had prevented her discharge.
Thomas testified that, sometime "around" October 10,
Ray made an appointment for her to meet with Burd-
zinski in the personnel office. She testified that at 4 p.m.
Ray instructed her to turn off her machine and to go and
meet with Burdzinski. Ray accompanied her to that
meeting. At the meeting Ray told Burdzinski that
Thomas had a "problem," that she was interested in
dropping out of the Union but had not received her
"papers," and that he wanted to be sure that she re-
ceived them. At that point Burdzinski took some readily
available papers from the top of his desk and showed her
how to fill them out and explained the need to have
them "certified." According to Thomas, Burdzinski then
asked Ray whether there was any other night-shift em-
ployee that "needed to talk with him or discuss anything
with him," but Ray answered that he was unaware of
anyone else. Ray thereafter escorted Thomas back to her
work station.
Thomas testified that she noticed that Ray commenced
wearing a large button on which there were figures of
yellow stars about the time that he first questioned her
about union withdrawal and that as time elapsed the
number of stars on that button increased. She testified
that during one of their conversations regarding her re-
ceipt of the withdrawal forms she questioned him about
the button and he responded enigmatically, "the star was
in reference to a 3-star general of all assholes," and
smiled and said, "think about it."
Ray testified that he had been a supervisor for about 6
years and currently supervised about 23 employees in
building 1, second shift, and that in the fall of 1980 em-
ployees Jim Vickers and Dimples Mayberry asked him
how they could withdraw from union membership, and
accordingly he decided to see if he "could be of any
help" to Thomas by questioning her as to her union sym-
17 Long testified that the envelopes sent to her by Respondent were
"stamped," but, in light of her testimony regarding postage costs with
Ray, whatever was stamped on the envelopes apparently did not cover
the cost of registered mail or certified mail.
pathies. He does not contradict nor add to Thomas' ver-
sion of the interrogation as he could not remember what
she said, although he testified that she did not indicate an
opinion favorable or unfavorable to the Union. Ray testi-
fied that it was his recollection that "it just seemed like
the Union was up and [the employees] could either
rejoin or sign up again, or what have you." He admitted
conversing with Thomas about Long's union sympathies,
and also instructing Thomas to telephone Long, and to
his interrogating Long as to her support for the Union
and her intention as to withdrawing. Thus, neither
Thomas nor Long initially solicited such information
concerning union membership withdrawal. Ray denied
that he told Thomas that Stone told her he would make
it worth her while if she withdrew from the Union but
he did not explicitly deny any other aspect of her testi-
mony. He could not, however, remember a conversation
about the yellow star badge but merely testified that the
stars were reflective of production quotas despite the
fact that he was given no insructions about the badge
nor was there any contest concerning production. As to
conversations with Long, Ray only explicitly denied that
he ever alluded to the fact that she could be discharged.
In light of the more detailed, certain, largely uncontro-
verted, and corroborated testimony of Long and
Thomas, I credit them whenever they are inconsistent
with that of Ray who was less detailed in testimony and
less certain in demeanor. Ray failed to testify that he had
reported to Burdzinski the fact that employees had re-
quested information regarding union membership with-
drawal or dues-checkoff revocation. He admitted that
Vickers and Mayberry approached him concerning mem-
bership withdrawal after Burdzinski had mailed the
checkoff and membership withdrawal information.'8
Other than the foregoing incidents, no other evidence
was adduced by the General Counsel as to the receipt of
Burdzinski's union withdrawal material by an employee
who had not sought information from him concerning
the subject, despite the testimony of the General Counsel
witnesses concerning receipt of these documents, i.e.,
Long and Katherine Mumpower. Gail Stumpff, a Gener-
al Counsel witness, testified that she voluntarily ap-
proached Burdzinski in his office and that she first told
him that she desired to withdraw from the Union and
that he provided her with withdrawal materials at her re-
quest, but that she received information regarding mem-
bership withdrawal in the mail after that meeting. After
Stumpff withdrew from the Union in October, President
Stone came to her at her work station and thanked her
for having "trust in the Company," and explained that he
had received a copy of her letter of withdrawal from the
Union.
Edna Whitaker, a witness for the General Counsel, tes-
tified that, in October 1980, she initiated a conversation
with Burdzinski in his office, wherein she presented him
with a self-composed, self-initiated withdrawal of union
membership and that he offered her as an alternative a
"I Mayberry was called as a General Counsel witness and testified as
to other matters. On cross-examination she testified, in effect, that she
withdrew from union membership in October 1980, but she was not ques-
tioned about the circumstances.
8
GAYSTON CORPORATION
blank withdrawal form that he had previously prepared.
Like Stumpff, she did not testify as to the details of the
conversation, nor did she relate exactly what Burdzinski
said. She later mailed the withdrawal request several
days later. She also testified that, on the day that she ap-
proached Burdzinski in his office, several other employ-
ees coincidentally also had come into his office "for the
same reason." According to Whitaker, she did receive
Burdzinski's October mailings, but only "a lot later" after
she had mailed an executed union membership withdraw-
al request. Whitaker testified further that, within a few
days after her union withdrawal, Stone came to her at
her work station and thanked her for her "decision" and
told her he would try not to "let me down."
3. Winter 1980-threats, interrogations, and
surveillance
Althia Piercy was first employed by Respondent from
January 1978 until her resignation from her group leader
position in October 1979. During the Union's initial orga-
nization efforts, Piercy disclosed to Foreman Gary
Pfeiffer her opinion that "unions were a good thing." On
or shortly before September 29, 1980, she applied for re-
employment and discussed with Burdzinski the possibili-
ties of returning to her old position or to that of a ma-
chine operator. She expressed a preference for the latter
position, and in a second conversation with Burdzinski
her request for reemployment as a machine operator was
granted. In that conversation the mechanics of the reem-
ployment process were discussed. At the end of the
meeting, according to Piercy, Burdzinski stated, "Oh
yeah, and if you join the Union I'll fire you." Further,
according to her testimony, she responded, "Well, if you
do I'll-I'll go out there and tell them-I'll tell on you,"
and Burdzinski retorted, "I'll just deny it." Burdzinski,
who had been employed as a personnel director during
the Union's initial organizing effort and who actively
participated in both collective-bargaining negotiations,
denied that there had been any discussion of the Union
during Piercy's rehire process. He did not recount with
any detail the actual substance of the conversation nor
did he give his version of what transpired. For reasons
set forth more fully hereafter, I found neither witness to
have possessed complete candor. I find that Piercy exag-
gerated her testimony. However, I find that Burdzinski
was an evasive, calculating, and unconvincing witness in
numerous other areas. Both witnesses have an interest at
stake in this proceeding, although Respondent, as we
shall discuss below, still held out the prospect of possible
reinstatement to Piercy. Both witnesses generally were
assertive and forceful in recounting certain events.
Piercy's vivid account of the hiring interview was given
with a most certain demeanor which was similar to her
demeanor demonstrated when testifying to those inci-
dents which were admitted or not denied. Based upon
my observation of both witnesses in all their testimony, I
found Piercy to have been somewhat more spontaneous
and convincing. Although the threat to discharge was a
rather stark statement, the conversation occurred within
a context of overall Respondent aversion to the Union
and although Piercy had made favorable reference to the
Union in the past she had never joined it. I credit
Piercy's version of the reemployment interview and dis-
credit Burdzinski's denial of the threat.
During her second period of employment Piercy was
again supervised by Gary Pfeiffer who also supervised
between 25 and 32 employees in building 2, on the
second shift. In October, Pfeiffer engaged Piercy, at that
time a nonmember of the Union, in several conversations
at her work station where they often chatted briefly. In
early October, in one such conversation Piercy testified
that Pfeiffer stated that there were not going to be any
"people on his shift in the union because Mark Stone is
going to get rid of all of them." During that conversa-
tion Piercy noticed that Pfeiffer was wearing a badge on
which were fixed smiling faces and upon her inquiry, she
testified that he and Willie Dewey, who wore a similar
badge, had a personal contest to see which building
could experience the more union membership withdraw-
als. She also testified, without foundation, that other em-
ployees who had withdrawn from the Union wore simi-
lar badges. She also testified that in the same conversa-
tion, without context, that Pfeiffer stated that Stone had
said that he would "close the place down . . . before
he'd let the union people come in.. ."'9 She then tes-
tified that there was "another time" in October, in mid-
October, where Pfeiffer again engaged her in conversa-
tion and again without context, she testified that Pfeiffer
repeated the above Stone closure threat verbatim. When
additional effort was made in cross-examination to elicit
some details of these conversations Piercy appeared con-
fused and explained that because Pfeiffer had talked to
her so many times about the Union and about the badge
she could not "remember one conversation from the
other to be exact." Her testimony that she did not
"think" that Pfeiffer alluded to badges as symbols of pro-
ductivity was hesitant and uncertain. She did not explain
the circumstances or substance of other badge conversa-
tions. Pfeiffpr testified that he did indeed have a conver-
sation with Piercy regarding her question as to a badge
that he had worn, but that it was in reference to a badge
decorated with stars and he told her that each star repre-
sented each occasion when a production goal was
achieved. He testified that other employees wore badges
adorned with smiling faces or other decorations, but that
this occurred as a playful response to employee jibes, i.e.,
Pfeiffer made such badges for employees who had com-
plained, "where's my badge." He denied telling her that
there was any connection between the badges and the
Union. He denied the reference to Stone's retaliatory
plant closure threat. Pfeiffer did not deny the conversa-
tion regarding the prediction that there would soon be
no union members left in his department because Stone
would get rid of them.
Piercy testified further that in December Pfeiffer ap-
proached her at her work station just after the second
shift started and told her that he needed a "witness" and
that he wanted her to go to the lunchroom and listen
and later report to him as to what transpired and what
was said by union members. According to her, when she
angrily refused he allegedly said that he would prevail
'l The phrase used by her, "come in," was repeated again in her testi-
mony.
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on someone else to do it and said, "Maybe I'll even get a
tape recorder." When asked on direct examination as to
what further was said, Piercy testified: "Well, everytime
we talked about anything he would say that Mark Stone
was going to get rid of the troublemakers." She testified
in response to further inquiry that yes, he had also said it
on this occasion. When asked whether she had any fur-
ther conversations with Pfeiffer in December she re-
sponded, "and what year is this, by the way, that we're
talking about?" When reminded of the year by counsel
for the General Counsel her apparent confusion and un-
certainty cleared somewhat, but not entirely and she tes-
tified: "December-Oh Yes-He told me that the union
members probably wouldn't get a good Christmas
bonus." She could recall no details or context or any-
thing else about the conversation except that it occurred
on the second shift at her machine. On cross-examination
she testified, "and I remember him telling me that the
union members probably wouldn't get-I don't know if
he said wouldn't get a-a good Christmas bonus, or
wouldn't get one at all. And the other ones would prob-
ably get a good Christmas bonus." She testified that in
1980 everyone received the same Christmas bonus. She
conceded that in her pretrial affidavits that she had made
no reference to either the Christmas bonus or the surveil-
lance request conversation. With respect to the surveil-
lance conversation she testified that she was not certain
when it occurred. As to her conversations with Pfeiffer,
when pressed to estimate how many times the subject of
the Union arose, she testified "5 or 6 times or more."
Pfeiffer denied that he had requested Piercy to engage in
the above-described surveillance or that he ever told her
that Stone would get rid of "troublemakers." He, in
effect, denied the threat concerning the Christmas bonus.
In mid-January 1981, a confrontation developed be-
tween Pfeiffer and Piercy concerning certain prounion
sentiments she had expressed to other employees. Pfeiffer
testified that a couple of people, whom he did not wish
to identify, had reported to him that Piercy, while on
her own time, at lunch in the lunchroom, had made
"some kind of a remark that all of us ought to join the
Union or something like that-in that nature." Consider-
ing it part of his duties to report employee conversations
wherein employees urge others "to do this or that," or
where employees gather to discuss "various things," or
where they complain jointly or individually of work
conditions, Pfeiffer admittedly relayed this information
to his superior, Plant Manager Al Twehues. According
to Piercy's uncontradicted and therefore credited testi-
mony, she was summoned to Twehues' office where he
told her that he had heard that she was disappointed in
the low amount of a pay raise given to another employ-
ee, Martha Swindler. The merits of that level of raise
were discussed and Piercy stated that Swindler had not
been treated fairly. Then Twehues told Piercy that some-
one had reported to him that she had attempted to per-
suade other employees to join the Union. She denied it.
(In fact she had not engaged in that activity and was not
at that time a union member.) The conversation terminat-
ed when Twehues stated that he thought that Piercy
would be honest with him because she had always been
honest in the past.20 After that Twehues' conversation,
Piercy angrily confronted Pfeiffer about reporting to
Twehues that other employees were saying that she was
urging union membership. Pfeiffer admittedly responded,
"I just felt it was my job to go to Al and let him know
what was going on." A discussion ensued between them
as to who may have provided this information to
Pfeiffer.
According to Piercy's uncontradicted and credited tes-
timony, the following encounter occurred in late January
1981 and on her shift between 3:50 and 5:30 p.m. Plant
Manager Les Sontarre approached Piercy at her machine
and said that he wanted to ask her a question and pro-
ceeded to ask her, "I heard you were going to join."
Piercy asked him the source of his information and Son-
tarre responded, "Oh, I heard." Piercy tetified, in effect,
that she told Sontarre that he ought to become more fa-
miliar "with a lot of things on the second shift" and then
he might not have to worry "about all this, and ask
people all this." Sontarre persisted and sought an answer
to her question but Piercy responded, "Well, I really
haven't thought about it yet." Neither person explicitly
referred to the Union. Piercy assumed that was what
Sontarre was referring because union membership was
the talk of the shop at that time. However, she also testi-
fied without contradiction that Pfeiffer kept "bugging"
her and asking whether she intended to join the Union.
In light of Piercy's past conversation with Twehues and
Pfeiffer regarding the lunchroom incident, and Pfeiffer's
ongoing interrogations, and in light of the absence of any
type of organizational drive extant at the time, I con-
clude that Sontarre's reference was calculated to have
been to union membership.
Piercy testified, and Pfeiffer admitted, that Piercy told
Pfeiffer that he would be the first to know when she
joined the Union. Piercy testified that she signed a union
memberhip card solicited by employee Linda Collins on
February 16, and shortly thereafter kept her promise and
informed Pfeiffer near the lunchroom area. When she
had, Pfeiffer asked her why she had joined the Union.
Piercy testified without contradiction that she did so be-
cause that was what she thought she should do and be-
cause of the way employees were treated. Pfeiffer testi-
fied that he told Piercy in response that he did not think
she should have joined the Union because Respondent
had reemployed her at her old rate of pay and had been
"pretty fair" to her. Thus he clearly implied to her that
he considered her union membership as an act of disloy-
alty and ingratitude and an act which was adverse to Re-
spondent's interests. Piercy, however, not only retained
her union membership but on March 10, she succeeded
to the position of union steward on the second shift, and
assisted in the processing of a grievance filed by employ-
ee Dewey Messer.
In most respects Pfeiffer appeared to be a credible wit-
ness, i.e., he was spontaneous, responsive, and certain in
demeanor. He testified to much that did not advance Re-
spondent's position in this case. Piercy's testimony con-
cerning the Christmas bonus, the badges, and the threats
'o Twehues' conduct was not alleged as violative of the Act.
10
GAYSTON CORPORATION
of plant closure was conclusionary, cryptic, without con-
text, and marked by a demeanor that revealed a high
degree of uncertainty. Furthermore, a threat to prevent a
union from "coming in" does not make sense and is
therefore improbable in light of the incumbency of the
Union. I credit Pfeiffer's denials of that conduct. Howev-
er, with respect to the request to engage in surveillance,
I found Piercy to have been more detailed and vivid in
her recollection, whereas Pfeiffer, unlike the demeanor
demonstrated elsewhere in testimony became visibly dis-
concerted, hesitant, and uncertain in his denial. I there-
fore credit Piercy in that regard and conclude that
Pfeiffer did attempt to enlist Piercy in surveillance of
employees' union activities by eavesdropping and report-
ing back to him the conversations of union members.
Such conduct furthermore is in accord with Pfeiffer's
conception of his duties (i.e., the accumulating and re-
porting of such data to his superiors), his view that union
membership is adverse to the interest of Respondent, and
in accord with the impression cultivated by Respondent's
agents in conversations with Piercy and others that
union activities were under surveillance. Finally, I credit
Piercy's uncontradicted testimony regarding Pfeiffer's
prediction that union members would all be soon re-
moved from his shift as Stone planned to get rid of them,
and her uncontradicted testimony concerning the interro-
gations.
Dewey Messer was employed by Respondent from
October 27, 1980, until September 1981 when he quit.
During his employment he worked in building 2, on the
second shift under Pfeiffer's supervision. Messer joined
the Union in February. About I week later he had occa-
sion during his shift hours to visit the plant office where
he inquired of Pfeiffer whether he could shut down his
machine early that night. According to Messer, Pfeiffer,
however, said, "I heard about you joining the union,"
and Messer responded that he had joined to which
Pfeiffer retorted that it was a mistake. In response to
Messer's query as to why it was a mistake, Pfeiffer re-
sponded, "you will find out in the future." Pfeiffer could
not recall the substance of the conversation but testified
that a conversation did occur, that reference was made
to a union, that he thought Messer raised the subject,
that it is likely that Pfeiffer gave him an opinion. In light
of Pfeiffer's inability to effectively contradict Messer, I
credit the more certain and detailed testimony of Messer,
a witness not shown to have been possessed of any bias
against Respondent.
About 2 weeks before Messer quit, he experienced a
second conversation with Pfeiffer regarding the Union.
Pfeiffer stood outside the lunchroom reading materials
posted on the union bulletin board when Pfeiffer ap-
proached him. According to Messer's uncontradicted tes-
timony which I credit, Pfeiffer asked him what he was
doing and Messer responded, "nothing." Thereupon
Pfeiffer said, "That's about all that's on the bulletin
board is nothing." Messer asked what Pfeiffer meant and
Pfeiffer responded that Messer would "be finding out
pretty soon," and at that point drew his face right next
to Messer's face and said that when Messer did eventual-
ly find out that Pfeiffer would be the first one to "get in
[Messer's] face and laugh about it." Pfeiffer testified that
he could recall only part of the conversation, i.e., that
Messer said something concerning the union bulletin
board and that he, Pfeiffer, looked at him and said some-
thing like "Well, I'll be laughing in your face." He testi-
fied:
I can't remember. . . what he said at that time. But
at the time it seemed logical for me to make a state-
ment like that. It's more or less a smart answer, in a
way. He said something smart to me and I said
something smart back to him.
I credit Messer's more detailed, certain testimony.
C. 8(a)() Allegations-Conclusions
Vice President Alexander's conduct in the series of
meetings of employees on June 18, 1980, and President
Stone's conduct in his speech to employees on July 31,
1980, constituted attempts to discourage employees from
engaging in union and/or other concerted protected ac-
tivities by threatening employees who engage in such ac-
tivities with discharge, and as such violated Section
8(aXl1) of the Act. 2
Although the evidence is uncontradicted that Alexan-
der at a meeting of employees in summer 1980 stated
that certain "grievances" were filed against it which
were unjust and would not be successful and the compa-
ny lawyers would prevail, without more context, I
cannot conclude that such conduct tended to amount to
a statement that employees' resort to all concerted activi-
ties would be futile in any circumstances. I find no viola-
tive conduct occurred by that cryptic prediction that Re-
spondent's position would prevail.
Burdzinski's October 14, 1980, letter to union members
is alleged to have constituted an unlawful encouragement
of employees to withdraw support from the Union. In
Perkins Machine Ca, 141 NLRB 697 (1963); and Cyclops
Corporation, Tex-Tube Division, 216 NLRB 857 (1975), it
was held that similar types of communications sent to all
union members were not violative of the Act. In Perkins,
the letter set forth an assurance of the freedom from any
adverse impact, and in Cyclops no such explicit assurance
was given but it was found that no threats were implicit.
In Perkins there was no evidence that the information
was requested by employees, and in Cyclops only some
employees made such request. In both cases the letters
requested copies of withdrawal notifications, either be-
cause of contractual requirement or because it was ex-
plained that it was necessary in order for the cessation of
dues collection. In essence, the Board found nothing co-
ercive per se in the act of an employer informing employ-
ees as to the mechanics of withdrawing dues-checkoff
authorization and union membership, within the context
of those cases, i.e., a context free of coercive conduct, or
conduct by which such communication would assume an
imperative invocation.
21 The Board holds that employees who complain to governmental
agencies e.g. OSHA, about matters of mutual concern to other employ-
ees are engaged in concerted protected activities Allkn M Caompll
Company General Contracors Inc-, 245 NLRB 1002 (1979).
i1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the present case, the union membership was re-
duced from about 70 at the time of contract negotiation
to about 20 in late summer 1980.22 Respondent's conduct
preceding, concurrent with, and subsequent to the Octo-
ber 14 letter consisted of acts of interference with em-
ployees' rights to engage in union activity and to main-
tain union membership. I have already discussed the
speeches of Alexander and Stone, and the notices to em-
ployees by which conduct alone the employees must
necessarily have concluded that Respondent desired their
abandoned of concerted protected activities, including
union activities.
Shortly before the distribution of Burdzinski's mid-Oc-
tober letters, he had, on rehiring Piercy, threatened her
with discharge if she later joined the Union, thus violat-
ing Section 8(a)(1) of the Act. In early October 1980, Su-
pervisor Pfeiffer informed Piercy after her reassignment
under his supervision that there would soon be no more
union members left on his shift because Stone was going
to get rid of them. This conduct clearly tended to coerce
her with respect to her own decision to join the Union.
Although this was not precisely alleged in the complaint,
it was part of a conversation fully litigated as to the al-
leged plant closure threat. Accordingly I find it violative
of Section 8(a)(1) of the Act. Such starkly coercive con-
duct cannot be assumed to have remained a secret with
its victims. Rather, it can reasonably be inferred that an
impact resulted beyond the immediate object of such
conduct.
Against the background described above, it is there-
fore not surprising that some employees would have
asked for information as to union membership withdraw-
al. Moreover, I find that Respondent's conduct was a
causal factor in that aroused interest. Accordingly such
requests obtained under such coercive pressure is hardly
legitimatizing. In any event, although Burdzinski's ob-
scure testimony as to some vague number of employees
who requested information was verified by two General
Counsel witnesses, there remains also the unchallenged
evidence that some employees received these communi-
cations without having asked for it. Furthermore, con-
currently with the Burdzinski letters, Respondent, by its
supervisor and agent Ray coercively interrogating em-
ployees concerning their own and another employee's
union sympathies and ordering an employee to assist him
in such interrogations, thereby violating Section 8(a)(1)
of the Act. Ray, also by telling an employee that he was
aware of the identity of employees who were planning to
withdraw from the Union, without explaining how he
knew this, created a situation whereby the employee
must necessarily have inferred that he had engaged in
unlawful monitoring of employees' union sympathies,
thereby violating Section 8(a)(1) of the Act. Ray's con-
duct was intergal to a persistent effort on his part where-
by he encouraged and assisted, if not badgered, employ-
ees into renouncing the Union, and into encouraging
other employees to withdraw from the Union, thus vio-
lating Section 8(a)(1) of the Act. Rock-Tenn Company,
238 NLRB 403 (1978). I conclude that within the context
of the foregoing conduct by Ray, his oblique reference
Z2 I.e., as gauged by dues-checkoff authorizations.
to the possibility of discharge to one of the employees
who was an object of his unlawful campaign constituted
an implied threat of discharge if that employee did not
withdraw from the Union, thus constituting another vio-
lation of Section 8(a)(1) of the Act. President Stone's
conduct whereby he expressed personal gratitude to em-
ployees for withdrawing from the Union was not only a
clear signal to other employees of Respondent's desire
that they also should drop out of the Union, but also a
reminder to those to whom he spoke, that they should
stay out and thus violated Section 8(a)(1) of the Act.23
I conclude that the General Counsel had adduced suf-
ficient evidence upon which I must find that Respondent
was engaged in a course of conduct of which the distri-
bution of union membership withdrawal forms distribut-
ed by Burdzinski on October 14, and his personal assist-
ance in aiding employees in filing out appropriate with-
drawal forms, formed integral facets. I find that such
course of conduct, despite expressions of neutralizing as-
surances in the letters, was calculated to cause employees
to withdraw their union support and membership, and
accordingly I find that Respondent by the aforesaid con-
duct of Burdzinski violated Section 8(a)(1) of the Act.
Subsequently, Respondent persisted in conduct which
clearly interfered with employees' rights by Supervisor
Pfeiffer's attempt to induce employee Piercy to eaves-
drop and report back to him the conversations of union
members in the plant lunchroom;2 4 by Supervisor
Pfeiffer and Manager Sontarre's January 1981 coercive
interrogation of Piercy's union membership; by Pfeiffer's
mid-January 1981 statement to Piercy that as part of his
duties he had reported to his supervisor information con-
cerning her reputed efforts in the cafeteria to solicit sup-
port for the Union, without clarifying to her how this in-
formation was obtained, thereby created the impression
that employees' union activities were under surveil-
lance;25 by Pfeiffer's February interrogation of Piercy as
to why she had joined the Union; and by Pfeiffer's coer-
cive February interrogation of employee Messer. 2e By
each such action of its agents I find that Respondent vio-
lated Section 8(a)(1) of the Act, and thereby augmented
the context within which employees were to evaluate
Burdzinski's October 14 letter.
D. 8(a)(5) and Related 8(a)(1) Allegations
1. July 1980 pay raise - September 1981 bonus
At a general meeting of employees on September 4,
1981, at its facilities, Respondent granted its employees a
S200 cash bonus without having given the Union prior
notice and opportunity to bargain.2 7 The parties stipulat-
as Again, I must infer that awareness of such open conduct must nec-
essarily have proliferated among the employees, in a context where union
activities were reported by employees to supervisors and where retention
of union membership was the topic of discussions among employees.
14 The conduct was not explicitly alleged but was part of the conver-
sations between Piercy and Pfeiffer that were fully litigated.
"s Not alleged in the complaint but fully litigated.
26 I do not find in the ambiguous conversations between Messer and
Pfeiffer implied threats of reprisal, albeit they contain expressions of Re-
spondent's agent's contempt and ridicule of union membership.
7 As observed above, in late July 1980 Respondent granted its em-
ployees a 20-cent-per-hour general wage increase. That increase wa ef-
Continued
12
GAYSTON CORPORATION
ed that in December 1977 a $10 gift certificate was given
to employees as a Christmas bonus, and that in 1978 and
1979, $50 personal money orders were given in Decem-
ber as a Christmas bonus, that in December 1980 a
Christmas bonus of $75 was given, and that other various
gifts were distributed with these bonuses, that the $200
1981 bonus was not a Christmas bonus, and that no other
general bonus was given to all Respondent employees
during those years. Burdzinski, however, testified that in
addition to the foregoing bonuses, that a variety of bo-
nuses were issued on a variety of occasions without ob-
jection by the Union. The misleading nature of this testi-
mony was subsequently quickly exposed. On cross-exam-
ination he explained that these other "bonuses" were
given to individuals or groups of individuals and thus
were not general bonuses. On extended cross-examina-
tion he was vague and evasive as to what kinds of
groups were given other "bonuses." When pressed for
some common trait that would distinguish the employees
within a grouping he blithsomely testified: "They were
all employees." He could think of no other characteris-
tic. He could not remember the names of any recipient.
When pressed further on cross-examination he revealed
that what he testified to on direct examination as "bo-
nuses" were not at all augmentations of money paid to
employees in return for work performance, but rather
prize money that Respondent donated for company-spon-
sored games and beer busts totally unrelated to work
performance but which were awards for skill or chance.
With respect to the 20 cents 1980 pay raise Burdzinski
admitted that it was not discussed with the Union imme-
diately before its institution but he asserted: "We dis-
cussed it at contract negotiations at length."2 8 He testi-
fied that the same was true as to the 1980 $400 bonus.
He testified that in regard to the bonuses that Respond-
ent during contract negotiations informed the Union that
it intended to continue its practice of granting bonuses
and that the Union had agreed. Thus, according to Burd-
zinski, any agreement with the Union as to the continu-
ation of the historic bonus practice could only have con-
cerned Christmas bonuses, and game prizes and beer bust
prizes, and thus there was no past practice of, nor neces-
sarily any agreement concerning, any other general
bonus of the kind issued in September 1981. Burdzinski
testified that the contract negotiation discussions relative
to past bonus practice resulted in article 24 of the con-
tract which states:
24.1 The Company and the Union have had
ample opportunity to present for negotiations any
subject desired. Each, therefore, clearly and unmis-
takeably waives for the remainder of the term of
this Agreement the right to request either party to
negotiate on any subject whether or not covered in
this Agreement and whether or not mentioned
fectuated without prior notice and opportunity for bargaining to the em-
ployees' bargaining agent, i.e., the Union.
8 Other than the conclusionary testimony, no other details were given
as to such discussions. However, since the subsequent pay raise was the
result of an ad hoc decision, the only thing that could have been dis-
cussed was the subject of wage increase, and not the specific raise of July
1980.
during negotiations, except with respect to the ne-
gotiations of a new contract under Article XXV.
24.2 This Agreement is complete in writing. It
may be amended only by an instrument in writing
signed by the Company and appropriate Union rep-
resentatives. Such an amendment may be effective
during the term of this Agreement and may extend
the terms of this Agreement. This Agreement does
not operate to include, nor does it obligate the
Company to continue in effect, any working condi-
tion, benefit or past practice which is not covered
or contained in this Agreement.
24.3 If either party suggest any amendment to
this Agreement, the willingness of the other party
to discuss the request, or make any proposal, shall
not in any way negate the complete waiver set
forth in Section 24.1 of this Article, nor shall the
making of any amendment in any way negate Sec-
tion 24.1.
Burdzinski did not testify that there had been any pre-
contract, extra contractual agreement with the Union
concerning the issuance of general wage increases, but
rather he merely testified that the contract contains a
provision concerning the granting of wage increases
without notice to the Union. Respondent in its brief cites
article 21.7 which states:
. . . the Company reserves the right to individually
review any employee at any time for any reason
above and beyond the general merit review.
Clearly, however, that language is directed to individual
raises based upon individual reviews of individual em-
ployees. It is as in the balance of the contract silent as to
general wage increases beyond the single annual merit
review of all employees to occur in the fourth quarter of
the calendar year whereby each employee is to receive
wage increases of from a minimum of 3 percent to a
maximum of 15 percent based upon each employee's
work performance, attendance, and ability to cooperate
with fellow employees and supervisors.2 9 What occurred
in July 1980 was that Respondent granted an across-the-
board flat 20-cent-per-hour wage increase above and
beyond the annual merit review as a reward to employ-
ees as a whole because of Respondent's economic suc-
cesses. It was not in any sense a raise resulting from re-
views of all employees on an individual basis.
2. Burdzinski's September 1981 memorandum
On September 10, 1981, the Union filed an unfair labor
practice charge which, inter alia, alleged that Respond-
ent violated the Act by unilateral issuance of $200 bo-
nuses. On September 23, 1981, Burdzinski distributed to
the employees a memorandum attached to copies of that
charge which stated in part:
a' The contract sets forth in Appendix A specific minimum and maxi-
mum wages for the fourth quarter reviews of 1979 (i.e., 1979-80 wage
range) and fourth quarter reviews of 1980 (i.e., 1980-81 wage range).
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Thursday, September 10th, 1981, the IUE filed
a charge with the National Labor Relations Board
protesting the giving away of (the S200 bonus]. Ap-
parently, the Union did not want our employees to
receive that bonus.
3. Conclusions
Section 8(aX5) and (1) of the Act obliges an employer
to notify and consult with the designated exclusive bar-
gaining agent concerning changes in wages, hours, and
conditions of employment. N.LR.B. v. Benne Katz etc,
d/b/a Williamsburg Steel Products Co, 369 U.S. 736
(1962). Furthermore, as the Board has succinctly stated:
It is well established that during the existence of a
collective bargaining contract a union has a right to
bargain about the implementation of a term and
condition of employment, and an employer must
bargain about a mandatory subject of bargaining not
specifically covered in the contract or unequivocal-
ly waived by the Union. [G. TE Automatic Electric
Incorporated, 240 NLRB 297 (1979).]
A union may elect to waive its rights to notice and
bargaining by a contractual agreement. Bancroft Whitney
Co, Inc., 214 NLRB 57 (1974). A contractual waiver
will not lightly be inferred but must be clearly demon-
strated by the terms of the collective-bargaining agree-
ment and, under certan circumstances, from the history
of negotiations. Southern Florida, Hotel & Motel Associ-
ation, et aL, 245 NLRB 561 (1979); Hilton Hotel Corpora-
tion, 191 NLRB 283 (1971); or from unequivocal extrin-
sic evidence bearing upon ambiguous contractual lan-
guage. International Union of Operating Engineers, Local
Union 18, AFL-CIO (Davis-McGee, Inc), 238 NLRB 652
(1978). Furthermore, contractual language which re-
serves to the employer the right to make unilateral
changes with respect to certain areas will be strictly con-
strued and will not be interpreted to extend to other
areas in the absence of specific evidence of such intent.
Southern Florida; Hotel & Motel Association, supra (see
also Capitol Trucking Inc., 246 NLRB 135 (1979)).
However, when the proposed change concerning
wages, hours, or conditions of employment encompasses
a change or modification of an existing collective-bar-
gaining agreement, a stricter obligation is imposed upon
the employer. It is well-settled law that a modification of
a clear and unambiguous term of contract of fixed dura-
tion, regardless of economic motivation, must be ob-
tained pursuant to a positive affirmance by the employ-
ees' bargaining agent, otherwise the requirements of Sec-
tion 8(d) of the Act are not met and a violation of Sec-
tion 8(aX5) results. C & S Industries, Inc., 158 NLRB
454, 456-457 (1966); Oak Cliff-Golman Baking Company,
207 NLRB 1063 (1973); Sun Harbor Manor, 228 NLRB
945 (1977); Fairfield Nursing Home, 228 NLRB 208
(1977); Airport Limousine Service. Inc., 231 NLRB 932
(1977); Keystone Steel & Wire, Division of Keystone Consol-
idated Industries, Inc., 237 NLRB 763 (1978); Precision
Anodizing & Plating Inc., 244 NLRB 846 (1979); Struth-
ers Wells Corporation, 245 NLRB 1170 (1979). Thus, con-
tractual modification cannot be effectuated by merely
providing an opportunity for negotiation to the bargain-
ing agent.
As alleged in the complaint, the Union herein was
given no notice nor opportunity to bargain about the
1980 pay raise nor the September 1981 bonus. With re-
spect to the July 31, 1980, wage increase Respondent
argues that paragraph 21.7 of the contract constitutes a
clear waiver of its bargaining rights. I disagree and con-
clude that it does not even constitute an arguable waiver
of bargaining rights concerning extra contractual general
wage increases. With respect to the 1981 bonus, Re-
spondent argues that during the contract negotiations
prior to the 1979 contract, discussions of bonuses oc-
curred and that the Union had agreed to a continuation
of bonuses. I have concluded that the Union would have
agreed at most to the continuation of past practices, i.e.,
Christmas bonuses and donation of money for game and
beer bust prizes, and could not have agreed to the type
of unprecedented bonus granted in September 1981 be-
cause it could not have agreed to the continuation of
something not yet in existence. Respondent argues that
the following language contained in article 24 constitutes
an embodiment of an agreement between Respondent
and the Union that Respondent would be able to unilat-
erally grant bonuses:
This Agreement does not operate to include, nor
does it obligate the Company to continue in effect,
any working conditions, benefit or past practice
which is covered or contained in this Agreement.
As Respondent states in its brief, that very language,
however, "is such as to protect the Company should it
desire not to continue giving bonuses." But the only real
bonuses historically given by Respondent had been
Christmas bonuses of significantly lesser amounts. The
September 1979 general bonus was unprecedented as to
kind and amount. I find no clear waiver contained in the
contract whereby the Union waives bargaining rights
concerning the issuance or amount of a new kind of
bonus. Respondent does not argue, and I do not find that
any other language in article 24, i.e., the zipper clause
constitutes a waiver of bargaining rights inasmuch as
there is no evidence that the particular type of bonus and
wage increases involved in the unilateral action was fully
discussed, nor even proposed, nor that the Union clearly
waived its interest regarding that particular type of wage
increase and that particular type of bonus. G.T.E Auto-
matic Electric Incorporated supra, Angelus Block Co., Inc.,
250 NLRB 868, 877 (1980). Accordingly I find that Re-
spondent violated Section 8(aXS) of the Act in bypassing
the employees' collective bargaining and unilaterally
granting the July 31, 1980, bonus. I further conclude that
the general pay raise of 1980 modified the wage rates set
forth in the collective-bargaining agreement and as such
constituted a midterm modification of the contract with-
out the express acquiescence of the Union, and therefore
constituted a breach of Respondent's obligations under
Section 8(d) of the Act, and violated Section 8(aXS) of
the Act as conduct in derogation of the contract as al-
leged in the complaint.
14
GAYSTON CORPORATION
With respect to the September 23, 1981, memorandum
to employees, the General Counsel alleges that by such
conduct Respondent sought to create the impression that
the Union was opposed to the granting of the bonus,
thereby undermining the Union's position as bargaining
representative. Respondent asserts that the memorandum
"merely sets forth the [Respondent's] legal position with
respect to the bonus is protected speech." Certainly the
notice on its face constitutes an attempt to erode employ-
ees' support for the Union by informing the employees
that the Union is adverse to the employees' own eco-
nomic interests. The memorandum constitutes a gross
distortion of the Union's position. The Union's charge, as
Respondent, having had recourse to experienced legal
counsel, ought well realize, is not premised on the fact
that employees received a bonus. Rather, it is premised
upon the manner in which that bonus was effectuated,
i.e., in a manner to unlawfully erode the bargaining posi-
tion of the Union by depriving the Union of an opportu-
nity to assert its bargaining rights guaranteed under the
law whereby it might have negotiated for greater bene-
fits or different kinds of benefits. Furthermore, as the
General Counsel correctly argues, that memorandum im-
plies that if the Union's position with respect to the
unfair labor practice charge succeeds, that the net result
would be a rescission of the bonus. Such rescission is
clearly contrary to the Board's virtually universal policy
to refuse to order a withdrawal of benefits unilaterally
bestowed albeit in violation of the Act. Accordingly, the
statement constitutes a threat by Respondent to rescind
the bonus if the Union succeeds in the prosecution of the
unfair labor practice charge. Cf. Southside Electric Coop-
erative, Inc., 243 NLRB 390, 399 (1979). Clearly a with-
drawal of such benefits would only enhance the coercive
effect of Respondent's conduct. Accordingly, I reject
Respondent's defense and conclude that by Burdzinski's
patently coercive memorandum of September 23, 1981,
Respondent violated Section 8(aX1) of the Act.3°
E. 8(a)(3) Allegations
Findings of Facts and Conclusions of Law
1. Discrimination against Piercy
Upon her return to employment in October 1980,
Piercy was assigned as a 4-D plate machine operator
which utilized what is characterized as "soluble" oil. In
March, Piercy requested Pfeiffer to assign her to the 4-
D cup machine which she had operated at some time in
the past. Pfeiffer promised to return her to the 4-D cup
machine when he could. Several weeks later he granted
her request. At some point since she last worked on 4-D
cup machines, Respondent had commenced using 41-D
oil, i.e., recycled oil to which solvent and chemical
agents were added. Although Piercy had operated the 4-
D cup machine in the past without severe problems and
had experienced no difficulties in operating the 4-D plate
machine, she soon developed a rash on her arm. On or
shortly before March 20, she complained to Pfeiffer that
"J That conduct was not alleged nor argued to be violative of Sec.
8(aX5) of the Act, and since an additional finding of 8(aXS) conduct
would not add significantly to the remedy, I make no such finding.
the rash had become acutely painful. Manager Twehues
approached her at her machine and suggested she be ex-
amined by a physician. On March 20, she was examined
by her physician, Dr. Priest, who prepared a form, "dis-
ability certificate" which Piercy presented to Respond-
ent, and which stated she was capable of performing
"light" work and that she was "to stay out of contact
with 41-D. oil altogether [and] recheck in 2 weeks."
Piercy testified, without contradiction, that when she
presented that statement to Pfeiffer, he responded that
there would be no problem "at all" and then he assigned
her to operate a machine that utilized no oil at all. She
operated that machine on that day, Friday, and the
Monday thereafter. On Tuesday, he asked her how her
arm was. She replied that it was getting well. However,
contrary to Priest's instructions, Pfeiffer then assigned
her to a machine using 41-D oil which she operated
from Tuesday until Friday. After 1-1/2 hours of work on
Friday she became nauseous from the oil fumes and
could not work the balance of the day.'1
According to Piercy, on Monday, March 30, Piercy
was called to Burdzinski's office and told by him that she
would not be allowed to work on any machine utilizing
oil. When asked why she could not trade machines so
she could work with soluble oil, Burdzinski responded
that even if her request were granted there would still be
no guarantee that she would not be in contact with 41-D
oil. He did not explain. After that conversation, accord-
ing to Piercy's uncontradicted and credible testimony,
she spoke individually to both Twehues and Pfeiffer and
asked them why she could not trade with other em-
ployes for an oil soluble machine. Pfeiffer responded he
could not tell her anything, and Twehues told her that
could not put her on another machine because, "Bud said
he was going to do it his way." As of Monday, March
30, Respondent's personnel file memorandum for Piercy,
signed, inter alia, by Burdzinski, reflects that she was
placed on an indefinite leave of absence.
On April 28, Dr. Priest filled out another form certifi-
cate for Piercy which she presented to Burdzinski that
day. It stated that she was able to return to "regular"
duty on Wednesday, April 29. Burdzinski told her, ac-
cording to her uncontradicted testimony, that he did not
understand that statement and that he wanted to obtain
more information from Dr. Priest and that he would not
permit her to work. He gave her no other explanation.
Burdzinski testified that he did not reinstate Piercy
upon receipt of the April 28 certification because he "felt
that it was inconsistent with other messages" that he had
received from Dr. Priest. Counsel for Respondent elicit-
ed the following testimony from Burdzinski, who nor-
mally loquacious and assertive witness, appeared unusu-
ally hesitant and unassured at this point:
S' Burdzinski's testimony that Piercy was put on medical leave of ab-
sence upon the receipt of the March 20 note is starkly contradicted by
Respondent's own personnel file data. Pfeiffer did not testify in detail as
to the events after March 20, except to my that after Piercy returned to
work Burdzinski and Twehues "more or less took over because she came
back with a doctors excuse." and that at a later time she unsuccessfully
tried to utilize a protective glove. I credit Piercy's testimony as to the
events immediately after March 20.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Inconsistent in what way?
A. I thought that this statement was not in keep-
ing with what he had been saying about her condi-
tion.
Q. In what way?
A. Well, that she should not work in this oil and
should not work in this oil on a permanent basis and
that was an unchanging circumstance. This note fol-
lowed notes that said that.
Q. In other words you have received notes in the
past saying that she had a permanent restriction and
this indicates there's no permanent restriction?
A. That's right.32
On cross-examination Burdzinski testified that Dr.
Priest's notes were confusing, i.e., some referred to 41-D
oil and others just refered to "oil." Burdzinski gave no
dates for these other "notes" nor explained what precipi-
tated those messages.
Piercy testified that the next event that occurred was
that on a later undisclosed date Burdzinski communicat-
ed with Dr. Priest and asked for more information, and
that as a consequence a letter was mailed to Respondent
from Dr. Priest on May 26, a copy of which was sent to
Piercy. The letter stated:
Mrs. Piercy was seen on March 20, 1981 stating
that she had a rash on her left hand and right arm
from working around oil and that it had been
present for approximately one month. My impres-
sion was that she suffered from a contact dermatitis
secondary to the use of this oil.
At this juncture, her condition has improved im-
measurably and I feel that she could be released for
full duties on June 1, 1981 with no restrictions.
If the rash should recur, an evaluation and opin-
ion of a dermatologist should be effected.
Piercy testified without contradiction that after the re-
ceipt of that letter by Respondent, she contacted Burd-
zinski several times and requested reinstatement but that
he refused and claimed that he required more time to
evaluate that brief letter.
On June 8, at a meeting between Piercy, Burdzinski,
and Union President Red Farrell, Burdzinski offered re-
instatement doing "the same thing." Piercy responded
"fine." She was immediately sent to work. However, her
regular 4-D cup machine did not have parts to run. She
therefore ran a clutch shell machine which used 41-D oil
but which did not spray oil onto her arms as did her reg-
ular 4-D cup, six-spindle machine. Her hands did come
into contact with 41-D oil. During late June or early
July, Piercy was reassigned to her regular 4-D cup ma-
chine. After a few days her arms began to experience a
burning rash. She reported to Pfeiffer who sent her to a
hospital. Before she left she requested a transfer to an oil
soluble machine. He told her he could not grant her re-
quest. He did not explain. She thereafter was examined
st Despite the fact that Burdzinski maintained detailed file memoranda
and personnel records, no effort was made by Respondent to corroborate
Burdzinski by adducing copies of these notes. No objection, however,
was raised as to this testimony, nor was there any demand for production
of these notes. Dr. Priest did not testify.
by a physician, and received a medical statement which
proscribed her contact with the "chemical" for 4 or 5
days.
The next day Twehues, Pfeiffer, Chief Steward Eunice
Fleming, and Burdzinski met and discussed Piercy's situ-
ation, after Twehues told Piercy she should not clock in.
According to Piercy's uncontradicted testimony, she pre-
sented Burdzinski with the June 8 medical statement and
asked Burdzinski why she could not trade jobs with an-
other employee, so that she could work with soluble oil
but that Burdzinski responded that he could not in any
event guarantee that she could be kept out of contact
with 41-D oil, and that he required medical answers to
his questions. Fleming asked the nature of the medical
questions and asked why Piercy could not trade jobs
with an operator in building 1.33 According to Fleming's
uncontradicted testimony, Burdzinski remained silent.
Fleming insisted upon an answer, but Burdzinski would
say no more but instead insisted that Piercy be put on a
leave of absence until further notice. During the conver-
sation Fleming insisted to Burdzinski that Respondent
had in the past made arrangements to accommodate in-
jured employees but that Burdzinski denied the prac-
tice.3 4 Fleming gave him the name of an employee who
had been accommodated and told him to check it (i.e.,
an employee with a broken finger whom the janitor as-
sisted).
In July, Piercy and Mumpower approached Twehues
and offered an exchange of jobs between them but were
refused. Thereafter, on dates unspecified, Piercy tele-
phoned Burdzinski several times and requested reinstate-
ment. Burdzinski, according to her uncontradicted testi-
mony, insisted on a medical release. Thereafter, on an
unknown date, Piercy submitted to Respondent a medi-
cal statement which indicated, according to her uncon-
tradicted testimony, that she could be reinstated on con-
dition that she wore a protective covering on her arms.
Piercy therefore purchased a protective arm's-length
glove and so informed Burdzinski in a phone call. Burd-
zinski told her that if she wanted to speed her return that
she should talk to her doctor inasmuch as Burdzinski had
written him a letter and was waiting for a response.
Piercy then contacted her doctor who told her that
Burdzinski wanted to know the meaning of the word
"gauntlet," and that the doctor explained to him what it
meant. Thereafter on August 3, Piercy was reinstated to
work on condition that she wear that glove at all times
in the shop regardless of machine or type of oil used.
3" Fleming corroborated Piercy. Fleming testified that she protested
the unfairness of the refusal to permit an exchange of jobs, particularly
when she told Burdzinski of the name of the employee who volunteered
to trade jobs with Piercy in building I, and also named other volunteers.
Union Committeeperson Linda Collins testified without contradiction
that during Piercy's absence non-41-D oil-using machines were operated
by other employees and that between March and July 1981 she and em-
ployee Bernice Hood approached Twehues and offered a trade of ma-
chine between Hood and Piercy and that Twehues refused and said that
Burdzinski wanted to "handle it his way." Collins also informed Twehues
of other volunteers willing to trade machines with Piercy.
34 Burdzinski did not contradict Fleming. I credit her. In light of
Burdzinski's subsequent testimony as to accomodation, I conclude that he
falsely stated to her Respondent's policy and practice as to such lack of
accommodation.
16
GAYSTON CORPORATION
Thereafter the glove quickly deteriorated and no effec-
tive substitute could be found by her. Piercy testified,
without contradiction, that on August 13, pursuant to
her request, Pfeiffer permitted her to work on an oil
soluble using machine by trading with other employees
and that was the only time she had not been assigned to
a 41-D oil using machine between August 3 and 14. On
August 14, Piercy was informed by Burdzinski that she
was being put on a leave of absence. Piercy thereafter at-
tempted without success to locate a proper effective
glove. In September or October, Piercy telephoned
Burdzinski and asked when she could return to work and
was told that he would require a medical release. She
asked why she could not trade machines with Mum-
power, as had been permitted on August 13. He merely
told her that she could not, but that he would find a job
for her and would contact her. She had received no con-
tact thereafter. Piercy has subsequently been advised by
the Union that Respondent desired her to be examined
by a dermatologist. She has had no such examination,
having been treated by her regular physician, Dr. Priest.
Burdzinski testified that he placed Piercy on a leave of
absence, where she remains, because he is not certain
what chemical is causing her skin reaction, i.e., accord-
ing to his conversation with Dr. Priest, no scientific tests
have been performed and Priest's conclusions are based
upon Piercy's statements and that Respondent is current-
ly attempting to obtain a dermatologist's examination.
Burdzinski admitted that Respondent's policy and prac-
tice is to accommodate, wherever possible, employees
who have medical restrictions and limitations, but that if
the employee cannot be accommodated, the employee is
separated.35 Examples of past terminations of employees
with health problems cited by Burdzinski, however, in-
volved situations where employees were totally debilitat-
ed by contact with any type of oil, or where they were
allergic or adversely affected by the total work environ-
ment. Burdzinski testified that he was unable to conclude
that Piercy's problems were related solely to contact
with 41-D oil, and he questioned Dr. Priest's apparent
conclusions as to 41-D oil as the cause of Piercy's skin
reactions in light of what he termed were Priest's con-
flicting statements to him, i.e., one note which stated that
Piercy should stay out of oil without clarification or
type, another note that referred only to 41-D oil, a note
that said she had improved, and a communication that
she had a permanent problem.
Burdzinski testified that he directed that Piercy be al-
lowed to work as any other operator. Burdzinski denied
any "personal" knowledge that Pfeiffer, after March 20,
had assigned Piercy to 41-D oil using machines almost
exclusively, and any "personal" knowledge that she ever
had worked on soluble oil machines. However, Pfeiffer's
testimony indicates that Burdzinski was in direct control
of Piercy's situation, and his and Twehues' refusal to
permit an exchange of jobs necessitates the conclusion
that Burdzinski must have been personally aware of and
responsible for the nature of Piercy's assignments, par-
ticularly in view of his awareness of a medical problem.
a" The General Counsel adduced evidence of a variety of situations
wherein Respondent accommodated the partial incapacities of employees.
In light of Burdzinski's admission there is no need to recite them herein.
Burdzinski admitted that although all machines are ca-
pable of using both types of oil, that normally Respond-
ent operates certain machines which use soluble oil ex-
clusively and certain machines which use 41-D oil exclu-
sively. Burdzinski testified that he had no basis upon
which to conclude that Piercy had improved when as-
signed to soluble oil using machines.3a Accordingly he
never instructed that she be assigned only to a soluble oil
using machine. No other evidence was adduced by Re-
spondent to demonstrate why Piercy's and the Union's
request for approval of a voluntary exchange of jobs
which would have resulted in her transfer to a non-41-D
oil machine was not granted except for Burdzinski's testi-
mony that Respondent does not permit employees to
choose their own work assignments. However, it is ad-
mitted that Piercy's initial transfer request to the 4-D
cup machine was granted for no other reason than she
asked for it.37
From the foregoing facts I conclude that Piercy suf-
fered from a rash whenever she operated a 4-D cup ma-
chine which utilized the recycled 41-D oil and that she
experienced relief when not working on such a machine.
I conclude that Pfeiffer was aware of her reaction when-
ever he assigned her to a 4-D cup machine. I conclude
that as of March 20, he was aware of a medical state-
ment which instructed against her assigned to contact
with 41-D oil, but that after following that prescription
for several days and after observing an improvement he
nevertheless assigned her again to a 41-D oil machine
only to see her debilitation ensue. As explained above, I
conclude that Burdzinski caused these assignments and
was aware of the reaction, and that he put Piercy on a
leave of absence on March 30, after he countermanded
Pfeiffer's original compliance with Dr. Priest's orders
and after he obtained evidence that Piercy could not
work with the 4-D cup machine. I conclude that Re-
spondent failed to abide by its own admitted policy and
practice by refusing to accommodate Piercy's request to
transfer to an oil soluble machine. I conclude that Re-
spondent has failed to demonstrate any justifiable busi-
ness reason for its departure from its own plant policy
and practice. I find Burdzinski's testimony concerning
the basis for his rejection of Dr. Priest's April 28 medical
release to be not credible inasmuch as his vague, uncon-
vincing testimony as to other inconsistent notes was not
corroborated by evidence within the control of Respond-
ent, and was in any event improbable as there was no oc-
casion between March 20 and April 28 for Dr. Priest to
have forwarded any other "note," releases, statements,
etc., to Respondent, and certainly no basis for Dr. Priest
to have at that early date issued any prognosis of a per-
manent nature, as he had not even done at any later
point. Indeed, those notes adduced into evidence reveal a
tendency to tentative conclusions. I find that Burdzinski's
explanation that there was a danger that Piercy would
3' In light of Pfeiffer's testimony regarding Burdzinski's control of the
situation, I find this testimony to be not credible.
a7 One of the individual employees who offered to trade job assign-
ments to accommodate Piercy was the self same employee who had been
assigned Piercy's original oil soluble machine from which she was trans-
ferred in March 1981.
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been exposed to 41-D oil in any event is inexplica-
ble and contrary not only to his own testimony that cer-
tain machines normally do not use 41-D oil, but also
contrary to Piercy's palpable improvement known to and
observed by Respondent when she was not assigned to
41-D oil. Respondent argues that it was justified in not
assigning Piercy to any machinery which utilized oil be-
cause it was acting in the interests of her health and to
protect itself from liability. However, if that were Re-
spondent's motivation, it fails to explain why, when it
did permit her to work upon notification of a problem, it
assigned her almost exclusively to machines using that
type of recycled oil of which she complained, but stead-
fastly, for no cogent proffered reason, refused to assign
her on a regular basis to one of several machines which
used nonrecycled oil and whose operators offered to
trade with Piercy. Respondent asserts that it is trying to
arrange for an examination of Piercy by a dermatologist,
but the only reference to a dermatologist appears to have
arisen long after the unfair labor practice was filed.
Piercy was only advised obliquely by the Union before
the second session of this hearing that Respondent was
attempting to consult a dermatologist. Piercy was never
told by Burdzinski that Respondent desired her to con-
sult a specialist. Rather, Burdzinski deferred action pend-
ing his lengthy evaluations of simply phrased messages
from Dr. Priest, and the doctor's simple suggestion that
she utilize a protective glove.
I find that Respondent deviated from its past practice
by denying Piercy's request for transfer from an assign-
ment to a machine which caused her to suffer a palpable
adverse skin reaction to a machine which she demon-
strated could be operated with no adverse reaction for
no justifiable reason. This disparate treatment of Piercy
is unexplainable except of the fact that Piercy was
known by Respondent to have joined the Union and to
have engaged in union activity, conduct to which Re-
spondent was clearly hostile. Accordingly, I conclude
that Respondent's assignment of the 4-D cup machine to
Piercy after March 20 constituted an assignment of what
was to her onerous work calculated to and which did
result in a forced leave of absence from March 30, 1981,
until June 8, 1981, and from early July to August 3 and
from August 14 and thereafter because of her member-
ship in and activities on behalf of the Union and thus in
violation of Section 8(a)(1) and (3) of the Act.
2. Discrimination against Debra Gilmore
Debra Gilmore was hired by Respondent in May 1973.
In 1977, her active employment was interrupted by an
extended pregnancy situation which resulted in a work
hiatus from December 1977 until August 1978. She ulti-
mately became an inspector. Her work record reveals
only a single minor reprimand. In August 1979, she was
required to take a leave of absence in order to undergo
medical surgery. Her scheduled date of return was, with
Burdzinski's approval, extended twice.3 a Gilmore was
38 I credit Gilmore as to her testimony in this regard. She was not ex-
plicitly contradicted by Burdzinski. Burdzinski testified that all personnel
actions in this regard were documented. Gilmore testified as to at least
two extensions but Respondent only adduced into evidence a separation
form dated August 30, 1979, which indicates an expected return date of
first scheduled to return in October 1979. She visited the
plant twice in October and spoke individually with Burd-
zinski, her supervisor, Jack Mulhern, and Union Steward
Sondra Johnson on separate occasions. Johnson was an
inspector and coworker with whom she often spoke. Ac-
cording to Gilmore, she merely discussed generalities
with her. According to Gilmore, in mid or late October
she visited Burdzinski, presented a medical statement to
him, and discussed her return. He told her in regard to
an extension of her return date, "Fine, just take your
time and get well and come back." She was then sched-
uled to return to work on November 19, but she suffered
a medical relapse and could not return as promised and
was granted an extension to return at the end of Novem-
ber.
On or about November 5, Gilmore visited the plant
and talked to Burdzinski, Mulhern, and Johnson individ-
ually. She testified that she talked with Burdzinski alone
in his office where she told him that she was still recu-
perating. She visited with Mulhern in Burdzinski's outer
office and asked him "how the job was going," and Mul-
hern responded, "Fine, we're holding the job for you.
Get well and come back."3 9 Gilmore testified that a few
minutes later she next visited the inspection room, a quiet
enclosed room, where she talked with Johnson "about
returning to work a signing union card." She testified
that she then signed a union membership card and a
dues-checkoff authorization card and gave them to John-
son, and that she also gave her medical release forms to
Johnson in order that she might deliver them to Burd-
zinski. She did not explain why she did not give them
directly to Burdzinski to whom she had just spoken. Gil-
more testified on direct examination after testifying that
Johnson was in the inspection room, that Mulhern was
also present and that at some point Mulhern, without
saying anything, "just kind of turned in his chair . . .
like to recognize who was talking." On cross-examina-
tion she testified that Mulhern had entered the room
about 90 seconds after she did and was "doing something
with his hands" at his desk about 7 feet away.40
Johnson testified that Gilmore entered the room which
she characterized as the "lab" after Burdzinski had re-
fused to see Gilmore because he was too busy and that
Gilmore therefore asked her to transmit the medical re-
leases which they had discussed earlier in October.41
November 19, 1979, and a memo dated November 1, 1979, which reflects
nonsensically that Gilmore requested and was granted an "extension of
her leave of absence until 11/19/79." That patent ambiguity raises ques-
tions as to the reliablity of Burdzinski's recorded data. Accordingly, I
rely on Gilmore's testimony.
Sg Gilmore's testimony regarding these conversations with Burdzinski
and Mulhern are uncontradicted.
40 She conceded that she had no ability to estimate distances and that
her estimates were meaningless. She had testified that the size of the in-
spection room was the size of the hearing room which I take notice of
being about 20 feet wide and 30 feet long. Her testimony was uncontra-
dicted. However, I doubt her testimony that a normal conversational
tone at one end of the room could be heard at the other end. Moreover,
she appeared to be a soft-spoken person.
*4 Johnson testified that in October Gilmore came to her and told her
that Burdzinski instructed her to obtain more specific medical releases.
Gilmore's testimony did not indicate the details of their October conver-
sations and was silent in this regard.
18
GAYSTON CORPORATION
Johnson did not explain the basis for the conclusion that
Burdzinski had refused to see Gilmore.
Johnson testified that Gilmore came into the lab
during Johnson's lunch break and that Mulhern and
Francis Davis, the government inspector was also
present. She corroborated Gilmore as to the union card
and checkoff card execution, and testified that she later
gave Burdzinski the medical statement and the checkoff
authorization at 3:30 p.m. on that day. Johnson conceded
that the collective-bargaining agreement had not yet
been executed by the parties and could only explain pur-
suant to Respondent's counsel's suggestion that she was
"anticipating" its execution. Johnson was silent as to
Mulhern's location in the room, and as to his conduct.
Gilmore tesified that she signed two sets of membership
and checkoff authorization cards for Johnson on two dif-
ferent occasions, the first of which was about early or
mid-October 1979, in the plant parking lot, and the
second of which was in the inspection room in Novem-
ber. Johnson testified that Gilmore signed two different
union checkoff cards, the first of which was in Novem-
ber 1979, and the second of which was in December
1979, and that the former was the first card which she
delivered to Burdzinski. The General Counsel did not
produce or offer into evidence Gilmore's membership
cards.
At the end of November 1979, the Union had present-
ed to Respondent the first group of dues-checkoff au-
thorization cards. In an affidavit submitted to the Board
during the investigation of this case, Union Vice Presi-
dent Ronald Combs attached a list of the names of those
employees. Gilmore's name was not among them. In at-
tempted explanation Combs testified that there were
three or four separate sets of signed cards, and that the
first set of 70 cards had been lost and that it was possible
that her card was one of the lost cards. He thus implied-
ly conceded the accuracy of that affidavit. He testified
that a dispute arose between the Union and Respondent
thereafter regarding subsequent sets of cards as to the
language thereon and that employees were requested by
the Union to reexecute union cards and dues-checkoff
authorizations. Respondent adduced into evidence, with-
out objection a dues-checkoff authorization card signed
and dated by Gilmore, which bore the execution date of
February 4, 1980. Burdzinski testified that was the only
dues-checkoff authorization that he had ever received for
Gilmore.
Because of the inconsistencies between Gilmore and
Johnson in their testimony, the contradiction of their tes-
timony by the face of the February 4, 1980, dues-check-
off authorization, the absences of Gilmore's card among
those presented to Respondent at the end of November,
the improbability of Johnson's presentation of a dues-
checkoff card to Burdzinski in early November prior to
the effective date of the contract and prior to the
Union's submission of its first group of cards, I credit
Burdzinski that the only dues-checkoff authorization for
Gilmore he received was that dated February 4, 1980.
Therefore, I cannot credit testimony that Gilmore signed
a membership and checkoff authorization card in early
November in the inspection room. Furthermore, I cannot
conclude from Gilmore's vague and uncertain testimony
that Supervisor Mulhern was so situated in the inspection
room (lab?), at a time and location that he necessarily
must have heard the discussion between Gilmore and
Johnson or that he observed what had transpired.
Gilmore testified that on or about November 16, she
again visited Burdzinski at his plant office and that he
told her that there had been a "cut-back on inspection"
and that she would have to operate a machine. She testi-
fied, without contradiction, that on encountering Mul-
hern as she departed Burdzinski's office, Mulhern in re-
sponse to her question told her he did not know why she
was being taken off inspection work. Gilmore testified
that the next day Burdzinski telephoned her and advised
that the "job that he had in mind-didn't go through or
whatever," and that she ought to file for unemployment
compensation.
Burdzinski's testimony as to the planned attrition of
the inspection position and other nonproducing positions
as part of his personal and individually conceived and
implemented "war on waste" is uncontroverted and in
part corroborated by business records. Upon Burdzinski's
assumption of duties as a personnel director "fresh out of
college" he found an employment complement of about
350 persons, and a projected employment ceiling of
about 400 persons. After a period of observation and self-
styled "snooping," he conceived a variety of schemes to
reduce the employment level and other cost factors, in-
cluding his boldly conceived plan to eliminate the third
shift and to proportionately augment the other shifts
which, after utilizing his powers of persuasion to con-
vince his doubting, reluctant elder superiors, was effectu-
ated in January 1979. Respondent had never abided by
any seniority practice regarding layoffs and had never
implemented any bumping practice. The entire third shift
was laid off almost in its entirety. Gradually some em-
ployees were recalled to other shifts.
Burdzinski testified that he became aware of Gilmore's
"existence" in 1979 when he was advised of her unex-
pected surgery. He testified that she had been on a leave
of absence "for quite a while," and had requested and
was granted more time off. He testified that at some un-
disclosed date during her leave of absence it had oc-
curred to him that her Supervisor Jack Mulhern had not
requested a replacement. This necessarily must have oc-
curred sometime in November after she was granted an
extension of her leave of absence. Burdzinski then inves-
tigated and found that no one had replaced Gilmore on
her job and therefore he concluded that "it didn't make
sense to bring a person back who we didn't need [on her
old job.]"4 2 Again, without specifying the precise date
of those occurrences, Budzinski testified that in Novem-
ber 1979 .he so informed Gilmore and that she became
upset. He further testified that Mulhern became upset but
that Mulhern did not "understand the whole picture,"
and did not understand what Burdzinski was trying to
accomplish, and that "this particular move was part of a
total Company wide effort" that he was engaged in.
42 He did not explain the premise for his conclusions, i.e., whether in-
spection work itself was reduced, whether her inspection duties were ab-
sorbed by others, or whether her inspection duties were simply not being
performed. His testimony, however, was not controverted.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burdzinski attempted to educate Mulhern but Mulhern
was not "receptive" and "never really endorsed the
idea." Gilmore was third in seniority of a maximum crew
of 18 inspectors, and had an almost flawless record for
an unusually long tenure in a plant of high employee
turnover. Gilmore testified without contradiction that
there were seven inspectors whom she could recall that
were employed when she last worked as an inspector.
Burdzinski testified without controversion that as of the
date of the hearing, the inspector position had been com-
pletely eliminated. The managerial decision to reorganize
and reduce the inspector department was effectuated on
February 27, 1979. By the time of the hearing, employ-
ment had been reduced from a high of 350 to 150. Burd-
zinski testified that during his conversation with Gilmore
he told her that he was going to find another job for her
and that he expected no difficulty in finding another job
and that he told her of certain jobs that he had in mind
but that she refused, stating that she was not interested in
any job but her old one. Burdzinski testified that he men-
tioned specifically a machine operator's job which at that
time was undergoing a high turnover rate, and other jobs
like assembler or janitor, but that she remained upset and
adamant. According to Burdzinski, he told her that he
intended to "have an open mind to try and find some-
thing that could please her the most and minimize this
discomfort to the maximum extent." Burdzinski testified
that he volunteered later offers to recall her to other jobs
as a gratuitous, goodwill gesture inasmuch as the collec-
tive-bargaining agreement subsequently executed pro-
vides only for the right of recall to the employees' old
position.
In November, but prior to the execution of the collec-
tive-bargaining agreement Gilmore filed a grievance con-
cerning her nonreinstatement as an inspector through the
Union and it was accepted and processed, as Respondent
had agreed to implement the grievance procedure in ad-
vance of contract execution. That grievance proceeded
to arbitration, where it was ultimately held to be nonar-
bitrable. In 1980, at least 40-50 grievances were
processed by the Union. Prior to the execution of this
contract, during its negotiations, union representatives
raised questions as to the status of Gilmore and the rea-
sons for her nonreinstatement but were given no definite
response. However, the Union raised questions as to the
status of an indeterminate number of other employees
during this same period of time.
In January 1980, Burdzinski, by letter, invited Gilmore
to indicate whether or not she was interested in an as-
sembly job opening. Subsequently at a meeting with
Burdzinski she was advised that she would be required
to be interviewed by and to perform an assembly test for
the foreman and was instructed to speak to the foreman
directly. She telephoned Steward Johnson who, she testi-
fied, told her directly it was permissible to take the test.
Johnson testified that she then telephoned Combs to
inform him and that Combs responded that he would
contact Burdzinski. She did not explain his purpose.
Combs testified, however, that Johnson told him that Re-
spondent had recalled Gilmore to work and that he then
telephoned Gilmore who confirmed it and that he then
told Gilmore to report for work. Gilmore testified to no
such conversation.
Subsequently, Gilmore performed the assembly test
sometime in mid-January. Burdzinski testified that many
persons were interviewed for the job and the foreman se-
lected "the person (whom] he felt was the most qualified
and best suited . . . the needs of that particular posi-
tion." The person awarded the job was Lucinda Simp-
son, who had been interviewed, according to Burdzinski,
in the fall of 1979.
Gilmore testified on direct examination that Burdzinski
telephoned her on the same day that she took the assem-
bly test and asked her why she had telephoned Johnson
and Combs and then asked her why she had joined the
Union to which she enigmatically responded as follows:
"I told him that I was a Union member, that's why I
joined." The General Counsel offers no suggestion as to
why such an interrogation of union membership seeming-
ly prompted by repeated telephone calls to the Union
emerged almost a month and a half after Burdzinski sup-
posedly was given a copy of a dues-checkoff authoriza-
tion. On cross-examination as to this telephone conversa-
tion, she gave the following account:
He asked me had I called Ron Combs and Sondra
Johnson. And I said yes. And then he asked me
why, and I told him because of the Union. He asked
me why, and I said because I was a Union member.
And the exact conversation I don't know, but that's
the part I remember.
Gilmore admitted that during the investigation of this
case she gave an oral account by telephone to the Board
agent which he accurately recorded in a confirming
letter to her as follows:
You informed me that on the occasion of your eve-
ning telephone conversation with Gayston Person-
nel Director Bernard Burdzinski concerning your
interview for an assembly position, that Burdzinski
told you that there was a rumor you worked a
couple of hours and quit, and that he wanted to
know if you were spreading such a rumor. You said
that you did not recall Burdzinski mentioning
Ronald Combs during that conversation.
Subsequently, upon receiving that confirming letter she
added the following and submitted it to the agent:
I do recall him (B) asking me if I had talked to Ron
Combs also (B) wanted to know why.
In testimony she explained that she did not recall the
entire conversation when she first talked to the Board in-
vestigator. Significantly she did not include the query as
to why she joined the Union in her amendment to that
oral statement,
Combs testified that a "couple of days" after his first
conversation with Gilmore regarding the assembly job
he received a call from Gilmore who told him that she
was recalled to her job, permitted to work only 30 min-
utes, and then sent home. This is, of course, contrary to
what Gilmore testified had happened, i.e., that she was
20
GAYSTON CORPORATION
only permitted to take a test. Gilmore testified to no tele-
phone conversation with Combs immediately after taking
the mid-January assembly test, and her testimony implies
that there was none. Johnson testified that she had only
two conversations with Gilmore, i.e., the first call re-
garding the impending test, and the second which oc-
curred much later when the results were announced, and
that she said nothing to Combs in the nature of Gilmore
having been recalled to work and sent home after an half
hour. Combs and Burdzinski have a common recollection
however, that on the day of the test, after the test
Combs did call Burdzinski and inquired of him why Gil-
more was recalled for such a short period of time only to
be sent home. Burdzinski testified that after explaining to
Combs he telephoned Gilmore and asked her why she
was confused but that she responded as though she had
understood fully the nature of the test. He denied any in-
quiry as to why she called the Union or concerning her
relationship to the Union. Thus Gilmore's first oral ac-
count of the conversation given to the Board investiga-
tor is in accord with Burdzinski's testimony. In light of
Comb's testimony, I conclude that Burdzinski's call to
Gilmore becomes understandable as an effort to discover
the basis of what reasonably appeared to be a misunder-
standing between himself and Gilmore. Combs testified
that he called Gilmore and told her that Burdzinski
would communicate to her later a decision as to the as-
sembly job. Gilmore was silent in her testimony as to
such conversation.
Subsequently, Gilmore was notified by letter dated
January 21, 1980, that she was not selected for the as-
sembly job and that although she had "demonstrated a
fine record of achievement," her "background is not
compatible" with Respondent's manpower needs at that
time. She was told that she would be considered for
future openings.
Combs testified that subsequently Gilmore called him
and advised that she did not obtain the assembler's job
and that Burdzinski had asked her "some strange ques-
tions about her union activity during the conversation."
Combs testified: "I don't recall any specifics. I think he
asked her something about-well, what she told me was
that he asked her whether or not she had called the
Union." Combs testified that he then telephoned Burd-
zinski and asked him if he had made such statements to
Gilmore, but that he denied it and asked permission to
call Gilmore. Further, Combs testified that Burdzinski
called back and said he had talked to Gilmore and that
she was upset "and understood the situation." Combs
was patently confused and uncertain in his demeanor.
His foregoing account is inconsistent in sequence with
that of Gilmore. He admitted to confusing the two con-
versations. I do not find him to be a reliable witness.43
Furthermore, in light of the many inconsistencies be-
tween the testimony of Gilmore, Johnson, and Combs,
and coupled with Gilmore's uncertain, hesitant demea-
4" However, I credit his testimony that Oilmore told him that she had
been rehired and permitted to work for an half hour only, as his subse-
quent conduct corroborated by Burdzinski only makes sense if he is cred-
ited. I further conclude, based upon Oilmore's testimony which reveals
that she had no such actual understanding, that she misrepresented to
Combs the nature of the assembly test and interview for reinstatement.
nor, and admitted prior accounts of her telephone con-
versation with Burdzinski, I conclude that Burdzinski's
recollection of the telephone conversation with Gilmore
is more reliable. I conclude that he did not ask her
whether she called the Union nor why she joined the
Union. I conclude that she did not tell him that she had
joined the Union. I conclude that in any event, had he
asked her why she called the Union, such query within
the context of the patent confusion of the situation did
not constitute coercive interrogation of union activities
but rather would have been a simple attempt to find out
whether and why she possessed a misunderstanding
about the assembly test.44
Finally, the General Counsel adduced no evidence,
nor made any challenge to Burdzinski's generalized testi-
mony that the person actually hired for the assembly job
was more qualified than Gilmore. Furthermore, the Gen-
eral Counsel adduced no evidence as to whether any of
the remaining inspectors who had been retained in that
position were any less qualified or possessed poorer
work records than Gilmore, nor that the seniority differ-
ences were of an appreciable measure.
Gilmore testified that sometime in February 1980, she
received a telephone call from Burdzinski wherein he
asked whether she was interested in a plant janitor posi-
tion; that she asked the qualifications; that he told her
she had to be able to lift a 100-pound weight overhead;
that when she said she would have to consult her physi-
cian he said he doubted that she could get his approval;
and that when she asked why he had called, Burdzinski
stated that he wanted to be certain she had been apprised
of every job opening.
Burdzinski testified that after the assembly job rejec-
tion, there were several occasions when he contacted
Gilmore about job openings and that she stated that she
did not want any job but her old job. With respect to the
janitor's position he testified that there was no discussion
of lifting weights overhead but that Gilmore had asked
and he responded that the restrictions on the job were
the same as for inspectors and machine operators, i.e.,
the ability to lift 55-pound weights. He testified that he
composed and placed a file memorandum in her records
reflecting the conversation. The document adduced into
evidence as that memo recites:
I phoned Ms. Gilmore to inquire about her interest
in the janitor opening that we have on 2-2 [Building
2, shift 2]. She said that she had no interest in any
janitor position for she feels that she couldn't do the
work.
There is no reference therein to an absolute rejection of
any noninspector job offer. The memo is dated February
5, 1980. In his misleading and evasive testimony on
cross-examination, Burdzinski at first testified that Re-
spondent had employed women as janitors in the past.
However, he finally conceded that Respondent had em-
44 As noted earlier, the evidence indicates that the earliest that Burd-
zinski had received a dues-checkoff authorization for Gilmore was Febru-
ary 4, 1980. Furthermore, the General Counsel adduced no credible evi-
dence as to when she joined the Union.start
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed one woman to clean the office area but has subse-
quently subcontracted that work. Clearly the type of
work involved in cleaning the office in no sense could be
encompassed with the type of heavy work performed by
the plant janitor. 45
In any event, the General Counsel takes the position
that the plant janitor position was one that was beyond
the ability of Gilmore to perform, i.e., that she was a
slight person who had recently undergone major surgery
and therefore could not cope with the arduous and dirty
work tasks expected of a plant janitor.
Gilmore testified that in March, Burdzinski next com-
municated with her by telephone and asked her whether
she would accept a position as a machine operator on the
second shift, but that she responded as follows:
I told him that I could, but my little girl was sick
and I didn't think that I could come in when she
was sick because she was in the hospital.
She testified that Burdzinski explained that he needed
someone who would be on the job "every day," and that
he wanted a commitment from her to be there "every
day." The General Counsel then elicited the confusing
testimony from Gilmore that she found the second-shift
opening unacceptable and explained as follows:
Yes, because I'd have to-. My little girl, like I said,
she was sick at the time, and I didn't want to leave
her at night because that's when she was sickest-at
night in the evening time.
She testified that she explained that to Burdzinski. No at-
tempt was made to clear up this patent inconsistency.
Either she could not accept the job because her child
was in the hospital and she could not guarantee her daily
attendance, or she could not accept it because her child
was "sickest" at night necessarily requiring her personal
attention presumably at home.
Gilmore testified that when she first started her job in
1973 or the first part of 1974 there had been a time when
the third shift was started and employees had been asked
for a preference of shifts and that she expressed prefer-
ence by way of a "paper" that was passed around for the
third or first shift because of "babysitter problems." 4 6
She admitted that when she was first employed there
were two 12-hour shifts and that she had worked the
shift which commenced at 5 p.m. Later she worked the
11 p.m. to 7 a.m. shift. She admitted further that during
her ensuing work history she had worked all hours and
there had been occasions that she worked any hour on
the clock. (The second shift offered to her in March was
3 to 11 p.m.) Gilmore did not explain why she did not
raise the shift problem when Burdzinski had previously
offered the janitor job if her preference had persisted.
Gilmore testified that she telephoned Burdzinski's
office three times thereafter, twice in March and once in
April. She was unable to contact him in March, but was
4s His disingenuous testimony in this regard is indicative of his inclina-
tion to twist and shade the meaning of words to Respondent's advantage.
Recall his testimony wherein he characterized "prizes" as "bonuses."
46 The implication in this testimony is that the babysitting problem
persisted, but she did not explicitly testify so.
successful in the April call. According to her, he told
her that there were no jobs open as Respondent was cut-
ting its employment level. However, she testified that
subsequently in April Burdzinski telephoned her and of-
fered her a machine operator's job on the second shift.
According to her, she told him that her little girl was
still sick and that she could not accept the second shift
but would accept "any job" on the first shift. He then
told her that the second-shift opening was the only one
available. She testified that she again told him that her
child was ill and that she could not guarantee that she
would be able to work every day. He insisted on a com-
mitment but she refused. Thus she did not accept the job
and was not contacted thereafter. There is no indication
in her testimony that she made any effort to explain to
Burdzinski whether her child was at home or in the hos-
pital at that time, and why it was that her presence with
the child was necessarily required during the second
shift.
Burdzinski testified that he did offer Gilmore the
second-shift operator job on two occasions after he had
offered her the janitor job. He did not explain why he
did this if, in fact, Gilmore had, when she rejected the
janitor's job, told him that she would accept only an in-
spector's job. He testified that he came to talk to her
about a machine operator's job on the occasion when she
visited the plant, and he advised her of the second-shift
position opening. He testified that she explained "her
problems" and the reasons why she could not accept the
second-shift assignment but that he explained to her that
he was trying to get her back into the work force and
told her that if she accepted the second-shift job that he
would do everything in his power to attempt to get her
back on the first shift and reminded her that at one time
or another she had worked every hour during the day.4 7
Burdzinski testified that Gilmore stated that she was not
interested in an operator's job because she wanted her
old inspection job, and that he explained to her that the
probability of an opening in an inspector's job was un-
likely inasmuch as the number of those positions was de-
clining as that department was continually being reorga-
nized and reduced. Clearly the number of inspectors was,
in fact, in a steep decline.
Burdzinski testified that he maintained records of "all
major developments," and memorialized all important
communications. He identified file memorandums which
he composed and inserted into Gilmore's personnel file.
The first record of any contact with Gilmore after the
janitor job discussion, according to these memorandums,
occurred on March 25, 1980, when Burdzinski called her
home by telephone and left a message to which she re-
sponded later that day. According to a file memoran-
dum, contrary to his testimony, Gilmore telephoned him.
The file entry merely reflects "Mrs. Gilmore called me
to explain that she cannot accept the position I offered to
her because of babysiting problems that would be en-
countered if she worked on second shift." There is no
*7 Gilmore did not rebut this testimony, and in cross-examination testi-
fied, with great uncertainty in demeanor that she did not "remember"
Burdzinski's promise to transfer her to the first shift. Because of Gil-
more's lack of certitude, I credit Burdzinski in this regard.
22
GAYSTON CORPORATION
reference to any discussion about an inspector's job, nor
any reference to a rejection of all other jobs.
The next file entry is dated April 18, 1980, and reflects
that Gilmore was offered a position of second-shift oper-
ator which she refused because it would "create prob-
lems for her children." Again there is no reference to a
discussion of an inspector's job. A separate file memo of
the same date reflects the following entry by Burdzinski.
I came to the conclusion that Ms. Debra L. Gil-
more is not interested in a machine operator job
since she has turned down two machine operator
jobs in recent months, even though I told her that if
she would accept a second shift position that I
would try to get her on first shift as soon as possi-
ble.
I will continue to try to find her an inspector job.
Burdzinski testified on cross-examination that he did not
memorialize the discussion concerning Gilmore's insist-
ence upon an inspector's job for the same reason that he
did not record all words spoken such as the salutation,
"hello, this is Bud Burdzinski," etc. His explanation is
flippantly nonresponsive. If such a conversation had
ocurred, it certainly would have been as important as
what Burdzinski had recorded and as an important ele-
ment it would have been recorded if Burdzinski is to be
believed that he recorded all important matters. Further-
more, in light of Gilmore's efforts to obtain the assembly
job, Burdzinski's account of an obstinate insistence upon
obtaining only the inspection job is contrary to Gil-
more's past conduct and highly improbable. Finally,
Burdzinski's own memorialized reasoning process reveals
that he based his conclusion that she wanted only the in-
spector job not upon any express rejection of other jobs,
but simply upon her insistence upon a day-shift position.
Certainly that conclusion could have been more soundly
based, but I find that it could not have been based upon
an express statement of Gilmore because such was not
made to him.
Burdzinski testified that he subsequently considered
Gilmore to have been terminated by the terms of the col-
lective-bargaining agreement. A maximum of 1 year is
provided for leaves of absence and the agreement also
provides in the seniority proviso that loss of seniority,
i.e., termination, occurs upon nonreturn after expiration
of a leave of absence, or nonrecall from layoff for a
period equal to a length of service or I year, whichever
is lesser.
Gilmore's leave of absence expired at the end of No-
vember 1979. In effect, she was laid off when she sought
to reactivate her employment. It would appear that the
anniversary date for termination of her employment
would be November 1980 or arguably earlier on August
27, 1980, the anniversary of the day her sick leave began.
Several day-shift operators were hired prior to August
27, 1980, and several more thereafter but prior to No-
vember 19, 1980. However, even earlier on April 28 and
29, 1980, two new machine operators were hired for the
first shift, just 10 days after Gilmore rejected a second-
shift postion. However, Burdzinski testified that as of
April 18, 1980, he considered Gilmore as not desiring
any operator's position, and thereafter no inspection job
opened up.
Burdzinski's sudden realization in November 1979 that
Gilmore's position could be eliminated raises an unan-
swerable question as to the timing of the decision, i.e.,
long after the attrition process commenced and shortly
after Gilmore was assured that her job remained open.
However, the General Counsel has failed to prove by
clear, credible evidence that Gilmore joined in or en-
gaged in activity on behalf of the Union in proximity to
that decision. Furthermore, although the General Coun-
sel stressed her seniority in the department, no evidence
was adduced that she was treated in a disparate manner,
or that Respondent acted in a manner contrary t6 past
practice or to its own business interests by, in effect,
laying off an employee on sick leave rather than laying
off a less senior, actively employed inspector. I therefore
cannot conclude that Respondent discriminatorily re-
fused to reinstate Gilmore in November 1979.
The General Counsel argues that Respondent thereaf-
ter refused to reemploy Gilmore because of her union
activities and membership. Gilmore did, as did many
other employees, file a grievance. She did so concerning
the loss of her inspector's job in late November. The ear-
liest date of Respondent's awareness of her union mem-
bership was February 4, 1980.48
Despite the filing of a grievance concerning Gilmore's
nonrecall to an inspector's job, Respondent offered to
recall her to other jobs as they opened. There is no evi-
dence that Respondent was obligated by past practice,
policy, or subsequent contractual obligation to make that
promise. However, having made that promise, the Gen-
eral Counsel argues that Respondent only offered her
jobs of which it was certain that she would refuse, and
that when a first-shift job opened which she would have
accepted, it declined to offer her that job for pretextual
reasons. The question arises that if Respondent had de-
cided to punish Gilmore for seeking union assistance in
attempting to get her old job back, why did it bother to
gratuitously offer her others jobs and, after she joined
the Union in February 1980, knowingly offer jobs that
she would not accept? A possible answer is that Re-
spondent sought to lay a foundation for its future expect-
ed discriminatory refusal to recall Gilmore to a job open-
ing that she would have accepted and been qualified.
Another question arises, why did Respondent solicit her
interest in the assembly job of which there is no argu-
ment that it suspected that she would reject that job?
This is indeed a tortuous course of action in view of the
simpler possible action of making no promise at all,
which would not have been contrary to any past prac-
tice or policy.
The evidence reveals that after the refusal to reinstate
Gilmore to the inspector job in November 1979 and to
recall her to the assembly job in January 1980, the first
day-shift operator's job acceptable to Gilmore became
4" In January, Respondent hired another person for the assembly job
There was no evidence upon which I can find that the hinng of that
person was executed for reasons other than that advanced by Respond-
ent. Accordingly, I cannot conclude that the nonrecall of Gilmore to an
assembly job was discrimnatorily motivated.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available on April 28, 1980. Other similar jobs opened
thereafter. By February 4, 1980, Respondent had become
aware that Gilmore had joined the Union. As noted else-
where, Respondent had by early 1980, at least, devel-
oped a hostility toward the Union, and thereafter demon-
strated that it strongly preferred that its employees not
retain their union membership. It can be argued that
when Respondent had become aware that Gilmore had
become a union member, it was by then saddled with its
promises to her.
Burdzinski testified that he had by April 18, 1980, con-
cluded that Gilmore did not want any job except her in-
spection job. In light of the foregoing observations,
Burdzinski's credibility is suspect. However, I have
severe problems with the credibility of Gilmore. Her tes-
timony as to the two conversations regarding the second-
shift openings contains ambiquities, and I found her unre-
liable in other areas. I do not credit Burdzinski that Gil-
more told him explicitly that she desired only the inspec-
tor's job. I find this to be a fabrication intended to bol-
ster Respondent's case. However, I do not conclude that
he offered her only second-shift jobs with a definite fore-
knowledge that she would not accept second-shift assign-
ments. Gilmore's preference for the first shift was made
early in her career in 1973 or 1974. There is no evidence
that this preference which had been entered on a nonde-
script piece of circulated paper was ever filed and re-
tained. Moreover, thereafter Gilmore worked all hours at
one time or another. The evidence thus fails to demon-
strate that Burdzinski had certain knowledge that Gil-
more would have refused his first offer of the second-
shift job. Accordingly, on March 25, he risked Gilmore's
acceptance of that job. According to Gilmore's testimo-
ny, she rejected the March 25 offer because of an illness
of her child and/or the child's hospitalization. From that
account, it does not appear that she told Burdzinski that
her inability to accept the second shift was due to a per-
manent babysitting problem. But this is contrary to the
position taken by the General Counsel. If we credit Gil-
more, Burdzinski again ran the risk of her accepting re-
employment when he offered her another second-shift
job 3-1/2 weeks later on April 18. I conclude that Burd-
zinski did in fact promise Gilmore that if she accepted
his offer of a second-shift job that he would use that as
the first step in getting her reemployed and would there-
after seek to transfer her to the first shift at the first op-
portunity. Such an offer is indicative of a good-faith at-
tempt to offer reemployment. When Gilmore refused
that, Burdzinski testified that he concluded that she was
not in truth interested in any machine operator's job. I
find that although Burdzinski embellished his testimony
with fabrications about Gilmore's insistence on the in-
spection job, that on April 18, 1980, he did in fact, as his
file memo sets forth, conclude that Gilmore was just not
interested in a machine operator's job. Although his ra-
tionalization process might arguably be faulty, rash, petu-
lant, petty, and unjustified, I cannot conclude that it was
a pretext intended to mask an unlawful motivation, i.e.,
punishment for grievance filing and union membership.
According to Gilmore's own testimony, Burdzinski's
offer of the second-shift jobs was no mere solicitation of
interest but rather he sought a definite commitment and
urged her to make a commitment. As noted, I concluded
that his promise to seek day-shift work for her soon
thereafter was indicative of good faith. Such solicitations
did not constitute mere perfunctory overtures. They
were definite job offers. As I have found that the evi-
dence does not establish that Burdzinski had foreknowl-
edge that such offers could be rejected, I conclude that
they were genuine offers of reemployment made despite
knowledge of Gilmore's union membership. I therefore
am unable to find that Burdzinski's conclusion that Gil-
more was not really interested in a machine operator's
job at all was a pretext for discrimination proscribed by
the Act.
CONCLUSIONS OF LAW
1. The Respondent, Gayston Corporation, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, and its Local 768, is a
labor organization within the meaning of Section 2(5) of
the Act, and has been designated and is the exclusive
bargaining representative of the employees in a unit ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act consisting of:
All production and maintenance employees em-
ployed by Respondent at its Dayton, Ohio facility
including group leaders, inspectors, material han-
dlers, janitors, job setters, operators, toolroom em-
ployees, and assemblers, but excluding all office
clerical employees, and all professional employees,
guards and supervisors as defined in the Act.
3. Respondent, by its agents John Alexander and Mark
Stone at meetings of employees conducted by them re-
spectively on June 18, 1980, and July 31, 1980, threat-
ened to discharge employees who engage in union or
other concerted, protected activities, including, inter alia,
seeking the assistance of the Occupational Safety and
Health Administration of U.S. Department of Labor
(OSHA), thereby violating Section 8(aXl) of the Act.
4. Respondent, by its agent Bernard F. Burdzinski II,
on or about October 1, 1980, threatened an employee
with discharge if that employee joined the Union, thus
violating Section 8(aXl) of the Act.
5. Respondent, by its agent Gary Pfeiffer in early Oc-
tober 1980, threatened an employee that Respondent
would terminate the employment of all union members
under his supervision, thus violating Section 8(aXI) of
the Act.
6. Respondent in and about the month of October
1980, by its agent Larry Ray, coercively interrogated
employees concerning their own and other employees'
union sympathies; ordered an employee to assist in such
unlawful interrogation; gave the impression to an em-
ployee that he was monitoring other employees' union
sympathies; implied to an employee that she would be
discharged if she did not withdraw membership and sup-
port for the Union; and encouraged and assisted employ-
ees from withdrawing membership in and support from
the Union; and encouraged an employee to assist him in
24
GAYSTON CORPORATION
encouraging another employee to withdraw membership
in and support from the Union and by each such act vio-
lated Section 8(aX1) of the Act.
7. Respondent on and shortly after October 14, 1980,
as part of Respondent's scheme to encourage and aid em-
ployees to withdraw membership in and support from
the Union, by the conduct of its agent Bernard F. Burd-
zinski, caused to be delivered to employees information
and materials for the purpose of withdrawing dues-
checkoff authorizations and union membership, and fur-
ther personally assisted employees in the preparation of
such withdrawal request; and by the conduct of its agent
Mark Stone who personally expressed his gratitude to
employees who had withdrawn from union membership,
thereby violated Section 8(aX)(1) of the Act.
8. Respondent, by the conduct of its agent Gary
Pfeiffer who in October 1980 attempted to induce an em-
ployee to eavesdrop and report back the conversations of
union members, violated Section 8(a)(1) of the Act.
9. Respondent by the conduct of its agents Gary
Pfeiffer and Les Sontarre in mid-January 1981, who at-
tempted to create the impression upon an employee that
the union activities of employees were under the surveil-
lance of Respondent, thereby violated Section 8(a)(1) of
the Act.
10. Respondent, by the conduct of its agent Gary
Pfeiffer in mid-January 1981, who attempted to create
the impression upon an employee that the union activi-
ties of employees were under the surveillance of Re-
spondent, thereby violated Section 8(aX1) of the Act.
11. Respondent, by the conduct of its agent Gary
Pfeiffer in February 1981, coercively interrogated em-
ployees as to why they had joined the Union and there-
by violated Section 8(a)(X1) of the Act.
12. Respondent, by its agent Bernard F. Burdzinski II,
discriminated against Althia Piercy because of her union
membership and activities by assigning her to work
which was peculiarly onerous and burdensome to her
after March 20, 1981, and by placing her on a forced
leave of absence on March 30, 1981, until June 8, 1981,
from early July 1981 to August 31, 1981, and from
August 14, 1981, and thereafter for no justifiable business
reason and by each such act violated Section 8(a)(3) and
(1) of the Act.
13. Respondent, in bypassing the Union and unilateral-
ly granting employees a general wage increase on July
31, 1980, without having given prior notice to, bargain-
ing with, or obtaining agreement from the Union, effec-
tuated a change in the wage rates and thereby modified
its collective-bargaining agreement with the Union and
thus failed to comply with Section 8(d) of the Act, and
violated Section 8(aXS5) and (1) of the Act.
14. Respondent, in bypassing the Union and unilateral-
ly changing terms and conditions of employment of em-
ployees by granting a bonus to its employees in Septem-
ber 1981, without having given prior notice to or oppor-
tunity to bargain with the Union, breached its bargaining
obligation under the Act and thereby violated Section
8(aXS) and (1) of the Act.
15. Respondent, by the conduct of its agent Bernard F.
Burdzinski II, on September 23, 1981, attempted to
create the false impression among its employees that the
Union was opposed to the granting of a bonus and that
the retention of the September bonus was in jeopardy be-
cause the Union might prevail in the processing of an
unfair labor practice charge, thereby sought to discour-
age employees from supporting the position of the Union
and thus violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, to post an appropri-
ate notice to employees, and to take certain affirmative
action to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
placed employee Althia Piercy on involuntary leave and
contrary to its own policy and past practice assigned her
to work which was peculiarly onerous and burdensome
to her, it is recommended that Respondent be ordered to
offer her immediate and full reinstatement to a position
for which she had demonstrated or will demonstrate,
upon opportunity provided by Respondent, capability of
performing without adverse personal physical reactions,
if such position is available, or to reinstate her to such
position when it next becomes available, without preju-
dice to her seniority or other rights and privileges, and
to make her whole for any loss of pay she may have suf-
fered by reason of the discrimination against her. Any
backpay found to be due shall be computed in accord-
ance with the formula as set forth in F. W. Woolworth
Company, 90 NLRB 289 (1959), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).49
Having found that Respondent unlawfully effected a
unilateral change in terms and conditions of employment
of employees without having first notified and bargained
with the Union, and that Respondent unilaterally modi-
fied the terms of the collective-bargaining agreement
without bargaining and obtaining the agreement of the
Union, I shall recommend that it cease and desist from
such conduct, but nothing herein shall be construed as
authorizing or requiring Respondent to withdraw or
eliminate any wage increase or any bonus presently en-
joyed by its employees.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER5 0
The Respondent, Gayston Corporation, Dayton, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to discharge employees who join the
Union or who engage in union or other concerted, pro-
tected activities, including seeking the assistance of the
Occupational Safety and Health Administration of the
4" See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
"O In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. Department of Labor (OSHA), or other govern-
mental agencies for the purpose of improving working
conditions of employees.
(b) Coercively interrogating its employees concerning
their own and other employees' union sympathies.
(c) Coercively interrogating its employees concerning
their union membership and their motivations for joining
the Union.
(d) Ordering any employee to assist it in unlawful in-
terrogation of other employees' union sympathies.
(e) Attempting to give employees the impression that
it is monitoring other employees' union sympathies, and
surveilling their union activities.
(f) Implying to employees that they will be discharged
if they do not withdraw membership and support from
the Union.
(g) Unlawfully encouraging and unlawfully assisting
employees in withdrawing membership in and support
for the Union.
(h) Encouraging employees to assist it in unlawfully
encouraging other employees to withdraw membership
and support from the Union.
(i) Providing information, materials, and personal as-
sistance to employees and expressions of personal grati-
tude to employees in pursuance of an unlawful scheme to
encourage and aid employees to withdraw membership
and support from the Union.
(j) Attempting to induce employees to eavesdrop and
report back to it conversations of union members.
(k) Discriminating against employees because of their
union membership and activities by placing them on
forced leaves of absence, or by assigning them to work
which is peculiarly onerous and burdensome to them for
no justifiable business reason.
0) Without bargaining and agreement with the Union
as the exclusive bargaining agent of employees in the fol-
lowing appropriate unit in breach of its obligations under
Section 8(d) of the Act, unilaterally modifying or chang-
ing the wages, benefits, or other terms or conditions of
employment set forth in the collective-bargaining agree-
ment with said bargaining agent or without notice to and
giving said bargaining agent an opportunity to request
bargaining, unilaterally initiating or changing any other
benefits, or terms and conditions of employment in said
unit:
All production and maintenance employees em-
ployed by Gayston Corporation at its Dayton, Ohio
facility including group leaders, inspectors, material
handlers, janitors, job setters, operators, toolroom
employees, and assemblers, but excluding all office
clerical employees, and all professional employees,
guards and supervisors as defined in the Act.
(m) Attempting to give the false impression to its em-
ployees that the Union is opposed to its granting of bo-
nuses to employees, or that retention of any bonus or
other benefit granted to employees unlawfully by its uni-
lateral action is or will be jeopardized because the Union
had filed with the Board and seeks prosecution with the
Board of an unfair labor practice charge concerning such
unlawful conduct by Respondent.
(n) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
found will effectuate the policies of the Act:
(a) Offer to Althia Piercy immediate and full reinstate-
ment to a position for which she had demonstrated or
will demonstrate, upon opportunity provided by Re-
spondent, capability of performing without adverse per-
sonal physical reactions, if such positions are available,
or reinstate her to such position when it next becomes
available, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of
pay she may have suffered as the result of the discrimi-
nation against her in the manner described above in the
section of this Decision entitled "The Remedy."
(b) Post at its Dayton, Ohio, plant copies of the at-
tached notice marked "Appendix."5 1 Copies of the
notice on forms provided by the Regional Director for
Region 4, after being duly signed by its authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to ensure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order what
steps it has taken to comply herewith.
IT IS FURTHER RECOMMENDED that any allegation of
the complaint not found herein to have been sustained by
the evidence is dismissed.
"I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
26