Gossen Co.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 339 (N.L.R.B. 1981)

GOSSEN COMPANY
Gossen Company, a Division of the United States
Gypsum Company and Teamsters Local 344,
Sales and Service Industry, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
Gossen Company, a Division of the United States
Gypsum Company and Lynn C. Engel, Karl V.
Hartmann, John F. Lampada, and Robert R.
Beilke. Cases 30-CA-5170, 30-CA-5277, 30-
RC-3545, 30-CA-5335, 30-CA-5335-2, 30-
CA-5335-3, and 30-CA-5335-4
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 7, 1980, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
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
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions' of the Administrative Law
I The Administrative Las Judge denied the General Counsel's motion
to exclude certain testimony because Respondent's counsel had allegedly
violated the sequestration arrangement by permitting prospective wit-
nesses to read portions of the transcript. Under the particular circum-
stances of this case, particularly since the parameters of the sequestration
arrangement had not been precisely defined and since, in assessing credi-
bility, the Administrative Law Judge was aware that some witnesses had
read portions of the transcript prior to testifying, we agree with the Ad-
ministrative Law Judge that it was not necessary to exclude the testimo-
ny of such witnesses. However, in adopting the Administrative Law
Judge's ruling on this point, we are not endorsing the proposition that
showing portions of the transcript to prospective witnesses who have
been sequestered is warranted as part of trial preparation.
2 Respondent and the General Counsel have excepted to certain credi-
bility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an administrative law judg's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. San-
durd Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and ind no basis
for reversing his findings.
I The Administrative Law Judge's Decision in this case issued before
Wright Line. A Division of Wright Line. Inc., 251 NLRB 1083 (1980),
wherein the Board set forth a test of causation for cases alleging viola-
tions of Sec. 8(a)(3) of the Act. In adopting the Administrative Law
Judge's findings regarding 8(a)(3) allegations in the instant case, we have
not relied on any findings or statements here that are inconsistent with
Wright Line. and we have analyzed each of the 8(a)(3) allegations consis-
tent with the causation test set forth in Wright Line In particular, we
note that the General Counsel made a prima fac.· showing that employee
James Parr's union activity wsas a motivating factor in Respondent's deci-
sion to discharge him. We further find that Respondent failed to demon-
strate that it would have taken the same action against Parr absent his
union activity and that. therefore. Respondent's discharge of Parr iolat-
ed Sec. 8(a)(3) of the Act.
254 NLRB No. 41
Judge and to adopt his recommended Order, as
modified hereafter.
The complaint alleges that Respondent violated
Section 8(a)() of the Act when its supervisor,
Redzinski, asked known union supporter Waubiness
what the Union could do for him and in a separate
conversation asked employee Bugni why he was
wearing a union button or what the union button
meant to him. The Administrative Law Judge
found that Redzinski's questions regarding employ-
ees Waubiness' and Bugni's views on the Union
were not coercive as they were unattended by
threats of reprisals or promises of benefits and
therefore did not violate Section 8(a)(1) of the Act.
We disagree. In PPG Industries, Inc., Lexington
Plant, Fiber Glass Division, 251 NLRB 1146 (1980),
which issued subsequent to the Administrative Law
Judge's Decision, the Board found that a supervi-
sor's questions regarding employees' union sympa-
thies were coercive because such questioning "con-
veys an employer's displeasure with employees'
union activity and thereby discourages such activ-
ity in the future. The coercive impact of these
questions is not diminished by the employees' open
union support or by the absence of attendant
threats."4 Accordingly, we find Supervisor Red-
zinski's questioning of employees Waubiness and
Bugni violated Section 8(a)(1) of the Act. 5
Member Penello concurs in adopting the Administrative Law Judge's
findings that the misrepresentations alleged in the Union's objections do
not warrant setting aside the election. In so doing, however, he relies on
the rationale set forth in his dissenting opinion in General Knit of Calhr-
nia, Inc.. 239 NLRB 619. 624-632 (1978).
4 In finding such supervisory questioning to constitute unlawful inter-
rogation in violation of Sec. 8(a)(l) of the Act, the Board explicitly over-
ruled contrary precedent.
I Member Jenkins agrees with Chairman Fanning that Supervisor Red-
zinski's interrogations were coercive and violated Sec. 8(a)(1) of the Act
In addition, Member Jenkins also finds that Supervisor Jeray's comments
to his sister-in-law, Lynn Engel. were coercive and violated Sec. 8(a)(l)
of the Act. The Administrative Law Judge found that, on the day after a
union meeting. Jeray told Engel, a union activist. "I hear you're organiz-
ing the Union." At the time of Jeray's comment, he was Engel's immedi-
ate supervisor. Subsequently. Engel was transferred to another depart-
ment. Sometime after the transfer, Engel confronted her new supervisor
and complained about Respondent's failure to transfer her back to her
former job. Jeray, who overheard her complaint, responded "What do
you expect when you buck the system"" Because of the family and social
relationship, the Administrative Law Judge found that Jeray's comments
did not create the impression of surveillance or constitute a threat of re-
prisal or an unlawful interrogation and therefore were not violative of
Sec 8(a)(l) of the Act. Member Jenkins disagrees. and would find both
of Jeray's remarks to Engel violated Sec. 8(aXI) of the Act In recom-
mending the dismissal of allegations concerning Jeray's comments to
Engel, the Administrative Law Judge relied on Federal Prescription Ser-
vice. Inc.. and Drivex Co., 203 NLRB 975, 990 (1973), a case in which
Member Jenkins participated, but he considers that case to he inapposite
There. the employee initiated the conversation regarding union activity
and the supervisor's response was limited to her personal nonemployment
relationship with the employee. In the instant case, Jeray, a member of
management, effectively communicated Respondent's displeasure with
Engel's union activity; i.e., "bucking the system." Jeray's comnient in-
formed Engel that Respondent's refusal to grant her transfer was a direct
consequence of her involvement in union activity In addition, Jeray's un-
Continud
339
DECISIONS OF NATIONAL LABOR RELATIONS BO(ARD
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 1:
"1. Supervisor Redzinski unlawfully interrogated
employees Waubiness and Bugni."
2. Substitute the following for Conclusion of
Law 3:
"3. Except as found elsewhere, the Employer did
not engage in any of the 8(a)(1) conduct alleged in
complaint paragraph 5."
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,
Gossen Company, a Division of the United States
Gypsum Company, Milwaukee, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph l(e) and re-
letter subsequent paragraphs accordingly:
"(e) Interrogating employees with regard to their
union activities or desires."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Ir Is FURTHER ORDERED that Case 30-RC-3545
be remanded to the Regional Director for Region
30 to open and count the ballots of James Magee
and James W. Parr and to prepare a revised tally
of ballots. If such tally shows a majority of votes in
favor of union representation, a certificate of repre-
sentative should be issued; however, if the Union
fails to obtain a majority of the votes cast, the elec-
tion results shall be set aside based on the meritori-
ous objections and a second election shall be con-
ducted at a time deemed appropriate by the said
Regional Director.
solicited comment about Engel's union organizing left Engel with the
clear impression that Respondent was keeping tabs on her union activity.
It is nteworthy that at the time of that comment Jeray wits Engel's im-
mediate supervisor and was responsible for making recommendations re-
garding wage increases and transfers. Further. Jeray's statements to
Engel were made in the context of the commission of other serious unfair
labor practices by Respondent, In these circumstances. here Jeray's com-
mernts were unsolicited and impacted on Engel's employment opportuni-
ties. Member Jenkins would not fitld that Jeray's family or social relation-
ship with Engel diminished the coercive impact ofr the statement Morc-
oser, subsequent to Engel's involsemcnt in union aclivities, her relation-
ship with Jeray deterioratled and she no longer saw him socially. Accord-
ingly, Member Jenikins would find that Jcray's commnents created the im-
pression of surveillanlce and constituted an ulawful iterrogatiotn and a
threat of reprisal in violation of Sec. 8(a)(1) of the Act.
In disagreement with his colleagues, Member Iencllo would adopt he
recommendation oif the Administrative Law Judge and finld that the ques-
tiorning by Supervisor Redzinski was not coercive and did niot violate
Sec 8(a)(l) of the Act.
APPENDIX
NOTICE TO EMPI.OYi.iES
POSTED BY ORDER OFT HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present their evidence, it has been decided
that we violated the law in certain ways. We have
been ordered to post this notice to your attention.
We intend to carry out the Order of the Board and
to abide by the following:
The National Labor Relations Act, as amend-
ed, gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives whom they themselves select
To engage in activities together for the
purposes of collective bargaining or to act
together in order to seek improvement in
their wages, hours, working conditions, and
other terms and conditions of employment
To refrain from any and all such activi-
ties.
WE WILL NOT announce that we will sus-
pend, nor will we unlawfully suspend, the op-
eration of our merit evaluation and wage in-
crease system, or any other benefit which we
grant you on a regular basis.
WE. WILL NOT discriminate against any of
you by discharging you or giving you disci-
plinary warnings because you engage in activi-
ties on behalf of Teamsters Local 344, Sales
and Service Industry, affiliated with the Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL NOT interrogate employees with
regard to their union activities or desires.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce you in the free choice
of any of the rights set forth above.
WE WIL.L immediately offer James Magee,
James W. Parr, Gil R. White, and John S.
Lavine full reinstatement to their former jobs
with us or, if such jobs no longer exist, each of
them will be offered a substantially equivalent
position, without loss of seniority or other
rights, privileges, and benefits previously en-
joyed; and WE WILL make each of them
whole, with interest, for all moneys each of
them lost as a result of their discharges in
1979.
340
GOSSEN COMPANY
WE WILL immediately reinstate and imple-
ment our merit evaluation and wage increase
system in a nondiscriminatory manner, and
grant merit wage increases to each employee
found eligible, retroactive to the date of our
announcement of suspension of that system.
WE WILL immediately remove all disciplin-
ary warnings and records showing probation
from the official personnel files of Lynn Engel
and Karl V. Hartmann; and we will write to
them that we have done this.
GOSSEN COMPANY, A DIVISION OF
THE UNITED STATES GYPSUM COM-
PANY
DECISION
STArTEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: These
cases were heard before me on various dates between
December 3, 1979,1 and January 17, 1980, at Milwaukee,
Wisconsin.
The hearing evolved from an original charge in Case
30-CA-5170 filed on April 9 by Teamsters Local 344,
Sales and Service Industry, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (hereinafter called the
Union), against Gossen Company, a Division of the
United States Gypsum Company (hereinafter called the
Employer), and an election petition (Case 30-RC-3545)
filed by the Union on April 12. The charge in Case 30-
CA-5277 was filed by the Union against the Employer
on June 22. Thereafter, the Regional Director for Region
30 of the National Labor Relations Board (hereinafter
called the Board) issued a complaint and notice of hear-
ing alleging that the Employer violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended
(hereinafter called the Act).
On April 12, pursuant to a Stipulation for Certification
Upon Consent Election, a Board-conducted election was
held among the Employer's employees in the following
bargaining unit:
All full-time and regular part-time production,
maintenance and warehouse employees including
drivers, maintenance leader and warehouse leaders
at the employers, 2030 West Bender Road plant and
its 3701 Green Tree Road warehouse, excluding
office clerical employees, sales employees, guards
and supervisors as defined in the Act. 2
The Board-conducted election was held on June 14
and 15; 69 votes were cast for the Union and 69 votes
were cast against the Union; 4 ballots were challenged, 3
by the Employer and I by the Union.
All dates are 1979 unless otherwise stated.
2 It is undisputed, and I find, that the stated unit constitutes an appro-
priate unit for purposes of collective bargaining within the meaning of
Sec. 9(b) of the Act.
On June 21, the Union filed 13 numbered objections to
the election and withdrew its challenge. Thereafter, the
Regional Director opened and counted that ballot. A re-
vised tally of ballots issued showing 70 votes had been
cast against the Union and 69 votes in favor of union
representation. The remaining three challenged ballots
were left for my determination. Specifically, James
Magee, James Parr, and Timothy Burke had been chal-
lenged by the Employer on the assertion that none was
employed on the election date. Magee and Parr were al-
leged in the instant unfair labor practice proceeding to
have been discriminatorily discharged in violation of
Section 8(a)(3) and (1) of the Act. Burke is not alleged as
a discriminatee. At the instant hearing, the Union with-
drew certain of its objections." Thus, all references here-
after to the Union's objections refer only to those objec-
tions still pending.
On August 1, the Regional Director ordered a hearing
upon the challenged ballots and objections to be heard in
consolidation with the unfair labor practice issues in
Cases 30-CA-5170 and 30-CA-5277.
During the month of August, Charging Parties Lynn
C. Engel, Karl V. Hartmann, John F. Lampada, and
Robert R. Beilke filed individual charges against the Em-
ployer in Cases 30-CA-5335 and 30-CA-5335-2, -3, and
-4.
Finally, on September 26, an amended consolidated
complaint in each of the aforementioned unfair labor
practice cases was issued by the Regional Director. That
amended complaint alleged that the Employer engaged
in a wide variety of conduct in violation of Section
8(a)(1), (3), and (4) of the Act. Those allegations were
further ordered consolidated for hearing with the chal-
lenges and objections to the election.
At the hearing, the amended consolidated complaint
was further amended to allege additional 8(a)(l) and (3)
conduct.
The Employer filed a timely answer to the amended
consolidated complaint and to its amendments. Certain
allegations were admitted but the Employer denied the
substantive allegations and that it had committed any
unfair labor practice.
All parties appeared at the hearing before me. Each
was represented by counsel and was afforded full oppor-
tunity to be heard, to introduce and meet material evi-
dence, to examine and cross-examine witnesses, to pre-
sent oral arguments, and to file briefs. I have fully con-
sidered the contents of the post-hearing briefs filed on
behalf of the General Counsel and the Employer.
Upon the entire record, and from my observation of
the witnesses and their demeanor in the witness chair,
and upon substantial, reliable evidence "considered along
with the consistency and inherent probability of testimo-
ny" (Universal Camera Corporation v. N.L.R.B., 340 U.S.
474, 496 (1951)), 1 make the following:
()hjectilons . 7, and 8 ecre entirely Aithdrawn They allege. rspec-
lively, that the Employer impropcrly Ornitted certaill names front its EIr-
celvior list. tailcd to comply , ith i Board polices and requcsts Io post elec-
tion notlice. all told an cmploec Ilnot o oe hec;lau hc ould he chal-
lenged
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCI.USIONS
1. JURISDICTION
The Employer, a Delaware corporation, has main-
tained, at all times material herein, places of business in
Milwaukee and Glendale, Wisconsin, where it has been
engaged in production of plastic moldings.
During the calendar year ending December 31, 1978, a
representative period, the Employer sold and shipped
from its Milwaukee and Glendale locations products,
goods, and materials in excess of $50,000 in value direct-
ly to points outside Wisconsin.
The parties agree, the record reflects, and I find that
Respondent is, and at all material times has been, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The parties agree, the record reflects, and I find that
the Union is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of the
Act.
It. PROCEDURAI. MATTERS
A. Adequacy of Complaint
When the hearing opened, the Employer moved to
dismiss the amended consolidated complaint. Essentially,
the basis for this motion was stated, in the Employer's
terms, to be "the absence of any reasonable prior notifi-
cation of the testimony to be elicited or of the accusa-
tions against [the Employer] and its agents violates Con-
stitutional principles of fundamental due process." I de-
ferred ruling on that motion.
At the conclusion of the General Counsel's case-in-
chief the aforesaid motion was renewed. In the alterna-
tive, the Employer moved to strike those portions of the
complaint which were unsupported by the evidence. I in-
dicated I would issue a specific ruling regarding these
motions at the conclusion of the entire proceeding.
The instant issue arises from the following relevant
facts. On August 3, the Employer filed a motion for a
bill of particulars. That motion asserted that the com-
plaint was deficient in that the allegations were so con-
clusory that a "fair and expeditious hearing" was imped-
ed. Thereafter, on August 16, the Employer submitted
another motion for a bill of particulars. This motion
claimed certain parts of the complaint were replete with
conclusionary allegations. The Employer argued that the
General Counsel's pleadings were not sufficiently ade-
quate to allow the Employer properly to respond or to
anticipate the nature of violations asserted against it.
On September 7, then Associate Chief Administrative
Law Judge Arthur Leff, upon consideration of both the
Employer's motions, ordered the General Counsel to
prepare and serve upon the Employer a bill of particu-
lars amplifying the complaint in certain specific areas.
Administrative Law Judge Leff denied the remainder of
the Employer's motions on the ground the complaint
otherwise complied with the requirements of Section
102.15 of the Board's Rules and Regulations.
On September 21, the General Counsel responded to
Administrative Law Judge Leff's order by filing a bill of
particulars. That document was served concurrently
upon the Employer. I find the General Counsel's bill of
particulars satisfies the terms of Administrative Law
Judge Leffs order. Moreover, I find the issues so clari-
fied were fully litigated.
It is noteworthy that the Employer's post-hearing re-
newal of the claim it has been denied procedural due
process addresses, for the first time in specific terms,
complaint paragraphs not earlier mentioned. In particu-
lar, the Employer asserts that complaint paragraphs
5(a)(iv), 5(b)(vi), and (5)(d)(i) [sic] are without sufficient
specificity to permit the Employer to interpose an ade-
quate defense.
Employees White, Ziemek, LaVine, Boblin, and Hart-
mann provided testimony relating to paragraph 5(a)(iv);
employee Reckner testified relative to paragraph 5(b)(vi);
and employee Gehrke gave testimony as to paragraph
5(d)(i).
The hearing was divided into two segments, interrupt-
ed by a recess between December 7 and January 15,
1980. Each of the General Counsel's witnesses who im-
plicated the Employer's agents in the subject allegations
testified before the December 7 recess. Thus, the evi-
dence on which the General Counsel relies to prove the
assertedly vague allegations was adduced 3 full weeks
before the hearing resumed in January 1980. The bulk of
the Employer's defense was produced after the hearing
reconvened on January 15. In particular, the Employer's
witnesses critical to these allegations testified during the
January portion of the hearing. Thus, Supervisor Red-
zinski testified on January 16, Supervisor Ihlenfeld testi-
fied on January 17, and Supervisor Siegrest was never
called as a witness by the Employer.
I find any pleading deficiency, if it existed at all, was
cured by December 7 with the introduction of the specif-
ic evidence offered by the General Counsel's witnesses.
It was then the Employer had full knowledge of the
General Counsel's claim and supporting evidence during
the 3-week hearing hiatus. Accordingly, I conclude no
factual premise exists to support the Employer's present
claim. It is not the function of a pleading to provide evi-
dentiary matter. North American Rockwell Corporation v.
N.L.R.B., 389 F.2d 866 (10th Cir. 1968); William H.
Dixon, 130 NLRB 1204 (1961). Even if pleadings were
designed to accomplish that purpose, the evidence ad-
duced in December eliminated the need for further expli-
cation. Thus, I conclude that the litigation of the Gener-
al Counsel's evidence as to the disputed complaint para-
graphs provided the Employer with more information
than was its right. Moreover, the Employer fully partici-
pated in the hearing after all the General Counsel's
direct evidence had been presented and all parties had
full opportunity to litigate all issues. In these circum-
stances, I find the Employer's present claim that it was
denied a fair opportunity to defend is without founda-
tion. Accordingly, the Employer's motions to dismiss
based on the assertion of denial of due process are
denied.
B. Sequestration
Before any witness was called to testify, the parties en-
tered a voluntary arrangement to sequester witnesses. It
342
GOSSEN COMPANY
was agreed that the individual Charging Parties could
remain in the courtroom without limitation; the Union.
the Employer, and the General Counsel could have one
individual with them to assist in the presentation of evi-
dence; and all other witnesses were to be excluded. I ad-
vised the parties it was their responsibility to police the
terms of the sequestration of the arrangement.
During presentation of the Employer's defense, it
became evident that some of its witnesses had not com-
plied with the terms of the parties' agreement. Thus, the
Employer's counsel acknowledged the witnesses had
been requested to read the testimony "involving the
statements they have been accused to have made." Also,
the Employer's production superintendent, Hoffman, tes-
tified he completely read the transcript of the hearing en-
compassing the first four hearing dates before the De-
cember 7 adjournment; Employment Supervisor Schmidt
testified to having reviewed some of the transcript to
learn of the hearing procedure and read selected portions
because she had been told they contained "good testimo-
ny"; Supervisor Redzinski testified he read the testimony
of employees who had worked for him and glanced
through others to see if his name was mentioned; Super-
visor Chouinard claimed he read parts of the transcript
haphazardly; Supervisor Lesch testified he paged
through the transcript and read what pertained to him;
Supervisor Buck acknowledged he paged through the
transcript looking for his name; Supervisor Jeray testified
he read the testimony of employees Ziemek, Spingola,
Fritsche, Czuppa, Engel, and that of Works Manager
Bancroft; and Supervisor Ihlenfeld admitted reading
transcript excerpts which pertained to him.
Counsel for the General Counsel moved to strike the
testimony of the aforementioned Employer's witnesses.
That motion is founded on an asserted breach of the se-
questration agreement. The General Counsel argues that
the severe penalty requested is justified because the
record shows the Employer's counsel cooperated in the
alleged breach. The General Counsel cites United States
v. Torbert, 496 F.2d 154, 158 (9th Cir. 1974), where the
court stated "it is ordinarily an abuse of discretion to dis-
qualify a witness [for failure to comply with a sequestra-
tion order] unless the defendant or his counsel have . . .
cooperated in the violation of the order." (Emphasis sup-
plied.) Further, the General Counsel contends the pres-
ent circumstances virtually mandate a total rejection of
the testimony presented by employer witnesses who sig-
nified they had read the transcript. In this connection,
the General Counsel points to Braswell v. Wainwright,
463 F.2d 1148, 1152-53 (5th Cir. 1972), which decision,
in turn quoted from United States v. Schaefer, 299 F.2d
625 (7th Cir. 1962), cert. denied 370 U.S. 917 (1962),
where the Seventh Circuit declared a "witness should be
disqualified . . . when he has violated the sequestration
order with 'the consent, connivance, procurement or
knowledge of the [defendant] or his counsel."' (299 F.2d
at 631.)
The Employer asserts that permitting witnesses to read
the transcript does not violate the sequestration agree-
ment. It urges that the purpose of a sequestration order is
to prevent collusive corroboration of testimony among
witnesses and that those who read the instant transcript
did so simply to become aware of matters with which
they had been charged. Thus, the Employer asserts, in
essence, its witnesses read the transcript to enable them
to meet more effectively the allegations against them.
This purpose, the Employer claims, is not encompassed
within the proscribed objective of sequestration. The
Employer, by analogy, argues reading of the transcript
by its witnesses is no different from its counsel orally in-
forming them of the matters in which they had been im-
plicated by the General Counsel's witnesses. According
to the Employer, the latter procedure would be undis-
puted as an exercise of a party's right to prepare its de-
fense.
In any event, the Employer urges that, at most, any
violation of the sequestration agreement was unwitting.
In this connection, the Employer also alludes to Braswell
v. Wainwright, supra, where the court held that an appar-
ently innocent breach on the part of a witness should not
deprive a criminal defendant from the benefit of that wit-
ness' defense testimony in a situation where there was no
evidence of consent, procurement, or knowledge of the
breach on the part of the defendant or his counsel.
The General Counsel does not contend there is direct
evidence that any of the Employer's witnesses tailored
his or her testimony to that of other witnesses. My ex-
amination of the record reveals no evidence that anyone
who read the transcript discussed what e or she read
with any other witness.
In Holder v. United States, 150 U.S. 91, 92 (1893), the
Supreme Court, early on, recognized the broad discre-
tionary authority of a trial judge to disqualify witnesses
for violation of a sequestration order. Also, see United
States v. Willis, 525 F.2d 657 (5th Cir. 1976). The pur-
pose of sequestration is to prevent one witness from
hearing the testimony of another so as to reduce the risk
of fabrication, collusion, and inaccuracy. Taylor v. United
States, 388 F.2d 786, 788 (9th Cir. 1967). Rule 615, Fed-
eral Rules of Evidence, incorporates these concepts.
That rule, however, contains no remedial provision for
failure to comply. The Supreme Court, in Holder, supra
at 92, declared, in salient part: "If a witness disobeys [a
sequestration order] . . . the weight of authority is that
he cannot be excluded on that ground merely .... " In-
stead, as already indicated, the Court left the remedy for
disobedience to the "sound discretion" of the trial judge.
Total exclusion of an offending witness' testimony is a
harsh result. Although it is true, as the General Counsel
argues, that the Torbert case totally excluded the testimo-
ny of a witness who disobeyed a sequestration order, the
Court noted "because of the availability of alternative
sanctions to enforce the order . . . it is ordinarily an
abuse of discretion to disqualify a witness" unless it is
demonstrated that the defendant or his counsel somehow
had cooperated in violation of the order. I find Torbert
factually distinguishable from the instant case. In Torbert,
the trial judge explicitly ordered all witnesses to refrain
from discussing their testimony with other witnesses
until all testimony was complete. In the present matter,
the sequestration arrangement was negotiated among the
parties in lieu of the issuance of an order by me. The pa-
rameters of the parties' arrangement had not been pre-
cisely defined among them. I issued only a generalized
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reminder that enforcement of their agreement was the
parties' duty. In these circumstances, I find no justifica-
tion for imposition of so exacting a penalty as requested
by the General Counsel.
I perceive merit to the Employer's argument that an
interpretation as broad as the General Counsel seeks
would have the inhibiting effect of preventing the Em-
ployer from pursuing its legitimate defenses. I consider
sequestration rules principally were designed to prevent
communication between and among witnesses. The foun-
dational theory for the rule is practical; namely, to mini-
mize the operation of detrimental forces upon the candor
of witnesses and the spontaneity of their testimony.
Thus, the focal point of sequestration rules is the activity
of witnesses among each other.
In my view, the instant issue is directed toward differ-
ent activity. The real issue has been subverted by the ar-
guments of the contesting parties. Thus, what actually is
at stake here is the ability of an attorney to prepare his
witnesses in defense of a client. Where, as here, there is
no evidence or suggestion that the witnesses under attack
consulted with one another, it is the contact between
counsel and the witnesses which surfaces as the alleged
impropriety.
The American juridical system authorizes and encour-
ages pretrial communication between counsel and the
witnesses he presents to testify. Whether an attorney
may consult with a sequestered witness has been the sub-
ject of differences of opinion. 6 Wigmore, Evidence,
§1840 (Chadbourn rev. 1976). Clearly, to permit consul-
tation admits to the possibility that unscrupulous persons
might abuse the privilege. In this case it is not argued
that such abuse occurred. Moreover, I find nothing in
the record which even hints at the existence of such a
situation. In the total context, I accept the Employer's
assertion that the transcript of the first phase of the in-
stant proceedings was made available to the Employer's
witnesses as an expedient means of trial preparation. My
analysis of the individual testimony of each of the Em-
ployer's witnesses reflects no effort to alter, distort, or
color any of their testimony or to adjust it to that of any
other witness.
Wigmore observes that "it would seem obvious to
good sense that the perusal of journals reporting the tes-
timony should be forbidden." However, Wigmore's trea-
tise goes on to suggest that hypothetical formulations of
the possible words given by a former witness permissibly
may be imparted to a sequestered witness. The present
situation does not call for the application of such fine dis-
tinctions. As will be seen hereinafter, the General Coun-
sel offered a parade of witnesses who gave testimony im-
plicating a multitude of the Employer's managers and su-
pervisors. In an otherwise noncollusive atmosphere I find
the real versus the hypothetical distinctions impractical
and the results of their application virtually impercepti-
ble.
Upon all the foregoing, I conclude, first, that there
had been no violation of a sequestration order because
no such order was issued; and, second, that though a lit-
eral violation of the parties' agreement occurred, the
record as a whole does not warrant striking or excluding
the testimony of the Employer's offending witnesses. Ac-
cordingly, the General Counsel's motions to strike the
testimony of each of the Employer's witness who read
the transcript are denied.
Assuming arguendo my analysis is imprudent, and it is
found the rule had been breached as the General Counsel
asserts, I am nonetheless not persuaded that it is proper
to grant the General Counsel's motion to strike the testi-
mony of the witnesses who read the transcript. Instead, I
conclude it appropriate to consider each such breach on
a case-by-case basis. Accordingly, I would at most assess
the actions of each witness in evaluating his/her relative
credibility against that of opposing witnesses who testi-
fied on the same issues. United States v. Binetti, 547 F.2d
265 (5th Cir. 1977), reversed on other grounds 552 F.2d
1141. 4
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The alleged unlawful conduct emanates from the
Union's second effort in as many successive years to gain
representational rights for approximately 142 employees
in the aforementioned bargaining unit. Carl Maahs, the
union business representative, was assisted in this endeav-
or around March 1979 by an in-plant organizing commit-
tee. That committee included alleged 8(a)(3) discrimina-
tees James Magee, James W. Parr, John Lampada, Lynn
Engel, and Karl Hartmann (alleged to have received ex-
cessive discipline), together with Gerald Bink, Doug
Fogel, Kim Piotrowski, and Jane Prusko. (The Union's
campaign a year earlier, in 1978, was apparently spear-
headed by Magee, Lampada, and Bink. A Board-con-
ducted election was held March 23, 1978. The Union
lost. Magee and Lampada acted as union observers.)
On March 16, 1979, Maahs met with Magee, Lampada,
and Bink. They generally formulated the Union's re-
newed organizational effort. Each signed an authoriza-
tion card. Each took blank authorization cards from
Maahs to solicit other employees. By letter dated April 3
Maahs informed the Employer of the beginning of the
1979 campaign. That letter was received by the Employ-
er on April 4. Thereafter, and until the June 15 election,
the Employer and the Union waged a vigorous cam-
paign. The Union conducted a total of 12-18 meetings
among the employees at a Holiday Inn, the union office,
and Claude's Tavern. Also, the Union distributed at least
15 handbills among the employees. The Employer con-
ducted two separate group meetings among the employ-
ees. Attendance was mandatory. The first meeting series
was conducted on March 20-24. The second series was
held on June 6-12. Additionally, the Employer mailed at
least five letters and distributed at least eight flyers. Fur-
ther, the Employer distributed so-called contact sheets to
its supervisors. These materials contained information de-
signed to be imparted by supervisors to employees who
4 Such an assessment would not affect the credibility resolutions made
infra. I shall delineate, where appropriate, the bases for resolution of
credibility. I consider the stated criteria, in addition to my observations
of witness demeanor, to be more reliable and convincing indicia of credi-
bility than the fact that any employer witness whom I shall credit read
the official transcript.
344
GOSSEN COMPANY
asked questions regarding the campaign. Finally, supervi-
sors were given an attitude survey form. That document
cautioned supervisors not to make direct inquiry of the
prospective voters. The stated purpose of the attitude
survey was to elicit the personal opinions of supervisors
as to the union sympathies of unit employees. 5
Bancroft learned, in March, that the Union's campaign
was imminent. He conducted a meeting of all shift fore-
men and superintendents. There, with Fliss' assistance, he
instructed the supervisory personnel how to conduct
themselves. Bancroft cautioned the supervisors not to
coerce, threaten, intimidate, promise, interrogate, or oth-
erwise harass employees during the campaign. Fliss then
gave examples of the types of activity which are permis-
sible and unlawful.
The record amply demonstrates that, throughout the
campaign period, the employees and their supervisors en-
gaged in open and widespread conversation regarding
the organizational unit. The myriad of 8(a)(1) allegations
derive from those conversations.
B. Credibility
Credibility of the respective witnesses is the determi-
native factor in resolving the instant issues. Virtually
every critical element of the independent allegations of
8(a)(1) violation depends upon who of the witnesses is to
be believed and who presented the most accurate ac-
count of what occurred. Practically every statement at-
tributed to the Employer's supervisors is directly disput-
ed.
The ultimate choice in making my findings of fact is
based on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence provided
by them, established or admitted facts, inherent probabil-
ities, and reasonable inferences which may be drawn
from the record as a whole. Northridge Knitting Mills.
Inc., 223 NLRB 230 (1976); Warren L. Rose Castings,
Inc., d/b/a V & W Castings, 231 NRLB 912 (1977); Gold
Standard Enterprises, Inc., et al., 234 NLRB 618 (1978).
Moreover, I have carefully weighed all the testimony,
bearing in mind the tendency of witnesses in general to
testify as to their impressions or interpretations of what
was said rather than attempting to give verbatim ac-
counts, and also bearing in mind that even the person
testifying about his own remarks may well tend to eluci-
date or express what he said or intended to say in lan-
guage more explicit or clearer than he used in the actual
speech or discussion.
As noted, the issues before me challenge the propriety
of virtually every word and deed of the Employer's
managerial officials since the time they became aware of
the Union's 1979 organizing efforts. As noted, the evi-
dence presented is replete with instances of witnesses for
each litigant providing testimony in direct opposition to
that presented by those of opposing litigants. I shall not
discuss all such conflicts, for to do so would unduly
lengthen this Decision. On the other hand, I have not ig-
nored such testimony, nor the arguments of counsel on
it.
a The conduct of the attitude survey is not separately alleged as a vio-
lation of the Act.
Numerous allegations of 8(a)( ) violations arise from
the activities of the Employer's representatives during
the two series of meetings conducted for groups of unit
employees in March and June. (See complaint par. 6.)
In the credibility contest between the Employer's wit-
nesses who testified as to what occurred at those meet-
ings and the witnesses presented by the General Counsel
upon the same subject matter, a fair assessment of the
testimony convinces me that the versions presented by
the Employer's witnesses are more reliable. Specifically,
I credit Works Manager Kenneth Bancroft, Production
Superintendent Daniel J. Hoffman, Employment Super-
visor Linda Schmidt, Personnel Supervisor Steven R.
Fliss, and Warehouse Superintendent Thomas Roddy in
their narrations of what occurred during those meetings.
Essentially, Bancroft conducted all the meetings. His
testimony concerning what he said to the employees was
direct, certain, clear, and precise. His testimonial account
is substantially supported by documentary evidence.
Thus, the record contains copies of the notes from which
Bancroft testified he read at the meetings. Schmidt forth-
rightly confirmed Bancroft read from the notes in evi-
dence during the second series of meetings (June) which
she attended. Schmidt testified she had a copy of those
notes with her during those meetings and followed along
as Bancroft spoke. Roddy testified Bancroft appeared to
read from notes. Fliss testified that Bancroft used notes
at both the March and June meetings. Hoffman reaf-
firmed Bancroft used notes during the March meetings
and read from his prepared statement in June.
In contrast, the General Counsel's witnesses who were
interrogated regarding Bancroft's use of notes were
vague, uncertain, and in some respects corroborative of
the Employer's witnesses. Only six of the General Coun-
sel's witnesses were questioned regarding Bancroft's use
of notes. Thus, employee Bink testified he did not see
whether or not Bancroft used notes; employee Hacker
claimed she could not remember whether or not notes
were used; employee Fritsche said Bancroft was "read-
ing us that about unions"; and employees Bugni, Miners,
and Waubiness testified Bancroft appeared to be reading.
Upon the foregoing, I find that Bancroft indeed ad-
dressed the employees during the March meetings using
his notes as a guide, and read from his prepared text
during the June meetings.
As to other issues, I find that, in general, the General
Counsel's witnesses were imprecise, exhibited selective
recall, were generalized and conclusionary,' presented
fragmented testimony, were self-contradictory, and
sometimes even corroborated the narrations of the Em-
ployer's witnesses. Some examples of testimony support-
ing my finding follow.
Magee admitted to having a poor memory. Employee
Czuppa had a limited memory of what Bancroft said at
the March meeting. Czuppa testified he only heard Ban-
croft tell employees he was aware that authorization
cards were being distributed, exhorted them not to sign,
and said that the people passing cards were trying to
make trouble. Employee Yahnke recalled, at the March
meeting, only that Bancroft spoke of the Employer's his-
tory with the Teamsters Union. Employee Roggenbuck's
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony about the March meeting was limited to re-
counting that Bancroft urged employees not to sign au-
thorization cards and that "basically that was said at the
[March meeting]." Roggenbuck's recollection of the June
meeting was similarly limited. He merely testified that
Bancroft made a statement bearing the implication that,
after the union campaign, some employees would be ter-
minated. Employee Ziemek was patently poor on recall
of when things occurred. He testified in an extremely
generalized manner as to what occurred during the
March meeting. When asked to describe the June meet-
ing, Ziemek answered in a generalized fashion, "the same
[as March] conversation basically."
Employee Bink, in a limited way, corroborated some
of Bancroft's testimony. In a like vein, employees D.
Hodgson and Dotzauer also corroborated Bancroft.
Employee Spingola was uncertain in recall. He testi-
fied he attended three meetings conducted by the Em-
ployer's representatives. As already observed, there were
only two such meetings. His allusion to a third remains
unexplained. Spingola's testimony regarding what was
said during the March meeting was generalized and
limited. He recalled only that the Employer's "track
record" was discussed.
Employee Reckner was patently prone to testifying as
to her opinions rather than fact. She admitted her testi-
mony was based on her own conclusions of what was
said and done.
The testimony of employee Stelcl was pervaded with
confusion. As to the March meeting, Stelcl's testimony
was limited to a claim that Bancroft announced there
would be no wage increases until "this whole matter"
was settled. Stelcl then asserted, "That's all I remember."
Stelcl's account of what was said during the June meet-
ing was similarly abbreviated.
Employee Reschel admitted to limited and selective
recall, testifying that all Bancroft said in March was that
it would be in the employees' best interest not to sign
cards and that Bancroft gave the reasons for his state-
ment. However, Reschel conceded not being able to re-
member any of the reasons purportedly given by Ban-
croft. Reschel's description of the June meeting was
vague and conclusionary. That meeting was described by
her as one in which there were "tempers flaring on both
sides." Reschel recalled only that the subject matter was
the Union.
Employee E. Hodgson was self-contradictory. After
testifying during direct examination that at the March
meeting employees were told if the Union were voted in
the Employer would move out of State or go bankrupt,
Hodgson acknowledged that his pretrial affidavit con-
tains a different version. Thus, the affidavit indicates that
what actually had been said was that if there were a
strike the Employer could keep the plant open "no
matter what." Also, after Hodgson first testified that
Fliss said, during the March meeting, that those employ-
ees on strike would be terminated, Hodgson agreed
(during cross-examination) that what actually was said
was that the employees could be replaced.
Employee Guerke presented generalized testimony re-
garding what was said during the March meeting. He
claimed the main subject was "dues, delays and strikes."
Guerke's account of what occurred in June has little pro-
bative value because he was at the meeting only 5 or 10
minutes.
Employee Hartmann provided generalized and limited
testimony regarding what occurred during the March
meeting. In some respects he corroborated Bancroft. Em-
ployee Prusko exhibited confusion on the content of the
meetings. She generalized, claiming the essence is that
the Company could outlast any strike.
Employee Bugni responded, "I don't remember any
specifics of the meeting," when asked by the General
Counsel to describe what occurred in March. As to the
June meeting, Bugni provided limited testimony. He
claimed only that there had been a distribution of docu-
ments and the Teamsters record was discussed.
Employee Bielke, testifying regarding the March meet-
ing, was generalized and selective. He claimed the Em-
ployer's officials were "throwing it all up for jeopardy if
we voted the Union in." Bielke also testified in a general-
ized way regarding the June meeting. He did, however,
corroborate Bancroft as to Bancroft's assertion that he
told employees that if there were a strike the plant
would remain open. This is contrary to the testimony of
some other of the General Counsel's witnesses who
claimed Bancroft threatened to close the plant.
Employee Boblin provided limited testimony as to the
March meeting. He claimed Bancroft said that the Em-
ployer would not negotiate and if the Employer could
rid itself of Magee he (Bancroft) could calm down the
(union) situation. So certain an account, however, is
belied by Boblin's prehearing affidavit in which he said
he did not listen too closely to what occurred during the
March meeting because attendance was mandatory. As
to his narration of what occurred at the June meeting,
Boblin displayed a propensity to testify using biased con-
clusions. Thus, he characterized that meeting as "they
were more scare meetings." Then, when asked by the
General Counsel to describe what was said, Boblin gen-
eralized, testifying "it was about the same that was said
at the first [March] meeting. It was a hashover." During
his cross-examination Boblin showed his unreliability as a
witness. He conceded his prehearing affidavit reflects
that he had "pretty much turned myself off to what was
happening." Finally, Boblin admitted he heard what he
wanted to hear and those statements stayed with him.
Employee Miners' account of the March meeting was
generalized and limited. Similarly, Miners testified that
the June meeting was "about the same thing." Employee
Fossum admitted to having a weak memory of events.
Employee Waubiness admitted he comingled the sub-
stance of the March and June meetings. Additionally, he
gave testimony which was contradictory to Magee.
Thus, Waubiness said that in one of the meetings Ban-
croft told the employees it would take at least a year to
negotiate a collective-bargaining agreement. Magee (con-
sistent with an allegation of 8(a)(l) violation) testified
that Bancroft told the employees the Employer would
not negotiate.
Among all the General Counsel's witnesses, Engel was
the most impressive. She was articulate and generally
comprehensive throughout her testimony. Despite these
346
GOSSEN COMPANY
attributes, she was not called on to provide a detailed ac-
count of what occurred either at the March or June
meeting she attended. I find Engel's limited description
of what Bancroft said in March is supportive of Ban-
croft's own version. Engel's narration of the June meet-
ing throws less light upon what occurred. Her testimony,
in part, comports with the Employer's version and
mostly involves Engel's description of her personal
active participation in the discussion at the second meet-
ing. Accordingly, I find Engel's testimony regarding the
Employer's meetings with the employees of little value
in aid of the General Counsel's cause.
Notwithstanding the foregoing, I do not totally dis-
credit each of the above employees. Such a division of
my credibility resolution is proper. A trier of fact is "not
required to discount everything [witnesses] testified to
because he did not believe all of it and nothing is more
common than to believe some and not all of what a wit-
ness says." Edwards Transportation Company, 187 NLRB
3 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971). 1
shall identify those matters where testimony of any of
the above-mentioned, or any other, of the General Coun-
sel's witness is credited. However, as already observed, a
large number of incidents alleged as interference, re-
straint, and coercion evolve from what was supposed to
have been said at the March and June meetings. The
above-noted examples of testimony presented on behalf
of the General Counsel lead me to conclude that the
General Counsel's formulation of what Bancroft and
other employer officials actually said during those meet-
ings is incomplete and imprecise. Although I draw no in-
ference that these witnesses intentionally omitted or dis-
torted what they heard, it is abundantly clear they
simply were incapable of accurately relating with a
modicum of precision or completeness all of what was
said to them. I recognize that Bancroft and other super-
visory personnel are similarly fallible. However, I am
persuaded that their more comprehensive and direct tes-
timony must be accorded more weight than the General
Counsel's witnesses and provides the most reliable indi-
cator of the facts. Accordingly, and particularly with ref-
erence to what occurred during the March and June
meetings, I adopt the accounts given by the Employer's
witnesses. 6
C. Interference, Restraint, and Coercion
Complaint paragraph 5 contains no less than 42 sepa-
rate allegations purportedly engaged in by 10 of Respon-
dent's supervisory personnel. Additionally, in complaint
paragraph 6 it is alleged that eight separate violations of
Section 8(a)(1) occurred during the course of the March
and June meetings chaired by Bancroft.
In true perspective, the tone of the Employer's cam-
paign was set by Bancroft during the March series of
employee meetings. Thus, the following discussion first
deals with the allegations of complaint paragraph 6, and
follows chronologically insofar as practicable.
6 The impact of the various other testimony of the named (and other)
employee witnesses upon the complaint allegations will be further expli-
cated infra.
The General Counsel, assuming, of course, the total
reliability of his witnesses' testimony, contends that the
plethora of unlawful activity reveals a studied effort by
the Employer to defeat employees' statutory rights and
provides the proscribed motivation to support the allega-
tions that the Employer also engaged in discriminatory
conduct.
The Employer urges that the employee witnesses who
described incidents of alleged 8(a)(1) statements present-
ed inaccurate portrayals of what actually had been said;
complains that the General Counsel has pleaded and
argued his case out of context; and that, in any event, if
any remarks were made which can be construed as un-
lawful they were isolated and resulted from a pervading
atmosphere of free and open discussion among employ-
ees and occasionally overzealous supervisors.
Complaint paragraph 6 contains sweeping allegations
by which nearly every word and deed of Bancroft and
other supervisory personnel who participated actively
during the March and June meetings is challenged as un-
lawful. Then the subject complaint paragraph alleges the
Employer's officials made disparaging remarks about the
Union, created the impression of surveillance, threatened
futility in selecting the Union, predicted strikes, an-
nounced frozen wages and benefits as the result of em-
ployee attempts to have the Union represent them,
threatened reprisals and the loss of economic benefits,
threatened to refuse to negotiate, implied damage to em-
ployees' automobiles was caused by the Union, and indi-
cated selection of the Union would cause delays and pos-
sible reduction in existing benefits.
Evaluation of the Employer's conduct is guided by the
following principles: ". . . the measure of coerciveness
of 8(a)(1) misconduct is . . . whether such conduct rea-
sonably 'tends to interfere with the free exercise of em-
ployee rights' rather than whether it succeeded or failed
in intimidating individual employees. N.L.R.B. v. Illinois
Tool Works, 153 F.2d 811, 814 (C.A. 7 1946)...." cited
in Burns International Security Services, Inc., 225 NLRB
271, 275 (1976). Also El Rancho Market, 235 NLRB 468
(1978); Impact Die Casting Corporation, 199 NLRB 268,
271 (1972); accord: N.L.R.B. v. Ford, 170 F.2d 735, 738
(6th Cir. 1948); N.L.R.B. v. Brown-Dunkin Company.
Inc., 287 F.2d 17, 18 (10th Cir. 1961); Local 542, Interna-
tional Union of Operating Engineers, AFL-CIO, [Giles &
Ransom] v. N.L.R.B., 328 F.2d 850, 852-853 (3d Cir.
1964), cert. denied 379 U.S. 826.
In addressing the issue of the bounds of permissible
employer activity during an election campaign, the Su-
preme Court observed, "an employer is free to communi-
cate to his employees any of his general views about un-
ionism or any of his specific views about a particular
union, so long as the communications do not contain a
'threat of reprisal or force or promise of benefit.' He may
even make a prediction as to the precise effect he be-
lieves unionization will have on his company." N.L.R.B.
v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 618
(1969).
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The mandatory meetings
The March series of employee meetings were conduct-
ed on March 20-24. The credited evidence shows the
following occurred. Bancroft told the employees he
heard a unionization campaign was in progress. As previ-
ously noted, Bancroft credibly testified he spoke from
notes.
Those notes contain the following subjects. First, they
indicate that United States Gypsum, the Employer's
parent, has 60 plants. The Teamsters did represent em-
ployees at two of the five plants which are unionized.
The notes indicate that there were strikes at three spe-
cifically identified locations in 1978 and 1979 and that
the Unions involved settled their collective-bargaining
agreements on terms previously offered the Union and,
in one instance, less than those terms because of "guide-
lines." Bancroft's notes refer to dental insurance. They
indicate that none of the strikes referred to above result-
ed in dental insurance. Also, no other U.S. Gypsum plant
has such a benefit. The notes further reflect that two
unionized U.S. Gypsum plants have not yet received the
increased group insurance benefits already in effect at the
instant Employer.
Bancroft's notes refer to the Teamsters dues. The notes
state "dues were approximately $12/month or 7 cents
hour or 2% of wage if earning is $5/hr."
Bancroft's notes refer to "delays," "strikes," and "pos-
sible restrictions." As to delays, it could be 3 months
before a representation election. "If union wins, could be
10 months or more for negotiations." On strikes, the
notes state "if Union is voted in a strike could happen;
top managers and union representative will be payed
[sic]." Employees are not eligible for unemployment
benefits. Insurance premiums are not paid. Regarding re-
strictions, "when employees have a union, the Company
has the same union. Contract is a legal and binding docu-
ment, we cannot treat an employee on an individual
basis. The Company cannot do better than the contract
says."
Finally, the March notes review a Paperworkers union
organizational effort among the subject employees in
April 1976 and indicate that effort did not engender suf-
ficient interest even to hold an election. The Union's
1978 organizational effort was reviewed and resulted in
the Union being rejected "by overwhelming odds."
Bancroft's notes end with the observation that "em-
ployees did not see a need for a union at those times and
now, another year later, the Teamsters Union is back.
With 200 plus employees they see a good opportunity
for income from your dues money. We haven't changed
that much from March 1978 until now and our employ-
ees didn't see a need for a union. I am wondering what
the problem is."
Fliss also spoke during the March meetings. Accord-
ing to Fliss and Bancroft, the employees' existing benefits
and health and safety were reviewed by Fliss. At the
conclusion of their presentations, employees asked ques-
tions.
The second series of employee meetings were held on
June 6-12. As indicated, I find Bancroft read from a pre-
pared text (Resp. Exh. 33). Thus, Bancroft opened his
speech saying he was not going to speak about unions in
general. He said he would discuss "this particular union
at this particular plant and, based on their record and the
records of similar unions at other U.S.G. plants, what
[the employees] could expect to happen here if they
were elected." Bancroft said that "the record of this
union at U.S.G. plants is very poor." He referred to ear-
lier employer campaign propaganda in which he chal-
lenged the Union to answer certain questions about its
record. Bancroft then reviewed the questions and pro-
vided the answers. I have carefully reviewed that materi-
al. In essence, the questions and answers portray the
Teamsters as an ineffective employee representative at
U.S. Gypsum plants. The notes indicate that "dues and
delays and strikes hurt the employees and their families
far more than it could possibly hurt the Company or the
Union"; that Teamsters used to represent U.S. Gypsum
employees at 12 plants, but currently only represented
employees at 2 of its locations; that after an effort to ne-
gotiate a union-security and checkoff provision failed at
U.S. Gypsum's Boston location, the Union abandoned its
representation role; that the Teamsters was voted out of
some of U.S. Gypsum plants; that the Teamsters dis-
claimed representational interest at two other plants after
a full year of unsuccessful negotiations; and that the
Union is not as democratic as it advertises.
Bancroft then said, "If there is a strike here, I will
keep our plant running." He indicated that the employ-
ees would suffer loss of wages. He stated "that unfortu-
nately, violence is no stranger to a strike scene," and that
"the striking employees can lose their jobs through re-
placements or discharge if they attempt to stop the re-
placements from working by violence-or for any other
so-called unprotected activity."
With reference to delays, Bancroft said that "unions
make many demands, all of which have to be negotiated.
No changes are made until there is a complete agreement
and this can take lots of time. Some U.S.G. first contract
took a year or more from election to signing. This means
employees wait on wage increases and any other benefits
while the Union holds meeting and negotiations. I heard
of cases where employees have waited up to 32 months
for wage increases under similar circumstances." (Em-
phasis supplied.)
Regarding dues, fees, and assessments, Bancroft said
he did not know what those costs were for "this particu-
lar union." He did say, however, that "paying them
every month is equal to a reduction in take-home pay-a
wage decrease .
Bancroft discussed restrictions. He indicated an em-
ployer becomes less flexible in dealing with its employees
and their working conditions. Bancroft said that none of
the five union contracts at U.S. Gypsum plants, "includ-
ing the two Teamsters contracts," have arbitration
clauses, straight seniority, or dental plans, "or any of the
things the Union promised here." He indicated that the
employees had equal or better benefits, including insur-
ance and pension, than at any of U.S. Gypsum's union-
ized plants.
Bancroft concluded his remarks saying, "I'm opposed
to the Teamsters at our plant for the same reasons you
should be, and those are the reasons I have given you."
348
GOSSEN COMPANY
He exhorted the employees to consider "what is [the
Union's] track record? How good are they at their job?
What is their performance at other U.S.G. plants?"
Fliss also spoke to the assembled employees at the
second group of meetings. He generally discussed the
Employer's and the Union's campaign literature and
showed the employees two collective-bargaining agree-
ments which U.S. Gypsum had with Teamsters unions at
other of its locations. Near each meeting's end employees
were encouraged to ask questions. 7
The General Counsel contends that the Employer used
the March and June meetings "to bombard employees
with veiled threats of economic reprisals, and anticipa-
tory refusal to bargain and predictions of strikes, vio-
lence and plant closure, if the Union came in." This
theory is formulated upon the testimony of the employee
witnesses whom I have found unreliable sources regard-
ing what was said during this meeting.
Thus, the General Counsel's post-hearing brief cites
abstracts of the testimony of employees Bink, Ziemek, D.
Hodgson, Magee, Waubiness, Roggenbuck, Czuppa,
Engel, Boblin, Hartmann, Yahnke, Miners, Stelzel [sic],
Spingola, Bueilke, Gehrke [sic], Dotzauer, Prusko,
Haecker [sic], Paul, and Fritschie [sic].
I have already commented on the nature of the testi-
mony regarding the mandatory meetings given by each
of the above-named employees except Paul, Hacker, and
Fritsche. I find their testimony more corroborative of the
Employer's position than supportive of the General
Counsel's cause. The instances where they presented evi-
dence in support of the complaint allegations are weak-
ened by generalizations and selectivity. Thus, Paul pre-
sented a limited version of what occurred at the meet-
ings. Indeed, he corroborated the Employer's version.
Paul claimed Fliss said, in relevant part, if the Union
won an election there could be a strike. Paul is the only
witness who attributed such a remark to Fliss. All others
who testified on this subject indicated the strike remarks
were made by Bancroft. In fact, Bancroft's June notes
contain a reference to a strike virtually identical to Paul's
testimony. Paul indicated Fliss also said the Employer
would have to negotiate and negotiations could last a
long time. She also testified the employees were told that
the Employer would not be able to give raises until
"that" was settled. In accordance with what is contained
in Bancroft's June notes, I find that Paul was in error as-
cribing such remarks to Fliss. It was Bancroft who actu-
ally made such remarks. As to the wage increases, Paul's
recollection falls short because Bancroft's notes reflect
that Bancroft said more. Bancroft explained that those
increases must await the outcome of negotiations.
Hacker testified, in a generalized way, that the Em-
ployer's representatives at the meeting she attended said,
"We couldn't get a raise-that you don't get a raise
while the Union is pending and a strike could last a long
time." Comparing her testimony with Bancroft's notes, I
7 It is neither alleged nor asserted that any of the statements made at
the March and June meetings, or in the Employer's written propaganda.
comprise misrepresentations actionable under the current applicable pre-
cedent enunciated in General Knit of C'ahfornia. Inc., 23.19 NRB 619
(1978).
conclude Hacker's narration is founded more upon her
personal perception than actual fact.
Fritsche's recount of the meetings was conclusionary
and generalized. In essence, he claimed the employees
were told "everything would be frozen." (As earlier
noted, Fritsche confirmed that Bancroft read from his
notes.)
I have scrutinized Bancroft's meeting notes and the
contents of both the Union's and the Employer's written
propaganda issued throughout the campaign. The respec-
tive campaigns, in their totality, reveal each party en-
gaged in an uninhibited program of persuasion. Particu-
larly with reference to what was said at the March and
June meetings, I can find nothing which exceeds the
bounds of permissible employer free speech protected by
Section 8(c) of the Act. I cannot subscribe to the sinister
significance attached to the statements of the Employer's
representatives by the General Counsel. Many of the
Employer's letters contain acknowledgments of a bar-
gaining duty. They do not reveal a regressive attitude on
the part of the Employer. I consider them representative
of a hard-fought battle to induce employees to vote
against the Union.
Statements bearing the import of those made at the
meetings have been found lawful. For example, it has
been held an employer may advise employees they may
be required to pay union dues (S. S. Kresge Company, 197
NLRB 1011, 1012-13 (1972)). As to strikes, Bancroft's
March notes contain only a speculative reference to such
activity. Thus, the notes bear the words "if Union wins
could be a strike." Similarly, Bancroft's June speech is
phrased in speculation. Those notes read, "If there is a
strike, I'll keep the plant running." (Emphasis supplied.)
I conclude neither of those statements is proscribed. Ref-
erence to possible strikes, in analogous contexts, is
lawful. Liberty Nursing Homes, Inc. d/b/a Liberty House
Nursing Home, 236 NLRB 456 (1978); American Clay
Forming Plant, Electro Division, Ferro Corporation, 238
NLRB 1052 (1978); C & J Manufacturing Company, 238
NLRB 1388 (1978). There is nothing in the cited ver-
sions of what transpired at the meetings which I find
foretells the inevitability of strikes.
Bancroft did make certain statements concerning eco-
nomic loss to employees. For example, he indicated that
economic strikers could lose their jobs. Specifically, he
said they could be replaced or subjected to such result if
they engaged in strike misconduct or other unprotected
activity. Such a warning is permissible. See American
Clay, supra.
The General Counsel urges the references to delays in
wage increases form part of the Employer's plan to
blame the Union for the admitted suspension of the Em-
ployer's merit review and wage increase practices. 8 I
find no merit to this contention. Bancroft's notes reveal
he said wage increases could be delayed. However, that
reference is carefully tied to the results of negotiations.
Properly viewed within the context of all the campaign
literature to which the General Counsel makes no allu-
sion, I cannot adopt his formulation. The Employer's
I The Employer's announcement of such a suspension will he separate-
ly discussed. infra.
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign literature gives meaning to Bancroft's oral re-
marks at the meetings. For example, the Employer's June
11 letter to employees states, in salient part, "when a
plant manager has decided that a wage increase is war-
ranted but he is faced with having to negotiate it and the
rest of the contract with a union, he often must wait and
use the wage increases to help him reach the contract";
in a June I letter to all warehouse employees, the Em-
ployer stated that there were "delays in making wage in-
creases due to long negotiations .... " at other Team-
sters-represented plants of U.S. Gypsum; the Employer's
June I letter to all production department employees
contains a similar reference; and in the Employer's May
22 letter to all employees, after factually outlining appar-
ently actual negotiating experiences at other U.S.
Gypsum plants, Bancroft concludes stating "based on the
past experience of U.S.G. people in general, I believe
that voting for [the Union] could mean . . . costly wage
delays might very well be experienced." In sum, I con-
clude the remarks concerning wage increases made at
March and June meetings, intertwined with negotiations,
are merely a legitimate prediction of possible conse-
quences of unionization. I reject the argument that these
remarks, in the total circumstances herein, are thinly
veiled with threats or the "fist in the velvet glove" con-
templated by N.L.R.B. v. Exchange Parts Company, 375
U.S. 405 (1964).
The General Counsel argues that a theme of unlawful
disparagement of the Union pervaded the meetings. I dis-
agree. Bancroft did call the employees' attention to the
Teamsters "track record." This activity was not conduct-
ed only at the meetings. Various of the Employer's writ-
ten campaign materials discussed Teamsters representa-
tion at other U.S. Gypsum plants. As indicated, there has
been no challenge to the truthfulness of those of the Em-
ployer's claims. Moreover, documentary evidence sup-
ports them. Thus, the contracts in evidence and the
Union's financial reports (also in evidence) attest to their
accuracy. It is true, as the General Counsel contends,
that the Employer's campaign may be characterized as
one emphasizing "dues, delays, and strikes." Nonetheless,
in its entirety, I cannot conclude the employer's orches-
tration rises to the level of illegality. Even where an Em-
ployer engages in the name calling, the Act has not nec-
essarily been violated. See, e.g., Serv-U-Stores, Inc., 225
NLRB 37, fn. 7 (1976); Fayette Cotton Mill, 245 NLRB
428 (1979). Herein, I simply cannot equate hard-nosed,
but otherwise factual, presentations by the Employer
with the type of activity commonly acknowledged to be
unlawful disparagement. In any event, in the instant en-
ergetic campaign atmosphere apparently fully exploited
by the contesting parties, whatever characterization of
the Union which seemingly casts it in a negative light
readily could be evaluated by the electorate. Fayette
Cotton Mill, supra.
Finally, because I fully credit Bancroft's testimony
about the meetings and the trustworthiness of his notes
over the General Counsel's witnesses who claimed he
said the Employer would not negotiate, I find that the
Employer did not tell employees it would refuse to ne-
gotiate with the Union. Buttressing this finding is the
fact that virtually every piece of the Employer's written
campaign material literally suggests that the Employer
would recognize its bargaining obligation, albeit with a
strong, firm managerial posture. In fact, there are letters
in evidence (Resp. Exhs. 24 and 25) which invite the
Teamsters local which had represented U.S.G. employ-
ees at its Morrow, Georgia, plant to resume bargaining.
Superficially, the General Counsel's arguments relative
to the events at the March and the June meetings are ap-
pealing. However, I find they virtually ignore the broad
scope of the parties' intervening campaigns. Thus, the
General Counsel's otherwise extensive and helpful post-
hearing brief apparently omits consideration of the
impact of the plentiful oral discussions between employ-
ees and supervisors, the literature of the contesting par-
ties, and the several meetings conducted by the Union
for employees. In short, I conclude the allegations which
emanate from the mandatory meetings are fallaciously set
forth out of context and from an assumption, which I
find unwarranted in the instant circumstances, of the reli-
ability of supporting witnesses' testimony. Upon all the
foregoing, I conclude no merit attaches to any portion of
the allegations contained in paragraph 6 of the com-
plaint.
2. Other 8(a)(l) allegations
I now turn to the remaining 8(a)(l) allegations within
complaint paragraph 5. That paragraph, in microscopic
terms, contains no less than 75 separate assertedly unlaw-
ful incidents. In order not to prolong this already ex-
tended Decision each such allegation is not separately
discussed. I have considered each. Those omitted reflect
my conclusion that what was said and done was not as
depicted by the General Counsel's witnesses.
The myriad of 8(a)(l) allegations comprise an exten-
sive array of misconduct in general terms. Each matter
was litigated with clarity and specificity. Nonetheless, in
many instances, the General Counsel's brief for the first
time contains a distinct explanation of each theory of
violation.
Regarding the relative reliability of the opposing wit-
nesses, wherever conflicts exist I credit the Employer's
witnesses. Each of the General Counsel's witnesses pre-
sented his/her account in a more conclusory and frag-
mented manner than those of the supervisors they impli-
cated. I reject the General Counsel's assertions that
much of the employee testimony is uncontradicted.
These assertions are true only in a literal sense. The su-
pervisors, in large part, provided self-serving general
denials. The uncrystalized character of the allegations
engendered such responses. I consider the denials effec-
tively answer all allegations and I credit those denials.
In general, the demeanor of each supervisor was im-
pressive. I have considered also the Employer's precam-
paign instructions relative to supervisory conduct during
the campaign. I have weighed the probability that super-
visors would not be likely to violate the directives of su-
perior managerial officials against the fragmented and
imprecise testimony of the General Counsel's witnesses.
From this I conclude the employees' testimony was
founded more upon his/her personal predilections and
selectively born from their prounion enthusiasm. On the
350
GOSSEN COMPANY
whole, I also find the supervisors' testimony more inter-
nally consistent than that of the employees. 9
Redzinski, Ihlenfeld, Jeray, Siegrest,' ° Chouinard,
Roddy, Johnson, Lesch, Buck, and Hoffmann are the
Employer's supervisors, managers, and agents who are
alleged to have committed the 8(a)(l) violations of com-
plaint paragraph 5. The General Counsel's witnesses who
gave testimony in support of those allegations are Hart-
mann, Prusko, Weinmann, Boblin, Ziemek, White, Wau-
biness, LaVine, Fritsche, Czuppa, Spingola, Reckner,
Beilke, Paul, E. Hodgson, Engel, Roggenbuck, Guerke,
Lampada, P. Dotzauer, Yahnke, Magee, and D. Hodg-
son.
In general, the allegations involve unlawful interroga-
tion, solicitation of grievances, general disparagement of
the Union, predictions of dire consequences of unioniza-
tion, creation of impressions of futility of selecting the
Union and berating it, threatening economic reprisal,
threatening to close the plant, engaging in unlawful sur-
veillance of union activities, threatening employees with
discipline, and unlawfully announcing a wage freeze.
Some of the alleged 8(a)(l) incidents are noteworthy.
For example, underscoring the open and candid charac-
ter of the election campaign, Waubiness testified he had
10 conversations regarding the Union with Redzinski,
Jeray, and Ihlenfeld. During one such conversation with
Redzinski which occurred, according to Waubiness, at
the end of March, Waubiness claimed Redzinski asked
him "what I thought the Union could do for me." Wau-
biness responded better wages, insurance, and a healthier
attitude toward employees by supervisors. Waubiness
was wearing a union button at the time. Assuming the
remark was made as stated, interrogation as to what em-
ployees expect to gain from a union is, on its face, un-
coercive where unattended by threats of reprisal or
promises of reward. Whittaker Knitting Mills, Inc., Div.
Whittaker Corp., 207 NLRB 1019, 1022 (1973). Waubi-
ness' own version of this remark shows he already had
declared himself a union supporter by wearing his union
button. The above-quoted statement of Redzinski consti-
tutes Waubiness' complete testimony on the subject alle-
gation. Thus, it is not asserted Redzinski coupled that
remark with any explicit or implied threat or promise. In
the free flow of discussion about unionization which
clearly prevailed in the instant campaign, I do not find
Redzinski's remark unlawful.
' In assessing credibility I have also considered that some of the most
damaging testimony against the Employer was presented by alleged dis-
criminatees. While not dispositive of their credibility. this is a factor
which may he considered. Local 38. International Brotherhood of Electrical
Workers. AFL-CIO Robert R. Cutler d/b/a Bob Curler Signs). 155 NLRH
1147, 1150 (1965).
Additionally. I have evaluated all the teslimon) i the light of the fact
that some evidence of violation was provided hb some witnesses currenl-
ly employed hy the Employer whose testimony is not likely to be false.
Shop-Rite Supermarket. Inc.. 231 NLRB 500 (1977); Georgia Rug Mill. 131
NLRB 1304. 1305 (1961), modified on other grounds 308 F2d 89 (5th
Cir. 1962).
'0 Siegrest, an admitted agent of the Employer, did not testify at the
hearing. I conclude there is no testimony regarding Siegrests' activities
which is violative of Sec. 8(a)(1I). This is so, based on the entire record.
even if the testinmony of the employees is full) crcdited. A trier of fact
may, based on a credibility resolution, find contrar Io what a uncontra-
dicled witness testified .L.R.RB. v Walton .MtIjanucluring Companr and
Loganville PanIs Co., 369 U.S. 404 (1962).
Bugni claimed that 6 weeks before the election Red-
zinski spoke to him at his work station. Observing that
Bugni wore a union button, Redzinski asked what it
meant to him or why he was wearing it. Bugni testified
he explained, and Redzinski responded he could accept
and respect Bugni's views. That conversation then
ended. As with Waubiness, Bugni's account provides no
evidence Redzinski's comment was attended by any
threat or promise. I conclude this conversation is within
the purview of the Whittaker case. supra.
Reshel testified that, I week before the election, Red-
zinski asked him how he thought the election would turn
out. Reshel replied he thought the Union would win.
Redzinski then speculated the election would result in a
narrow margin for the victor but did not specify which
party he thought would win. I consider Redzinski's com-
ment is not unlike a supervisory inquiry as to how the
union "stuff" would come out. Such a remark was held
lawful in York Division, Borg-Warner Corporation., 229
NLRB 1149 (1977). Accordingly, I do not find this
remark of Redzinski unlawful.
Hartmann testified that Redzinski once asked him
whether he thought the Union had a chance to win the
election. This is asserted as unlawful interrogation. I dis-
agree. An identical question was held lawful in York Di-
vision, Borg-Warner, supra at 1152.
Hartmann, Prusko, Waubiness, and other General
Counsel's witnesses testified, in varying versions, that
Redzinski and other supervisors at various times told
them the Employer would not negotiate with the Union
if it won an election. While Fritsche claimed Ihlenfeld
made such a remark, employee Reckner testified Ihlen-
feld spoke of limitations which arise from bargaining and
signing of a contract. Thus, even Fritsche acknowledged
Ihlenfeld showed him correspondence between U.S.
Gypsum and another Teamsters local which showed the
Teamsters failed to respond to bargaining requests made
by Gypsum. Also, Yahnke recalled Johnson and Lesch
telling him negotiations would ensue and the employer
has the power to remain steadfast in its position. Thus, I
find the evidence presented by the General Counsel's
witnesses confusing and self-contradictory. Indeed, care-
ful analysis of the manner in which each of the General
Counsel's witnesses vocalized this alleged violation clear-
ly demonstrates the tendency to interpose personal inter-
pretations.
With reference to the variety of alleged unlawful inter-
rogations, I cannot conclude that the Employer engaged
in a campaign of unlawful systematic interrogation.
Where interrogation is undertaken for a proscribed pur-
pose such as determining the source and breadth of em-
ployee support for a union, it is unlawful. Twilight Haven,
Incorporated, 235 NLRB 1337 (1978). In the instant case,
I conclude the questions posed by supervisory personnel
were part of an ongoing dialogue of campaign rhetoric.
The record amply demonstrates that employees persis-
tently asked pertinent questions to which the supervisors
responded by reference to their contact sheets and sup-
porting documents. Moreover, as narrated by the Gener-
al Counsel's witnesses, the supervisors' comments were
described out of context and frequently so distorted as to
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
render them unreliable as a basis for evidentiary findings.
The casual nature of the campaign is further demonstrat-
ed by Fritsche's testimony that he had 15-20 union con-
versations with Ihlenfeld, LaVine's testimony that he
spoke with Redzinski about the Union 10 times, and
Spingola's revelation that he and Jeray had 30-40 union
conversations.
As to the assertions that the Employer disparaged the
Union, I conclude that the "disparagement" is a theoreti-
cal conclusion derived from a variety of supervisory
statements. Even where a supervisor was explicit in tell-
ing an employee he could not understand how the em-
ployees could be so stupid as to allow union representa-
tives whom he named bargain on their behalf, the Board
adopted pro forma an administrative law judge's recom-
mendation to dismiss an allegation alleging unlawful
derogation of the union negotiators in Television Wi:scon-
sin, Inc., 224 NLRB 722, 764 (1976). 1 find none of the
statements ascribed to the supervisory personnel in the
instant case even approximates the depth of derision con-
tained in the cited case.
Inasmuch as there is no claim that the Employer's
campaign literature contained misrepresentations, I reject
the General Counsel's suggestion that there is anything
unlawful in the distribution of those documents or dis-
semination of their contents in the instant atmosphere of
free and open discourse between supervisors and em-
ployees. For this reason, I consider the assertions that
the Employer's representatives issued statements of futil-
ity of selecting a union are actually personal impressions
resulting from reading the literature and selective listen-
ing.
The alleged threats of economic reprisal arise from
conversations during which supervisors commented on
the possibility of strikes and the general results of the
Union being selected as the employee's bargaining agent.
For example, Fritsche testified Ihlenfeld said that, if
there were a strike, the Employer would keep the plant
going "no matter what"; Roggenbuck testified Jeray said
the Employer could run the plant with a couple of su-
pervisors; Fritsche testified Jeray said if there were a
strike Jeray would get paid but Fritsche would not.
Also, employee witnesses testified to several instances of
supervisors discussing the adverse impact of union dues
upon their take-home wages and if the Union were elect-
ed the supervisors opined it would not inure to the bene-
fit of employees. I find all such remarks, in the entire
context of this case, privileged within the free speech
provision of the Act. Liberty Nursing Homes, Inc., S. S.
Kresge Co.: American Clay,: C. & J. Manufacturing Com-
pany, supra. Also Wex-Tex of Headland, Inc., 236 NLRB
1001 (1978). Concerning anything which might have
been said susceptible of an interpretation that employees
might lose their jobs, I consider the context in which
such remarks were made reflects only that the Employ-
er's officials were expressing the law as to reinstatement
rights of economic strikers and those remarks are permis-
sible. Decaturville Sportswear Co., Inc., et al., 205 NLRB
824, 827, fn. 2 (1973).
It is alleged that Redzinski unlawfully solicited griev-
ances. Employee Weinmann testified that Redzinski
asked him "what's wrong with the Company." There is
other evidence suggestive of grievance solicitation, but it
is not specifically argued to be such by the General
Counsel. Thus. Hoffmann candidly acknowledged that
throughout the election campaign he continued his prac-
tice of many years of making informal inquiries of em-
ployees as to what could be done to improve plant oper-
ations. Such inquiries give rise to a rebuttable presump-
tion of illegality. Uarco, Incorporated, 216 NLRB I
(1974). I conclude that Hoffmann's uncontroverted testi-
mony that he did no more during the campaign than his
past practice effectively rebuts the unlawful presumption
in the instant case. No employee witness claimed Hoff-
mann made any explicit promise to correct inadequacies.
I find nothing in the record to support the proposition
that Hoffmann implied such corrective action. In my
opinion, to infer an unlawful implication in the present
circumstances would be a distortion of the record as a
whole. Additionally, I find the rather isolated Redzinski
question of Weinmann out of context and ambiguous.
Weinmann stated that Redzinski asked him the question
shortly after Weinmann began wearing his union button.
In essence, Redzinski's inquiry amounts to asking what
Weinmann expected to gain from unionization. This
question has been held lawful. Whittaker Knitting, supra.
This analogy is justified by Weimann's response to Red-
zinski, to wit: "Job security."
I find no merit to the allegation of unlawful surveil-
lance and creation of impressions of surveillance. Thus,
Engel credibly testified that Jeray, her brother-in-law,
said, "I hear you're organizing the Union," on the day
following a meeting held by the Union for employees at
the Holiday Inn. Jeray admitted he made the quoted
statement. Engel and Jeray shared an apparently close,
amiable family relationship. They visited and drove to
and from work together. On the other hand, Jeray was
Engel's immediate supervisor during the latter part of
1978 and into early 1979. Documentary evidence shows
Jeray submitted recommendations for wage rate in-
creases for Engel.
The General Counsel contends the family relationship
between Engel and Jeray is irrelevant and the admitted
remark clearly creates an impression of unlawful surveil-
lance of union activities. The Employer urges Jeray's
statement is lawful because of his relationship to Engel.
The Employer cites the cases of Federal Prescription Ser-
vice, Inc., etc., 203 NLRB 975 (1973), and Wagoner Water
Heater Co., Inc., 203 NLRB 518 (1973), in support of its
position. In Wagoner the interrogation occurred between
individuals who had a working relationship for many
years. However, the supervisor who spoke had no role
in labor relations, there was no evidence that the com-
ment had been transmitted to other employees, and (in
the absence of election objections) there was no record
evidence of adverse impact. Moreover, the administra-
tive law judge explicitly stated he had reservations re-
garding his recommendation for dismissal. Nonetheless,
he did so recommend, noting the above-described con-
text and that the remark appeared isolated. I find the
Wagoner case distinguishable from the instant matter.
Federal Prescription is more apposite. There, an em-
ployee asked her supervisor why her attitude apparently
352
GOSSEN COMPANY
cooled toward her. The supervisor answered it was be-
cause she was disappointed that the employee, a union
supporter, was following people on whom she would not
have wiped her feet in the past. This supervisor and em-
ployee were "Obviously close friends." In recommend-
ing dismissal, the administrative law judge, 203 NLRB at
990, aptly observed, "Strong feelings frequently make for
bitter words, but in my opinion, this exchange was of a
personal nature between the two [close friends] and con-
tained no elements of coercion."
I find this is a close issue and not free from doubt. The
record shows Engel was among the leadership of union
activities. Jeray clearly had authority to function, and
did so, in matters relating to personnel actions. No
matter how well-intentioned or innocent, his comment
suggests he kept a watchful eye over employee actions.
However, there is wisdom in the language quoted from
Federal Prescription. Even recriminatory language be-
tween supervisors and employees, in certain circum-
stances, does not rise to the level of unfair labor prac-
tices. In the total context of this case, I am impelled to
conclude that Jeray's subject comment to Engel is not an
8(a)(1) violation. In addition to the general campaign at-
mosphere which I have found free and open, the record
reflects that Jeray and Engel enjoyed such a relationship
between themselves. Thus, the record contains evidence
of yet other conversations between Engel and Jeray in
which he gave her personal advice. They commonly en-
gaged in frank and candid discussions regarding work
and personal matters. Such an atmosphere persuades me
that Jeray's comment was casual rhetoric. In so finding, I
note the absence of an alleged program of surveillance.
The other example of such alleged conduct is disposed of
in the paragraph immediately below and, in my opinion,
lends support to one of the Employer's overall assertions
that its campaign was governed by policies which en-
couraged only lawful activity among its supervisors.
Union Business Representative Maahs and employee
Hartmann testified that at an organizing meeting at
Claude's Tavern sometime in April they saw Supervisor
Buck. On that day Hartmann had been scheduled to
work mandatory overtime. Instead, he called in sick. On
his next work day, Redzinski inquired "why was [Hart-
mann] well enough to go to a union meeting, but too
sick to come to work?"''
Buck admitted being at the tavern. He credibly testi-
fied he had been invited there by employees on his shift
to share a beer with them, but claimed he had been un-
aware of the union meeting. Buck claimed he customar-
ily visited that tavern for such purposes. There is no pri-
vate meeting room in the tavern which is, undeniably, a
place customarily visited by the public.
Not all instances where employer representatives are
at or in the vicinity of the union activities of their subor-
dinate employees amount to unlawful surveillance. Thus,
where purely fortuitous circumstances bring such parties
together there is no dogmatic legal principle by which
the employer would be declared to have violated the
I This remark is not specifically alleged as having unlawfulls created
an impression of surveillance. Apparently the General Cunsel's brier
refers to Redzinski's comment as the basis for inferring tiuck's presence
at the tavern was not accidental.
Act. For example, in Atlanta Gas Light Company, 162
NLRB 436, 438 (1966), the Board overruled a regional
director's conclusions that an employer engaged in im-
proper surveillance. There, the employer representative
was present in the only bowling alley within the commu-
nity in which a union meeting was held. He had patron-
ized the bowling alley before the night of the meeting.
Some of the employees invited him into the meeting. He
remained there without incident for a brief period of
time and left upon the request of the union representa-
tive. The remainder of the evening was spent bowling
with a friend. The Board concluded that the employer
representative was free to patronize the bowling alley.
The Board further stated that "his mere presence, absent
more specific evidence it was not for a legitimate pur-
pose, or that it was for the purpose of observing the
meeting, establishes neither surveillance of the meeting
by him, nor a reasonable basis for an impression of sur-
veillance in the minds of employees in attendance at the
meeting."
The instant case is virtually identical with Atlanta Gas.
I place no relevant significance to Redzinski's expression
of awareness that Hartmann was at the meeting. Rather
than reflecting a heinous activity, I deem it more reflec-
tive of appropriate management concern for attendance
obligations of its employees. As noted, Hartmann feigned
illness to attend the union meeting. 2 Redzinski's com-
ment, in this context, simply is a reminder of that obliga-
tion.
Engel's credible testimony shows that she had request-
ed a return to a former job classification during the
spring. Her request was denied. She confronted Ihlenfeld
and complained. Jeray apparently overheard her com-
plaining. He said to her, "what do you expect when you
buck the system?" The quoted statement is alleged as a
threat of reprisal. There is no evidence that Jeray played
any part in the transfer denial. When he made the
remark, he was no longer Engel's immediate supervisor.
I concede that Jeray's statement may be interpreted as
bearing the implication that the denial of transfer was
connected to Engel's notorious union activities. In isola-
tion, then, this remark has the tendency to discourage
such activities. Despite this, I conclude that the familiar
and social relationship between Engel and Jeray (de-
scribed above) effectively diminishes the proscribed
effect of his remarks.
It is alleged in complaint paragraphs 5 and 6 that the
Employer violated Section 8(a)(l) of the Act by an-
nouncing that wage increases were frozen.'a Several su-
pervisors are alleged to have told employees that no
wage increases could be granted because of the Union or
the union activities.
The relevant facts regarding wage increases are sum-
marized as follows: 4 Bancroft acknowledged that the
I here i no evidence hc was disciplined for this indiscretionll
" Complilnt par 1t)() separaely alleges that Spingola ,was discrimin-
atorily denied a wage increase, and par I0(h). added at the hearing. al-
leges that since late March the Employer discriminalorily refused to)
grant "normal wage increases." all in %iolalion of Sec. 8(a)(3) of Ihe Acl
'4 Erployce wit(nesses uniformly testified to) their history of wage in-
creases. I'heir tIctinllony. though sometlmci, contlriling and the product of
()nttillied
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer gave no wage increase to unit employees since
the beginning of the organizing efforts. Whenever em-
ployees asked when or whether they would receive in-
creases they were told that wages were frozen during
the Union's campaign (Jeray); "at this time everything is
froze-I do not want to get accused of buying votes"
(Roddy); raises could not be given until "that was set-
tled" (Paul); raises would not be given until "the Union
business is through the courts" (Yahnke); "no raises until
[the tie vote] was settled" (P. Dotzauer); and raises could
no longer be given because of union activity (Spingola).
Some of the employees acknowledged having been told
that the wages could not be increased because it could
be considered bribery (Geurke and Stelcl).
The Employer maintained two types of wage in-
creases: Merit and group increases. Merit increases are
based on subjective periodic evaluations of employee
performance and on economic conditions. Group in-
creases, also subjective, are granted to maintain neces-
sary manpower level and depend on economic condi-
tions. In practice, it appears merit increases were granted
at generally regular intervals within the first 90 days of
employment. Thereafter, there was no regularity to such
increases. Group increases were not awarded at regular
intervals. They were principally dependent on general
business conditions. However, Bancroft admitted that
group increases were provided in 1975, 1978, and 1979.
The 1975 increase apparently was across the board. The
1977 and 1978 group increases were granted only in par-
ticular departments. Upon the foregoing, I find the merit
wage increase system remained an active program sys-
tematically, albeit not with regularity, applied to reward
worthy employees for good job performance. On the
other hand, I find the more generalized group wage in-
crease assumed no such consistency.
During an organizational campaign an employer must
proceed as it would have had the union not been on the
scene. Stumpf Motor Company, Inc., 208 NLRB 431, 433
(1974); Sinclair & Rush, Inc., 185 NLRB 25 (1970); The
Gates Rubber Company, 182 NLRB 95 (1970); McCor-
mick Longmeadow Stone Co., Inc., 158 NLRB 1237
(1966). The Board holds that granting of wage increases
during the critical preelection period is proscribed where
granted to affect election results and that it is an unfair
labor practice to change an established benefit practice in
circumstances which interfere with the exercise of their
statutory rights. For example, see, Colonnade Hotel, 235
NLRB 1362 (1978); The Goodyear Aerospace Corporation,
234 NLRB 539 (1978); Holyoke Nursing Home, Inc., 219
NLRB 1041 (1975); LaMarche Manufacturing Company,
238 NLRB 1470 (1978). The Employer urges that sus-
pension of the merit increase system was a necessary in-
gredient of its legal obligations during the instant cam-
paign. To this end, the Employer's representatives ad-
vised employees that granting of wage increases could be
considered a bribe.
admittedly poor recall. substantially conforms to the description of wage
increase policy provided by the Employer's witnesses. No rebuttal evi-
dence was offered to the latter testimony. Accordingly. my recitalion of
wage policy is based on an adoption of the Employer's evidenlce on this
subject.
The Employer has cited cases which it claims supports
its position that the merit system increases properly were
discontinued. I find those cases distinguishable. Thus, in
The Singer Company, Friden Division, 199 NLRB 1195
(1972), there was no evidence that the withheld benefits
had been expected by the employees. Herein, I have
found the merit wage system had been perpetually imple-
mented. In essence, it assumed a pattern based on reward
for good work. Thus, I conclude there was a reasonable
expectation among the employees that such a program
would continue. Also, in Singer, there was no general an-
nouncement that the benefits involved were being with-
held. There, only the employees who inquired were told
of Singer's policy. In the instant case, there was general
publicity regarding the suspension of wage increases.
Respondent also cites Heckethorn Manufacturing Co.,
208 NLRB 302 (1974). In that case there was no evi-
dence that the employer used the delay of an annual
wage increase until after the resolution of a question con-
cerning representation. In Heckethorn no announcements
of the delay or the reason for it were made. It was gen-
eral knowledge among employees that it would have
been illegal to grant the increase while an election was
pending, Thus, the rationale underlying the finding of no
violation in Heckethorn was that the record did not show
the employer connected the withheld increase to the
advent of the union. In the case at bar, I find the Em-
ployer's actions and various statements concerning the
wage increases persistently tied their suspension to the
current election campaign and to the union activities.
Thus, there is herein a distinguishing basis upon which it
can be inferred that the reasonable message derived by
the instant employees was that their reviews and atten-
dant wage increases had been delayed because of the
union activities. Clearly, such an effect discourages union
activity.
Finally, I find the Employer's references to Union Hos-
pital of Cecil County, 229 NLRB 91 (1977), only helpful
to delineate the operative guidelines relating to imple-
mentation of wage increases during the critical preelec-
tion period. The cited case, borrowing from Mallory
Controls Company a Division of P. R. Mallory Co., Inc.,
214 NLRB 616 (1974), identified the criteria for resolu-
tion of such cases. I find Union Hospital does not enlight-
en the instant issue.
The inherent vice leading to findings of violation in
the McCormick Longmeadow and Gates Rubber cases,
supra, is the employer's action in leading employees to
believe the expected wage increases would be forthcom-
ing but for the union. Herein, the Employer did not
remain silent. Whenever employees were informed, in
some form or another, that the merit review system was
being held in abeyance because of the Union's presence,
the campaign or union activities were mentioned. Thus,
the message conveyed to the employees is one from
which they readily could conclude that to obtain their
merit increases they first would have to abandon the
Union. The instant situation is virtually identical with
that in General Motors Acceptance Corporation, 196
NLRB 137 (1972). There, the employer had a longstand-
ing policy of evaluating employee performance and re-
354
GOSSEN COMPANY
warding such performance with wage increases. There,
as I have found herein, the merit review program as im-
plemented became a term and condition of employment
regularly expected by the employees. Further analogous
is the factor, as herein, that the merit reviews contained
an element of discretion. In holding the suspension of the
merit wage increase system a violation of Section 8(a)(1),
the Board declared (at 137), "Respondent could have
continued this program as it did in the past and not have
violated the law. Instead, upon the advent of the Union.
it suspended merit increases which it would otherwise
have given to its employees." To be sure, General Motors
contained evidence of other unfair labor practices. How-
ever, the Board's opinion does not refer to such unlawful
conduct as a predicate for its finding that the suspension
of the merit increases was unlawful.
Upon all the foregoing I find that, by suspension of the
operation of its merit wage review and increase system,
and by blaming the Union for the suspension, the Em-
ployer violated Section 8(a)(1) of the Act, as alleged.'5
In sum, I find the record does not establish by a pre-
ponderance of credible evidence that the Employer vio-
lated Section 8(a)(1) in any manner alleged in complaint
paragraph 5, except with regard to announcing a suspen-
sion of the merit wage increase policy.
D. Discrimination-in General
Despite my findings that the bulk of the alleged inde-
pendent violations of Section 8(a)(1) did not occur as the
General Counsel alleges, it is nonetheless possible that
the requisite discriminatory intent for finding violations
of Section 8(a)(3) actually prompted the alleged discrimi-
natory activity. It is not essential, in order to find such
motivation exists, that the conduct be attributed solely to
the employees' union activity. It is sufficient to find a
violation of the Act, notwithstanding a valid cause may
have existed justifying the employer's conduct, so long
as a substantial or motivating ground for the conduct
was union activity. N.L.R.B. v. Whitin Machine Works,
204 F.2d 883, 885 (Ist Cir. 1953).
On the other hand, while action taken against, or disci-
pline imposed upon, employees may appear extreme, it
does not follow that the ascribed reason for such action
or discipline is pretextual. If an improper motive is not
involved, "the Board cannot substitute its judgment for
that of the employer as to what constitutes reasonable
grounds for [those actions]. . . . The question of proper
discipline of an employee is a matter left to the discretion
of the employer." Corriveau & Rourhier Cement Block,
Inc. v. N.L.R.B., 410 F.2d 347, 350 (Ist Cir. 1969), citing
N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497,
505 (6th Cir. 1967), cert. denied 389 U.S. 843. "Direct
evidence of a purpose to discriminate is rarely obtained,
especially as employers acquire some sophistication
about the rights of their employees under the Act."
Corrie Corporation of Charleston v. .L.R.B., 375 F.2d
149, 152 (4th Cir. 1967). The burden of proving such
motive rests squarely upon the General Counsel and that
burden never shifts. The burden is satisfied when the
" I further find that the uspension of the operalion of the Ny.tem is
violative of Sec. (a)(
3
), a alleged.
record as a whole contains a preponderance of evidence.
N.L.R.B. v. Glenn Raven Silk Mills. Inc., 203 F.2d 946
(4th Cir. 1953). The Board in adhering to this principle
declared that "the National Labor Relations Act does
not require that an employer act wisely, or even reason-
ably; only, whether reasonable or unreasonable, that it
not act discriminatorily." Paramount Metal & Fitishing
Co., Inc.. and Paramount Plating Co.. Inc.. 225 NLRB
464, 465 (1976).
The present issues of discrimination call upon me to
determine, from the totality of evidence, whether the as-
serted reasons for the alleged discriminatory activity are
the ones which actually motivated them. Signal Deliverv
Service, Inc., 226 NLRB 843 (1976).
Respondent argues that the record is devoid of evi-
dence of union animus. My findings that the alleged
8(a)(1) activity did not, in the main, occur lend support
to the Employer's position. However. the Supreme
Court has noted "specific evidence of intent to encour-
age or discourage [union] is not an indispensable element
of proof of violation of Section 8(a)(3)." Radio Officers'
Union of the Commercial Telegraphers Union AFL [A.H.
Bull Steamship Company] v. 'V.L.R.B., 347 U.S. 17, 44
(1954).
The Ninth Circuit Court of Appeals observed that in
8(a)(3) cases:
. . .the trier of fact may infer motive from the total
circumstances proved. Otherwise no person accused
of unlawful motive who took the stand and testified
to a lawful motive could be brought to book....
If he finds that the stated motive for a discharge is
false, he certainly can infer that there is another
motive. More than that, he can infer that the motive
is one that the employer desires to conceal-an un-
lawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
[Shattuck Denn Mining Corporation (Iron King
Branch) v. IN.L.R.B., 362 F.2d 466, 470 (1966).]
See also Heath International. Inc., 196 NLRB 318 (1972).
The Shattuck Denn principle was expressly adopted by
the Board in Atlantic Metal Products. Inc., 161 NLRB
919, 922 (1966).
In addition to the foregoing, the following principles
govern the disposition of the instant issues of discrimina-
tion. As to each such allegation, the Employer interposes
the existence of seemingly valid causes for its actions.
They are not dispositive. Discrimination is unlawful if it
is only partially motivated by discriminatory animus.
Florida Medical Center. Inc. d/b/a Lauderdale Lakes
General Hospital, 227 NLRB 1412 (1976) N.L.R.B. v.
Dant. et al., 207 F.2d 165, 167 (9th Cir. 1953). It is well
established that, even if a partial reason for alleged dis-
crimination is one proscribed by the Act, a violation
must be found. .V.L.R.B. v. Tom Wood Pontiac, Inc., 447
F.2d 383 (7th Cir. 1971); Dilene Answering Service. Inc.,
222 NLRB 462 (1976).
Thus, even if activity of some, or all, of the alleged
discriminatees normally constitutes sufficient ground for
disciplinary action, the issue is not necessarily resolved.
Support for a finding of unlawful motivation "is aug-
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mented [when] the explanation of the [discipline] offered
by the Respondent [does] not stand up under scrutiny."
N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592
(Ist Cir. 1947).
1. James Magee
Magee was suspended on April 9 and discharged on
April 30. He had been employed approximately 10 years.
In that time he received only three or four disciplinary
warnings. The most recent warnings, January 11 and
March 22, were verbal.' 6 Both warnings were for leav-
ing his assigned work area. Magee had generally good
work appraisals and received merit increases.
Magee was a leading union supporter. He was part of
the group that initiated the Union's campaign. Thus,
Magee attended preliminary precampaign meetings with
Maahs, served on the in-plant organizing committee, and
actively solicited employees' signatures on union authori-
zation cards. The Employer acknowledged its awareness
of Magee's union activities. "
On April 6, Bancroft received a report that employee
Robert Stoller'8 had complained that Magee had threat-
ened to set fire to Stoller's automobile. That threat alleg-
edly was made during the course of solicitation of Stoller
to sign an authorization card. Bancroft testified he under-
took an investigation. Thus, on April 9 Bancroft inter-
viewed Magee. He confronted Magee in general terms
regarding the threat. Magee denied he threatened
anyone. Magee testified, without contradiction, that he
volunteered to take a lie detector test. Bancroft, howev-
er, told Magee he was suspended pending completion of
the Employer's investigation. Bancroft advised Magee he
would have to make a decision on what to do upon the
available information forthcoming from his "investiga-
tion." ' 9
Bancroft then spoke to Stoller who reaffirmed that
Magee threatened to set fire to his car. Stoller gave a
written statement confirming the incident. During his
conversation with Bancroft, Stoller indicated that em-
ployees Guzman and Ziemek may have been in the gen-
eral area where Magee is alleged to have issued his
threat. On April 11 Bancroft interviewed Guzman. Ban-
croft asked whether Guzman issued any threat and
whether he heard Magee doing so. Guzman responded in
the negative to both questions.
On April 16, Bancroft again conferred with Magee. He
asked Magee whether he would take a lie detector test.
Magee refused. (He had been advised to decline the test
by a union representative.) He repeated he had not
threatened anyone. Bancroft then informed Magee of the
specific assertion against him. Bancroft said it was Stoller
who reported the threat. The meeting ended with Ban-
16 Record is made of such warnings by supervisors, although employ-
ees are not necessarily aware anything has been recorded in writing. The
Employer also maintains a system of wrinen warnings which employecs
are required to sign.
17 The Employer also agreed it was aware of the union activities of
Parr and Burke.
£8 Stoller did riot testify at the hearing. I make no adverse inference
from this omission Stoller was equally aailable both to the (General
Counsel and the Employer
19 The quotes are my personal interjection, not reflective f actual tes-
timony.
croft telling Magee he would investigate further and
contact Magee.
On April 18, Stoller took a lie detector test. The re-
sults were inconclusive. The independent agency con-
ducting the test asked whether Stoller had a history of
mental problems.
On April 23 Bancroft interviewed Ziemek. Ziemek
was told that Stoller provided the Employer a written
complaint alleging that he (Ziemek) had threatened to set
fire to Stoller's car. Ziemek denied this. Bancroft ad-
mitted that he did not ask Ziemek whether he heard
Magee making such a threat.
Apparently in pursuit of its investigation regarding
threats, employees Hacker, Weinmann, and Yahnke were
asked by their supervisors or the Employer's attorney
whether they had been the recipients of threats regarding
signing an authorization card. Each responded in the
negative.
On April 26, Bancroft again met with Stoller. Stoller
authenticated his original statement. During his inter-
view, Stoller expanded upon the nature of Magee's
threat. Thus, Stoller now claimed that Magee also threat-
ened to bump him off his job and to burn his house.
Magee was not again interviewed.
Bancroft testified he decided, on the basis of the evi-
dence before him, to discharge Magee for threatening to
set Stoller's car on fire. Bancroft wrote Magee a letter
informing him that the discharge was effective April 30.
No reason was given Magee for this discipline.
The Employer contends Magee exhibited a proclivity
toward threatening violence. Thus, Bancroft testified that
in 1974 he spoke with Magee about a threat that Magee
reportedly made to Supervisor Leardi. When so con-
fronted, Bancroft testified Magee admitted having made
such a threat, apologized, and promised it would not be
repeated. At the time of this alleged incident, John W.
Lucas was warehousing supervisor. Lucas was supposed
to have been a party to that occurrence. He testified2 0
that he reported the incident orally to Bancroft. Bancroft
testified that he, in turn, recommended to the Employer's
president that Magee be discharged. According to Ban-
croft, that action was not taken because the Employer
felt sorry for Magee and did not want to alienate
Magee's wife, then also an employee, who the Employ-
er's representatives felt was a capable employee.
Also, Robert J. Simon, the Employer's division sales
manager, testified. He claimed that, on April 7 when
touring the plant with prospective wholesalers, he saw
Magee driving his forklift truck very rapidly, abruptly
jump off of it, and grab an individual. There is no evi-
dence this incident had been reported immediately.
On rebuttal, Magee denied the existence of the Lucas-
Leardi incident. He also denied he ever drove the forklift
truck at an excessive speed, jumped off it, or grabbed an-
other employee. I credit those denials. Although Magee,
Lucas, and Simon each presented self-serving testimony
regarding the incidents in which each is supposed to
have been mutually involved, the evidence presented by
Lucas and Simon defies probability. The precise date on
2' Leardi did 1lit appear as a w\itness.
356
GOSSEN COMPANY
which the Employer's verbal/written warning system
took effect is uncertain. It may not have been implement-
ed at the time of the alleged Lucas-Leardi incident.
Nonetheless, I consider it unlikely that the matter, if it
occurred, was not memorialized in writing somewhere.
Based on its defense, it is clear the Employer considers a
threat of bodily harm and/or property damage to a
fellow employee valid cause for discipline. Surely then, a
similar threat to a supervisor merits disciplinary action.
However, there is no evidence that any discipline less
than termination was wrought on Magee for the Lucas-
Leardi incident. By Bancroft's own version, he simply
admonished Magee and extracted an apology.
The verbal/written warning system clearly was in
effect at the time of the alleged incident with Simon.
The record is replete with documentary evidence show-
ing verbal warnings were issued freely for numerous
types of indiscretions. A sampling shows the following
verbal warnings: T. Burke-smoking out of area 9-21-
78; employee Conway, out of work area 9-27-78, and
sleeping 9-9-78; Engelbert, smoking in unauthorized
area, 9-21-78; and Fossum, hit garage with forklift 11-
25-78. There is no evidence that any concurrent report,
written or oral, was made concerning the alleged Simon-
Magee matter. In the context of the manner in which the
verbal written warning system had been implemented, I
find it reasonable to presume some record would have
been made of the Simon incident if it had actually oc-
curred as described by him. No such record is reflected.
In contrast, Magee's litany of denials was presented in
a direct, low-keyed, moderate fashion. His general bear-
ing was impressive and calm. He was unshaken in the
denials of these assertions against him. I find the record
contains no ostensible basis for disbelieving him as to
these matters. Whatever other testimonial discrepancies
the record reflects concerning Magee are, as I have earli-
er noted, due to perceptual differences. Hence, I find
them irrelevant to his general veracity. 2 1
I conclude that the reason asserted by the Employer
for Magee's discharge is pretextual. First, I find the Em-
ployer's investigation into Stoller's report he had been
threatened to be shallow and contrived. Thus, the Em-
ployer relied on an apparently unreliable source of infor-
mation. Stoller was a relatively new employee. At the
time of the alleged incident, he had been employed only
about I year. Bancroft admitted Stoller was "very agitat-
ed-very nervous." That instability was manifest in the
results of his lie detector test. These circumstances
demand more than perfunctory attention to his asser-
tions. The Employer made a pretense of doing so. How-
ever, I find only cursory attention was given to that task.
Thus, when Ziemek was interviewed, he was not asked
to confirm or to deny whether he heard Magee issue the
alleged threat. For this reason, involving Ziemek in the
"investigation" had no valuable purpose. It merely dem-
onstrates the rather cavalier character of the "investiga-
tion."
The involvement of Hacker, Weinmann, and Yahnke
yields similar results. To interrogate them regarding al-
" In making this credibility assessment, I place little significance on
the testimony of Maahs, Engel, and Lampada who, in relevantl part, gave
testimony of Magee's general character
leged threats, in general terms, comprises an unwarrant-
ed expansion of the "investigation." That activity was to-
tally unnecessary because only the threat allegedly made
by Magee came to the Employer's attention. Finally, the
"investigation" ended abruptly, without cogent explana-
tion. No effort was made to reinterview Magee after
Stoller expanded on the nature of the alleged threat.
Direct evidence of discriminatory motivation is not
necessary to support a finding of discrimination. Such
intent may be inferred from the record as a whole. Heath
International, Inc., supra. In effect, I must make such an
inference to find Magee's termination discriminatory. I
am required to disentangle the motives of another's con-
duct in a situation where the motive is frequently un-
known even to the actor himself. Another element which
I consider in this regard is the failure of Bancroft to have
stated the reason for Magee's discharge. Bancroft ad-
mitted that reasons for such discipline normally are pro-
vided employees. The failure to do so has long been held
an indication of discriminatory intent. N.L.R.B. v. Griggs
Equipment, Inc., 307 F.2d 275 (5th Cir. 1962).
Finally, if credited, the Employer's allusion to the
Lucas-Leardi and Simon incidents demonstrates the Em-
ployer's effort to shift its reasons for the discharge. Ar-
guably, that evidence provides a background to find
Magee had a propensity toward threats and violence.
Apparently, this is why the Employer adduced such evi-
dence. However, Bancroft testified that the decision to
terminate Magee was based on his unsubstantiated threat
toward Stoller. Later, Bancroft testified "there was no
other reason in Magee's work history." If this were true,
there is no logical reason to refer to the purported prior
misconduct. To do so, as does the Employer, looms as
an effort to shift its reasons for the termination. Such
shifting of reasons is indicative of discriminatory intent.
Tyler Pipe and Foundry Company, 132 NLRB 1187
(1961); Buss Machine Works, Inc., 170 NLRB 928 (1968);
Greyhound Taxi Co., Inc., 234 NLRB 865 (1978). It was
at the instant hearing that, apparently for the first time,
the Employer proffered the Leardi-Lucas and Simon in-
cidents as any part of the reason for Magee's discharge.
In this circumstance, I cannot subscribe to the Employ-
er's claim that such evidence was simply background.
In drawing my conclusions concerning Magee's dis-
charge, I have considered the element of timing. As indi-
cated, he was a known union proponent. The discharge
occurred at the height of his activity during the 1979
campaign. Coincidence in union activity and termination
of employees is a strong factor supporting an inference,
which I make, of unlawful motivation as to Magee.
McGraw Edison Company v. N.L.R.B., 419 F.2d 67 (8th
Cir. 1969); N.L.R.B. v. Harry F. Berggren & Sons, Inc.,
406 F.2d 239, 245 (8th Cir. 1969), cert. denied 396 U.S.
823. The discharge of leading union adherents is a classic
and effective method of undermining organizational ef-
forts. N.L.R.B. v. Longhorn Transfer Service, Inc., 346
F.2d 1003, 1006 (5th Cir. 1965).
The record, in its totality, persuades me that the Em-
ployer grasped upon an untested and speculative asser-
tion of employee misconduct as a subterfuge to disguise
its true motivation in discharging Magee. Upon all the
-
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing, I find that Magee's discharge on April 30 was
discriminatory within the meaning of Section 8(a)(3) of
the Act, as alleged.2 2
2. James W. Parr
Parr, another initiator of the 1979 union campaign and
a member of the in-plant organizing committee, was dis-
charged on May 23 by Bancroft. Parr's discharge letter
informed him that discipline was imposed for destruction
of company property and violation of safety rules.
Orally, Bancroft testified the decision to terminate Parr
was based on a violation of safety rules, willful destruc-
tion of company property, and "for his past perfor-
mance."
On May 22, Ihlenfeld reported to Jeray that coins had
been run through an embosser and caused an imprint in
the vinyl molding. Parr and Engel were at the end of
that particular production line when the incident oc-
curred. Ihlenfeld spoke with Engel who denied she dam-
aged the molding. Jeray confronted Parr. He admitted
running the coin through the embosser. The incident was
reported to Hoffman who suspended Parr on May 22.
Parr apologized to Hoffman who suggested Parr submit
the apology in writing. However, when Bancroft learned
of the problem he wrote Parr, discharging him. Parr
spoke with Bancroft concerning the discharge. During
that conversation Bancroft said the discharge was im-
posed for "destruction of Company property, and plac-
ing himself [Parr] in an unsafe position." No reference
was made to Parr's past job performance. The Employer
admits prior knowledge of Parr's union activities.
Parr had been employed since September 1975. During
1977-1979 Parr received a total of 22 verbal and written
warnings. These were for a variety of reasons. None was
designated a final warning. Parr's most recent perfor-
mance appraisal in February 1979 reflects that he "satis-
fies most" or "meets" his job requirements. Additionally,
Jeray testified Parr "was pretty talented, but his work
performance was up and down since the day he was
hired." Bancroft testified that the sporadic nature of
Parr's past performance contributed to his decision to
discharge Parr.
The Employer's safety rules are distributed to employ-
ees when hired. Clearly, those rules express the Employ-
er's concern for safe conditions. Moreover, the Employ-
er's rules governing employee conduct provide for sus-
pension or peremptory dismissal for "willful violation of
safety rules." Thus, the Employer submits that Parr's ad-
mission that he ran coins through the embosser virtually
mandates the discipline imposed on him.
There are, however, other factors which make signifi-
cant inroads upon the Employer's position. First, there is
evidence strongly suggestive of a discriminatory motive
underlying Parr's discharge. Engel forthrightly and di-
2 The facts recited in this, and in subsequent, sections which contain
discussions of the individuals alleged as discriminatees contain a compos-
ite of the credited testimony, together with that material which otherwise
appears uncontradicted. Where variations deemed material exist. they are
discussed and resolved. Only the facts, arguments of fact and law, and
decisional precedent considered relevant to the issues are recited for the
sake of brevity. Nonetheless, I have considered all matters litigated aid
arguments of counsel made upon them. Thus, omitted matter is deemed
irrelevant, superfluous, distinguishable, or not credible.
rectly testified that after Parr's discharge she confronted
Ihlenfeld with her belief that Parr had been treated un-
fairly. According to Engel, Ihlenfeld said that, if "it" had
been someone else, Parr would not have been fired. Ih-
lenfeld denied making this comment. I credit Engel on
this issue. I have already commented that Engel was the
most credible of all the General Counsel's witnesses. Ad-
ditionally, I find Engel's description of what Ihlenfeld
said more logical than Ihlenfeld's denial. Ihlenfeld,
during testimony as an adverse witness, agreed that there
was general talk in the plant to the effect that it was
unfair to discharge Parr. Accordingly, it is not unreason-
able that Engel and Ihlenfeld had a conversation about
Parr. Also, Ihlenfeld's denial is inconsistent with docu-
mentary evidence which, I conclude, shows Parr's dis-
charge comprises disparate treatment. Thus, the records
in evidence reveal, in part, that employee Fossum hit a
garage door with a forklift and received a verbal warn-
ing in November 1978; V. Ward pushed and shoved
other employees in April 1979 for which she received a
verbal warning and wore no safety shoes in November
1978, a dereliction which resulted in a verbal warning in
November 1978; H. Thompson had a forklift accident in
October 1978 for which he was given a verbal warning,
a second forklift accident in November 1978 for which
he received a verbal warning, and a third forklift acci-
dent in November 1978 which resulted in a written
warning and his removal from operation of forklifts. Fur-
ther, Bancroft admitted that B. Sippy put a hole in a wall
with a forklift and received a warning but was not sus-
pended; and J. Arbinger ran into a woman with his fork-
lift and caused her personal injury. Bancroft admitted
Arbinger received only a verbal warning. In this context,
it is reasonable that Engel would have complained about
her perception of unfair treatment toward Parr. Logic
compels the reasonable inference that such a context of
apparent disparate treatment belies Ihlenfeld's denials
that he made the statement Engel attributed to him.
Indeed, Ihlenfeld's response as recanted by Engel is con-
sistent with what the Employer's warning slips in evi-
dence actually show; namely, that transgression of its
safety rules, even where attended by personal injury, had
not in the past resulted in the dire consequences imposed
on Parr. These conclusions are buttressed by the parties'
stipulation (G.C. Exh. 45) which shows none of the rule
violations mentioned above was used as grounds for dis-
charge of the offending employees. Thus, I conclude that
Ihlenfeld's comment to Engel constitutes an accurate re-
flection of the ostensible manner in which the Employer
previously dealt with its employees.
Next, the apparent disparate treatment accorded Parr
is viewed as evidence of discriminatory motivation. Such
treatment assumes significance in the backdrop of the nu-
merous warnings previously given to Parr. As noted, he
received nearly two dozen warnings in the 2 years imme-
diately preceding his discharge. His immediate supervisor
testified, and performance evaluations confirm, Parr was
somewhat less than an average worker. Despite this, the
Employer obviously countenanced his lackluster perfor-
mance until the incident which is the source of his dis-
charge. I conclude that the record reasonably supports
358
GOSSEN COMPANY
an inference that the Employer tolerated Parr's barely
satisfactory performance until his union activities became
notorious and persistent.
Finally, as with Magee. I note that the Employer
"shifted" its reasons for terminating Parr. When he was
discharged, the Employer did not allude to his past per-
formance. However, during the hearing, Bancroft assert-
ed Parr's work history as a contributing factor to the dis-
cipline. Such shifting is circumstantial evidence of a dis-
criminatory motive.
I concede the Employer has established the existence
of valid justification for taking the action it did against
Parr. However, that justification does not conclude the
issue. If a substantial or motivating ground for the dis-
charge was union activity, there is a basis for finding the
discharge violated Section 8(a)(3). Winkel Motors, Inc.,
178 NLRB 627 (1969), affd. 443 F.2d 38 (9th Cir. 1971).
I conclude that the totality of the instant record demon-
strates that a substantial and motivating ground for Parr's
discharge was his union activity. Apparently Parr only
became intolerable as an employee after he became a vi-
gorous union proponent. In sum, I conclude there is sup-
port in this record for finding the alleged violation.
N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360,
366 (6th Cir. 1963).
Upon all the foregoing, I find that the Employer dis-
criminatorily discharged Parr in violation of Section
8(a)(3) and (1) of the Act.
3. John Lampada
Various of the Employer's actions relating to Lampada
are the subject of a multifaceted attack. Thus, complaint
paragraphs l0(d)(i-v) allege Lampada was discriminator-
ily transferred to a different job on July 30; that from on
or about that date to September 18 the Employer har-
assed him by assigning more onerous tasks than previous-
ly performed; that he was unlawfully suspended between
September 18 and 26; that he was given an unexcused
absence on September 26 and a verbal warning on Octo-
ber 3. All of the above is alleged to violate Section
8(a)(3) and (1) of the Act.
As background, the record shows Lampada had been a
principal union proponent during its unsuccessful 1978
campaign. Lampada was a member of the 1979 in-plant
organizing committee. He actively solicited signatures of
other employees on authorization cards and served as a
union observer during the June election.
In early 1978, Lampada was transferred from the night
shift at the Employer's Bender warehouse to the day
shift at its Green Tree Warehouse. That transfer was ne-
cessitated by the elimination of the Employer's third-shift
operation. At that time only two employees were work-
ing on that night shift. Upon Lampada's transfer to the
Green Tree Warehouse he was required to help establish
it as a functional entity. When the initial work was com-
pleted, the Employer's entire warehouse operation was
moved from Bender to Green Tree.
Before Lampada became involved in the 1979 cam-
paign, he asked Warehouse Supervisor Roddy for a
transfer from his warehouseman job to driving. That re-
quest was granted. As a result, Lampada was given a pay
increase.
Lampada worked as a driver at Green Tree for ap-
proximately 4 months. William Schultz, who had been a
driver for approximately 2 years before Lampada
became a driver, continued his driving functions.
Roddy's uncontradicted testimony indicates that a de-
crease in business dictated the elimination of some driv-
ing operations. Bancroft approved Lampada's transfer
from driving to the warehouse operation. This occurred
on or about July 26. Roddy told Lampada of the transfer
and said it was because there was not enough truckdriv-
ing work. At that time, three employees were driving;
Lampada, Schultz, and Jeff Mann. It appears that Mann's
driving duties were different from Schultz and Lampada.
Mann handled raw materials while Schultz and Lampada
handled finished products. Also, Mann was under Hoff-
man's supervision whereas Roddy supervised Schultz
and Lampada. Roddy's uncontradicted testimony reflects
that Schultz and Lampada would have needed 15-20
days of training to perform Mann's job. Although Lam-
pada no longer was a driver after the July 26 transfer, he
retained the driver's higher wage rate.
After his return to the warehouse, Lampada testified
his working conditions were "kind of rough." Thus, he
testified that when he previously worked in the ware-
house he had been required to stock, board, load, or
"pull" orders in the alternative. According to Lampada,
upon his return to the warehouse work he was expected
to perform all these tasks concurrently. Additionally,
Roddy asked him to pull large volume orders because
Roddy desired to relieve female employees from that dif-
ficult function.
Roddy's uncontradicted testimony shows that Lampa-
da's return to the warehouse coincided with a warehouse
reorganization implemented pursuant to recommenda-
tions of a management consultant. The transfer occurred
during the plant shutdown. Admittedly, things were in a
confused state, a situation which Roddy analogized to
moving one's personal residence. The reorganizational
functions took approximately I month. Roddy testified,
without contradiction, that after the reorganization was
completed Lampada's warehouse duties reverted to those
formerly performed by him at the warehouse. Indeed,
Roddy testified that the various reorganizational adjust-
ments made Lampada's job easier. This assertion stands
unrefuted.
Although working the warehouse, Lampada occasion-
ally drove a truck. On September 18 he was assigned to
drive a tractor and trailer to the Employer's Ocon-
omowoc, Wisconsin, plant. Lampada went about this
task. The husband of a woman whose automobile pur-
portedly was struck by a truck of the Employer reported
the alleged accident to Roddy. Roddy was given a regis-
tration tag number of the truck allegedly involved.
Roddy determined that the registration number would
identify the truck being operated by Lampada that day.
Roddy telephoned the Oconomowoc plant manager,
Wilfred Johnson, and asked him to check Lampada's
truck for evidence of a collision. Roddy confronted
Lampada and told him he was alleged to have hit an-
other vehicle with his truck. Johnson conducted an in-
spection of the vehicle and found marks on the right rear
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tires of the trailer. Lampada testified he saw tire
smudges.
Lampada returned to Green Tree. Roddy spoke with
him. Lampada explained he was not aware of an acci-
dent. Lampada then gave a statement to police officials.
He maintained he did not know of an accident. He did
report that he had stopped at a fast food restaurant to
purchase cigarettes. He found the restaurant closed,
walked back to his tractor, and proceeded to Ocon-
omowoc. Lampada testified he told the police he had not
been pursued by anyone and did not learn of the alleged
accident until Johnson advised him of it. Lampada was
not cited by the police for a hit-and-run violation.
Later, Lampada met with Bancroft and repeated his
story. Bancroft suspended Lampada. At that time, Ban-
croft had not seen the police report which apparently in-
dicated no citation had been issued.
The next day Bancroft obtained the police report. He
observed Lampada was not cited for a hit-and-run acci-
dent. However, it did indicate that Lampada had left the
scene of an accident.
On September 25, having determined that Lampada
bore no culpability, Bancroft sent Lampada a mailgram.
Lampada was requested to report to Bancroft's office at
10 a.m., September 26. (Bancroft tried unsuccessfully, on
September 24, to contact Lampada by telephone. Also,
Bancroft reached Lampada's home by phone on Septem-
ber 25 but was advised Lampada was out of town.)
On September 26 Lampada reported to Bancroft at the
plant. Bancroft again asked Lampada to describe what
happened on September 18. Lampada said he believed
the accident was not his fault. He did admit that he hit a
car. According to Lampada, Bancroft said he could
return to work that day. Lampada said he could not
work that day and Bancroft allegedly permitted his
return on September 27. Lampada testified he told Ban-
croft he could not report that day because he had been
driven to the plant by his brother. (In fact, Lampada had
arranged a job interview elsewhere for that day.)
Roddy had been earlier informed by Bancroft that
Lampada would be recalled effective September 26.
When Lampada did not report to work that day Roddy
placed an absence card on Lampada's timecard.
Lampada reported to work on September 27 at the
regular designated time. He asked Roddy why he had
been given an absentee card. Lampada testified Roddy
answered that Lampada should sign it and not worry.
Roddy, on the other hand, testified he told Lampada the
September 26 absence was unexcused.2 3 Lampada was
paid for each day of his suspension except September 26,
the day of the unexcused absence. The Employer's re-
cords contain no permanent indication Lampada's sus-
pension was disciplinary in character.
Lampada worked without incident from September 27
until October 3. On the latter date, Lampada and em-
ployee Ken Marchand were assigned to pull cartons
23 In accordance with the Employer's regular practice, the designation
of whether or not the absence was excused was not physically placed on
the absentee card until after the employee signed it. I do not find it nec-
essary to resolve this conflicting testimony because all parties agree the
ultimate result is that the Employer had not excused the September 26
absence.
from storage racks and place them onto skids. The lead-
man reported to Roddy that Lampada and Marchand
were standing around talking and the work had not been
completed. Roddy issued a verbal warning to Lampada
and Marchand. Lampada testified that, when Roddy
spoke with him on October 3, Roddy said that Lampada
had been responsible for low warehouse morale and that
he was a chronic complainer. Lampada testified, also,
that Roddy said he was to speak with employees only
about company business. Roddy testified he told Lam-
pada "I do not want chit-chat during the working time,
only work-related comments or conversations."
With respect to employer knowledge of Lampada's
union activities, Roddy admitted knowing Lampada was
a union supporter. However, Roddy characterized Lam-
pada as "closed-mouthed" about the Union.
The Employer contends that Lampada's return to the
warehouse from duties as a driver was based on sound
business considerations. As to the allegation Lampada
was subjected to more onerous working conditions im-
mediately after the transfer, the Employer admits there
was at that time a period of confusion in the warehouse
during the implementation of the consulting firm's rec-
ommendations for warehouse changes. Overtime statis-
tics were introduced into evidence. The General Counsel
claims those statistics refute the Employer's assertion
that business had decreased. The Employer asserts those
statistics are misleading. I agree with the Employer. The
overtime hours worked show that after Lampada's trans-
fer Schultz and Mann averaged slightly more than 13
overtime hours during each pay period. Additionally, the
evidence shows Mann was used to cover Lampada's
former Oconomowoc run. Finally, the record shows
Lampada occasionally was called upon to drive a truck.
I accept the Employer's argument that Mann's over-
time is irrelevant. As noted, Mann's driving functions
regularly differed from those of Lampada and Schultz.
Admittedly, comparatively little time (15-20 hours) was
needed to train either Schultz or Lampada to do Mann's
work. However, to impose such an obligation upon the
Employer would effectively interject the Board into the
realm of managerial judgment. It is clear neither Mann
nor Schultz had the extensive warehouse experience that
was possessed by Lampada. Conversely, it is equally
clear Schultz had considerably more driving experience.
Assuming, arguendo, such interjections were appropriate,
I conclude the overtime hours reflected by the Employ-
er's records are not so numerous that the work entailed
would keep another full-time employee completely busy
performing the driving work which had been the exclu-
sive province of Lampada. At best, the General Coun-
sel's theoretical formulation of violation creates suspi-
cious circumstances. These, alone, are not a sufficient
basis for a finding of discriminatory treatment. Lyn-Flex
Industries, Inc., 157 NLRB 598, 599 (1966). Moreover, as
will be shown infra, there exist other factors which mili-
tate against finding the presence of a discriminatory
motive for Lampada's transfer.
As noted, after Lampada was transferred he received
the drivers' higher wage rate. The General Counsel
argues, though, that Lampada worked 2 hours less in the
360
GOSSEN COMPANY
warehouse than he did as a driver. Also. the General
Counsel asserts that Lampada received "hardly any over-
time" after his transfer. From this. the General Counsel
surmises Lampada's weekly paycheck decreased. I find
no record evidence to support this conclusion. Even if
this were true, I consider such condition only an element
of suspicion. I am more persuaded by the fact that no
action had been taken to reduce Lampada's hourly rate.
In my view it is more reasonable that an employer har-
boring discriminatory intent would have taken advantage
of the apparent need for a transfer to impose a simulta-
neous wage reduction. As observed within my discussion
concerning the allegations of independent 8(a)(1) viola-
tion, I have concluded that the record as a whole does
not support the conclusion there existed a generalized at-
mosphere of discriminatory motivation. The web of sus-
picious circumstances argued by the General Counsel
does not affect my conclusion.
The General Counsel contends there is evidence of
discriminatory motive in Lampada's attitude survey. On
that survey Roddy wrote "hard core union." I agree that
notation is some evidence of unlawful motive. Weighing
this factor against the entire circumstances as to Lam-
pada, I am more persuaded by the evidence showing jus-
tification for the Employer's actions. 24
Upon all the foregoing, I conclude that the record fails
to establish by a preponderance of evidence that Lampa-
da's July transfer to the warehouse was in violation of
Section 8(a)(3) and (1) of the Act.
Similarly, I conclude that the evidence does not sup-
port the allegation that Lampada was discriminatorily
subjected to onerous working conditions immediately
after his transfer to the warehouse. The record contains
no evidence which effectively rebuts the Employer's as-
sertions that the warehouse reorganization caused initial
confusion. I conclude the record establishes that the as-
signment of extraordinary duties during the transitional
period is one of the normal consequences of reorganiza-
tional activity. Indeed, even Lampada conceded that his
warehouse work became more routine when the situation
became stabilized. Accordingly, I find insufficient evi-
dence to sustain the discriminatory allegations based on
asserted "onerous conditions."
Lampada's September suspension presents a close
issue. Balancing all the relevant factors, I conclude that
discipline was not discriminatory within the meaning of
the Act. When Bancroft imposed the suspension, he
knew only that an employer's driver had been charged
with involvement in an accident. Bancroft had not yet
read the police report. Contrary to the General Coun-
sel's claims, I consider Bancroft's response to the infor-
mation at hand a normal reaction. The General Counsel
argues I should infer a discriminatory motive from Ban-
croft's apparent delay between the date Bancroft re-
ceived the police reports (September 19) and the date on
which he made his first telephone effort to recall Lam-
pada on September 24. I agree that the delay is unex-
plained on this record. However, in the absence of ex-
24 Engel's case, discussed infra, is distinguishable. There, the attitude
survey is considerably more probative. It fills the void created by the
lack of cogent explanation for Engel's warnings in the face of apparent
disparate treatment.
trinsic evidence of discriminatory motive relating to
Lampada, I place little significance on the delay. Factu-
ally, I do not consider the delay an inordinate amount of
time. The police report was not received by Bancroft
until Wednesday, September 19. He first telephoned
Lampada on Monday, September 24. Thus, at most only
3 working days elapsed between those events.
As a further basis for making a discriminatory infer-
ence, the General Counsel points to what is asserted to
be the Employer's variation from previous reactions to
the receipt of accident reports. Thus, the records in evi-
dence reflect that employees H. Thompson, E. Pogo, J.
Arbinger, F. Wondracheck, B. Sippy, and T. Mongary
had been involved in vehicular accidents. None was sus-
pended pending investigation. Bancroft explained that
Lampada's suspension was based on a report that Lam-
pada had purportedly left the scene of an accident. Not
one of the accidents in which the other named employ-
ees had been involved was of such a character. More-
over, when Bancroft interviewed Lampada, he (Lam-
pada) acknowledged that he had stopped his vehicle one
block after making a right-hand turn onto Green Tree
Road and, after observing that nobody pursued him, con-
tinued to Oconomowoc. Thus, I conclude that Bancroft
was confronted with circumstances suspicious in nature.
That suspicion, in my judgment, provided reasonable
grounds for thought. In general, then, I find Lampada's
situation sufficiently distinguishable from those cited by
the General Counsel as to render them unfair compari-
sons for purposes of the instant evaluation. On this
record, I cannot conclude that Bancroft's delay in recall-
ing Lampada was unreasonable.
Upon all the foregoing, I find that the record does not
contain the requisite preponderance of evidence to sup-
port the allegations that Lampada's suspension was dis-
criminatory in violation of Section 8(a)(3) and (I) of the
Act.
That Lampada's failure to report to work on Septem-
ber 26 was unexcused also presents a close issue. On bal-
ance, I find it nondiscriminatory. Roddy had been in-
formed that Lampada was to be recalled effective Sep-
tember 26. When Lampada did not report that day,
Roddy completed the absence slip pursuant to normal
practice. The General Counsel's theory of violation is
founded on the clear, virtual impossibility of compliance
with the recall notice. The recall date was incorporated
in Bancroft's September 25 mailgram. However, because
of the conference between Lampada and Bancroft on
September 26, Lampada could not possibly have re-
turned to work until almost 4 hours into the shift. As
noted previously, Bancroft and Lampada gave differing
versions as to whether Bancroft had been advised that
day that Lampada could not report because his brother
had driven him to the plant and whether Bancroft autho-
rized Lampada to start work on September 27. I have
not resolved these testimonial differences because I con-
clude that resolution would not necessarily dispose of the
issue. Failure of internal communication between man-
agerial personnel looms as the basis for Roddy's action.
It is uncontroverted that, from the available information,
Roddy simply conformed to existing supervisory proce-
361
DECISIONS OF NATIONAL LABOR RELATIONS H()OARD
dure. In the absence of more direct evidence of discrimi-
natory motive I will not infer an unlawful one. Assum-
ing, arguendo, that I credit Lampada's testimony that he
informed Bancroft of his inability to work on September
26 and Bancroft authorized him to come to work the
next day, the record as a whole persuades me Bancroft's
approval of the unexcused nature of the September 26
absence is unreasonable. However, such arbitrary action
does not necessarily give rise to, or nurture, a discrimina-
tory intent, absent other evidence of unlawful motiva-
tion. Accordingly, I find that the imposition of the Sep-
tember 26 unexcused absence on Lampada was not dis-
criminatory.
I also find that the October verbal warning was not in
violation of Section 8(a)(3) and () of the Act. In this
connection, Lampada testified that, when Roddy accused
him of being the source of low warehouse morale,
Roddy also said that he would hold Lampada personally
responsible. According to Lampada, Roddy said, if
morale did not improve, Lampada would receive a writ-
ten warning. These remarks, coupled with Roddy's ad-
mitted admonition that Lampada should discuss only
work-related comments or conversations, are urged by
the General Counsel as the basis for an inference of dis-
criminatory motivation. I decline to make such an infer-
ence. There is absolutely no evidence that Roddy's re-
marks (crediting Lampada's version) were related to
union activities. Neither the Employer nor the General
Counsel adduced any evidence of the content of the con-
versation between Lampada and Marchand. Likewise,
there is no evidence to reflect that Roddy even suspect-
ed they were discussing union-related matters. Thus, I
conclude that Roddy's warning merely reflects supervi-
sory concern for attentiveness of employees to their
work.
In sum, I have found that the Employer did not dis-
criminate against Lampada in any way alleged in the
complaint. As previously indicated, I conclude that the
totality of the record does not establish an overall atmo-
sphere of discriminatory intent. To find an unlawful
motive reasonably applicable to Lampada requires me to
use suspicious circumstances and innuendo which I find
unwarranted.
4. Robert Beilke
The complaint alleges that the Employer discriminated
against Beilke since on or about April 1 by giving him a
series of verbal and written warnings and by discharging
him on September 18.
Beilke solicited union authorization cards, distributed
union buttons, wore a union button, and exhibited his
support and union affiliation during conversations with
fellow employees.
Beilke started his employment in late August or early
September 1978. On December 5, he received a written
warning for substandard work; on January 3, 1979, he
was given a verbal warning for tardiness; and on Febru-
ary 4, Beilke received a verbal safety warning. Despite
these warnings, Beilke was rewarded with three wage in-
creases, the last one being received in March 1979. The
March increase was based on Ihlenfeld's performance
evaluation.
From September 1978 until approximately January
1979 Beilke was a warehouse employee. On the latter
date, he was transferred to production work as an ex-
truder operator, apparently at his request for more
money and better hours.
From April until his discharge, Beilke received numer-
ous warnings. Thus, on April II he was given a verbal
warning for leaving his assigned work area for extended
periods of time; also on April I I he received a verbal
warning after he had been told several times not to read
magazines on the production line; on April 16 he was
given a verbal warning for taking a break in the cafeteria
while two other employees in his job category also were
taking a break; on April 23 he received a written warn-
ing for failing to clean up his lines at shift's end-this
warning cautioned that repetition of the infraction could
result in discharge; on April 12, a verbal warning for tar-
diness, on May 17, a verbal warning for not checking his
color, an act which resulted in excess scrap; on May 18,
a verbal warning for using profane language; on May 18,
a verbal warning for failing to change color; on May 26,
a written warning for an unexcused absence on a sched-
uled overtime day-this warning cautioned possible dis-
charge; on May 30, a written warning for failing to
check color with a supervisor which resulted in 2 hours
of off-color material-this warning cautioned future vio-
lations could lead to discharge; on June 10, a verbal
warning for unexcused tardiness; and on July 22 a final
written warning for overall poor work performance, re-
sulting from a failure to clean his line at shift's end. After
this last warning, Beilke was placed on 60-day probation.
He was warned that "violations of any type could lead
to immediate discharge."
Beilke provided extensive testimonial explanations of
the circumstances surrounding each warning. I have ana-
lyzed each situation and conclude that each warning had
foundation. Although I might not have engaged in such
stringent application of company rules had I been
Beilke's supervisor, I cannot impose my methodology
upon Ihlenfeld and Jeray who issued Beilke's warnings.
It appears that the General Counsel has done this. Thus,
the General Counsel's post-hearing brief claims the warn-
ings were given for what the General Counsel character-
izes as "insignificant infractions, which normally would
have gone unnoticed."
Examples of some of the evidence demonstrate the
basis of my conclusion that the warnings were not given
without cause. Thus, with respect to the April 16 warn-
ing for taking a break with two other employees, the evi-
dence clearly shows the Employer maintained a policy
prohibiting three employees in Beilke's job classification
from simultaneously taking a cafeteria break. Engel, one
of the three employees in this incident, advised him of
that policy as he entered the cafeteria. Beilke was the
third employee to arrive. Beilke was not singled out for
this warning. Engel and employee E. Hodgson also re-
ceived verbal warnings resulting from the April 16 inci-
dent.
There is documentary and testimonial evidence to the
effect that not every infraction forming the subject of
Beilke's warnings resulted in similar warnings to other
362
GOSSEN COMPANY
employees. However, examination of the whole record
also shows that other employees had been the recipients
of identical or similar discipline. Scrutiny of the record
in its entirety satisfies me there is insufficient evidence
warranting a conclusion that Beilke was treated in a dis-
parate manner. Accordingly, I place little probative
value on the quantity and variety of warnings given
Beilke after the Union's campaign began.
Even assuming that Beilke's warnings constitute
cogent evidence of disparate treatment, there is scant
evidence such treatment was related to the union cam-
paign or to Beilke's union activities which were com-
paratively unextraordinary. In this connection the Gener-
al Counsel makes two points. First, the post-hearing ar-
guments are pervaded with suggestions of impropriety in
reducing the verbal warnings to a written document
placed into Beilke's personnel file. Thus, as to many
warnings, the General Counsel specially observes that
Beilke had not been told he would receive a warning at
the time his supervisor orally reprimanded him. Contrary
to the General Counsel's suggestion, I place no probative
value on such omission. The Employer's witnesses who
testified on the subject, and Engel, uniformly said it was
common practice for oral reprimands, within supervisory
discretion, to be memoralized on the Employer's "disci-
plinary warning" form. Also, routinely, the offending
employee's signature was not required on that form if it
were designated a verbal, rather than written, warning.
The voluminous documents in evidence support that tes-
timony. There is no evidence that supervisors regularly
advised employees that their oral reprimands were to be
reduced to writing in such circumstances. Therefore, I
do not find it strange or significant that Beilke had not
been explicitly told his oral admonitions and criticisms
would be reduced to writing and made part of his
record.
Second, the General Counsel alludes to a conversation
between Jeray and Beilke in mid-April to demonstrate
the Employer's hostility toward the Union and toward
Beilke in particular. Beilke, wearing a union button, en-
tered the supervisor's office where Ihlenfeld and Jeray
were present. Beilke asked Ihlenfeld if he knew of any
good locations to fish in the Milwaukee area. Jeray ex-
claimed, "I know where you can catch all the fish, but I
can't talk to you with that union button on." I concede
that Jeray's comment is some evidence of hostility. How-
ever, given the free and open atmosphere relative to the
Union's campaign and the fact that Beilke was not
prominently active in union activities, I consider this
remark too isolated to support the discriminatory allega-
tions regarding him. This is especially true in the context
of Beilke's various admissions he actually engaged in the
variety of acts for which he received warnings, some-
times repeating conduct for which he had received earli-
er warnings. Additionally, I note the complete absence
of any evidence that the Union, its campaign, or Beilke's
sympathies and affiliations were discussed during the
course of any discipline given to him.
Third, the General Counsel urges the Employer's ad-
mitted close surveillance of Beilke between August 9-26
forms another element of discriminatory motivation. I
disagree. Bancroft testified that between the stated dates
Ihlenfeld recorded a detailed account of Beilke's con-
duct. Bancroft's uncontested testimony shows such sur-
veillance25 was initiated after Beilke's July 22 final writ-
ten warning as part of a counseling program during his
60-day probationary period. In this context, I conclude
that the unusual scrutiny of Beilke's activities does not
give rise to an implication of unlawful motivation. To
the contrary, the counseling program is readily suscepti-
ble to the conclusion the Employer engaged in means by
which Beilke could be salvaged as an employee. There is
support for this proposition. Thus, the July 22 final
warning contains the notation "will be looking for sub-
stantial improvement."
I am impressed by the Employer's apparent forebear-
ance regarding Beilke. The May 30 written warning
warned of possible discharge for any future violations.
Despite this, Beilke was placed only on probation on
July 22. Thereafter, he permitted his top coat pot to run
out on August 9, permitted his color to run improperly
on August 10, and took an excessive break on August 21.
These errors obviously occurred during his probationary
period. Nevertheless, the Employer did not terminate
him. I consider the Employer's apparent tolerance sub-
verts the General Counsel's claim of the existence of a
discriminatory motive toward Beilke. Upon the forego-
ing, I find the series of warnings to Beilke were not dis-
criminatorily motivated and were lawful.
On September 13, Beilke testified that he and Engel
were working together. They were talking about Parr's
discharge. Beilke testified he took a coin from his pocket,
intending to imitate the situation for which Parr asserted-
ly was terminated, and touched the backside of a mold-
ing. He saw Ihlenfeld approach, and closed his hand
around the coin. (Ihlenfeld later said he thought Beilke
might have caught his fingers in the machine.) Ihlenfeld
asked Beilke what he was doing. When Beilke replied
"nothing," Ihlenfeld opened Beilke's hand. The coin was
discovered. Ihlenfeld suggested both Beilke and Engel
submit to a polygraph test. Beilke requested Ihlenfeld
also do so. Ihlenfeld said he would take the test. Ban-
croft testified Ihlenfeld later took a lie detector test re-
garding this incident. Bancroft claimed he did not press
Beilke to submit to the test because Beilke had admitted
placing the coin on the molding.
Personnel Supervisor Schmidt interviewed Beilke on
September 13. She said she received the incident report
from Ihlenfeld. She asked Beilke to take a lie detector
test. Beilke declined. Schmidt suspended Beilke.2 6
On September 18, Bancroft met with Beilke. Bancroft
asked Beilke to describe the September 13 incident.
Beilke admitted touching the coin to the molding. Ban-
croft discharged Beilke, telling him the action was based
upon both his past performance and the September 13
safety violation. There is no evidence that the Union or
Beilke's union activities and sympathies were discussed.
I find Beilke's discharge lawful. As previously noted,
the Employer's published rules express justifiable con-
cern for safety. Beilke's job performance in the several
a5 This surveillance is not alleged as an independent 8(a)X) violation.
26 Schmidt was involved because Bancroft was absent from the prem-
ises.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months immediately preceding his discharge was indis-
putably fraught with indicia of inattentiveness. Bancroft
credibly maintained throughout the hearing that he com-
monly used work history as a factor in making termina-
tion decisions. I have concluded there is little and weak
evidence of discriminatory motive regarding Beilke. On
the discharge date, Beilke was still on probation. Ac-
cordingly, I conclude that the record fails to establish by
a preponderance of credible evidence that Beilke's dis-
charge was discriminatorily motivated.
I have considered my findings that Parr's discharge,
under similar circumstances, was in violation of the Act.
However, the situations are distinguishable. Parr's dis-
charge was not identical. While Parr was told one of the
reasons for his discharge was destruction of company
property, no such assertion was made as to Beilke. Addi-
tionally, I have observed that there exists strong evi-
dence of unlawful motive in Parr's situation. Thus, there
was direct evidence, through Engel's testimony, that a
supervisor stated Parr's situation would have been han-
dled differently if another employee had been involved.
Also, Parr's case shows evidence of disparate treatment
and shifting reasons. Neither of these elements exists as
to Beilke. In one instance, Beilke's work history parallels
Parr's. The Employer countenanced poor work perfor-
mance of each for a considerable period of time. Howev-
er, Parr's termination was precipitous compared to
Beilke's. There is no evidence that the Employer at-
tempted to rehabilitate Parr as a valuable employee, as it
did with Beilke. All these factors convince me there is
no inconsistency in my contrary resolution of these two
discharges.
Upon all the foregoing, I find that neither Beilke's dis-
charge nor his warnings constitute discrimination within
the meaning of Section 8(a)(3) and (1) of the Act.
5. Gil White and John S. Lavine
It is alleged that on August 9 the Employer discrimin-
atorily discharged White and Lavine.
Both White and Lavine described the incident leading
to their discharges. They substantially corroborated one
another. White was more candid and comprehensive
than Lavine. I adopt his version of the incident. On
August 8, Lavine was sitting in the break area drinking a
soda and having a cigarette. The break area is located in
the center of the production area. White testified he took
a drink from the nearby water fountain. White then came
near Lavine's location. White testified, "I said we should
have a water fight, so I splashed him [Lavine] with the
water and he was drinking soda. He had ice left in the
cup, and he threw that at me and I went back to fill it
up. He [Lavine] came up to the bubbler with me and
knocked my cup over, and then we were-like had the
bubbler on we were just hitting the water back and
forth." Lavine testified he "got mad and threw [his] soda
at [White]."
Redzinski observed the incident. He took Lavine and
White to Hoffman. Redzinski apparently reported what
he had seen. Hoffman told White and Lavine they could
have been hurt. Hoffman told them they were suspended
indefinitely. There is no evidence that anyone said any-
thing about the Union or Lavine's and White's affiliation
or sympathies to it.
The next day White and Lavine received telegrams
stating they were discharged. The reason ascribed for
this discipline was "horseplay and unsafe conditions."
The Employer's safety rules provide "horseplay and
practical jokes are not permitted. Horseplay, fighting
and/or practical jokes in the plant or in the yard area are
cause for dismissal of all employees involved." The Em-
ployer contends water on the floor creates a safety
hazard.
Neither Lavine nor White was notable in union activi-
ties. Each signed an authorization card, wore unions but-
tons, and engaged in discussion of the Union's organiza-
tional campaign. The evidence shows that their work
history for the Employer was generally good. Lavine re-
ceived two verbal warnings: On March 16 for making
scrap and on July 19 for horseplay with packers. It is
noteworthy that the July 19 warning contains the legend
"next time written warning." (Emphasis supplied.) That
warning contains the signatures of Redzinski, Hoffman,
and Schmidt. Also, Bancroft's signature appears on it,
signifying his approval.
White testified, without contradiction, that he told
Redzinski early in the campaign that he planned to vote
against the Union. White further testified that later, in
April, he told Redzinski he would vote for the Union.
White had been employed since about August 1978. His
first recorded warning is dated April 12. Thereafter, and
until his discharge, he received nine other warnings, two
of which were written and the others verbal.
Bancroft made the decision to discharge both employ-
ees. Bancroft claimed that horseplay and safety violations
were the sole reason for his action. Bancroft specifically
disclaimed White's work record as a reason for dis-
charge.
Various documentary evidence shows other employees
such as Boyd (two verbal warnings for no safety glasses),
Conley (one written warning for sword fighting), Engel-
hauser (for safety shoes and wearing ring), Freeman (no
safety glasses), Kennedy (no safety shoes), Lanzillo (slid-
ing down stairs), D. Miller (horseplay), Piotrowski
(safety), and D. Ward (horseplay) were given only warn-
ings patently for safety reasons and horseplay between
September 1978 and the date White and Lavine were dis-
charged. Ziemek received a warning on April 22 for
fooling with a firehose which opened a water valve and
caused water to "leak on the floor." The Employer prof-
fered no explanation for why any of these named em-
ployees had not been suspended or terminated.
On the evidence relating to White and Lavine, I am
impelled to conclude their terminations were unlawful.
The unexplained failure to account for the obviously dif-
ferent handling of their situation creates a critical void. I
concede the Employer's legitimate concern for mainte-
nance of high safety standards normally justifies a termi-
nation for breach of its safety rules. However, the pre-
sent situation is far from normal. The incidents of horse-
play and safety violations which did not result in such
severe discipline as discharge render nugatory the Em-
ployer's asserted reasons for the subject discharges. As
364
GOSSEN COMPANY
previously noted, a finding of unlawful motivation "is
augmented [when] the explanation [for discipline] offered
by [the Employer does] not stand up under scrutiny."
N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592. I
cannot give credence to the Employer's contentions.
They are exaggerations. White credibly testified there
was a leak in the water bubbler; that there "always" was
water on the floor. In such a situation I may, and do,
infer that the terminations of White and Lavine were dis-
criminatorily motivated. Atlantic Metal Products, Inc., 161
NLRB 919. Accordingly, I conclude that the real reason
for the discharges was the desire to retaliate against
White for having declared his change of intention to
vote against the Union. I find the asserted reasons for
these terminations pretextual. I find Lavine was dis-
charged to promote the disguised reason for White's.
Upon all the foregoing, I find, as alleged in the com-
plaint, that the Employer violated Section 8(a)(3) and (1)
of the Act when it discharged White and Lavine on
August 9.
E. Excessive Discipline
Complaint paragraphs 8 and 9 allege that the Employ-
er disciplined Engel and Hartmann on and after April 1
by giving them a series of warnings. This conduct alleg-
edly interfered with, restrained, and coerced employees
in violation of Section 8(a)(l) of the Act.
1. Lynn Engel
At the time of the hearing, Engel had been employed
approximately 15 months. Jeray was her supervisor until
early 1979, when she came under Ihlenfeld's supervision.
At Jeray's recommendation, Engel received four wage
increases. A fifth wage increase was recommended by
Ihlenfeld on March I and granted. From the beginning
of her employment until April 1979, Engel received no
warnings.
It is uncontested that Engel was one of the Union's
strongest advocates. She solicited authorization cards,
was a member of the in-plant committee, enthusiastically
vocally promoted the Union's cause among other em-
ployees and supervisors, and served as an election ob-
server. In May, Hoffman identified her with the Union.
Thus, during one of the many conversations regarding
the Union's campaign, Hoffman asked her whether she
was aware of the contents of union contracts at other
U.S. Gypsum plants. He described them and suggested
she confirm his remarks with "your people." Also, as
previously noted, Jeray had indicated his awareness of
her union activities. In addition, Ihlenfeld wrote "leading
pack for the Union" on Engel's attitude survey.
Between April 16 and August 10, Ihlenfeld issued
eight warnings to Engel. The General Counsel contends
the warnings were imposed to discourage Engel's union
activity. The Employer asserts each warning was for
cause and not at all union connected.
Engel received warnings as follows: April 16, a verbal
warning for taking a cafeteria break with two other em-
ployees in her category; April 23, a written warning for
not having cleaned her lines; May 12, a verbal warning
for off-color material causing "possible" scrap; June 27, a
verbal warning for having had three unexcused absences;
August 2, a written warning for excess scrap; August 9,
a verbal warning for having no guards on her machine;
and August 10, a final written warning for permitting her
top coat pot to run out. Immediately following the
August 10 warning, Hoffman imposed a 60-day proba-
tion upon Engel. Hoffman told her that further substan-
dard work could lead to her termination. At the conclu-
sion of the 60 days, Engel's probation was removed. Ap-
parently, thereafter, she reverted to her customary em-
ployee status.27
Engel presented explicit testimonial explanations of the
activities which formed the basis for each warning. I find
those explanations establish that the incidents for which
she was cited actually occurred. Nevertheless, there is
also cogent evidence highly suggesting that Engel was
treated differently from other employees regarding her
work errors. For example, the May 12 warning was the
very first of that type given by Ihlenfeld to any employ-
ee between July 1, 1978, and April 1, 1979. Employees J.
Prusko and Weinmann testified without contradiction
that they ran scrap every day with the knowledge of
their supervisors but received no warning for such a
reason. As to the August 9 warning, the Employer's re-
cords show Ihlenfeld had given only one other warning
for the same reason. Thus, E. Hodgson received a warn-
ing on January 10 for having a guard off his machine.
Yet Weinmann credibly testified he left the guard off his
machine once a week; his supervisor knew of this and
merely told him to replace the guards. Weinmann was
not warned for these derelictions.
Regarding Engel's final warning for permitting her top
coat pot to run out, there is similar evidence of disparate
treatment. Thus, Czuppa testified without contradiction
that, in the 6 months immediately preceding the instant
hearing, he ran scrap three or four times but received no
warning. Although Czuppa was uncertain whether Ihlen-
feld knew of his errors, he testified that on one occasion
he ran scrap for 2 to 3 hours. It is reasonable to presume,
as I do, that such a condition surely would have been de-
tected by the clearly responsible supervision Ihlenfeld
(and the other supervisors who testified) represents.
Engel's job history is relevant. The four wage increase
recommendations by Jeray reflect that Engel was "doing
a good job overall." On March 1, Ihlenfeld recommend-
ed Engel for a wage increase. In doing so, he wrote:
"Has completed over 5 months of service and performs
all duties in a proficient manner." Ihlenfeld's recommen-
dation was made shortly before the Union's campaign
began in earnest. As previously noted, Engel received no
warnings until April. Ihlenfeld then imposed his eight
warnings within the next 4 months. This scenario poses
the question: What caused the apparent sudden change in
supervisory perception of Engel's performance? On the
whole, the surrounding circumstances, including the vi-
gorous nature in which Engel declared her union sympa-
thies, persuade me Ihlenfeld desired to retaliate against
Engel. Clearly, he viewed her as a staunch opponent. Ih-
lenfeld's comment on Engel's attitude survey acknowl-
27 Engel was still employed during he instant proceeding.
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edges this point. Certainly, whatever Ihlenfeld thought
about Engel's union stance reasonably provides the only
evidentiary explanation, on the state of this record, for
the apparent precipitous and frequent warnings he im-
posed upon her. The Employer's brief has not explicitly
addressed the question I have propounded. The Employ-
er simply argues that the evidence sustains its contention
each incident for which Engel had been warned actually
occurred and, therefore, it was privileged to warn her as
it did. Having conceded above that the incidents did
occur, I nonetheless cannot ignore the evidence of dispa-
rate treatment, the character of violations charged, or
their uncanny timing.
Additionally, the numbers of warnings given employ-
ees before and after the beginning of the union campaign
are illuminating. A comparison of the attitude surveys to
the employee warnings in evidence shows the following.
Before the campaign (7-1-78-3-1-79), those employees
whose attitude surveys identified them in favor of, or
leaning toward, the Union received a total of 44 warn-
ings. In the same period of time those employees whose
attitude surveys showed them against, or leaning against,
the Union received a total of 50 warnings. The total
number of warnings given after the campaign started (3-
1-79 to 11-30-79) to employees showing favoritism
toward the Union was 96, whereas a total of 67 warnings
was given during that period to employees who were
identified as being opposed, or potentially opposed, to
the Union. The period after the campaign started from
which these statistics are derived is I month longer than
the period characterized as "before" the union campaign.
This extra month does not significantly affect the com-
parison because only 10 warnings were given in Novem-
ber 1979. Thus, even eliminating those 10, the records
show a total of 86 warnings given to those favoring the
Union and 67 total warnings given to employees identi-
fied as against the Union. Thus, the difference of 19
more warnings given to employees in favor of the Union
than to those against it since the campaign began com-
pares with a difference of only 6 warnings given employ-
ees favoring the Union over those against it during the
precampaign period. Although these statistics are not dis-
positive I consider them relevant, especially because the
records show a large number of the warnings given after
the campaign started were imposed on fewer individuals
than the warnings given before the campaign started.
I acknowledge that the warning system is highly indi-
vidualistic; that is, within certain parameters, each super-
visor acts subjectively according to his personal stan-
dard.2 8 Regarding Engel, Ihlenfeld exhibited the applica-
tion of his standard when he recommended her for the
March I wage increase. Though the disparity in warn-
ings described above may be attributed to the personal-
ized nature of the warning system, that fact does not ac-
count for Ihlenfeld's obviously changed perception of
Engel's performance. Although he appeared as a witness,
28 This observation is one factor in my rejection of the General Coun-
sel's theory that there existed systematic discrimination in issuing warn-
ings while the representation proceedings were pending. This theory of
the General Counsel is most notably applied to Beilke's case. Thus, I
have analyzed each situation of alleged discriminatory disciplinary warn-
ings on a case-by-case basis.
Ihlenfeld offered no precise explanation for his changed
position. Indeed, his testimony regarding Engel's situa-
tion was limited and brief. His testimony concerning
Engel simply shows the activities having given rise to
the warnings actually occurred. As noted, Engel conced-
ed this point.
The fair inference from all the relevant circumstances
surrounding Engel's warnings is that her work perfor-
mance was satisfactory only until she became a union ac-
tivist. On this record, I consider it plausible to conclude
that Ihlenfeld's judgment of Engel's work performance
was altered by the interjection of the Union's campaign
and her participation in it. Possessing such a motive, it
follows that the warnings were given Engel to interfere
with, and retaliate for, her union activities. Such con-
duct, in the instant circumstances, had the effect of dis-
couraging Engel and other employees from engaging in
those activities. Engel, perhaps the most outspoken em-
ployee favoring unionization, would be deterred from
such pursuit fearing similar reprisals. Upon the forego-
ing, I find that the disciplinary warnings imposed on
Engel are violative of the Act.2 9
2. Karl V. Hartmann
Hartmann's case is alleged together with Engel's in
one paragraph of the complaint. That paragraph alleges a
violation of the Act by issuance of allegedly discrimina-
tory "series" of warnings. (Emphasis supplied.) In fact,
Hartmann's case involves only one warning. On July 31,
Supervisor Chouinard issued Hartmann a verbal warning
for "out of assigned work area, and taking unauthorized
equipment from maintenance." On that day, Hartmann
came to work and detected smoke in the vicinity of his
work station. He complained to Chouinard and Red-
zinski and asked for corrective action. The supervisors
told him there was nothing they could do. Hartmann
then went into the maintenance department. There, he
obtained an extension cord so he could plug in a fan to
blow the smoke away from his work area. Ralph Ban-
croft, maintenance supervisor (not to be confused with
Works Manager Bancroft), asked Hartmann to replace
the cord. Hartmann declined. Instead, Hartmann took
the extension cord to his work area. He then connected a
fan.
Later, that day, Hartmann visited the tool-and-die
area. He asked employee Miners for some parts he
needed. Miners helped Hartmann obtain the parts.
Chouinard entered the tool-and-die area. Chouinard told
Hartmann he was not supposed to be out of his work
area; he informed Hartmann he would receive a warning
for being in the tool-and-die area. Hartmann returned to
his work station.
Hartmann credibly testified that he visited the mainte-
nance and tool-and-die departments frequently during his
service with the Employer. He claimed, without contra-
diction, that his supervisor had been aware of those visi-
tations. Hartmann claimed he had not received permis-
sion to visit those areas, nor had he been warned he
Z9 Because of the tendency to discourage union activities, I find,
though not alleged, the Employer's conduct toward Engel constitutes a
violation of Sec. 8(a)(3).
366
GOSSEN COMPANY
should not go there. Also, Hartmann credibly testified he
had previously taken an extension cord and set up a fan
but had never received a warning for those activities.
Employees Waubiness, Weinmann, Prusko, and Bugni
testified they, too, often visited the tool-and-die and
maintenance departments without their supervisors' per-
mission. In some instances, they said, their supervisors
knew of that activity. They received no warnings. Final-
ly, Miners, a tool-and-die employee, credibly testified he
saw many employees, including Hartmann, in his depart-
ment "six to eight times a day for some purpose." Al-
though Hartmann testified he had not been previously
warned regarding his visits to the maintenance area, he
acknowledged that Maintenance Supervisor Bancroft,
who was not Hartmann's supervisor, had admonished
him not to take equipment.
The Employer contends that Hartmann violated prior
instructions not to enter the maintenance area and take
equipment. According to the Employer, when Hartmann
violated this instruction the July 31 warning was justi-
fied. The General Counsel contends the subject warning
was discriminatory. 30
There is direct evidence which forms the basis for an
inference of discriminatory motive regarding Hartmann.
Shortly before the Board-conducted election, Hartmann
prepared and distributed two letters to prospective
voters. He signed each. (G.C. Exhs. 37 and 38). Both let-
ters are strongly antiemployer. Each contains specific al-
legations that Bancroft misrepresented his campaign pre-
sentation. Both documents solicit a vote for the Union.
Hartmann testified that after the first letter was issued
Redzinski spoke with him about it. According to Hart-
mann, Redzinski asked what he expected to gain by it
and whether he intended to be "head honcho" for the
Union. 3
Redzinski's comments are evidence of the Employer's
knowledge of Hartmann's union activities and sympa-
thies. Hartmann's 7-year work record prior to this inci-
dent is rather exemplary. The record is relatively clear
of warnings. Hartmann admitted to having received
some warnings in 1977. The records in evidence show no
warnings whatever to Hartmann between July 1, 1978,
and the warning presently under consideration. Further,
the record shows that Hartmann had been a leadman at
one time. Also, at the time of the subject warning Hart-
mann had a pending application to become a supervisor.
No questions were asked of any of the Employer's wit-
nesses regarding Hartmann's prounion campaign litera-
ture other than the Redzinski remark.
The question is: Why was so highly competent an em-
ployee as Hartmann formally disciplined for an activity
which, as the record shows, he and other employees pre-
viously engaged in with relative impunity? In the instant
context, the Employer's reliance on a violation of a di-
rective does not withstand scrutiny. I have considered
that the subject warning was not given until at least 6
weeks before Hartmann's campaign literature was distrib-
30 In this context, I am at a loss to understand why the complaint al-
leges this incident violated Sec. 8(a)(1) only.
"3 For the reasons contained, supra, regarding the independent 8(a)(1)
allegations, I do not find these particular comments of Redzinski indepen-
dently violative of the Act.
uted. (Hartmann's documents were published before the
June 14-15 election.) This length of time does not dimin-
ish my reliance on the timing of the warning as an ele-
ment of unlawful motivation. Given Hartmann's com-
parative exemplary work history, it is not unreasonable
that such a time lapse would have ensued. Clearly, Hart-
mann was not prone to make errors. It is reasonable to
conclude, as I do, that the July 30 indiscretion presented
the first opportunity for the Employer to express its dis-
dain toward Hartmann's notorious union activities.
Clearly the Employer was disappointed in Hartmann's
attitude. During a conference on August 8 between Hart-
mann and Hoffman, Hoffman's question allowed whether
Hartmann's union activities might detract from supervi-
sory responsibilities and questioned him concerning his
attitude toward the Employer and present supervisors.
I find that Hartmann's warning had the reasonable
effect of interfering with employees' Section 7 rights. His
prounion sentiments were blatant. The discipline he re-
ceived was easily recognizable as a signal to other em-
ployees that they too were subject to discipline for en-
gaging in union activities. That the election had already
been conducted when Hartmann received his warning
does not vitiate the coercive impact because the instant
objections to the election were pending. Because I have
inferred that the warning was motivated by antiunion
considerations, I conclude that it was discriminatory.
Upon the foregoing, I find the July 21 warning to Hart-
mann violated Section 8(a)(1) and (3) of the Act.
F. The Challenged Ballots
As noted in the introduction of this Decision, the bal-
lots of Magee, Parr, and T. Burke were challenged by
the Employer.
The revised tally of ballots reflects the challenged bal-
lots are determinative of the election's outcome.
As I have found that Magee and Parr were discrimina-
torily terminated in violation of Section 8(a)(3) and (1) of
the Act, I now find they are eligible to vote in the elec-
tion. Our-Way. Inc./Our Way Machine Shop. Inc., 238
NLRB 209, fn. 4 (1978). Accordingly, I shall recommend
that the challenges to their ballots be overruled.
Burke did not testify at the hearing. As earlier noted,
he is not alleged as a discriminatee in the unfair labor
practice case. In addition to the fact that Burke's ballot
was challenged, the Union's Objection 9, inter alia, as-
serts Burke's discharge as a ground for setting aside the
election. 32
Bancroft and Supervisor Dennis A. Johnson presented
mutually corroborative testimony regarding Burke. It is
undisputed that Burke was discharged shortly before the
election. Johnson saw Burke in possession of alcoholic
beverages on company premises. Burke had with him
Pink Champale and a six-pack of Pabst Blue Ribbon
beer. Johnson saw Burke drinking from one of the
Champale bottles. Burke was summarily dismissed. The
record contains no evidence of Burke's union activities.
The Employer's safety rules provide for the discharge
of an employee for "introduction, possession or use of in-
32 Objection 9 will be disposed of. infra.
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toxicating liquors on Company property." I find it unre-
futed that Burke was discharged for violation of these
rules. Accordingly, and inasmuch as Burke was no
longer an employee on the election dates, I conclude he
was ineligible to vote. Plymouth Towing Company, Inc.,
178 NLRB 651 (1969); Greenspan Engraving Corp., 137
NLRB 1308, 1309 (1962). Accordingly, I recommend
that the challenge to Burke's ballot be sustained.
G. The Objections
As noted in footnote 3, supra, Objections 1, 7, and 8
were entirely withdrawn. Accordingly, I need make no
disposition of those objections.
Objection 2 alleges, in salient part, that the Employer
interrogated employees "respecting their union activities
on individual bases . . . and in coercive circumstances
tending to instill . . . fear of discrimination." This objec-
tion is coextensive with the complaint allegations of un-
lawful interrogation. No merit has been found to those
allegations. Accordingly, this objection should be over-
ruled.
Objection 3 alleges that the Employer's campaign was
conducted "in contravention of its non-solicitation rules,
policies and practices." I can find no evidence which di-
rectly supports this objection. The General Counsel's
post-hearing brief properly does not discuss the objec-
tions.33 As previously noted, the Union filed no brief.
Accordingly, I find no merit to this objection.
Objection 4 asserts that the Employer campaigned
with false and misleading election propoganda containing
material misrepresentations. As previously observed, the
General Counsel has not addressed such alleged misrep-
resentations. As it is incumbent upon the party filing ob-
jections to provide a prima facie case in their support,
and inasmuch as no such evidence has been presented, I
find this objection lacks merit.
Objection 5 is coextensive with the complaint allega-
tions of alleged unlawful threats of plant closure and
statements of futility. Because no merit has been found to
those allegations, I conclude there is no merit to this ob-
jection.
Objection 6 asserts that "the Employer indicated in
posted notices that wage increases would be withheld if
the Union were voted in." No precise evidence support-
ing this allegation appears in the record. However, I
conclude that this objection was inartfully drafted. In my
opinion, the language of this objection is broad enough
to encompass the evidence which supports my finding
that the merit wage increases had been unlawfully sus-
pended. I find that violation supports this objection. Ac-
cordingly, Objection 6 should be sustained.
Objection 9 alleges that the discriminatory discharges
of Parr, Burke, and T. Lewandowski affected the elec-
tion results. The Union's counsel withdrew Lewan-
dowski from this objection. As previously noted, I have
concluded that Burke was discharged for cause. Thus,
this objection, as to Burke, lacks merit. However, inas-
much as I have found Parr was discriminatorily dis-
charged, so much of this objection as alleges Parr's dis-
33 I is the duty of the objecting party to furnish supporting evidence.
Berea Publishing Company, 140 NLRB 516 (1963).
charge was objectionable is meritorious. This objection
should be sustained as to Parr and overruled as to Burke.
Objections 10 and 11 are coextensive with complaint
allegations that the Employer engaged in a variety of in-
dependent 8(a)(1) violations. Inasmuch as I have found
no merit to those allegations, I shall recommend that Ob-
jections 10 and II be overruled.
Objection 12 alleges unlawful and coercive surveil-
lance of employees' union activities. This objection is co-
extensive with the complaint allegations of surveillance
which I have found unsupported. Objection 12 should be
overruled.
Objection 13 asserts "by these and other acts" the Em-
ployer interfered with the election results. I consider this
objection sufficiently broad so as to encompass my find-
ings that the Employer committed unfair labor practices
by discharging White and Lavine and issuing warnings
to Engel and Hartmann. Accordingly, I find merit to
Objection 13. It should be sustained.
In sum, I have found merit to Objections 6, 9, and 13.
That conclusion is derived from the unfair labor practice
findings. Since conduct which violates Section 8(a)(1) is
a forriori interference with representation elections (St.
Anne's Home, Division of DePaul Community Health
Center, 221 NLRB 839, 848 (1975), and cases cited there-
in), I recommend that Objections 6, 9, and 13 be sus-
tained.
H. Recommended Disposition of the Representation
Case
Upon the foregoing discussion of challenged ballots
and objections I recommend that the overruled chal-
lenged ballots of Magee and Parr be opened and counted
and a second revised tally of ballots then be issued. If
such tally shows a majority of votes in favor of union
representation, a certification of representative should be
issued; however, if that tally results in a majority vote
against representation by the Union or in a tie vote, then
the election results should be set aside based on the meri-
torious objections and a rerun election be conducted at a
time deemed appropriate by the Regional Director for
Region 30.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Redzinski did not unlawfully interrogate Waubiness
in early April (as alleged) or in March (as claimed by
Waubiness).
2. The Employer did not engage in any of the unlaw-
ful conduct alleged in complaint paragraph 6 during the
March and June mandatory meetings.
3. The Employer did not engage in any of the 8(a)(1)
conduct alleged in complaint paragraph 5.
4. The Employer interfered with, restrained, and co-
erced its employees, and discriminated against them in
March-April 1979, by announcing a suspension of its
merit evaluation and wage increase system and by actual-
ly suspending it for the duration of the proceedings in
the instant representation case, all in violation of Section
8(a)(l) and (3) of the Act.
368
GOSSEN COMPANY
5. The Employer unlawfully discriminated against em-
ployees by discharging James Magee on April 30, 1979,
in violation of Section 8(a)(3) and (1) of the Act.
6. The Employer unlawfully discriminated against em-
ployees by discharging James W. Parr on May 23, 1979,
in violation of Section 8(a)(3) and (1) of the Act.
7. The Employer did not violate the Act by transfer-
ring John Lampada to a warehouse position in July 1979.
8. John Lampada was not discriminatorily subjected to
more onerous working conditions after his July 1979
transfer to a warehouse position.
9. The suspension of John Lampada in September 1979
was not discriminatory.
10. The unexcused absence given John Lampada in
September 1979 was not in violation of the Act.
11. The verbal warning given John Lampada in Octo-
ber 1979 was not discriminatory within the meaning of
Section 8(a)(3) or (1) of the Act.
12. The warnings given to Robert R. Beilke between
April 1 and September 1979 and Beilke's September 18,
1979, discharge were not discriminatory in violation of
Section 8(a)(3) and (1) of the Act.
13. The Employer discriminated against its employees
by discharging Gil R. White and John S. Lavine in
August 1979, in violation of Section 8(a)(3) and (1) of the
Act.
14. The Employer interfered with, restrained, and co-
erced its employees, and discriminated against them, by
issuing a series of warnings to Lynn Engel between
April and August 1979, in violation of Section 8(a)(3)
and (1) of the Act.
15. The Employer interfered with, restrained and co-
erced its employees, and discriminated against them, by
giving Karl V. Hartmann a warning on July 31, 1979, in
violation of Section 8(a)(3) and (1) of the Act.
16. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
17. Gossen Company, a Division of the United States
Gypsum Company, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
18. Teamsters Local 344, Sales and Service Industry,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of Section
2(5) of the Act.
THE REMEDY
Having found that the Employer violated Section
8(a)(3) and (1) of the Act, I shall recommend that it
cease and desist from engaging in such conduct in the
future and affirmatively take such action as will dissipate
the effects of its unfair labor practices.
Inasmuch as I have found that the Employer unlawful-
ly announced a suspension of its merit evaluation and
wage increase system, and unlawfully suspended it, the
recommended Order shall require the Employer to im-
plement immediately its previous merit evaluation and
wage increase system, operate it in a nondiscriminatory
manner, and grant such increases retroactively to the
date of the system's suspension to all those employees
whose evaluations will show they are eligible for such
increases.
Because I have found that the Employer discriminator-
ily discharged James Magee, James W. Parr, Gil R.
White, and John S. Lavine, the recommended Order
shall require the Employer to offer each of them immedi-
ate and full reinstatement to their former or substantially
equivalent jobs, without prejudice to the seniority or
other rights and privileges to which each was entitled,
and to make each of them whole for any loss of earnings
he may have suffered as a result of the discrimination by
payment, with interest, of a sum equal to that which he
would have earned absent the discrimination. The back-
pay and interest pursuant to this Order shall be comput-
ed as prescribed in F W. Woolworth Company, 90 NLRB
289 (1950), plus interest as set forth in Florida Steel Cor-
poration, 231 NLRB 651 (1977).3 4
HIaving found that the Employer discriminatorily
issued warnings to Lynn Engel and Karl V. Hartmann,
the Employer shall be required to cease and desist from
discriminatorily imposing disciplinary warnings upon
them and any other employee, to physically expunge the
warnings found discriminatory from the Employer's offi-
cial records, to physically expunge Engel's August 10,
1979, probation from its official records, and to advise
Engel and Hartmann, in writing, with a copy to the Re-
gional Director for Region 30, that the Employer has
complied with the order to expunge the discriminatory
material.
The General Counsel has requested an award of ex-
traordinary remedies. See United Dairy Farmers Cooper-
ative Association, 242 NLRB 1026 (1979). In essence, the
General Counsel contends that the Employer's unfair
labor practices are so outrageous and pervasive that ex-
traordinary remedies are necessary to dissipate and coun-
teract their effects for the conduct of another election. In
F.WI.L. Lundy Bros. Restaurant, Inc., 248 NLRB 415
(1980), the Board entered an order under the United
Dairy Farmers rationale. In Lundy Bros. Restaurant, the
employer was found guilty of extreme and extensive
unfair labor practices. Those unfair labor practices coin-
cide with the allegations of the instant complaint. Thus,
in Lundy Bros., the employer violated the Act by dis-
criminatory discharges, suspensions and transfers, threats
of economic reprisal, ridicule and scorn of the union, im-
position of a discriminatory no-solicitation rule, coercive
interrogation, unlawful creation of impressions of surveil-
lance, and circulation of a petition seeking the discharge
of a union activist. In the case at bar, I have not found
there exists the scope and breadth of violations found in
Lundy Bros.
In United Dairy Farmers the underlying rationale for
granting extraordinary remedies was expressly intended
to "restore an atmosphere in which employees are given
a meaningful opportunity to exercise their Section 7
rights in an election." (242 NLRB at 1028.) The viola-
tions I have found encompassed the merit wage system,
discharges, and discriminatory warnings. Although there
is some efficacy to the General Counsel's prayer for ex-
:' Sec. generall) Ilis Plumbing & liating Co., 13.18 NIRB 716 (1962).
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traordinary remedies, on balance I conclude that the
conventional Board remedies, in the circumstances
herein, will dissipate insofar as possible the effect of the
Employer's unfair labor practices. The absence of the in-
dependent 8(a)(1) violations and my findings that a free
and open campaign atmosphere existed throughout the
preelection period persuade me that the instant case is
distinguishable from Lundy Bros.
Buttressing this conclusion is the Board's Decision in
Hickmort Foods, Inc., 242 NLRB 1357 (1979). There, the
Board considered whether to enter a narrow or a broad
order. The Board declared that automatic adoption of
broad orders is not warranted. Hickmott involved a dis-
criminatory discharge. Nevertheless, the Board com-
mented that only subsequent violations of identical char-
acter might result in a broad order. The Board noted a
broad order may be warranted where a respondent en-
gaged in other severe conduct violative of Section
8(a)(1). In conclusion, the Board observed, in Hickmot,
that "repeat offenders and egregious violators of the
Act" are subject to broad orders. The instant record
contains no history of unfair labor practices. However,
the General Counsel's brief cites three Board Decisions
which found U.S. Gypsum previously engaged in unfair
labor practices. I take official notice of those decisions.
They are reported at 200 NLRB 305 (1972), 200 NLRB
1098 (1972), and 221 NLRB 530 (1975).
None of those cases involved the instant Gossen Com-
pany. None of the previously found unlawful conduct
occurred at Gypsum's facilities involved in the present
case. The prior violations involved refusals to provide an
incumbent union with bargaining information, the failure
to process a grievance, surface bargaining which pro-
longed a strike, a unilateral withdrawal of recognition
based on an arguable legal issue (see former Chairman
Miller's dissent, 200 NLRB 1098, 1101 [sub nom. Wal-
Lite Division of United States Gypsum Co.]), and unilateral
changes in working conditions based on Gypsum's inter-
pretation of the legal issue. Apparently, no independent
8(a)(l) or 8(a)(3) conduct similar to those I have found
unlawful was alleged or proved in the previous cases.
The above, coupled with the notorious fact that U.S.
Gypsum maintains and operates numerous facilities
throughout the United States, leads me to conclude that
the record fails to establish there is sufficient evidence
that the Employer has engaged in widespread flaunting
of the Act. Thus, I find the earlier unfair labor practices
do not support the claim for extraordinary remedies. In
fact, those offenses actually address the issue of the
breadth, not the character, of the present order.
I have considered a final element which I find relevant
to the request for extraordinary remedies-the Union's
facility to communicate with employees and conduct an
extensive campaign. As noted, the Union was able to
hold numerous meetings among employees and distribute
considerable literature. Additionally, prounion employees
were able to address the election issues, even with their
supervisors, in a virtually unencumbered fashion. Given
the fact that the instant Order shall require the Employer
to post an appropriate notice at all locations where unit
employees work, it is reasonable to assume that the
Union and the employees will be able to explain fully the
effect of my findings. Thus, there is ample opportunity
for dissipation of the detrimental effects of the unlawful
conduct.
Upon all the foregoing, I decline to provide the ex-
traordinary remedies requested by the General Counsel.
Despite the foregoing, and in accordance with the
lesson of Hickmott Foods, the Order shall be couched in
broad terms. As noted, Hickmont involved only a single
discharge. In the instant case four employees had been
discriminatorily terminated. In addition, Engel's discrimi-
natory warnings were imposed over a 4-month period.
Finally, potentially every employee was directly affected
by the suspension of the merit wage system. The totality
of these circumstances convinces me that the Employer
committed such egregious conduct as to warrant broad
language. Accordingly, the Order shall require the Em-
ployer to refrain from in any other manner interfering
with, restraining, and coercing its employees in the exer-
cise of their Section 7 rights.
Upon the above findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER3 s
The Respondent, Gossen Company, a Division of the
United States Gypsum Company, Milwaukee, Wisconsin,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Unlawfully announcing the suspension of, and sus-
pending, its wage increases derived from operation of its
merit evaluation and wage increase system, or any other
benefits regularly granted its employees.
(b) Discharging its employees for engaging in union
activity.
(c) Unlawfully issuing disciplinary warnings to its em-
ployees because they engage in union activity.
(d) Discriminating in any way against its employees
because they engage in union activity.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer James Magee, James W. Parr, Gil R. White,
and John S. Lavine immediate and full reinstatement to
his former job or, if that position no longer exists, to a
substantially equivalent position of employment, without
prejudice to the seniority or other rights and privileges
enjoyed by each; and make each whole in accordance
with the formula described, supra, in the section entitled
"The Remedy," for loss of pay and other benefits offered
by reason of his discriminatory discharge.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
:'- 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 he deemed waived for all purposes.
370
GOSSEN COMPANY
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Immediately reinstate and implement its merit eval-
uation and wage increase system in a nondiscriminatory
manner, and grant merit wage increases to each employ-
ee found eligible. The implementation of the merit wage
increase system shall be retroactive to the date of the
Employer's March-April 1979 announcement of suspen-
sion of that system.
(d) Immediately physically expunge from its official re-
cords all disciplinary warning notices, and notations of
them, pertaining to Lynn Engel and Karl V. Hartmann
which have been found to be discriminatory; expunge all
references to Engel's discriminatory August 10, 1979,
probation; and forthwith advise Engel, Hartmann, and
the Regional Director for Region 30, in writing, that the
Employer has fully complied with this Order to expunge.
(e) Post at all its plants and other facilities in which
employees in the unit eligible to vote in Case 30-RC-
3545 are employed copies of the attached notice marked
"Appendix." 3 6 Copies of said notice, on forms provided
a8 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
by the Regional Director for Region 30, after being duly
signed by the Employer's authorized representative, shall
be posted by the Employer immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees eligible to vote are custom-
arily posted. Reasonable steps shall be taken by the Em-
ployer to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Employer has taken to comply herewith.
IT IS FURTHER ORDEREI) that all allegations contained
in the consolidated amended complaint found herein not
to constitute unfair labor practices are dismissed.
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."
371