Grede Foundries, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 710 (N.L.R.B. 1974)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grede Foundries , Inc. and International Molders and
Allied Workers Union, AFL-CIO-CLC. Case
30-CA-2355
June 18, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 28, 1973,1 Administrative Law
Judge Robert E. Mullin issued the attached Decision
in this proceeding dismissing the complaint in its
entirety. Thereafter, General Counsel filed excep-
tions and a supporting brief and Respondent filed
cross-exceptions to the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions only to the
extent consistent herewith.
The Administrative Law Judge found that the
Respondent did not violate Section 8(a)(3) and (1) of
the Act when it suspended Albert Hankins on May
14, 1973, and discharged him on May 25, 1973. The
Administrative Law Judge based his finding on the
fact that Albert Hankins was absent or tardy on a
number of occasions, was subjected to a disciplinary
layoff for tardiness in mid-May, and was tardy again
on the morning of his discharge. Because the General
Counsel did not introduce evidence as to the work
histories of other employees and the disciplinary
actions instituted against employees with absentee
records similar to Hankins, the Administrative Law
Judge concluded he could only speculate that
Hankins' work record was "no worse than that of
any other employee"; 2 such speculation, as the
Administrative Law Judge pointed out, could not be
the basis for finding discriminatory treatment and
therefore the complaint was dismissed.
Notwithstanding the absence of evidence as to the
general treatment accorded other employees, we
find, contrary to the Administrative Law Judge, that
the preponderance of evidence on the record as a
whole establishes that Hankins' alleged tardiness and
I All dates herein are 1973 unless otherwise indicated.
z At the hearing , the General Counsel subpenaed a large volume of
timecards , including those of Hankins . Although none of Hankins' cards
was among those given to the General Counsel, the General Counsel did not
offer into evidence the attendance records of the other employees. On
December 11, 1973, the General Counsel submitted a motion to reopen the
record requesting an examination of all relevant company records. On
absenteeism was a pretext used by Respondent to rid
itself of an ardent union supporter in violation of
Section 8(a)(3) and (1) of the Act.
Hankins' activities on behalf of the Union began
during the first organizational campaign in the spring
of 1972. The record reveals that Hankins chaired the
10- to 12-member in-plant organizing committee,
secured signatures on authorization cards, represent-
ed the Union at a consent-election conference held at
the Board's Regional Office, and questioned William
Grede, founder of Respondent, after Grede urged
employees to vote against the Union at a meeting 2
days before the election. The Union lost the election
on June 9, 1972, after which unfair labor practice
charges were filed.3 In September 1972, Hankins was
put on notice that Respondent had singled him out
on the basis of his union activities. Willie Bell,
Hankins' supervisor at the time, approached Hankins
and told him that the supervisors had identified him
as a "pusher" for the Union. According to the
credited testimony, Bell warned Hankins that ". . .
now everything . . . you do now you should do . . .
as right as possible because . . . they're watching
you." Sometime in late October or early November
1972, Hankins inaugurated weekly meetings among
the employees in order to keep the organizational
drive visible. In December 1972, Hankins testified on
behalf of the Union during the unfair labor practice
hearing. The solicitation of signatures and the
election campaign were renewed in late March and
early April 1973. Hankins remained the head of the
in-plant organizing committee and during the ensu-
ing weeks distributed authorization cards to his
fellow employees at the plant, on the parking lot, and
in a tavern located near the plant which was
frequented by Grede employees as well as supervi-
sors . On May 14, during the organizing campaign,
Hankins was given a 3-day disciplinary layoff when
he reported to work late, although he had called in
promptly. When he returned to work on May 17, he
was given a disciplinary notice and a warning that
any future misconduct would result in discharge. On
May 23, Respondent received a letter from Noble
Blake , International representative of the Molders,
confirming the fact that Hankins headed the Union's
in-plant organizing team since 1971. Two days later,
Hankins arrived at work approximately 7 to 8
minutes late and was discharged.
As the Administrative Law Judge found, there can
be no doubt that Respondent was well aware of
December 17, 1973, Respondent filed suggestions in opposition to General
Counsel's motion to reopen the record . On the basis of the pleadings and
record before us , the General Counsel's motion to reopen the record is
denied.
3 On July 26, 1973, the Board issued Grede Foundries, Inc., 205 NLRB
No. 12, in which it found that Respondent had violated Sec. 8(a)(1) of the
Act and set the election aside.
211 NLRB No. 101
GREDE FOUNDRIES, INC. 711
Hankins' union activities. In view of Respondent's
union animus during the first organizational cam-
paign , as evidenced by the unfair labor practices
committed, the surveillance of Hankins after he was
identified as a "union pursher" indicates that
Respondent continued in its hostile attitude towards
the Union. There can be no doubt that the discharge
of the Union's most visible and ardent supporter just
after the Union's election campaign resumed had the
effects at which the Act's sanctions are most
vigorously directed.
We are unconvinced by Respondent's claims that
Hankins was discharged for his "tardiness and
absenteeism" and not for any discriminatory reasons.
We note first that Hankins did not receive any
warnings regarding his attendance record until
February 1973, despite Respondent's claims that
Hankins' tardiness was a problem from the very
beginning of his employment at the plant. Hankins'
alleged tardiness and absenteeism must also be
viewed in its proper context since Foreman Cross
admitted that absenteeism is a problem among all the
employees at the foundry. Secondly, we note that,
while Foreman Cross claimed he was solely responsi-
ble for the decision to terminate Hankins, Cross
failed to state definitively the grounds for his
decision, but testified merely that he thought Hankins
was discharged for attendance and he didn't think
defective and improper work was a consideration.
In addition to Cross' equivocation at the hearing,
Respondent offered shifting reasons for the dis-
charge which do not withstand scrutiny upon
examination of the record. In its answer to a
prehearing order for a more definite statement,
Respondent contended that Hankins was terminated
for "refusing to ' obey orders, low production,
defective and improper work, disrupting and inter-
fering with production by entering the plant on off
time and visiting with employees during their
working hours, unreported absences, repeated and
persistent tardiness ." Yet, at the hearing, Foreman
Cross testified that he thought that Hankins was
terminated for "absenteeism and tardiness" and not
for low production, refusing to obey orders, or doing
defective or improper work.
Respondent's allegations in its answer to the
aforementioned order reiterated the contents of a
May 17 disciplinary notice which was given to
Hankins upon his return from the 3-day disciplinary
suspension he receive on May 14. The notice
contained the following charges:
You have just returned to work after a 3 day
4 Metcalfe, Inc., d/b/a/ Sentry Food Store, 198 NLRB No. 127. See also
J. P. Stevens & Co., Inc., 171 NLRB 1202, 1220, enfd 417 F.2d. 533 (C.A. 5),
wherein it was noted "It thus appears that ... Respondent included the
disciplinary layoff due to your attendance. Your
overall record, which has been recorded, shows
that you have had disciplinary action or write up
for tardiness, absenteeism, quality of work,
including a 3 day layoff for insubordination, and
using the meter during production while working,
because of your over-all record you are hereby
notified that any further infraction of any of these
items will be cause for immediate dismissal and
termination of employment.
We find, as did the Administrative Law Judge, that
the notice's "reference to earlier problems . . . upon
examination did not reflect as seriously on Hankins'
work record as might at first appear." For example,
the disciplinary writeups for poor quality work were
meted out on two occasions when Hankins' pro-
duction was affected by an illness, after which
Hankins received no other disciplinary reprimands
for poor quality work. In fact, Hankins was consist-
ently one of the highest producing employees in the
plant. The 3-day layoff for insubordination referred
to an incident in October 1971, when Night Superin-
tendent Schneider fired Hankins because he refused
to work until a hazardous condition had been
removed. Less than 3 days later, Personnel Manager
Nodolski asked Hankins to return to work. Although
Respondent offered in evidence a warning allegedly
given to Hankins at that time, the Administrative
Law Judge credited Hankins' testimony that he did
not see the warning until May 17, and Schneider did
not testify. Thus, the authenticity of this warning
notice is doubtful. The reprimand based on Hankins'
misuse of the delay meter was issued in September
1972, when confusion existed among all the molders
as to the proper use of a delay meter which registered
lags in production caused by circumstances beyond
the control of the employee. On September 14, 1972,
Hankins misused the meter and signed a warning.
However, according to the credited and uncontra-
dicted testimony, at a meeting of employees the next
day, Works Manager Brendler, in response to
Hankins' protest, directed Foreman Cross to destroy
the reprimand. As far as Hankins knew, Cross had
complied with Brendler's order and Brendler was not
called to refute this testimony. Thus this reprimand
also appears not to be legitimate. It is apparent that
the original "proffered grounds for the discharge do
not withstand scrutiny in that they are not only
without foundation in the record but they are
constantly shifting, thereby making the `claim of
non-discrimination the less convincing.' "4
Finally, we note that while Respondent asserts that
two additional reasons in an effort to becloud the pretextuous nature of the
third asserted reason and to create the appearance of a discharge for cause.
Such conduct is `additional evidence of discrimination. "
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hankins' absenteeism and tardiness is the reason for
the discharge, there is also evidence in the record that
Hankins complied with Respondent's absentee poli-
cy as set forth in notices to all employees posted on
July 10, 1972, and March 19, 1973. The record
reveals that Hankins received his first disciplinary
writeup for an unreported absence in July 1972,
when he did not report for work the day after his
summer vacation. However, it is uncontradicted that
Hankins sent word to his foreman through another
employee that he would not be at work. In cross-
examination, General Foreman Cross conceded that
Respondent's absentee policy was satisfied when an
employee notified Respondent of his impending
absence through a coworker. On February 23, 1973,
Hankins received a warning slip despite the fact that
he reported his absence on both occasions alluded to
by the warning. On May 1, Hankins reported his
absence due to a sore throat. Underscoring the
pretextuous nature of Respondent's claims, the
record supports the finding that all of Hankins'
absences were excused. The Board has found that
where absences are actually excused the Employer's
defense based on "bad attendance" is negated.5 The
offering of a spurious defense, of course, supports an
inference as to the unlawfulness of the real reason.
Respondent's disparate treatment of Hankins is
clearly demonstrated by the following incident. On
May 23, Foreman Cross charged that Hankins was
again late for work; Hankins was paid for only 7.9
hours, although his production record credited him
with 8 timeclock hours. According to the credited
testimony, Jessie Fowler, a fellow employee who
worked on the machine next to Hankins, arrived at
his work station after Hankins but had received a full
day's pay and had not been docked for any tardiness.
In sum the record reveals that Hankins was an
active union adherent who was warned by Respon-
dent concerning his union activities. In the midst of
the Union's organizational campaign, he was sus-
pended, discriminatorily docked pay, and eventually
discharged. Respondent's contention that Hankins
was discharged because of his attendance record is
clearly spurious. Respondent admitted that absentee-
ism was a problem among all employees. Hankins
was not warned about tardiness until February 1973,
after he testified at the earlier unfair labor practice
hearing, although Respondent claims that Hankins
had a tardiness problem since the commencement of
his employment in May 1971. Hankins had actually
complied with Respondent's absentee policy by
properly notifying Respondent. Respondent offered
shifting reasons for its decision to discharge Hankins,
Texas Aluminum Company, Inc, 181 NLRB 73.
e Welcome-Amencan Fertilizer Co, 169 NLRB 862
and the original reasons as well as the May 17
disciplinary notice were clearly contrived. Even
assuming, arguendo, that Hankins was tardy on
several occasions, this cannot obfuscate Respon-
dent's determination to rid itself of the main union
activist. It is well settled that while union activities do
not insulate an employee from an employer's
disciplinary actions, where an employee's union
activities are the basis for his discharge, despite the
existence of any lawful cause, the discharge is
discriminatory and in violation of Section 8(a)(3) and
(1) of the Acts While the record does reveal that
Hankins was 7 or 8 minutes late on May 25, we find
that Respondent seized upon this as a pretext for an
otherwise discriminatory discharge. We therefore
find that Respondent violated Section 8(a)(3) and (1)
of the Act.7
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As we have found that the Respondent has
discriminated against employee Albert Hankins by
suspending him on May 14, 1973, and by discharging
him on May 25, 1973, for his activities on behalf of
the Union in violation of Section 8(a)(3) and (1) of
the Act, we shall order the Respondent to offer him
immediate and full reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and to
make him whole for any loss of pay he may have
suffered as a result of this discrimination against him
by payment to him of a sum of money equal to that
which he would have earned as wages from the date
of the discrimination to the date of reinstatement,
less his net earnings during such period, in accord-
ance with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, together with interest at the
rate of 6 percent per annum to be added to such
backpay, such interest to be computed in accordance
with the formula prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
I We do not herein reach the question whether Sec. 8 (aX4) has also been
violated in view of the sufficiency of the remedy imposed upon our finding
that Sec. 8(aX3) and ( 1) has been violated.
GREDE FOUNDRIES, INC.
Grede Foundries, Inc., Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from discouraging member-
ship in or activities on behalf of the Union, or any
other labor organization, by suspending, discharging,
or in any other-'manner discriminating against its
employees in regard to their hire or tenure of
employment or any term or condition of employ-
ment.
2. Take the following affirmative action which is
necessary to effectuate the policies under the Act:
(a) Offer to reinstate Albert Hankins to his former
position or, if this position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(b) Make whole Albert Hankins for any loss of
earnings he may have suffered by reason of the
unlawful action against him in the manner set forth
in the section of this Decision entitled "The Reme-
dy„
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Milwaukee,
Wisconsin, copies of the attached notice marked
"Appendix.8 Copies of said notice, on forms provid-
ed by the Regional Director for Region 30, after
being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend, discharge, or discrimi-
713
nate against our employees because they have
joined or supported or will support International
Molders and Allied Workers Union,
AFL-CIO-CLC, or any other union, or in any
other manner interfere with, restrain, or coerce
our employees in the exercise of their rights under
Section 7 of the Act. Since the Board found that
we did so when we suspended and discharged
Albert Hankins,
WE WILL offer him full reinstatement to his
former position or, if this position no longer
exists , to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make whole Albert Hankins
for any loss of earnings he may have suffered by
reason of the unlawful action against him.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exercise
of their right to self-organization, to form, join, or
assist International Molders and Allied Workers
Union, AFL-CIO-CLC, or any other union, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
All our employees are free to become, or refrain
from becoming, members of the above-named or any
other labor organization.-
GREDE FOUNDRIES, INC.
(MILWAUKEE)
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case was heard on October 2 and 3, 1973, in Milwaukee,
Wisconsin, pursuant to charges duly filed and served,' and
a complaint issued on September 6, 1973. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(1), (3), and (4) of the National Labor
Relations Act, as amended. In its answer, duly filed, the
Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices.
At the trial, the General Counsel and the Respondent
were represented by counsel and the Charging Party by its
international representative. All parties were given full
opportunity to examine and cross-examine witnesses, and
to file briefs. At the conclusion of the trial, the Respondent
moved to dismiss the complaint. Ruling on this motion was
taken under advisement. It is disposed of as appears
hereinafter in this Decision. The parties waived oral
argument and on November 5, 1973, both the General
Counsel and the Respondent submitted briefs.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, with its
principal offices located in Milwaukee, is engaged in the
operation of foundries at several locations. Only its plant
located in Milwaukee is involved in the present proceeding.
During the year preceding issuance of the complaint, a
representative period, the Respondent sold and shipped
goods valued in excess of $50,000 directly to points located
outside the State of Wisconsin. Upon the foregoing facts,
the Respondent concedes, and I find, that Grede Foun-
dries, Inc., is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers Union,
AFL-CIO-CLC, herein called Molders or Umon, is a
labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent has about 300 employees working on 3
shifts at its Milwaukee foundry. In 1972 the Union
initiated an organizational campaign at this plant. In the
spring of that year the Molders filed a representation
petition. A Board-conducted election was held on June 9,
1972, which the Union lost. Thereafter the Union filed
various unfair labor practice charges against the Respon-
dent. Subsequent to a hearing on these charges, and after
the issuance of a decision by Administrative Law Judge
Stevenson, the Board issued a decision on July 26, 1973.
Grede Foundries, Inc., 205 NLRB No. 12. The Board found
therein that in 1972 at the Milwaukee plant, the Respon-
dent violated Section 8(a)(1) of the Act: (1) by withholding
improved health insurance benefits granted to employees
at other nonunion plants, while at the same time advising
the employees at the Milwaukee foundry that the reason
they were not receiving the benefits was due to the Union's
organizational efforts and the pendency of the representa-
tion election; and (2) by soliciting grievances which it
promised to, and did, rectify for the express purpose of
discouraging employees from designating a union repre-
sentative.
In the spring of 1973, the Umon renewed its organiza-
tional campaign at the Milwaukee plant. Albert Hankins, a
molder at that foundry who had been active throughout
the drive to organize the Respondent's employees and who
was head of the in-plant organizing committee, was
discharged on May 25, 1973.2 i he General Counsel alleges
that this termination was for discriminatory reasons. This
allegation is denied by the Respondent, according to whom
Hankins was discharged for cause.
B. Hankins' Work Record and Union Activity
Albert Hankins was hired by the Respondent in May
1971 as a molder. His initial pay was $2.69 an hour, plus a
mght premium. At the time of his termination in May 1973
he was earning $3.71 an hour. Hankins was an experienced
molder who was skilled in his craft. During his employ-
ment at the Respondent's foundry he worked on the pallet
line as a member of a two-man team in multiple squeeze or
two-board operations and also as a single squeeze molder.3
He was working in the latter classification at the time of his
discharge.
General Foreman Cross acknowledged that Hankins was
a good worker, who was skilled in the difficult and
physically exhausting work that a molder performs. Cross
described Hankins as "an individual who could have been
probably about the best squeeze molder we had." At the
same time the general foreman criticized Hankins for being
somewhat inconsistent in his production. On the other
hand, Cross conceded that throughout the entire period of
his employment, Hankins had received only two discipli-
nary warnings with respect to his work. The first was issued
on September 18, 1972, and the second on October 11,
1972. The first was for having left carbon rods out of
several castings and the second was for having failed to put
what were known as "chills" in a number of moldings.4
Both of these incidents occurred at a time when Hankins
was suffering from a physical disability. As a result of the
latter, on October 11, 1972, Cross put Hankins on a
medical leave of absence for 3 days. Upon his return to
duty Hankins had no further production problems. He
credibly testified that during the rest of his employment
period he did not make any further mistakes as to carbon
rods or chills. Cross acknowledged that subsequent to
October 11, 1972, there were no disciplinary writeups on
the quality of Hankins' work.
' The original charge was filed on May 30, 1973, and a first amended 3 Elwin Cross, general foreman over the pallet line, described squeeze
charge was filed on August 27, 1973 molding as the development of small steel castings on a machine that
2 Unless otherwise specifically noted, all dates that appear hereinafter squeezes the sand together to form the mold.
are for the year 1973 4 A "chill" was a heavy piece of metal embedded in the molding sand
GREDE FOUNDRIES, INC. 715
The foundry had a plant production board which each
week listed the names of the best producing molders for
each shift. Each day this carried the name of the highest
producer among the single squeeze molders and the names
of the members of the highest producing two-man team.
When Hankins was working as a single squeeze molder his
name appeared on this board from 2 or 3 days every week.
When he and his partner, Sam Christopher, were working
as a two-man team, their names appeared on the
production board most of the time.5
Hankins was one of the first of the employees to join in
the campaign to organize the plant. Some steps were taken
to attain this objective in September 1971. According to
Noble O. Blake, international representative of the
Molders, however, it was not until about April 1972 that a
determined effort began. It was at that time that Blake
appointed Hankins as the head of a 10- to 12-member in-
plant organizing committee, a post which he held through-
out the balance of his employment.
Union meetings were held at various places near the
plant including George's and Rose's, a tavern that was
located across the street from the foundry parking lot. The
last named establishment was frequented by many of the
Grede employees and some of the supervisors as well.
Numerous union committee meetings were held there at
times when the tavern was open to the general public.
Blake and Hankins credibly testified that among the
foremen who visited the tavern at such times were John
Weber and Dave Sanderhoff. Hankins credibly testified
that during the 1972 campaign he personally secured about
50 signed authorization cards from his coworkers whom he
contacted at the tavern, in the plant locker room, and at
various other places.
For over a year prior to his termination Hankins was
closely and publicly identified with the Union's attempt at
organizing the Respondent's employees. On May 4, 1972,
he attended a conference at the Board's Regional Office to
discuss the pending representation election. Before he left
the plant that day he informed his supervisor where he
would be. At the conference in the Regional Office the
Respondent was represented by its counsel. About a month
later the Board-conducted election was held at the plant.
William Grede, founder of the Company, spoke to the
employees 2 days before that election, and endeavored to
persuade them to vote against the Union. At the conclu-
sion of his speech Hankins went to the platform and
questioned Mr. Grede. It appears that Hankins was the
only employee who asked any questions at that meeting. At
the trial in the present case General Foreman Cross
acknowledged that he first learned of Hankins' involve-
ment with the Union at the time the employee questioned
Grede at this meeting. In December 1972, and at the unfair
labor practice hearing referred to earlier herein, Hankins
appeared as a witness for, and testified on behalf of, the
General Counsel. He was under subpena at the time and
prior to leaving the plant for the hearing he informed
General Foreman Cross where he would be.
S The findings in this paragraph are from the credible , undenied, and
uncontradicted testimony of Hankins and Christopher.
H The quotations are from Hankins' testimony.
7 From Cross ' testimony it appears that whereas Bell subsequently left
In March 1973 the Union resumed its organizational
efforts among the Respondent's employees. Hankins
continued as head of the in-plant organizing committee
and met frequently with Blake and other members of the
committee, often at the tavern referred to above. Hankins
testified, credibly, that during the ensuing weeks he passed
out authorization cards to his fellow employees while in the
plant, on the parking lot, and in George's and Rose's
Tavern.
On May 23, the Respondent received a letter from Union
Representative Blake, wherein Blake informed Burleigh
Jacobs, president of Grede, that Albert Hankins and
Sylvester Harris had been part of the Union's in-plant
organizing team since 1971, referred to reports of interfer-
ence, restraint, and surveillance by supervisors, and
reminded the Respondent of its obligations under the
National Labor Relations Act. Hankins was discharged 2
days later.
On the issue as to whether the Respondent had
knowledge of Hankins' union activity there is one other
significant incident. As found earlier herein, in September
1972, Hankins received a reprimand for having failed on
one occasion to put carbon rods in a casting. Hankins
testified that shortly thereafter, Willie Bell, his foreman at
the time, came to his work station and told him that he
(Bell) had attended a meeting "upstairs" where there had
been talk among the supervisors about Hankins being a
"pusher" for the Union. According to Hankins, in this
conversation Bell cautioned him ". . . now everything .. .
you do now you should do . . . as right as possible because
. they're watching you."6 The Respondent conceded
that Bell was a foreman during the period in question, but
Bell was never called to deny or contradict the testimony
which Hankins gave in connection with this incident.?
Since Hankins was credible, his testimony as to the
conversation with Bell is found to be an accurate
summation of what his foreman told him.
From the above findings as to the foregoing sequence of
events and the credited testimony as to the remarks made
by Foreman Bell in September 1972, I conclude that the
Respondent was well aware of Hankins' participation in
the organizational campaign for a long while prior to the
termination of that employee.
C. The Discharge of Hankins
Hankins was discharged on May 25, 1973. According to
General Foreman Cross, Hankins was terminated because
of "his attendance [and] his tardiness."8 Cross further
testified that the employee was not dismissed for such
reasons as low production, refusing to obey orders, or
doing defective or improper work. When asked the
following questions, Cross gave the answers which appear
below:
Q. He [Hankins] was not terminated for doing
defective or improper work?
A. He was not terminated for that, but that was
part of his record.
supervision , at the time of the hearing Bell was still on the Respondent's
payroll as a leadman in maintenance.
8 The quotation is from Cross' testimony.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Well, was that a consideration in terminating
him on May 25, defective and improper work?
A. No, I don't think so .9
Cross denied that the termination was related to Hankins'
union activities.
On about July 10, 1972, the Respondent posted a notice
to all employees with regard to its absentee policy.
According to this announcement all hourly employees
absent without cause would be subject to the following
penalties: for a first unexcused absence the employee
would receive a written warning; a second unexcused
absence would result in a 3-day layoff without pay; a third
unexcused absence would be cause for discharge.
On about March 19, 1973, the Respondent posted an
amendment to its absentee policy which reaffirmed the
above provisions and added the requirement that an
employee absent for 3 days or more due to illness would
have to present a certificate from his doctor. An employee
who failed to return with such a document would be
required to undergo an examination at the plant clinic
before going back to work.
Hankins received several disciplinary writeups for
absence and tardiness. The first occurred in July 1972
when he did not report for work the first day after his
summer vacation ended. According to Hankins, as the
result of car trouble he was unable to return to Milwaukee
until the afternoon he was to report for work. As the result
of fatigue, he sent word to Foreman Roy Dickenson via
Sam Christopher, a fellow employee, that he would not be
at work that day. Christopher testified that he delivered the
message and Hankins testified that the next day when he
reported for duty Dickenson acknowledged having re-
ceived it. At the same time, Hankins testified that the
foreman told him that the reason for his absence was
unacceptable. Dickenson thereupon wrote up a disciplinary
report which described Hankins' failure to appear at
work the preceding day as an "unreported absence." 10
In January 1973 Hankins was off for 2 days because of a
strained back, but each day he reported the reason for his
absence to the Company. In February he missed about 3
days because of an abscessed tooth, and, again, he notified
the plant on each of the days he was absent. Nevertheless,
on February 23, General Foreman Cross and Alvin
Nodolski, personnel manager, held a conference with
Hankins at which time the plant officials criticized the
employee's absentee record. Hankins was warned that,
unless his attendance improved, further disciplinary action
would be forthcoming up to and including discharge.
Hankins acknowledged that the supervisors discussed this
matter with him and his signature appears on the warning
slip that Nodolski prepared on this occasion.
On about May 1, Hankins was absent for a day due to a
throat infection. He called the plant to report his absence
and the reason for it. Thereafter he consulted his doctor.
Later that same morning, Personnel Manager Nodolski
9 In a response submitted pursuant to a prehearing order for a more
definite statement the Respondent averred that Hankins was dismissed for
"refusing to obey orders, low production, defective and improper work,
disrupting and interfering with production by entering the plant on off time
and visiting with employees during their working hours , unreported
called upon Hankins at his home. According to Nodolski,
he took this unusual step "to verify [Hankins'] illness."
Hankins was then working on the first shift which began
at 6:30 a.m. On May 14 he telephoned the plant at about 7
a.m. to report that he would be late. He could not recall the
name of the individual with whom he talked. He arrived at
the foundry about 8:35 a.m. Almost immediately thereafter
he was summoned to a meeting with Cross and Nodolski at
which he was given a 3-day disciplinary layoff and warned
that if another instance of tardiness occurred he would be
dismissed.
When Hankins returned on May 17 he had a meeting
with Cross, Nodolski, and Works Manager Frank Bren-
dler. Sometime earlier he had requested a transfer to the
second shift since that would make it easier for him to get
to work on time. Nodolski had promised that this request
would be considered. On the morning of May 17, when
Hankins again asked Nodolski for a transfer to the later
shift, the personnel manager responded in the negative. At
the same time Hankins was given a disciplinary notice
which read as follows:
You have just returned to work after a 3 day
disciplinary layoff due to your attendance. Your overall
record, which has been recorded, shows that you have
had disciplinary action or write up for tardiness,
absenteeism, quality of work, including a 3 day layoff
for insubordination, and using the meter during
production while working, because of your over-all
record you are hereby notified that any further
infraction of any of these items will be cause for
immediate dismissal and termination of employment.
There was a line on the notice for the employee's signature.
Nodolski entered a notation that Hankins refused to sign
it. The employee testified that he did not recall having been
asked to do so.
The references in the disciplinary notice to earlier
problems in Hankins' employment history covered certain
incidents which, upon examination, did not reflect as
seriously on his work record as might at first appear.
The reference to a writeup for quality of work referred to
the two occasions the preceding fall, discussed earlier,
when Hankins left carbon sticks out of the molds and
another instance when he left out chills. As found above,
Cross acknowledged that these were the only two instances
when the quality of Hankins' work had ever been the
subject of a writeup and thereafter there had been no
further incidents.
The reference to a 3-day layoff for insubordination
referred to an occasion in October 1971 when Hankins had
had some trouble with a night-shift superintendent, one
James Schneider. According to Hankins, this incident
arose when he protested that the working conditions in his
area were hazardous and unsafe in that a large hoist which
operated immediately above his head was out of order and
in danger of toppling on him. Hankins testified that while
absences , repeated and persistent tardiness , and other improper conduct."
10 On cross-examination , however, General Foreman Cross conceded
that it was sufficient if a coworker reported the impending absence of an
employee as long as "the message gets through...."
GREDE FOUNDRIES, INC.
he waited for the maintenance crew to correct this
situation , Schneider ordered that he keep on working and,
when he declined to do so, because of the hazards
involved, the superintendent told him that he was fired.
According to Hankins , he was off work for less than 3 days
when Personnel Manager Nodolski contacted him and
asked that he return to work. The Respondent offered in
evidence a disciplinary warning on this incident that
purportedly was signed by Schneider. The latter was never
called to testify. Hankins credibly testified that he first saw
this disciplinary notice on May 17, 1973, when Cross and
Nodolski summoned him to the conference described
above.
The reference to "using the meter during production"
concerned an incident that occurred in September 1972.
The Respondent had a pay plan whereby the molders
worked on an incentive rate and at a day rate. When the
molder was delayed because of circumstances beyond his
control, such as shortage of materials or for some other
reason, for that period he was paid at a day rate. At some
point in 1972 meter clocks were installed at each molding
station to record any such delays. If the meter was on at a
time when the molder was engaged in a molding operation
he would, in effect , be getting double pay. There followed a
long period of confusion among the molders after the
meters were installed as to when they were to be used.
Hankins testified that during the incident in question he
had a delay meter on for about 60 seconds when he was
working . A written warning, dated September 14, 1972,
was prepared and signed by Cross. According to Hankins
the next afternoon Works Manager Brendler called a
meeting that was attended by all the molders and the
timestudy men. At this time , Brendler reviewed the use of
the delay meters , and told the molders that there had been
much confusion as to how they should be used. Hankins
credibly testified that during the course of this discussion
he protested having received a written warning for misuse
of the meter when the whole incident had resulted from a
misunderstanding . Hankins credibly testified that Brendler
thereupon told Cross at this meeting that he should tear up
the written reprimand that had been issued in his case.
Hankins further testified , credibly, that he assumed that
this had been done. Brendler was never called to refute or
contradict this testimony by Hankins. The testimony of the
latter as to this incident was persuasive . It is found to be a
substantially accurate account of what occurred at the
meeting in September 1972.
On May 23, Cross charged that Hankins was again late
to work. According to Hankins , he punched in between
6:20 and 6 :25 a.m. He testified that after changing into his
work clothes he and other employees reported to their
molding stations about 6:30 to 6:36. Cross testified that
regardless of when the molders punched in they were
required to be in their work areas no later than 6:30 a.m.
To enforce this requirement the Respondent had an
individual, known as a checker, observe when each man
arrived at his work area and note that time on the
employee 's production record for the day . Hankins'
production report on this date credited him with 8
timeclock hours , but a penciled notation indicated that he
was paid for only 7.9 hours. Hankins testified that Jessie
717
Fowler, a colleague who worked on the squeeze machine
next to him , arrived at his work station after he did. Yet,
according to Hankins' credible testimony , Fowler told him
that he had received a full day's pay and had not been
docked for any tardiness.
On May 25 , from his own testimony, Hankins was from
7 to 8 minutes late. When he arrived at the timeclock his
card had been removed from the rack . A personnel clerk
told him that Cross wanted to see him . A few minutes later
when Cross appeared he directed Hankins to clean out his
locker and leave . Hankins was terminated that morning.
Concluding Findings
The General Counsel contends that Hankins was
suspended on May 14 and discharged on May 25 , 1973, for
discriminatory reasons and in violation of Section 8(a)(3)
and (4) of the Act . In support of that position there is
evident the Respondent 's strong union animus, Hankins'
prominence in the Molders ' organizational campaign, the
Respondent 's knowledge of that activity , and the warning
to Hankins voiced by Foreman Bell in the fall of 1972 that
the management considered Hankins a "pusher" for the
Union and that from that time forward it behooved him to
"do everything as right as possible because they" were
watching him. (Emphasis supplied.)
The Respondent contends that the sole reason for
Hankins' termination was his record for tardiness and
absenteeism. On the other hand, General Foreman Cross
acknowledged that attendance was a problem at the
foundry among all the employees . In an obvious effort to
establish that Hankins' record on tardiness and absentee-
ism was no worse than that of many other employees, the
General Counsel subpenaed a large volume of timecards,
including all of Hankins'. On the morning that the hearing
opened , the Respondent supplied many boxes of timecards
in response to this subpena . From their statement on the
record during the early hours of the hearing , it was evident
that counsel for the General Counsel had several staff
members checking and analyzing these timecards . Howev-
er, none of Hankins' timecards was found in the mass of
data that was supplied . No satisfactory explanation for
their absence was offered. At the hearing, and when on the
stand, Personnel Director Nodolski acknowledged that
Hankins' timecards and attendance records had been
subpenaed . Other than to assert that at some earlier date
these records had been turned over to the Respondent's
central personnel office , Nodolski was unable to offer any
explanation for the Company 's failure to supply these
records. The Respondent had no difficulty producing all
the disciplinary reports that had been prepared during
Hankins' employment, but it at no time offered a
persuasive or convincing explanation as to why Hankins'
time and attendance cards were unavailable for examina-
tion by the General Counsel.
The General Counsel did not seek to offer the attend-
ance records of any employees other than Hankins.
Consequently , there is no evidence that would establish
whether there was any disparity as to the discipline meted
out to Hankins as compared with the treatment accorded
other employees with similar work histories as to tardiness
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and attendance. Whether such evidence was available and
what it would establish, if offered, is left to conjecture.
The decision herein, however, must be made on the basis
of the present record rather than conjecture or suspicion.
As found above, Hankins was absent or tardy on a number
of occasions. He was given a written reprimand in each
instance and as early as February 1973 he was warned that
a discharge was in the offing. Thereafter he was admittedly
absent on several other occasions, was subjected to a
disciplinary layoff for tardiness in mid-May and when he
was tardy again on May 25 he was discharged. It may very
well be that Hankins' record in this respect was no worse
than that of many other foundry workers. Cross' acknowl-
edgement that attendance was a continuing problem at the
plant would tend to prove that that was the situation.
However, evidence as to the work histories of other
employees and what disciplinary action the Respondent
had taken, or not taken, as to them was never offered.
Consequently, and notwithstanding the many questions
raised by the Respondent's failure to supply the time
records of Hankins, or to offer a convincing explanation as
to why it was unable to secure them from the Respondent's
central personnel office in response to the General
Counsel's subpena, it is my conclusion that, on the record
in the present case, the General Counsel has not estab-
lished by a preponderance of the evidence that Hankins
was terminated for discriminatory reasons. Accordingly, it
will be recommended that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act.
2. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent violated
Section 8(a)(1), (3), and (4) of the Act as alleged in the
complaint.
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act,
there is issued the following recommended:
ORDER"
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
I I In the event no exceptions are filed as provided by Sec. 102 .46 of the 102 .48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions , and order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec. deemed waived for all purposes.