Harrison Steel Castings Co.

National Labor Relations Board - Board Decisions

May 19, 1989

293 N.L.R.B. 1158 (N.L.R.B. 1989)

1158 HARRISON STEEL CASTINGS CO
Harrison Steel Castings Company and Inez Lorene
Tornquist and Debra L Tornquist and Interna-
tional Union, United Automobile , Aerospace
and Agricultural Implement Workers of Amer-
ica and Kathy L Spear Cases 25-CA-10936-1,
25-CA-10936-2, 25-CA-10984, 25-CA-11051,
25-CA-11317, 25-CA-11367, 25-RC-7174,
and 25-CA-11989
May 19, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 28, 1982, the National Labor Relations
Board, by a three-member panel, issued a Decision,
Order, and Direction of Second Election i in this
proceeding, adopting, inter alia, findings by the ad-
ministrative law judge that the Respondent had
made three written statements threatening job loss
in violation of Section 8(a)(1) of the Act The
Board made several other findings of 8(a)(1) and
(3) violations, ordered the Respondent to cease and
desist from its unlawful activity and to take certain
affirmative remedial action, and directed a second
representation election because of the objectionable
interference of the Respondent's conduct with the
first election held on May 10, 1979
Thereafter, the Board filed an application for en
forcement of its Order with the United States
Court of Appeals for the Seventh Circuit A panel
majority of that court initially enforced the Board's
Order in its entirety, but the court subsequently
granted the Respondent's petition for rehearing en
banc and vacated the underlying opinion and judg
ment Thereafter, the Board moved the court to
remand the issue whether the Respondent's written
statements violated Section 8(a)(1) On June 5,
1984, the court granted the Board's motion, re
manded that portion of the case to the Board for
further consideration, and reinstated the initial
judgment enforcing the Board's Order as to all
other issues After the court's remand, the Charg-
ing Party and the Respondent filed statements of
position
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has reconsidered the 8(a)(1) threat al-
legations before it in light of the record as a whole
and the statements of the parties and has decided to
reaffirm the findings and conclusions in its original
decision
' 262 NLRB 450 (1982)
It is now undisputed that the Respondent en
gaged in numerous unfair labor practices during
the 2 months preceding the May 10, 19792 repre
sentation election It prohibited distribution of
union literature by off duty employees on public
property adjacent to the plant and by employees
on nonworking time in nonworking areas The Re-
spondent's foremen interrogated and threatened
prounion employees A foreman discriminatorily
sequestered a union adherent from his fellow em
ployees The Respondent discriminatorily denied
overtime assignments to several employees because
they wore prounion buttons It discriminatorily
transferred a union proponent from day to night
shift, then later discharged her Finally, the Re
spondent unlawfully discharged two office employ
ees on May 7 after they indicated that they did not
intend to attend an antiunion rally
What remains in dispute before us is whether the
Respondent also violated Section 8(a)(1) on May 8,
2 days before the election, by circulating an "Elec
tion Special" newsletter containing the following
statements
If you would be called out on strike by the
Union during contract negotiations, such a
strike is called an economic strike and all em-
ployees not reporting to work can be perma-
nently replaced A company cannot fire em
ployees for striking but it can permanently re
place them Permanent replacements hired for
strikers are allowed by law to keep the strik
er's job even after the strike ends Thus, em-
ployees who go on strike and are replaced
have no job to return to when the strike ends
Some of the Harrison Steel Castings Compa-
ny's competitors are non union and some are
located in the southern part of the United
States where wage rates are traditionally
lower, and if we become union the Company
may become non-competitive with a resulting
loss of business and jobs This loss of business
could come about through increased cost of
operation, not due to wage or benefit increases
to employees but rather due to the inherent in-
creased cost in operating a union plant At
union companies much time is spent on griev
ance processing, contract negotiations, and
dealing with the Union, which add to the cost
of operation, but do not put any benefits in he
employee's pocket
2 All dates are in 1979 unless otherwise stated
293 NLRB No 143
HARRISON STEEL CASTINGS CO
In a union company there is the ever present
possibility of a strike Our customers rely upon
dependable delivery of goods and services, and
the risk of a strike may force our customers
into looking for alternative suppliers, which
could lead to a loss of jobs at our plant When
you consider your vote for or against a union
examine that choice in terms of your own per
sonal best interests rather than what is good
for the employer 3
We find it unnecessary to determine the lawful
ness of two of the three statements of the election
newsletter (pertaining to the hiring of permanent
replacements during a strike and to the possible
change in the purchasing practices of customers if
unionization occurs) The third statement, which
suggested that unionization could make the Compa
ny noncompetitive, leading to "loss of business and
loss of jobs," had a tendency to coerce employees
when viewed against the background of the Re-
spondent's other unlawful conduct 4 Therefore it is
appropriate to enter a cease and-desist order
against threats of job loss 5
In a case devoid of union animus or unlawful
threats, an employer might suggest as a general
economic proposition the bearing that the adminis
trative costs of collective bargaining has on the
price of the employer's product and, as a conse-
quence, the possible change in the employer's corn
petitive position in the market But having mani-
fested overt hostility to the union activists in its
work force here-a hostility that was likely to con-
tinue in view of some of the evidence-the Re-
spondent could not lawfully go on to suggest the
loss of jobs as a result of loss of business to the
competition without demonstrating to employees
that such a chain of causation would be brought
a A May 1 1979 letter from the Respondent to its employees included
references to the possible adverse impact of a strike on the relationship
between the Respondent and its principal customer Caterpillar Corpora
tion In addition the Respondents chairman Shoaf expressed views simi
lar to those in the written statements during several captive audience
employee meetings held in late April and early May
* Compare Tn Cast Inc 274 NLRB 377 378 (1985) (employer refer
ence to possible effect of unionization found not threatening ) with Na
tional Micronetics 277 NLRB 993 995 (1985) (employer predictions held
coercive in part because they occurred at the end of antiunion election
campaign during which company officials made repeated threats to close
plant) and Southwire Co 277 NLRB 377 (1985) (context in which
speeches made gives them coercive resonance) enfd 820 F 2d 453 (D C
Cir 1987) See also NLRB v Nueva Engineering 761 F 2d 961 965 (4th
Cir 1985) (employer s conduct must be assessed within the totality of cir
cumstances)
5 We shall modify the original Board Order and notice to the extent
that they refer specifically to unlawful threats of job loss from participa
tion in a stoke Because the Respondent will still be proscribed from
threatening job losses for choosing union representation we find no need
to make the cumulative finding that the Respondent threatened job losses
for engaging in the particular union activity of striking As indicated we
therefore do not address the lawfulness of the order statements in the Re
spondent s newsletter
1159
about through forces beyond the Respondent's con
trol ti Without more specific, objective data, the
statement in question could just as well be taken to
suggest that the Respondent might, purportedly on
the basis of cost factors that are at least partly
within its own control and known only to it, dis-
charge employees in the event they chose to be
represented by a collective-bargaining representa-
tive From the employees' perspective, the state
ment has a tendency to coerce them into disfavor
ing unionization 7
ORDER
The Board's Order reported in 262 NLRB 450
(1982), is reaffirmed as modified below
1 Delete paragraph 1(c) and reletter the subse
quent paragraphs
2 Substitute the attached notice for that attached
to the Board's original Decision and Order
6 NLRB v Gissel Packing Co 395 U S 575 618 (1969) We also note
that because the literature at issue here was never presented in the con
text of meetings at which employer representatives made statements that
would tend to dispel impressions that unionization would lead automati
cally to plant closure the finding of a violation here is not inconsistent
with the Board s decision in Uarco Inc 286 NLRB (1987) enfd mem
870 (6th Cir 1989)
' Member Johansen agrees with his colleagues that the Respondent
violated Sec 8(a)(1) by its written statement that if we become union
the Company may become non competitive with a resulting loss of busi
ness and jobs Such a statement when viewed in the context of open
hostility to unionization evidenced by the Respondents numerous other
unfair labor practices would reasonably tend to coerce employees in
choosing whether to seek union representation Unlike his colleagues
Member Johansen would for essentially the same reasons reaffirm the
Board s original findings that the other two disputed statements in the
Respondents May 8 newsletter also violated Sec 8 (a)(1) Even assuming
that these statements might have been permissible in another setting they
were unlawful when made contemporaneously with extensive unfair
labor practices which include both express threats of job loss and actual
discharges in retaliation against union activities See e g NLRB v Kropp
Forge Co 178 F 2d 822 828-829 (7th Cir 1949) In the specific context
of the Respondents aggressive antiunion campaign Member Johansen
agrees with the original Board findings that the statement that replaced
economic strikers have no job to return to when the strike ends and
the prediction of possible job loss as a consequence of customer reaction
to unionization lacked sufficient objective explication and implicitly
threatened employees for engaging in protected union activities
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join , or assist any union
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representa
times of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT interrogate you concerning your
union or other protected concerted activities
WE WILL NOT deny you access to the plant
during your nonduty hours to engage in union ac-
tivity in nonworking areas, nor will we in any
other respect impede your right to distribute union
literature on your own time in nonworking areas
WE WILL NOT threaten that you risk your job or
face layoff in the event that you designate a union
as your representative
WE WILL NOT tell you to turn in union buttons
or other union insignia to your foreman if you
decide you no longer wish to support a union
WE WILL NOT discharge you, transfer you to
other shifts, restrict you to your work area, or
deny you overtime because of your support of a
union
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL offer Inez Tornquist, Debra Tornquist,
Joma Stewart, and Dan Watkins immediate and full
reinstatement to their former positions and, togeth
er with Edda Van Laere, Mike Mitton, David
Roach, Tom Lambka, and Don Solomon, WE WILL
make them whole for any loss of pay they may
have suffered by reason of our discrimination
against them, with interest
WE WILL remove from our files any reference to
the transfer of Joma Stewart on April 11, 1979, and
to her subsequent discharge on April 26, 1979, to
the discharges of Inez Tornquist and Debra Torn
quist on May 7, 1979, and to the discharge of Dan
Watkins on September 20, 1979, and WE WILL
notify them in writing that this has been done and
that evidence of these unlawful actions will not be
used as a basis for future discipline against them
HARRISON STEEL CASTINGS COMPANY
Ann Rybolt Esq and Howard Dodd Esq, for the General
Counsel
Jay Robert Larkin Esq and John T Neighbours Esq
(Roberts Ryder Rogers and Neighbours) of Indianapo
Its Indiana for the Respondent Employer
Andrew C Charnstrom Esq (Miles Segal and Macey), of
Indianapolis Indiana for the Charging Party Petition
er
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge This
consolidated proceeding originated with the filing of an
election petition in Case 25-RC-7174 on April 6, 1979
Thereafter, pursuant to a Stipulation for Certification
Upon Consent Election an election was conducted on
May 10, 1979 among certain employees in the agreed on
collective bargaining unit The tally of ballots showed
that of approximately 895 eligible voters, 1 ballot was
void, 390 were cast for and 418 against representation by
the Union with 73 challenges which were sufficient in
number to affect the results of the election Following
timely objections to conduct affecting the results filed on
behalf of the Union on January 4 1980, the Regional Di
rector for Region 25 issued a Report on Objections to
Conduct Affecting Results of Election Challenged Bal
lots, Recommendations to the Board, Order Consolidat
ing Cases Order Directing Hearing, and Notice of Hear
ing The Regional Director recommended therein that 5
challenges be overruled, that 7 be sustained and that the
remaining 61 challenges be resolved on the basis of
record testimony taken at an evidentiary hearing' With
respect to the objections the Regional Director recom
mended that Objection 9 be overruled and that a hear
ing be held to resolve the material issues of fact and
credibility raised with respect to Objection 1 through 8
inclusive, as well as certain additional conduct involving
the alleged unlawful termination of employees Inez and
Debra Tornquist 2
In the interim, pursuant to an initial unfair labor prac
tice charge in Case 25-CA-10936-1 and 25-CA-10936-2
and an initial unfair labor practice charge filed by the
Charging Party Petitioner in Cases 25-CA-10984 and
25-CA-11051 the Regional Director for Region 25, on
July 31 1979 issued a consolidated complaint alleging
that Respondent independently violated Section 8(a)(1)
of the Act by coercively interrogating employees con
cerning union activity by threatening reprisals if em
ployees became or remained members of the Union by
promising employees economic benefits to induce them
to refrain from union membership, by informing employ
ees through preelection propaganda that designation of a
union would result in a curtailment of business and a re
suiting loss of employment by informing employees that
they could be discharged in the event of a strike by en
gaging in surveillance of union activity and by restrict
mg distribution of union literature on nonwork times
The consolidated complaint further alleged that Re
spondent violated Section 8(a)(3) and (1) of the Act by
on various dates terminating about 16 employees and by
changing the working conditions of 10 specific employ
ees variously through suspension reduced employment,
confinement to work areas and the assignment of more
i The unresolved challenges included 51 which were raised by the Pe
titioner In the course of the instant proceeding I granted Petitioners
motion permitting withdrawal without prejudice of the aforesaid chal
lenges
8 The Regional Directors recommendations were adopted by the
Board by Order dated January 29 1980
HARRISON STEEL CASTINGS CO.
arduous work. In its duly filed answer, Respondent
denied that any unfair labor practices were committed.
Pursuant to a further unfair labor practice charge filed
in Case 25-CA-11317, a complaint was issued on Octo-
ber 12, 1979, alleging that Respondent engaged in addi-
tional independent 8(a)(1) violations through coercive in-
terrogation, threats of discharge and other reprisals, and
soliciting employees to abandon the Union. The com-
plaint further alleged that Respondent violated Section
8(a)(4), (3), and (1) of the Act by the discharge of Edda
Van Laere and Daniel Watkins. In its duly filed answer,
Respondent denied that any unfair labor practices were
committed.
On January 4, 1980, Cases 25-CA-10936-1, 25-CA-
10936-2, 25-CA-10984, 25-CA-11051, 25-CA-11317,
25-CA-11367, and 25-RC-7174 were consolidated for
purposes of hearing, ruling, and decision by an adminis-
trative law judge.
Finally, on March 17, 1980, a further unfair labor
practice charge was filed in Case 25-CA-11989, with a
complaint having been issued on April 8, 1980, alleging
that Respondent violated Section 8(a)(4), (3), and (1) of
the Act by issuing a warning to Kathy L. Spear, impos-
ing a 3-day disciplinary layoff on Spear, and by thereaf-
ter discharging Spear because of her union activity. In its
duly filed answer, the Respondent denied that any unfair
labor practice were committed. On April 22, 1980, in the
course of the hearing, I granted the General Counsel's
request that the aforesaid complaint be consolidated with
the aforedescribed pending matter.
Pursuant to the foregoing, a hearing was opened in
Attica, Indiana , on January 21, 1980, and conducted
before me on various dates in January and April 1980.
After close of the hearing, briefs were filed on behalf of
the General Counsel, the Charging Party Petitioner, and
the Respondent Employer.
On the entire record in this proceeding, including my
opportunity to observe directly the witnesses while testi-
fying and their demeanor, and on consideration of the
posthearing briefs, I find as follows
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPLOYER
Respondent is an Indiana corporation, with its princi-
pal office and place of business in Attica, Indiana, from
which it is engaged in the manufacture, sale, and distri-
bution of steel castings and related products. During the
12 months preceding issuance of the initial complaint, a
representative period, Respondent received at the facility
goods and materials valued in excess of $50,000 trans-
ported directly from States other than the State of Indi-
ana, and shipped from the facility products valued in
excess of $50,000, directly to States other than the State
of Indiana.
The complaints allege, the answers admit, and I find
that Respondent is now, and has been at all times materi-
al, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
1161
The complaints allege, the answers admit , and I find
that International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America (the
Union) is, and has been at all times material , a labor or-
ganization within the meaning of Section 2 (5) of the Act.
III. CASES 25-CA-10936 ( 1) AND (2), 25-CA-10934, 25-
CA-11051, 25-CA-11317, 25-CA-11367, AND 25-CA-
11989
A. The Issues
This proceeding relates to a plethora of unfair labor
practices attributed to the Respondent through four dis-
tinct complaints. It is alleged that Respondent during the
critical period preceding the election, independently vio-
lated Section 8(a)(1) in just about every imaginable form.
Furthermore, it is alleged that during the same period as
well as after the election, Respondent engaged in broad-
brushed discrimination, including discharge, suspension,
reduction in work-hours, confining prounion employees
to work areas, and curtailing various privileges previous-
ly enjoyed by prounion employees.3 In the main, these
issues turn on critical conflicts in testimony.
The question of primary remedial concern, apart from
backpay and reinstatement, is whether the foregoing alle-
gations are substantiated to an extent warranting action
whereby the election, in which, as shall be seen, the
Union failed to achieve designation from a majority of
the employees, should be set aside, and a rerun election
conducted.
B. Background
Respondent is engaged in the manufacture of steel
castings, from its sole facility located in Attica, Indiana.
There is no history of collective bargaining for Respond-
ent's blue collar work force, which varies in size, but ba-
sically approximates some 1000 employees.
The instant charges against the Respondent stem from
an organization campaign opened by the UAW on
March 6, 1979.4 This, however, was not Respondent's
first encounter with such an effort. Since 1947, various
labor organizations have endeavored to organize Re-
spondent's production workers through six separate cam-
paigns with National Labor Relations Board elections
conducted on some eight prior occasions.
3 On April 22, 1980, in the course of the hearing , I granted counsel for
the General Counsel's motion to amend the complaint in Case 25-CA-
10936-1 by withdrawing allegations that Michael Tindell, Charles Sanders
William R . Bennett, Theodore Farley, and Stanley Worley were discharged
in violation of Sec. 8(a)(3) and ( 1) of the Act, as well as allegations that
Respondent violated . Sec. 8(a)(3) and (1) of the Act by assigning Luis
Compos more arduous job tasks , by providing Luis Compos less employ-
ment, and by assigning Kathy Spear additional and less agreeable work.
In addition , Respondent 's unopposed motion to dismiss with respect to
allegations that Mark Shelly was terminated in violations of Sec . 8(a)(3)
and (1) of the Act was granted at that time as no proof was offered in
support of that allegation . Along that same line, allegations to the effect
that Respondent interrogated and/or threatened employees through con-
duct of its Supervisors William Trimble and Don Mitton are dismissed.
4 Unless otherwise indicated all dates refer to 1979.
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel despite the history of the several
organization efforts, and the comprehensive nature of the
charges leveled does not claim that the instant issues
arose against a background of residivism. Indeed, the
only evidence as to Respondent's experience under the
Act related to testimony adduced by the Respondent to
the effect that after said elections , though "almost
always" charged with unfair labor practices, it was di-
rected to participate in a rerun election on one occasion
and, then, only pursuant to a settlement agreement. As
for unfair labor practices, it does not appear that any
have been previously sustained against the Respondent
except, a single instance, which was limited to a finding
that it violated Section 8(a)(3) in the case of one employ-
ee.
C. Interference, Restraint, and Coercion
1. Conduct restricting prounion conduct and
encouraging antiunion conduct waged on working
time in work areas
The original complaints contained a single 8(a)(1) alle-
gation pertaining to distribution, naming Jack Jones,
maintenance foreman, as the management representative
responsible therefore. Later, three separate allegations
were added to the complaints by amendment charging
Respondent with having unlawfully restricted the distri-
bution of union literature on nonworking time in non-
working areas, on the one hand, while permitting and en-
couraging its employees to distribute antiunion insignia
during worktime and in work areas . In their final form,
the complaints do not charge Respondent with unlawful-
ly impeding employee rights in the area of union solicita-
tion.
As I understand the wealth of evidence addressed to
the question of prounion distribution on plant premises,
the charges made against the Respondent in this connec-
tion must be assessed in the light of employee encounters
with two individuals, namely, Lillian Sexton, a member
of Respondent's security force and an alleged agent
thereof, and Jack Jones, a foreman in Respondent's main-
tenance department and an acknowledged supervisor.
Issues also exist with respect to an understanding that
access by employees to plant premises during their off-
duty hours is barred unless the employee can show that
he or she has business in the plant. This policy was not
memorialized in writing, and it was not published formal-
ly or informally on a comprehensive basis at any time
during the campaign. Indeed, there is no allegation that
Respondent violated Section 8(a)(1) by promulgating,
maintaining , or enforcing a rule or policy imposing a
more comprehensive restraint on employee distribution
of union -literature on nonworking time than the statute
permits.
Turning to the evidence, with respect to Sexton, wit-
nesses for the General Counsel testified that on two oc-
casions she impeded employees engaged in the distribu-
tion of union handbills, during their off-duty hours, in
the vicinity of one of the plant gates. Thus, employee
Vernon Spencer testified that on April 10, he together
with employee l3luford Brooks and two nonemployee or-
ganizers were engaged in the distribution of union litera-
ture at a position proximate to the gate serviced by
Sexton. As the handbilling progressed, those involved
backed closer and closer to company property. As they
did so, according to Spencer, Sexton came out of the
guardhouse and told him that he could not engage in dis-
tribution on the other side of a breach or crack which
ran across the pavement in front of the guardhouse. He
was told that if he did so he would be engaged in a tres-
pass , and that Sexton would have to call the law. Em-
ployee Dan Watkins testified to a similar admonition
made by Sexton while Watkins was engaged in the distri-
bution of union literature on or about May 8, in the vi-
cinity of Sexton's guardhouse. Sexton testified that the
only conversation she could recall with employees con-
cerning distribution involved Watkins, but that she could
not recall a reference to the "crack" in the sidewalk.
However, she admitted to having made such a statement
to nonemployee organizers.5 Based on credited testimo-
ny of Watkins and Spencer, I find that Sexton addressed
them, admonishing that they could not engage in distri-
bution of union literature on the other side of a crack
running across the roadway in front of her guardshack.
As Sexton admitted that the crack in question did not in
fact divide Respondent's property from that which was
public, I find that Sexton, whether intended to be in jest,
directed employees and nonemployees to refrain from
distribution of union literature on public property in an
area adjacent to the plant, and as her warnings in this
regard were within the scope of her authority as a guard
charge with responsibility for maintainig the integrity of
Respondent's property, it is concluded that Respondent
thereby violated Section 8(a)(1) of the Act.6
6 I credit the testimony of Spencer and Watkins in this regard. Sexton
lacked a capacity for clear recollection and I was puzzled by the implica-
tion in her testimony that she could distinguish between employees and
union men. Sexton worked as a guard on the 4 to 12 p . m. shift . She ac-
knowledged that other employees reported to and left work , using other
gates, and thus the record warrants the inference that Sexton would have
had no contact with substantial segments of the work force.
6 I find , contrary to the Respondent , that the record adequately sub-
stantiates the General Counsel 's claim that for the purpose of the above
unfair labor practice Sexton was an agent of Respondent and that her
conduct was binding on the Respondent . In this regard , although I would
agree with Respondent 's observation that the fact that one is a guard or
plant security representative does not establish agency per se for all pur-
poses, the action on the part of Sexton complained of here was plainly
within her entrusted apparent to prevent intrusion on Respondent 's prop-
erty. The record attests to the fact that Sexton as a guard at a gate main-
tained by the Respondent was responsible for assuring that access to
company property be confined to persons having business there . She re-
ceived instructions to the effect , and acknowledged that her duties in-
cluded the exercise of discretion as to whether company policies would
be complied with were she to admit those seeking entrance to company
property. Although Sexton , according to her testimony , was not instruct-
ed specifically as to her proper role in handling employees and nonem-
ployee organizers engaged in union activity , the authority otherwise
placed in her, the location and means by which she exercised her author-
ity with respect to the protection of plant property against trespass
would naturally be taken as possessed of the imprimateur of Respondent.
At a minimum , I find that she was clothed with apparent authority to
restrict access of all who would enter company premises and that her
comments to organizers were within the scope of that authority. Cases
cited by the Respondent, namely, Cabot Corp., 223 NLRB 1388 (1976),
and Bibb Mfg. Co., 82 NLRB 338 (1984), are distinguishable, and on the
instant facts warrant no different result. See, e.g., Coors Container Co.,
238 NLRB 1312 (1978).
HARRISON STEEL CASTINGS CO.
Additional evidence of alleged impairment of the right
of employees to engage in union distribution on non-
working time on company premises appears in testimony
pertaining to a confrontation between employee Dan
Watkins and his supervisor , Maintenance Foreman Jack
Jones . Watkins , as a maintenance electrician , was as-
signed a regular shift, but worked jobs only on an on-call
basis. There were oftentimes when no work was avail-
able and Watkins, while on the clock, was simply on
downtime. According to Watkins, with respect to such
down periods, in a conversation about the Union with
Jones, Jones told him variously that Watkins should not
be talking to other employees while on the clock. Wat-
kins further testified that in the course of this conversa-
tion he asked Jones if it would be permissible for him to
come in early and, before punching in, to distribute liter-
ature in the plant. According to Watkins, Jones went on
to indicate that Watkins testified, that Jones replied,
"Well, no, I prefer that you wouldn't." Jones admitted
that Watkins made such an inquiry, but according to his
version, he simply told Watkins that Watkins would not
have insurance coverage "if he came in the plant without
punching in." I prefer the testimony of Jones over that
of Watkins.7
With respect to the specific allegation in the complaint
that Respondent violated Section 8(a)(1) through Jones'
interference with Watkins' right to engage in distribu-
tion, I find this allegation to be substantiated by Jones'
own testimony.
Respondent justifies this restriction on an incident in
which its insurance carrier questioned coverage of an
employee injured on plant property during his off-duty
hours. Hence, Jones' statement concerning the distribu-
tion of literature during off-duty hours was consistent
with Respondent's policy concerning employee access.
As I construe his account, the indication that Watkins
would not be covered by insurance if he returned during
nonduty hours tended to imply that Respondent would
have invoked its nonaccess rule with respect to off-shift
employees, in connection with such a venture. Though
isolated, the response of Jones revitalized Respondent's
policy in that regard and hence impells resolution of its
legitimacy. I find in the circumstances that the nonaccess
rule was unlawful and that Jones' response consistent
therewith was of a like stripe.
Respondent freely conceded that said rule was relaxed
with respect to those seeking entry for legitimate rea-
sons. According to the testimony of Lillian Sexton, she
was never instructed nor informed as to the grounds on
7 Jones, though admitting to a hazy recollection as to specifics, im-
pressed me as basically honest . I believed Jones ' testimony that he ad-
monished Watkins only with respect to his approaching fellow employees
to discuss the Union while the others were working . Watkins' testimony
that Jones went beyond this, permitting him to talk union to machine
shop personnel, but otherwise broadly restricted him with respect to
other employees seemed improbable . Watkins was considered prone to
exaggerate and reflected a propensity to afford testimony reflective of
self-serving facts beyond his knowledge to further his own and the cause
of the Union in this proceeding. I have not accepted his testimony unless
either directly or indirectly confirmed through probability or other credi-
ble sources . I would note that , notwithstanding the specificity with
which this complaint challenges various aspects of Respondent's conduct,
there is no allegation naming Jones, any other supervisor, or Respondent
generally as having impeded union solicitation.
1163
which such employees would be permitted into the plant
during their nonduty hours. Believed testimony on this
record indicates that employees gained access during
their off-duty hours for personal convenience unrelated
to any business interest of the Respondent.
With respect to employer efforts to insulate plant
property from visitation by off-duty employees, the
Board in GTE Lenkurt, 204 NLRB 921 (1973), held that
a restriction denying such access to the premises is pre-
sumptively valid if not disparately applied against union
activity. The Board majority in that case concluded that
employees are to be viewed as having the status of non-
employees for purposes of determining the validity of a
nondiscriminatory no-access rule and hence such rules
would be upheld absent a showing by the Union that no
adequate alternate means of communication is available.
However, in Tri-County Medical Center, 222 NLRB 1089
(1976), the permissive scope of GTE Lenkurt was nar-
rowed, in which in the Board stated:
The holding in GTE Lenkurt must be narrowly con-
strued to prevent undue interference with the rights
of employees under Section 7 of the Act, freely to
communicate their interest in union activity to those
who work on different shifts. ... We conclude, in
order to effectuate the policies of the Act, that such
a rule is valid only if it (1) limits access solely with
respect to the interior of the plant and other work-
ing areas ; (2) is clearly disseminated to all employ-
ees; and (3) applies to off duty employees seeking
access to the plant for any purpose and not just to
those employees engaging in union activity. Finally,
except where justified by business reasons, a rule
which denies off duty employees entry to parking
lots, gates and other outside non-working area will
be found invalid.
Here, it does not appear that the scope of the rule was
ever formally communicated to employees. And the
record amply discloses that the rule did not apply to
those seeking access for all purposes, with exceptions to
the ban being undefined and freely conferred." For ex-
ample, plant guard Lillian Sexton testified that entry
during off-duty hours was simply left to the discretion of
plant security personnel at the gates.9 Furthermore, the
implication in Jones' response to Watkins herein was un-
qualified as to geographic scope and hence could be con-
strued as controlling with respect to all of the "plant" in-
cluding areas immediately adjacent to the "gates." In
agreement with the General Counsel, I find that Re-
spondent has failed to furnish a legitimate business justifi-
cation for preempting union activity within such non-
8 Kenneth Freed , Respondent's president , testified that the restriction
was administered with leniency.
8 Note that the testimony of Kenny Freed conflicted with that of
Sexton . Freed testified that passes were issued to those seeking access on
off-duty hours by someone in authority in "the office." If that was the
intended policy, it apparently was neither conveyed nor followed by
Sexton. As a plant guard primary responsibility for enforcement of the
policy would rest with Sexton and other similarly situated security per-
sonnel.
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working areas. t ° Accordingly, the nonaccess policy in-
volved here did not meet the standards of legitimacy set
forth in Tri-County Medical Center, supra . Based on the
foregoing, I find that Jones, by referring to Respondent's
nonaccess policy, albeit in a friendly conversation, in
which he might well' have expressed a lack of certainty
about the legitimate scope of Respondent's restrictions
on union activity, did on balance, at least by implication,
communicate a restriction violative of Section 8(a)(1) of
the Act.
In contrast with the foregoing, the complaint also al-
leges that Respondent violated Section 8(a)(1) by its
having "discriminatorily permitted and encouraged its
employees to distribute anti-union insignia during work
time and work areas." In support of the foregoing, coun-
sel for the General Counsel adduced testimony that four
employees, Betty Holloway, Donna Tiger, Tim Holo-
man, and Valerie Bullington , distributed antiunion para-
phernalia to fellow employees in working areas during
worktime. In this regard, there is neither evidence nor
claim that any of these employees were supervisors or
agents of the Respondent. A suggestion does appear that
with respect to two instances, the activity involved was
condoned by supervisors. Thus, there was testimony by
Landus Waters that he observed Holloway and Tiger
distributing "Vote No" stickers on one occasion and that
Earl Hornaday, a supervisor, simply smiled as Holloway
passed him. Further, both Waters and James Watkins tes-
tified that they observed Foreman Dave Lockwood re-
lieve Holoman on his "towmotor" whereupon Holoman
proceeded to distribute "Vote No" T-shirts in a working
area during working time. Other than the vagaries appar-
ent in the foregoing, there is no evidence whatever that
Respondent initiated antiunion activity or that the latter
was anything other than a spontaneous effort to broaden
the antiunion view held by certain employees. The ques-
tion presented here is whether the employer's failure to
restrict activity by antiunion employees on working time
and in working areas gives rise to an unfair labor prac-
tice. Counsel for the General Counsel cites no precedent
that such is the case. Section 7 protects the right of em-
ployees to engage in union activity to no greater extent
then it protects their right to refrain therefrom. To find
an unfair labor practice based on an employee's failure to
discipline such antiunion employees might raise grave
questions under Section 7 and also with respect to basic
employer prerogatives. Precedent fails to reveal an incli-
nation on the Board's part to delve in these areas. Al-
though the Board has dealt with an employer's knowing
10 The sole testimony about the basic justification for the policy was
that of Freed to the effect that about 20 years ago an employee who was
off duty, returned to plant premises and was injured, The Company filed
a claim with its liability insurance carrier and , although Freed acknowl-
edged that the claim was accepted , he went on to relate that "the insur-
ance company kinda frowned on the fact that the employees not working
... were permitted to come back to the plant at will ." Such consider-
ations do not warrant the impediment to Sec . 7 rights of employees in-
volved here . The fact that access of nonworking persons increases poten-
tial liability proves too much , and lacks the specialty requisite to a relax-
ation of Sec . 7. Respondent 's basic justification would afford a universal
intrusion on such employee rights, for, it is difficult to conceive of an
industrial plant or facility which would not sustain enhanced potential for
liability when any person enters its property.
condonation of employee distribution of antiunion litera-
ture during working time, such inaction was merely
deemed a predicate for other unfair labor practices and
was not found in itself to have violated Section 8( a)(1).
See Porta Systems Corp., 238 NLRB 192 (1978). Accord-
ingly, it is concluded that the Employer's failure to re-
strict or discipline antiunion employees engaged in an-
tiunion activity during working time impedes to no
greater extent Section 7 rights than its own use of work-
ing time to communicate antiunion views at captive
meetings or through supervisory appeals. I shall dismiss
the 8(a)(1) allegations in this regard. I t
2. The antiunion rally
Sue Ward is a secretary and receptionist in Respond-
ent's personnel department. An antiunion rally was
scheduled by certain employees for May 8. Two of the
alleged discriminatees herein, Inez and Debra Tornquist,
testified that on May 7, Sue Ward visited the desks of
various office personnel and approached them individual-
ly. Ward told them of the impending company rally and
that she was soliciting attendance among the girls in the
office because the Union was having a similar rally that
day. Both Tornquists testified that Ward carried a note
pad and ink pen, and Inez Tornquist testified that she ob-
served Ward making entries as she passed from desk to
desk.
Ward acknowledged that she asked all the girls in the
office if they would like to participate and claims that
she possessed a list so that she would not omit any of the
office personnel in the course of her endeavor. Although
she denied that a list was prepared as to who would and
would not attend, she somewhat reluctantly conceded
that later she informed Robert Blickenstaff, Respondent's
office manager, as to those who did not attend. t 2
Whatever the nature of her conduct, Respondent
strenuously argues that Ward was neither a supervisor
nor agent whose conduct could be binding on it. There
is merit in this view. Ward was simply a rank-and-file
member of Respondent's office staff, who was antiunion,
and who endeavored to enlist support of her coworkers
in an antiunion demonstration which was not shown by
credible primary evidence to have been inspired or initi-
ated by Respondent. t 2 It is my conclusion that the evi-
11 It is not entirely clear from the posthearing brief filed on behalf of
the General Counsel that this pattern of conduct remains a viable issue.
However, -because the General Counsel does not specifically indicate that
the matter be dropped from the complaint, it has been resolved on the
merits . In addition there is no evidence that the distribution of antiunion
materials was accomplished as a means by which Respondent's supervisor
or agents sought to gain knowledge of employee sentiment . Any alleged
8(a)(1) violation based on such a theory is dismissed to that extent.
12 It is entirely possible that Ward may have been mistaken as to
whom this disclosure was made . Blickenstaff testified that Ward did not
identify those attending or those not attending . On the other hand,
"Rusty" Harrison, Respondent 's secretary-treasurer, testified that Ward
identified this group to him.
13 The General Counsel in support of the claim that Ward authorized
to conduct a poll, cites testimony of the Tornquists that Ward told them
that she was instructed to conduct the inquiry . However, even disregard-
ing the hearsay nature of such testimony , the Tornquists ' do not disclose
that Ward identified the source of any such "instruction" and to specu-
late that it originated with a management representative is no more war-
ranted than a conclusion that she was asked to do this by employee spon-
sors of the rally.
HARRISON STEEL CASTINGS CO.
dence fails to establish that Ward was a supervisor or
agent and hence her conduct in connection with the rally
could not be attributed to Respondent. Accordingly, the
8(a)(1) allegations based on polling and management en-
couragement of antiunion activity insofar as based on the
foregoing shall be dismissed.
3. The Employer's campaign propaganda
The complaint alleges that Respondent, in communi-
cating its antiunion views, violated Section 8(a)(1)
through implied threats that employees could be dis-
charged in the event of a strike and that designation of a
union would "cause a curtailment of the employer's busi-
ness and resulting loss of employment for its employees."
Shortly before the May 10 election, Respondent dis-
tributed an edition of its newsletter, which was entitled
"Election Special" and included, among the points made,
the following:' 4
If you would be called out on strike by the Union
during contract negotiations, such a strike is called
an "economic" strike and all employees not report-
ing to work can be PERMANENTLY RE-
PLACED. A company can not fire employees for
striking but it can "permanently replace" them. Per-
manent replacements hired for strikers are allowed
by law to keep the striker's job even after the strike
ends. Thus, employees who go on strike and are re-
placed have no job to return to when the strike
ends."
The General Counsel contends that the foregoing consti-
tuted a "misstatement" of employee rights as economic
strikers and hence violated Section 8(a)(1) of the Act. In
this connection, the General Counsel correctly observes
that under Board policy, employer propaganda with re-
spect to the rights of strikers is carefully screened and
those who would embark on such discourse are charged
with the obligation to do so with accuracy. It is well set-
tled by virtue of the Laidlaw Corp., 171 NLRB 1366
(1968), that permanently replaced economic strikers nei-
ther lose their right to reinstatement nor status as em-
ployees on termination of the strike but must be recalled
as vacancies occur during the ensuing indefinite future,
absent substantial business justification.
Here, the statement published by Respondent argues
that those replaced when the strike ends, will have "no
job to return to when the strike ends," a reference ex-
pressed in terms conveying that on such eventuality, the
economic strikers will face termination, cutting off all
further rights. At best, from Respondent's point of view,
the reference was ambiguous. But as I understand Board
precedent, Respondent, having raised the issue, was obli-
gated to clearly articulate the continuing rights of the
strikers to reinstatement as well as their continuing status
as employees. Here, Respondent's explanation of the
rights of strikers was presented in a context of antiunion
propaganda calculated to convey the risks assumed in
union activity. I am convinced Respondent, in discussing
its own prerogative, created an ambiguity which could
14 See G .C. Exh. 5(b).
1165
lead employees reasonably to assume that they risked ter-
mination if they participated in and were replaced at
conclusion of an economic strike. As such, Respondent's
statement carried an implied threat of discharge, was not
protected by Section 8(c) of the Act, and violated Sec-
tion 8(a)(1).15
With respect of the alleged threat of job loss, counsel
for the General Counsel apparently relies both on docu-
mentation and campaign utterances of "Bus" Shoaf, Re-
spondent's chairman of the board, during captive audi-
ence meetings with employees during the period preced-
ing the election. Thus, an article appearing in the above
described newsletter, recited as follows:
Some of Harrison Steel Castings Company's com-
petitors are non-union and some are located in the
southern part of the United States where wage rates
are traditionally lower, and if we become union the
Company may become non-competitive with a re-
sulting loss of business and jobs. This loss of busi-
ness could come about through increased cost of
operation, not due to wage or benefit increases to
employees but rather due to the inherit increased
cost in operating a union plant. At union companies
much time is spent on grievance processing, con-
tract negotiations, and dealing with the Union,
which add to cost of operation, but do not put any
benefits in the employee's pocket.
In a union company there is the ever present pos-
sibility of a strike. Our customers rely upon depend-
able delivery of goods and services, and the risk of
a strike may force our customers into looking for al-
ternative suppliers, which could lead to a loss of
jobs at our plant. When you consider your vote for
or against a union examine that choice in terms of
your own personal best interests rather than what is
good for the employer.
In addition, in a letter distributed by the Respondent
to employees under date of May 1, the following ap-
pears:16
We have heard some talk about strikes where
there is a union in a plant. Everyone who reads the
papers knows that unions frequently have strikes.
The purpose of a strike is to cause production to
stop with the result that employees get no pay-
checks and the customers get no shipments or prod-
15 See, e .g., Olympic Medical Corp., 236 NLRB 1117, 1123 (1978);
Laredo Coca Cola Bottling Co., 241 NLRB 167 (1979). Cf. Care Inn, 202
NLRB 1065 (1973), in which the Board dismissed an 8(a)( 1) allegation in
circumstances where the employer informed employees of its "absolute
right to permanently replace each and every striker." Although that ref-
erence, as here, included no allusion to the Laidlaw rights of strikers, the
employer's remarks in Care Inn mentioned permanent replacement only
otherwise omitting reference to risk of job loss or termination. The vice
in the Respondent's propaganda is the failure to refer to Laidlaw guaran-
tees in the context of a statement in which employes were informed that
they would have "no job to return when the strike ends," a reference
which, whether simply a by-product of inartful draftmanship or by
design, was subject to an interpretation of final job elimination without
resurrection as vacancies occur during the poststrike period.
1a See G.C. Exh. 5(a).
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ucts. You know that on many of the things we ship
to Caterpillar we are Caterpillar's sole source for
the casting. Obviously, if a union struck Harrison
Steel, our relationship with Caterpillar would suffer.
No customer is going to stand by and continue to
give exclusive source orders to a supplier who has
strikes.
You should give thought to the likelihood of a
strike if a union gets in. You should also give
thought to the effect of a strike upon our relation-
ship with Caterpillar. If we lost Caterpillar business
because we were an unreliable source of supply,
employees would lose jobs and the Company and
the whole community would suffer.
In addition to the foregoing, the views expressed
therein were echoed by Shoaf in captive audience meet-
ings conducted among groups of 30 employees. These
sessions were held during the last days of April and the
first 3 days of May, prior to the election.' 7
Respondent, by way of defense, observes that the ele-
ments of its propaganda under interdict of the instant
complaints constituted lawful economic prediction based
on objective fact. In this connection, it is noted that Cat-
erpillar Tractor Company is Respondent's principal cus-
tomer. About 85 percent of Respondent's output goes to
Caterpillar. Kenneth Freed, Shoaf, and Richard Picl, a
management representative of Caterpillar Tractor Com-
pany, credibly testified to a meeting held in April shortly
after the inception of organization activity attended by
representatives of Caterpillar and Respondent. That
meeting involved a regular periodic review of Respond-
ent's operation and the ongoing relationship between the
two firms, and it was in the course thereof that Respond-
ent informed Caterpillar representatives of the pending
organization drive. Picl apprised Freed and Shoaf that, if
organized, a substantial difference would exist in the
manner in which Caterpillar did business with Respond-
ent. He pointed out that Caterpillar maintains certain
standard practices with respect to its organized employ-
ers, including stockpiling requirements1' and the use of
duplicate patterns.' 9
" Where conflict exists, I regard the testimony of Freed and Shoaf
about what was said on those occasions as more reliable than that afford-
ed by the General Counsel's witnesses, noting that the latter's testimony
afforded only minor, if not immaterial, differences.
19 Apparently, under Caterpillar's established practice, union suppliers
are required to produce a 1- to 3-month inventory within the 4- to 6-
month period preceding expiration of existing collective -bargaining
agreements. Of course, if a strike were averted, the stockpile created in
anticipation thereof, would necessarily be absorbed as against future
orders, with a corresponding cut in production. The stockpiling require-
ment was not compatible with Respondent 's output capability. Thus
Shoaf explained that the Company traditionally produced at 100 percent
of capacity to meet regular delivery commitments and, hence , the stock-
piling requirement would impose demands on Respondent 's productive
capacity which could not be met unless day-to-day output levels were re-
duced below 100 percent.
19 With respect to duplicate patterns, Picl informed that those patterns
held on exclusive basis by the Respondent would be placed in plants of
competitors. This meant that some orders would be drawn away from
Respondent and placed with the holder of the duplicate to defray the
competitor 's cost of maintaining a production capacity concerning such
patterns.
During the captive speeches, Shoaf informed the em-
ployees that the marketability of Respondent's castings
was based on three factors: price, quality, and delivery.
He noted that Respondent maintained a good reputation
for delivery and that its history was free of work disrup-
tion or strike. With respect to price, Shoaf observed that
under a union contract prices would necessarily be in-
creased, in view of the cost of maintaining restrictive
work rules, the need to hire attorneys, the cost of bar-
gaining, and the cost of a complicated grievance proce-
dure. He indicated that there was a possibility that qual-
ity might suffer in that with union representation a
wedge might be driven between management, which had
been developed from within the ranks, and the workers.
Shoaf argued that Respondent's open-door policy was
more advantageous to employees than the complex
grievance system under a union contract. Shoaf closed
by saying that the employees would be making a mistake
by gambling their future on union promises, that the
Company got along pretty well in the past without a
union, and that the Union was simply after the money of
the employees.
Shoaf acknowledged that in delivering these speeches,
he held the opinion that Caterpillar work would be lost
if the Union won the election. Although there is no indi-
cation in Shoafs testimony to this effect, Freed testified
that Shoaf mentioned or at least implied that there was a
possibility that a loss of jobs and loss of work could
result due to a decline in the competitive posture of the
Company if a union were designated.
On the credible facts, the issue turns on whether Re-
spondent's threat of job loss in its campaign propaganda
violated Section 8(a)(1). The references were not shown
to have been expressed with any degree of definiteness,
but only in terms of the possible. They were justified on
the basis of a combination of logical argument and objec-
tive fact. The references to the increased cost of adminis-
tering a collective-bargaining agreement and the impact
thereof on price structures was not lacking in realistic
foundation. At the same time, the credited evidence as to
Caterpillar's established practice with respect to union
suppliers, with respect to duplicate patterns and stockpil-
ing were demonstrable facts, offering strong suggestion
that Respondent would not be in a position to furnish its
principal customer tonnage at the same levels that exist-
ed before to union organization.
Nonetheless, the employer's right pursuant to Section
8(c) of the Act, to refer to the possibility of job disloca-
tion as a result of unionization has been narrowly cir-
cumscribed. In NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), such references are permissible so long as "care-
fully phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control." "If there is any implication
that an employer may or may not take action solely on
his initiative for reasons unrelated to economic necessi-
ties and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and coer-
cion . . .." Ibid. The Court went on to indicate that
"the employer's belief, even though sincere, that union-
HARRISON STEEL CASTINGS CO. 1167
ization will or may result in the closing of the plant is
not a statement of fact unless, which is most improbable,
the eventually of closing is capable of proof." Id. at 618-
619. Consistent with the foregoing, the Board has ac-
knowledged "the employer's right to discuss freely and
frankly its views concerning unions, strikes, collective
bargaining, plant closure, and any other topics it consid-
ers important." At the same time, however, this right
must be balanced as against that of employees "to associ-
ate freely and express their desires in an atmosphere free
from fear and futility."20 -
These principles focus on the question of whether the
entirety of a campaign material conveyed to the employ-
ees, either directly or by implication, that Respondent
held an inclination or propensity beyond economic ne-
cessity to bring about the very adverse consequences re-
ferred to.2 t Such an interpretation is not dispelled on the
face of the propaganda under consideration here. The
reference to a possible loss of jobs was offered in a con-
text under circumstances suggesting that incumbent em-
ployees could lose work were they to designate the
Union. Yet, such an insinuation was not justified by de-
monstrable economic fact. Although I have no quarrel
with the logic of Respondent's argumentation that col-
lective bargaining costs money and that Caterpillar's
practice with respect to union suppliers could well result
in less tonnage, neither considered separately nor in com-
bination, persuasively supported the implication that
those whose choice it was in the impending election
would bear the consequences. 'Respondent's profitability
is an admitted fact. In 1978 and 1979, it is a fair estimate
that turnover in its work force ranged between 60-90
percent annually.22 At best, Respondent's argumentation
would support prospective shrinkage in the overall job
force, and in the light of Respondent's turnover history,
that burden would fall on future jobseekers. Thus, by at-
tempting to impress incumbent employees with a possi-
bility of job loss, Respondent went beyond demonstrable
fact to influence rejection of the Union on job security
issues constituting no threat to them, unless that is, Re-
spondent elected to take discretionary action in the form
of reprisal. In sum, although the supporting argumenta-
tion logically pointed to the possibility of impaired earn-
ings and even perhaps an ultimate reduction in job op-
portunity for future applicants, no assumption is warrant-
ed that those to whom the propaganda was addressed
had direct cause for alarm either through increased costs
due to collective bargaining, the policies of Caterpillar
pertaining to union suppliers, or other arguments raised
on objective fact. On balance, I find that the references
to possible job loss implied that those voting in the elec-
tion were on the verge of assuming a risk which was not
substantiated by "demonstrably probable consequences
beyond . . . [Respondent's] control." Accordingly, I find
that Respondent thereby violated Section 8(a)(1) of the
20 W. A. Krueger Co., 224 NLRB 1066, 1069 (1976).
21 Ibid.; Hanover House Industries, 233 NLRB 164 (1977); and Mohawk
& Bedding Co., 216 NLRB 126, 128 (1975).
22 According to R. Exh. 11, 904 employees terminated through dis-
charge, quit, or retirement R. Exh. 12 shows that 904 employees left the
Company's employ for those reasons.
Act. See, e.g., Ludwig Motor Corp., 222 NLRB 635, 636
(1976); Jamaica Towing, 236 NLRB 1700 (1978).
4. Conduct attributed to alleged or admitted
supervisors.
a. By John Grammar
The complaint alleges that on Sunday, May 6, John
Grammar engaged in surveillance of a union meeting
conducted at the Lion's Club building in a recreational
park within the township of Attica. Grammar was identi-
fied by employee witnesses for the General Counsel,
Dan Watkins, David Roach, and Tom Lambka, as
having been observed driving a pickup truck during the
union meeting, slowly passing the Lion's Club several
times. Grammar testified that Ravine Park was within his
regular route between the plant and his residence, and
that he drove past the Lion's Club building at least four
times daily, including twice during his lunchbreak. As
Grammar could not recall observing an occasion on
which cars were parked outside the Lion's Club in a
manner suggesting a meeting, he in effect denies that he
at any time engaged in the surveillance complained of
here.
The conflict need not be resolved, for merit is found in
Respondent's contention that Grammar was neither a su-
pervisor nor agent. At the time of the incident in ques-
tion, Grammar was employed as an instructor in Re-
spondent's welding school. There is no evidence that, in
such capacity, Grammar possessed or exercised any indi-
cia of supervisory authority. Although he wore a white
hat, as did Respondent's other supervisors, credible testi-
mony existed to the effect that rank-and-file employees
also wore white hats and it does not appear that Re-
spondent enforced any requirement that members of the
work force honor any such color code. Accordingly, I
find that the General Counsel has failed to establish by a
preponderance of the evidence that Respondent violated
Section 8(a)(1) on the basis of Grammar's alleged con-
duct.
b. By Lawrence Pearson
Pearson, an admitted supervisor, was foreman of the
"Pep Set" crew, a group of employees who worked in
the south core room. Certain members of his crew,
namely Lambka, Van Laere, and Roach, attended a
union meeting on Saturday, April 7, held at the Wil-
liamsport Fair grounds. Apparently, on that occasion,
union buttons were distributed. On April 9, Mitton, also
a member of the "Pep Set" crew, joined Van Laere,
Lambka, and Roach, who wore union buttons to work.
Testimony adduced on behalf of the General Counsel is
to the effect that Pearson, in two separate incidents, first,
while dining with Van Laere and her husband, and
again , at the work area, told _ the Van Laeres, Lambka,
and Roach that if he were in their shoes, he would not
display prounion support because if the Union got in, no
matter how long it took, Respondent would eliminate the
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prounion employees at the first opportunity.23 Based on
the credited testimony that such a statement was made,
even assuming that it was made among friends and in the
form of an opinion held by Pearson, it nonetheless was a
coercive declaration by an acknowledged supervisor
who professed to speak from knowledge gained in the
past. As such, the statement violated Section 8(a)(1). I so
find.
c. Art Fletcher
Fletcher was Respondent's chief inspector. The com-
plaint alleges that Respondent violated Section 8(a)(1) by
Fletcher's having engaged in coercive interrogation as
well as his having promised economic benefits to induce
them to refrain from becoming or remaining members of
the Union. With respect to the promise of benefits, the
matter is not briefed by the General Counsel, and my
own independent review of the record discloses no evi-
dence that Fletcher made any remarks subject to any
such construction. This 8(a)(1) allegation shall be dis-
missed.
The allegation of interrogation relates to a confronta-
tion between Fletcher and employee Oscar Branson. Ap-
parently, in mid-April, Branson, while working, wore a
pencilholder bearing a UAW insignia. Fletcher ap-
proached him and, according to Branson, asked why the
letter wore the pencilholder. According to Fletcher,
who admits to the incident, he simply asked Branson
whether "the Company had done anything to offend
him." The conversation ended when Branson indicated
that it was his privilege, to wear union insignia , and ex-
pressed that he was tired of people asking him about the
Union in one fashion or another. Branson admitted that
Fletcher told him that he did not blame Branson for sup-
porting the Union because he "would want to know
what was going on too." According to Branson, after
Fletcher indicated that he was "not suppose to be talking
. .. at all about this," Branson injected "I think it is a
man's right to vote any way he wants." Fletcher testi-
fied, and there is no indication otherwise, that this was
the only conversation he had with Branson concerning
the Union. Branson described his relationship with
Fletcher as friendly.24
There is no question that, in many instances, inquiry
about the reasons for union support provide a means by
which management representatives discern employee
sympathy and hence constitute unlawful interrogation.
That rationale for finding an 8(a)(1) violation in this in-
stance fails to apply. Where, as here, the employee in-
volved has openly manifested union support and the inci-
dent is isolated, occurs in a friendly context and under
circumstances lacking any suggestion of harassment, I
can think of no conceivable, unprivileged ground for
concluding that a supervisor had exceeded statutory
23 Pearson, who denied making any such statement, obviously had a
limited capacity for recall. I prefer the more persuasive testimony in this
respect of Edda Van Laere and Lambka.
24 It was my impression that Branson's description of this conversation
on direct examination by the General Counsel tended to portray the
event as more fractious than what actually transpired. I prefer the facts
elicited on cross-examination by counsel for the Respondent, as well as
the version offered by Fletcher.
bounds by so trival an act. Although I am bound to
follow Board precedent, and have not overlooked the
recent decision in PPG Industries, 251 NLRB 1146
(1980), that holding is not viewed by to reach a single
apparently spontaneous inquiry in a friendly discussion,
not shown to be linked to a broader pattern of interroga-
tion. I find that Fletcher's inquiry did not in the particu-
lar circumstances involved amount to proscribed interro-
gation and the 8(a)(1) allegation based thereon shall be
dismissed.2 5
d. By Robert Crawford
Crawford, as Respondent's employment director, is en-
trusted with primary responsibility for all hiring. Appar-
ently, prior to the election the brother of Oscar Branson;
namely, Alonzo Branson Jr., was seeking work in the
Attica area. Ethel Branson, Oscar's wife, accompanied
Alonzo Branson to Crawford's office for that purpose
just before the election. According to her testimony, as
Alonzo completed an application, Crawford indicated
that the Respondent was not hiring at the time. Howev-
er, when Ethel Branson indicated that she had previous-
ly talked to Kenny Freed, who advised her to bring
Alonzo in to fill out an application, Crawford repeated
that they were not hiring, but added that "If Oscar
would go along with us, we know [sic] more about what
to do with his brother."
Crawford acknowledged that Alonzo Branson, in the
company of Ethel Branson, appeared at his office and
completed an employment application, but he claimed
that he simply told Alonzo Branson that the Company
was not hiring and that Branson should check back occa-
sionally to see if an opening existed. Crawford denied
that anything was said concerning the outcome of the
election, or that Alonzo Branson's job opportunity de-
pended on his brother's position concerning the Union.
I prefer the testimony of Crawford. Although Ethel
Branson may well have suspected or held the view that
her brother-in-law's job opportunities may have been in-
fluenced by her husband's support of the Union, I did
not believe that any such possibility was communicated
by Crawford. Accordingly, I find that the General
Counsel's assertion that Crawford made any statements
violative of Section 8(a)(1) to be unsubstantiated by cred-
ible proof.
e. By David Lockwood
An allegation which imputes a threat to Lockwood, a
foreman and an admitted supervisor, was substantiated
by employees Landus, Waters, and James Watkins, fin-
ishers in Respondent's south foundry. According to their
testimony, in mid-April as they were discussing the long
hours they had been required to work and the fact that
things might be different if union were victorious, Lock-
wood' walked by and, apparently having overheard the
conversation, interjected "You'd better get all the times
you can in, if it goes in, we may all be laid off." Lock-
wood was not called by the Respondent and the testimo-
21 See Federal Paper Board, 206 NLRB 681 (1973). Cl. ITT Automotive
Electrical Products, 231 NLRB 878 (1977).
HARRISON STEEL CASTINGS CO. 1169
ny of the witnesses offered by counsel for the General
Counsel stands uncontradicted. Based thereon, I find that
such a statement by an acknowledged supervisor consti-
tuted a coercive threat of reprisal violative of Sec.
8(a)(1) of the Act.
routine. Accordingly, I find that the General Counsel
has not established that Gustus was a supervisor or
agent, and hence any misconduct on his part was not at-
tributable to the Respondent. The 8(a)(1) violation based
thereon shall be dismissed.
f. By Tom Gustus
The complaint alleged that Respondent violated the
Act on the basis of a threat of unspecified reprisal by
Gustus. The evidence offered in substantiation of this al-
legation was offered through James Watkins, who testi-
fied that Gustus approached him toward the end of
April, tore a union button from his jacket, and stated,
"You are not allowed to wear them down here." Wat-
kins admonished Gustus that if he were ever to do that
again , Watkins would "bust" him the nose, whereupon
Gustus removed himself from the scene.
Apart from denying that Gustus' conduct was unlaw-
ful, Respondent argues that it was not binding on the Re-
spondent. There is merit in this assertion. At times mate-
rial to the instant allegation, Gustus was a mold finisher
on a "jolt machine" in the south foundry. The south
foundry was under the general supervision of Earl Hor-
naday, the general foreman. There were two foremen
under Hornaday: Bill Kirkman and Dave Lockwood,
who were responsible for directing the three jolt ma-
chine crews of 11 men each in the south foundry. Each
jolt machine is operated by a crew, including five mold
finishers, with two mold finishers "A," two mold finish-
ers "B ," and one helper. Gustus was a mold finisher
"A," the highest rated classification on the jolt machine.
His crew included Eddie Whitehead, who occupied the
same position as Gustus. I am not convinced that either
Gustus or Whitehead, or others similarly situated, pos-
sessed supervisory authority in connection with the other
eight members of the jolt machine crew. They worked
with the crew to assure that a quality mold was pro-
duced, and shared in the piece rate incentive available on
a group basis if the entire crew's output exceeded estab-
lished production standards. There is no evidence that
either possessed or exercised classic indicia of superviso-
ry authority. In my opinion, their responsibility for a
quality product, together with the fact that Gustus com-
pleted timecards for the entire crew, a function which on
this record was viewed as no more than ministerial, in-
volved no independent discretion.26 This, together with
the fact that they trained new employees, in my opinion,
shows no more than that Gustus was a nonsupervisory
leadman, who worked with other lower-rated finishers
regularly, and who served his employer as an experi-
enced employee only directing the work to the extent
that his years of experience reduced that function to the
251 discredit the testimony of James Watkins that the mold finisher
"A" had the right under any circumstances to determine which members
of a crew were eligible to participate in piece rates or had any authority
to otherwise effect earnings . I also find that those occupying the classifi-
cation head finisher or mold finisher "A" were not empowered to effect
transfers between machines, or within a machine . I find that in the event
of a vacancy within a crew , the manning was the responsibility of front-
line supervision , and that , in the event that it was determined that a ma-
chine would be operated short, the men would simply move up with no
independent discretion exercised by any member of the crew in connec-
tion with their utilization.
g. By Tom Campbell
Tom Campbell was the first-shift foreman in charge of
maintenance. The complaint charges that Respondent
violated Section 8(a)(1) through Campbell's unlawful
questioning of maintenance electrician Dan Watkins and
by creating the impression that Watkins' union activity
was subject to surveillance. The evidence in this respect
shows that Watkins, Tom Campbell, and the latter's
brother, Grant Campbell, also a maintenance electrician,
frequently and on an informal basis drank coffee during
the early morning hours on a regular basis, discussing
various events, including the Union. At the end of one
such conversation on April 7, according to the testimony
of Dan Watkins, Tom Campbell asked the former if he
had planned to attend the union meeting that day. Wat-
kins responded in the affirmative. The following
Monday, Watkins was asked by Tom Campbell if he had
in fact attended the meeting. Watkins indicated that he
had, whereupon Campbell indicated that he had heard
that the Union had promised employees a $2-an-hour in-
crease were they to win the election.
Watkins also testified to a conversation in late April
with Campbell, wherein Watkins was expressing second
thoughts concerning his union support. According to
Watkins, in the course of that conversation, Campbell in-
dicated that the Company knew all they needed to know
about Watkins' union activity. Watkins claimed to have
sought clarification, whereupon Campbell responded,
"Well, we know that you were up at Wheeler's Restau-
rant and met the UAW people . . . . And then after that
meeting . . . you went up to the Short Stop Restaurant
and you were there until almost till the time that they
closed."
Watkins was the initial contact, and one of the chief
protagonists of the Union. At the time of this incident,
he had openly manifested his support of the Union. He
conceded that conversations of this type were held on an
almost daily basis, that the pros and cons of the Union
were discussed often, and that the union references were
often initiated by himself. He admitted to a cordial rela-
tionship with Campbell and that at times he enjoyed the
conversations concerning the Union.
Campbell denied ever initiating the subject for the
Union during these conversations with Watkins. He
claimed that he at no time questioned Watkins about his
intention regarding union,meetings or asked if he had at-
tended. Campbell denied that he had mentioned that the
Union was promising a $2-increase, claiming instead that
Watkins told him that this was so. Finally, Campbell
denied having ever told Watkins that the Company knew
all about his union activity, or that the Company knew
that Watkins had met with union officials at two bars in
Williamsport. I credit Campbell. As heretofore indicated,
Dan Watkins was an unpersuasive witness. Accordingly,
the credible facts do not substantiate that Watkins was
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
questioned concerning his union activity or that informa-
tion was brought to his attention by Campbell implying
that his or union activity in general was subject to man-
agement surveillance. The 8(a)(1) allegations based there-
on shall be dismissed.
h. By Kenny Freed
As indicated, Freed was Respondent's president. The
allegations that Respondent violated Section 8(a)(1)
through Freed are based on the uncorroborated testimo-
ny of Dan Watkins and relate to a meeting held in late
April at the latter's behest. Watkins was one of the first,
if not the first, employee volunteering to actively cam-
paign for the UAW. He solicited union authorization
cards and on several occasions was engaged in handbill-
ing of union literature at the plant gates. In late April,
according to Watkins' testimony, he informed Tom
Campbell that on certain issues he did not agree with the
Union. According to Watkins, Campbell asked if he was
changing sides, to which, Watkins replied, "Well, I
really wouldn't say changing but I do have my doubts
I have my questions . . . the Company has not yet
come out with anything dramatic in presenting their
view." Watkins went on to state that he wished to hear
both sides of the story before making up his mind as to
which way to vote. According to Watkins, Campbell
then asked if Watkins wished to talk to Kenny Freed,
volunteering to set up an appointment if Watkins wished.
According to Watkins, after he indicated that Freed
probably would not agree to talk to him, the conversa-
tion shifted, whereupon Campbell again told Watkins
that he could arrange an appointment with Freed. Wat-
kins claims that he again turned down the opportunity.
Watkins initially testified that he opened the conversa-
tion with Campbell for two reasons: (1) because certain
individuals who had manifested union support had been
discharged and he was worried about the vote, and (2)
because he had read the UAW constitution and had
found things that he took offense to. He claims that after
this conversation with Campbell, he thought about what
Campbell had said and, because so many people had
been discharged at that time, he decided to call Freed
and arrange an appointment.27 When the meeting took
place, Shoaf, at Freed's insistence, also attended. Watkins
took the occasion to announce that "this is going to be
something of soul cleansing session." He indicated that
27 It was in the course of this conversation that , according to Watkins,
Campbell made statements that the Company knew all they needed to
know about what Watkins was doing in connection with the Union, and
that the Company knew that he had met with union officials at certain
bars in Williamsport . I have heretofore discredited this testimony. It is
noted that in connection with the immediate conversation, Campbell,
who obviously lacked recall about the specifics , testified to the effect that
it was his recollection that Watkins had requested a meeting with Kenny
Freed , that Campbell did not suggest any such meeting, and that with
respect to Watkins' request , he simply suggested that Watkins "call him
up." Here again , I accept the testimony of Campbell. Noting that aspects
of Watkins ' account of the immediate conversation with Campbell under
scrutiny here, simply did not ring true . I believe that it was Watkins who
requested the meeting with Freed and that Campbell's reaction was
closer to indifference than the zealous encouragement which Watkins at-
tributes to him . Also unlcear is why, if Watkins had reservations about
whether Freed would meet with him, he chose not to have Campbell ar-
range the meeting , but elected to call Freed himself.
he possessed the UAW constitution and that he would
like to review it and voice his objections to its content.
Freed agreed. The page-by-page review of the UAW
constitution proceeded, with Watkins indicating areas in
which he had reservations. At one point Watkins indicat-
ed that he could work with or without a union. Finally,
Freed asked Watkins if Freed could present the Compa-
ny's view on the issue of union representation. Watkins
indicated that he would appreciate it because "the Com-
pany hasn't presented their view yet." According to
Watkins, Freed indicated, inter alia, "we employ about
1,000 employees and we've had several elections in the
past . . . it always hurts our business . . . you lose good
people over a union campaign . . . it hurts produc-
tion."28 According to Watkins, after Freed summarized
the argumentation, which subsequently appeared in com-
pany propaganda, he observed to Freed that some em-
ployees that had attended the April 7 union meeting
were caught up in initial enthusiasm and had now
changed their minds and that these employees, who had
worn union buttons in the past, would like to know how
they could get a message to the Company "that they
were no longer committed votes to the Union." Watkins
mentioned a specific name , and Freed indicated, "Well, if
that fellow is truly changing his mind or now has doubts,
all he need do . . . is to take that button off or that stick-
er or whatever he had . . . . Take it to his foreman,
hand it into his hand, and tell his foreman that this is to
be given to Mr. Freed." With this the meeting closed.
Even on Watkins account, nothing in his testimony
substantiates the allegation that he was a victim of un-
lawful interrogation in this meeting . The only inquiry on
the part of Freed was made after Watkins had expressed
his reservations concerning the Union, and far from rep-
resenting a collateral probing of union activity was an in-
herent element of dialogue conceived, initiated, and con-
ducted to that point by the employee. The question im-
puted to Freed by Watkins was no more coercive than
the agreement of Freed to meet, and the. 8(a)(1) allega-
tion in this respect shall be dismissed.
Freed acknowledged that after Dan Watkins had made
it clear that he was having a change of heart, Watkins
implied that one of his friends had also had a change of
heart but that he had been wearing a union button and
his friend did not know what to do. Freed admitted that
he volunteered "that if it was me and I wanted my fore-
man to know that I had had a change of heart, I'd take
the button and give it to him and tell him." Freed denied
telling Watkins that employees give their buttons to the
foreman and direct him to turn them over to either
Freed, Lee, or Shoaf. Although, in other areas, Freed
impressed as thoroughly incredible, here, I prefer his tes-
timony, which in substantial part was corroborated by
Shoaf, over that of Watkins.
Freed's testimony does not confirm the 8( a)(1) allega-
tion that he "solicited . . . employees to abandon the
28 This reference is not alleged to have been unlawful. Freed testified
that he could not recall making the statement to Watkins , but indicates
that he had done so to others . He credibly testified that this was a mere
reference to the fact that in the past, the divisiveness and hard feelings
created in union campaigns resulted in good men quitting.
HARRISON STEEL CASTINGS CO.
Union ." It does, however, admit that he suggested that,
if so inclined , employees "give evidence that they had
abandoned the Union by removing their union insignia
and turn . . . it in to their supervisor ." On balance, al-
though Freed's advice was obviously and uncontroverti-
bly solicited by Watkins , it nonetheless violated the Act.
Statements by employers which on their face are coer-
cive are not always to be lightly regarded simply be-
cause inspired by the solicitations of a concerned em-
ployee . The suggestion made by Freed plainly implied
that those union buttons had cause for alarm . Although
the unlawful conduct was made in response to specific
employee inquiry , it was coercive , and tended to confirm
that those who overtly manifested union support could
evade some unknown jeopardy by confessing to a
change of mind and furnishing evidence thereof to a su-
pervisor . In this respect , Respondent violated Section
8(a)(1) of the Act.
D. The Alleged Discrimination
1. Impaired conditions of work
a. Dan Watkins
It is claimed that during the preelection period, Re-
spondent discriminated with respect to Danny Watkins
in two respects . It is first alleged that on or about April
14, 1979 , he was restricted to his shop area . Further, it is
alleged that on or about that same date, Respondent cur-
tailed his hours of work and those of a coworker, Grant
Campbell.
The General Counsel apparently contends that in mid-
April Foreman Jones altered Watkins' working condi-
tions by "restricting his physical mobility to the mainte-
nance shop during non-work time ." It will be recalled
that Watkins was known to be among the leading union
protagonists , if not their leader . Also, as heretofore indi-
cated , Watkins, as a maintenance electrician , did not
have regular preassigned duties but worked on an on-call
basis. During his considerable downtime , he was free to
do as he pleased , provided that he remained available for
work . The claimed discrimination here rests on Watkins'
version of a previously considered conversation with
Foreman Jack Jones in which Jones allegedly unlawfully
restricted Watkins opportunity to discuss the Union
during his nonworking time. Watkins claims that in that
conversation Jones told him that "he did not want me to
go to the break room or the shower room , to the shower
house , the restroom there, or any other non-work areas
because I was still on the clock . . . and if I was over
there, he knew me and that I like to talk and that I
would be talking to people who were there on their
break and the subject would come up and I shouldn't be
doing it ." According to Watkins , he then asked Jones if
he could go to the bathroom, to which Jones allegedly
responded , "Well, sure but come right back ." According
to Jones, he at no time imposed a restriction on Watkins
different from that applied to all maintenance electri-
cians. Thus, maintenance electricians are free to do as
they wish and generally to go where they please as long
as they make their whereabouts known so as to be avail-
able for work . Based on my previously expressed misgiv-
1171
ings as to the trustworthiness of. Watkins , I find that sub-
stantial credible evidence does not substantiate that he
was in this instance restricted to his work station under
conditions violative of Section 8(a)(3) and ( 1) of the Act.
The charge that Watkins and Grant Campbell were
the object of discrimination in terms of their working
hours is based on conduct attributed to the day-shift
maintenance foreman , Tom Campbell . Grant Campbell,
the brother of Tom Campbell , like Watkins was a
second -shift electrician . Their normal hours were from
11 p.m. to 7 a . m. They received premium pay for over-
time , and prior to the union campaign until some time in
April , according to the testimony of Watkins , both had
reported for work from 1 to 2 hours before their sched-
uled shift and earned additional overtime at time and a
half in consequence.
At some time in early April , according to testimony of
Watkins, Tom Campbell was reviewing timecards in the
foreman shack . Watkins and Grant Campbell were
nearby on a break . According to Watkins , Tom Camp-
bell addressed them , stating , "by the way , boys, you're
going to have to cut back on your hours ," while adding
"it's not my doing ." Grant Campbell reacted in protest
stating , "Well, it had better apply to everybody else.. .
[T]here's other electricians on these other shifts coming
in 2 hours early and getting 2 hours overtime every
night ." Tom Campbell then said that while the men
could not come in at 9:30 p .m. anymore , they could
report at 10 : 30, assuring half an hour of overtime. Grant
Campbell continued to express dissatisfaction whereupon
Tom Campbell indicated that they could report shortly
before 10:30. The conversation ended with Grant Camp-
bell stating , "Well, all right , but this better apply to all
the rest."
Watkins related that he and Grant Campbell had been
reporting to work from 9:30 to 11 p.m. for the entire 2
years of his employment in the maintenance department,
and never before had they been instructed to cut down
on their overtime.29
Tom Campbell testified that during the period around
Easter , he told Watkins and Grant Campbell that "I
thought they were hitting the cards a little bit too quick
. .. if there was work to be done, they was to do it yes
... but they wasn 't really suppose to do it unless their
was' work to be done." Campbell testified that there was
not as much work for the electricians on night at the
time, and he felt it was necessary to slow them down.
He agreed that he told them that they should clock in
about 10 : 30 p.m.
I am convinced that Tom Campbell 's action in this re-
spect was founded on legitimate considerations unrelated
to union activity . Respondent produced in evidence the
timecards of both Watkins and Grant Campbell covering
29 Watkin 's own testimony suggest that the maintenance electricians
did not observe this instruction religiously . For he testified to a subse-
quent conversation with Tom Campbell , in which Watkins and Grant
Campbell were warned that they were coming in early again. And on
cross-examination , Watkins acknowledged that he only followed Tom
Campbell 's instruction "at times ." Indeed , timecards in evidence reveal
that on April 21, Watkins clocked in at 9:54 p.m. and that on several oc-
casions between the conversation with Campbell and the election, he re-
ported to work substantially before 10:30 p.m.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the period March 25 through May 25, inclusive.30 Two
items of significance are revealed therein . First , the time-
cards show that neither Watkins nor Grant Campbell
suffered a significant impairment in overtime hours after
the "instruction" by Tom Campbell, than is reflected in
the pattern of their overtime during the 3 weeks prior to
the alleged instruction. Second, those timecards, together
with Watkins' own testimony, reveal that it was Grant
Campbell who had the greatest cause for offense at his
brother's attempt to delay their starting time, for it was
Grant Campbell who prior to April 13, frequently
punched in prior to 10 p.m. Thus, except for April 13,
Watkins during the period since March 25, had not
punched in earlier than 10 p.m. and indeed had punched
in earlier than 10 :30 on only five occasions . Grant Camp-
bell, on the other hand, during the corresponding period
had punched in prior to 10 p.m. on five occasions, and
had punched in prior to 10:30 p.m. on 10 other working
days. Thus all objective evidence points to the fact that
Grant Campbell was the principal offender of overtime
privileges, and that Tom Campbell's remark on or about
April 13, would have its most telling effect on him. Yet,
there is no evidence that Grant Campbell manifested sup-
port of the Union in any fashion, and Tom Campbell tes-
tified believably that to his knowledge, his brother did
not support the Union. In the circumstances, no reasona-
ble 'inference is warranted that Tom Campbell took a
step, detrimental in the main to his brother, in order to
perfect a union-related reprisal against Watkins. The
8(a)(3) and ( 1) allegation shall be dismissed.
b. Michael Van Laere
It is alleged that Respondent violated Section 8(a)(3)
by, in mid-April, restricting Michael Van Laere to his
work station. Van Laere, an overhead crane operator on
the day shift, was an active proponent of the Union,
having signed an authorization card, attended union
meetings, and distributed authorization cards. Prior to
the alleged discrimination against him, he wore a button
identifying him as a member of the organization commit-
tee while at work. In mid-April, Van Laere was assigned
the position of full-time operator of a "shake out crane"
located in the south foundry. Previously, Van Laere had
been a relief operator, a job which required him to pro-
vide breaks to crane men. While serving in that capacity,
Van Laere had the run of the plant, enabling him to
roam around to observe who needed a break. However,
about the third week in April, after his assignment to the
shakeout crane, according to Van Laere, his foreman,
Jim Stonebreaker, as Van Laere was returning to his
crane after taking a break, told him that "beginning that
day, I was not to get out of my crane at all, only for
break or restroon." According to Van Laere, prior to
this he had always spent his free time "moseying"
around and doing nothing.31
so The record indicates that the conversation under scrutiny here oc-
curred on April 13.
a' According to Van Laere, he abided by the instruction until the
week of the election , when he was transferred to a jolt crane which has
virtually no downtime. Later, after Van Laere was transferred to a heat
crane which had considerable downtime, Van Laere returned to his old
habits and was not called down for doing so.
Following the encounter with Stonebreaker, Van
Laere testified that he had a conversation with Foundry
Superintendent Dean Hughes, in which the former in-
quired as to why he had to stay in the crane when
nobody else had to. Hughes indicated that it was a rule
that he had wished to put into effect for a long time and
that this was as good a time as any and that he did not
want Van Laere bothering Van Laere's wife anymore
while she was driving a forklift.32 According to Van
Laere, he asked Hughes if this had anything to do with
the fact that he wore a union button and Hughes angrily
denied that that was the case, expressing that he was
tired of hearing such insinuations. Hughes indicated that
the rule would be enforced with respect to all crane-
men.33 Van Laere also testified that possibly within the
same week as his first conversation with Stonebreaker,
he had another with Stonebreaker in which the latter
opined that the restriction was very unfair and that Van
Laere could come down but he was on his own and
Stonebreaker would admit to knowing nothing about it.
Respondent concedes that many crane operators are
subject to extensive periods of downtime during their
working day. However, according to the credited testi-
mony of Assistant Foundry Superintendent Cecil Hollis,
operators are to remain in the vicinity of the crane so as
to be available when work is to be performed. Hollis tes-
tified because crane operators do not wear hardhats,
safety considerations require that they stay in the crane.
Hollis claimed that he ordinarily would instruct foremen
to tell operators to get back up on the crane if he ob-
served them on the floor. More specifically, Hollis testi-
fied to several occasions dating back to 1978, in which
he had difficulty locating Van Laere while in need of an
operator, adding he many times told Van Laere to stay
in the crane area and if he did not have safety equipment
to stay in the crane. He testified that again in April when
he sought to transfer Van Laere to another crane, he
could not find him, and instructed Stonebreaker to do so.
Stonebreaker ultimately located Van Laere in the fur-
nace department. When Van Laere returned, Hollis told
Stonebreaker to get Van Laere "to get in the crane and
stay there." He denied that this instruction had anything
to do with Van Laere's union activity.
Stonebreaker testified that crane operators are expect-
ed to stay in their crane area but if there is work below,
to stay in the crane. He testified that he had several con-
versations with Van Laere in which he instructed Van
Laere to stay "in the area" of his crane. He confirmed
that in April 1979, Hollis asked for Van Laere, and in-
structed Stonebreaker to find him and tell Van Laere "to
12 As shall be seen infra , Edda Van Laere , his wife, was an employee
who drove a forklift truck in the foundry.
" Hughes acknowledged that he had a conversation sometime in April
1979 with Van Laere in which the latter asked why he was restricted to
his crane . Hughes testified that at the time Van Laere was running a
shakeout crane and that they had problems locating him and getting him
to his work station, and that he told Van Laere on that occasion that he
was restricted to his crane because he was wanted there when work had
to be done. Hughes denied that Van Laere was at the time told that he
had wanted to place such a rule in effect for a long time and that the
present was as good a time as any, or that Van Laere was told that
Hughes did not want Van Laere talking to his wife. In the later respects,
I credit Hughes who impressed me as more reliable than Van Laere.
HARRISON STEEL CASTINGS CO.
stay in the crane and not to get out other than for break,
lunch, or. for restroom." Stonebreaker testified this was
relayed to Van Laere. Stonebreaker acknowledged that
he did tell Van Laere that he felt that it was unfair that
he had to stay in the crane. Stonebreaker conceded that
the restriction imposed on Van Laere was distinct from
that applied to other crane operators.
Nonetheless, Hollis attempted to justify the difference
in treatment, by initially observing that Van Laere's case
was different from the others in that he exhibited a pro-
pensity to leave his work area to a greater extent than
others. This argument is not substantiated by convincing
credible proof. First, Stonebreaker admitted that he felt
that the restriction as applied to Van Laere was unfair.
In other respects, Respondent's contention that the re-
striction was justified by misconduct on Van Laere's part
which was excessive stands on the strength of testimony
by Hollis. He Was not a credible witness. His testimony
that cranemen were to remain in the crane during down-
time conflicted with the testimony of Stonebreaker and
was unbelievable. His testimony concerning Van Laere's
propensity to wander seemed vague and exaggerated,
and he admitted to difficulty in locating other cranemen
as well. Indeed, in his own words, "I don't say I have
any more problems with Mike than I do with any of
them . . . it seems like I might have to talk to him more
than the others, but see with him being a relief crane-
man, Mike gives the appearance that he has a right to go
where he wants to go."
In this respect I find that the General Counsel' s allega-
tions of discrimination have been substantiated. Van
Laere was an advocate of the Union who openly mani-
fested his sentiment . As Stonebreaker's testimony reveals,
the instruction that he remain in his crane was unfair and
it does not appear that other cranemen were ever re-
stricted as severely. The testimony of Hollis that crane-
men were to remain inside their equipment during down-
time was at odds with that of Stonebreaker and seemed
an implausible attempt to justify a disparate act. In any
event, Hollis acknowledged that he had no special prob-
lems with Van Laere, and had problems from time to
time with all operators. The extreme measure taken
against Van Laere in confining him to the cockpit of his
crane would effectively restrict him from engaging in
union activity during periods of downtime in the vicinity
of his crane, and consistent with the observation of the
General Counsel, Respondent's failure to credibly ex-
plain this disparate act in the face of the union animus
reflected on the entire record, warrants the inference
that it was Van Laere's prounion bent and not the need
to assure that Van Laere remained available for work
that led to the excessive, unfair, and unprecedented
action taken in his case. Respondent thereby violated
Section 8(a)(3) and (1) of the Act.
c. Charles Horath
It is alleged that Respondent discriminated against
Horath in two respects. First is a claim that he was
among employees on line 4 in the cleaning room, whose
7 a.m. break was suspended because of their union activi-
ty. It was further alleged that in reprisal for union activi-
1173
ty, Horath was prohibited from having repair work per-
formed on his personal property within the plant.
Horath signed a union card and was a member of the
employee organizing committee. He attended the union
meeting on April 7, distributed literature at plant gates
and during discussions of the Union with the foreman;
Gilbert Matteucci, Horath claims to have informed him
that he was for the Union. Horath testified that begin-
ning the first week of April, he wore a union button to
work and continued to wear such insignia until he cast
his ballot on May 10. Horath also wore big UAW sticker
and "vote yes" stickers on his hardhat, as well as a
"UAW-Vote Yes T-shirt."
Horath was a handgrinder on line 4 in the cleaning
room. His shift was from 5:30 a.m. to 4 p.m. The regu-
larly scheduled morning break for his line was at 8:30
a.m. He testified that prior to the advent of the Union,
four or five coworkers on his line and a group from an-
other would take an unscheduled coffeebreak in the
breakhouse at 7 a.m. According to Horath, sometime in
April, Matteucci told them that they could no longer
remain in the breakroom but that the men could get their
coffee and take it back to their worktable if they wished.
Horath claims that Don Merritt, Harold Bass, Jim Walls,
and Clyde Tucker were in his presence on that occasion.
According to Horath, all except Jim Walls wore union
insignia . However, none of the others testified. Horath
claimed, although Matteucci enforced this rule for about
3 months during 1980, the restriction was relaxed and
Horath would go to the shack maybe once a week to get
a cup of coffee at 7 a.m. without anything being said.
Horath acknowledged that the men had been warned
about taking the unscheduled break "just a few times"
before the advent of union activity. Although he afford-
ed argumentative .testimony to mitigate this factor, he ac-
knowledged that employees have been chased out of the
breakroom on prior occasions. He also acknowledged
that Matteucci, prior to any union activity, had told him
that Harold Anno, superintendent of the cleaning room,
had been on him about the unscheduled breaks. The issue
here need not be labored. Credible evidence adduced by
the Respondent establishes that the action taken with re-
spect to Horath and others on his line complained of
here was no more than the routine exercise of superviso-
ry authority. Foreman on the cleaning line, according to
credible testimony, at approximately 7 a.m. each morning
gathered in the foreman's office to do their paperwork.
Over the years, line employees have taken an unauthor-
ized break during their absence. Cleaning Room Superin-
tendent Anno testified that this had been an ongoing
problem for many years, and that at regular intervals, he
instructed his foremen to curtail the practice. There is no
credible evidence that this instruction was implemented
by the line foremen on any disparate basis and, indeed,
any interpretation flowing from the uncorroborated testi-
mony of Horath that this was the case is rejected. Inso-
far as one might construe Horath's testimony as implying
that after 3 months, employees resumed taking the 7 a.m.
break without interference from supervision, his testimo-
ny does not clearly disclose that on those occasions, em-
ployees remained in the breakroom. Based on the cred-
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ited evidence, I find that Matteucci instructed Horath
and others that, although they could get their coffee and
return to their work station, they could not remain in the
breakroom at 7 a.m. for the reasons unrelated to union
activity and, accordingly, I shall dismiss the 8(a)(3) and
(1) allegations based on his action.
The complaint also alleges that Respondent violated
Section 8(a)(3) and (1) of the Act in denying Horath the
opportunity to have personal work performed within the
plant. Prior to the advent of the Union, Horath in Febru-
ary was permitted to have various parts for his jeep man-
ufactured at the plant by a line 3 welder. However,
during the campaign in late April, Horath brought a
"bumper" to the plant which needed repairs. He took the
bumper to the work station of a welder and then, on re-
turning to his work station, found that Matteucci pos-
sessed the bumper which had been given to him by Su-
perintendent Anno. According to Horath, Matteucci told
him "no more home work done any place," an instruc-
tion not previously heard by Horath. Horath conceded
that he failed to ask permission of supervision to have
the bumber repaired.34
Matteucci, on the other hand, testified that on the oc-
casion in question, he was summoned to Harold Anno's
office and whereupon Anno gave him a bumper advising
him to return it to Horath and have him take it out of
the.plant. 35 Matteucci testified that, on past occasions,
Horath had asked permission to have work done in the
shop, but that he did not do so with respect to the
bumper.36
Anno testified that the Company maintained a policy
allowing employees to have work performed on their
personal property if permission were sought and granted
and if the work would not interfere with production. He
testified that on the occasion in question, his line 3 fore-
man reported that a jeep bumper was in his welding area
and that he had a lot of rush work and wanted to know
if he should work on the bumper. Anno told him "no."
Anno then took the bumper to Matteucci and told him
to return it to Horath.37
William Askren, Respondent's foreman on line 3, testi-
fied that in May 1979, Horath gave a bumper to Bruce
Dodd, a welder, on his line. Because Horath had not
asked permission to have the work done, Askren testified
that it was his job to report the matter to Anno. Askren
confirmed that on the day in question, line 3 was subject
to heavy production demands.
Although I accept the testimony that Respondent's
policy required permission and that personal work not
impede production, there are factors which favor the
General Counsel's claim in this instance. Thus, Horath,
was an active union supporter, who openly manifested
his sympathy. That this might be the basis for position
taken by supervision with respect to the bumper is sup-
ported by testimony of Horath that Matteucci told him
on returning the bumper, that no more home work could
be performed at the plant. Such a curtailment in privi-
lege was disparate and more restrictive than made avail-
able to employees generally according to Respondent's
own testimony as to the nature and scope of its policy.
Yet Matteucci was not examined as to what he told
Horath on returning the bumper. Thus, Horath's testimo-
ny stands unrebutted. Nonetheless, I did not believe
Horath. Horath impressed me as prone to testify from a
biased impression of actions taken with respect to him in
several areas, and exhibited a bent to reenforce the imag-
ined through argumentative and contrived testimony. My
doubts about his credulity run deep enough to reject his
uncorroborated testimony, even acknowledging his status
as an incumbent employee at the time of the hearing. In
my view, it is more likely that in this lengthy hearing,
Respondent inadvertently neglected to elicit testimony
about precisely what Matteucci told Horath, then that
the latter's version was true. 38 In sum, on the credible
facts, I find that the action taken by Anno, Matteucci,
and Askren with respect to Horath concerning the
bumper was not shown by credible proof to have been
inconsistent with its practice and policy, and hence did
not violate Section 8(a)(3) of the Act.39
d. Oscar Branson
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by cutting back on over-
time hours customarily worked by Branson . As may be
recalled Branson was an inspector on line 1 in the clean-
ing room. He signed a union card on March 7, and at-
tended the April 7 union meeting where he joined the
employee organization committee. Subsequently, during
the week of April 9, Branson wore a union button to
work. Branson testified that on or about Friday, April
20, Chief Inspector Fletcher approached Branson and in-
structed that effective Monday, April 23, Branson was to
begin work at 7 a.m., rather than 4 a.m., his customary
starting time. During the ensuing week, Branson worked
34 Although Horath denied that, on past occasions when he had per-
sonal work performed on the plant, he necessarily asked permission ever-
ytime . He conceded that when he had work done on an adapter plate in
February , he asked permission of Art Fletcher , Respondent's chief of in-
spectors . Later Horath ultimately conceded that permission was required
under Respondent 's policy in this regard.
as Although leading questions propounded to Matteucci suggested that
the incident occurred in May, and specifically on May 21 , a date which
would have followed the election , I do not construe this date to have
been isolated by credible testimony on the part of Matteucci.
35 Matteucci testified that in December 1979, Horath requested permis-
sion to have a gear assembly fixed. Matteucci related that the gear assem-
bly was returned to Horath after he learned that plant personnel were
too busy at the time to work on it.
37 Here again , Anno responded in the affirmative to a leading question
by counsel for the Respondent suggesting that the incident occurred on
May 21, 1979 . His affirmative response thereto was considered unreliable.
38 It is noted in this respect that Harold Anno testified that Matteucci
told Horath that the work could not be done as there was no time to do
it. As there is no evidence that Anno was present during the conversation
between Matteucci and Horath , he plainly was in no position to afford
primary evidence as to what Horath was told.
39 I have not overlooked what might be argued as a basic flaw in testi-
mony by witnesses for the defense. Thus, though it is the sense of Ask-
ren's testimony that he took the bumper to Anno primarily because
Horath had not sought permission , Anno's testimony, and that of Mat-
teucci, does not specifically acknowledge that they were aware at the
time of Horath's failure to obtain permission. Instead, a composite of
their testimony is susceptible to interpretation that Anno and Matteucci
acted solely on grounds that line 3 was too busy to perform the work at
the time . On balance, I considered this to be more in the nature of an
ambiguity than a material discrepancy sufficient to alter conclusions
reached with respect to this allegation.
HARRISON STEEL CASTINGS CO. 1175
from 7 a.m. to 4 p.m. However, on Friday, April 27, Art
Fletcher told him that on Monday, April 30, Branson
could resume the 4 a . m. starting time. Branson claimed
that prior to April 1979, he had been reporting for work
at 4 a.m. for about 2 to 3 years.
Respondent defends on grounds that the cutback of 3
hours daily in Branson's work between April 23 and 27,
had nothing to do with his union activity, but was based
on a lack of work. Consistent with the defense, Branson
himself admitted that other people in the cleaning room
had their hours cut back because of tonnage limitations
during that period. He further testified that since April
27, his hours have fluctuated depending on production
demands. When questioned about whether he asked
Fletcher the reason for the cut in his hours, Branson re-
sponded "I didn't question him because I knew that the
guys around me there, they had cut their hours too .. .
the welders and grinders, they cut their hours, I believe
until 5:30 every morning and they brought me in at 7."
He acknowledged that it would have made no sense for
him to be called in at 4 a.m. after the other men had
their hours cut.
I credit Harold Anno who testified that a pattern
change on castings process resulted in a reduction in
output and required the cut back. In consequence, six
grinders on the north end of the line suffered a reduction
in hours during a 1-week period. This reduced the work-
flow at the south end of the line where Branson per-
formed his inspections.
The six grinders who had been reporting for work at
5:30 a.m. were told to report at their normal starting
time of 7 a.m. Respondent's evidence together with
Branson's about his own impressions, substantiates that
the 1-week reduction in hours was attributable to dimin-
ished work availability and had nothing to do with Bran-
son's openly manifested support of the Union. Accord-
ingly, I shall dismiss the 8(a)(1) and (3) allegation in this
regard.4 °
e. The "Pep Set" crew
The term "Pep Set" pertains to a process of making
cores out of blend of a branded product and a special
sand. In April 1979, the crew assigned to the pep set op-
eration consisted on various dates of Don Soloman, Mike
40 In crediting the testimony offered by the defense , I have noted testi-
mony by employee Don Merritt, who claims that on April 23 at approxi-
mately 6 30 a in he overheard Line Foreman McBride ask an inspector
from another line, Richard Brooks, to inspect some parts needed for ship-
ment that day because Oscar "wasn 't going to show up until 7 a in " Al-
though Line Foreman McBride testified that he could not recall such a
conversation , and Richard Brooks did not testify, this testimony does not
go so far as to support a conclusion that on April 20, McBride or any
other responsible official in the cleaning room, knew or anticipated that
work would be available off Branson's line the following Monday Fur-
thermore , although Branson testified that during his prior overtime hours
he performed a variety of jobs some of which may or may not have been
associated with work on line 1, this testimony was vague, and I am not
convinced that his capacity to perform other work necessarily implied
that such work was available during the period in question or that it was
available in sufficient quantities to warrant a conclusion that his overtime
hours should at least have been extended in part
Mitton, Edda Van Laere, Tom Lambka,41 Terry Badger,
David Roach, and Joyce Pearson.
In early 1979, Respondent experienced difficulty in ob-
taining the particular type of sand utilized in the "Pep
Set" process. As a result of deferred deliveries, Dean
Hughes, the foundry superintendent , authorized Goudy
to work core room employees overtime on two Satur-
days. Pep set was not a function which typically worked
overtime. However, according to testimony by Hughes
and Goudy, the latter was informed by Hughes generally
that the overtime should be distributed as fairly as possi-
ble among core room employees. Thus, pep set work
was available for core room employees on Saturday,
March 24, and Saturday, April 14, on an overtime basis.
In addition , other overtime work, not involving pep set,
was available to south core room employees on April 7.
The General Counsel contends that overtime was not
made available to the pep set crew on April 14, because
it was in that week that members thereof first manifested
their support of the Union. It will be recalled that on
Saturday, April 7, a union meeting was conducted. Van
Laere, Lambka, and Roach testified that they, together
with Mitton, began wearing union buttons on Monday,
April 9. Hughes admitted that if pep set work was avail-
able during regular hours, the seven individuals on the
crew would normally be the first assigned to it.
On March 24, all members of the pep set crew worked
except Roach, who was offered and agreed to work that
Saturday but did not show up, and Badger, who rejected
overtime. However, the only member of the pep set
crew that worked on April 14 was Joyce Pearson, the
wife of Foreman Lawrence Pearson. Though pep set
work was performed on April 14, Respondent utilized
other south core room personnel in connection with that
process; namely , Wesley McDougal, Steve Ward, Bill
Clem, Carl Greer, Wayne Howard, Walter Blankenship,
Avalene Harrison, and Charles McCarthy 42 It is noted
that Respondent's payroll records indicate that on Satur-
day, April 7, though no pep set work was performed, all
members of the regular pep set crew were assigned over-
time, except Badger , who as indicated preferred not to
Apart from the question of when the four pep set em-
ployees began wearing union insignia '43 Respondent's
explanation for the withholding of overtime as to this
group on April 14 is frought with inconsistency. First it
is noted that the testimony of both Goudy and Hughes
implied that members of the pep set crew would be pre-
ferred to perform pep set work; this of course was not
the case on April 14. On the other hand, pep set work
was not performed on Saturday, April 7, prior to the
41 According to Respondent 's time records and as related by Robert
Goudy, general foreman in the south core room, Lambka did not work
on "Pep Set" between March 5 and 31
42 Goudy testified that he never observed union buttons being worn by
McDougal , Greer, Ward, Blankenship , or Pearson No evidence exists as
to the union sentiment of Harrison , Clem, Howard, or McCarthy
43 Goudy and Hughes indicated that it was in March when they first
observed Mitton, Van Laere, Roach, and Lembka wearing union buttons
No evidence was offered as to their basis for recall of that , which in the
context of this overall campaign, might be viewed as a somewhat obscure
event I did not believe this highly critical aspect of their testimony and
credit the employee witnesses as to this matter
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
blandishment of union insignia by Van Laere, Mitton,
Roach, and Lambka. Yet, those individuals, though
having been offered and having accepted overtime on
March 24 '44 were afforded the overtime work on April
7. Indeed, even Lambka, who on March 24 agreed to
work, but did not show up, was included in those as-
signed overtime on April 7. Thus if Goudy and Hughes
are to be believed, though core room overtime work was
to be distributed equally, other core room employees
(Billy Clem, Wayne Howard, Avalene Harrison, and
Charles McCarthy) were bypassed at the first opportuni-
ty and apparently not given a crack at overtime until
April 14. And, thus, this group was bypassed as succes-
sive overtime opportunities were afforded to pep set
crew employees, even though on April 7 no pep set
work was performed. This shows that overtime was ac-
tually distributed with no immediate implementation of
any equality guideline and ultimately in violation of the
established practice of assigning pep set work to mem-
bers of the pep set crew. My difficulties with Respond-
ent's explanation is compounded by Goudy's further ex-
planation that attendance was a factor considered in ex-
cluding Van Laere, Mitton, Roach, and Lambka from
overtime on April 14. His testimony in this respect un-
covers further inconsistencies. Thus, he claims that
Mitton was denied overtime on April 14 because of a
lateness incurred during the prior week.45 Van Laere al-
legedly was not asked to work overtime on April 14, be-
cause of an absence on April 10. Roach allegedly was
not asked to work overtime on April 14, because he had
also been late a day during the week and had not report-
ed to work on Saturday, March 24, when he agreed to
work overtime that day. Lambka allegedly was not
asked to work overtime on April 14, because he twice
that week left without completing his work. Goudy's
reasons for excluding these members of the pep set crew
from overtime on April 14 when work customarily as-
signed them was performed, were symmetrical to the
reasons afforded by Goudy as to why he preferred them
for overtime over other core room employees on earlier
Saturdays. Thus, he claims that Van Laere and Mitton
were assigned overtime on March 24, because they had
been absent that week and Goudy wanted to provide
them an opportunity to "catch up on their pay." He also
testified that though David Roach had agreed to work
overtime on March 24 and had failed to show up, Roach
was not barred from overtime on April 7, even though
no pep set work was performed on that date.
The explanation of Goudy and Hughes as to the
motive underlying the overtime distribution issue in the
final analysis was viewed as no more than contrived
afterthought. It was so unbelievable as to actually en-
force the General Counsel's claim of discrimination.
Contrary to an assertion in Respondent's brief, docu-
mented evidence does not disclose that overtime in the
south core room was divided equally, and indisputable
evidence establishes beyond question the failure to
adhere to any such standard. In sum , although Soloman
44 No work was performed in the core room on Saturday, March 31
45 I have taken note that Mitton was the only south core room em-
ployee asked to work overtime on Saturday, April 21
was not shown to have been a union supporter, I am
convinced that the denial of overtime to those customari-
ly assigned to pep set work on April 14, when such
work was available, was in reaction to the supervening
union support first manifested by Van Laere, Roach,
Lambka, and Mitton on April 9. Accordingly, I find that
but for the overt manifestation of union support, all five,
consistent with Respondent's practice, would have been
assigned their normal work on Saturday, April 14. Re-
spondent's failure to do so violated Section 8(a)(3) and
(1) of the Act.
2. The discharges46
a. Inez and Debra Tornquist
Inez Tornquist's employment with Respondent dated
back to 1970. Her daughter was hired in August 1976.
Both worked in Respondent's administrative offices
where Inez was the payroll clerk. Debra worked on the
payroll with her mother and another employee Tom
Gossett and also served as a relief switchboard operator
and from time to time assisted in Respondent's printing
department. Both were discharged on Monday, May 7.
The Tornquists were office clericals, and hence not
among the employees sought by the UAW. Indeed, inso-
far as this record discloses, they held no view with re-
spect to the issue of representation. However, on Tues-
day afternoon, May 8, an antiunion rally was conducted
on the streets adjacent to the plant. The Tornquists did
not plan to attend. The General Counsel contends that
the Tornquists were discharged because and only after
Rusty Harrison, Respondent's secretary-treasurer, and/or
Office Manager Robert Blickenstaff learned of their de-
clared intention not to attend that rally. Respondent by
way of defense argues that the Tornquists' intention with
respect to the rally was unknown to Respondent's offi-
cials until after their discharge, and that they were termi-
nated in consequence in their failure, without permission,
to return for work after lunch on May 7. Respondent's
alternatively, contends that even assuming that the Gen-
eral Counsel's claim is factually substantiated the dis-
charges were not violative of the Act as the Tornquists
had not engaged in any activity protected by the Act
On the question of knowledge, it appears that Sue
Ward, a receptionist in the office, on Friday, May 4, cir-
culated among the clerical staff, asking each individually
48 On April 22, in the course of the heanng, at the conclusion of her
case, counsel for the General Counsel moved to withdraw 8(a)(3) and (1)
allegations based on the (1) discharges of Michael T Tindall, Charles
Sanders, William R Bennett, Theodore Farley, and Stanley E Worley
and (2) the alleged reduction in Luis Compos' employment and the as-
signment of more arduous work to Compos and Kathy Spear At the
conclusion of the General Counsel's case , a motion to dismiss was made
on behalf of the Respondent with respect to alleged discriminatee Mark
Shelley That motion was granted by me as no affirmative evidence had
been presented in support of his cause In addition , also in the course of a
heanng on April 23, 1980, it became apparent that another alleged discn-
minatee, Walter Hembree would not appear As no evidence was offered
in support of the allegations, and as , at the close of the General Counsel's
case, there was no basis for inferring that a pattern of discrimination ex-
isted in which Hembree, whose union sentiment was not disclosed, could
have been discharged as part of a "blind stab," or "stroke of force," the
Respondent's motion to dismiss that allegation was granted by me
HARRISON STEEL CASTINGS CO. 1177
whether they intended to participate in the antiunion
rally. The Tornquists informed her that they would not
attend. Although Ward denied that she made a list of
those who would and would not attend, it is apparent
from her own testimony that she reduced same to
memory. However, on direct examination by Respond-
ent's counsel, Ward denied telling either Harrison or
Blickenstaff, prior to the termination of the Tornquists,
that they did not intend to participate in the rally.47 On
the other hand, on cross-examination by counsel for the
General Counsel, Ward somewhat haltingly acknowl-
edged that she told Rusty Harrison, in the course of the
rally, that some of the girls who worked in the office did
not attend, but that she did not believe that she specifi-
cally identified them to Harrison at any time. Interesting-
ly enough, on cross-examination , however, Ward ex-
pressed a belief that she specifically informed Blicken-
staff of the identity of those not planning to attend. This
might well be significant because the only meeting with
Blickenstaff described by Ward pertaining to the rally
took place on Monday, May 7, when she requested per-
mission on behalf of herself and certain other employees
to leave early to attend the rally. No explanation is of-
fered as to why such disclosure, if made, would have
been delayed.
The suspicion deepens with consideration of the testi-
mony of Harrison. Thus, Harrison, who preceded Ward
to the witness stand, denied knowledge of the Torn-
quists' plans concerning the rally prior to their discharge.
He testified, however, that on Tuesday, May 8, Ward
came to his office requesting permission to leave early,
and that during conversation Ward told him that the
Tornquists did not intend to go to the rally. His testimo-
ny was seemingly in conflict with that of Ward who
could not recall ever having made such a statement to
Harrison.48
Passing for the moment to the immediate foreground
for the discharges, on Monday, May 7, Mike Buckley,
the Company printer, was involved in the final prepara-
tion of the company newspaper "Tapping Out" Appar-
ently, Inez Tornquist that morning had words with
Buckley after he explained to her that this was a special
election issue and that he had been instructed not to let
anyone see it before general distribution to all employ-
ees. Buckley subsequently reported this incident to Har-
rison,49 who thereafter attempted to locate Inez Torn-
47 Ward's highly material testimony in this respect was adduced in re-
sponse to prejudicially leading questions propounded by Respondent's
counsel This testimony was somewhat curious, for Ward could not recall
the specific date on which she learned of the terminations of the Torn-
quists, but speculated that it was either on the day of the antiunion rally,
May 8, or the following Wednesday
48 Blickenstaff also denied knowledge of this fact until after the dis-
charge had been effected He also testified that Sue Ward on Monday,
May 7, came to his office, informing that their was a group of people
intent on attending the procompany rally and advising that they would
be punching out early to attend He denied that on that occasion, Ward
reported who was or who was not planning to attend His testimony does
not acknowledge that Ward at any time identified those who would not
attend
4' Parenthetically , it is noted that Harrison admitted that he had made
substantial contributions to this edition of "Tapping Out "
quist to discuss the matter with her. When Harrison told
Blickenstaff at approximately 1:15 or 1:30 p.m., that he
was looking for the Tornquists, and when Blickenstaff
indicated he did not know where they were, the latter
agreed to check. Later, Blickenstaff reported to Harrison
that the Tornquists had not returned to work after lunch.
Harrison asked Blickenstaff if the latter had given them
permission to leave, and when Blickenstaff responded in
the negative, Harrison indicated that he felt that they
should be dismissed for leaving work without permission.
Blickenstaff apparently concurred.
Although Harrison testified that the above furnished
the immediate cause for the discharges, he related that
other factors entered into the decision. First he referred
to an incident in August 1978, involving Debra Torn-
quist and Patty Lee, Harrison's cousin and the daughter
of Ken Freed, wherein Debra Tornquist had either initi-
ated a complaint or afforded testimony to a local Emer-
gency Medical Service Commission that Lee had violat-
ed her responsibilities in affording transportation in a pri-
vate vehicle to an individual suffering from gun shot
wounds while an ambulance was on the way. According
to Harrison, although Lee was exonerated by the com-
mission, the entire incident upset Lee and caused her "a
great deal of embarrassment." Although Lee was not
employed by Respondent, Harrison at that time wanted
to fire the Tornquists. He testified to expressing this to
Blickenstaff, who defended the Tornquists.S° Because
Blickenstaff indicated that the Tornquists attended work
regularly, nothing was done at that time.
The second matter referred by Harrison related to an
allegation made by sources unidentified on the record
that the Tornquists were padding their time. He asserts
that such charges were discussed with Blickenstaff, who
subsequently checked the timecards of the Tornquists
and found that the charges were unfounded.5 i
Although denying that this was considered, Harrison
also observed that he felt that Inez Tornquist had
become embittered during the period after her husband
voluntarily quit Respondent's employ to take another
job.
Although Blickenstaff testified that the decision to ter-
minate the Tornquists on May 7 was jointly arrived at,
Harrison testified that on that occasion, unlike what oc-
curred in 1978, he did not ask Blickenstaff if there was a
basis for discharging them, but in his words, "I asked
him to terminate them, to dismiss them." This action was
taken without inquiry as to possible excuse or whether
the Tornquists had obtained permission or reported their
intended absence to anyone other than Blickenstaff.52
60 Blickenstaff testified that it was Freed who expressed the desire that
Debra Tornquist be terminated as a result of the emergency treatment in-
cident According to Blickenstaff, on that occasion Freed said "I'd like to
get rid of them, if we can " He testified that Rusty Harrison also wanted
to terminate Debra Tornquist on that occasion
51 Harrison referred somewhat obliquely to an occassion when Debra
Tornquist did not show up to meet her regular Saturday assignment as a
switchboard operator On that occasion, Harrison asked Blickenstaff to
determine why she had not shown up The outcome was left undisclosed
52 The Tornquists testified that as had been their custom in the past,
they told Tom Gossett that morning that they were going to take the
afternoon off This testimony was denied by Gossett Although Gossett
was not a convincing witness, the conflict need not be resolved
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The precipitate nature of this action is difficult to under-
stand when considered against Blickenstaff's acknowl-
edgment that there were occasions in the past when the
Tornquists had left early without obtaining his permis-
sion , it does not appear that on those occasions steps
were taken to either discipline or to counsel the Torn-
quists that such practice was not in line with company
policy. Blickenstaff conceded further that the Tornquists
were as difficult to replace in May 1979, as they were
when Freed suggested their termination in 1978.
Leaving for the moment the evidence bearing on Re-
spondent' s assigned ground for the discharges, specific
evidence of discrimination emerges from Inez Tornquist's
account of a telephone conversation she received at ap-
proximately 4:20 p.m. on the afternoon of May 7. Blick-
enstaff does not dispute that Tornquist was called at that
time and was informed of the terminations. According to
Inez Tornquist, however, Blickenstaff stated, "I hate to
be the one to have to tell you this, but you and Debbie
have been separated." She responded, "Fired, what did
we do?" Blickenstaff went on to explain, as follows:
"Freed and Rusty did not see your names on the list to
attend the Company rally and Freed definitely did not
like . . . and he ordered me to call you and tell you that
you'd been fired and said you had poor attitudes because
you didn't support the Company and attend the rally."53
Blickenstaff, who testified that he was told by Harri-
son to terminate the Tornquists at 1:30 p.m., relates that
in the telephone conversation later that afternoon, he ad-
vised Inez Tornquist that she had been separated and
could come in and pick up her last check. Tornquist
asked why, and according to Blickenstaff, she was told
that she had taken the afternoon off, failed to obtain per-
mission , and did not call in or give a reason for being
absent. Blickenstaff relates that she then became upset
and stated that "Well, Kenny was out to get me," while
explaining that this was because her husband quit some
years back and the fact that animus existed between
Freed's daughter and Debra Tornquist.54 He claims to
have expressed that he was sorry. Blickenstaff denied
making any reference to the absence of the Tornquists'
name on a list of those planning to attend the rally.
Weighed against all facts and circumstances surround-
ing the discharge of the Tornquists, I was inclined to be-
lieve the testimony of Inez Tornquist as to what was said
in this conversation over the version and denials offered
by Blickenstaff. 55 Her account of the telephone conver-
sation confirms highly suspicuous aspects of the testimo-
ny afforded through Respondent 's witnesses . I did not
believe the testimony of Ward, Blickenstaff, and Harri-
son that Ward reported the Tornquists' intention about
the rally only after the Tornquists were discharged. In-
stead, Ward acknowledged that she discussed the rally
with either Blickenstaff or Harrison on Friday and
Monday, and the realities point to the likelihood that she
disclosed the identity of those not planning to attend at
the first opportunity. Indeed, there is no explanation ap-
pearing on the record as to why Blickenstaff deferred
from 1:30 p.m., when the discharge decision was alleged-
ly made, until after 4 p.m., before informing Inez Torn-
quist of the discharges. It is within the realm of possibili-
ty that there was no delay at all, for the discharge deci-
sion was not made until later that afternoon following a
report from Ward about the Tornquists' intentions. The
verity of Inez Tornquist's account derives support from
other factors pointing to the pretextual nature of the dis-
charge. Thus, Inez Tornquist was a longstanding em-
ployee whom Blickenstaff acknowledged, with her
daughter, would be difficult to replace. Furthermore, the
event which Respondent claims triggered the discharge
was not without precedent. For although Blickenstaff ad-
mitted that the Tornquists had taken off in the past with-
out obtaining permission from him, the evidence does not
disclose that they were specifically instructed that Blick-
enstaff alone could afford them such permission or that
they had ever been warned concerning such a practice.
Finally, the fact that the discharge decision was made
precipitously and without investigation or opportunity to
consider mitigating circumstances, points to the fact that
the discharge was grounded on considerations distinct
from what Respondent's witnesses would have me be-
lieve.
My belief of Inez Tornquist's version of the conversa-
tion establishes that her leaving work without permission
was pretext and the real reason for the termination of
herself and her daughter was their indication that they
would not attend the antiunion rally. This view derives
collateral support from my overall impression of precise-
ly what occurred on May 7. I am convinced that Harri-
son and Freed held a longstanding grudge against the
Tornquists whose employment continued only through
the protective intervention of Blickenstaff. However,
when a report was received from Ward that they would
not lend their support to the Company's interest with re-
spect to the union campaign, their fate was sealed and,
what was construed by Harrison and possibly Freed as a
third and final act of "disloyalty" toward the Harrisons,
was seized upon as the ultimate cause for their termina-
tion.56
63 Debra Tornquist testified that when she returned home on March 7,
she had been informed by Inez of her discharge, advising that it was be-
cause they "hadn't had our names down on the sheet to go to the rally
the next afternoon, and because of that "
64 These were two of the factors which Blickenstaff described as con-
tnbuting to the discharge decision
as It is noted that Respondent in its postheanng brief makes a thorough
and extensive challenge to the credibility of the Tornquists. In my own
view, discrepancies between their testimony and affidavits were minor
and related to details which did not impress me as overriding my more
thorough mistrust of Blickenstaff, Harrison, and Ward Furthermore,
many arguments made against the verity of the Tornquists are 'based on
interpretations of the record which failed to conform to my own analysis
66 This analysis , though more explicit than is necessary to the result,
does square with incredible testimony of Harrison Indeed , his lack of ob-
jectivity concerning the historic relationship between the Company, its
officials, and the Tornquists, first emerges in his statement , "I felt that
Lorene Tornquist [sic] had been very bitter towards the Company ever
since John [her husband] quit " My impression was that the reverse was
true First of all, Harrison and/or Freed in 1978 sought the discharge of
the Tornquists on the basis of an entirely personal affair involving
Freed's daughter , a nonemployee, growing out of an incident that in no
way touched on the work relationship Contrary to Harrison, Blicken-
staff's testimony suggests that it was the Company that looked with disfa-
vor on Inez Tornquist after her husband quit, rather than vice versa
Thus, according to Blickenstaff, Tornquist 's husband quit to take another
Continued
HARRISON STEEL CASTINGS CO. 1179
Nonetheless, Respondent contends that no violation
inures, because the Tornquists were not involved in pro-
tected activity. As indicated, as office clerical employees,
the Tornquists were not subject to the organization cam-
paign. It also does not appear that the Tornquists held
views, one way or the other, with respect to the Union.
Nonetheless, the rally was consistent with the Compa-
ny's position in the campaign and to condone the reprisal
taken against the Tornquists is to view the Act as render-
ing neutrals fair game for discharge if they fail to adhere
to an antiunion stance. Such an anomally is avoided by
Section 8(a)(3) which proscribes all "discrimination in
regard to hire or tenure of employment to . . . discour-
age membership in any labor organization." According-
ly, as the conduct for which the Tornquists were dis-
charged, whatever their intent, was supportive of the
Union's cause, I find that Respondent violated Section
8(a)(3) and (1) of the Act in this respect.57
b. The discharges for walking off the job (Billy Turpin,
Vernon Hawkins, and David Freed)
Freed and Hawkins were cleaning room employees.
Turpin was employed in the foundry . All three worked
the 4 to 12 p .m. shift and were terminated on the as-
signed ground that they either walked off the job or
failed to complete their shift on Good Friday, April 13.
Specifically , Turpin testified that he wore a union
button on the job everyday prior to his discharge, that
he signed a union card , and that he passed out possibly
three union buttons to coworkers . He conceded that on
April 13, he reported for work at 5 p.m. and left at 7:50.
He claims that at suppertime he went home , and did not
report back to work . Turpin admits that he did not tell
his supervisor , William Tremble , that we would not
return to work that day. When he returned to work on
April 16, he, together with Ted Farley and Walt Hem-
bree , were terminated by Tremble.58
There is no meet in the claim that Turpin was termi-
nated for reasons proscribed by Section 8(a)(3) and (1) of
the Act. The discharge of Turpin was on a ground for
which he had been warned previously , and on which Re-
spondent had frequently acted in the past in separating
employees . His offense involved a serious breach of
job after approximately 25 years' service with the Company He logically
points out "[T]his caused some concern with management they felt
they had spent some money and some time training him and they kinda
questioned his loyalty to the Company it was a disappointment that
he felt " It is not without significance that Harrison downplayed this
aspect of the background For although he disavowed that this was
among the reasons on which he decided to effect the discharges , Blicken-
staff testified that one of the reasons for the discharge was "anxiety" be-
tween Inez Tornquist and some of the officers of the corporation When
asked to explain on examination by Respondent 's counsel what he meant
by this, Blickenstaff referred to the quitting of John Tornquist In my
opinion, Harrison falsely portrayed this entire matter to obscure his own
view that the Debra Tornquist-Patty Lee incident and the quitting of
John Tornquist were acts of disloyalty, which, finally, became intoler-
able, when manifested by the Tornquists' failure to support the antiunion
rally
67 See, e g, San Antonio Machine Corp, 147 NLRB 1112, 1119 (1964)
se It will be recalled that Farley and Hembree were named as discn-
minatees in the original consolidated complaint Farley was deleted how-
ever, on motion by the General Counsel, and the allegations with respect
to Hembree were dismissed by me as no evidence substantiating a prima
facie case of discrimination was offered with respect to him
work responsibility. Any inference of discriminatory
motive is further allayed by the fact that only a week
before his discharge, Turpin, though his union sympathy
was known, sought and was given a transfer to the
second shift to accommodate Turpin and to rehabilitate
his poor attendance record.59 It is concluded that the
8(a)(3) and (1) allegations in his case are unsubstantiated
and they shall be dismissed.
David Freed was a welder on line 5 in the cleaning
room at the time of his discharge. His foreman was Joe
Williams. He signed a union authorization card dated
March 7, and attended the April 7 union meeting. He
claims to have worn union buttons to work prior to his
termination. He also claims to have distributed union lit-
erature and authorization cards to about 30 employees.80
Freed testified that on Friday, April 13, after working
for little more than an hour, he told Williams that he was
going home early. According to Freed, Williams re-
sponded, "Good, the more that goes home, the less I
have to do." Freed relates that subsequently he learned
from a friend that he had been discharged and, accord-
ingly, on Monday morning, April 16, went to the plant
where Bob Crawford confirmed that he had been termi-
nated. He claims that he was not told the reason for his
termination. Freed testified that evening he again re-
turned to the plant, and asked Williams the reason for his
discharge. When Williams responded that it was because
he had left work on Friday without permission, Freed at-
tempted to remind Williams of their conversation on
Friday. Williams denied that any such conversation took
place. Freed acknowledged that he had been warned on
a prior occasion for leaving work without permission.
His testimony bears no explanation as to the reason for
his departure after working about 72 minutes on April
13.
I did not regard Freed as a credible witness. Respond-
ent's testimony that Freed left work in anger at the work
he was assigned that evening was preferred. 61 I also
credit the implicit denial by Williams that he in any form
had a conversation with Freed in which Freed was
granted permission to leave. I also credit his version of
their conversation on Monday, April 16, which reflects
that there was no reference made by Freed on that occa-
sion to any conversation on April 13. I also credit testi-
mony that prior to April 13, Freed had complained con-
cerning his work assignments in the past, and that Dan
Lee had informed him to do the work directed by his su-
pervisor or to be terminated,62 and that in early January,
Pete Holycross , assistant superintendent of the cleaning
room, told Williams, in Freed's presence, that the next
time Freed walked off the job, Williams should fire
him.63 Based thereon, I find that the Freed discharge
59 Based on the credited, uncontradicted testimony of Earl Hornday,
day-shift foreman in the south foundry
80 Freed 's name appears on a letter sent Respondent by the Union
identifying members of the organizing committee This letter is dated
May 2, and hence was not forwarded until well after the Freed dis-
charge See G C. Exh 3
8i See credited testimony of Joe Williams
82 See credited testimony of Dan Lee
89 See testimony of Holycross and Williams
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was triggered by the precise offense for which he had re-
ceived discharge warnings on at least two pnor occa-
sions in the past, and that union considerations failed to
contribute to Respondent's action in that regard. The
8(a)(3) and (1) allegations in his case shall be dismissed.
Vernon Hawkins, prior to his discharge, claimed to
have attended the union meeting in Williamsport and to
have worn a union button to work each day for about a
month pnor to his termination. Hawkins claims that he
also distributed buttons and authorization cards to fellow
employees.
According to Hawkins, he reported for work on April
13 at 4 p.m. He claims that he began his usual duties as a
hand grinder and then was transferred to work on an
oven. As a hand grinder, Hawkins was eligible to earn
incentive pay, but was ineligible for piece rates on the
oven. Hawkins claimed that he protested having been
transferred to his supervisor who informed him that he
would have to remain on the oven or be fired. At ap-
proximately 7 or 7:30 p.m. Hawkins "just decided" to go
home. He did so without informing any supervisor. Ac-
cording to Hawkins, he went to the plant at approxi-
mately noon on the following Monday to see Bob Craw-
ford because he had learned that another employee had
been discharged. Crawford informed Hawkins that he
too had been terminated. Hawkins claimed that he was
not given a reason for the discharge, but that Crawford
told him that he could not get his job back for at least a
month "until things cooled off." Hawkins claimed that
he returned a month later to see if he could be reem-
ployed, and that Crawford stated that "there wasn't any
way that he could hire me back for at least a year."
Hawkins acknowledged that he had been transferred to
the oven on prior occasions, and that such work was no
more difficult than his normal work. Hawkins, who had
been discharged on two prior occasions, was considered
an essentially unreliable witness. His testimony that, fol-
lowing his discharge when he sought reemployment,
Crawford made statements to the effect, first, that he
could not be hired for at least a month and second, that
he could not be hired for at least a year, or until things
cooled off, was not believed though uncontradicted I
find that Hawkins was discharged by Respondent solely
on the basis of an offense which had constituted the
reason for discharge in excess of 75 employees during
1978 and 1979, and that the evidence fails to substantiate
that union support played any role in his termination.
Accordingly, the 8(a)(3) and (1) allegations in his case
shall be dismissed.
son, Bill Hubbard, and Merle Dotson.64 In their pres-
ence, Riley claims to have expressed the opinion that if
they had a union , employees would have better wages,
working conditions, and less fear for their jobs.65
In January, Riley requested and was given a transfer
to the furnace department. This was not Riley's first stint
in the furnace department. In August 1978, Riley was as-
signed there, worked a day and a half, and then quit
without affording the Company any notice whatever.66
Froedge credibly testified, following his rehire, that
when Riley was again transferred to his department in
January 1979, he informed him that rigid attendance re-
quirements were observed in the furnace department,
that the department had the best attendance record in
the plant, and that he would not tolerate absenteeism.
Following the transfer to the furnace room, Riley ad-
mitted that he was absent 2 days in January and since
then admitted to being late 2 or 3 times and to have
worked 2 partial days. He also was absent in the period
prior to his discharge for 10 days while on medical
leave. He was absent again in April.
As for the discharge, it appears that Riley, in the fur-
nace room was compensated at a third helper's rate, but
was doing a second helper's job. In March, Riley ap-
proached Fleck asking about his rate. Fleck informed
him that he was not given a raise because of his attend-
ance, and again counseled Riley about the latter. Follow-
ing this Riley was again absent. Based thereon, on April
6, Fleck attempted to counsel Riley concerning his ab-
senteeism. Riley became upset charging that he was
being treated unfairly, stating if you "don't want me in
the department, I'll take a transfer." Flick then sent
Riley back to work, and informed Froedge of what had
transpired. Froedge having received information that the
meeting between Fleck and Riley had not gone too well,
sought out Riley to discuss his absenteeism. Riley at the
meeting, responded by accusing Froedge and Fleck of
not treating him fairly, arguing that he was not paid
enough. Froedge indicated that he would not get a raise
working short shifts and with poor attendance. Riley in-
dicated that in that case, he wished a transfer.67 Riley
was again sent back to work. Froedge called Crawford
and learned that the only vacancy available was in the
cleaning room. Froedge then offered that position to
Riley. Riley indicated that he did not wish to go the
cleaning room but wanted to return to the furnance de-
partment. Froedge then indicated to Riley that "With his
attitude he was not needed in the furnace department."
Contrary to the General Counsel, there is no basis for
imputing knowledge of Riley's union activity to the Re-
c Phillip Riley
Riley was discharged on April 6. At the time he was a
second helper in the electric furnace department. As
such, he worked under the immediate authority of Sam
Fleck, who was classified as a "head melter." Fleck re-
ported to Steven Froedge. Prior to his discharge, Riley
signed a union authorization card. He claims to have dis-
cussed the union on a number of occasion in the plant
and in the presence of others in the "melter" classifica-
tion, including Bill Kerst, Ira Haymaker, Danny Ander-
84 Riley admitted that he did not discuss the Union directly with any
of the five melters but that they were present when he discussed it with
Zarel Garland
65 The record does not substantiate that the melters were supervisors
and although the complaints set forth about 43 individuals, all alleged to
be supervisors, no melters were among them
66 This was the second time Riley quit Respondent He did so in 1976,
after 5 years of employment
67 Riley testified that in telling Froedge that he wished a transfer he
indicated that he would work in any department except the cleaning de-
partment Froedge, with corroboration from Fleck, testified that no such
reservation was expressed I credit Froedge and Fleck, who impressed
me as more reliable
HARRISON STEEL CASTINGS CO
spondent.68 The melters, though having worn white
hats, were not shown to possess indicia of supervisory
authority. Froedge credibly testified that he had never
observed Riley wearing union buttons, passing out cards,
or union paraphernalia and had never discussed the
Union with him. He further credibly testified that he had
received no reports that Riley was involved in the orga-
nization effort and was unaware of his union activity. I
find that the discharge of Riley was based solely on his
refusal to accept an offer of transfer on the heels of a
bad feeling engendered by his own frustration of efforts
to counsel him concerning his poor attendace. The alle-
gations that he was terminated in violation of Section
8(a)(3) and (1) of the Act shall be dismissed.
d. Joma Stewart
Stewart was hired in March 1977. Her father, Arthur
Hullihan, had been employed by the Respondent as a
chief chemist for about 45 years, and had known Ken-
neth Freed for about 40 of those years. Stewart in June
1977 volunteered for work in Respondent's Gamma Ray
department. At the time, she was told by Freed and
McBride that she was to be trained for a second shift,
because the only radiographer, Dick Estes, had been
working 60 to 70 hours per week. Stewart was terminat-
ed on April 26, 1979. At that time, Dick Estes was the
only other employee skilled in radiography on the pay-
roll. The Gamma Ray department was subject to super-
vision by Harold McBride, quality control supervisor.
Stewart, prior to her discharge, executed an authoriza-
tion card on March 7, and attended the union organiza-
tion meeting conducted on April 7. There is no dispute
about Respondent's knowledge of Joma Stewart' s union
activity. Thus, Ken Freed on Monday, April 9, admitted-
ly telephone Arthur Hullihan, Stewart's father. Hullihan
was requested to come to Freed's office. He did so,
whereupon Freed informed Hullihan that his daughter
had attended the union meeting the previous Saturday,
and that she seemed suprisingly enthusiastic about the
Union. Freed asked Hullihan to talk to his daughter in an
effort to persuade her to abandon the Union. Hullihan
agreed to try. That same day about 9 a.m., Freed again
called Hullihan at the lab and said, "Mike you don't need
to talk to Joma, we're going to try another tact."
The Gamma Ray department is an arm of Respond-
ent's inspection function, wherein x-rays of sample cast-
ings are taken, using cobolt 60, a by-product of uranium,
as the energy source. Because of the utilization of radio-
active substances, the Gamma Ray room is regulated by
the Nuclear Regulatory Commission (NRC). The depart-
ment is licensed on a 5-year basis by the NRC. The most
recent application, Stewart had the status of "assistant ra-
diographer." In that capacity, under NRC regulations,
Stewart would not be permitted to work alone. Respond-
ent adduced evidence that a month after the application
was filed, on April 10, 1978, Stewart was advanced to
the position of "radiographer." Stewart testified that she
was never advanced to that position, and Harold
68 As in the case of David Freed, Riley's name appears on G C Exh
3 However, as indicated that document was not forwarded to Respond-
ent until well after Riley's termination
1181
McBride admitted that he never informed her of its pro-
motion. 69 Insofar as this record discloses, Stewart was
never informed that she had been advanced to the status
of "radiographer," a classification in which she could
work alone without supervision.
On April 9, the same day that Freed discussed Stew-
art's union support with her father, McBride informed
her that a new shift would be established in the Gamma
Ray room, and that it would be manned by Stewart. At
that time, Stewart simply indicated that she preferred to
remain on the day shift. On April 10, McBride instructed
Stewart to report for work at 2 p.m. the next day. She
did as instructed.70 Prior to April 1979, there had been
no second shift in the Gamma Ray department for about
17 years. Although Stewart had worked on a sporadic
basis alone in emergency situations because the other ra-
diographer was unavailable, and had been told at the
time of her assignment to Gamma Ray that she was
likely to be placed on a night shift, as time passed she
was not assigned to that position until about 2 years
later. This occurred insofar as this record discloses, with-
out Stewart having been informed that she had been
made a "radiographer," and hence qualified to work
alone under NRC regulations.
According to Stewart, she had diffculty working
alone, and felt that she lacked experience to do so.
Having done so for 6 nights, as of April 25, Stewart,
lacking confidence in her ability to continue, wrote the
following note:
Mac: I can not cope with working alone on the
night shift any longer. I cannot handle it physically,
mentally, or emotionally. I already have shingles,
and I feel I will have a total breakdown if some-
thing isn't done.
I can see three solutions to the problem:
A. Put me back on day shift either in Gamma
Ray or quality control.
B. Get me transferred to another job.
C. Fire me.
Unless you perfer B or C, I will start coming in
at 5:30 a.m on Monday, April 30.
X
Joma
McBride relates that on April 26, he found the note in
his desk drawer and that it made him "mad." When
questioned by counsel for the General Counsel, McBride
explained, "Well, I read the note and it made me mad
.. that's all there was to it." McBride claims that he
took the note to Works Manager Dan Lee, expressed his
feelings, and Dan Lee simply told McBride that he was
the boss. McBride then decided to discharge Stewart.
69 The radiology safety officer, Williamson, who allegedly participated
in the promotion of Stewart, is no longer employed by the Respondent
and did not appear as a witness
70 As shall be seen, McBride did not impress me as a reliable witness
Where his testimony conflicted with that of Stewart, it was my opinion
that she was the more believable
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the time of the discharge, Estes and Stewart were
the only radiographers in Respondent's employ. Also,
Estes had been working about 60 hours per week. Prior
to Stewart's transfer to the night shift, an event first an-
nounced on the day Freed discussed Stewart' s union in-
volvement with her father, she generally had worked
only until 4 p.m.; McBride claimed to be aware of the
fact that she did not like working past 4 p.m.
As for the discharge interview, Stewart credibly testi-
fied that she reported for work at 2 p.m. on April 26.
McBride informed her that he had received the note, and
stated that all he could offer was work on the night shift.
Stewart again asked if there was any chances for a trans-
fer, and McBride answered in the negative, indicating
that Stewart was "too valuable" where she was. Stewart
then asked for time to think it over. McBride left and re-
turned approximately 20 minutes later. Stewart credibly
testified that she then informed McBride that she decided
to continue to try working on the night shift, though
very unhappy about it. McBride then said, "in order to
avoid a lot of confusion, I'm going to go ahead and sepa-
rate you."
Thereafter, on April 27, Stewart returned to the plant
and was afforded the opportunity to discuss her termina-
tion with Dan Lee. Lee indicated in the course of their
conversation that he had heard of the note she had left
for McBride and that "several people were pretty upset
by it." Joma indicated that she was upset at the time she
wrote it, and asked for her job back. She discussed the
difficulty she was having working the night shift alone,
and also pointed out that she was working without any
supervision even though she was classified as an assistant
radiographer trainee. Lee indicated that he would check
Stewart's assertion that this was in violation of NRC reg-
ulations and get back to her.
Lee's version of this conversation is not substantially
at odds with that of Stewart He claims, however, that
he did look into her contention concerning NRC regula-
tions, and was informed that Stewart in fact had been ad-
vanced to the position of radiographer.
The record is devoid of suggestion that apart from
Stewart's written expression of dismay on April 25, Re-
spondent had any problems with her ability or work per-
formance. At that time, Respondent's own evidence indi-
cated that pressures to increase output of the Gamma
Ray department necessitated establishment of a second
shift. Respondent, prior to the discharge had invested 2
years of training in Stewart. Her departure left Respond-
ent with only one qualified radiographer and denied Re-
spondent any basis for continued operation of a second
shift in the Gamma Ray department.71
'i McBride testified that at the time Stewart was put on the night shift
the Gamma Ray department was backlogged with orders and Estes was
working 60 hours weekly I give no weight to testimony by McBride,
that prior to the termination of Stewart , steps were taken to reassign to
Gamma Ray a former chief radiographer, who later was assigned as an
assistant radiographer , but had a physical problem requiring his removal
from the Gamma Ray department According to McBride , because of the
pressure on the Gamma Ray department , he made an appointment at a
medical clinic to determine whether Karl Weigle was capable of return-
ing to the Gamma Ray room, and that Weigle was assigned to the
Gamma Ray department immediately after Joma "quit " I did not believe
McBride insofar as he related that efforts to clear Weigle for placement
Thus, Kenneth Freed, prior to the transfer and dis-
charge, admittedly acquired knowledge of Stewart's
union support. Freed, by his own admission, did not hold
this disclosure in confidence. In an effort to discourage
her union support, he enlisted the aid of her father, and
then, according to his testimony, discussed the same
issues with Charles Bowles, a purchasing agent for the
Respondent, whose daughter worked with Stewart and
allegedly informed on Stewart's prounion stance.72 Yet,
Freed would have me believe that his avowed interest in
discouraging Stewart's union activity did not carry him
to discuss her involvement with other management rep-
resentatives, including her boss McBride and Dan Lee. I
believe neither Lee, McBride, nor Freed in this respect,
and I find that on all the evidence, an inference is war-
ranted that McBride, in effecting the precipitate dis-
charge of Stewart merely implemented a scheme con-
trived by Freed to rid the Company of an employee
whom he had hired, and whose prounion support was
viewed as an act of ingratitude toward a Company with
which her father had been identified with for about 40
years.73 I credit Stewart's testimony that she was first in-
formed of her transfer to the night shift on April 9, the
same day that Freed had communicated with her father
concerning her union activity. The timing of those
events amounted to more than mere coincidence. For
McBride, himself, acknowledged that Stewart did not
like to work evenings, and I am convinced that the trans-
fer to an undesired shift was the "tact" to which Freed
in Gamma Ray predated the discharge McBride, with respect to this
entire incident , afforded untruthful testimony at every turn However,
even if I were to believe McBride in this regard, it is noted that Weigle,
as an assistant radiographer , would not be qualified to work alone and
could not be utilized as part of an extension of the second shift
12 It will be recalled that Freed testified that he had two conversations
with Stewart 's father and that in the second , he informed Hullihan that
his efforts would not be needed in the effort to persuade his daughter
against the Union, because a different "tact" would be taken According
to Freed , the tack he had in mind, came to light through an intervening
conversation with Charles Bowles, who suggested that he felt his daugh-
ter could do a better job in talking to Stewart than her father, Hullihan
According to Freed, this seemed plausible to him, and therefore he called
Hullihan back and told him to forget the earlier conversation as the "had
something else in mind " Bowles attempted to confirm that he had such a
conversation with Freed, and that Freed had indicated that he had talked
to Hullihan about Stewart's prounion bent Bowles claims that , while he
did not know the nature of the relationship between Stewart's father and
herself, he felt that because his daughter was her age , perhaps she could
talk to Stewart Bowles admittedly had not discussed the matter with his
daughter before suggesting such an approach to Freed, and he acknowl-
edged that his daughter was not a good friend of Stewart, but merely an
acquaintance As I understand his testimony , Brooks merely held a limit-
ed, generalized conception of the relationship between his daughter and
Stewart Further, although the conversation with Freed would have oc-
curred on April 9 and the discharge was on April 26, Bowles could not
even recall whether he discussed the "tact" with his daughter I did not
believe Brooks or Freed in this respect Freed's explanation that his con-
versation with Brooks provoked his second phone call to Hullihan struck
as illogical and untrue Intervention by Hullihan and the suggestion alleg-
edly made by Brooks were not mutually exclusive means of pursuing
Freed's interest in reversing Stewart's union settlement His incredulous
testimony in this regard impressed as an attempt on his part to veil the
truth, i e , his intent to deal with Stewart's union support through means
more effective than mere persuasion
r3 The propensity of Respondent's high-ranking officials to react in this
fashion was evidenced not only by Freed's special concern for Stewart's
union sentiment , but also revealed itself in the termination of Inez and
Debra Tornquist
HARRISON STEEL CASTINGS CO.
had in mind, when he spoke to Hullihan. Tending to sup-
port that view further was Stewart's credible testimony
that on April 26, in her second conversation with
McBride, prior to the discharge, she expressed her will-
ingness to remain on the night shift, an offer disregarded
by McBride because by then, I find, the discharge of this
trained, skilled, and needed worker had been enscribed
indelibly. For the above reasons, I find that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Joma Stewart on April 26 in reprisal for her union activ-
ity. 74
e. Robert Scott
Scott was terminated on April 13. At the time, he was
a grinder on line 4 in the cleanig room, working the 4
p.m. to 12:30 a.m. shift. His immediate supervisor was
Foreman Don Mitton. On April 13, Good Friday, Scott
did not report to work. He was terminated that evening
by the cleaning room night superintendent, Paul Thomas,
on the assigned ground of "excessive absenteeism."
Scott manifested union support by signing cards both
designating the Union as his representative and indicating
his desire for membership on the employee organization
committee. He discussed the Union with coworkers, and
wore union buttons to work signifying his support.75
I find that Scott was terminated for legitimate cause.
His only explanation for his absence on April 13 was that
he took off to attend to "personal business." He admit-
tedly neither called in, nor otherwise informed supervi-
sion, as he knew was required. In 1978 and 1979, Re-
spondent terminated about 279 employees on the ground
assigned in Scott's case. Scott himself had been dis-
charged by Respondent once in 1970, and again in 1977,
during earlier employment terms, for missing too much
work. Thomas and Mitton credibly testified that prior to
the discharge of Scott, he had been counseled concern-
ing his absenteeism. I find, that the reason assigned for
the termination of Scott was triggered by an unjustified
absence,76 and that absent proof that he was a victim of
disparate treatment or evidence that he was an object of
specific union animus, I find that he was among hun-
dreds of employees terminated annually because of their
inability to fulfill the obligation to attend work. The
8(a)(3) and (1) allegations relative to his discharge shall
be dismissed.
f. Randy Carr
Carr, like Scott, worked in the cleaning department
under Mitton's immediate supervision. Carr had been
warned previously concerning his attendance.77 On
74 The fact that Respondent discharged other employees on grounds
bearing general resemblance to the cause assigned for the termination of
Stewart has been considered However, the evidence offered in this con-
nection was bare-boned, without development of neither the specific cir-
cumstances for the discharge, or the background of the employees in-
volved Respondent's proffer in this regard fails to alter the persuasive
evidence establishing that Stewart was terminated on pretextual grounds
76 Scott's name appears on G C Exh 3, but that document apparently
was not forwarded to Respondent until after his discharge
78 It is noted that Scott's termination slip reflects that he was present
only an average of 30 3 hours weekly, during a 35-week period
77 Based on the credited testimony of Mitton
1183
April 5, he was absent and was discharged by Thomas
for alleged absenteeism.
Carr claims that he signed a union authorization card
and started wearing a union button to work before doing
so. He claims that on April 4, he passed out union but-
tons to fellow workers, and placed a union sticker on a
door leading to the office of a foreman.78
Carr acknowledged that in the event of absenteeism,
"it is mandatory that you report to somebody or some-
one that you are not being at work." By his own admis-
sion, he had been absent 18 days in 8 months.
Carr's testimony that he reported his April 5 absence
to Foreman Mitton was not believed. Thus, Carr testified
that shortly before 4 p.m. on April 5, he visited Mitton's
home to discuss his inability to work that evening be-
cause of his wife's illness. According to Mitton, at this
time, his wife was bleeding due to a "prior" operation
and had to be taken to the hospital. According to Carr,
Mitton told him to go ahead and take care of his wife
and not to worry about working that evening.79 Howev-
er, Mitton denied that Carr had been to his home on
April 5. Instead, according to Mitton, Carr, on the after-
noon of March 8, came to his home with his children,
and indicated that he was taking his wife to the hospital
in LaFayette, Indiana. He was given permission to miss
work that evening. I credit Mitton over Carr.80
In sum, even if Carr were to be believed that he
openly manifested union support during the period prior
to his discharge, I find that his termination was triggered
by his unexcused absence on April 5, and occurred
against a background of poor attendance, which ren-
dered him vulnerable to discharge. There being no con-
vincing evidence that Carr was a victim of disparate ap-
plication of Respondent's attendance policies, 8 i I find
78 It is noted , that the foregoing is based on the uncorroborated testi-
mony of Carr He was not an impressive witness, and reservations exists
about the degree to which, if any , he openly engaged in union activity
78I did not believe Carr's testimony that, in addition to the above he
called the plant that night to report his absence
80 Some support for Mitton 's testimony exists in documentation R
Exh 39 is an absence report made out on Carr dated March 8, 1979, re-
flecting his absence due to the fact that his wife was to have surgery, and
a return-to-work slip dated March 12, 1979, signed by Mitton , indicates
that Carr had been approved for return to work R Exh 22 is a medical
insurance claim form , which substantiates that Carr's wife had surgery on
March 9 In addition , contrary to Carr's assertion that he arrived at Mit-
ton's home shortly before 4 p in , the latter 's timecard for April 5 shows
that Mitton commenced work on that date at 3 30 p in Respondent's
documentation does not conclusively negate the testimony of Carr How-
ever, misgivings concerning Carr's reliability , together with the tendency
in such documentation to confirm the testiomony of Mitton , leads me to
credit the latter in this respect
81 The termination slip prepared on Mitton on April 5, 1979, indicates
that Carr only worked an average of 30 1 hours within a 27-week span
The General Counsel, in the cases of Carr and Robert Scott, argues that
the failure by Respondent to offer the time records of Carr and Scott
warrant an adverse inference It is noted in this contention that Jt Exh
2(o), in the case of Carr, and Jt Exh 2(d) in the case of Scott reflect this
data It was my understanding , based on discussions on and off the
record, that the General Counsel was afforded the opportunity to exam-
ine the underlying payroll records In the circumstances , including the
sheer volume of issues joined in this proceeding , it would be entirely in-
appropriate and prejudicial to the Respondent to draw an inference unfa-
vorable to its cause by virtue of any such omission
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that his termination was not shown to be for other than
legitimate considerations.
g. Edda Van Laere
In August, at Van Laere's request, she had been trans-
ferred to the second shift in her position as a forklift op-
erator in the south core room. 82 On Friday, August 31,
at the threshold of the Labor Day weekend, Van Laere,
while working, received a message that her daughter had
been injured in a bicycle accident. On arriving at home,
and examining her daughter, Van Laere claims to have
found that the injury was not severe. However, having
left in midshift on Friday, Van Laere forfeited her right
to earn pay for Labor Day.83 For this reason, Van Laere
did not report back to work. Instead, she took her
daughter, and went to a local bowling alley where she
bowled in a league.
She returned to work on Tuesday, September 4. Early
in the shift her foreman, Robert Goudy, asked whether
she was on Friday night. Both Goudy and Van Laere
admit that she first referred to her daughter's injury At
this point, the testimony of Goudy and Van Laere is in
conflict. Although both agree that Goudy then pointed
out that Van Laere had been seen at the bowling alley
on Friday night, according to the latter, Goudy indicated
that "Top Brass" reported that she was seen bowling in
a "tourney."84 She claims to have denied bowling in a
tourney, but that she admitted to having bowled. Ac-
cording to Goudy, however, Van Laere denied even
being present at the bowling alley, but when he referred
to information he had received, Van Laere admitted
having gone to the bowling alley, but claims she only
did so to take her husband there. According to Goudy
when he asked Van Laere why she had not reported
back to work, Van Laere did not respond.
Goudy admitted that it was not his idea to fire Van
Laere Goudy also admitted that though Van Laere had
been warned about her attendance both in January and
February 1979, during the ensuing period, her attendance
had improved considerably.
Foundry Superintendent Dean Hughes testified that he
had received reports that Van Laere had gone to the
bowling alley and bowled in a league on Friday night.
He claims to have instructed Goudy to check with Van
Laere when she reported. Goudy reported back that Van
Laere denied having bowled. Although Van Laere was
permitted to complete her shift on September 4, when
Hughes confirmed through a second eyewitness that Van
Laere had in fact bowled on Friday night, he decided to
discharge Van Laere for lying.
82 Van Laere was transferred to nights on July 5 at her request be-
cause of alleged family problems
83 Under Respondent's holiday pay policy, employees, as a precondi-
tion for participation, must work the entire day before and the day after
the holdiay to receive compensation
84 Van Laere claims that Goudy in the course of the conversation told
her that "Top Brass" was watching her and that she had better "walk the
chalk" as he did not want to lose her Although Van Laere's version was
not far from accurate, I am willing to give Goudy the benefit of the
doubt and find based on his testimony that he simply told Van Laere that
if she was going to be off bowling, a lot of people would see her and
management would be the first to learn, and that he probably would have
to take disciplinary action
Van Laere was a union protagonist who openly mani-
fested her support. Earlier, in April, she was among the
members of the pep set crew who were discriminatorily
denied overtime after they began wearing union buttons.
In addition, her husband, also a protagonist of the Union,
had been unlawfully required to remain in his crane
during downtime. Nonetheless, on considerations of the
entire record, I am convinced that Respondent terminat-
ed Van Laere for cause. In this instance, I regarded Van
Laere's testimony to be suspect. Her conduct on Friday
evening struck as indefensible. In this instance, Goudy,
who I have previously discredited, is aided by strong
probability.85 Consistent therewith, I credit Hughes and
find that Van Laere at all times prior to her discharge
denied that she had bowled, and that her discharge was
forged after Hughes had confirmed with a second eye-
witness that she had in fact done so. because the grounds
on which Respondent acted were substantial and unchal-
lenged by evidence of disparate treatment, I find that the
General Counsel has not established by a preponderance
of the evidence that Van Laeres' termination was influ-
enced by union considerations in whole or in part. Ac-
cordingly, the 8(a)(3) and (1) allegation in this respect
shall be dismissed.
h. Dan Watkins
Watkins was terminated on September 17 because he
allegedly "cheated" on his timecard. Watkins, as will be
recalled, was one of the early employee protagonists of
the Union. He attended union meetings , solicited cards,
distributed union literature at plant gates, and often dis-
cussed his prounion views with his supervisors.
It will be recalled that during the preelection period,
Kenneth Freed met with Watkins in the so-called soul
cleansing session in which Watkins sought to express his
own reservations concerning the wisdom of union sup-
port and to elicit Respondent's position. Freed acknowl-
edged that Watkins in that meeting conveyed that he had
undergone "a change of heart" concerning the Union
Later, however, Watkins again openly manifested his
union support, at least by authorizing his name to be in-
cluded as a member of the in-plant organization commit-
tee86 and by serving as a union observer at the election
conducted on May 10.
It will be recalled that Watkins' scheduled work shift
as a maintenance electrician began at 11 p in. However,
he and coworker Grant Campbell frequently reported in
advance of that hour to earn overtime. On September 17,
according to the testimony of William Sexton, a security
guard, Watkins entered the plant, passing the shack
while uttering words she could not hear. Sexton invited
Watkins into the shack whereupon both started talking.
At some point in the conversation, Watkins picked up a
85 Among my reasons for disbelieving Van Laere was the fact that she
had committed herself earlier to bowl in a regular Friday night league as
a member of a team which she had joined despite a conflict with her
workhours She attempted to excuse this action on grounds that her fore-
man had told her that in the near future the plant would go on a 4-day
week I was not impressed
86 See G C Exh 3, a letter dated May 2, 1979, identifying Dan Wat-
kins as a member of the Union's in-plant organization committee
HARRISON STEEL CASTINGS CO 1185
timecard and punched in. Sexton relates that "minutes"
later Grant Campbell arrived and Watkins gave Camp-
bell a timecard which Watkins had previously punched
for Campbell.87 According to Sexton, Cambell arrived
at approximately 9.45 p.m. Sexton claims that Watkins
left the guard shack for the machine shop at approxi-
mately 10:30 p.m.88
Watkins testified that he remained in the guardhouse
and did not report to his work area because he could ob-
serve the electrical department from the location. Since
he saw J. D. Holoman, an electrician on the earlier shift,
in that area and not working, and failing to see anyone
leave for a job, he elected to continue the conversation
with Sexton. As for his punching in, he claims that he
did so only after observing Grant Campbell enter the
parking lot, and that as Campbell passed the guard
shack, Watkins told him that he was available to work if
something came up. According to Watkins, Campbell
said "Okay."89 According to Watkins, he left the shack,
after observing one of the electricians leave on a job, an
event which left Grant Campbell as the only remaining
electrician in the department. Watkins credibly and with-
out contradiction testified that on returning to his work
area, he did not get a job assignment until 11 p.m. that
evening.
Nothing was said concerning this matter for the bal-
ance of Watkins' shift on September 17. On September
18 and 19, he did not work, due to illness. He reported
for work on Thursday, September 20. On his arrival, his
foreman on the night shift, Jack Jones, informed him that
he had received reports that maintenance electricians had
been punching other timeclocks and that they were to
punch in on the timeclock in the electrical department
only. Jones specifically referred to the fact that someone
had clocked in at the guardshack, whereupon Watkins
admitted that he was the one who had done so. In the
course of the day, Watkins had two separate interviews
with Freed, with his discharge communicated in the
course of the second.
Freed claims to have himself made the decision to dis-
charge Watkins.90 He also related that after the "soul
cleansing session" in April, he, together with Shoaf, was
inclined to believe Watkins expressions as to a change of
heart about the Union. However, Freed discovered
about 2 days later that in this respect they had been
"conned."
San Lee testified that he first became involved in the
matter on Wednesday when Carl Delaney related to Lee
that Watkins had clocked in on Monday and stayed at
91 Watkins testified that he did not punch in until he observed Grant
Campbell arrive in the nearby parking lot
88 Sexton denied reporting this incident to management Sexton had
been instructed that as a guard she was not to have visitors in the guard-
house Yet , although she had socialized on the occasion in question with
Watkins for about 45 minutes , she was not reprimanded for her role in
this matter
89 Sexton 's account confirms that Grant Campbell knew that Watkins
was in the guard shack only "minutes" after the latter punched in
90 Freed acknowledged that it was unusual for him to make decisions
as to the discharge of rank -and-file employees , but explained that in this
instance , he "was positive that if we discharged Mr Watkins for any rea-
sons, that it would end up in a hearing "
the gatehouse without reporting for work.91 Lee claims
to have told Delaney, "Well, [we] can't have that . . .
fire him." According to Lee, he then reconsidered be-
cause he "wouldn't want to make a mistake," and there-
fore relayed the information given to him by Delaney to
Freed. Lee specifically explained that because Watkins'
named appeared on several objections to the election, he
wished to avoid firing him for the wrong reason and get-
ting into trouble. It is significant that Lee testified that
with Freed it was decided that the matter would not be
discussed with others until after they had an opportunity
to talk to Watkins.
On September 20, when Watkins returned to work, he
was summoned to the office of Freed. Shoaf, Lee, Freed,
and Delaney were present. Watkins was examined about
his version of the gatehouse incident. Watkins acknowl-
edged that he had punched in at the guardshack and that
he remained in the shack for some time thereafter. 112
Watkins argued that he was ready and able to work, and
from his position in the guardshack he could observe his
work area and could join the crew if he saw them leave
the work area.93 According to Freed, the meeting con-
cluded with Watkins being informed that the investiga-
tion would be carried to others and that evening the de-
cision would be made whether Watkins would be termi-
nated . However, prior to the close of the meeting, Freed
found it necessary to allude to Watkins' union activity.
Thus, according to Watkins, Freed stated , "a man is as
good as his word and that Watkins had proved that his
word was no good." Watkins sought clarification. Ac-
cording to the latter, Freed indicated that he had read in
the papers that "2 days" after Watkins talked to Freed,
he made a complete about face with respect to the un-
derstanding that Watkins would not actively campaign
for a while at least.94
Thus, it is fact that maintenance electricians holding
the position of Watkins worked on an on-call basis. It is
conceivable that they could work an entire shift without
being summoned to perform a single task. Their consid-
erable downtime permits them to do as they please,
sleep , read, etc., or as Foreman Jack Jones testified,
leave the machine shop area, so long as their where-
abouts are known.95 Credible evidence through Watkins
and Sexton establishes that shortly after Watkins
punched in, Grant Campbell, his coworker, entered and
went to the machine shop with full knowledge that Wat-
91 No evidence exists as to how Delaney learned of the gatehouse inci-
dent Sexton denied that she informed anyone
92 I believed the testimony of Lee and Freed that Watkins claimed that
he had been at the guard shack only 15 to 17 minutes
93 Based on a composite of credible aspects of the testimony of Freed
and Watkins
94 Although Watkins was not considered impeccable , I believed his
testimony in this respect because corroborated to a measured extent by
Freed 's own testimony In this connection, it will be recalled that Freed
testified that "2 days" after the April "soul searching session," he and
Shoaf had found that they had been "conned" by Watkins into believing
that he had had a change of heart concerning the Union Freed's recol-
lection of the September 20 meeting was confessedly unclear, but he did
acknowledge that he at that time attempted , in connection with the April
session, to call Watkins a liar "in a nice way "
91 Jones testified that the responsibility for electricians to remain in the
machine shop is lax, but those leaving the area are required to note
where they are going in case a breakdown requires their service
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
kins was in the guardshack. Considered on the entire
record as an actual fact, the vice in Watkins' behavior on
September 17 was twofold: (a) He punched his timecard
at the wrong clock, and (b) he informed Grant Campbell
that he would be in the guardshack, rather than return-
ing to the machine shop himself, noting that he would be
in the guardshack, and then, returning to the guardshack
and remaining there as long as he wished or until sum-
moned at that location to perform a job.96 Although
Foreman Jones' testimony strongly suggests that Wat-
kins' discrepancy was minor, Freed concluded that it
amounted to "cheating." As shall be seen, Freed while
professing to act with caution, apparently arrived at this
conclusion without even attempting to develop facts
about whether the Company was even inconvenienced
by Watkins' offense.97
Respondent's testimony concerning the investigation
purportedly held on September 20 pnor to the discharge
hardly allayed suspicion. As will be recalled, Lee de-
ferred any investigation until after the matter was dis-
cussed with Watkins on Friday, September 20, for as Lee
averred, Freed had instructed him: "Well, before you do
anything, we ought to find out if the man has a reasona-
ble explanation for what happened." After the meeting
with Watkins, it became clear that two areas of concern
existed with respect to his "explanation." The first being
the question about the duration of his stay in the guard
shack, and the second being Watkins' claim that his
action, though wrong, was not that serious. Although
Freed and Lee testified that they would have to follow a
cautious course before disciplining Watkins, the alleged
ensuing investigation was portrayed by Respondent's
witnesses in a confused, if not contradictory fashion, and
hardly seemed tailored to assess possible bad faith on
Watkins' part At best, insofar as this record discloses,
Freed sought to uncover little more than how much time
Watkins actually spent in the guard shack. Indeed, ac-
cording to Freed, the investigation which followed the
first conference with Watkins was limited to the inter-
view of Sexton, a fact confirmed by the following ex-
cerpt from Freed's testimony:
[TJhe next person we talked to was the lady that
was on the gate that night. And she came over to
my office and she gave us her story and told us
what happened And that was as far as it went.98
Freed implicitly denied talking to Watkins' supervisors,
Tom Campbell and Jack Jones, and also denied that
anyone reported that the latter had been interviewed as
part of the investigation. 99
In sum, from beginning to end, the evidence offered
by the defense was unpersuasive. It bore all the trappings
of pretext, including exaggeration, implausibility, and
contradiction. At the same time, other factors bolster the
view that the true reason for the discharge was unlawful.
Thus, Watkins' superior, Tom Campbell, acknowledged
that Watkins was a good electrician, who in his several
years at the plant, developed the skills necessary to effec-
tive performance of that job as well as a familiarity with
Respondent's equipment and facilities. The discharge of
Watkins was the work of Freed who viewed Watkins as
the main proponent of the Union among Respondent's
employees and whose own proclivity toward reprisal is
evident in the discharge of Joma Steward and perhaps
even those of the Tornquists. Indeed, Freed' s animus
concerning Watkins, on the basis of what was viewed by
Respondent's managers as a betrayal, reappeared on the
day of the discharge when Freed found it necessary to
renew and express his displeasure with Watkin's earlier
renunciation, and then almost immediate resumption, of
union support.
Based on the foregoing, I find that the guardshack in-
cident was seized on as pretext for eliminating this
staunch union supporter. It is concluded that the incident
was blown beyond reasonable proportion in order to fa-
cilitate elimination of the individual regarded as the key
employee protagonist of the Union, who had incurred
the wrath of management by having misled Shoaf and
Freed previously about a change in his prounion stance.
I find that by discharging Watkins on September 20, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
I. Kathy Spear
A complaint was issued during a recess in the hearing
on April 8, 1980, alleging that a 3-day disciplinary sus-
pension issued against Kathy Spear on October 3, 1979,
and her discharge on February 27, 1980, were violative
of Section 8(a)(1), (3), and (4) of the Act.
At the time of her termination, Spear was a hoist oper-
ator in the cleaning room, working day shift under Fore-
man Bill Shoaf. Spear, during the organization campaign,
attended union meetings, wore union insignia and stick-
ers, and distributed union literature at the main gate on a
number of occasions. loo Though not called as a witness,
99 See testimony of Respondent' s witness Jack Jones , night-shift fore-
man in the machine shop, to the effect that such a course by Watkins
would have been perfectly proper
94 Freed testified that he was aware of the sensitivity of imposing dis-
cipline on Watkins, because as far as he was concerned Watkins was the
Union's "main man " Therefore, he wanted to proceed with caution and
"to hear both sides of the story." However, he admits that no one report-
ed that work was available for Watkins while Watkins was in the guard-
house, and it is clear on the face of Freed's testimony that he did not
bother to check with Watkins' superiors as to this element of the charge
against Watkins
98 If Sexton is to be believed, in such interview , Freed was informed of
the arrival of Grant Campbell, a fact tending to confirm Watkins ' earlier
explanation , and one which tended to signal that Watkins whereabouts
would have been known to those in the machine shop
99 Lee testified to a far more comprehensive inquiry, which included
interviews with Sexton, Tom Campbell , and Jones In this regard , Sexton
does not disclose an independent interview with Lee, though she admits
that Lee was present when she met with Freed Campbell denied being
consulted in connection with the discharge , but did admit to a conversa-
tion with Lee "sometime in September" which was limited to an inquiry
concerning markings on Watkins ' timecard Jones was not examined
about whether he was consulted It would seem that if Lee had actually
engaged in such interviews pnor to the discharge , he would have report-
ed his findings to Freed, a fact which Freed denied
ioo G C Exh 3 is a letter dated May 2, 1979, from the Union to Re-
spondent It lists more than 80 names as constituting the "in-plant orga-
nizing committee " Although Spear 's name does not appear on the list,
her husband , "Rumzie" was included
HARRISON STEEL CASTINGS CO.
prior to her discharge, she attended the instant hearing
on January 21 and 23, 1980.101
On February 26, 1980, Spear was discharged, with
"absenteeism" being the assigned ground. The back-
ground shows that between January and April 1979,
Spear was absent on 10 working days. Toward the end
of that time, the cleaning department superintendent,
Anno, went through the cleaning room talking to em-
ployees about attendance. At the time, one employee was
given a 3-day suspension. Thereafter, Spear, who had
been off 10 days, inquired about why she had received
no discipline. According to Anno, he told Spear that he
would let her know when her absentee record was too
bad.10 2
Nonetheless, following April 1979, Spear's absenteeism
admittedly continued. She concedes that her foreman,
Shoaf, in August 1979, handed her a computer printout
of her attendance record, stating that Spear had been
"missing too much work."
On October 2, 1979, Spear did not report for work.
Her explanation was that her daughter was sick and had
to be taken to the doctor. She returned to work on Octo-
ber 3 with a medical excuse. When she obtained a back-
to-work slip from the Company's nurse, her foreman,
Shoaf, informed her that she would be given a 3-day dis-
ciplinary layoff.
Between January 1, 1980, and her discharge, Spear
missed a number of days due to family or personal ill-
nesses. She was absent on February 21 and 22, 1980,
worked on Monday, February 25, 1980, and was again
absent on February 26, 1980. On February 27, when
Spear returned to work, she reported to Shoaf that she
was absent the day before because her babysitter was ill,
that Spear's furnace had broken down, and she had no
one to take care of her child. To this, Shoaf replied that
he was sorry, but that she was terminated.103
The General Counsel espouses a theory that Spear's
termination ought be deemed unlawful because, despite a
continuing absenteeism problem, she received no disci-
pline until after her involvement in the Union. As the ar-
101 An ambiguity exists on the face of the record regarding an allega-
tion that the October suspension of Spear was violative of Sec 8(a)(1),
(3), and (4) of the Act There of course is no evidence that such disci-
pline violated Sec 8 (a)(4) In any event, in a colloquy with me counsel
for the General Counsel made representations to the effect that the
8(a)(3) violations based on the suspension were no longer an issue Re-
spondent interpreted these representations in that fashion and from an
overview of the record, it is plain that Respondent made no serious effort
to refute the meager evidence offered by the General Counsel in that re-
spect I find that the action by the General Counsel raises an estopple
against any further assertion that the suspension was unlawful, as Re-
spondent, in reliance thereon , did not join issue through proof to a
degree permitting a conclusion that the matter was fully litigated
102 The foregoing is based on the credited testimony of Anno, a be-
lievable witness I prefer his testimony to that of Spear, while noting that
the variance is slight Her testimony that Anno told her not to worry
about her absentee record seemed unlikely and was rejected
ios The General Counsel, through a prejudicially leading question,
elicited testimony from Spear on direct examination to the effect that she
was given no reason for her termination This type of examination was
regarded by me as failing to elicit credible, reliable proof Identical ques-
tions were propounded concerning other alleged discnminatees in cir-
cumstances where it was obvious that, based on the context of the termi-
nal interview , all involved were aware of the ground for discharge
Throughout, I have given no weight to testimony secured under such
conditions
1187
gument goes it was not until thereafter that her poor at-
tendance was called to her attention, first in August, then
by the 3-day suspension in October, and finally on Feb-
ruary 27, 1980, when she was discharged shortly after
having been granted time off to attend the instant hear-
ing as a witness subpoenaed by the General Counsel.
However, Spear's own 'testimony implies that she was
unable to control an ongoing attendance problem which
impaired her utility as an employee. By her own admis-
sion, her absenteeism mounted during this entire period.
Chronic absenteeism, by its very nature, is assessed by
managers on the basis of performance over a period of
time. And the reasonableness of discipline, as absenteeism
mounts, does not become suspect solely because it first
emerges after the employee manifests union support. Spe-
cific evidence of union animus is required, or at least
proof of disparate treatment. Here there is no such evi-
dence. In the circumstances, I find that the General
Counsel has not established by a preponderance of the
evidence that Spear was terminated for reasons other
than that invoked by Respondent in terminating hun-
dreds of employees in 1978 and 1979. The 8(a)(1), (3),
and (4) allegations with respect to Spear's discharge shall
be dismissed.
IV. CASE 25-RC-7174
A. The Challenges
At the outset of the hearing, the determinative chal-
lenges consisted of 5 that had been previously overruled,
but not counted by the Regional Director, and 61 that
had been unresolved. Of the latter, the Petitioner with-
drew its 51 challenges during the course of the hear-
ing. i ° 4 The remaining 10 challenges related to individ-
uals, named as discriminatees in the consolidated com-
plaints herein; namely, William Bennett, Randy Carr,
Ted Farley, David W. Freed, Vernon Hawkins, Walter
Hembree, Robert Scott, Billy Turpin, Stan Worley, and
Joma Stewart. With the exception of Stewart, all nine of
these challenges shall be sustained, as the allegations of
discrimination made on their behalf were unsubstantiated
and there is no evidence that they had any reasonable ex-
pectancy of future employment. Having found that Joma
Stewart on April 26, 1979, during the critical preelection
period was discharged in violation of Section 8(a)(3) and
(1) of the Act, her eligibility to participate in the election
is established and, accordingly, the challenge to her
ballot shall be overruled.
During processing of this decision, by telegram dated
November 14, 1980, I directed the Regional Director to
open and count the 51 challenges withdrawn by the
Union and the 5 originally overruled by the Regional Di-
rector on January 4, 1980. On November 24, 1980, I was
administratively advised that the revised tally revealed
that of 895 eligibles, 1 ballot was voided, 394 were cast
for, and 470 against representation by the Union. As the
only unresolved challenge (Joma Stewart) is insufficient
to affect the results of the election conducted on May 10,
ioa See ALJ Exh I
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1979, it is evident that a majority of the ballots cast were
against representation by the Union.
B. The Objections
Objections to employer conduct interfering with free
choice in the May 10 election, remain for consideration.
All unresolved objections are predicated on alleged mis-
conduct coextensive with previously resolved independ-
ent unfair labor practices allegations in the consolidated
complaints. Thus, certain grounds on which Petitioner
challenges the validity of the election, including Objec-
tion 5 (removal of UAW badges), Objection 6 (surveil-
lance), and Objection 8 (polling or surveillance) were the
subject of unfair labor practice allegations found to have
been unsubtantiated by the evidence. Accordingly, Ob-
jections 5, 6, and 8 are overruled. On the other hand,
Objections 1, 2, 3, 4, and 7 pertain to subject matter
found to constitute unfair labor practices committed
during the cntical preelection period. Accordingly, I
shall sustain Objection 1, insofar as it relates to threats of
layoff; Objection 2, insofar as it relates to threats of job
loss as related to employees through the Employer's
campaign propaganda; Objection 3, insofar as it relates to
the denial of overtime to members of the pep set crew;
Objection 4, to the extent that it relates to interference
with the right of employees to distribute union literature
in nonwork areas, on nonwork time, on company proper-
ty; and Objection 7, insofar as it relates to the discharge
of Joma Stewart. 105 Based thereon, I find that the em-
ployer engaged in preelection misconduct impeding free
choice and destroying the atmosphere necessary to a fair
election.
CONCLUSIONS OF LAW
1. Harrison Steel Castings Company is an employer
engaged in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW) is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1)
of the Act by threatening employees with layoff, by
threatening employees with job loss if they designated a
union or engaged in a strike, by advising employees to
turn in union buttons to foremen if they decide to no
longer support the Union, by denying employees access
to the plant during their off-duty hours to engage in
union activity in nonworking areas , and by impeding em-
ployees in the exercise of their right to engage in the dis-
tribution of union literature on nonworking time, in non-
working areas.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Inez and Debra Tornquist on May 7,
105 It is noted that Inez and Debra Tornquist were discharged during
the critical preelection period. Although it is entirely possible that these
discharges may have influenced the outcome of the election, both were
nonunit employees, whose contact with those in the voting group ap-
peared to be limited, and whose place of work appeared to be remote
from the latter In my opinion the issue whether these discharges im-
paired the atmosphere necessary to free choice is not free from doubt,
but in the circumstances, need not be resolved
1979, because they refused to engage in antiunion activi-
ty, and by discharging Joma Stewart on April 26, 1979,
and Dan Watkins on September 21, 1979, in reprisal for
their union activity.
5. Respondent violated Section 8(a)(1) and (3) of the
Act by restricting Mike Van Laere to his crane and by
denying overtime to Edda Van Laere, Mike Mitton,
David Roach, Tom Lambka, and Don Soloman on April
14, 1979, in reprisal for union activity.
6. By the conduct described in paragraph 3 and 5
above, together with the discriminatory discharge of
Joma Stewart, as well as the findings heretofore made
with respect to Petitioner's Objections 1, 2, 3, 4, and 7,
Respondent Employer engaged in preelection miscon-
duct interfering with the free choice of employees at the
election conducted on May 10, 1979.
7. The unfair labor practices found above have an
effect on commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. i ° 6
Having found that Respondent discriminatorily dis-
charged Inez Tornquist, Debra Tornquist, Joma Stewart,
and Dan Watkins, it shall be recommended that Re-
spondent offer them immediate reinstatement to their
former position or, if not available, to a substantially
equivalent position, without loss of seniority or other
privileges and benefits. It shall be recommended further
that Respondent make them whole for any loss of pay
sustained by reason of the discrimination against them
from the date of their discharge to the date of a bona
fide offer of reinstatement. Backpay shall be reduced by
interim earnings and computed on a quarterly basis as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Having found that Edda Van Laere, Mike Mitton, David
Roach, Tom Lambka, and Don Soloman were discrimin-
atorily denied overtime work on April 14, 1979, it shall
be recommended that they be made whole for the loss of
earnings entailed. All backpay due in this proceeding
shall include interest as authorized by Florida Steel Corp.,
230 NLRB 651 (1977).107
Because the unfair labor practices found here included
discrimination attributable to Respondent's highest eche-
lons while complaints, containing meritorious allegations
were pending, a proclivity to violate the Act is shown to
a degree warranting a recommendation that Respondent
be ordered to cease and desist from "in any other
manner" interfering with employee rights guaranteed by
108 The Union seeks an order requiring Respondent to recognize and
bargain with it as exclusive representative, as well as extraordinary reme-
dies, including in-plant access , and direct personal notification of employ-
ees as to the unfair labor practice findings made against Respondent
However , no showing has been made that the Union at any time was des-
ignated by a majority More significantly, it is concluded on the entire
record that the violations found against Respondent do not rise to a level
warranting an expansion of conventional Board remedies Accordingly,
the request for a broadened remedial package is denied
107 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
HARRISON STEEL CASTINGS CO. 1189
Section 7 of the Act. See Hickmott Foods, 242 NLRB
1357 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edi08
ORDER
The Respondent, Harrison Steel Castings Company,
Attica, Indiana, its officers , agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Impeding the right of its off-duty employees to
gain access to the plant for the purposes of engaging in
union activities in nonworking areas.
(b) Impeding employees in their right to engage in the
distribution of union literature on plant premises in non-
working areas on their nonworking time.
(c) Threatening employees that loss of jobs could
result from participation in an economic strike.
(d) Threatening employees that their designation of a
union could result in a loss of jobs and layoffs.
(e) Advising employees to turn in their union insignia
to foremen if they desired no longer to support the
Union.
(f) Discouraging membership in a labor organization,
by discharging employees, restricting employees to their
work station, or by denying them overtime, or in any
other manner discriminating with respect to their wages,
hours, or other terms and conditions of employment.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Inez Tornquist, Debra Tornquist, Joma Stew-
art, and Dan Watkins, immediate reinstatement to their
former positions or, if such positions no longer exist, to a
substantially equivalent position, without prejudice to
their seniority or other rights and privileges, and make
them, together with Edda Van Laere, Mike Mitton,
David Roach, Tom Lambka, and Don Soloman, whole
for the discrimination against them in the manner set
forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Attica, Indiana, copies of the
attached notice marked "Appendix."' 09 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election con-
ducted on May 10, 1979, be set aside, and that Case 25-
RC-7174 be severed and remanded for the conduct of a
rerun election at such time as the Regional Director for
Region 25 deems appropriate.
108 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
109 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "