Heatilator Fireplace

National Labor Relations Board - Board Decisions

May 16, 1980

249 N.L.R.B. 544 (N.L.R.B. 1980)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heatilator Fireplace, Division of Vega Industries,
Inc. and Kenneth Baylor and District 131, In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO. Cases 18-CA-5713,
and 18-CA-5795
May 16, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO,
AND
TRUESDALE
On September 28, 1979, Administrative Law
Judge Stanley N. Ohlbaum issued the attached De-
cision in this proceeding. Thereafter, Respondent
and the General Counsel filed exceptions and a
supporting brief and Respondent filed a brief in op-
position to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
' In a letter to the Administrative Law Judge, Respondent objected to
that portion of the General Counsel's post-hearing brief which referred
to
Vega Industries, Inc., 207 NLRB 14 (1973), a prior unfair labor practice
proceeding involving Respondent in which the Board found Respondent
had violated Sec. 8(a3) and (I) of the Act. Respondent argued that the
General Counsel's reference to this case constituted an improper attempt
to introduce evidence after the close of the hearing. Further, Respondent
argued that had the prior case been raised at the hearing, it would have
"offered evidence that . .. few, if any, of the management personnel em-
ployed by the Respondent [then employed] are still in the employ of the
Respondent today." The Administrative Law Judge, taking official notice
of this case, relied on it as proof that Respondent has had an "established
history of resistance if not outright antagonism to the unionization of its
employees." The Administrative Law Judge indicated that if evidence
concerning an alleged change in Respondent's management personnel had
been offered by Respondent, he would have rejected it as irrelevant. In
its exceptions, Respondent requests that the use of the information found
in the prior case as evidence of animus herein "be strickened [sic]." Al-
ternatively, should the Board decide that the Administrative Law Judge
properly took judicial notice of the prior case, Respondent reiterates its
desire to offer evidence that there has been a change in its management
personnel. While we do not agree with the Administrative l.aw Judge
that evidence of a substantial change in management personnel would be
irrelevant, Respondent's prior unfair labor practices properly may be
noted as background here. See Kenworth Trucks of Philudelphia, Incorpo-
rated, 236 NLRB 1299 (1978), and cases cited therein at fn. 2. Additional-
ly, we note that while Respondent has filed an extensive brief in support
of its exceptions to the Decision of the Administrative Law Judge, it has
submitted no evidence in support of the alleged turnover in management
personnel. In any event, without regard to the underlying case, the
record before us shows independent evidence of union animus sufficient
to support the Administrative Law Judge's finding in the instant case
that
Respondent violated the Act.
249 NLRB No. 47
ings, 2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
4
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy
not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951)
We have
carefully examined the record and find no basis for reversing his
findings.
We hereby note the following inadvertent errors of the Administrative
Law Judge, which are insufficient to affect the results of our decision:
In
sec 11I B, of his Decision, the Administrative Law Judge referred
to
James D. Bass as a former employee of Respondent, although the record
contains no evidence in support of such a finding; in the fifth sentence
of
the third paragraph of sec. Ill C, the Administrative Law Judge referred
to "Parrish" rather than "Baylor"; and in the last sentence of the last
paragraph of that section, he referred to "5(j)" rather than "5(i)."
3 We agree with the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)(1) of the Act when its attorney, Shade, re-
quested Fowler, an employee closely allied with management, to
obtain
information concerning union activities from discriminatee Parrish. In
so
doing, however, we rely on the fact that Fowler reported such informa-
tion as requested and that Respondent committed unfair labor practices
based, in part, thereon. See Harvey's Wagon Wheel, Inc., d/b/a Harvey's
Resort Hotel & Harvey's Inn, 236 NLRB 1670 (1978). In view of this find-
ing and, inasmuch as our remedy would not be materially affected,
we
find it unnecessary to pass on the Administrative Law Judge's additional
conclusion that Plant Superintendent Derby's instruction to Supervisor
Pfeiffer to observe and report on employees' union activities was viola-
tive of the Act. We shall modify the Administrative Law Judge's recom-
mended Order accordingly.
The Administrative Law Judge concluded, and we agree, that
Re-
spondent violated Sec. 8(a)(3) and (1) by discharging employee Baylor.
We note that the Administrative Law Judge, in finding Respondent's as-
serted reasons for Baylor's discharge pretextual, stated that at no time
prior to the hearing did Baylor receive, nor was he shown, an employ-
ment termination slip which had been placed in his file by Respondent
and which "purports to rate him markedly worse than his previous rat-
ings." The record indicates, however, that at the time of his discharge
Baylor was handed a discharge slip which he failed to read. Additionally,
although we agree with the Administrative Law Judge's finding
that
Baylor's past work performance was good, we do not rely on his charac-
terization of the testimony of other employees concerning Baylor's per-
formance as "expert evaluations." Furthermore, we disavow, as unsup-
ported and unjustified, the Administrative Law Judge's suggestion that
Respondent acted improperly in discarding a stripper pad on which
Baylor had been working prior to his discharge.
We agree with the Administrative Law Judge's conclusion that Re-
spondent violated Sec 8(a)3) and (1) by discharging employee Wake-
field. In so concluding, the Administrative Law Judge found that Re-
spondent had not credibly established its ignorance of Wakefield's union
activity. We note, of course, that Respondent does not have the burden
of proving its ignorance of Wakefield's union activity, but rather, it is the
General Counsel who has the burden of establishing Respondent's knowl-
edge of Wakefield's union activity. Additionally, we place no reliance on
the Administrative Law Judge's comment that "in the countless tens of
thousands of labor proceedings which the Board had heard and proc-
essed under the Act, almost invariably there are some employees who
attend union organizational meetings who report back to the Employer
or his supervisors concerning them . . We find, however, based
on
the Administrative Law Judge's other findings concerning the discharge
of Wakefield, that the General Counsel has established Respondent's
knowledge of Wakefield's union activity.
4 We agree with the Administrative Law Judge's conclusion that the
nature of Respondent's unfair labor practices warrants the issuance of a
broad cease-and-desist order. We find that such an order is warranted
under the standards set forth in Hickmort Foods, Inc., 242 NLRB No. 177
(1979).
The General Counsel had excepted to the Administrative Law Judge's
recommended remedy insofar as it recommends that interest on backpay
be computed at a rate other than 9 percent per annum We find no merit
in this contention See Florida Steel Corporation, 231 NLRB 651 (1977).
Continued
HEATILATOR FIREPLACE 545
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Heatilator Fireplace, Division of Vega Industries,
Inc., Mt. Pleasant, Iowa, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
Substitute the following for paragraph A, 2:
"2. Directing, suggesting to, or requesting that
any employee engage in surveillance over the
union or any other protected concerted activity of
other employees and report thereon to Respond-
ent."
We have modified par. A, 2, of the Administrative Law Judge's rec-
ommended Order to include only employees engaged in surveillance,
omitting his reference to supervisors.
DECISION
I. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge:
These consolidated cases' under the National Labor Re-
lations Act, as amended, 29 U.S.C. §151, et seq. (Act),
were heard before me in Mt. Pleasant, Iowa, commenc-
ing May 31 and ending November 30, 1978.2 All parties
participated throughout by counsel or other representa-
tive, who were afforded full opportunity to present evi-
dence and arguments, as well as post-hearing briets re-
ceived (after extension of time granted on unopposed ap-
plication by counsel) at the end of January 1979. Com-
pleted exhibits were received on April 30, 1979. Record
and briefs have been carefully considered.
The principal issues presented are whether Heatilator
Fireplace, Division of Vega Industries, Inc.," hereinafter
Respondent, violated Section 8(a)(l) and (3) of the Act
through discharging three employees and through mis-
cellaneous alleged acts of interference, restraint, and co-
ercion within the context of a union organizational cam-
paign.
Case 18-CA-5713: Complaint issued on April II, growing out of a
charge filed by Kenneth Baylor on February 21 and amended on April 7,
1978. Case 18-CA-5795: Complaint issued May 16. growing out of a
charge filed by District 131, International Association of Machinists and
Aerospace Workers, AFL-CIO, on April 28. The cases were consoli-
dated on May lb. Dates herein are in 1978, unless otherwise specified.
Since the allegations of the two foregoing complaints wAere not merged
into a single superseding complaint, to simplify matters the earlier com-
plaint (18-CA-5713) will be referred to throughout this Decision as Case
I and the subsequent complaint (18-CA-5795) as Case 2.
2 The hearing encompassed 8 hearing days, with two intervening con-
tinuances (one sine die for requirements of counsel), 28 witnesses, 92 ex-
hibits, 1,273 transcript pages, and 110 pages of briefs Issuance of this de-
cision has been regretfully delayed because of engorged calendars and
numerous other unavoidable intervening proceedings involving much
travel.
Upon the entire record and my observation of the tes-
timonial demeanor of the witnesses, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
II1. JURISDICTION
At all material times, Respondent has been and is a
New York corporation engaged in the manufacture, sale,
and distribution of fireplaces, in and from its place of
business and office on Vega Road, Mt. Pleasant, Iowa,
where, during the representative 1977 calendar year im-
mediately antedating issuance of the complaint, it pur-
chased and received, directly in interstate commerce
from places outside of Iowa, goods and materials valued
in excess of $50,000. During the same period, in the
course and conduct of its said business, Respondent also
manufactured, sold, and distributed from its said location,
directly in interstate commerce to places outside of
Iowa, products valued in excess of $50,000.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; and that
at those times United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, herein-
after UAW, and District 131, International Association
of Machinists and Aerospace Workers, AFL-CIO, here-
inafter IAM, have been labor organizations as defined in
Section 2(5) of the Act.
III. AL.I.EGED UNFAIR LABOR PRACTICES
Facts as Found
Alleged events will be considered in chronological se-
quence, after setting forth material background informa-
tion. A summary chronology of allegations and findings,
in relation to complaint paragraphs in Case I and Case 2
and witnesses on each side, may be found in Appendix A
[omitted from publication].
A. Background
Respondent's fireplace fabrication plant4 in Mt. Pleas-
ant, Iowa, employed around 400-450 employees in 1977-
78. Its peak production season is from August through
January or February, accounting for work force level
a The name of Respondent appears as amended at the hearing on an
unopposed motion by the General Counsel.
4 Respondent manufactures woodburning insulated (zero clearance)
fireplaces and related accessories.
HEATILATOR FIREPLACE 545
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
variations of 100-150 employees, turnover of whom is
said by its plant manager, Hecht, to be "considerable."
Respondent's concededly supervisory personnel in-
volved here are: Case 1: Phil Hecht, plant manager; Ron
Derby, plant superintendent; Larry Pidgeon, chief tool
and die design engineer; and Ed Seggerman, tool and die
foreman; and Case 2: Roger Duncan, Ronald Garmoe,
Marilyn Miller, William Pratt, and Paul Roth are all su-
pervisors.
Respondent has seemingly had an established history
of resistance if not outright antagonism to unionization of
its employees. 5 Thus, in 1973 the Board determined that
Respondent discharged two of its Mt. Pleasant employ-
ees in violation of Section 8(a)(3), during a UAW orga-
nizing campaign (Vega Industries, Inc., 207 NLRB 14
(1973)). The decision in that case took occasion to point
out that Respondent's conduct disclosed not only its
"hostility towards the Union" (Id. at 20), but also "its in-
nermost antipathy for the Union and the concomitant or-
ganizational activities of its employees" (id. at 19). The
Board Order was enforced by the United States Court of
Appeals for the Eighth Circuit in September 1974 (505
F.2d 736). 6 Additionally in the instant case there was tes-
timony to the same effect. Thus, Jack Edwards, Re-
spondent's former plant superintendent as well as fore-
man and later general foreman, and a most impressive
witness, testified that while he was plant superintendent
(1975-77) Respondent was "strong[ly] anti-union"; that it
was "not happy [with employees] that had union sympa-
thies"; that in 1976 he, as well another supervisor, looked
through trash barrels for union literature, found "quite a
batch" and turned it over to the plant manager; and that
he and other company executives conferred to explore
methods of keeping unions out of the plant. Former
Plant Superintendent Edwards' testimony is bolstered by
that of Respondent's former foreman and supervisor,
William Allred, that in December 1977 (shortly before
the episodes here about to be described), Respondent's
plant superintendent, Ron Derby, told him in the course
of a discussion in Derby's office that "I will get rid of
seven or eight good people to get rid of one union
I This is not to suggest that Respondent, as any employer, does not
have the right to entertain such ideas or actively to oppose unionization
of its employees in any manner not violative of the Act.
6 While Respondent's counsel, in a letter dated February 13 addressed
to the Adminisstrative Law Judge, indicated he "strenuously objects" to
what he characterizes as counsel for General Counsel's "improper at-
tempt to introduce evidence after the close of the hearing in the form ofl
Counsel for General Counsel's reference [in his post-trial brief] to a prior
Board case involving this Respondent," I nevertheless take official notice
of that case since I believe Respondent counsel's position to be mistaken
as a matter of law. Agencies, as courts, may always take official, or judi-
cial, notice of their own proceedings. Cf., e.g., Tama Meat Packing Cor-
poration v. N.L.R.B., 575 F.2d 661, 662-663 (8th Cir. 1978), cert. denied
439 U.S. 1069 (1979); Russell Motors. Inc., 198 NLRB 351, 375-376
(1972), enfd. as modified 481 F.2d 996 (2d Cir. 1973); Henry I. Siegel Co.,
Inc., 172 NLRB 825, 839, 845-850 (1968), enfd. as modified 417 F.2d
1206 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970). In "strenuously
object[ingl" to taking official notice of this previous proceeding, Re-
spondent's counsel urges that if evidence thereof had been submitted at
the hearing, Respondent would have "offered evidence . . that few, if
any, of the management personnel employed by the Respondent . . . are
still in the employ of the Respondent today." If such evidence had been
tendered by Respondent, I would have rejected it, since I regard it as
irrelevant. Respondent counsel's letter of February 13, raising these con-
tentions, is hereby incorporated into the record as ALJ Exh. 1.
pusher." 7 As expressed by Plant Superintendent Ron
Derby, during cross-examination in the instant case, in
January 1978, as well as always, Respondent's "manage-
ment was opposed to unionized or organized labor. We
were a non-union plant.... We were our own boss and
could run our own factory." Since the foregoing are
facts, I consider it fair and proper to consider them in
connection with the overall assessment of matters to be
discussed.
Uncontradicted credited testimony 8 establishes that
active union organizing attempts were resumed9 by Re-
spondent's employees themselves at the beginning of Jan-
uary (1978). Thus, on January 6 an employee emissary to
the UAW office was supplied with 50 union collective-
bargaining authorization cards for signature; and all sub-
sequent active organizing was carried on by employees
themselves, since that union at no time visited the plant
personally. The visit to the Union of this employee emis-
sary (Marvin Hulett) followed an earlier discussion by
him with Respondent's employee Jerry Parrish-subse-
quently summarily discharged by Respondent on January
20, as will be shown-who, after initially reacting nega-
tively and cautioning Hulett that "if you start talking
union, then your life expectancy at this plant is real
short," a few days later changed his mind and, after
Hulett procured a supply of union authorization cards,
on January 13 signed one and agreed to assist, outside
the plant on his own time, in enlisting other employees
to join. Subsequently, on January 16 or 17, Parrish ac-
commodated other employees who sought additional
union cards from him. Meanwhile, on January 9 or 10
Parrish had remarked to Respondent's then senior special
projects engineer (and former general foreman), Lloyd
Fowler, whom Parrish regarded as "one of the few
people around here [who] really care what happens,"
that the Union was (again) "pushing pretty hard to get
in," in view of various employee job dissatisfactions (a
wage freeze and a job code system under which trans-
ferred employees could suffer pay cuts); and, within a
few days thereafter, on January 12 or 13, that seemingly
the Union had already amassed 200 signed cards.
It is thus apparent that in early to mid-January, there
was an escalating (renewed) attempt by Respondent's
employees to organize themselves for union collective
bargaining, against a background of Employer opposition
thereto even to the extent of commission of unfair labor
practices in established violation of the Act.
B. Alleged Unfair Labor Practices in January
The complaint (Case 1, par. 5[c] and 7) alleges that,
during the second week of January, Respondent through
its Plant Superintendent Derby, directed a supervisor to
observe and report on employees' union activities. In
support of this allegation, Respondent's former foreman
and supervisor, Luther Pfeiffer, testified that in mid-Jan-
I Although Derby denies he said this to Allred, upon the basis of com-
parative testimonial demeanor observations as well as because of the
highly evasive and equivocating character of portions of Derby's testimo-
ny, I credit Allred's testimony in preference to Derby's denial.
8 I.e., principally that of General Counsel's witnesses Timmerman and
Parrish.
9 See fn. 6, supra.
-------
HEATILATOR FIREPLACE 547
uary Plant Superintendent Ron Derby asked him, in
Derby's office, if Pfeiffer was aware that management
had "caught a couple of people on the second shift, the
night before, passing out union cards" and whether any
of Pfeiffer's subordinates were "union people." Pfeiffer
indicated that he did not know. Remarking that it was
"some kind of underground deal," Derby then asked
Pfeiffer if he knew anybody he could "trust . . . who
was in the union that would tell, would squeal about the
union activities . . . who would tlk about how many
people had signed up, or what union it was or whatever
they wanted to know." Pfeiffer indicated he did not
know anybody who would do that. Derby instructed
Pfeiffer to report to him or to designated higher manage-
ment officials anybody signing cards or engaged in such
activity. Pfeiffer pointed out that although previous or-
ganizational attempts by UAW had "always started in
welding," this time it was "different," it had "started in
fabrication," and looked as if it might succeed. Derby
agreed with Pfeiffer that in the event of unionization Re-
spondent would move its operations away. Pfeiffer, an
impressively credible witness, was not cross-examined.
However, Derby in general terms denied any conversa-
tion with him regarding union activities. Based upon my
comparative testimonial demeanor observations, the ab-
sence of cross-examination of Pfeiffer, Derby's testimoni-
al equivocativeness on other matters, and the broadscale
conclusionary nature of his denial concerning Pfeiffer
which I do not credit, I credit Pfeiffer's testimony and
find the complaint allegations in question established. 0°
The complaint (Case 1, pars. 5[d] and 7, as amplified
by bill of particulars) further alleges that, around the
same time, Respondent's agent, Matt Shade (its attorney
herein), similarly directed a supervisor to observe and
report on employees' union activities. As to this, the un-
contradicted credited testimony of Respondent's
former foreman, Pfeiffer, establishes that shortly after his
foregoing conversation with Derby, Pfeiffer was called
to the front office and asked by Shade why the employ-
ees wanted a union, to which Pfeiffer responded it was
because of "the wage and the code change." To Shade's
question of whether Pfeiffer knew of anybody who had
signed union cards, Pfeiffer replied in the negative. In
view of Pfeiffer's supervisory capacity I cannot discern
anything violative of the Act in Shade's described que-
ries, I find the complaint allegations in question not es-
tablished and accordingly grant Respondent's motion to
dismiss paragraph 5(d) of the complaint in Case 1.
In similar vein, the complaint (Case 1, pars. 5[a] and 7,
as amended at the hearing and as amplified by the bill of
particulars) alleges that on January 13, Respondent,
again through its agent and attorney Shade, directed an
employee to observe and report on employees' union ac-
tivities. Concerning this, the uncontradicted and credited
testimony of Respondent's then former senior special
'o In so doing, I neither intend nor make any finding that other aspects
of the described conversation were violative of the Act, including any
request by Derby to Pfeiffer that the latter merely report to him any ob-
servations to Pfeiffer coming to the latter's attention in the routine course
of his work or otherwise without engaging or enlisting others to engage
in surveillance activity beyond the Act's protection.
I Shade did not testify.
projects engineer (and, prior to that, its general fore-
man), Lloyd Fowler-at the particular time in question,
although not technically a supervisor within the Act's
definition, nevertheless closely allied to management and
having the responsibility of developing recommendations
to top management concerning capital expenditures, pur-
chase of new equipment, and operating efficiency econo-
mies'2-establishes that on January 16 Shade asked him
if he had "heard of any union activities." Fowler ac-
knowledged that he had, but declined to disclose the
source of his information. Pressed by Shade, however, he
identified Parrish-discharged a few days later, as will
be shown. When Shade asked him if he could get any
more information from Parrish, Fowler replied he
thought that would be "against the rules." Shade then
asked Fowler what union was involved. After first re-
sponding it was the IAM, Fowler corrected this to the
UAW. Shade asked Fowler to bring further information
to him. A few hours later, Fowler had coffee with Par-
rish, and Parrish-unsolicitedly, according to Fowler-
volunteered to Fowler that 200 employees had signed
union cards. Fowler then relayed this information to
Shade, who again asked Fowler to keep him informed if
Fowler "heard anything else." Since Shade did not tes-
tify, Fowler's testimony is uncontradicted. In view of
Fowler's long-term close identification with manage-
ment, I find to be violative of the Act only that portion
of Shade's discussion with him wherein Shade requested
or suggested to him the obtaining of more information
concerning union activities from Parrish, since, in my es-
timation, in practical effect that constituted at least an in-
vitation, if not direction, by one speaking for top man-
agement, to engage in unlawful interrogation or surveil-
lance concerning union activities, in either case pro-
scribed interference with employees' activities protected
under the Act. Employer direction or suggestion to an
employee (whether supervisory or nonsupervisory) that
he do that which is forbidden by the Act, is itself viola-
tive of the Act, since it either constitutes a direct viola-
tion by the employer through his subordinate or at the
least invites, encourages, and promotes violation and pro-
spectively condones and sanctions it. It is accordingly
found that in this aspect the allegations of paragraphs
5(a) and (7) are established. 1 3
The complaint (Case 1, pars. 5[b] and 7) alleges that
on or about January 13 Respondent through its Plant
Manager Hecht directed a supervisor to observe and
report on employees' union activities. In support of this
allegation, Respondent's former foreman (and conceded
supervisor), Allred, testified that on the day in question
Hecht-as part of a longer discussion, leading up to the
12 Fowler had also been transferred to his position as senior special
projects engineer at his own request, without diminution of his former
supervisory pay. continued to have his own office in the plant office
complex, and continued through February to attend daily supervisory
briefing meetings. On his termination, he was, unlike rank-and-file em-
ployees, given severance pay
13 In so finding, in view of Fowler's longstanding close association
with top management, I neither make nor intimate any finding that any
other portion of Shade's discussion with him, or his report to Shade of
what Parrish volunteered to him, was violative of the Act Respondent's
motion to dismiss par 5(a) of the complaint in Case I is accordingly
granted, except insofar as hereinabove otherwise found.
HEATILATOR FIREPLACE
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of Parrish, as detailed below-instructed
Allred, "I want you to watch him [Parrish] so that he
does not pass out [union] cards and to watch that he
does not talk to other people concerning the union," and
that if Parrish was caught in the act he should be termi-
nated. Although I credit Allred's testimony over Hecht's
denial that Hecht said this, I cannot see anything viola-
tive of the Act in such an instruction-fairly construable
as referring to working time-by an employer to a super-
visor, and accordingly find the allegation in question not
established and therefore grant Respondent's motion to
dismiss paragraph 5(b) of the complaint in Case 1.
The complaint (Case 1, pars. 5[g] and 7) as amplified
by bill of particulars) alleges that on or about January
15, Respondent through its agent and attorney Shade
again directed an employee to observe and report on em-
ployees' union activities. Concerning this, Respondent's
then subcontract coordinator (and former plant superin-
tendent and, before that, general foreman), Jack Ed-
wards-at that particular time not a supervisor as defined
by the Act, but importantly established in Respondent's
executive hierarchy, with contract commitment authority
to around $20,000-testified that on Monday, January 16,
following a conversation on the previous Friday, Janu-
ary 13, in which Edwards sought out and passed on to
Plant Manager Phil Hecht information Edwards had re-
ceived concerning union activity in the plant, he (Ed-
wards) was asked by Company Attorney Shade what he
knew about union activity in the plant. Edwards repeat-
ed to Shade what Edwards had volunteered on the pre-
vious Friday to Hecht. In response to Shade's asking his
opinion as to the cause of the activity, Edwards told him
he thought it was an ongoing wage survey and that
Plant Superintendent Derby's "trying to tighten up the
reins a little too quickly and he had upset a lot of
people." Edwards also told Shade, in response to a ques-
tion by the latter, that he had not seen union cards
passed out during worktime. Particularly in view of Ed-
wards' direct association with Respondent's executive
hierarchy, as well as his having volunteered substantially
the same information to Plant Manager Hecht a few days
before, I do not regard the described episode-which,
again, stands undisputed by Shade-as constituting coer-
cive interrogation or as otherwise violative of the Act.
Accordingly, I find paragraph 5(g) of the complaint in
Case I not established and grant Respondent's motion to
dismiss that allegation.
The complaint (Case 1, pars. 5[h] and 7) further sets
forth that on or about January 20, Respondent through
its Plant Manager Hecht interrogated an employee con-
cerning union activity. On this, Respondent's employee
Jerry Parrish-who was terminated on that day (January
20), under circumstances detailed below-testified that
on the date in question, in the course of various discus-
sions with Plant Manager Hecht, in the latter's office,
leading up to Parrish's discharge as described below,
Hecht put the direct question to him, "Who [is] behind
the union?" Parrish said he did not know. He was there-
upon summarily discharged, under circumstances de-
tailed below. On comparative testimonial demeanor ob-
servations, I credit Parrish's described testimony in pref-
erence to Hecht's unconvincing denial and to the broad
denial of Plant Superintendent Derby (who was there
upon the evasive and unsatisfactory quality of whose tes-
timony I have already had occasion to comment) that
union was mentioned. Accordingly, upon the preponder-
ance of the substantial credible evidence upon the record
as a whole, I find the complaint allegation in question es-
tablished.
January 20: Discharge of Parrish
The complaint (Case 1, pars. 6[a], 6[c], 7, and 8) al-
leges that on January 20 Respondent discharged its em-
ployee Jerry Parrish because of his union organizational
activities, discriminating against him by reason thereof,
and to interfere with, restrain, and coerce him and other
employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
Jerry Parrish, now 30 years of age, entered Respond-
ent's employ on November 27, 1971, as a second-shift
pipeline insulator, and, until his summary discharge over
6 years later, on January 20, 1978, held a succession of
more responsible jobs including that of leadman, shift
leadman, and even acting foreman (November or De-
cember 1976-June 1977) with 32 or 33 employees under
him. In November 1977 he was assigned to the job of
forklift and crane operator on the second shift. And, in a
context of his union organizing activity, on January 18,
1978, 2 days before his discharge, he was taken off fork-
lift/crane operations and returned to operating a shear, a
job he had previously briefly held. Parrish testified to
these and succeeding facts with persuasively quiet assur-
ance and dignity, leading me to regard him as a witness
worthy of credit.
It will be recalled that on January 9 or 10 (Monday or
Tuesday) Parrish's fellow-employee Marvin Hulett (a
second-shift shear operator) engaged him in talk and in-
terested him in the possibility of joining with him in at-
tempting (again) to organize the employees for collective
bargaining, although Parrish's initial reaction was that "if
you start talking union, then your life expectancy at this
plant is real short." Relenting after a few days, however,
on January 13 (Friday), outside of the plant, Parrish
asked Hulett for some union cards and agreed to com-
mence on his own time and off plant property, soliciting
employees to join; and he did so, commencing on Janu-
ary 16 or 17 (Monday or Tuesday). It will also be re-
called, however, that on January 9 or 10 Parrish had
dropped the intelligence, during chitchat with General
Fabrication Forman Fowler, whom he regarded as "one
of the few people around here [who] really care what
happens," that the Union was "pushing pretty hard to
get in," adding to him a few days later (January 12 or
13) that the Union appeared to have 200 signed cards al-
ready. It is necessary to consider this and subsequent
events within the context of Respondent's established
and conceded strong opposition to any union affiliation
by its employees. On Wednesday, January 18, shortly
after reporting to work, Parrish was abruptly and with-
out forewarning removed from his forklifting drive and
returned by Supervisor Allred to operating a shearing
machine, Allred telling him merely that Plant Superin-
tendent Ron Derby and Plant Manager Phil Hecht had
told him (Allred) to "get [you] off the fork lift and put
HEATILATOR FIREPLACE 549
[you] back on a machine . . . because it took [you] too
long to load the truck . . . [and] to fire [you] for what-
ever reason [I] could find and if [I] couldn't find one, to
make up one." If this suddenly awakened interest by two
top managers of the plant, Hecht and Derby, in a lowly
employee like Parrish seems suprising it is even more so
that Allred, Parrish's supervisor, testifying here, not only
does not dispute Parrish's testimony but swears-and I
credit him in preference to Hecht's denials-that on Jan-
uary 13 or 16, Plant Manager Hecht called him into his
office and asked him, "Would you feel uncomfortable
firing Jerry Parrish.... I want him gone by 11 o'clock
tonight if at all possible. You can use a reason like, he is
not wearing his safety glasses, because he has been writ-
ten up several times because he hasn't worn his safety
glasses before.... I have statements that Jerry Parrish
passed out union cards. .... He [is] the type of individu-
al that we [do] not want or did not need in big [Vega?]
industries." Hecht added-still according to credited tes-
timony of Respondent's then foreman, Allred, an ex-
tremely persuasive witness-that Allred could not use
Parrish's passing out of union cards as a "reason" for ter-
minating Parrish unless he saw him doing that "during
working hours." Hecht directed Allred "to watch him
[Parrish] so that he does not pass out cards and to watch
him that he does not talk to other people concerning the
union," and that if he observed him to be doing this "to
terminate him." Allred informed Hecht that Parrish had
told him that he (Allred), with others, was on a "hit list"
of employees to be terminated. 14
On the following Monday, January 16-still according
to credited testimony of Respondent's former foreman,
Allred-Allred was again called into Plant Manager
Hecht's office at the beginning of Allred's (and Parrish's)
second shift in midafternoon. Hecht asked Allred if he
had terminated Parrish on the previous Friday night
(January 13). Allred replied that he had not since he had
not observed him without safety glasses or passing out
union cards. Hecht directed Allred to continue his watch
over Parrish and to restrict Parrish's forklift operations
to a confined area where he could not "talk" to other
employees. A few hours later, Plant Superintendent
Derby instructed Allred, "I want Jerry Parrish off the
fork lift. I want him gone by Wednesday night. I don't
want him.... I don't care what reason you use, tell him
we need shear operators worse than we need fork lift op-
erators . . . I don't want him able to go around and visit
with other people . . . he will be less accessible to the
people, running a machine.... less apt to be able to talk
to people about the union.""' When Allred demurred it
was for no reason, Derby rejoined, "You will do as I tell
you, or I will get rid of you and find somebody that
will." Derby added that Allred could write an employee
up and terminate him the same night, specifically Parrish
as well as another employee who had been observed
passing out union cards. Allred thereupon carried out
these orders and, on Wednesday evening, January 18, re-
moved Parrish from his forklift operating job and trans-
ferred him to operating a shear. Parrish asked Allred if
'4 Allred was subsequently indeed terminated, on March 5 More will
be said below about this "hit list."
16 I do not credit Derby's denial relating to this conversation.
supervisory personnel were "watching [me]." Allred said
they were, since he himself had observed that day that
Hecht and Derby, as well as another high Company offi-
cial, were keeping a close eye on Parrish. Parrish asked
Allred if they were "out to get [me]." Allred said yes.
Parrish asked him why. Allred replied, "I am not free to
answer that question." On Thursday, January 19, Allred
observed-confirming Parrish's own observations-that
the foregoing three top company executives continued to
keep a close watch over Parrish. All of the foregoing
was impressively and, in my estimation, truthfully re-
counted by Respondent's former foreman, Allred.
A commentary on the quality of Parrish's work per-
formance on the forklift, from which he was summarily
removed on January 18, 2 days before his discharge, is
afforded by yet another former foreman (stipulatedly a
supervisor) of Respondent, Luther Pfeiffer, likewise an
impressively credible witness. Pfeiffer, who was over
Parrish in his forklifting operations, characterized Parrish
as "extremely fast and extremely good.... You just
didn't have to stand over and supervise him at all.
whereas Parrish's replacement was poor.
It will also be recalled that another of Respondent's
supervisors, its Senior Special Projects Engineer'fi and
former General Foreman Lloyd Fowler, at one time
Foreman Allred's superior, likewise testified, persuasive-
ly and without contradiction, that on Monday, January
16, Respondent's counsel, elicited from him that he had
heard of union activity from Parrish, and that Shade
asked him if he could get more information from Parrish.
When Fowler demurred, Shade questioned him further
and asked him to report additional information back to
him, which Fowler indeed did a few hours later-the
further information being that he had learned from Par-
rish that around 200 union cards had been signed. Par-
rish-also according to credited testimony of Fowler
(whom I credit in preference to Hecht's denial)-had
previously been removed from his job as third-shift lead-
man (or acting foreman) and transferred to the second-
shift (as a shear operator) around August 1, 1977, on
order of Plant Manager Hecht, so that Parrish would
have no further contact with other employees, in order
to avoid "trouble and . .. union problems," Hecht char-
acterizing Parrish to Fowler as an arrogant ...
pusher." 1 7
Credited testimony of still another of Respondent's
former high-ranking supervisors, one-time Night Shift
General Foreman Jack Edwards establishes that on
Thursday, January 19 (when Edwards was the Company
subcontract coordinator, salaried and on a severance-pay
basis [unlike rank-and-file employees], with an office of
his own but no direct subordinates), as he was walking
past Parrish's workplace, Parrish told him, "I'm going to
"' Until his termination on March 7, 2 days after Foreman Allred. Par-
rish had also disclosed to Fowler that he, also, was on Respondent's "hit
list" to be terminated. See fn. 14, supra. At his termination Fowler was
reminded by Plant Manager Hecht that he was being given severance
pay and was expected to "cause[d] the company [no] embarrassment or
problems." Hecht left "embarrassment or problems" undefined
" Speaking of "pusherlsl," Foreman Allred's testimony, supra, will be
recalled, that Plant Superintendent Derby told him in December 1977
that "1 will get rid of seven or eight good people to get rid of one union
pusher."
HEATILATOR FIREPLACE
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do something that I never thought I would do. I'm going
to call Cranshaw [Respondent's president, at its home
office in Syracuse, New York] and tell him what is going
on around here ... especially in Fabrication." 8 Ed-
wards wished Parrish "more power," while expressing
doubt that Parrish could reach Cranshaw. The following
day (Friday, January 20), Parrish and Edwards were ter-
minated,19 under immediately preceding circumstances
which will now be described.
As he had indicated to Edwards on January 19, Par-
rish attempted, by long-distance telephone from his
home, to talk to Respondent's president, Cranshaw, in
Syracuse, New York. Parrish was told he was not there
and he did not leave his name. On the following morn-
ing, January 20, Parrish again telephoned Cranshaw.
This time, when he was told Cranshaw would not be in
until the following week, Parrish asked that he telephone
Lloyd Fowler or Jerry Parrish of Respondent's Mt.
Pleasant plant. Parrish thereupon apprised Fowler of this
and requested Fowler to supply Cranshaw with Parrish's
telephone number if he called. Fowler said he would, but
asked why Parrish had left Fowler's name also. Parrish
replied that since Cranshaw knew Fowler's but not Par-
rish's name, it was more likely that Cranshaw would call
back. However, Parrish thereupon again telephoned
Cranshaw's office and canceled the request that he call
Fowler, specifying instead that he call Parrish only. As
soon as Parrish reported to work that afternoon (at 3
p.m.), Plant Superintendent Derby informed him that
"the old man wants to see you up in front office....
Phil Hecht wants to see you." Parrish reported to
Hecht's office immediately, there encountering Hecht
with two other company executives. Without prelimi-
nary, Hecht asked Parrish why he had called Syra-
cuse. 2" Parrish said it was a personal matter. Hecht
asked if he had talked to Cranshaw. Parrish said no.
Hecht asked Parrish where he had obtained his informa-
tion about a "hit list."21 Parrish declined to say. Hecht
asked what the list was. Parrish explained it was a list of
individuals to be fired at the earliest opportunity. Hecht
asked him who was on it. Parrish responded that it was
himself, Fowler, Allred, Edwards, and Pfeiffer. 22 Hecht
repeated his demand for the source of Parrish's informa-
tion, stating he wanted to know whom the Company
could not "depend on" in the front office. Hecht then or-
dered Parrish to return to work. About an hour and a
half later, Parrish was again summoned to Hecht's office,
where Hecht this time asked him where he had obtained
the Company's Syracuse number. Parrish replied it was
out of the telephone book. Hecht again asked why Par-
rish had called and Parrish again said it was "personal."
'8 A little over a week prior to this. Parrish had discussed with Ed-
wards perceived problems concerning overtime and efficiencies as well as
the way Parrish had been treated (demotional job transfers, supra). In
acordance with his usual practice, Edwards had, on or about January 10,
reported this discussion to Plant Manager Hecht. However, Edwards did
not report the conversation of January 19.
19 No issue is presented here concerning the termination of Edwards.
20 Fowler had reported to Hecht and Shade what Parrish had told
Fowler. When Fowler was asked to take a lie detector test, he indignant-
ly refused.
21 See fns. 14 and 16, supra, and accompanying text.
22 All were, indeed, terminated that day or shortly afterwards.
Hecht reiterated his demand for the source of the "hit
list." Parrish repeated he could not disclose the source
because of a personal promise he had made. When Hecht
insisted he disclose the source, Parrish asked him what
"options" he had if he did not do so. When Hecht did
not respond, Parrish disclosed his source by name-
James D. Bass, a card-playing associate and former em-
ployee of the Company, who Parrish further indicated
he believed had obtained it from a female friend of Bass'
in the office. Parrish was told to return to work. Parrish
there (at the shear) rejoined his assistant, Hulett-who, it
will be recalled, had procured the union cards which he
and Parrish had been distributing around among the em-
ployees for signature-but Parrish was abruptly, in mid-
shift and without explanation, removed from the shear
operation and assigned to a brakepress until shortly after
6 p.m., when he was again escorted by Plant Superin-
tendent Derby to Plant Manager Hecht's office, where,
in the presence of Derby and another executive (Tucker,
who did not here testify), Hecht again demanded that
Parrish disclose his source of information about the "hit
list." Parrish reiterated his previous responses. Hecht
then demanded to know "Who [is] behind the union?"
Parrish said he did not know.23 But at some point Par-
rish did tell Hecht that he had called Cranshaw to tell
him about conditions in the plant and the advent of the
Union. Hecht terminated the episode and Parrish's 6-year
employment with, "You have tried to unsurp [sic] . . .
the authority of management class personnel. You are
fired. You will be escorted back to your machine to pick
up your personal belongings and then you will be escort-
ed out of the plant." According to the testimony of Re-
spondent's former executive and general foreman,
Fowler, on the following day (Saturday, January 21)
Plant Manager Hecht told him on the telephone that
Parrish had been fired "for trying to undermine manage-
ment." However, Fowler credibly further swears that
Company President Cranshaw had previously apparently
encouraged direct calls in case of "any problems."
Respondent's officials Hecht and Derby testified con-
cerning the foregoing. Plant Manager Hecht (who re-
ports directly to Company President Cranshaw in Syra-
cuse, New York), initially testified that he discharged
Parrish for three reasons: (1) because he had made
known the "hit list," (2) because he had lied to him
about making known the "hit list" and (3) because he
had first denied and then admitted he had telephoned the
corporate offices directly. When he testified later in the
proceeding, however, Hecht indicated that he discharged
Parrish only because of the "hit list" episode and nothing
else, "for lying to me; for trying to discredit a member
of management;2 4 . . . and because he would not di-
vulge to me who the girl in the office was [who had dis-
2s Upon the basis of comparative testimonial demeanor observations, I
credit Parrish, over the denials of Hecht and Derby, that the statement
ascribed to Hecht was made. That Parrish's response may be taken as in-
dicative of the coercive character of the interrogatory, cf. Bonnie Bourne,
an individual d/b/o Bourne Co. v. N.L.R.B., 332 F.2d 47, 48 (2d Cir.
1964).
24 Hecht indicated the member of management to be Fowler, but the
manner in which Parrish is regarded as having attempted to "discredit"
him remains seemingly unexplained. It will be recalled that Fowler him-
self was terminated shortly thereafter.
HEATILATOR FIREPLACE 551
closed the "hit list"]." 25 Concerning Parrish's call to
Cranshaw, Hecht takes the position that while it was not
"wrong" for Parrish to call Cranshaw, but was "wrong"
for him to leave somebody else's name, 26 while at the
same time conceding that it was not "necessarily" wrong
to call Cranshaw and leave another name while also in-
forming the other person he had done so and to refer
Cranshaw's call to him (Parrish) when he called back.
Not even Hecht, apparently, takes the position that Par-
rish was fired because of his calls to Cranshaw. Hecht
concedes that the quality of Parrish's work was satisfac-
tory.
Plant Superintendent Derby added little of significance
to Hecht's account. Derby's testimony, interlaced with
hedging, vacillation, and evasion, was in large part-par-
ticularly in his attempts to deny awareness of union orga-
nizational activity other than vague "rumors, general
scuttlebutt"-unconvincing. He conceded, on cross-ex-
amination, that in January, as always, Respondent was
opposed to "unionized or organized labor. We were a
non-union plant.... We were our own boss and could
run our own factory." With regard to Respondent's dis-
ciplinary procedures, in light of the precipitate nature of
Parrish's discharge after over 6 years of satisfactory per-
formance, while Derby described a four-step procedure,
including an initial "verbal warning notice" and eventu-
ally discharge as the fourth step, he also indicated this
policy was "kind of ... mixed" and not followed "like
it should have been in a lot of areas." 27
I reject any testimony, suggestion, or intimation by
Hecht or Derby that they were ignorant and unaware of
Parrish's union organizational activities-the credited
evidence, as recounted above, is overwhelmingly to the
contrary.
On the record presented, I am persuaded that the true
and sole causative reason for Parrish's discharge was his
known participation and relative preeminence in union
organizational activity in a plant with an established in-
tolerance to such activity by its employees and one
which remains opposed (in Plant Superintendent Derby's
words) to "unionized or organized labor. We were a
non-union plant.... We were our own boss and could
rs It will nevertheless be recalled that Parrish had told Hecht who
gave him the "hit list"-i.e., Bass. While purporting not to believe Par-
rish, Hecht concedes he made no attempt to determine the accuracy of
Parrish's statement, either through Bass or in any other way.
26 The circumstances of this episode, including the fact that Parrish
also left his own name, informed Fowler, and at once placed another call
to Cranshaw's office and canceled Fowler's name, will be recalled.
27 While, on comparative testimonial demeanor observations and
Derby's generally evasive mien and evasive testimonial performance I
would have no rational basis for crediting (and therefore do not credit)
his statement, in preference to Parrish's denial that, when Derby escorted
Parrish out of the plant after the latter's discharge, Parrish remarked to
Derby, "I will get that little son of a bitch," seemingly referring to Hecht
who is short of stature, I would nevertheless in any event not regard
such a remark as disqualifying Parrish-abruptly fired after 6 years of ad-
mittedly satisfactory work-for reinstatement, under the circumstances
shown.
2s No suggestion is here intimated that such ideas may not be enter-
tained or such ideas fostered (other than requiring, insisting upon, or en-
forcing a "non-union plant") by an employer, provided this is done
within the context of obedience to the congressionally declared national
will as expressed in the Act
run our own factory." 2 s Parrish was a satisfactory em-
ployee of over 6 years' standing in a plant with a high
labor turnover. When, in a context of continued employ-
er opposition to any attempt at unionization of its em-
ployees-which is the employees' right guaranteed by
the Act-Parrish emerged as a known union "pusher," it
was this and this alone which with stark suddenness pre-
cipitated his sure job demise. Under the circumstances
shown, I am persuaded and find that the reasons ad-
vanced by Respondent for its discharge of Parrish were
and are pretextuous, the true reason being his union or-
ganizational activity. 29
Also on the date of Parrish's discharge, January 20,
according to the complaint (Case 1, pars. 5e] and 7, as
amended at the hearing and as amplified by bill of par-
ticulars), Respondent through its agent and attorney
Shade again directed an employee to observe and report
on employees' union activities. This once more refers to
a request or direction by Shade to Fowler, of the same
genre as the second one on January 16 (supra), made on
January 20 after Fowler reported to Hecht on Parrish's
attempted telephone call to Cranshaw. Since, according
to Fowler's credited testimony, all that Shade asked or
told Fowler to do was "if [you hear] anything else to be
sure and report it, as far as union activities [are] con-
cerned," and-as I have said before-in view of Fowl-
er's relative eminence in Respondent's executive hierar-
chy, I do not regard such a request or direction to him,
as a close ally of management, to have been improper, so
long as mere reporting of information "heard" and no
unlawful procurement of such information was directed,
asked, suggested, or involved, and in this instance there
is no basis for concluding there was. I accordingly find
the allegations of the complaint paragraph under discus-
sion not sustained, and grant Respondent's motion to dis-
miss it.
The complaint (Case 1, pars. 5[f], as amended at the
hearing to add interrogation, and 7) still further alleges
that on January 26 or 27, Respondent through Plant
Manager Hecht again directed an employee to observe
and report on employees' union activities, and also inter-
rogated the employee on that subject. Once again, the
"employee" involved is Fowler, about whose hierarchial
status repeated comment has already been made. In view
of that status and since, according to Fowler's credited
29 I do not credit Hecht's supplemental contention that he also fired
Parrish-an employee of over 6 years' standing-for "lying" to him in
not immediately admitting and disclosing to him the source of his infor-
mation about the "hit list." To begin with, the fact is that Parrish did not
"lie" to him, but disclosed his source. It is additionally to be noted that
there is no basis for concluding that Parrish was in any way involved in
any scheme or plot to procure that "list," or that he participated in its
procurement; on the contrary, he came by it innocently and accidently
As for Parrish's attempts to reach Cranshaw on the telephone to venti-
late his concerns on behalf of employees, within the context of Parrish's
organizational activities, although seemingly no serious contention is
pressed that Parrish did not have that right or that he was discharged for
its exercise, even if it were, Parrish's action was protected under the Act
Cf., e.g., N.L.R.B. v. Washington Aluminum Company. Inc., 370 U S 9
(1962); Guerdon Industries, 199 NLRB 937 (1972)
HEATILATOR FIREPLACE 51~
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony, the only thing that Hecht asked him was "If
[you have] heard anything more about the union," and,
after Fowler said "No," that "if you do, you be sure and
let me know about it," for the same reasons explicated in
the immediately preceding paragraph concerning Shade
on January 20 (Case 1, pars. 5[e] and 7), I find the allega-
tion in question (id., par. 5[f]) not sustained, and grant
Respondent's motion to dismiss it.
C. Alleged Unfair Labor Practices in February
February 10: Discharge of Baylor
The complaint (Case 1, pars. 6[b], 6[c], 7, and 8) al-
leges that on February 10 Respondent discharged its em-
ployee Kenneth Baylor because of his union organiza-
tional activities, discriminating against him by reason
thereof, and to interfere with, restrain, and coerce him
and other employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
Kenneth Baylor, now 23 years of age, with about a
year and a half of college involving heavy emphasis on
mathematics, entered Respondent's employ in March
1976, continuing there for 2 years until his discharge on
February 10, 1978. Baylor started as a punchpress opera-
tor in the Fabrication Department, but soon (after 3
months), at the invitation of Tool and Die Shop Fore-
man Ed Seggerman, competed for a prize assignment to
the Tool and Die Shop. After interviews and testing,
Baylor emerged as the successful candidate and was as-
signed to the first shift of the Tool and Die Shop as an
apprentice under a formal federally funded training pro-
gram under which he purchased his own tools but was
to receive subsidized outside schooling for 3 hours a
week for 4 years plus 8,000 hours of shopwork. During
all of his tenure as a tool and die apprentice, Baylor
functioned under Tool and Die Shop Foreman Segger-
man, for a time as leadman on the third shift, 3° perform-
ing the regular duties of a tool and die apprentice and
attending classes at the same time. In November 1977,
when Senior Engineer Young and Tool and Die Design
Department Supervisor Pidgeon invited Baylor to trans-
fer to that department as a better opportunity, Baylor,
after consulting with Seggerman, followed his suggestion
and declined in order to attain his tool and die journey-
man status first. At the time of his precipitate discharge
without forewarning on February 10, under circum-
stances to be described, Baylor had successfully complet-
ed close to half, or 3,600 hours, of his required shopwork
to qualify as a full-fledged journeymen tool and dieman,
and he had progressed from a starting tool and die shop
wage rate of $3.83 to $4.90 per hour. He credibly insists
there was no criticism or warning concerning his work
during his entire tenure as a tool and die apprentice up
to the time of his precipitate discharge on February 10,
with one very early exception described below.
On February 8-2 days before his precipitate dis-
charge-Baylor accepted and signed a union card, which
"0 Although Baylor was advanced by Seggerman to be leadman on the
third shift and served in that capacity from October 1976 to January
1977, he was constrained to request (and he received) reassignment to the
first shift because (of inability to procure a babysitter since his wife also
worked
he returned to a fellow worker (George Light) the next
morning, February 9, 1 day before his discharge. On the
following morning, February 10-the day of Baylor's
discharge-at or around 10 a.m., in the Tool and Die
Shop, a discussion took place in loud tones ("just about a
yell": Baylor) above a din of the machines being operat-
ed by Baylor, with tool-and-die maker George Light and
tool and die machinist Clifford Peron, in the presence
and within earshot of first-shift Tool and Die Leadman
John Mayberry (a witness herein on behalf of Respond-
ent, as will be shown). Baylor yelled out at Light, "What
[is] going to happen with the union cards," since (as
Light stated) "Bob Seggers had been fired [on February
9] and [Seggers] supposedly . . . was to get the union
cards back." 3' Light yelled back that he had given them
to punchpress operator Gerald Adams. Parrish-to my
observation a highly sincere and utterly credible young
man whose testimony is worthy of credit, and whom I
believe-insists that during the foregoing exchange Lead-
man John Mayberry was looking right at him, and that
Mayberry registered suprise and left the Tool and Die
Shop a few seconds later. As he did so, Peron remarked
to Baylor, "Your days are numbered." 3 2 Baylor con-
firmed that-as has already been shown-it was common
knowledge throughout the plant that union activity by
employees was in no way tolerated. Baylor's foregoing
account, which I credit, is corroborated by both Light
and Peron, the latter still in Respondent's employ at the
time of the instant hearing. 33
Within a matter of 2 hours thereafter, at or around
noon of February 20, Baylor was, indeed, summarily dis-
charged from his promising 2-year employment and the
budding journeyman tool-and-die man status which had
up to this point seemed assured. The circumstances of
that discharge and Respondent's explanations for it as
well as General Counsel's counterproof will now be de-
tailed.
Respondent's normal workweek is 5-1/2 days, includ-
ing 5 hours on Saturday on a voluntary basis. Earlier
during the week in question, Leadman Mayberry had
asked and Baylor had agreed to work overtime on Satur-
day, February 11. 34 However, within 2 hours after May-
berry had heard the described union talk, Baylor was
summoned by Mayberry to Tool and Die Shop Foreman
Seggerman's office, where Baylor was abruptly handed
two "writeup slips," allegedly dated January 10 and Feb-
ruary 10 (G.C. Exhs. 17 & 18). Neither is signed by
Baylor, notwithstanding a blank space for "Employee
Signature." Baylor asked Seggerman why he had not
"3 Earlier that morning, Baylor had learned from Peron that Seggers
had been discharged the day before "for union activities."
32 This prediction would have been more accurate if Peron had said
Baylor's hours were numbered, as will be shown.
33 We have been instructed that the circumstance that a witness in the
current employ of a respondent employer testifies against the interest of
the employer, is a factor to be weighed in favor of such a witness in as-
sessing his credibility. Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2
(1961), enfd. as modified 308 F.2d 89 (5th Cir 1962); Wirtz v. B.A.C Steel
Products, Inc., 312 F 2d 14, 16 (4th Cir. 1962).
4' Also earlier in the week Mayberry had asked Baylor if he could
work overtime during that week, before Saturday, but Baylor indicated
that due to the short notice he could not do so since he had to pick up
his 5-year old daughter at school 9 miles away at 3:10 p.m., 10 minutes
after the end of his shift Mayberry did not demur.
HEATILATOR FIREPLACE 553
been apprised of these before. Seggerman responded,
"You don't have to see them." When Seggerman asked
Baylor to sign the alleged "2nd" warning (February 10,
G.C. Exh. 18), Baylor declined to do so, saying he disa-
greed with it.3
5 Seggerman then handed Baylor a third
paper, dated October 27, 1976-almost a year and a half
previously-which referred to a "counciling session" for
a die improperly reassembled by Baylor, and which
report ("lst occurrence") Baylor had signed. It is to be
observed that not only did this occur at the outset of
Baylor's apprenticeship, but that there is no showing that
such an error was extraordinary or that it had in any
way been repeated in the ensuing period of close to a
year and a half. When Baylor asked Seggerman why this
old slip had not been taken out of his file, since-as Seg-
german as well as Plant Manager Hecht had an-
nounced-it was company policy to remove such docu-
ments from personnel files after a year, Seggerman made
no response other than to hand Baylor a discharge slip
and tell him, "Here's this, and we want your keys."
Baylor tossed the discharge slip back. Baylor insists, and
I believe him, that at no time prior to this dramatically
sudden session had Seggerman, Mayberry, or anybody
else indicated to him that he was a candidate for dis-
charge. When Baylor asked Seggerman why he was
being discharged, Seggerman indicated it was because of
Baylor's refusal to work overtime" and "mess[ing] up"
Black #18 Die. When Baylor asked, "How come I
wasn't given a chance to transfer to a different depart-
ment"-like others, in the Tool and Die Shop's standard
practice 3 7-Seggerman merely replied, without further
explanation, "You've already cost the company enough
money." Baylor credibly swears that at no time did he
receive or was he ever shown, prior to the instant hear-
ing, an employment termination slip placed into his file
by Respondent, which suddenly purports to rate him
markedly worse than his previous ratings-indicating, for
example, that his "job knowledge" is (notwithstanding
his lengthy prior, promising apprenticeship) "limited"
(the next lowest rating to "poor")-and alleges that
"Scott has been warned, counciled several times at and
35 The "first" (January 10, G.C. Exh. 17) of these unilateral alleged
"warnings" to the file rather than to the employees, states that-although
written-it is "verbal" and is for "General inability (because of applica-
tion) to perform at 3,000 hour level of training"; with the comment that
"Scott has ability but dosen't seem to want to apply himself." The
"second" (February 10, G.C. Exh. 18) so-called "Employee Warning
Notice" to the file states, again, that it is for "General inability (because
of application to perform at 3,000 hour level of training)" with the com-
ments: "Black #18 die! Scott has been counciled and warned several
times before this, without anything written down. I was hoping to cor-
rect the situation with Reviews & the councilling at these sessions. But to
no avail! Scott refused to sign this warning, he dosen't agree with inabil-
ity statement." Both are signed by Seggerman. Under all of the circum-
stances, including their wording and the fact that neither was shown to
Baylor before he was precipitately discharged within 2 hours after his
union affiliation became known, they smack of familiar attempts to
"create a record" retroactively to justify a discharge violative of the Act.
16 When Baylor pointed out that employees had been told that over-
time was optional, Seggerman made no response.
37 At the hearing, Baylor reviewed and identified the cases of other
tool and die apprentices who, unlike him, had, in accordance with Re-
spondent's regular practice, been permitted to transfer elsewhere in the
plant in case of inability to meet the stringent requirements of tool-and-
die work.
between merit Reviews, 38 and still hasn't shown enough
improvement to warrant his continued employment"
(Resp. Exh. 11).
On February 11, the day after Baylor's discharge, he
received a telephone call from Respondent's apprentice
tool and die engineer, John Lanferman who asked him if
he had been "pushing the union." Baylor said no, but
that he had signed a union card. Lanferman disclosed to
Baylor that he had learned from Chief Tool and Die
Design Engineer (and conceded supervisor) Pidgeon that
the decision to fire Baylor had come from "way up"-
seemingly an indication that it was for "pushing the
union." Baylor denied he had been "pushing the union,"
but that he had merely signed a union card and was not
thinking of placing the matter before the National Labor
Relations Board. Testifying under Federal subpena as
General Counsel's witness, John Lanferman-still in Re-
spondent's employ
3 -swore that after he heard about
Baylor's discharge, he asked his supervisor, Chief Tool
and Die Design Engineer Pidgeon, in his office on that
day (February 10) why Baylor had been discharged. Pid-
geon warned Lanferman "not to pursue it any farther or
[you] might cut [your] throat . . . The decision had
come from high up . . . leave it alone." Later that day,
Lanferman again insisted Pidgeon, this time in the com-
pany of Respondent's office secretary Kitty Meeks, and
repeated his earlier query, but Pidgeon only repeated his
earlier response-this time to Meeks as well as Lanfer-
man.4 0 But during the following week, as will be shown
below, Supervisor Pidgeon admitted to Lanferman that
the reason for Baylor's discharge was indeed because he
had signed a union card.
On February 13, the Monday following his discharge,
Baylor asked Respondent's personnel manager, Hussey,
in the latter's office at the plant, why-unlike others-he
had been denied the opportunity to be transferred out of
the Tool and Die Department. Hussey's response was, "I
asked the same question myself ... of Ed Seggerman
[and Seggerman] said it was a disciplinary problem."
4
To this Baylor accurately replied, "My merit reviews
and writeups did not reflect that." Hussey's only sugges-
tion was that Baylor could see Hecht about it, to which
Baylor's response was that he did not "need [a] run-
around." Since, without explanation, Hussey was not
produced to controvert the foregoing, credibly testified
to by Baylor, this uncontradicted testimony of Baylor is
likewise credited.
After a contested hearing on his subsequent application
for unemployment insurance benefits, arising out of this
discharge, Baylor prevailed and was awarded those
benefits, Respondent's contepion that Baylor was dis-
charged for cause being rejected.
Respondent contends it discharged Baylor-2 hours
after its discovery of his union affiliation-because of in-
38 There is no such proof here, other than the single counseling report
in October 1976 at the outset of or early in Baylor's apprenticeship.
a9 See fn. 33, supra.
4' Without explanation, Meeks was not produced to dispute the fore-
going. I credit Lanferman's described testimony in preference to the un-
convincing denial of Pidgeon, who swore he did not even know Baylor
had been terminated.
4' There is no credible support in the record that Baylor had been a
"disciplinary problem."
between merit Reviews,33 and still hasn't
shown enough* " e a * as s
*
s
---
---
improvement to warrant his continued
employment"
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eptness or inefficiency in his job performance, lack of
qualification to be a tool and dieman, and specifically his
allegedly inexcusable, maladroit fabrication of an intend-
ed replacement of a worn stripper pad for a "Black #18
Die."4 2 As to the former, the credited proof does not
bare out Respondent's current contention that Baylor
was an unqualified, inept, sloppy, slothful, inattentive, or
undiligent tool and die apprentice. His nomination and
competitive selection by Respondent for that job, his re-
tention in the federally subsidized training program, as
well as Respondent's own on-the-job ratings, 43 and also
credited testimony of other tool and diemen qualified to
evaluate his work product4 4 established the contrary.
As to the latter reason or excuse for his discharge (re-
placement stripper for Black #18 Die), much time was
expended at the hearing in attempting to show that Bay-
lor's imprecision in production of the intended replace-
ment stripper, as "established" by disputed thousandths
of an inch Vernier measurements, was the true reason for
his discharge. After painstaking review, close analysis,
and careful consideration of the entire record, however,
I am persuaded that this was not the true reason at all
for Baylor's discharge, for the following principal rea-
sons, established by credited testimony: (1) Baylor's past
performance on the job, as attested to by his ratings by
Respondent itself 45 and the expert evaluations of other
42 Baylor's credited testimony establishes that when he left work on
February 9, there remained only 3 or 4 hours work to be done on the
stripper pad, on which he had been working. When he arrived at 6:50
a.m. on February 10, Mayberry told him, "[You've got] a hole [on a
stripper pad] off a little bit"--a not uncommon occurrence in such work,
requiring the hole to be plugged and rebored, a simple task, which
Baylor indicated he would do, drawing from Mayberry an approving
"All right." At 8 a.m., however, Foreman Seggerman told him to work
on some glass door dies, apparently more needed, and to "just let it [the
stripper pad] sit. Don't worry about it." Baylor pointed out that he had
already plugged and was ready to redrill the hole, which was some 40/
1000ths of an inch off. (According to Mayberry, four holes were already
plugged, but he conceded that about 2 hours work-even less than
Baylor estimated-remained to complete the stripper pad.) Plugging re-
stores the original surface so that the hole can be redrilled in a matter of
minutes. But Seggerman indicated he should work on the glass door dies.
Although the necessity for plugging a misdrilled hole or holes is fairly
common-on the order of four or more a week, including admittedly by
Mayberry himself, this was the first hole Baylor had misdrilled, although
he had plugged holes misdrilled by others. Plugging does not impair the
utility of the stripper pad. Notwithstanding the foregoing and that per-
haps only 10 minutes would have been required to redrill the already
plugged bolt hole to make the piece usable (and perhaps 3 hours to com-
plete several as yet incompleted spring pocket and other holes), Respond-
ent discharged the stripper pad as scrap, and it would therefore have
been unavailable as evidence here if Baylor had not retrieved it from the
scrap heap and produced it at the hearing. I reject any intimation that
this involved any misdeed on the part of Baylor, whose action in preserv-
ing evidence from a junk heap to save his job is understandable. A party
has no inherent right to prevent facts from coming to light through dis-
carding evidence
It is also to be noted that Baylor, who carried out Seggerman's instruc-
tions and even measurements made by Seggerman himself on the irregu-
larly (oval) shaped center hole of the stripper pad, was not the only
person who worked on the stripper pad, so that any "error" therein is
not necessarily ascrible to Baylor-as Baylor credibly explained on rebut-
tal without contradiction.
43 G.C. Exhs. 21-27 Many if not most of these, it will be noted,
signed by Seggerman, are "Excellent." Mayberry himself had commented
to Baylor in mid-January that Seggerman's rating of him for that period
also, should have been "excellent" rather than just "good.'"
I.e., Light, Peron, and lanferman.
4s G.C. Exhs. 21-27.
disinterested tool and diemen witnesses; 4 6 (2) the absence
of any credible, substantial, factual record of poor or in-
efficient work on Baylor's part, and Respondent's failure
to charge or intimate to him that his performance was
unsatisfactory or that he was headed for discharge; (3)
the absence of any record of poor or unacceptable work
by Baylor on the particular stripper pad in question; (4)
the fact that drilling error of the nature ascribed to
Baylor was not uncommon, even by experienced jour-
neymen tool and diemen, and readily and inexpensively
correctible; (5) the fact that the allegedly defective strip-
per pad had already been corrected and little remained
to complete it and render it usable; (6) the fact that it
was unnecessary to discard the stripper pad in question,
since it could readily have been completed for use; (7)
Respondent's inexplicable act in discarding an important
item of evidence in this case; (8) the fact that no actual
loss or damage has been established; (9) the abrupt
timing and precipitous nature of Baylor's discharge, 2
hours after his participation in union affiliation and activ-
ity was discovered by Respondent; (10) admissions, or
their practical equivalent, by Respondent's responsible
officials 4 7 as to the union-related basis for Baylor's dis-
charge; (11) the fact that no employee was shown to
have been discharged previously for error of the nature
here claimed; (12) significant testimonial inconsistencies
between Respondent's principal witnesses Seggerman
and Mayberry; 48 (13) adverse reactions to Seggerman's
constant backtracking and evasions; (14) testimonial de-
meanor comparisons, clearly preponderating, for the
most part, in favor of General Counsel's principal wit-
nesses; and (15) evaluation and assessment of the forego-
ing within the frame of reference of Respondent's estab-
lished history of opposition to union affiliation by its em-
ployees, and its concededly continuing intolerance to the
exercise of its employees' rights under the Act, as ex-
pressed from the witness stand at this very hearing-
"management [is] opposed to unionized or organized
labor. We [are] a non-union plant.... We [are] our own
boss and [can] run our own factory." Continued intransi-
gent refusal to bend to the requirements of Federal law
so as to refrain from interference with the exercise of its
employees' rights thereunder does not bode well for ac-
ceptance of Respondent's transparently pretextual rea-
sons for discharge of its employees precipitately on the
heels of their attempted exercise of those rights.
I find that the reasons advanced by Respondent for its
discharge of Baylor were and are pretextual, and that the
46 Light, Peron, and Lanferman.
4 Pidgeon and Hussey, as established by credited testimony of Lanfer-
man and Baylor, supra.
4s And also Mayberry's testimonial equivocations, modifications, and
retractions under cross-examination, including his testimonial retraction
of what was exposed as his earlier testimonial supposition that shimming
of Baylor's piece would have been required-in any event not established
to be unique-when it was shown that its overall measurements were
longer than that of the worn stripper pad. When this was demonstrated,
Mayberry conceded that he had failed to make this vital measurement
and that shimming of the Baylor-produced replacement stripper pad
would not have been necessary, and he retracted his contrary earlier tes-
timony. Testimonial errors of such magnitude in a context of insistence
upon the utmost precision on the part of an apprentice, and also because
they reflect adversely on the vaunted expertise of the testifier, do not
conduce to implicit reliance upon his other conclusions.
HEATILATOR FIREPLACE 555
true causative reason for that discharge was its discovery
of his union affiliation and participation. It is accordingly
found that the allegations of paragraphs 6(b), 6(c), 7, and
8 of the complaint in Case I have been established by
preponderating substantial credible evidence upon the
record as a whole.
The complaint (Case 1, pars. 5[i], 5[j], and 7) further
alleges that on or about February 15 Respondent
through its Chief Tool and Die Design Engineer Pid-
geon stated to an employee that another employee had
been discharged for union activity, and interrogated the
employee concerning employee union activity. Concern-
ing this, Respondent's apprentice tool and die design en-
gineer, John Lanferman, testified, under subpena, that
during the week following Baylor's February 10 dis-
charge he asked his supervisor, Pidgeon, in the presence
of a named employee who was not produced to refute
him, whether Baylor had been discharged because he
had signed a union card and that Pidgeon replied, "You
guessed it." When Lanferman remarked that the wrong
person had been fired, Pidgeon asked Lanferman, "Do
you know who is pushing the union in the shop," but
Lanferman declined to provide this information. Shortly
thereafter, Lanferman heard Pidgeon tell office secretary
Kitty Meeks (who likewise was not produced to refute
him), that Pidgeon had heard that Baylor "had a wallet
full of union cards." Although Pidgeon in effect denies
the remarks ascribed to him, on comparative demeanor
observations I credit Lanferman, who at the time of his
testimony was still in Respondent's employ under Pid-
geon. 49 Nevertheless, inasmuch as it was Lanferman
who initiated the response, "You guessed it" from Pid-
geon by asking Pidgeon the direct question of whether
Baylor had been discharged for signing a union card, I
cannot regard this particular allegation, as cast in the
complaint (Case 1, par. 5[i]), as established, since the
thrust of the allegation is that it was violative of Section
8(a)(1), which I do not view it as having been under the
circumstances described-Pidgeon merely answered a
question put to him by Lanferman in leading form. How-
ever, I do regard Pidgeon's later question to Lanferman,
asking him who was the union activist in the shop, as im-
permissible interrogation, and accordingly find that alle-
gation (Case 1, par. 5[i]) established.
D. Alleged Unfair Labor Practices in March to
Beginning of April
We come now to the second complaint (Case 2),
which, to begin with, alleges (pars. 5[a] and 7) that on or
about March 19 or 26, Respondent through Supervisor
Marilyn Miller directed employees not to attend a union
meeting. As to this, Respondent's former third-shift spot
welder Lucy Jane Cowger's testimony establishes that
soon after the start of her shift at 11 p.m. on a Sunday
night around the start of April, all 15 spot welders were
assembled near the office of their Supervisor Miller, who
told them, "I don't want you guys going to the union
meeting Tuesday." Since, without explanation, neither
Miller nor any other witness was produced to controvert
the foregoing in any way, it stands wholly uncontradict-
49 See, e.g., fn. 33, supra.
ed, as a blatant instance of interference with employees'
Section 7 rights. Accordingly, I find the allegation in
question established.
The second complaint (Case 2, pars. 5[b] and 7) also
alleges that around the end of March Respondent
through Supervisor Roger Duncan told an employee it
would be to the employee's advantage not to attend a
union meeting and not to encourage union representation
of employees. Regarding this, Respondent's former third-
shift employee Rosetta Ingle testified that while she was
at work in the plant late Sunday night, April 2, she was
approached by her Supervisor Roger Duncan, who
asked her whether she had received a letter from the
Union concerning a union meeting. When she said no, he
asked her whether she intended to go. She indicated un-
certainty. Duncan then told her, "The company and [I]
would like to ask [you] not to go and not to encourage
anyone else to go" and that "it would . . . be to our ad-
vantage if you didn't go and not to attend and . . . it
would be to your best advantage if you didn't attend."
She did not attend the meeting. She was nevertheless
subsequently terminated by Duncan, and filed various
charges or claims which were apparently still pending at
the time of this hearing. Testifying on the same subject,
Duncan throws a different cast on the conversation,
which he admits having had. According to Duncan, he
said no more to Ingle (as well as to some 40 other subor-
dinates) than that "we the company prefer you not
attend the meeting and would certainly . . . appreciate
your not signing a card." While a prepossessing witness,
nevertheless, considering his interest as a supervisor, and
after carefully assessing his testimonial demeanor in com-
parison to that of Ingle, I was far more impressed by the
direct, persuasive simplicity of Ingle as she testified and
remained unshaken on cross-examination. Accordingly,
preferring and crediting Ingle's version, I find the allega-
tion established by a preponderance of the substantial
credible proof.
The second complaint further alleges (Case 2, pars.
5[d] and 7) that in late March or early April, Respondent
again, this time through Supervisor William Pratt, direct-
ed employees not to attend a union meeting. As to this,
welder Russell Dunn, still in its employ at the time of
hearing, testified that, in the factory on the night of
April 3 before a union meeting scheduled for April 4,
Supervisor Pratt stated to him, "I would appreciate it if
you would not go to this . . . union meeting or sign any
union cards." Dunn nevertheless attended the meeting
(as did about 15 or so others), at which fellow employee
Gregory Wakefield-who was fired on the very next
day, April 5, under circumstances detailed below-was
the most ardent spokesman. The foregoing account of
Dunn, who was not cross-examined, was in no way dis-
puted by any witness, including Pratt, who, without ex-
planation, was not produced. Although Respondent has
moved to dismiss this allegation on Dunn's testimony, I
am of the view that, particularly within the congeries of
all of the circumstances which have been described, Re-
spondent's further direct attempt on a one-to-one basis
through its supervisors to pressure or "persuade"-the
HEATILATOR FIREPLACE
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line is frequently a thin one°0-its employees not to
attend union meetings, was an unjustifiable intrusion into
the employees' own affairs, comprising interference with
their right to conduct those affairs untrammeled and un-
burdened by the gnawing doubts and fears such "ap-
peals" by the person controlling their jobs are bound to
induce. Respondent's motion to dismiss this allegation is
accordingly denied and the allegation found to be estab-
lished.
Paragraph 5(c) of the complaint in Case 2 was, on Re-
spondent's motion, dismissed at the hearing without op-
position for failure of proof.
E. Alleged Unfair Labor Practices in April: April 5
Discharge of Wakefield
Finally, the second complaint (Case 2, pars. 6[a], 6[b],
7, and 8) alleges that on April 5 Respondent discharged
its employee Gregory Wakefield because of his union ac-
tivities (on behalf of District 131, IAM, Charging Party
in Case 2), thereby discriminating against him and em-
ployees for that reason and to discourage such activities,
and also interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7
of the Act.
Gregory Wakefield, now 31 years of age, entered Re-
spondent's employ in September 1977 as a heavy welder
on its night shift, at a starting rate of $3.69, from which
he progressed to $4.605 per hour. There is no contention
or suggestion that Wakefield's capability as a welder was
unsatisfactory.
Wakefield had been an IAM union member in his pre-
vious place of employment. An organizational meeting of
that union (Charging Party in Case 2) was announced, in
mailed writing (G.C. Exh. 10), for the evening of April
4, at nearby Machinists Hall. On the evening of April 3,
the day before the meeting, Respondent's third-shift
welder, Russell Dunn-still in its employ at the time of
this hearing, after 3-1/2 years5 t-was approached by his
(as well as Wakefield's) supervisor, William R. Pratt,
who said to him, "I would appreciate it if you would not
go to this meeting-to this union meeting or sign any
union cards." Notwithstanding this, Dunn attended the
meeting, at which, according to Dunn, Wakefield was
the principal spokesman of the 15 or so there. Wakefield
emphasized the need for higher wages and improved
working conditions, including better ventilation, elimina-
tion of noxious fumes, and protection of welders against
burns. At the same time, remarking that "working for
Vega is like working for the Gestapo," Wakefield
warned against jeopardizing their jobs through organiza-
tional activity within the plant, and instead suggested dis-
tribution of literature outside of the plant.5 2
On the morning of April 4, Respondent's tool and
dieman, George Light, was also approached by Tool and
50 One is impelled to recall the expression of Mr. Justice Harlan,
speaking for a unanimous Supreme Court in NL.R.B. v. Exchange Parts
Co., 375 U.S. 405 at 409 (1964), the "fist inside the velvet glove" in the
context of an employer with great economic power who claims he is
doing no more than seeking to "persuade" individual employees to do
him the favor of not exercising that right to act collectively which is
guaranteed to employees as the Act's central feature.
' See fn. 33, supra.
52 Credited testimony of Dunn.
Die Shop Foreman Seggerman, who asked him whether
he was aware of the union meeting to be held the next
day, and that evening (April 4) Seggerman "ask[ed],"
"advised," and "suggested" to Light that Light "not . . .
go to the meeting" since it was "not ... necessary" and
that "we had a pretty good place to work, and [I]
want[ed] you to stay out of it . . . and [don't] want any
of the die makers to go." Seggerman then proceeded
from man to man to talk to each one individually.5 3
(Light did not attend the meeting.)
According to Wakefield himself, who impressed me as
a straightforward and candid witness, he attended the
IAM organizational meeting on the evening of April 4,
which he had heard mentioned in advance in shop talk
among the welders, and he there pulled no punches,
among other things pointing out to the employees that
"without representation, the company could fire you at
will"; that "the plant needed better safety. The welding
department was not ventilated over each booth," so that
welders would get covered with soot and become dizzy
from "breathing the gases from your own welder"; that
parts were oily and flamed up and "Guys were always
getting flash burns"; that objects were so covered with
oil that they slipped from welders' grips and caused
injury; that no degreaser was available to the welders;
that there was inadequate provision for removal of nox-
ious vapors from welding; and that "inspection and pro-
duction did not seem to have their heads together on
what they were doing," since production requirements
were unfeasible in terms of inspection quality standards,
with the consequence that many units unpassed by in-
spection on one shift piled up for the succeeding shift.
Wakefield also pointed out that in his own case, although
he had been authorized a leave of absence for illness in
January, he nevertheless received a warning slip in
March in regard to that excused absence. He asked about
the pay rate if the Union came in, and was told it would
be negotiated. It was suggested that the institution of the
third welder shift was counter-productive. Finally,
Wakefield cautioned that organizational activity be con-
fined to handbilling outside of the plant in order to avoid
an earlier situation where employees had been fired for
in-plant activity. And Wakefield signed an IAM union
card at that meeting. 5 4
Following this meeting, at the plant that night (April
4), as established by the testimony of Wakefield corrobo-
rated by Dunn, the meeting was discussed and comment-
ed on among the welders (including nonattendees of the
meeting) in the shop.
Among those present at the April 4, IAM union orga-
nizational meeting were Branda Chappotin, wife of Re-
spondent's manager of shop floor control, Andres Chap-
potin, and Doris Aicher, wife of Respondent's supervisor
of shipping and receiving. Both of these wives conceded
that they told their husbands about having gone to the
meeting, with at least Chappotin (who at the time had
already decided to give up her job) maintaining they did
not "talk about it" since she and her husband allegedly
do not see eye-to-eye on that subject.
"3 Credited testimony of Respondent's former tool and die shop lead-
man, George Light.
54 He misdated it, as he credibly testified, 3-4-78 instead of 4-4-78.
HEATILATOR FIREPLACE 557
On April 5, the day after he spoke out strongly at the
union meeting of April 4 attended, among others, by
wives of two company supervisors, Wakefield was pre-
cipitously and summarily fired, under circumstances
reminiscent of the earlier cases of Parrish and Baylor
which have already been considered. At the start of his
shift on that day (April 5), as he was about to fill out his
timecard, he and his carpool companion Rice (who had
driven to and from the union meeting with him)
5 were
told by Dayshift Foreman Garmoe-who had apparently
stayed on or come in for that purpose-"You guys don't
have to fill those out, you are not staying." Wakefield
said, "You mean we are fired?" Garmoe answered,
"That is right." Wakefield asked, "Both of us?" Garmoe
responded, "Yes . . . You know the reason why, you've
just missed too much work." General Nightshift Fore-
man Staggers excitedly added, "Have you got any ques-
tions?" Wakefield said no, collected his belongings, and
left.
Respondent contends that the only reason for Wake-
field's discharge was excessive absenteeism. Upon the
record here presented, Respondent's contention falls far
short of being persuasive. Plant Manager Hecht testified
that Respondent established a new absenteeism policy
(G.C. Exh. 2) effective April I (Saturday). It will be re-
called that Wakefield was discharged on April 4-Tues-
day. It is not and cannot be claimed that Wakefield was
fired on Tuesday under the absentee policy which went
into effect the previous Saturday; nor was Wakefield in
violation of that policy, unless it was-contrary to its ex-
pressly announced effective date (G.C. Exh. 2)-applied
retroactively. Nor has it been credibly established that
Wakefield was discharged under Respondent's expired
absentee policy (its so-called "10 percent rule").
5 6 under
which it had not seen fit to terminate Wakefield at any
time while that policy remained in effect. Moreover,
even under Respondent's former, expired policy, no
longer in effect when Wakefield was terminated, no vio-
lation by Wakefield of even that policy has here been
credibly established.5 7 Nor was Wakefield warned or
5 No issue is presented here as to the discharge of Rice.
5s This, according to Hecht, permitted an employee absence of 10% of
his total scheduled hours for the month; but Hecht conceded that even
under that policy, if-as in Wakefield's case-an employee was entitled
to 5 days of excused absence for illness, he would not be considered "ex-
cessively" absent if by reason of the same illness-again as in Wakefield's
case, for influenza, under a doctor's care, in January-he had to stay
away for another (i.e., a sixth) day.
57 Respondent's plant manager, Hecht, concedes that such "absentee
records"-not, it is to be noted. timecards -as were produced by Re-
spondent (Resp. Exhs. 25a-g) may well have been inaccurate and that
they were not authenticated here by Wakefield's foreman, Pratt, who did
not testify on that subject. Original entry timeclock or similar records
were unexplainedly not produced. Under these circumstances, it should
not be assumed that had they been produced they would have sustained
Respondent's contentions. Cf. U.S v. Denver & R.G.R.R., 191 U.S. 84,
91-92 (1903); N.L.R.B. v. Sam Wallick and Sam K Schwalm d/b/a Wal-
lick and Schwalm Company. et al., 198 F.2d 477, 483 (3d Cir. 1952). Fur-
thermore, even those "absentee records" show only three allegedly unex-
cused absences in March, the remainder being explained or excused for
one reason or minuscule, for car trouble-he lived 32-1/2 miles away and
testified credibily he may have been absent occasionally because of im-
passable snowpacked roads, hut on every occasion notified the plant of
the circumstances and received assurances even from Garmoe--without
contradiction here-that he would not be "written up." Certainly he was
permitted to continue on, with no indication of even any rebuke. much
even "counseled," as laid out in Respondent's policy
(G.C. Exh. 2, par. 4); nor has discharge of any other em-
ployee under comparable circumstances been shown.
Wakefield-as Parrish and Baylor-presents another
classic instance of a burgeoning union activist or spokes-
man who is promptly "cut down to size" and eliminated
from the work force by an employer concededly utterly
opposed to union affiliation by his employees and bent
on preventing it. Wakefield-as Parrish and Baylor-was
precipitately fired on the heels of his entry upon the
union organizational stage, for a concocted, pretextual
reason not previously indicated to the employee as a
reason he would be discharged, if not corrected, within a
context of their each being regarded-until their advent
into the disfavored zone of exercise of their federally
guaranteed rights under the Act-as essentially satisfac-
tory employees in a high labor-turnover plant. As in the
cases of Parrish and Baylor, I am persuaded and find
that the reason advanced for Wakefield's precipitate dis-
charge was and is pretextual, the real and causative
reason being Wakefield's emergence within 24 hours pre-
ceding his discharge, as eloquent union organizational
spokesman and budding leader. It has time and again
been reiterated that in assessing an employer's true
reason for its discharge of an employee engaged in con-
certed protected activity, important keys are the timing
of the discharge (N.L.R.B. v. Sequoyah Mills, Inc., 409
F.2d 606 (10th Cir. 1969); Tele-Trip Company v.
N.L.R.B., 340 F.2d 575, 579-580 (4th Cir. 1965);
N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502
(2d Cir. 1957), cert. denied 355 U.S. 829 (1957)) and the
precipitate nature of the discharge vis-a-vis the employ-
er's learning of the employee's organizational activity
(Tele-Trip, supra,' N.L.R.B. v. Council Manufacturing
Corp., 334 F.2d 161, 164 (8th Cir. 1964), as well as the
employer's implausible explanations for its actions
(N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d
239, 245-246 (8th Cir. 1969), cert. denied 396 U.S. 823
(1969)). Here, as in N.L.R.B. v. Dant, 207 F.2d 165, 167
(9th Cir. 1953) and cases cited, when subjected to close
examination, Respondent's "reasons" are shown to be ex-
cuses which do "not stand under scrutiny." Here, as in
N.L.R.B. v. Elias Brothers Big Boy, Inc., et al., 325 F.2d
360, 366 (6th Cir. 1963), Wakefield's "work apparently
became intolerable only after he [became active in] the
union." We are instructed by the Supreme Court that
where, as here, a union activist is discharged for conduct
less censure or warning. (Indeed, the only "writeup" he received was
dated March 7 (G.C. Exh. 36) for an episode in January. He refused to
sign this, claiming-without contradiction then or here, since Garmoe
was not produced by Respondent to testify-that he had been assured by
Garmoe as well as by his leadman, Dean (who also was not produced to
testify to contradict this), that that absence (when he was sick with influ-
enza, under medical attention) would not be counted against him or
placed into his file. Indeed, it is noted that even that "verbal warning" of
March 7 refers to alleged absenteeism in January as a "Ist occurrence of
this offense" and states only that "Additional absenteeism equal to ore
[sicj in excess of 10 percent within the next 9 month period i.e.. to De-
cember] will result in a written warning." There is no evidence of any
such "written warning." Finally, Wakefield's paychecks (G.C Exhs. 49-
54), produced on rebuttal, demonstrate that Wakefield was not in viola-
tion of even Respondent's expired "10 percent rule," and after their re-
ceipt into evidence with accompanying testimonial explanation by Wake-
field on General Counsel's rebuttal, no countervailing proof was offered
by Respondent.
HEATILATOR~~~~~~~~~~~~~~~~~~~~~~~~~~ FI E L C 55
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not shown to have resulted in the discharge of others
comparably, "the Board need not listen too long to the
plea that shop discipline was simply being enforced."
American Ship Building Co. v. N.L.R.B., 380 U.S. 300,
312 (1965). See also N.L.R.B. v. Great Dane Trailers,
Inc., 388 U.S. 26, 33-34 (1967). There can, of course, be
no more potent signal to employees that they exercise
their federally guaranteed right to engage in collective
organizational activity at the peril of being fired from
their jobs, than the precipitate discharge of their leaders
or spokesmen. Cf., e.g., N.L.R.B. v. Longhorn Transfer
Service, Inc., 346 F.2d 1003, 1006 (5th Cir. 1965).
F. Respondent's Claim of Lack of Knowledge of
Wakefield's Union Activity
Respondent's contention that General Counsel has not
"established" it had any knowledge of Wakefield's union
activity will be briefly addressed. To begin with,
"direct" proof of "actual" knowledge by an employer
that his employees are engaged in union activity is not
absolutely required Strictissimi, at any rate in a case like
that here. Even though there be moral certainty that
such knowledge exists, "direct," absolute proof may be
impossible to obtain without entering the employer's
brain. In the nature of things, ultimate factual demonstra-
tion of knowledge or state-of-mind may be beyond the
reach of litigational demonstration in a real courtroom as
distinguished from the realm of theoretical argument.
Proof of such knowledge through actual admissions or
through camera soundtrack type of evidence is not essen-
tial. As in many other fields and areas of the law (e.g.,
fraud and deception, conspiracy, copyright and trade-
mark infringement, trespass, and even murder), knowl-
edge may be circumstantially established or inferred
from surrounding circumstances. 58 Thus, in the instant
case: (1) Respondent's plant and operations were closely
knit; (2) Respondent's employees were amply and closely
supervised; (3) as has been shown in various aspects and
instances above, notably the cases of Parrish and Baylor,
Respondent was in fact efficiently and promptly in-
formed of the union activities of its employees, and there
is every reason to believe Respondent's top executive
staff made it its first order of business to be so informed,
and there is no reason to assume Wakefield was an ex-
ception; (4) Respondent possessed advance knowledge of
when union meetings were to be held, since, as has been
shown, it endeavored through various members of its su-
pervisory staff to keep its employees away from those
meetings; (5) Respondent's remarkably speedy reactions
to ongoing union organizational events could only have
been upon the basis of facts it derived from sources of
information available to it concerning those events; (6)
Respondent has not credibly established the ignorance in
which it now seeks to cloak itself. Furthermore, it is un-
derstood and accepted not only as a fact of industrial re-
lations life but as a matter of that commonsense which
guides people in their daily affairs, and also as has re-
peatedly been made known to the Board in its genera-
" Wigmore, Evidence Secs. 261, 266-267, 368, and 661 (3d ed. 1940);
N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 596-600, 602 (1941);
Famet, Inc., 202 NLRB 409, 410 (1973), enfd. 490 F.2d 293, 295 (91h Cir.
1973).
tions of administration of the Act and the countless tens
of thousands of labor proceedings which it has heard and
processed under the Act, that almost invariably there are
some employees who attend union organizational meet-
ings who report back to the employer or his supervisors
concerning them-indeed, that some employees attend
such meetings for that deliberate purpose only- and,
also, that commonly employees discuss at the plant hap-
penings at such meetings, without taking the security
precautions of intelligence personnel to insure that un-
friendly ears are not listening or that only "cleared" and
unquestionably reliable persons are around (e.g., the case
of Baylor's conversation about union cards with fellow
employees in the presence of Leadman Mayberry supra,
within 2 hours of which Baylor was unceremoniously
fired from his federally endowed tool-and-die apprentice-
ship after satisfactory completion of 3,600 hours of it).
Under all of these circumstances, within the frame of ref-
erence of the record as a whole, it would be unrealistic
to accept uncritically Respondent's current contention
that it was totally ignorant of Wakefield's union activi-
ties, specifically his outspokenly strong sentiments at the
union meeting following which it precipitately fired him
the very next day, in a pattern consistent with that in the
case of Parrish and Baylor. Under all of the circum-
stances I am persuaded and find that Respondent did,
from its efficient sources, come into knowledge of Wake-
field's stand-out, strong prounion sentiments expressed
and his incipient union leadership qualities demonstrated
at the union meeting of the night before his discharge,
and that it was this circumstance and this alone-analo-
gously to the cases of Parrish and Baylor-that led to
Wakefield's speedily ensuing job demise.
When, as here, General Counsel makes out a prima
facie case of employee discharge in violation of the Act,
the burden shifts to Respondent to come forward with a
credible explanation for its action. If, as here, Respond-
ent fails to do so, General Counsel has satisfied his ulti-
mate burden of proof and the violation stands estab-
lished. It is accordingly found that the paragraphs of the
complaint under discussion in relationship to Wakefield
(Case 2, pars. 6[a], 6[b], 7, and 8) have been established,
and Respondent's motion to dismiss those paragraphs is
denied.
Upon the foregoing findings59 and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By engaging in the following acts, under the cir-
cumstances described and found in section III, above,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of their rights under Section
7, and has thereby violated Section 8(a)(1) of the Act by:
(a) interrogation of employees; (b) directing surveillance
over and reporting on employees' union activities; (c) di-
recting employees not to attend union meetings; (d) di-
recting employees not to encourage a union to represent
59 Recapitulated in appended chart, Appendix A (omitted from publi-
cation).
---
HEATILATOR FIREPLACE 559
them; and (e) assuring employees it would be to their ad-
vantage not to attend union meetings.
3. By discharging its employees Jerry Parrish on Janu-
ary 20, Kenneth Baylor on February 10, and Gregory
Wakefield on April 5, 1978, and failing and refusing at
all times since then to reinstate, reemploy, or rehire any
of them, under the circumstances described and found in
section 1, above, Respondent has discriminated in
regard to the hire, tenure, and terms and conditions of
employment of its employees to discourage membership
in a labor organization in violation of Section 8(a)(3) of
the Act; and has, further, interfered with, restrained, and
coerced its employees in the exercise of their rights
under Section 7 in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices and each of
them have affected, affect, and unless permanently re-
strained and enjoined will continue to affect, commerce
within the meaning of Section 2(6) and (7) of the Act.
5. It has not been established that Respondent violated
the Act in the respects set forth in paragraphs 5(a)
except to the extent hereinabove found, 5(b), 5(d), 5(e),
5(f), 5(g), and 5(i) of the complaint in Case 18-CA-5713,
or paragraph 5(c) of the complaint in Case 18-CA-5795,
and those allegations of said complaints should be dis-
missed.
6. Respondent's "Second Defense" and "Third De-
fense" in Case 18-CA-5713, and its "Second Defense" in
Case 18-CA-5795 are insufficient in law and have not
been established in fact and should be dismissed.
REMEDY
Having been found to have violated Section 8(a)(1) in
various respects, Respondent should, as is customary in
cases of that nature, be ordered to cease and desist from
those and similar violations of the Act, and to post the
usual informative notice to employees. With regard to its
unlawful discharge of three employees, Respondent
should, as is also usual in such cases, be ordered to cease
and desist therefrom and to offer them reinstatement,
with backpay and interest computed as explicated by the
Board in F W. Woolworth Company, 90 NLRB 289
(1950), Isis Plumbing Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977);60 as well as to expunge from its records all refer-
ences that said employees were discharged for valid
cause or for any reason based upon their work perform-
ance, and to refrain from so indicating to any prospec-
tive employer or reference seeker. Respondent should
also, as usual, be required to preserve and make available
its books and records to the Board's agents for backpay
computation and compliance determination purposes; and
to post the conventional notice. Since, as has been
shown, this is not the first Board proceeding against Re-
spondent in this same plant, and since Respondent has
additionally demonstrated what appears to be a procliv-
ity to violate the Act and thwart its employees' exercise
of their federally guaranteed rights under the Act by
firing three employees as soon as they sought to exercise
60 General Counsel again urges, in a well-documented and persuasive
supplemental brief, that interest be added at a more realistic, higher rate
than the Board now allows. This is a matter of policy for the Board.
those rights, this continued pattern of serious violations
warrants inclusion in the order of a prohibition against
continuing to violate the Act in any manner. Cf.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th
Cir. 1941); A. J. Krajewski Manufacturing Co., Inc., 180
NLRB 1071 (1970).
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, there is hereby issued the
following recommended:
ORDER '
The Respondent, Heatilator Fireplace, Division of
Vega Industries, Inc., Mt. Pleasant, Iowa, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their or
other employees' union membership, affiliation, sympa-
thies, desires, activities, or other protected concerted ac-
tivities, so as to interfere with, restrain, or coerce em-
ployees in the exercise of any right set forth in Section 7
of the Act.
(b) Directing, suggesting to, or requesting that any em-
ployee or supervisor in violation of the Act engage in
surveillance over the Union or any other protected con-
certed activity of other employees and report thereon to
Respondent.
(c) Directing, urging, or soliciting employees not to
attend union meetings.
(d) Directing, urging, or soliciting employees not to
encourage a union to represent them.
(e) Assuring, promising, or holding out to employees
that it would be to their benefit or advantage not to
attend union meetings.
(f) Discharging, terminating the employment of, laying
off, furloughing, suspending, or otherwise in violation of
the Act altering the employment status of any employee,
or threatening so to do, or failing or refusing to recall,
reinstate, or rehire any employee because he or she has
exercised or proposes to exercise or continue to exercise
any right under the Act; or directly or indirectly so
doing, or threatening to do so, as to discriminate in
regard to the hire, tenure, or terms or conditions of em-
ployment of any employee because he or she exercises or
proposes to exercise or continue to exercise such right or
engage in such activity.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization; to form, join, or assist any labor organi-
zation; to bargain collectively through representatives of
their own choosing; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid
or protection; or to refrain from any and all such activi-
ties.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
Si In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
HEATILATOR FIREPLACE 559
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Jerry Parrish, Kenneth Baylor, and Greg-
ory Wakefield immediate and full and unconditional rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs with Respondent,
without prejudice to their seniority and other rights,
privileges, benefits, and emoluments, including but not
limited to any pay wage rate increases to comparable
employees since Respondent's discharge of the aforesaid
employees; and make said employees whole for any loss
of income, benefits and emoluments (including overtime,
holiday and vacation pay and time off, and hospitaliza-
tion, medical and other insurance claims and benefits,
both personal and derivative and dependents', if any, and
expenditures in lieu thereof during any noncoverage
period until their reinstatement hereunder, together with
interest, in the manner set forth in the "Remedy."
(b) Expunge from all of Respondent's books and rec-
ords any entry or mention indicating or to the effect that
the termination of said employees was because of any
work absence on their part in contravention or infraction
of any of Respondent's rules, requirements or policies, or
because of any fault or work-related deficiency or short-
coming on their part; and refrain from making any such
report or statement voluntarily or in response to any in-
quiry from any employer, prospective employer, employ-
ment agency, unemployment insurance office, or refer-
ence seeker or inquiry.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its premises on Vega Road in the city of
Mt. Pleasant, Iowa, copies of the attached notice marked
"Appendix B." 62 Copies of said notice, on forms pro-
vided by the Regional Director for Region 18, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED, that paragraphs 5(a) to the
extent not herein otherwise found, 5(b), 5(d), 5(e), 5(f),
5(g), and 5(i) of the complaint, and Respondent's
"Second Defense" and "Third Defense" in Case 18-CA-
5713, and paragraph 5(c) of the complaint, and Respond-
ent's "Second Defense" in Case 18-CA-5795 be, and
they hereby are, dismissed.
62 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT question you in violation of the
Act, concerning your union membership, affiliation,
sympathies, desires, activities, or other rights or ac-
tions guaranteed to you under the National Labor
Relations Act.
WE WILL NOT direct, suggest, or urge any em-
ployee to conduct unlawful surveillance over and
reporting on our employees' union activities.
WE WILL NOT direct, urge, or solicit employees
not to attend union meetings.
WE WILL NOT direct, urge, or solicit employees
not to encourage a union to represent them.
WE WILL NOT assure, promise, or hold out to
employees that it would be to their benefit or ad-
vantage not to attend union meetings.
WE WILL NOT discharge, terminate, lay off, fur-
lough, suspend, refuse or fail to reinstate, recall or
rehire, or in any way change the job status of any
employee because he or she engages in union activi-
ty, or exercises, tries to exercise, or continues to ex-
ercise any right under the National Labor Relations
Act.
WE WILL NOT do any of these things, or other-
wise violate the National Labor Relations Act, di-
rectly or indirectly, in order to induce you to cease
attempting to exercise your right to bargain with us
collectively.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization; to form, join, or assist any
labor organization; to bargain collectively through
representatives of your own choosing; to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any or all such activities.
WE WILL offer Jerry Parrish, Kenneth Baylor,
and Gregory Wakefield immediate and full and un-
conditional reinstatement to their former jobs, with
full seniority and other rights, benefits and emolu-
ments, just as if we had not discharged them, and
WE WILL pay them, with interest, for all wages and
benefits lost by them because of those discharges;
and WE WILL also remove from their records any
statement indicating they were discharged for cause
or any fault on their part, and WE WILL make no
statement to that effect to any prospective employ-
er, reference inquiry, credit inquiry, or similar in-
quirer.
HEATILATOR FIREPLACE 561
All of our employees are free to join or not to join any
union, or to exercise any other right under the National
Labor Relations Act, as they see fit, without interfer-
ence, restraint, or coercion from us in any form.
HEATILATOR FIREPLACE, DIVISION OF
VEGA INDUSTRIES, INC.