Hitchiner Mfg., Co.

National Labor Relations Board - Board Decisions

Aug 1, 1979

243 N.L.R.B. 927 (N.L.R.B. 1979)

HITCHINER MANUFACTURING COMPANY
Hitchiner Manufacturing Company and United Steel-
workers of America, District 34, AFL-CIO-CLC
Hitchiner Manufacturing Co., Inc. and United Steel-
workers of America, AFL-CIO-CLC. Cases 14-
CA-11526, 14-CA-11683, and 14 RC-8712
August 1, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEIL.
On March 20, 1979, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, both Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
As set forth in detail in his Decision, the Adminis-
trative Law Judge found that Respondent violated
Section 8(a)( ) of the Act by: (I) threatening employ-
ees with reprisal and loss of benefits if the Union
came in, (2) threatening to bargain "from scratch,"
(3) interrogating employees, and (4) informing an em-
ployee and his coworkers that the true reason for the
employee's discharge was his union activity. In addi-
tion, the Administrative Law Judge found Respon-
dent violated Section 8(a)(3) and (1) of the Act by
terminating an employee because of the employee's
union activity.
We agree with the Administrative Law Judge's
findings as set forth above. However, as explained
hereinafter, we disagree with certain other conclu-
sions and findings reached by the Administrative Law
Judge and with his recommended remedy.
1. The complaint alleged an additional violation of
Section 8(a)(1) of the Act predicated on alleged state-
ments by the Company's personnel manager, Steve
Simmons, to employee Vicki Burnette Henningfeld
I Respondent has excepted to certain credibility findings made hb the Ad-
ministrativc Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Drv Wall Products. Inc. 91 N LRB 544
(1950). enfd. 188 F.2d 362 13d Cir. 1951) We have carefully examined the
record and find no basis for reversing his findings
that the plant would close in the event of unioniza-
tion. In recommending dismissal of this allegation,
the Administrative Law Judge. without clearly pass-
ing on the credibility of the witnesses, observed that
he was "left with sufficient residual doubt" that such
a statement was made. In this connection, the Admin-
istrative Law Judge noted that the Simmons-Hen-
ningfeld conversation took place in a bar and that the
General Counsel failed to call as a corroborating wit-
ness employee Rita Schulte who was also present. In
addition, the Administrative Law Judge was of the
opinion that even if Simmons, who testified that he
had several drinks on that occasion, was intoxicated
"it is difficult to believe that as Personnel Manager he
would make so lethal an admission." And, according
to the Administrative aw Judge, if in fact Simmons
was intoxicated any statement made "was in the na-
ture of irresponsible alcoholic babble not worth tak-
ing seriously, much less holding his employer ac-
countable therefor."
At the outset, we note that the Administrative Law
Judge erred in drawing an adverse inference against
the General Counsel for not calling Schulte as a cor-
roborating witness. Thus, Schulte was equally avail-
able to Respondent to refute Henningfeld's testimony
as she was to the General Counsel to corroborate it,
but Respondent also failed to call the witness. In such
circumstances, we have concluded no inference
should be drawn. See A therton (adilc Inc.. 225
NLRB 421, 422, fn. 3 (1976).
As for the Administrative Law Judge's skepticism
that Simmons would make such a "lethal admission"
as the plant closing statement attributed to him, we
are constrained to point out that the Administrative
Law Judge entertained no such doubt when he found
that Simmons, during the same conversation with
Henningfeld, admitted that employee Hall, a union
activist, was terminated for his union activity and not
for the pretextual reasons asserted by the Company.
We are unable to understand why such an admission,
which the Administrative Law Judge found, is any
less "lethal" than the plant-closing remark he de-
clined to find.
In the same vein, we disagree with the Administra-
tive Law Judge's suggestion that i Simmons made
the plant-closing remark he must have been drunk,
hence his statement should be considered mere "bab-
ble" not worth holding Respondent accountable for.
In the first place, although the conversation be-
tween Simmons and employees took place in a bar
and the principals were drinking. there is no evidence
on this record that Simmons or anyone else present
was drunk. Furthermore. as noted above. the Admin-
istrative Law Judge found that during this same con-
versation Simmons remarked that employee Hall had
been discharged for discriminatory reasons. In finding
234 NLRB No. 174
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Simmons' remarks vis-a-vis Hall revealed the true
reasons for Respondent's conduct in terminating
Hall, the Administrative Law Judge implicitly re-
jected any conclusion that such a statement, coming
from a high management official but delivered in the
context of a barroom conversation, should be dis-
missed as mere "babble." Indeed, in commenting on
the significance of Simmons' remarks on this occa-
sion, the Administrative Law Judge observed in vino
veriras. For our part, we are unable to perceive any
reasonable basis for concluding, as the Administra-
tive Law Judge apparently would, that there is less
reason for holding Respondent accountable for Sim-
mons' alleged comments about plant closing than for
his comments about Hall's discharge.
Having rejected the Administrative Law Judge's
approach, we conclude that on the record as a whole
there is ample basis for finding Simmons made the
remarks about plant closing as alleged in the com-
plaint. In so doing, we note that the plant closing
statement was of a kind with other coercive state-
ments made by Respondent's officials, including Sim-
mons, during the organizing campaign. We also note
that the Administrative Law Judge generally discred-
ited Simmons' testimony, including his testimony
with respect to other parts of the conversation in
which the plant closing statement was made, and ex-
plicitly found that Simmons, "though personable, left
much to be desired as a witness." On the other hand,
the Administrative Law Judge specifically credited
Henningfeld over Simmons with respect to disputed
parts of the conversation. In these circumstances, and
in light of the record as a whole, we find the inherent
probabilities favor Henningfeld's version of the entire
conversation. Accordingly, we find Respondent vio-
lated Section 8(a)(l) by the remarks of its personnel
manager concerning plant closing in the event of
unionization. Compare, Hedstrom Company, a subsid-
iary of Brown Group, Inc., 235 NLRB 1198 (1978).2
2. The Administrative Law Judge concluded that
Respondent's unlawful activity was sufficient to set
the election aside but was not sufficiently serious to
warrant the issuance of a bargaining order. We dis-
agree.
In N.L.R.B. v. Gissel Packing Co., Inc., et al., 395
U.S. 575 (1969), the Supreme Court stated the general
principle applicable to the issuance of bargaining or-
ders. The Court affirmed the Board's authority to is-
sue a bargaining order not only in "exceptional cases"
marked by "outrageous and pervasive" unfair labor
practices which eliminate the possibility of holding a
2 In the absence of exceptions thereto, we adopt the Administrative Law
Judge's recommendation to dismiss the allegation of the complaint alleging
that Respondent created an impression of surveillance over its employees'
protected, concerted activities.
fair election, but also in "less extraordinary cases
marked by less pervasive practices" where there is a
showing that at one point the union had a card ma-
jority, and the Board concludes that the extensiveness
of the unfair labor practices "have the tendency to
undermine majority strength and impede the election
processes."' We find that the instant case falls into the
latter category.
Thus, here, among other violations of Section
8(a)( I) of the Act, Respondent repeatedly threatened
employees with reprisal and loss of benefits if they
selected union representation. Such threats, if imple-
mented, would have had an impact on every em-
ployee in the unit. Moreover, preeminent among the
threats chargeable to Respondent are Personnel Man-
ager Simmons' comments about plant closing made
less than I month before the election. The Board has
long recognized that the coercive effects of such state-
ments are particularly difficult to eradicate by tradi-
tional remedies.4 See General Stencils, Inc., 195
NLRB 1109 (1972).
Nor can we ignore the fact, as found by the Ad-
ministrative Law Judge, that Respondent unlawfully
terminated a leading union proponent expressly for
the purpose of stalling the union drive and, thereafter,
used the discharge to chill the enthusiasm of other
employees for the Union. We doubt that the lesson
driven home by this discharge will be soon forgotten
by employees. Given these circumstances, we have
decided that it is unlikely that our traditional rem-
edies will successfully dissipate the lingering effect of
Respondent's unlawful conduct. Inasmuch as we are
satisfied on this record that prior to June 1, 1978,
when Respondent embarked on its unlawful anti-
union campaign, a majority of unit employees had
signed valid authorization cards in favor of the
Union,5 and, because we are convinced that in the
3Gissel, supra at 614.
'As discussed, supra. the plant closing statement was made during a con-
versation between Simmons and employee Henningfeld. The record indi-
cates. however. that at least one other employee and perhaps others were
present during all or parts of this conversation. In any event, we have long
recognized that it is almost inevitable that a threat of such dire consequence
for the entire employee complement will be widely circulated and discussed
even if made initially to a single employee. See Standard Knitting Mills. 172
NLRB 1122 (1968).
' Certain of the Administrative Law Judge's comments about authoriza-
tion cards and the legal principles applicable to their use reflect serious mis-
conceptions that require correction. At the outset, we agree with the Admin-
istrative Law Judge's finding that 88 of the 163 employees in the appropriate
unit had signed valid cards by June I, 1978, when Respondent commenced
its unlawful campaign to undermine the Union's majority. However. con-
trary to the Administrative Law Judge's suggestion, the fact that some em-
ployees when solicited were told the card was "to see how many people
would like to have an election" is not a sufficient basis for concluding that a
bargaining order is not warranted. See, in this connection. Walgreen Com-
pany, 221 NLRB 1096 (1975): Levi Strauss Ca., 172 NLRB 732 (1968).
Nor, in the context of determining whether a bargaining order should issue,
is it a proper inquiry for the Administrative Law Judge to engage in specula-
tion as to the subjective desire of employees who have signed valid authori-
zation cards. See. generally. Federal Alarm. 230 NLRB 518, 522 (19771.
928
HITCHINER MANUFACTURING COMPANY
circumstances of this case Respondent's unfair labor
practices have so impeded the election process that
there is little likelihood of a fair election in the fore-
seeable future, we shall order Respondent to recog-
nize and bargain with the Union commencing from
that date.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Hitchiner Manufacturing Company, O'Fallon, Mis-
souri, its officers, agents, successors, and assigns,
shall:
I. Cease and'desist from:
(a) Interrogating its employees concerning their or
other employees' union membership, affiliations,
views, sympathies, activities, or other protected, con-
certed activities in interference with or restraint and
coercion of their exercise of any right under the Na-
tional Labor Relations Act, as amended.
(b) Threatening, expressly or impliedly, the cessa-
tion, cancellation, withdrawal, removal, discontinu-
ance, loss, or diminution of any existing job-related
economic benefit or working condition privilege, or
threatening adverse alteration of job status, or threat-
ening that negotiation with a union would be based
on withdrawal or cancellation of employees' existing
job-related benefits and working condition privileges,
or threatening any other form of reprisal, for union
adherence, support, voting, or selection of a union as
collective-bargaining representative, or in the event of
unionization.
(c) 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 to do so, or failing or
refusing to recall, reinstate, or rehire any employee
because he or she has exercised, or proposes to exer-
cise, or continues to exercise any right under the Na-
tional Labor Relations Act, as amended; or directly
or indirectly doing so, or threatening to do so, so as to
discriminate in regard to the hire, tenure, or terms or
conditions of employment of any employee because
he or she exercises or proposes to exercise or contin-
ues to exercise such right or engage in such activity;
or informing any employee that he or she or any
other employee is being, will be, or has been dis-
charged, laid off, or disciplined because of his or her
' It is clear that Respondent embarked upon its course of unlawful con-
duct in April 1978 and the Union attained majority status on June 1, 1978.
Accordingly, we shall impose Respondent's bargaining obligation as of the
later date. Bandage, Incorporated 228 NLRB 1045 (1977). For the reasons
given in his separate opinion in Beasley Energy, Inc., 228 NLRB 93 (1977),
Chairman Fanning would date the bargaining order prospectively.
union activity or other protected, concerted activity
under the Act.
(d) Threatening employees with discharge or with
closing of the plant in order to dissuade them from
giving support to the Union.
(e) Directly or indirectly engaging in any of the
foregoing actions or activities or any like or related
act in order to dissipate the collective-bargaining rep-
resentational status of its employees' lawfully desig-
nated collective-bargaining representative, or for the
purpose of causing its employees to discontinue or
refrain from exercising their right to bargain collec-
tively with Respondent, or otherwise to interfere with,
restrain, or coerce its employees in the exercise of the
rights guaranteed them under the Act, or to prevent,
impede, or interfere with free and fair election pro-
cesses of the Board under the Act.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization; to form, join, or assist any
labor organization; to bargain collectively through
representatives of their own choosing; to engage in
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection; or to re-
frain from any and all such activities, except to the
extent that such right may be affected by an agree-
ment lawfully requiring membership in a labor or-
ganization as a condition of employment, as autho-
rized in Section 8(a)(3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative actions necessary
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with
United Steelworkers of America, District 34, AFL-
CIO-CLC, as the exclusive representative of all the
employees in the bargaining unit described below
and, if an understanding is reached, upon request,
embody such understanding in a signed agreement:
All full-time and part-time production and main-
tenance employees, including dispatch employ-
ees, inspectors, and material control clerk em-
ployed at out facility in the St. Charles County
Industrial Park in O'Fallon, Missouri, excluding
all office clerical and professional employees,
guards and supervisors as defined in the Na-
tional Labor Relations Act.
(b) Offer to Ronald W. Hall immediate, full, and
unconditional reinstatement to his former job (or, if
that position no longer exists, to a substantially equiv-
alent job) with Respondent, without prejudice to his
seniority and other rights, privileges, benefits, and
emoluments, including but not limited to any pay and
wage rate increases to comparable employees since
Respondent's termination of Ronald W. Hall; and
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make him whole for any loss of income, benefits, and
emoluments (including overtime, holiday, and vaca-
tion pay and time off, and hospitalization, medical,
and other insurance claims and benefits, both per-
sonal and derivative of dependents, if any, and expen-
ditures in lieu thereof during any noncoverage period
until his reinstatement hereunder), in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). (See, generally. Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).)
(c) Expunge from all of Respondent's books and
records any entry or mention indicating or to the ef-
fect that the termination of Ronald W. Hall was be-
cause of any work or work-related fault, deficiency, or
shortcoming on his part or based on contravention or
infraction of any of Respondent's rules, requirements,
or policies; and refrain from making any such report
or statement voluntarily or in response to any inquiry
from any employer, prospective employer, employ-
ment agency, unemployment insurance office, refer-
ence seeker, or inquiry.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, wage rate and other records, work
schedules, production reports and data, social secu-
rity payment records, timecards, personnel records
and reports, and all other records and entries neces-
sary to determine the amounts of backpay and other
sums and benefits due under, and the extent of com-
pliance with, the terms of this Order.
(e) Post at its premises on North Service Road, St.
Charles County Industrial Park, O'Fallon, Missouri,
copies of the attached notice marked "Appendix C."7
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, after being signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director, in writing, within
20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
'In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
it hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
IT IS FURTHER ORDERED that the election in Case
14-RC-8712 be, and the same hereby is, set aside and
that the petition in Case 14-RC-8712 be dismissed.
APPENDIX C
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 parties had the opportu-
nity to present witnesses, evidence, and arguments,
the National Labor Relations Board has found that
we have violated the National Labor Relations Act
and has ordered us to post this notice and to abide by
the following:
As employees, the National Labor Relations
Act, as amended, gives you these rights:
To engage in self-organization
To form. join, or help unions
To bargain collectively through representatives of
your own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WEiiL. NOI question you in violation of the
Act, concerning your union membership, affili-
ation, sympathies, desires, activities, or other
rights or actions guaranteed to you under the
Act.
WE WIll. NO( threaten that you will lose your
coffeebreaks or any other benefits or privileges,
or that you will suffer any other job or economic
reprisal, in case of unionization or in case you
vote a union in, or in case you attempt to bar-
gain collectively with us through a union.
WE WILL NOT discharge, terminate, lay off,
furlough, suspend, refuse or fail to reinstate, re-
call, or rehire, or in any way change the job sta-
tus of any employee because he or she engages in
union activity, or exercises, tries to exercise, or
continues to exercise any right under the Act:
and WE WILL NOT tell any employee that he, she,
or any other employee is being, will be, or has
been fired because of union activity.
WE WILL NOT threaten employees with dis-
charge or with closing of the plant in order to
dissuade them from giving support to the Union.
WE WILL NOT do any of these things or other-
wise violate the Act, directly or indirectly, in or-
der to destroy or dissipate the collective-bargain-
ing status of your lawfully designated union
representative, or for the purpose of inducing
930
III(I 111NI R 11,N A( It RN( (()ML1'\NAY
you (o cease f'ronI acting through such represent -
atlive in order to hbairgin with us colleclivcel as
you have the right to lo. or o prevent or inter-
fere with a free and Iair election.
WI Wvlli NI in an\ other manner interere
with, restrain, or coerce ou in the exercise of'
your right to sellf-organization to f'orm. join. or
assist any lahor organization; to bargain collec-
tively through representatives of' your own
choosing: to engage in concerted activities tlr
the purpose ol' collective bargaininig or other mu-
tual aid or protection; or to relrain troJll any .r
all such activities.
WI W'sii.I offer Ronald W. 1tall immediate,
full, and unconditional reinstatement to his for-
mer job, with full seniority ad olier rights,
benefits, and emoluments. just as it' we had not
discharged him on June I. 197S: and wi. Wiil
pay him, with interest. ftr all wages and benefits
lost by him because of tha;lt discharge.
Wli wii ., upon request. recognize and hbargain
collectively with United Steelworkers o(' Amer-
ica, District 34, AFl ('10 CI(C. as the exclusive
collective-bargaining representative of' our em-
ployees in the following appropriate unit and. ift'
an understanding is reached, upon request. em-
body such understanding in a signed agreement:
All full-time and part-time production and
maintenance employees including dispatlch
employees, inspectors. and material control
clerk employed at our facility in the St.
Charles County Industrial Park in O'Fallon
Missouri, excluding all office clerical and pro-
fessional employees, guards and supervisors as
defined in the Act.
HIl('HINER MANUFA( IRING; C()MPANY
DECISION
SIATtM LNI ()i illt CASt
STANI.tY N. 011.iAU:M. Administrative Law Judge: This
consolidated proceeding' under the National .abhor Rela-
tions Act. as amended. 29 U.S.('. §151. ct seq. (hereinafter
the Act) was heard by me in St. Louis, Missouri. on Octo-
ber 17-27, 1978. involving 67 witnesses and nearly 250 ex-
hibits. All parties were represented throughout by counsel
or other representatives, who were afforded full opportunity
to present evidence and arguments, as well as post-hearing
I Case 14-CA 11 526: Complaint issued July 18. growing out of charge
filed June 2, 1978. Case 14 CA 11683: Consolidated complaint issued Sep-
tember .growing out of charge filed July 25. 1978 Case 14 RC-8712. here
involving issues resulting from Petitioner Union's Objection I to a statutory
representation election held under the Act on July 20, was further consoli-
dated herewith for hearing by the Regional Director for Region 14 on Sep-
tember 20. based upon the Board's Order of September 13. 1978. i1i that
effect. Unless otherwise specified, dates are 1978 throughout.
hr-lics rcccl.edl troin ttle (ileneral ( ' ouInsel iit Respondent
hs I)ecemlber 29. I he cord' and briefs havle heen crettull,
cinsidered.
Ihe principal issues presented are whether the Respon-
dent. ilitchiner Manulltcturing ('ompans. violated Section
X(a)( I of the Act r Iough coercive interrogation anld eco-
nomic threats, and Section 8(a)(3) and (I) b discharging
and not reinstating all eploxee hbecause he engaged in ac-
tliily protected under the Act also. whether a statulory
representlation election held on 1 Jul 20 should because of
those alleged uulair labor practices he set isi de and, it so.
hh;l i-elled i .. rrun election or (is./ bargaining or-
der' is appoprriate Llnlier the circumstlances.
UIpon the entire record and my observa;ltion of the testi-
inonial deLleilanor ol the %ilncsses, I nlake the ollowing:
F1N)1N( i \1 ('()N( I ININS
I I 'RIS)Il( II
At ll material times. Respondent-Emplo er has been
and is Missouri corporatllon, engaged in the minmulfaiclure,
salel. illn distribution of castings and related products ill
O'1:al11. n Missouri where. during the representaltie ear
1977. in the course and conduct of' its said husillness it pur-
chased and received goods and materials valued in excess of
50,0(XX) directly in interstate commerce rom places outside
of Missouri. During the same period, in its said business it
manuilactured, sold, and distributed products vlued in ex-
cess l $5()).000 directly in interstate commlerce to) places
outside of' Missouri.
I ind that ill at al materal times Respondent has been and
is ll emploser engaged II commerce within the meanlling of
Section 22t1. (6). aid (7) of' the Act: and that at all of' those
times ('hbarging Part-I-Petitioner llioll. nited Steelwork-
ers of Americrl. District 34, Al-. ('I ('L.('. has been anlld
is a labor orglanilatoill as defined hs Section 2(51 ot' the Act.
1. I Ill l (il 1)l NIAIR I A t)R PRAt I t S
The alleged e ents complained of; most of which are said
to have occurred during the interval between the ('bharging
Party tinion's tiling oft' a petition with the Board eeking
certificationl upon the basis of a statutory representation
election under the Act. following Respondent's refusal to
recognize or bargain with it'. will he considered chronologi-
cally.
A. April 16h. Ecoonomic Threal to Disconlintcu ('ofl'c Breaks
in Evenrrt o/f ,'tiontitilon
It is alleged' that on or about April 16 Respondent's Pro-
duction Control Manager Felix, in the presence of its Fore-
G(ieneral (Counsel's unopposed motio n or December 21 to crrect the
transcript to reflect the admission into evidence of G.C Exh 47 is hereby
granted
N.L.R B v. Gisse'! PacAinrg (o., Inc. 395 U S. 575 (1969).
The Union's petition was filed on May 24 As will be shown. inrl, the
Union lost he election. held on July 20. by a vote of 84 Io 52. with I I
challenged hallots (insufficient to affect the outcome) Union objections o
employer conduct affecting the election results were timely filed on July 25.
' Identification of specific complainl paragraph numbers. with findings
and summarized bases therefor. mas be tound in Appendi 4. in/ra Omitted
from publication
9I I
I)lF('ISIONS OF NA'I'IONAI. LABOR RtlI.AI'IONS BOARKI)
man Ferguson. threatened employees that if the Union won
election as their bargaining representative. Respondent
would no longer permit them to continue their existing
practice of leaving their work areas for coffee.
In support of this allegation Respondent's third-shift
group leader Gary Zblewski" testified credibly that when.
on April 12 as a first-shift aluminum melter. he received a
union card from fellow employee Ronald W. Hall, in the
immediate presence of then Foundry Foreman Ferguson.
Zblewski filled out the card a few minutes later and placed
it at the bottom of his (Zblewski's) work clipboard, which
he left in Ferguson's office and where he later observed
Ferguson looking at it. 7 Subsequently in April. in the finish-
ing department near the plant foundry. Zblewski heard Re-
spondent's Production Control Manager Felix say to its
Personnel Director Simmons, in the presence of fellow em-
ployee Ronald W. Hall, that "if the union does get in that
we will not be able to have our coffee breaks that we have
now and we will not be able to leave our work areas."
Although, without explanation, Respondent did not call
Production Control Manager Felix to dispute Zblewski's
testimony, it did call its former Foreman Ferguson and its
former Personnel Director Simmons, who deny participat-
ing in the described conversation with Felix.
Since I was favorably impressed with the testimonial de-
meanor of Zblewskil and have difficulty in believing he
would manufacture the described incident out of the whole
cloth, while I entertain considerable reservations. for rea-
sons detailed infra (secs. III, 1). 2 and Ill. F, I) concerning
the credibility of Simmons here. and Ferguson displayed
purported recollective difficulties concerning other contem-
poraneous events, I prefer and accordingly credit Zblew-
ski's described testimony and find the allegation in question
established. While the significance of coffee breaks may be
attempted to be minimized, it cannot be assumed that they
are insignificant to rank-and-file employees, nor that a sys-
tem or practice of freedom to fetch and enjoy coffee at will
is not prized by factory workers (as well, perhaps, as oth-
ers); nor, therefore, that threat of its summary removal for
exercise by employees of their statutorily guaranteed right
to bargain collectively, is not coercive. That it clearly is, cf.,
e.g.. Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754, 760 (2nd
Cir. 1963); N.L.R.B. v. Dixie Gas, Inc., 323 F.2d 433, 434
(5th Cir. 1963); N.L.R.B v. Tappan Stove Company [In-
dependent Employees Association. Intervenor], 174 F.2d
1007, 1011 (6th Cir. 1949); N.L.R.B. v. Bird Machine Com-
pany, 161 F.2d 589, 590-591 (Ist Cir. 1947); P.H. Glatfelter
I Zblewski had been a group leader for only about 3 months when this
case was heard. He was not a group leader at the times involved in the
specific incidents here, and thus not among the 10 group leaders mentioned
infra. In view of his present status. after some 5 years in Respondent's em-
ploy, his testimony here, to the extent it was adverse to his Employer. may be
regarded as having been delivered at economic hazard and therefore, as we
have been instructed, entitled to added weight in the credibility balance. Cf..
e.g., 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 Seel Products. Inc., 312 F.2d 14.
16 (4th Cir. 1963).
'Zblewski testified it was not unusual for a foreman to riffle through a
subordinate's clipboard. Zblewski's testimony that Foreman Ferguson
looked at Zblewski's union card among the latter's clipboard papers is cor-
roborated by Ronald W. Hall.
I See also fn. 6, supra.
(oipaun v. . R.B.. 141 1:.2d 631. 632. 633-634 (3d (r.
1944): N. L. R R. . Sc
so recommend (Resp. Ixh. 23. p. 4 and pl.asimt). lie did
manual work, the same as other employees, with the same
hours, and he punched in and out as the) did, and wore the
same workclothes as they. As the most senior and experi-
enced employee in his group, he could ill in on any manual
job as needed. sometimes showed employees how to do a
task and oversaw technical work requirements. and was
paid 50C more per hour than other nonsupervisory employ-
ees. On only one or two occasions, at the express request of
Production Manager Klimmek did he do some of Foreman
Ferguson's paperwork, in Ferguson's absence, since, having
formerly been a foreman. Hall was familiar therewith.'
During the 8-month tenure as group leader, with only two
or three exceptions when expressly so directed in the ab-
sence of a supervisor, he did not attend any of Respondent's
daily meetings for supervisors. (Resp. Exh. 23. pp. 17 20).
Corroborating Hall's testimony, Respondent's current
group leader, Zblewski. testified credibly that as group
leader he neither possesses nor exercises power to hire, fire
ICf.. e.g.. Local No 207, International Assciatlion of Bridge, Structural
and Ornamental Iron Workers Union v. Perko. 373 U.S. 701. 707 (1963);
N.LR.B. v. Talladega Cotton Factory, Inc., 213 i'2d 209 (5th Cir. 1954);
N.L.R B. v. Better Monkey Grip Company, 243 F.2d 836 (5th Cir. 1957). cert.
denied 353 U.S. 864 (1957), reheanng denied 355 U.S. 900 (1957)
'' Although Hall worked 6 hours per day on manual work. he would. in
accordance with traditional Company practice for bookkeeping/accounting/
budgetary purposes, enter on his punch card 4 hours for manual labor and
the remaining 4 hours under the Company's budgelary/accountancy control
number for "foundry" or nonmanual work (although, at least in Hall' case.
not actually so).
disciplinl. or to so CC.oilliniicitiill: 1 to Ir;lllstlr: nor lo ;Is-
sign work or icierlinlc: il d that lie gs lCii orders o cmI-
plo) ecs. Also. that e hlilinlscl does the sic ilitnal work
as other rank-and-file enlplol CSees allthOugh il occ;ISlOIl he
demonstrates to others how to do somicthing. Iurther cor-
roborating 1Hall's estimonlly. group leader im othL I11il tes-
titied credibily that as group leader he neither possesses nor
exercises authority to hii-ce. tire. discipline. promote, lay off.
or even tell employees to go home because there is no work
on hand to b nedone: nor authority to grant ay time ol
whalsoever: norl authority to deviate from jobs ;ssigned hby
a forenlin or other supervisor: nor authll oritv to assign or
even to select lot overtime: but that, although he has no
disciplinary power. on ccasion hce points out to others in
his group detective work, with corrective suggestions.
Rank-and-file employee I lenni ngfeld (n'c Biurnette) olers
ftrlther corioboraltion of' the nonsulpervisolr statuls ol' Re-
spondent's group leaders, in hat tlhe, "can not hire trins-
itr, suspend, liv ol, recall, promotelc discharige. reward dis-
tiplinc, adju st grievincs. or flcclivcl] recomniend such
actiils." dtlo ot indltpendentl assilgi wolk, a:lld o nolt ex-
ercise "independenlt udgimnl iVl,"'' ailthoiuglh 1they m
indicate to employees "how''" to do a obh (Resp. ixh. 26. p.
4).
()n Respondent's side. ccorlding to its I orCI;niln I ergu-
son, group leaders er i his expectlallion lookcd lowatrd to
"maintain worktlow qualit 5 slandards," as well ais occa-
sionally to write work orders for equiplntliIt repaiir not
enumerated hallmnlarks olf supervisory status under the Act.
Resplndenlls ormer Plant Manager Bealka, while not sub-
stanltal or credibly ' adding substantively to :Foreman
:erguson's description of the group leaders' actual fuunc-
lton, refers to themi picturesquel its "''the ees and ears of a
foreman" vhliatc\cr that ma\: metan. While Respondent's
liorimer P'r d tlction liManagI e (now its mIanager l t)r qualitV'
itssuralncie) KliII k ilinik detiled a lillber of '"sick pay au-
ihorizaltion" lorins ( Resp. I'.xhs. 44 49) and two "discussion
reports" (Resp. I:xhs. 52 53}. in each case approved by
Klinmmek bhut irst signed hby group leaders other than Hall
over the line "supcrl-isor,'' it is clear that such does not if'
itself' establish the signer's status a;s a supervisor within the
Act's definition.
Respondent's own oti 1ial position description for its
"group leadlers" (i.('. xh. 51). concededly effective at all
times here material. explicitly states that the' "are hourly
'' In connection with his transparently partisan attempts to portray the
group leaders as possessing authority they clearly do not have. when Beal-
ka's anention was directed to seeming inconsistencies between his testimony
and Respondent's own position description (G.'. Exh. I, described infra) of
its group leaders. his explanation was that he violated those company policies
and was orally reprimanded for so doing by Company Vice President B:oor-
man. who pointed out to him that those policies (i.e.. as spelled out in (;C.
Exh. 51) hould have been carried out. In this connection, it is noted that
"absence reports" allegedly signed by Hall. while in any event not probative
olf supervisory status within the Act's definition. are either not signed by ltall
(Resp. Exh. 35) or, with a single exception (Resp. Fxh. 19). are in 1976
prior to the effective date of the group leaders' position description here
concededly applicable (G.(' Exh. 51). It is clear that the group leaders'
occasional initialling of such entries as "no lunches" oin timecards in no way
establishes supervisory status under the Act: even timeclerks initial or vali-
date attendance records. I do not credit Bealka's estimony that group lead-
ers "solicit ... and approve" employees' overtime, and find that if they or
one or more of them occasionally may have done so, it was in excess of
authority if not authorized or approved by the group leader's supervisor.
9)34
HITCHINER MANUFACTURIN(G COMPANY
employees appointed by the company to perform limited
supervisory duties, as well as to perform normal production
or maintenance work," and it is clear from the qualifying
language that follows that the Company itself does not re-
gard its group leaders as supervisors. (E.g., "As directed":
"report . .. to the supervisor." "as directed by the supervi-
sor"; "Disciplinary action . ..will be determined by the
supervisor, not the group leader": "as requested by the su-
pervisor": "The supervisor, not the group leader, will make
recommendations and decisions regarding merit increases,
promotions, and transfers": "The supervisor must not ask a
group leader or lead person to evaluate an employee's per-
formance, recommend a pay increase or promotion. recom-
mend disciplinary action, or issue a discussion report. These
are responsibilities of management employees: group lead-
ers and lead persons are not management employees [Where
a group leader in an emergency situation, upon explicit au-
thorization from the supervisor contacted at home if not
personally available, warns or suspends an employee where
utterly essential], "the employee must be informed by the
group leader or lead person that he is merely following the
instructions of the supervisor"; "If any of the 'forbidden'
[i.e., supervisor] duties ... are required by the company. the
employee [i.e.. group leaderl must be reclassified to salaried
foreman status bv using an Emplovye Status Form. This in-
cludes temporary periods such as when the foreman is ab-
sent due to vacation or extended illness": and "If the em-
ployee (i.e., group leader] is asked by the company to
become involved with performance appraisals, pay changes
and/or disciplinary action, he should be reclassified as a
temporary foreman") [Emphases supplied.]
Although Respondent's position description for its group
leaders includes the introductory phrase (supra) that they
perform limitd "supervisory" duties whatever, if anything.
that may mean other than some of the things they do are
"supervisory" in descriptive nature or by analogy it is of
course the Act's definition and not Respondent's usage
which is determinative of the question of whether or not
Respondent's group leaders are to be regarded as supervi-
sors for purposes of the Act as distinguished from the inter-
nal operation of Respondent's enterprise, paperwork, or no-
menclature. The Act's definition of supervisor (sec. 2(1 1)) is
cast in terms of true, actual, inherent, regular, independent
power and authority over subordinates. The record here
fails to establish that Hall as a group leader satisfies the
Act's definition as perhaps distinguished from his Em-
ployer's usage s or supervisory status. It is accordingly
found that at the times here material, including the date of
his discharge (June 1. 1978), Ronald W. Hall was not a
supervisor as defined by the Act but was an employee of
Respondent entitled to the Act's full protection.
2. Hall's discharge
Hall's discharge on June 1 revolves around a plant epi-
sode of May 30-31 with a malfunctioning T 4 foundry
" Even as to this. it will have been noted that Respondent's own usage is
persistently hedged with qualifications emphasizing the absence of real super-
visory power on the part of its group leaders (G.C. Exh. 51. .rupra)
'' Based not only upon credited testimony as indicated. but also exhihits
including Resp. Exhs. 21 25 inclusive.
heat-treat oven, culminating in the "burnup" through ex-
cessive heating of a sheet of aluminum therein. Before pro-
ceeding to describe that incident and its sequelae a review
of Hall's prior employment history is useful in connection
with resolution of the issue as to the true reason for his
discharge.
Hall entered Respondent's employ as a cutoff operator in
September 1972, almost 6 years prior to his discharge. In
November 1972 he was transferred to the foundry as a
melter, and by 1973 he was promoted to multidepartmental
group leader. In February 1977 he was advanced to the
important supervisory responsibility of first-shift foreman.
Eschewing that responsibility, however, for reasons of per-
sonal preference he requested and in October 1977 was per-
mitted to resume the position of group leader, on the first
shift under Foundry Foreman Ferguson. Respondent's offi-
cial personnel policies explicitly specify that "Employees
with poor records are not to be appointed a group leader or
lead person" (G.C. Exh. 51. "E2") and that "Appointment
to group leader or lead person requires the prior approval
of the vice president-operations and vice president-human
relations. An employee status form will be used to obtain
this approval" (id., sec. E.4). It seems fair to say, upon the
record presented, that until the incident of May 30 31 here
in question resulting in his discharge, Hall was at least a
senior, experienced, well-rounded, technically well-quali-
fied, and valuable performing asset to Respondent's plant
foundry operations.
There can be no doubt that Hall from at least the early
part of 1974 until his discharge was extremely actie as a
leader, indeed seemingly the plant leader. in Union affairs
and other concerted activities protected under the Act.
Thus, by way of example, in March he successfully spear-
headed the employees' opposition to the Company's in-
tended institution of a rotating swing-shift system under
which employees would have been required to "work week-
ends for straight time" (Resp. Exh. 21. p. 4). and he also
intervened on behalf of and successfully counseled fellow-
employee Benton when the latter was faced with transfer to
a different shift (id. pp. 4 51. In April, Hall not only joined
but in that and the ensuing month actively solicited fellow-
employees to join the Union. seemingly as a or the chief
union card solicitor (see Appendix B, attached) Omitted
from publication.] He wore as many as three union buttons
at a time and also distributed them among employees. He
attached a union bumper emblem to his car. These activi-
ties by Hall were not only open and unconcealed, but well
known to and even discussed by him with various manage-
ment officials, as well as management officials themselves.
Hall also spoke up sharply in defense of the Union and was
openly critical of a company attack on the Union at a May
II meeting called by Respondent's Vice President for Op-
erations Noga. in the presence of Plant Manager Bealka,
Production Manager Klimmek, Comptroller Putnam. Pro-
duction Control Manager Felix, and Foremen Ferguson
and Rouse (id., pp. 7 8)-hardly an action calculated to
endear him to management, which was opposed to the
unionization movement and issued literature expressing its
opposition (id., p. 3). On various occasions he complained
to management officials about their lack of power to im-
prove working conditions, since apparently major decisions
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came from absentee top management officials at the Com-
pany's New Hampshire headquarters (Resp. Exh. 22). Dur-
ing April and May, Hall led an attempt by several company
group leaders to improve their lot and increase their pay:
this was essentially unsuccessful, as indicated by the deci-
sion of Company Vice President-Human Relations Boor-
man, dated May 23, 1978 (Resp. Exh. 4)-a scant week
before Hall's discharge. On May 25, Hall learned from an-
other group leader that then Third-Shift Foreman (later
personnel manager) Kaufman had revealed to him that
Plant Manager Bealka maintained a list of Union activists
including Hall's name (Resp. Exh. 21, p. I I). At the instant
trial, various Company officials (Vice President-Human Re-
lations Boorman, Personnel Director Simmons, Foundry
Foreman Ferguson) frankly conceded knowledge of Hall's
union activities, and Respondent's counsel stated on the
record that Respondent does not dispute its knowledge of
those activities by Hall.
We come, then, to the nexus of events surrounding Hall's
discharge on June 1. The actual underlying facts preceding
that discharge are, with some exceptions (e.g., Simmons'
admissions) to be described, not in substantial or sharp dis-
pute. The dispute centers, rather, around whether those
facts comprised the true reason-as distinguished from a
pretextual basis-for the discharge.
It will, of course, be recalled that at the time in question
(May-June I) Hall's job was that of a group leader in the
foundry on the first shift, under Foreman Ferguson. As
such, under the Company's applicable official job descrip-
tion in its Standard Procedures Manual, approved by its
Vice President Boorman (G.C. Exh. 51), Hall as a group
leader could arguably be said to have possessed a vaguely
defined "duty" to institute corrective measures in case of
breakdown of equipment coming to his attention, under the
following rubrics (G.C. Exh. 51, p. 2, la, f, and h):
a. As directed, investigate production, quality, effi-
ciency, scrap, maintenance, shipping or similar
problems and report apparent reasons for problems
to the supervisor. Take corrective action as directed
by the supervisor.
f. Make recommendations for work flow improve-
ment, scrap reduction, improved procedures and
similar items.
h. Maintain department housekeeping and safety stan-
dards in conjunction with the supervisor.
One of the "responsibilities" of "supervisors and depart-
ment managers" is, in turn, to "insure that group leader
responsibilities are limited to those permitted by this proce-
dure" (id., p. 1, A). :° Equipment repair requests may, of
course, as testified by Respondent's Maintenance Manager
and witness Dick, be initiated by any employee, group
leader, or leadman, and when countersigned or approved
by the foreman, delivered to Maintenance Manager Dick's
office or to him personally; he is usually notified of emer-
K According to Plant Manager Klimmek, Foreman Ferguson was "on
vacation" on May 30-31, never returned, and was terminated on June I,
Klimmek's testimony that "The group leader takes over in the foreman's
absence" is unsupported by Respondent's official position descriptions in its
Standard Procedures Manual (G.C. Exh. 51).
gency repairs. Dick personally assigns all repair and main-
tenance work to his subordinates and personally determines
priorities.
On May 30-31, Respondent's foundry equipment in-
cluded two T-4 heat-treat ovens (as well as a T-6 heat-treat
oven), the function of which was to soften aluminum to the
pliability point essential to shaping and fabrication." The
melting point of aluminum is around F 1220 and the alloy
here around F 1010. Since the annealing process in the T
4 oven takes about 12 hours, it is not completed within one
shift, but subtends two shifts. It is perhaps usual to set and
leave an oven containing aluminum at around °F 700, from
one shift to the next. A malfunctioning T-4 heat-treat oven
producing excess heat would "burn up" rather than melt
the aluminum to be shaped. Heat calibration and override22
controls utilized in conjunction with these ovens were de-
signed to prevent overheating mishaps as well as to assure
maintenance of desired temperatures. Unquestionably, as
testified by the General Counsel witnesses and conceded
by Respondent's own Maintenance Manager Dick, occa-
sional malfunctions of these ovens occurred, perhaps even
with some regularity, not ascribable to human error, result-
ing in burnt-up loads requiring scrapping. There is no
showing or contention that prior to Hall any employee was
discharged or even disciplined in connection with any such
oven mishap, malfunction, or even mishandling. There is
thus no question that the T 4 heat-treat oven incident here
involved by no means constituted the first or only incident,
but was one in a series of malfunctionings thereof.
When Respondent'sfirst-shift heat-treater Schilling, in its
employ since 1972, reported fbr work on the morning of
May 30, he observed an aluminum sheet in the T-4 heat-
treat oven. It had been loaded in there on a previous shift,
not by Schilling. There was no danger of melting or burnup,
the problem being that the temperature of the oven was too
low and could not be elevated to the degree required. Ac-
cordingly, Schilling promptly filled out a repair requisition
(Maintlenancel Work Order No. 52847: G.C. Exh. 76), and
delivered it personally to Maintenance Manager Dick's of-
fice, where, in Dick's absence (or nonarrival) he left it with
and spoke to Dick's assistant and subordinate, mainten-
anceman Holmes. It was then shortly after 7 a.m., the start-
ing time of Schilling's first shift. The work order states
"New T-4 oven over ride running past chart," and there is
a checkmark in the "Emergency" box on the form (as dis-
tinguished from "Routine" [apparently the lowest priority],
"Urgent," and "OSHA" [apparently the highest priority].
At around 7:15 a.m., Schilling also mentioned it to Hall,
group leader of his group. The necessary repairs not having
21 Oven-softened aluminum is moved to Respondent's finishing depart-
ment for straightening, and thence to wherever appropriate for further fabri-
cation (e.g., tooling or bright dip). In addition to the three aluminum heat-
treat ovens, the foundry also had a steel heat-treat oven.
22 According to Respondent's Maintenance Manager Dick, the function of
the override control is to cause the oven to shut off automatically if it over-
heats: for example, at around F 995 for the "355" aluminum here. Notwith-
standing all of these controls, however, Dick testified. T--4 oven aluminum
meltings or "burnups" have occurred, due to mechanical malfunctioning
(calibrator, override control, or other) and not to human error of the opera-
tor.
:3 Hall, Kirkpatrick, Schilling, Zblewski. and LaBonte. Without contradic-
tion. Hall linked overload burnups with operators' names on all three shifts.
936
HITCHINER MANUFACTURING COMPANY
been made, at around 10:30 a.m., Schilling filed another
work order (No. 52852: G.C. Exh. 77), again with Foreman
Ferguson's initials ("KPF") placed on it by Schilling-Fer-
guson was not there that day-stating "New T-4 oven
chart and over ride not running with each other," and again
with the "Emergency" box checked on the form. During the
morning, Hall, and possibly also Schilling, informed Pro-
duction Manager Klimmek about the malfunctioning T-4
oven and that Schilling had turned in a work order on it.2
In the early afternoon, Schilling was informed by Hall that
he (Hall), too, had been unsuccessful in getting a mainte-
nanceman to repair the oven since "the maintenance de-
partment had too much other things to do." At the end of
Schilling's first shift at 3:30 p.m., the oven had not yet been
repaired. When Schilling returned at 7 a.m. the following
morning (May 31), he observed a burnt-up load on the floor
in the pour basket.
Third-shift heat-treat operator Kirkpatrick testified con-
cerning his experience with the T-4 heat treat oven on the
night shift (May 29-30) immediately prior to Schilling'sfirsi
shift of May 30 which has already been described. The tes-
timony of Kirkpatrick, as Schilling, a thoroughly credible
witness, establishes that on that shift (May 29-30)-with
Hall, of course, not there, since he was not on that shift
when Kirkpatrick observed a malfunction of the oven's
thermocouple override calibration, he did not turn the oven
up but allowed it to idle, reporting it to third-shift mainte-
nanceman Dubach 2' as well as to Third-Shift Foreman (lat-
er personnel manager) Kaufman, and, at the end of his shift
at 7 a.m. on May 30. also to first-shift heat-treat operator
Schilling, who (in the company of Kirkpatrick) turned in to
Maintenance Supervisor Dick's office (in his absence) the
written work order form which has been described all
without participation by or apparent knowledge of Hall.
Respondent's then Third-Shift Supervisor (later personnel
manager) and witness Kaufman acknowledges Kirkpatrick
informed him of the T-4 oven malfunction at around 3 or 4
a.m. on May 30, and states that since maintenanceman
Dubach was working on a "higher priority" job on the pre-
heat oven "I [Kaufman] did not want him moved." He
(Kaufman) asked Kirkpatrick to try to fix it; but by 6 a.m.
he and Kirkpatrick agreed it was beyond Kirkpatrick's ca-
pability and was a job for the Maintenance Department
and that, accordingly, Kaufman instructed Kirkpatrick to
notify incoming first-shift heat-treater Schilling to put in a
work order with the maintenance department. Kaufman
concedes that he himself never put in a work order, did not
2' Although Klimmek denies that Schilling told him on May 30 about the
T-4 oven malfunction, he does not specifically dispute Hall's testimony that
Hall also told him (Klimmek) about it on May 30. However, Klimmek
claims he did not hear about the inoperative T 4 oven until 3:30 p.m. on
May 30, from Acting Plant Manager Spring, and that, since Schilling and
Hall had already just left by then because of the ending of their shift, Klim-
mek did not speak to either of them about it until the following morning
(May 31). In the resulting posuible testimonial conflict, upon the basis of
comparative testimonial demeanor as carefully observed, within the context
of the record as a whole, I credit Hall's testimony that he informed Klimmek
about the T-4 oven malfunction and pending work order on May 30 Klim-
mek leaves totally unexplained why, if he was as much perturbed over loss of
production as he now claims, he himself took no prompt and effective action
to assure the repair of the oven without any delay.
21 Dubach was not produced to controvert this.
even speak to any maintenanceman about it, never fol-
lowed up on it. was never questioned or spoken to by man-
agement (including Klimmek and Simmons) about it or dis-
ciplined regarding it, and insists that his own actions were
correct. According to Kirkpatrick, the oven was worked on
by maintenance and released to second-shift heat-treat op-
erator LaBonte on the second shift on May 30: when Kirk-
patrick returned on his usual third shift that night (May 30-
31). he found the oven calibration set at the required 985° .
but when he removed the aluminum after about 3 or 4
hours (he himself had placed it in the night before). he
observed that it was "burned." Kirkpatrick was in no way
questioned nor disciplined about it; nor, to his knowledge,
has anybody at any time been disciplined in connection
with any burnup before or since. His then third-shift super-
visor opines, in his testimony here, that the burnt load in
question was the same as had been put into the oven on the
third shift of the preceding night (i.e., MaN 29 30), while
conceding that because of the possibility of unknown excess
heat by reason of the malfunctioning thermostat control, or
by reason of improper manipulation. the load could have
burnt up during the third shift.
Also testifying, to complete the time cycle, on this sub-
ject, was Respondent's then second-shift heat-treat operator
laBonte, who also confirmed that T 4 oven loads have
burnt up during his shift as well. On the date in question
(May 30). with aluminum load already in the oven, main-
tenanceman Holmes repaired and restarted the oven at
around 4:30 p.m., setting it at the required 985 °. LaBonte.
whose second shift ends at 11:30 p.m.. did not handle the
oven at all that day on the theory that since the oven's 985°
aluminum cycle time was 12 hours, the ccle would not be
completed on his (second) shift but on the tiird shift. In no
way was L.aBonte called to account or disciplined: nor, in
his experience, was anybody else disciplined in connection
with any other oven burnup.
Respondent's maintenance manager and witness Dick, in
its employ for over 17 years, responsible for operation of its
equipment, testified that he has six maintenancemen under
him (3 on first shift, 2 on second shift, and I on third shift),
and also does maintenance work himself. On May 30. with
one of his three first-shift maintenancemen absent, the other
two as well as he himself were kept busy with various inop-
erative items of' equipment, and he was mostly out of his
office. According to his testimony, it was not until around
3:15 p.m. i.e., around the end of Schilling's,/Hall's first
shift that he learned, from Acting Plant Manager Spring
and Comptroller (later plant manager) Putnam that the T
4 oven was "down." In view of the volume of pending
maintenance work, after Spring offered and provided two
additional men to assist, Dick thereupon assigned his assist-
ant, maintenanceman Holmes-who, it will be recalled, had
been explicitly told around 7 a.m. that morning, to no avail,
by at least Schilling that the T 4 oven was malfunctioning
and in "emergency" need of repair ' to the T 4 oven re-
pair, at around 3:30 p.m. According to Dick, Holmes had
failed to inform him that the T 4 oven was "down": nor
did Dick check the accumulated work orders on his desk
26 Without explanation Holmes was not called to controvert Schilling's
testlmons in any way
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until around 3:30 p.m., after Spring called him. Dick per-
sonally assigns all maintenance work after determining
relative priorities. In the exercise of that responsibility.
Dick had assigned Holmes to an aluminum melter repair
that morning and told him to "stay with the melter until he
had it completed because it had been down on the third
shift and they needed it immediately to get their production
out . . . land] as soon as he finished in there . . . to go into
the shell room and complete in the shell room . . . the
moving of the lighting and some electrical, some piping"--
apparently after checking his desk between 6:30 and 7 a.m.
(although the first shift does not commence until 7 a.m.),
and, he testified, he does not check his desk routinely after
his early arrival at the plant. A maintenanceman, according
to Dick, could not informally be "flagged" to do the T-4
oven repair here, since it required recalibration not possible
to accomplish in "five or . . . ten minute[s." Further, ac-
cording to Dick, the T-4 problem here was that the alumi-
num could not be heat treated because the oven tempera-
ture was not high enough; to his knowledge, he stated
categorically, the oven repair permitted the aluminum in
the oven to be heat treated so that it would not have to be
discarded, and he is unaware of any burnup or melting
since the oven override control mechanism would shut it off
automatically if it overheated. I have grave difficulty in ac-
cepting and cannot credit his testimony that it is not the
responsibility of any of his subordinates to call to his atten-
tion any work orders regardless of their emergency na-
ture--filed in his office or of which they have been apprised,
although he concedes that on occasion they have done so.
According to Dick, on the third shift, when the T 4 mal-
function here occurred, the responsibility was that of the
third-shift foreman (i.e., Kaufman) to report it to the third-
shift maintenanceman." Also according to Dick, his assist-
ant Holmes sets the calibrations on the T-4 ovens and an
outside contractor then sets or resets and certifies them
monthly, usually during the first half of the month. Finally,
Dick concedes that if Holmes had properly repaired or ad-
justed the T 4 oven in question, there would have been no
reason for it to malfunction to burn up a load of aluminum
therein. There is no indication or claim that Dick, Holmes,
or any other maintenance department personnel were ever
in any way called to account or disciplined in connection
with the episode in question.
On the morning of May 31 Hall was called to the office of
Production Manager Klimmek where, in the presence of
Personnel Manager Simmons, Hall was told that "an oven
had malfunctioned the night before," resulting in the
burnup of a load of aluminum. Hall pointed out that Schil-
ling, as early as around 7:00 a.m., the day before (May 30),
as well as later in the day, had reported it to maintenance
and been informed it would be taken care of "right away."
On June I Hall was summoned to the company confer-
ence room, where, again in the presence of Simmons, Hall
was told by Klimmek that he was being terminated, then
and there, "for the heat-treat load burning up the night
before," involving his "being grossly inattentive." Accord-
27 Kaufman's testimony as to this, supra, will be recalled to the effect hat
he did not do so because he considered the third-shift maintenanceman to be
busy with more important things.
ing to Klimmek's testimony, "I [Klimmek] told Mr. Hall
that he was being terminated for gross ... inattentiveness
.... I told him he was not performing his duties as a group
leader and acting foreman .... I told him that he had
neglected to inform me about the T 4 oven not being in
operation." (It will be recalled that, crediting Hall, a con-
trary finding has already been made, supra.) The record is
without support for Klimmek's characterization of Hall as
an "acting foreman." Klimnmek also testified that he did not
"at any time tell Mr. Hall he was terminated because of a
burn-up which had supposedly occurred on the T 4 oven . . .
the T 4 oven went wild and went up to appro.imately 1050
and melted the load. " that "that was a malfunction of equip-
ment" and not "amny part of Mr. Hall's responsibili",," and
that Hall "wasn't fired because of the burn-up of the material
in the T 4 oven." [Emphasis supplied.]
When Hall requested something in writing to back up his
discharge, Klimmek left the office to obtain Hall's person-
nel file. During Klimmek's absence, Hall asked Personnel
Director Simmons, "Why am I being fired, you know this
doesn't make any sense?" (Resp. Exh. 21, p. 10.) Simmons
replied, "I'll tell you, but if you tell anybody I told you, I'll
deny it. They don't have a case, you'll be back to work in
six months, with backpay, and they're terminating you be-
cause of your union drive." In answer to Hall's question,
"Who's firing me," Simmons responded that he "couldn't
say, but it's coming from up top." (Id.) Klimmek returned
at this point and indicated that Hall's personnel file was not
in the plant but had been removed to the motel room of
visiting Company Vice President Boorman (vice president
for personnel. visiting from company headquarters in New
Hampshire). At Hall's insistence. Klimmek again left and
returned with Hall's "discharge papers." (Resp. Exh. 22, p.
10.) Simmons indicated Hall could "appeal" to Boorman
on Monday, June 5 (later deferred to Tuesday, June 6).
Klimmek then invited Hall to the cafeteria, where he
treated him to a cup of coffee. When Hall met with Boor-
man on June 6. Boorman indicated he would have to cancel
the meeting since Hall's "personnel file was with the com-
pany lawyers." When Hall pointed out that he had "never
been disciplined for poor workmanship," Boorman indi-
cated ignorance of this in the absence of Hall's file, but
denied Hall's claim that he had been "fired ... because of
my union activity." (Id., pp. I 1-12.)
Concerning the foregoing, Respondent's former Person-
nel Manager Simmons testified, as its witness, that both
Maintenance Manager Dick and his assistant Holme.s had
told him that they knew about the work order on the T--4 but
could not take care of it "because they were real busv in
another area at the time that was critical and he didn't have
time to get to it. " [Emphasis supplied.] It is of interest to note
that Respondent's Vice President Boorman similarly testified
that when Acting Plant Manager Spring told him on May 31
about the T-4 episode, Spring told Boorman that Schilling
had personally called the malfunctioning oven to the attention
of Maintenance Manager Dick's assistant Holmes at around
7 a.m. (May 30), but that Holmes had been assigned by Dick
to other work.28 Respondent's process engineer and witness
12 Boorman testified. rather astonishingly in my estimation considering his
severe indictment of Hall. that he does not fault Holmes because he "had to
938
r-a;rllel tIcslllicdl 1li1ile Intiii11neI Spliiii lo1 ttl lllct .1
p.mi on May 3) hIl lie 4 )eln x as ldosn sItnce 7 .im
When Schilling hd Llinlcv i a ork Older, tcklih l.illtCl
saw still on NI;a1ilenalloI M;n;agcr I)ick's desk at 3 p.ill
While Sinn s dencies lldicating t(o Il;fll that his dis-
charge was tor union activit,. Simmons concedes telling
Ilall during Kliitrnek's ahsence from the discharge Inter-
view of June I (vupra) that he (Simmons) was not in agree-
ment with the discharge since he did not believe as a result
of his investigation that the T 4 oven was lall's responsi-
bility; but that he cautioned Hall that "If ou tell anyhody
what I just told you I will deny it.... "because "I Sim-
mons] thought that if that would come out it might jeopar-
dize my job." In connection with Simmons' denial that he
indicated Hlall's discharge was for union activity. it may be
of interest to note that Production Manager Klimmek testi-
fied on cross-examination and reiterated on redirect exanlmi-
nation that Simmons had expressed precisel, this posi-
tion -namely, that Hlall was being fired for his union
activity to Klimmek. Boorman and Spring in their dis-
cussion preceding Hall's discharge.
Although Respondent's Personnel Manager Simmons de-
nies he made any admissions or statements of the chara;cter
ascribed to him by Hail. Simmons' denial is unpersuasle.
particularly since two other highly credible witnesses lesti-
fied with persuasive insistence that Simmons milde like ad-
missions to each of' thenm on independent and unrelated oc-
casions. Thus. Schilling. an utterly credible witness unlike
Simmons. who. though personable. left much to he desired
as a witness testified without cross-examination to speak
of. that when, on June 13. about to weeks /r Ilall's
discharge. a bulletin-board notice was posted to the effect
that group leaders would be responsible for heat treatment.
he (as a long-term employee. since 1972) visited Simmons (a
neophyte with Respondent only since March 1978) and
pointed out to him that there was no way a group leader
could know the temperature(s) being applied h the heat
treaters. Simmons thereupon closed his otfice door and can-
didly told Schilling. "We both know why Ron IHall was
fired .... Ron Hall was fired because of the union. it wasn't
because of the T 4 load burning up." drawing from Schil-
ling the response that "it was a crock of bulls t that Ron
should be fired for that." and the rejoinder from Simmons
that "if it hadn't been for that they would just nit pick
around and find something else to fire him for." whereupon
Schilling "told him it was crazy" and walked out.
Similarly and totally independently. Respondent's senior
wax assembler (in Respondent's employ for over 4 ears).,
carry out [Maintenance Manager] Dick's orders." and that he also does not
fault Holmes for not telling Dick. except to a "very minor amount" insuffi-
cient to warrant discipline; and that he hkewise does nol fault Dick, because
"he didn't know about the problem until 3 o'clock in the afternoon." He
does, however. allegedly "definitely" and strongly ("absolutely no question")
fault Hall sufficiently to warrant his summary discharge after 6 ears of
employment. At the hearing. Boorman further expressed his point of view to
be that Hall's conduct in the T 4 oven situation was a "deliberate" part of a
continuing attempt ion Hall's part "to tell the company what to do." The
record does not support so extreme a point of view. which may be the prod-
uct of smoldering resentment on the part of company management against
Hall because he was indeed obdurate and assertive in his pursuit of goals
under the Act, which he had the right to be
2 See fn. 6. supra.
\IC'Kl IB clt cII C III l n Il.li. Is l .li l wll) 111.11 \III III. I
\.t;I i, 1 I 1 h1 r t ill .IIIte 'I l " If .1 jC. llt.1 tlllllll , ll
IcisitiiiCl I)ttScicl r SNIIiii1i1'i, ;it)OaticlivCl ild bhC.r11 IllkiiL
IO them. l)riiiig l c'ishii csxersIlit,. Sittitiotii soIIk
of t lhe 1 I) usped-t-] i ClligL " a ' Ig ll ltall. and. i 1 i l lie had
told thllis to all him1scll but ould lldeC to dens It. Snl-
mtnrs added tlhat otle tof Respondenl's h idqu els ofil citls
(Mcl)crnlollti. is plresidcill) 1tad indicated lil tI lIlCthncir
never rutn sl illl uliotll shop id 1t eIICver ( oild." While
I lennilngfcld dlank beer, SimmoIns concLdes that n Ihc Os-
casion he con sulned at Ieast three vodkas ot the rcks"
professing to he unable to recall v hether singles or doubles.
I find it impossible to believe aid I do nt helice. that
three witnesses of the obhserved caliher if I1all Schilling.
and I lenningleld, were each halllcinaltig oi I;lallc;llillg ot
this subject. Crediting their testimonys and mildlful (f lihe
ancient wisdom in vi)iii , lili,. I lindl thait Pl'sOineCl Maln-
ager Simlons. v ho in his position m ust he prcS11cld to
have had intimllate knowledge of the ltcIs. did indeed Imake
the admissions thus ndepeInLentl s ascribed Ito i hii thrce
vitlesses, and that those adimissions reflected the trute 'iacls
ansd underlyinmg reason for l;il's discharge.
Io he sure. here, as is usual in cases of thlis s,;ieItX Re-
spoden i nosv seeks I dredgC up la mlnirg;lshod l i lleged
other shortcomings or vilssiatisi actiOinSs viis Ihe lic lshriged
emploee's work performance, in n ctl tt IO holster llp.
clnd credence to, and cloak with Ieileinc i l tlni I'h s.
Respondent's Production Nlanager Klinlnlek it Ithlc nirt
catalogued three reasons lor Lall's disclihirgc iit. tot otmls
(I) the T 4 oven episode, but also (2) i 1'-)7 11 1epla1i
iucidlent. and (3) .i M. t ) I( I 'inlhOlitiuitht" dspli\
lo begil s ith. onl te '[ 4 .cii episoide its sligCstsl
(l H1all tile hsis 'll IIs dIIsclgIC ;aIlld. 1o resail s 11 t-
ready in lrge pallt c\plilted. iI ilmus h r jected as p-
textual. II i Is ainsl\ cstlililshed. vklthotl conitest. a111;1 l-
though nuluerous os ell ilIts n f tio ls, hreaklOs Ils
hurnups, and nl lteria;l spoilages theretro l hld ocCurred,. t1
not a single inslance hadl in\ emipklo ee been discharged or
even reprimnl;lded herefor. Although even calling liall to
account therelr, much more ischarging him, must he re-
garded for that reason alone as highly disparate;l and lis-
criminator',, the circtlumstances. as detailed a;ho e show-
that Hall wuas in no w;:a at faultl in connection thelrewith.
lie did everything he reasonablN could to obtain the neces-
sary repair. which was not speedil> forthcoming for no rea-
son ascribable to Hall.s
With regard to the horseplay incident. it is to hbe noted
that it occurred in November 1977. some 7 months prior to
Hall's discharge. The incident involved Hall's prank of
squirting some ammonia under the door of his then Fore-
-o While Production Manager Kihmmek as well as Vice Presideni Bsrmnian
fault Hall for not complaining to Kihmmek directly (as production manager)
at I I a.m. of the failure of the maintenance departmenl to repair the ,osen by
that time, notl a single nstance of discharge or discipline oft a group leader,
foreman. or other employee for such a reason has been shoIwn Respondent's
witness Foreman Moreau testified thal at no time in his experience has a
group leader under him gone to) management over his he d n case required
repairs were not promptly) forlhcoming. According to Klimme. when he
notified Hall in the June I discharge nterview that he was being terminated
for "gross nattentiveness as a group leader and acting foreman." he
(Khmmek) specified that Hall "had neglected to inlform me aboul the 1 4
oven not being in operation " (The contrary has been found herein, .upra )
III 1( 111\1 R %IA'sl IV IIRI\(.( ()%IIINN't
DI) ( ISIONS ()1: NA I IONA I.AB()R RElATI()NS BOARI)
man Moreau. resulting in the imposition of a 3-day disci-
plinary suspension without pay. While the prank may seem
unusual in nature and in had taste, it is uncontested that the
identical prank was not uncommon in the plant indeed.
Moreau conceded that he himself had played the very same
prank on Hall when Hall was his foreman, without being
disciplined for it even though it came to management's at-
tention." As Moreau (in company with other witnesses)
puts it, "We clowned around a lot." While in no way con-
doning ammonia squirting, under the circumstances de-
scribed I cannot bring myself to believe that the incident of
November 1977. laid to rest 7 months prior to all's dis-
charge, played an actual role in his discharge: rather. I be-
lieve and find that, with a company-disfavored, intervening
unionizational campaign in which Hall was a leader, that
incident was resurrected as a makeweight to lend credence
to his discharge for another reason his Union and pro-
tected, concerted activism.
We come, then, to the third and final reason now ad-
vanced by Respondent for Hall's discharge: namely, what it
now characterizes as his insubordinate attitude in connec-
tion with what Respondent refers to as a "shake and tape"
episode of May 10 11.
Respondent's plant does ferrous as well as nonferrous
casting of metals including aluminum. In order to purge or
cleanse the ceramic shells into which aluminum is poured, it
is necessary to "shake and tape" the shells. In Respondent's
plant this "shaking and taping" of the ceramic shells has
been a hand operation, accomplished in May by employees
of the patch and dip area of the foundry (but later and at
the time of this hearing by employees of the shell depart-
ment). When, on May 10, Respondent's Process Engineer
Brantley, a metallographer without academic degree, re-
sponsible for its scrap control and reduction ("process pa-
rameters," as he says), encountered what he regarded as
excessive scrap and salvage, ascribed by him to an increas-
ing quantity of chips in the foundry, he reported this to his
superiors including Plant Manager Bealka and Production
Manager Klimmek. Bealka called a meeting, at which Hall
was present. to point out that "shaking and taping" of shells
should be done daily. Nevertheless, according to Brantley,.
"t Respondent's contention that Moreau's squirting of ammonia under
Hall's door is distinguishabhle from Hall's squirting it under Moreau's door
because Moreau's squirt occurred during a more lax or lenient period when
Respondent tolerated such pranks. antedating the August 1977 trial of an-
other Board proceeding against Respondent (238 NLRB No. 176. Sept. 29.
1978). after which it assertedly clamped down (according to Vice President
Boorman. through an oral instruction to its supervisors at which Hall was
concededly not present, since he was no longer a supervisor). is unpersuasive,
since pranks and horseplay continued with company toleration even there-
after. Moreau himself concedes this, although he would have it that the
pranks have tended to take perhaps less volatile form e.g.. "like tapping
lothersl on the butt."
In his testimony as Respondent's witness, Moreau (as well as others, in
passing) also alluded freely to crudely physiological vulgarisms, which he
indicates punctuated Hall's speech- as well as his own. While Hall. an ex-
Marine, was not a wordmincer. it is well understood in industrial circles that
usual factory habit, as here, tends not to utilize the restraintful discoursive
forms characteristic of the best tea among the English, but rather the Chau-
cerian plaintalk of their forebears. In any event, it cannot be seriously con-
tended that Hall was separated from his factory job after some 6 years for
this reason.
ni According to Brantley. 50 to 60 shells, each weighing 10 to 40 pounds.
required this daily "shaking and taping." to rid them of ceramic chips.
when he observed the next day (May II) that "shaking and
taping" had not taken place during a 4-hour period. he
informed Hall, who denied it was his responsibility since he
was not a multidepartmental group leader and this activity
was not being carried out in the area where he worked, and
that it was not the job of his group at all. When Brantley
asked who was in charge of the men in that (i.e., patch and
dip) area, Hall informed him it was Foreman Ferguson.
Brantley passed this on to Klimmek, who asked him to
write it down, which he did (Resp. Exh. 31) and gave it to
Klimmek. Brantley concedes that, although he saw no
"shaking and taping" done for 4 hours that day, he said
nothing to any employee in the patch an dip area about it;
that no scrap whatsoev'r occurred r ed o rested Iro ant of the
isork that morning, notwithstanding the failure to "shake and
tape" during those 4 hours and that no scrap occurred or
resulted thereafier, because a/fer he reported this to Klimmek.
the "shaking and taping" was in taict done. In no way was
any discipline, censure, admonition, or reprimand meted
out to Hall in connection with any technical lapse which
may have occurred in the described situation. Plant Man-
ager Bealka corroborates Brantley's account, adding that
when he took the matter up with Vice President Boorman
with the thought of firing Hall, Boorman decided not to do
so (or in any way to discipline, admonish, or even talk to,
Hall) because "there was some vagueness in the situation,"
a decision which Bealka accepted. According to Bealka.
since "shaking and taping" was Foreman Ferguson's re-
sponsibility. Bealka spoke to Ferguson about it, without
taking any disciplinary measures against Ferguson. On this
same subject. Production Manager (later manager of qual-
ity assurance) Klimmek testified that when he learned from
Brantley on May 11 that he had not observed any "shaking
and taping" done yet that day and reported his conversa-
tion (.supra) with Hall. he (Klimmek) accompanied Brantley
to Hall and asked Hall whether he was "shaking and tap-
ing" shells, and Hall replied. "No, but we will. " and he did,
the shells being thereafter "shaken and taped." But Klim-
mek asked Brantley to prepare a memorandum for the file,
which Brantley did (supra). Finally. Vice President Boor-
man confirmed the foregoing account. supplementing it by
adding that when the incident was reported to him by Beal-
ka. he (Boorman) spoke to Foreman Ferguson. who admitted
to him that he had not told the employees to "shake and tape,"
at which Bealka who had wanted Hall fired because of
this-expressed chagrin. Boorman refused to authorize
Hall's discharge (or any disciplinary action) under these
circumstances, indicating that the Company's own "skirts
aren't clean." Instead, Boorman instructed Klimmek to
"make sure that this is being done" thereafter, and Boor-
man confirms that it was indeed done thereafter.
I believe it is reasonably clear from the foregoing-as
testified to by Respondent's own responsible officials-that
the "shaking and taping" episode was not the reason and
played no real role in Hall's discharge, and I so find. (It is
additionally noted that it was not so much as mentioned to
Hall in his discharge interview.)
It appears reasonably evident, upon the record as a
whole, that the true reason for Hall's discharge was neither
the T 4 oven episode nor either of the other two incidents
now additionally suggested, nor those incidents together
94()
II1('lINIR MANIlFA(CIIlRING( (()MPANY
considered. 1all1's technical qualification and work compe-
tence are unquestioned he was a senior employee of 6
years' broad-scale experience who had apparently met the
tests of time. The only supervening circumstance leading to
his rapid demise and elimination was his preeminence and
leadership in protected, concerted activity and his attempt
to organize the employees for collective bargaining there-
after, Hall's hold on his job took a downhill course. Upon
the record here presented, that supervening circumstance of
union activism presents itself as the only persuasive, accept-
able, and true reason for his discharge. Here, as in N.L.R.B.
v. Elias Brothers Big Bov. Inc., 325 F.2d 360. 366 (6th Cir.
1963), the employee's work "apparently became intolerable
only after [he] had joined the union." Here. as in N.I..R.B.
v. Davidson Rubber Compan,, 305 F.2d 166. 169 (Ist ('ir.
1962)1 where "the discharge in question involves the 'key'
employee in an organizational drive. it may supply shape
and substance to otherwise equivocal circumstances." An
employee such as Hall, who becomes a "dissident and an-
noying" burr in his employer's side because of his conlinu-
ing exercise and obdurate pursuit of rights guaranteed by
Congress under the Act, does not therebh become vulner-
able to discharge in exemption from the Act's protections
a contrary result would undercut the very purpose of the
Act. Duo-Bed Corp. v. N.L.R.B.. 337 F.2d 850. 851 (10th
Cir. 1964), cert. denied 380 U.S. 912 (1965). Truly. here, as
in N. L. R. B. v. Thomas W. Dant. Rohert E. Dant d1/I /a Dant
& Russell, Ltd. 207 F.2d 165. 167 (9th Cir. 1953). the rea-
sons advanced by Respondent for Hall's discharge simply
do not "stand under scrutiny."
I am persuaded and find that Hall's continued activism
in concerted, protected activities and attempted union or-
ganization were the true reasons for his discharge, that he
would not have been discharged but for that activism and
those activities, and that the reasons given to him and now
advanced here for that discharge were and are pretextuous
to mask the foregoing true reasons."
E. June 13. Personnel Manager Simmons Informs
Employee of Hall's Discharge for Union Actirities
This allegation of the complaint" deals with Simmon's
statement to employee Schilling that Hall was discharged
because of his union activities. This incident has already
been described at length and fbund, in section D,2, supra,
and need not be here reiterated. That the statement was
clearly coercive, calculated to inhibit employees in the exer-
cise of rights guaranteed them under the Act, is not open to
doubt.
F. June 21: Personnel Manager Simmons' Statement to
Another Employee
I. Statement as to Hall's discharge for union activities
"See also N.LR.B. v. W.C. Nabors, d/b/a WC. Nabors Compnanv, 197
F.2d 272., 275-276 (5th Cir. 1952), cert. denied 344 U.S. 865 (1952).
4 It is also found, as shown above and alleged in the complaints (Case 14
CA-11526, pars. 5,.E, & 7; consolidated complaint, pars. 5E, & 11) that
Personnel Manager Simmons informed Hall that he was being discharged
because ofr his union activities, in further violation of Sec. 8(a)( I) of the Act.
"3 See Appendix A, infra omitted from publication].
The June 21 statement of Personnel Manager Simmons
to yet another employee, tHenningfeld. that Hlall was dis-
charged because of his union activities, has also already
been dealt with in section )2 .supra. and there found. It is
here mentioned, like Personnel Manager Simmons' June 13
like statement to employee Schilling, for chronological per-
spective purposes only. Once again, the statement from a
high official of Respondent. its personnel director, to a
rank-and-file unit employee cannot he regarded as other
than calculated to inhibit continued exercise by employees
of their rights under the Act, and thus is coercive.
2. Statement as to plant closure
It is further alleged that on the same date (June 21 ). Sim-
mons also threatened an employee with plant closure in the
event of unionization.
The employee is, again. Henningfeld. and the locale of
the alleged threat is the bar, during the conversation there
between Simmons and Henningfeld which has in part al-
ready been described in Section D2. supra. In addition to
his admissions concerning Hall's discharge on "trumped-up
charges." according to Henningfeld Simmons also re-
marked that Respondent had "already made the arrailge-
ments or looking into arrangements of selling . .. the shell
of the building to ITT" if the Uinion came in. and that when
he (Simmons) remonstrated he was told that Respondent
"didn't give a damn about the people .... McDermott
[company president] had said that Hitchener never run with
a union and it never would." Simmons absolutely denies
making the remark.
Here, unlike Simmons' remarks concerning Hall's being
fired fi)r union activities, which where made by him on
three occasions to three different people, the only testimony
concerning the remark about plant closure comes from
Henninglfeld. Although lenningfeld was accompanied on
the occasion by fellow-employee Rita Schulte, the latter
was not produced to corroborate Henningfeld even on re-
buttal after Simmons flatly disputed this testimony by Hen-
ningfeld. nor was any explanation afforded as to why
Schulte was not called. Indeed, in her own testimony, Hen-
ningfeld indicated that when she discussed the matter the
next day with Schulte-whom Henningfeld describes as
having been "under the influence" (but not "drunk") on the
night before- Schulte told Henningfeld she had no clear
recollection of what was said.
Under these circumstances, I am left with sufficient resid-
ual doubt on this particular point as not, in my view, to
justify a finding on the basis of preponderating, substantial
evidence, as required, that Simmons actually stated what is
thus ascribed to him. Furthermore, it would seem that even
the concept of in vino veritas should be temperately applied.
Thus, if Simmons was even in waning possession of his fac-
ulties, it is difficult to believe that as personnel manager he
would make so lethal an admission; if, on the other hand,
he was totally "drunk." it would seem that the stretch-toler-
ance point of in vino veritas was exceeded and that such a
statement was in the nature of irresponsible alcoholic bab-
ble not worth taking seriously. Holding his employer ac-
countable therefor is even less responsible, considering the
serious implications if true.
941
I ()l(ISI()NS O() NAI I()NAI IAIO()R RK.A IO()NS ()OARI)
In suml :ill factors consildered ;again listiligishing this
from Simmons' ;adlnissions concerning the lHaIll discharge.
which are corioborated in three independent directors (two
ofl the under circumstances where there is no suggestion
that Simmons was under alcoholic or other influence), and
to a degree possibly even hedgingly supported by Simmons
himself I helieve it would be unwarranted to make a ind-
ing upon the record presented that the threat in question
was made or, if it was, that it is in fairness ascribable to
Respondent. It is accordingly found not established as al-
leged.
i. June I ind 7reatifr.' Purplo.se o IUntrIirn, I',io,,
ind l bort Fair ElUciion
It is, inally. alleged that since about June I Respondent
has engaged in the liregoing acts in order to undermiIne the
Union's majority representational status and to prevent an
uncoerced and fair statutory election under the Act.
As will be shown ("Remedy" and Appendix B, infro). by
June I the Charging Party Union had attained majority
"card" status in the appropriate bargaining unit here.
Respondent's described actions. constituting unfair labor
practices, in the interregnum preceding the representation
election, were such that it appears to me plain that their
purpose could have been and were no other than to attempt
to undermine whittle down, and destroy the Union's image.
status, and bargaining strength among its employees, and to
abort that uncoerced fair election contemplated by the
Act's authors and entrusted to the administration of the
Board to assure. What other effect, for example. could the
summary removal of the employees' leadership head
Hall-- be designed to have?
Upon the record as a whole, it is found that the allega-
tion in question is established by substantial credible evi-
dence.
Upon the foregoing findings" and the entire record, I
state the following:
COlN( LUSIONS (it, AW
1. Jurisdiction is properly asserted in this proceeding.
2. By engaging in the following acts, under the circum-
stances described and found in section III, supra. Respon-
dent has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 and has
thereby violated Section 8(a)(1) of the Act:
(a) Interrogation concerning employees' union activities.
(b) Threatening employees with discontinuance of exist-
ing work privileges, in the event of selection by employees
of a union bargaining representative.
(c) Threatening employees with loss of existing economic
and other terms and conditions of employment in the event
of collective bargaining with any union collective-bargain-
ing representative of Respondent's employees.
(d) Informing an employee that he was being discharged
because of his union, protected, concerted activities under
the Act.
" Recapitulated in appended chart. Appendix A lomited from publica-
tionl.
(e) ltrming employees that another cnlployee had
been discharged becalus of his unioi. polIccted, concerted
activities under the Act.
3. B1 discharging its employee Ronald W. I lall n June
I1 1978, and failing and refusing at all times since then toi
reinstate or reemploy him, under the circumstances de-
scribed and ound in section III supr. Respondent has dis-
crimiinated in regard to the hire, tenure, and terms and con-
ditions of employment of its employees to discourage
membership in a labor organization, in violation of Section
X(a)(3) of the Act: and has. further. interfered with, re-
strained. and coerced its employees in the exercise of the
rights guaranteed them under Section 7 in violation of Sec-
tion 8(a)( I ) of the Act.
4. Respondent's discharge of Ronald W. Hall and its
other unlair labor practices in violation of the Act have
been with the purpose, intent, and eflect of coercing and
discouraging its emploees from continued lawful adher-
ence t. membership in, support of: and activities on behalf
of the Charging Party I nion herein as collectivc-bahrgaining
representative in the appropriate bargaining unit, as well as
to prevent said nion from becoming and acting as their
collective-bargaining representative, Io undermine the
linion's representative status and dissipate and destroy its
majority standing. aid to render impossible or impractica-
ble a free and uncoerced electoral choice on their part in
the statutory election procedures provided under the Act.
Ihe appropriate collective-bargaining unit is:
All full-time and part-time production and mainte-
nance cmployees including dispatch employeecs. in-
spectors. material control clerk employed at Respon-
dent's facility in the St. Charles County Industrial Park
in O'Fallon Missouri, excluding all office clerical and
professional enlplo\ees, guards and supervisors as de-
fined in the Act,
5. I'he aresaid unllair labor practices and each of them
have affected. affect and, unless permanentlv restrained and
enjoined will continue to atlect, commerce within the
meaning of Section 2(6) and (7) of the Act.
6. It has not been established by substantial credible evi-
dence upon the record as a whole that Respondent:
(a) Created the impression of unlawful surveillance over
employees' union activities. as alleged in paragraphs 5.D.
and 7 of the complaint and in paragraphs 5.D and II of
the consolidated complaint.
(b) Threatened an employee with closure of its O'Fallon
plant in the event of its unionization, as alleged in para-
graphs 5H, and 7 of the complaint and in paragraphs 5,H
and 1 I of the consolidated complaint.
REM [I)E
With regard to remedying Respondent's unfair labor
practices here found, there should be issued, as is usual in
situations of this type, a cease and desist order and require-
ment that the unlawfully discharged employee be reinstated
to his former job7 or, if it no longer exists, to a substantially
)* Respondenl appears to suggest that the unlawfully discharged em-
ployee. Ronald W. Hall. is not entitled to or has forfeited his right to rein-
942
HITCHINER MANUFACTURING COMPANY
equivalent job, without prejudice to his seniority and
emoluments, together with backpay and interest. to be com-
puted as explicated in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Seel Corporation, 231 NLRB 651
(1977); and Respondent should be required to preserve and
make available to the Board's agents its records for back-
pay computation and compliance determination. Since dis-
criminatory discharge of an employee prominent in union
activity goes "to the very heart of the Act."t" Respondent
should further be required to cease and desist from any
violation of the Act.'1
General Counsel presses for a Gissel bargaining order*'
without a rerun election here. I do not believe the total
circumstances of this case warrant such extraordinary re-
lief. Sufficient employees were told (see attached Appendi.x
B.' Recapitulation of Union Cards- Specific Findings and
Bases) the cards they were solicited to sign were "to see how
many people would like to have an election" (employee
Moore by union representative Reay. at a union meeting),
or words to substantially the same effect (e.g., employee
Dunbar by solicitor-employee Little: etc.) to convey to
them-even though the specific word "only" was not cou-
pled with the word "election" that by signing the cards
they were not thereby creating or indicating they desired
union representation even without an election, or. indeed.
that they were in favor of the Union at all. Under these at
best clouded circumstances. ' ' it would not seem that a bar-
statement and is no longer suitable for its employ because of an allegedly
pugnacious personality and certain allegedly vengeful expressions on his part
since his discharge. Upon the record as a whole, I find these contentions not
sustained. Apparently Hall met Respondent's suitability standards while In
its employ pnor to his advent into the disfavored. protected, concerted ac-
tivities, and was not discharged for that reason nor has anything occurred
since then to alter that. Although I accept and credit Hall's version of the
meetings and remarks attributed to him, even assuming arguendo that the
post-discharge remarks attributed to him were made. they would he under-
standable in view of his reasonable pique at the unlawful treatment he had
suffered for mere exercise of his statutorily guaranteed rights; and in any
event they do not rise to the level of action of intended or seriously threat-
ened action to render him unsuitable for reinstatement to his 6-year-old job.
Cf., e.g. Merle Lindsey Chevrolet, Inc. 231 NLRB 478. 486 11977): Svnadvni
Corp., 228 NLRB 664. 689 690 (1977)1 Richlands Textile. Inc., 220 NLRB
615 (1975); Aplundh Tree Expert Conpanv. 220 NLRB 352, fn. 2 (1975).
.A.J. Krajewski Manufacturing Co., Inc.. 180 NLRB 1071 (1970).
"Cf.. N.LR.B. v. Entwistle Manufacruring Companv, 120 F.2d 532. 536
(4th Cir. 1941).
" N.L.R.B. v. Gissel Packing Co. Inc. 395 U.S. 575 1969).
'i Beclouded further by seemingly conflicting statements by witnesses not
only between their pretrial affidavits and their testimony at the instant hear-
ing. but in certain instances seemingly even between their pretrial affidavits
themselves (e.g., Trimble. cf. testimony with Resp. Exh. 27 and G C. Exh. 85;
Whitworth, cf. testimony with G.C. Exhs. 105 par. 91 and 106 Ident. Ire-
gaining order without an election would be warranted in
this case, lest thereby a possibly unwanted union be foisted
upon employees whose desires in that respect may be to the
contrary and at least remain shrouded in grave doubt. Par-
ticularly is this true in the absence of such egregious. over-
riding, major, substantial, "'outrageous and pervasive,' " or
even "less pervasive" unfair labor practices, alluded to in
Gissel (supra at 613-614), as would preclude, render improb-
able, or "impede" (id at 614) an uncoerced expression of'
true employee sentiment under protection of the secret bal-
lot, freedom fiom reprisal, and other guarantees of the Act.
at an election conducted under supervision of the Board's
agents at a time when circumstances assure such uncoerced
freedom of choice. Although, in my view, the total circum-
stances here do not warrant a Gissel bargaining order, the
unfair labor practices do, however. justify and require a
rerun election, and I shall accordingly so recommend.
The Representation Case
As has been indicated. Petitioner Union's Oh/cion I to
employer conduct said to have affected the results of the
statutory representation election held on Jul5 20 in Case
14 RC 8712 is also here by consolidation. That objection
encompasses many of the Employer's actions alleged and
here found (supra) to have constituted unfair labor practices
(i.e., pars. 5,[). E. F. G. H, and 6 of the complaint and
consolidated complaint). To the extent that the objection
parallels those unfair labor practices within the period be-
tween the filing of the Union's election petition (May 24)
and the election (July 20()4, and since the degree of proof
required to sustain election objections is less than that to
establish unfair labor practices", the objection should be
sustained, and it should be required that the election be set
aside and a rerun election conducted at an appropriate
time, and it will accordingly be so recommended.
IRecommended Order omitted from publication ]
flected in trial ranscriptll: .MGuir. cf. testimony with parts of Resp. EFh 3:
Huhhbbard. (ror. Mxoore. Dunbar: Hoeher). Close study of the emplo)ees'
testimony alongside of their pretrial statements yields no satisfactory result
as to what many of them were told In connection with their execullon of the
cards. What many of the solicited employees were actually told s simply
punctuated with such residual doubts as not. in my opinion, to form a solid
predicate for the extreme remedy of a bargaining order without an election
There is no such doubt, however indeed, no doubt at all as to the validity
of the cards for election purposes (seemingly so conceded by Respondent).
H The Ideal Electrc and Manufacturing Companv. 134 NLRB 1275. 1278
(1961).
4 Super Thrift Markeir. Inc t/a Enola Super Thrift. 233 NLRB 409 11977)1
Dal-Tex Optical Conrpanv, Inc., 137 NLRB 1782. 1786 87 (1962).
943