Hopp Topp Mfg. Co.

National Labor Relations Board - Board Decisions

Jul 30, 1980

250 N.L.R.B. 1232 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Deen d/b/a Hopp Topp Mfg. Co. and
Teamsters Local Union No. 50, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Donald Tounsand. Cases 14-CA-12535(1--
5), 14-RC-8894, and 14-CA-12836
July 30, 1980
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDAL E
On February 20, 1980, Administrative Law
Judge Thomas D. Johnston issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer to Re-
spondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law,
Judge and to adopt his recommended Order, as
modified herein. 4
'Respondent has filed a motion foir permission to file a reply to Gen.
eral Counsel's answering brief together with a reply We hereby grant
Respondent's unopposed motion We have considered Respondent's reply
and find that it raises no matter sufficient to affect the results of our deci-
sion
2 Respondent has excepted to certail credibility findings made by the
Administrative law Judge. It is the Board's established policy not to
overrule an administrative laws judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Siandard Dry Wall Producrrs
Inc., 91 NLRI 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis fior reversing his findings
In sec. Ill, M, of his Decision, the Administrative Law Judge inadvert-
ently referred to Deen rather than Deforest as having filed an employ-
ment application with the Symons Corporation
3 The Administrative Law Judge concluded that Respondent violated
Sec 8(a)(l) of the Act by threatening to discharge employees based on,
inter alia, Supervisor Rheinecker's statements during a conversation with
employees Koesterer and Milam on April 20. 1979 We find it unneces-
sary to pass on the Administrative Law Judge's conclusion since the find-
ing of such an additional violation would be cumulative and our Order
would not be affected thereby. We further find it unnecessary to pass on
the Administrative Law Judge's reliance on Rheinecker's statements on
that occasion as evidence of animus in adopting his conclusion that Re-
spondent violated Sec 8(a)(3) and (I) by discharging Koesterer
4 In his recommended Order, the Administrative Law Judge provided
that Case 14-RC-8894 be remanded to the Regional Director for the pur.
pose of counting certain challenged ballots and "certifying the results of
the election." rather than providing that the Regional Director issue an
appropriate certification based on the revised tally of ballots We shall
include the appropriate language in our Direction.
In his Supplemental Decision and Order Directing Hearing, the Re-
gional Director overruled the challenge to the ballot of Will Weiser No
party filed a request for review with respect thereto. Accordingly, we
shall direct that Weiser's ballot be opened and counted with the other
ballots, the challenges to which have been overruled herein
250 NLRB No. 154
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Charles Deen
d/b/a Hopp Topp Mfg. Co., Fayetteville, Illinois,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
IT IS FURTHER ORDERED with respect to the
election conducted in Case 13-RC-8894 on June
22, 1979, that the challenges to the ballots of Mi-
chael Wood, David DeForest, Alva Hilscher, Jr.,
Thomas Koesterer, and Michael Lewis be, and
they hereby are, overruled, and that the challenges
to the ballots of Robert Hilscher and Ralph Rhein-
ecker be, and they hereby are, sustained.
DIRECTION
It is hereby directed that the Regional Director
for Region 14 shall, within 10 days from the date
of this Decision, open and count the ballots of Mi-
chael Wood, David DeForest, Alva Hilscher, Jr.,
Thomas Koesterer, Michael Lewis, and Will
Weiser in the election conducted in Case 14-RC-
8894 on June 22, 1979, and prepare and cause to be
served on the parties a revised tally of ballots. If
the revised tally reveals that Petitioner has re-
ceived a majority of the valid ballots cast, the Re-
gional Director shall issue a Certification of Repre-
sentative. However, if the revised tally shows that
Petitioner has not received a majority of the valid
ballots cast, the Regional Director shall issue a
Certification of Results.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
These consolidated cases were heard at St. Louis, Mis-
souri, on September 10 through 14, 1979,' pursuant to
charges filed by Teamsters Local Union No. 50, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein re-
ferred to as the Union), in Case 14-CA-12535-1 on April
24; in Case 14-CA-12535-2 on April 26; in Case 14-CA-
12535-3 on April 30; in Case 14-CA-12535-4 on May 3;
and in Case 14-CA-12535-5 on July 25; and a charge
filed by Donald Tounsand, an individual in Case 14-CA-
12836 on July 31; and a second amended consolidated
complaint issued on August 10.
The second amended consolidated complaint, which
was further amended on September 5, alleges that
Charles Deen d/b/a Hopp Topp Mfg. Co. (herein re-
i All dates referred to are in 1979 unless otherwise stated.
1232
HOPP TOPP MFG. CO.
ferred to as the Respondent), violated Section 8(a)(1) of
the National Labor Relations Act, as amended (herein
referred to as the Act), by interrogating employees about
employees' union activities; promising an employee in-
creased insurance benefits in order to discourage employ-
ees' support for the Union; telling an employee he would
not receive his scheduled salary increasc because of his
union activities; informing an employee he had lost the
benefit of a loan privilege because of employees' union
activities; telling an employee Respondent's owner could
blackball employees who engaged in union activities;
telling an employee Respondent was preparing to close
the shop because of employees' union activities; telling
employees ;lie business would be closed and moved to
anoth.: State in order to avoid union representation of
Respondent's employees; telling employees Respondent
would discharge all employees who engaged in union ac-
tivities; informing or telling employees that employees
were discharged or would be discharged because they
engaged in union activities or because of their union ac-
tivities; telling employees that other employees had been
laid off from work or would be discharged because of
their union activity or for voting to select a Union as the
employee bargaining representative; informing employees
that an employee who was for the Union would be dis-
charged; telling an employee that employees were pro-
hibited from entering another employee's workroom in
order to discourage union activities; interfering with an
employee's exercise of his Section 7 rights by telling him
Respondent has planned to impose more onerous work-
ing conditions on certain employees who had supported
the Union; creating the impression of surveillance by in-
forming employees Respondent's owner had a list of em-
ployees who had signed union authorization cards and
knew which employee was going to vote no and yes in a
Board-conducted election; threatening employees with
stricter supervision, loss of work, discharge, loss of
wages and benefits, plant closure, and with being black-
balled if employees engaged in union activities, or be-
cause of their union activities, or selecting a union as
their bargaining representative or agent; threatening an
employee that he would be falsely accused of a criminal
offense by Respondent because of his union activities;
threatening employees with reprisal or discharge if they
went into a second employee's workroom and talked to
him or were caught there in order to discourage employ-
ees' union activities; and threatening an employee by tell-
ing him Respondent had found reasons to discharge all
the employees responsible for the last union organizing
drive at Respondent's place of business. It further alleges
the Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging and refusing to rein-
state David DeForest, Thomas Koesterer, James Absher,
Robert Hilscher, Michael Lewis, and Alva Paul
Hilscher, Jr.; laid off employees in its fiberglass depart-
ment 2 from on or about June 25 to June 28; laid off
Donald Tounsand from on or about June 25 to July 11
and again laid him off on or about August 20, and there-
after refused to recall him; and failed and refused to pay
2 These employees were Scott Thompson, Kevin Milam, Walter Sarke-
sian, Stephen Jakisch, Randy Foster, and Allen Rheinecker
Donald Tounsand his scheduled 25-cent wage increase;
all because of its employees' activities on behalf of the
Union and/or concerted protected activities.3
Respondent in its answer, served on August 14, to the
second amended consolidated complaint and in its
answer, served on September 10, to the amendment to
that second amended complaint denies having violated
the Act as alleged.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act as alleged by unlawful-
ly creating impressions of surveillance, interrogating,
threatening, promising, and making certain other state-
ments to employees with respect to their union activities;
by discriminatorily discharging and refusing to reinstate
David DeForest, Thomas Koesterer, James Absher,
Robert Hilscher, Michael Lewis, and Alva Hilscher, Jr.,
because of their union activities; and discriminatorily
laying off employees in the fiberglass department and
Donald Tounsand, and refusing to give Tounsand a
scheduled raise, because of their union activities. An ad-
ditional issue is the resolution of seven challenged ballots
in Case 14-RC-8894, discussed infra.
The Regional Director for Region 14 consolidated for
hearing, with the issues arising under the second amend-
ed consolidated complaint, the resolution of the chal-
lenges to the ballots of David DeForest, Alva Hilscher,
Jr., 4 Robert Hilscher, Thomas Koesterer, Michael
Lewis, and Ralph Rheinecker in the election conducted
in Case 14-RC-8894. The Board on August 16, follow-
ing Respondent's request for a review of the Regional
Director's Supplemental Decision and Order directing a
hearing and his order consolidating cases and notice of
hearing issued on July 26, added the challenge to the
ballot of Michael Wood to be included with the other
named challenged ballots to be resolved on the grounds
substantial issues were raised regarding the unit place-
ment and eligibility to vote of Michael Wood.
The election was conducted on June 22 pursuant to
the Regional Director's Decision and Direction of Elec-
tion issued on May 21, based upon a petition filed by the
Union on April 16. The results of the election were, out
of approximately 25 eligible voters, 10 cast valid votes
for, and II1 cast valid votes against, the Union with 8
challenged ballots cast which were sufficient in number
to the affect the results of the election.
Upon the entire records in these cases and from my
observations of the witnesses and after due consideration
of the briefs filed by the General Counsel and Respond-
ent 6 I hereby make the following:7
: The General Counsel defined "concerted protected activitiesC to in-
volve only union activities
4 ie is referred to as Paul Hilvcher in Case 14 RC 8894
" Subsequent to the close of the hearing the (General Counsel filed an
unopposed motion to receive into e'idence G C Fxh 21 Based on the
parties' stipulation ai the hearing regarding the proposed exhibit. which
was to he submitted and an exhibit number .,as reserved, the motion is
hereby granted and such exhibit is received in elidence
; The Uilion did not submit a brief
7 Lnless olherw.le indicated the findings ;ire haed on the pleadings.
admissions, sipudallions. and undisputed evidence contalilled in the rec ord.
which I credit
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, an individual proprietorship, with its prin-
cipal office and plant located at Fayetteville, Illinois, is
engaged in the business of the manufacture, distribution,
installation, and nonretail sale of camper tops and related
products. During the year ending April 30, a representa-
tive period, Respondent in the course of its operation
manufactured, sold, and distributed products, valued in
excess of $50,000, which were shipped from its Fayette-
ville plant directly to points located outside the State of
Illinois.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
Teamsters Local Union No. 50, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates a plant located at Fayetteville, Il-
linois, where it is engaged in the manufacture, distribu-
tion, installation, and sale of camper tops and related
products. This includes fiberglass and aluminum tops.
Emmitt Deen is the sole owner.8
About the middle of April, the Union began an orga-
nizing campaign among Respondent's employees. It filed
a petition on April 16 and a Board-conducted election
was held on June 22 among the approximately 25 eligible
voters in the appropriate unit and the results of the elec-
tion are dependent upon resolving challenged ballots
which are determinative.
The instant proceedings arose out of conduct occur-
ring during the Union's organizing campaign and the
election.
B. The Supervisory Status of Ralph Rheinecker
Ralph Rheinecker," who was hired in August 1978,
works in the fiberglass department which employs ap-
proximately seven other full-time employees. Included
are rollers, sprayers, and chopper gun operators who
work in the mold room and builders who work in a
nearby separate building. Also included is a mold repair-
man, Donald Tounsand, who works in a separate room
adjoining the mold room. These are the only employees
involved in making fiberglass tops for Respondent,
which also makes aluminum tops in another department.
Deen is a supervisor under the Act
9 Rheinecker, who was still employed by Respondent at the time the
hearing started on September 10, did not appear or testify. Respondent
proffered evidence to show it had attempted unsuccessfully to serve
Rheinecker with a subpena to compel him to appear and testify afte, he
failed to show up voluntarily as he agreed to do so with Respondentl'
counsel.
Deen testified Rheinecker is a leadman and denied he
possesses any supervisory authority.' ° He described
Rheinecker's duties included helping out in the mold
room by performing the same kind of work as the rollers
and sprayers, making sure the tops the builders built
were loaded for shipment, and informing employees in
the mold room and the builders what work they were to
perform based upon a list of work which Deen provided
Rheinecker on a daily basis.
Rheinecker also initials and marks on the employees
timecards the number of tops they build each day which
information is used for pay purposes. The employees in
the fiberglass department, except for Tounsand, who is
paid on an hourly rate, are paid on a piecework basis"
for work they perform. Unlike them, Rheinecker re-
ceives a $300 weekly salary plus an additional $2 for
each top produced by the employees in the fiberglass de-
partment. Deen explained Rheinecker received the $2
per top because he is responsible for seeing that produc-
tion goes out and on time.
Employees who worked in the fiberglass department
including Michael Lewis, Alva Hilscher, Jr., Randy
Foster, David DeForest, Walter Sarkesian, Thomas
Koesterer, James Absher, and Donald Tounsand all testi-
fied concerning Rheinecker's duties and authority. Ac-
cording to them Rheinecker gives employees their
orders, shows them what to do, and they considered him
to be their foreman. Foster and Tounsand also testified
without contradiction that upon being hired Deen told
them Rheinecker would be their foreman.
Four employees, Michael Lewis, Alva Hilscher, Jr.,
David DeForest, and James Absher all testified they
were hired by Rheinecker. All of them except Lewis,
who was hired at the plant, were contacted and hired by
Rheinecker away from the plant. They denied Deen was
involved in their being hired.
Deen denied ever employing anyone whom he did not
personally hire. He stated he thought Michael Lewis sent
Alva Hilscher, Jr., and somebody else sent David De-
Forest to the plant for jobs whereupon he interviewed
and hired them.
James Absher testified that on April 3 Rheinecker
became angry at him after he had let a mold get too hot
and informed him he was fired'2 whereupon he then left
the plant. On that occasion Rheinecker did not check
with anyone before firing Absher. Both Michael Lewis
and David DeForest, who were present, corroborated
Absher's testimony.
The next day Absher asked Jack Canaw, who was the
foreman of Respondent's aluminum department, about a
job in his department and Absher was rehired on April 4
to work in the aluminum department.
Deen's explanation for Absher leaving the fiberglass
department was after noticing Absher was not there he
asked Rheinecker what happened, whereupon Rhein-
'U According to Deen no one other than himself has the authority to
hire or fire employees or to set their working conditions.
'' They received $15 for each top and S5 For each rail built, which is
divided equally among the members working on the crew. except that
Walter Sarkesian, who is the most senior builder. receives $17 per top
: This discharge occurred before anlly union activity began and was
not alleged to he unlawful
1234
HOPP TOPP MFG. CO.
ecker informed him that he and Absher had a dispute
and Absher would not work. The next day when Canaw
asked Deen about hiring Absher to work in the alumi-
num department he agreed.
Deen took no action to retract Rheinecker's firing of
Absher.
Randy Foster and David DeForest stated Rheinecker
tells the employees how late they are to work and
Thomas Koesterer testified that on one occasion upon
running out of materials Rheinecker gave them permis-
sion to leave work.
Michael Lewis, who rode to work with Rheinecker,
testified that at times when Rheinecker came by to pick
him up he informed Rheinecker he was sick and would
not be in whereupon Rheinecker told him it was okay.
On those occasions Lewis denied calling the plant or
subsequently bringing in a doctor's excuse. During Feb-
ruary when Lewis was unable to work because of an
arm injury Rheinecker told him to go home. The next
day when he attempted to return to work Rheinecker in-
formed him he could remain off work until he could use
his arm, which he did.
Alva Hilscher, Jr., testified that on two or three occa-
sions he left work early for personal reasons after in-
forming Rheinecker, who made no objection.
Randy Foster, who worked as a roller in the mold
room, stated that on July 24, Rheinecker transferred him
to a builder job which he had wanted. However, on
August 13 after a chopper gun operator in the mold
room quit work, Rheinecker put him on that job.
Thomas Koesterer testified on one occasion Rhein-
ecker assigned him the job of waxing which he per-
formed for 3 days.
Two employees, Randy Foster and Walter Sarkesian,
testified that prior to the election Rheinecker informed
them Deen had told him his job had been changed from
a foreman to a leadman. The reason Rheinecker gave
Foster was because a foreman could not vote in the elec-
tion. However, Foster denied there was any change in
Rheinecker's duties and Deen acknowledged Rhein-
ecker's duties had always remained the same.
Section 2(11) of the Act defines a supervisor as "any
individual having authority, in interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, are
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the
use of independent judgment." An individual need only
have one of the indicia enumerated to be a supervisor,
Research Designing Service, Inc., 141 NLRB 211 (1963).
Based upon the foregoing evidence, I credit the testi-
mony of Michael Lewis, Alva Hilscher, Jr., David De-
Forest, James Absher, Randy Foster, Walter Sarkesian,
Thomas Koesterer, and Donald Tounsand, and find
Rheinecker was responsible for and directed the work of
the employees in the fiberglass department, possessed
and exercised the authority to hire, fire,' and transfer
employees and grant them time off and is therefore a su-
J' The record further establishes, as discussed infra. Rheinecker A.as
also involved in firing other employees
pervisor under Section 2(11) of the Act.' 4 To the extent
Deen's testimony is inconsistent with this finding, I dis-
credit it. Apart from my observations of the witnesses in
discrediting Deen, his denials of Rheinecker's authority
are contrary to the undisputed actions taken by Rhein-
ecker in dealing with the employees.
C. Unlawful Threats and Statements Made by
Foreman Ralph Rheinecker
Several employees testified concerning unlawful
threats and statements made to them by Foreman Rhein-
ecker.
Michael Lewis testified sometime after April 18 or 19
that James Absher, who was employed in the aluminum
shop at the time, came over to the mold room where
they were working and spoke to them. After he left,
Rheinecker remarked to Lewis and Alva Hilscher, Jr.,
that Absher would be fired within the week. Hilscher
did not testify concerning this conversation. Since no
mention was made of the Union during this conversation
and, as discussed supra, Rheinecker himself had fired
Absher from working in the mold room only a few
weeks earlier for reasons not alleged to be discriminato-
ry, I do not find such statements to be unlawful.
Lewis stated that after James Absher's final termina-
tioni' Rheinecker told him and Alva Hilscher, Jr.,
during a conversation at work the reason Deen got rid
of Absher was because he was trying to get the business
down as small as he could so if the Union came in it
would be easier to move. Rheinecker also said Deen had
offered him 3 percent of the business and the way he
could do that was Deen and himself could run the busi-
ness without the employees there. Hilscher did not tes-
tify concerning this conversation.
I credit Lewis' undisputed testimony and find that on
or about April 24 Foreman Rheinecker indicated to Mi-
chael Lewis and Alva Hilscher, Jr., that Respondent ter-
minated James Absher because of the Union and threat-
ened them if the Union came in Respondent would move
the plant and operate it without the employees.
Alva Hilscher, Jr., testified that on or about April 18
or 19, while at work, Rheinecker told him that he and
Deen knew who the card signers were and they had a
list of them.' 6 Rheinecker further said if the Union got
in Deen would close the shop and the card signers
would be out of a job and it would be kind of hard for
them to get a job.
Based on Hilscher's undisputed testimony, which I
credit, I find that on or about April 18 or 19 Foreman
Rheinecker threatened Alva Hilscher, Jr., that if the
Union got in the Respondent would close the plant and
discharge the employees who signed union cards, and
created an impression of surveillance of employees'
14 In crediting the testimony (f Alva Hilcher. Jr.. and Donald Tlun-
sand I have taken into consideration their conictloll for felonies which
evidence was proffered hb Respondent for Impeachment purpo,ses
Hilscher was onmvicted fir possession of a sawed- off shotgun and for
prlession ifr marijuana sv hile I lounand was consn tlctd of ;rston
' Abher v as terminatedl Io April 24
fi Deen denied ha~sing such a list
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities by telling Hilscher that the Respondent
had a list of and knew who signed union cards.
Alva Hilscher, Jr., testified without denial that after
the union cards were signed, which was about the
middle of April, Rheinecker during a conversation at the
plant told him if he had anything to do with the Union
and if any tools came up missing he would be accused of
stealing them because of his criminal record.
I credit Hilscher's testimony and find that about the
middle of April Foreman Rheinecker threatened Alva
Hilscher, Jr., that if he engaged in union activities he
would be falsely accused of stealing any tools found to
be missing because of his criminal record.
Alva Hilscher, Jr., also stated that during a conversa-
tion he had with Rheinecker about the week of April 14
at a trailer where they both resided at the time Rhein-
ecker said the people who had signed cards would be
fired and set up for other jobs and if the Union got in
they would be the first to go and Deen would close the
place. He also said Deen could make it harder for them
to get jobs.
Although Hilscher admittedly had difficulty recalling
this conversation because of his many conversations with
Rheinecker and his testimony was elicited primarily
through leading questions and the use of an affidavit
given to a Board agent to refresh his recollection, inas-
much as his testimony is undenied and consistent with
other threats made to him by Rheinecker, I credit it. Ac-
cordingly, I find that about the week of April 14 Fore-
man Rheinecker threatened Alva Hilscher, Jr., that Re-
spondent would fire employees who signed union cards;
threatened him that if the Union got in the employees
who signed union cards would be the first employees dis-
charged and that Respondent would close the plant; and
threatened him Respondent could make it harder for em-
ployees to get jobs because they signed union cards.
Randy Foster testified that on or about June I, which
was prior to the union election, while at the Mascoutah
Inn Foreman Rheinecker told him and several other em-
ployees including Steve Jakisch, Scott Thompson, and
Alan Rheinecker that the employees who voted yes
would not be working there any longer.
Based upon Foster's undisputed testimony which I
credit, I find Foreman Rheinecker on or about June 1
threatened Randy Foster and other employees the Re-
spondent would discharge employees who voted for the
union in the election. 17
Randy Foster also testified that on a number of occa-
sions prior to the election Foreman Rheinecker told him
that he had better talk to his brother Scott Foster, who
was an employee, and get him to vote no in the election
or his brother would not be working there any longer.
One such occasion occurred on June 15 at the plant. An-
other occurred later that same day at the Mascoutah Inn
where employees Steve Jakisch, Scott Thompson, and
Alan Rheinecker were present. The last occasion oc-
curred at the plant on June 22, the day of the election.
According to Foster, Rheinecker also mentioned on June
22 that Deen knew who would vote yes and no and he
would know if Scott voted yes.
17 The pleadings allege this incideni occurred at [)otlies Tjavern
I credit Foster's undisputed testimony and find Fore-
man Rheinecker on or about June 1, June 15, and June
22 unlawfully solicited Randy Foster to get his brother
to vote against the Union in the election; threatened
Foster that his brother would be discharged if he did not
vote against the Union in the election; and on June 22
created an impression of surveillance of employees'
union activities by telling Foster that Respondent would
know how employees voted in the election.
Randy Foster further testified that on July 11 while at
Dottie's Tavern Foreman Rheinecker and his brother
Scott Foster' 8 were having an argument over the way
another employee, Donald Tounsand, was being treated
at the plant. Rheinecker told them Deen was making an
example out of Tounsand for voting yes for the Union.
I credit Foster's undenied testimony and I find on July
11 Foreman Rheinecker informed Randy Foster and
Scott Foster Respondent was making an example out of
employee Donald Tounsand for voting for the Union.
However, the evidence does not establish as is alleged
that Foreman Rheinecker informed employees on that
occasion that another employee had been laid off work
because of his union activities.
David DeForest stated that on April 13 Foreman
Rheinecker said Deen had found out about the card sign-
ing and union talk. He also said if the Union came in
they would either move the place or close it down. Ac-
cording to DeForest, Rheinecker repeated these state-
ments on or about April 16.
I credit DeForest's undisputed testimony and find on
April 13 and on or about April 16 Foreman Rheinecker
threatened David DeForest if the Union came in the Re-
spondent would move or close the plant down.
Donald Tounsand testified that on June 22 after the
Board election was held earlier that day Foreman Rhein-
ecker came to him at work and told him three other em-
ployees whom he referred to as Butch, Lou, and Dave'9
had just turned in their tools and quit. Rheinecker then
added it was just as well they did because starting
Monday Deen was going to start---- 20 with them.
Upon asking Rheinecker when Deen was going to start
messing with him, Rheinecker replied, "If you work a
full week, you will be lucky."
Based on Tounsand's undisputed testimony which I
credit, and the fact such statements, not otherwise ex-
plained, closely followed the union election held earlier
that day, I find on June 22 Foreman Rheinecker threat-
ened Donald Tounsand that Respondent intended to
impose more onerous working conditions on employees
because of the Union and threatened Tounsand with pos-
sible discharge because of his union activities.
Walter Sarkesian stated that on June 22 prior to the
election held that day Foreman Rheinecker made the
statement to Kevin Milam and himself at the plant that
they were going to be laid off starting next Monday.
However, later that same day following the election,
Rheinecker informed him they would have to work
Monday. Absent, as here, any mention of the Union or
' Scoll I:ltlcr did Ilit tcslily
"' Ihcc three empliyc¢cs .worked in1 the aluminum department
"' I he lrmilttd skord is ;tll ohbcci iword dentillg sexual interourse.
1236
HOP ()lTOPP MFG. CO.
the election during the conversation and the fact a layoff
did occur the following week, discussed infra, I do not
find such statements to be unlawful.
Sarkesian also testified that between May and the elec-
tion held on June 22 he overheard Rheinecker make the
statement at the plant that if the Union won and got in
the plant they would close the plant and just Deen and
Rheinecker would run it.
I credit Sarkesian's undisputed testimony and find
about the early or middle part of June Foreman Rhein-
ecker threatened Walter Sarkesian if the employees se-
lected the Union to represent them Respondent would
close the plant and run it without the employees.
Thomas Koesterer testified that on April 20 during a
conversation Kevin Milam and he had with Foreman
Rheinecker at the plant in which he told Rheinecker he
was nuts for working for Deen all the time and late
every night and suggested the best thing for Rheinecker
to do was try to get in the Union too. Rheinecker re-
sponded by telling him he did not want to get fired and
needed his job.
Based upon Koesterer's undisputed testimony I credit
it and find on April 20 Foreman Rheinecker threatened
Thomas Koesterer and Kevin Milam that Respondent
would discharge employees for joining the Union.
Kevin Milam stated that on one occasion at the plant
Foreman Rheinecker told him if the Union won the elec-
tion Rheinecker was going to get 3 percent of the busi-
ness and Deen and he would build tops by themselves
and lay off everybody. Milam was uncertain of the date
of the conversation but believed it occurred between
signing his union card in April and the election held on
June 22.
I credit Milam's undisputed testimony and find about
April, May, or June Foreman Rheinecker threatened
Kevin Milam if the employees selected the Union to rep-
resent them Respondent would lay off the employees and
run the business without them.
Walter Sarkesian stated that upon going into the room
where Donald Tounsand worked by himself to get a
drink of water Foreman Rheinecker ordered him out and
told him the room was off limits to them and said if they
got caught there they would be fired. He placed this
conversation as occurring after Tounsand returned from
his first layoff which was on July II1. Sarkesian, who
worked in another building, acknowledged his work did
not require him to go in Tounsand's room and that there
were other water fountains located elsewhere.
Kevin Milam who also works in a separate building
testified the day before Tounsand returned to work from
layoff as he walked by the room where Tounsand
worked he heard Foreman Rheinecker telling employees
when Tounsand returned no one was to disturb him or
keep him from doing his job. The next day he saw
Walter Sarkesian getting a drink of water in Tounsand's
room and as he was about to enter the room himself
Foreman Rheinecker told him not to go in there and said
no one was to disturb Tounsand or keep him from his
job. Milam further stated a couple of weeks later he
went to Tounsand's room to get Tounsand to help him
fix some equipment he was using whereupon Rheinecker
told Tounsand to drop the equipment and get back to
work. Rheinecker then told him to take the broken
equipment to Deen and said if he ever caught him in
there again he was going to have to tell Deen.
Both Sarkesian and Milam denied any prior knowledge
of such a rule.
Donald Tounsand, who stated he first learned of the
rule when he returned to work on July 11 from Foreman
Rheinecker, corroborated the testimony of Sarkesian and
Milam about the statements Rheinecker made to them in
his presence.
Deen acknowledged employees were notified to stay
out of the room where Tounsand worked alone.21 One
reason was about the last week in April someone alleged-
ly put dirt or wax in two of the molds which resulted in
two defective tops being made. Since that was where the
molds were prepared, waxed and cleaned by Tounsand
he felt by keeping employees out of there it would pre-
vent it from happening again. The other reason was be-
cause employees wanted to congregate in Tounsand's
room and talk to him and since he was getting paid by
the hour, unlike other employees, he did not feel he had
to pay Tounsand to stand there and talk on company
time. Deen denied having any knowledge of Tounsand's
union activities or discriminating against him.
Having found, supra, that on June 22 Foreman Rhein-
ecker threatened Tounsand with possible discharge be-
cause of his union activities and on July 11 informed em-
ployees Respondent was making an example out of
Tounsand for voting for the Union, and based on the un-
disputed testimony of Walter Sarkesian and Kevin
Milam, I find that Respondent beginning about July I 11 in
order to discourage employees' union activities prohibit-
ed employees including Walter Sarkesian and Kevin
Milam from going into the work room of Donald Toun-
sand; and about July II Foreman Rheinecker in order to
discourage employees' union activities threatened Walter
Sarkesian with discharge for going into the workroom of
Donald Tounsand. Deen's alleged reasons for imposing
the rule are rejected. If as he contends it was to prevent
sabotage discovered the latter part of April no explana-
tion was given for waiting until July to announce or en-
force it. Further no specific evidence was proffered to
show Tounsand, who was admittedly considered by
Deen to be a good employee and did a good job, was
spending his worktime conversing with other employees
prior to imposing such rule and the rule itself was not
applied to any other employee or plant areas.
D. Unlawful Threats and Statements Made by Em mitt
Deen
Several employees testified concerning unlawful
threats and statements made to them by Deen.
Michael Lewis testified that within a couple of days of
April 18 or 19, although he was not certain of the exact
date, Deen called him into the mold room and asked him
what he knew about the Union coming in, saying he
heard it had started in their department. Upon replying it
was just hearsay and he did not know, Deen said if the
Union came in he would close the shop, bring them
I' II here .l, no '.ritlen rule to this effect
1237
I)DECISIONS OF NATIONAL LtABOR RELATIONS BOARD
down to minimum wage, and they would start negotiat-
ing from there. He also said he would take away their
insurance22 and mentioned Lewis was supposed to start
getting his insurance the following month. Deen further
mentioned people had tried to get a union in there before
but he had gotten rid of the people who were head of it
over just little Mickey Mouse stuff.
Alva Hilscher, Jr., stated that after the union cards
were signed, which was about the middle of April, Deen
came to him in the shop and asked him if he knew any-
thing about the Union and who started it. Although he
told Deen he knew a little bit from what he had heard
he denied he knew who started it. Deen then said if the
Union got in he was going to close the place and move
and they would all be without a job. He also mentioned
with the Union out they all had a job. Deen further said
he could buy tops cheaper than he could make them.
Randy Foster testified at the time he was hired by
Deen on April 24 Deen told him and his brother, Scott
Foster, that the Union was trying to come in and he did
not want to hire people from the Union and mentioned
people from the Union might be sending them out there
just so they could vote in the election which they were
having in about 6 weeks. Deen further said if the Union
won he would close down the Company.
Donald Tounsand stated that on or about May 23 or
the end of May while at work Deen told him if the
Union came in he would close the business down and
move to Arkansas, Kentucky, Tennessee, or down south
somewhere.
Thomas Koesterer first testified that on one occasion
about April 18 or within 2 days before or after that date
while he was in the builder's shop he overheard Deen
tell Foreman Rheinecker he was not going to let a union
come in there. However, he subsequently changed his
testimony by stating he only heard Deen say he did not
want a union inl there which latter statement I do not
find to be unlawful. Although Koesterer further stated
they said something about moving the plant to Missouri
if he had to, Koesterer's testimony on this point was too
vague to make a specific finding regarding what he over-
heard or who said it.
James Absher testified that on or about April 20 he
asked Deen to loan him $300 to buy a motorcycle. Deen
replied he would give it to him but was afraid if the
Union came in he would have to shut down the shop
and start selling the tops individually and not build them
but just have a sales place. Later that day Deen loaned
him $50 and gave him a check. This amount was repaid
by taking it out of Absher's last paycheck.
Under cross-examination Absher acknowledged prior
to this occasion the only thing he borrowed from Deen
was some gasoline for which he later paid him.
Deen acknowledged having loaned money to employ-
ees on occasion. However, the amounts of such loans are
limited to the amount of wages being held back for that
employee. Vernetta Buss, who handles the payroll rec-
2Z Respondent has a group insurance policy with Guardian Life Insur-
ance Company of America covering its employees Since February I.
when Ihe policy was changed. the employees became eligible forr covcr-
age after complelion of 4 monilhs Ir continuous service P'rior thereto
they were eligible .afer only 3 months of continuous servic.
ords for such loans, denied knowledge of any $300 loans
and I find no evidence to establish Respondent had a
practice of lending such large amounts to employees.
Deen stated he did not lend Absher $300 but only lent
him $50 because Absher had never earned $300 in a
week.
James Absher also stated a couple of days prior to his
termination on April 24 he questioned Deen about a
rumor he had heard Deen was going to try to frame him
and fire him because he was for the Union. Deen replied,
'yes" and said all he had to do was miss a day without a
doctor's excuse or come in late and he would fire him.
Deen added the guys wanted the Union in there and this
is how it would be if they were in there.
Deen, while acknowledging he did not want a union in
the plant, denied making any of the unlawful threats or
statements to the employees as alleged or making those
Rheinecker attributed to him in his conversations with
the employees. According to him about the first part of
April he talked to most of the employees in the plant 23
including Walter Sarkesian, Kevin Milam, Thomas Koes-
terer, Alva Hilscher Jr., and Michael Lewis during
which he told them he did not want a union in the shop.
He also said he explained to each of them that with the
competitive nature of their business and with their south-
ern and eastern neighbors being able to build tops
cheaper he did not think it would be economically feasi-
ble to operate the plant with the Union and he did not
see any way it could survive and have any jobs left.
Under cross-examination Deen said, after mentioning
how competitive the business was, he told them he did
not see how they could successfully operate the plant
and keep everybody working with the Union there.
Deen further testified that during the period from the
late evening of April 16 to the early morning of April 20
he was out of town on a business trip to Georgia. Re-
ceipts for lodging and gasoline purchases and other com-
pany records support his testimony he was out of town
during that period.
Based upon the foregoing evidence I credit the testi-
mony of Michael Lewis, Alva Hilscher, Jr., Randy
Foster, Donald Tounsand, and James Absher rather than
Deen and find as follows:
About the middle of April 2 4 Deen interrogated Mi-
chael Lewis about union activities; threatened Lewis that
if the employees selected the Union to represent them
Respondent would close the plant, reduce employees'
wages to the minimum wage rate, and take away their
insurance; and threatened Lewis by informing him that
Respondent had previously discharged employees for
trying to organize a union.
About the middle of April Deen interrogated Alva
Hilscher, Jr., about his and other employees' union activ-
ities, and threatened Hilscher that if the employees se-
lected the Union to represent them Respondent would
close and move the plant and the employees would lose
their jobs.
":' Dee did Iot testlify regarding acbh coilversationr
4 I.ewis waH not positive of the exiact dale of the collversatiotn aind
Dect was out of towl! for several days during this period.
123X
H()PP ITOPP MFG. CO).
On April 24 Deen threatened Randy Foster and Scott
Foster that if the employees selected the Union to repre-
sent them Respondent would close the plant.
On or about May 23 or the end of May Deen threat-
ened Donald Tounsand that if the employees selected the
Union to represent them he would close the plant and
move to another State.
On or about April 20 Deen threatened James Absher
that if the employees selected the Union to represent
them he would have to close the plant, stop building
tops, and just have a sales place.
On or about April 20 Deen informed James Absher he
would have lent him the money requested except if the
employees selected the Union to represent them he
would have to shut the plant.
On or about April 22 Deen threatened James Absher
with discharge because he was for the Union.
Besides my observations of the witnesses in discredit-
ing Deen, such unlawful threats and statements are con-
sistent with those made by Rheinecker to the employees.
Moreover, Deen himself acknowledged indicating to em-
ployees he did not see how they could operate the plant
if the employees selected the Union to represent them.
Although he claimed such statements were couched in
terms of economic reasons, no evidence was proffered to
support such statements, and I am persuaded the versions
of such statements as testified to by the employees, in
which no mention was made of economic reasons, are
the correct ones.
E. The Layoff of Employees in the Fiberglass
Department
During the latter part of June those employees em-
ployed in the fiberglass department, except for Donald
Tounsand whose layoffs are discussed separately, were
Walter Sarkesian, Randy Foster, Steve Jakisch, Scott
Thompson, Alan Rheinecker, and Kevin Milam. Among
this group, Sarkesian and Milam signed union authoriza-
tion cards in April. Foster served as the Respondent's
observer in the Board election held on June 22. The
union activities, if any, of Steve Jakisch, Scott Thomp-
son, and Alan Rheinecker, none of whom testified, were
not established.
On Monday, June 25, Deen notified all of these em-
ployees they were being laid off work beginning the next
day. Foster stated Deen also told them they would be
back in a couple of days.
They were all laid off work for 2 days on June 26 and
27 and Sarkesian for an additional day on June 28.2s
While Michael Lewis denied ever being laid off before
or being sent home because of no work, both Sarkesian
and Milam acknowledged employees had been laid off
on other occasions because of bad weather or lack of
work and such layoffs occurred both before and after the
union election. Donald Tounsand also stated that twice
before this layoff, employees in the department had been
told not to come in for a day.
Deen testified the reason these employees were laid off
work on June 26 and 27 was because they did not have
a2 Deen's undisputed explanation for Sarkesian being off work an addi-
tional day was because he was unable to contact him by telephone
any orders to work on and they did not run anything
without such orders. Upon receiving an order he then
recalled them. Respondent's tax records, which are pre-
pared by its accountant, A & M Accounting & Tax Serv-
ice, and filed with the State of Illinois reflect Respond-
ent's gross sales dropped from $186,458.12 for July 1978
to $140,111.91 for July 1979.
Donald Tounsand also acknowledged there was a defi-
nite slowdown of work in June.
F. The Layoffs of Donald Tounsand
Donald Tounsand has been employed by Respondent
since January 2. He works as a mold repairman in the
fiberglass department but in a separate room from the
other employees. His duties include preparing and build-
ing plugs which are the originals for new molds, repair-
ing damaged molds, and cleaning, waxing, and preparing
molds for use. Tounsand is the only employee who per-
forms this work. Unlike the other employees in the fi-
berglass department, who are paid on a piecework basis,
Tounsand is paid an hourly rate.
Deen described Tounsand's job as being highly spe-
cialized and he considered Tounsand, who is the highest
paid hourly employee, to be a good employee who does
a good job.
While Tounsand also stated he had performed other
work the employees in the fiberglass department normal-
ly perform such as gelling, operating the chopper gun,
railing, and helping roll, the extent of such work, except
for the chopper gun which he only operated a couple of
times, was not established by Tounsand.
Randy Foster stated Tounsand only helped them out
in unusual instances and in those cases Tounsand did not
share in the pay of the crew but the employees would
buy him a beer for his help. Michael Lewis estimated
Tounsand helped them roll and spray a couple of times.
While Deen acknowledged Tounsand has the ability to
do other jobs in the fiberglass department such as roll he
denied Tounsand had been assigned such jobs except for
a couple of times when he told him to string the gold on
the inside of tops.
Tounsand's union activities consisted of signing a
union card on or about April 12 or 13, attending a union
meeting held on or about June 15, and on one occasion,
about the end of May, distributing union literature in the
company parking lot after work.
Although David Sinunich, a former employee, testified
he was asked and threatened by Thomas Koesterer in the
presence of Donald Tounsand to sign a union authoriza-
tion card on April 9, which he reported to Deen about 2
weeks later, in view of his contradictory testimony I
credit Deen's version that the only name mentioned by
Sinunich to him was Thomas Koesterer.
Tounsand was laid off from work on two occasions.
The first occasion occurred beginning June 26 when all
other employees in the fiberglass department were laid
off. Unlike the other employees in the department who
were out of work only a couple of days Tounsand was
not recalled until July 11.
According to Tounsand at the time he was first laid
off he had work to perform. This included repairing two
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
molds and cleaning and rewaxing another mold. Howev-
er, he acknowledged upon his return this work still had
not been done.
Randy Foster stated that while Tounsand was laid off
the first time he waxed a couple of molds which was
work Tounsand would have performed and Foreman
Rheinecker buffed and started to wax one mold which
Tounsand finished upon his return to work.
Tounsand was again laid off work the evening of
August 20.26
Upon being laid off, Deen informed him there was
nothing for him to do and he would be recalled later.
Although he had not been recalled as of the time of the
hearing in the middle of September, Deen at the time
represented they would need him shortly.
Tounsand acknowledged there was no work for him
to do at the time of the second layoff. However, Randy
Foster testified that while Tounsand has been laid off
there has been work to do which Tounsand normally
does such as waxing the molds, repairing a mold which
needed repairing, and on one occasion helping with a top
which got stuck and had to be floated up and dried out.
While waxing and repairing the molds has not been done
and no one has worked in Tounsand's room, Foster
stated he and another employee performed the latter job
of floating and drying the top themselves for which they
received no pay. Under cross-examination Foster esti-
mated it only took about 25 minutes to float the top out
and dry it and although he said it would take another
day to wax it, it was not established this occurred.
During Tounsand's layoff two employees, Charlie
Hines and Steve Lybarger, a former employee, were
hired to work in the fiberglass department. However,
Hines hurt his back and left after a week and another
employee Alan Rheinecker also quit. None of these em-
ployees performed Tounsand's duties.
Deen gave as his reason for laying off Tounsand on
both occasions as being lack of work in his department.
According to him they already had enough molds pre-
pared and in production which did not require any prep-
aration to be done to them at the time. Tounsand was re-
called in July because some molds needed rewaxing and
others needed to be redone. He stated at the time they
were only running one top per mold a day and could run
20 to 25 tops out of one mold which amounts to a
month's work for each mold before any work is required
on it. The molds are also used for about 2 years until
they wear out.
Tounsand acknowledged quite a few tops are made
out of each mold and that once he has prepared these
molds his work is no longer needed.
According to Deen the total number of Respondent's
employees has decreased from about 29 employees about
April and June to about 17 employees in September due
to a steady decline in business.
Deen, as previously noted, supra, denied having any
knowledge of Tounsand's union activities or having dis-
criminated against him for such reasons.
86 He was the only one laid off work on this occasion.
G. Alleged Refusal To Pay Tounsand a Scheduled
Wage Increase
Donald Tounsand was hired on January 2. He now
earns $5.75 an hour.27 According to him he was hired at
the rate of $4.75 an hour and Deen informed him in De-
cember prior to his being hired he would receive 50-
cent-an-hour increases at the end of January and Febru-
ary and a 25-cent-an-hour increase at the end of
March, 28 making a total of $6 an hour. Upon discover-
ing about the latter part of April he was only earning
$5.75 an hour, about April 20 or 27, he reminded Deen
of his promise to pay him $6 an hour, whereupon Deen
said he would start receiving it the following Monday.
Tounsand testified that on July 27, after noticing his
check stub reflected he was still only earning $5.75 an
hour, he showed it to Deen who told him $5.75 an hour
was all he was going to make. Upon reminding Deen of
his earlier promises to pay him $6 an hour Deen repeated
he was only going to be paid $5.75 an hour and said no-
body's getting any raises and asked what could he expect
with his back stabbing techniques. Tounsand also stated
Deen said if the Union came in he would be making less
than he was presently. Tounsand said Deen made this
statement to him several other times about the middle of
May or in June.
Deen denied making the statements attributed to him
by Tounsand or that he had promised him a raise. Ac-
cording to him between January and April or May
Tounsand received three raises totaling $1.50. While ac-
knowledging Tounsand asked him about a raise in July
Deen stated he denied this request and told Townsend he
was not entitled to a raise.
I credit the testimony of Deen who I find was a more
credible witness than Tounsand 29 whose testimony was
both contradictory and exaggerated.
H. The Discharge of James Absher
James Absher was employed by Respondent from
about January 3 until April 24, except for I day about
April 3 when he was discharged by Foreman Rheinecker
and then rehired as discussed supra. He previously
worked as a builder and roller in the fiberglass depart-
ment and at the time of his termination he worked in the
aluminum shop.
His union activities consisted of signing a union au-
thorization card on April 12.
On April 23, the day prior to his termination, Absher
worked that morning but did not return to work after
lunch or notify Respondent he would not be there. Ac-
cording to Absher he did not return to work that day be-
cause he was sore and felt a little sick after sleeping in an
automobile the previous night. His explanation for not
27 Tounsand was uncertain when he was raised to this amount but ac-
cording to Deen, who examined the timecards, Tounsand began receiving
this amount for the pay period ending April 13.
2" Tounsand in an affidavit given to a Board agent stated the 25-cent
raise was due to be given the end of April which he now says was in
error
"U Although I previously credited Tounsand's testimony that Deen
threatened him, such threat was consistent with threats made to other
employees by Deen
1240
HOPP TOPP MFG. CO.
notifying Deen he would not be there was because he
knew Deen would tell him to return to work or be fired.
While having lunch that same day with another em-
ployee, Leonard Kurrus, at Dottie's Tavern, Absher
stated they told another employee Dave Shaw, in the
presence of employee David Sinunich, they were quit-
ting. Neither Shaw nor Sinunich was a supervisor.
Although Sinunich, while testifying as a witness for
Respondent, stated he heard this remark about quitting,
the evidence does not establish whether he then reported
it to Respondent.
The next morning when Absher went to the plant to
go to work his timecard was not there. Absher stated
upon asking Mary Deen about his timecard she said he
had quit, which he denied. She also said they had some-
body to replace him. When Deen came in Absher stated
Deen told him the same thing and for him to leave the
premises.
Sinunich corroborated Absher's testimony about Deen
telling him he had quit and for him to leave. He also said
Deen mentioned to Absher he could not come back to
work without a doctor's excuse.
Mary Deen testified she pulled Absher's30 timecard
when he did not return from lunch the previous day.
When he reported to work that day she said she told him
he would have to have a doctor's excuse to return to
work"1 although he told her he had not been to a
doctor.
When Absher attempted to return to work anyway
that morning after talking to Deen, the police were
called at Deen's request whereupon Absher left after the
police arrived.
I credit the testimony of Absher, corroborated in part
by Sinunich, and undenied by Deen, that Absher was not
allowed to return to work by Deen on the grounds Deen
claimed he had quit.
I. The Discharge of Robert Hilscher
Robert Hilscher32 was employed by Respondent from
about January 16 until his discharge on April 27. He de-
scribed his job as a mechanic and his duties included
changing the oil and filters in the trucks, and making
30 Mary Deen did not have the authority to discharge employees
a' Respondent has a posted rule requiring employees to notify Re-
spondent whenever they are unable to report to work or leave work be-
caus of sickness and requires them to bring a doctor's excuse before
being allowed to return to work. The penalty set forth for violating the
rule is discipline including dismissal Deen, Mary Deen, and Vernetta
Buss, who works in the office, all testified this policy has been strictly
enforced.
However, James Absher testified without denial that after Easter he
missed work because of the flu without bringing in a doctor's excuse Mi-
chael Lewis denied being asked for a doctor's excuse until after the union
cards were signed. Lewis, as discussed supra, missed work because of
sickness with the permission of Foreman Rheinecker without furnishing a
doctor's excuse Donald Tounsand also denied the rule was strictly en-
forced While other employees, including Thomas Koestercr. Donald
Tounsand, and Kevin Milam all testified they missed work without pro-
viding a doctor's excuse, the record does not establish whether those ab-
sences were for medical reasons about which Respondent had knowl-
edge.
Based upon this evidence I find contrary to Respondent's position that
the rule has not always been strictly enforced
31 Robert Hilscher and Alva Hilscher, Jr, are brothers
sure the trucks were running and their lights were work-
ing. He also helped load tops on trailers.
His union activities consisted of signing a union au-
thorization card sometime in April.
Hilscher was discharged on April 27. He testified that
day Deen told him he did not need him anymore with-
out giving him any reason.
Deen, who denied the Union had anything to do with
Hilscher's discharge, gave several reasons for discharg-
ing Hilscher including an incident which happened on
the day of his discharge. These reasons included getting
grease on customers' vehicles from his hands and clothes
while moving their vehicles to the back of the plant to
have work performed. On one occasion in April Re-
spondeni, as its records reflect, had to pay $35 to have
another company remove grease from the seat of a cus-
tomer's vehicle. Another reason was causing damage to
six tops3' which fell from a loaded trailer being moved
by Hilscher. This occurred about March 8 or 9 and
Deen estimated the damage was over $1,000.
According to Deen he discharged Hilscher on April
27 after Hilscher had been instructed to change the oil in
a diesel tractor and he observed Hilscher putting new oil
in the tractor before changing it. Upon asking Hilscher
why he was pouring oil in it, Hilscher replied he wanted
to fill it up to check and see if it was full before chang-
ing it.
Both Mary Deen and Vernetta Buss corroborated
Deen's testimony regarding Hilscher's appearance and
his getting grease on customers' vechicles and the
damage to the tops.
Under cross-examination Hilscher, contrary to his
direct examination denying that Deen or anyone had
complained to him about his work, acknowledged Deen
was upset and had talked to him both about his getting
grease on the tops and about damaging the tops. With re-
spect to the damaged tops he said he told Deen he
would not do it again.
Hilscher also remembered one occasion when Deen
came out while he was changing the oil in the tractor
but stated he did not remember the date and denied re-
membering telling Deen he was filling it up to the full
line before changing the oil.
I credit the testimony of Deen, corroborated in part
by Mary Deen and Vernetta Buss, regarding these inci-
dents rather than Robert Hilscher who contradicted his
own testimony and did not impress me as being a credi-
ble witness.
J. The Discharge of Michael Lewis
Michael Lewis was employed by Respondent from
about December 10, 1978 until April 30. He worked as a
chopper gun operator in the fiberglass department.
His union activities included contacting the Union on
April 9 about organizing Respondent's employees, sign-
ing a union authorization card on April 12, and soliciting
other employees to sign such cards.
On April 30, Lewis testified, as he and Donald Toun-
sand started to leave work about 5 p.m., Foreman Rhein-
:" Plctures of the iops how the. ere damaged
1241
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ecker, who had only worked part of the day, asked him
where he was going and said he wanted him to work.
Upon telling Rheinecker he was going home to be with
his wife who had been hurt, 34 Rheinecker informed him
if he left work not to bother coming back. Lewis then
left3 5 and never returned to work. Tounsand, who was
present during the conversation, corroborated Lewis' un-
denied testimony which I credit.
According to Mary Deen, on Tuesday, the date of
which was not established, she received a telephone call
from Lewis who told her he was sick and could not
come to work and to notify Deen. She informed him to
make sure he brought a doctor's excuse before he re-
turned.
On May 436 Lewis went to Respondent's premises and
picked up his last paycheck and the paycheck for Alva
Hilscher, Jr. Mary Deen stated that on that occasion
Lewis told her he was sick and could not work where-
upon she informed him he would have to have a doctor's
excuse releasing him before he was eligible to come back
to work. She also had Lewis sign a statement to pick up
Hilscher's check which further provided in pertinent part
as follows:
Mike picked up his check is off due to being sick.
ck #7826.
Paul was still sick and could not come in to pick
up his check so gave to Mike when he picked up
his ck #7829. Paul Hilscher period ending 4/27/79
Picked up 5/4/79 by.
Lewis' signature, which he identified, appears at the
bottom of this statement prepared by Mary Deen. Lewis,
who stated that at the time this occurred he was no
longer employed there, denied informing anyone he
would not be in to work because he was sick and denied
recalling any conversation with Mary Deen about being
sick or bringing in a doctor's excuse. While he also
denied, at the time he signed the statement, the words
"Mike picked up his check is off due to being sick" ap-
peared on the statement he also acknowledged he did
not read much of what Mary Deen had written on it.
Respondent also sent Lewis a registered envelope
which was received by his wife on May 5. Mary Deen
testified it contained insurance enrollment forms along
with a letter from her dated May 4 explaining them and
further stating she had not received his doctor's excuse
releasing him to return to work; reminded him of the
Company's policy regarding absences due to sickness; re-
quested the identity of his physician to discuss his illness;
and informed him unless they heard from him within 3
days and received his doctor's prognosis and diagnosis
they would have to terminate his employment.
a4 Lewis' wife had previously injured herself on April 25 while at Re-
spondent's premises and he had taken her to the hospital. Respondent had
knowledge of such incident since Lewis furnished it with a slip verifying
the hospital visit.
a5 According to Lewis, Tounsand and another employee stayed after
he left.
"' This was the same day. as reflected by the registered return receipl
signed for by Mary Deen, Respondent received the unfair labor practice
charge filed against it in Case 14-CA-12535-4 on May 3 alleging Lewis
had been discriminatorily discharged.
This letter makes no reference to the conversation
Mary Deen stated she had with Lewis on May 4.
Lewis acknowledged receiving the insurance forms in
the registered envelope. While he denied receiving the
letter referred to he further stated he did not pay much
attention to what he received and threw it away.
Mary Deen further stated Lewis never returned to
work or provided a doctor's excuse.
I credit Lewis' testimony rather than Mary Deen
about the reasons he was not working. The undisputed
evidence establishes he was terminated by Foreman
Rheinecker on April 30 and any doubts Respondent may
have had on May 4 about why he was not working
would have been resolved by receipt of the charge alleg-
ing he had been discharged.
K. The Discharge of Alva Hilscher, Jr.
Alva Hilscher, Jr., was employed by Respondent from
January until about May 7. He worked in the fiberglass
department as a roller and chopper gun operator.
He signed a union authorization card on April 12.
Hilscher while employed by Respondent had some
trouble with his lungs and was treated by a doctor. A
medical excuse from his doctor dated April 30 which he
gave to Respondent reflects he visited the doctor that
day and was supposed to have tests run at the hospital
the next day.
The last day Hilscher actually worked for Respondent,
as reflected by his timecards, was on the morning of
Wednesday, May 2. On that day Hilscher credibly testi-
fied after doing railing work Foreman Rheinecker as-
signed him to work in the spray room. After he twice
refused Rheinecker's instructions to do this work giving
as his reasons the problems he had with his chest3 7 and
his doctor had told him to take it easy, but mentioning to
Rheinecker he could do other types of work, Rheinecker
went over and talked to Deen, then returned and in-
formed Hilscher he was on medical layoff.
Mary Deen, however, testified on May 2 Hilscher
brought the doctor's excuse to the office, gave it to
Emmitt Deen,3 8 and said he was to have X-rays taken of
his chest which was hurting, whereupon her husband
told Hilscher since he was having X-rays taken the next
day he did not want him to work where it was bothering
him and to go ahead and take the rest of the day off and
come back after he had the test run and the doctor
okayed his coming back to work. According to Mary
Deen, Hilscher never returned to work or brought in a
doctor's excuse.
During his medical layoff Hilscher gave Michael
Lewis written authorization to pick up his check on May
4 stating he did so because he was still sick and had to
see the doctor and also because he did not have any way
to get to the Company. According to Hilscher his doctor
released him to return to work on May 7.39 However,
I? Hilscher says at the time he did not know whether the chemicals
used In spraying affected his condition.
:' DeeCn did no[t testify regarding the conversation.
: Hilscher's medical record subsequently obtained by Respondent
from his doctor in July reflects Hilscher sisited his doctor again ot May
I and May 4 and was released to return to work on May 7
1242
HOPP TOPP MFG. CO.
within a couple of days afterwards Foreman Rheinecker
told him he did not have a job and his place had been
filled. This conversation occurred at the trailer where
Rheinecker lived and where Hilscher formerly lived.
Hilscher stated this was the reason he did not return to
work.
Hilscher filled out an employment application for
Symons Corporation on May 15 listing as his reason for
leaving the Respondent's employment was to get a better
job.
L. The Discharge of Thomas Koesterer
Thomas Koesterer was employed by Respondent from
January 8 until April 21. He worked as a builder in the
fiberglass department.
Koesterer signed a union authorization card on April
12.
On Friday, April 20, Deen informed Koesterer and
two other builders they would have to work the next
day in order that they could get a shipment of tops out
by I p.m. that day.
The next morning Koesterer testified he called the
plant and informed Mary Deen he would not be in to
work. When she mentioned there was a load of tops
which had to go out by I p.m., and they had to have
someone to build them he informed her he knew that but
said he had some personal business to take care of. When
she replied "O.K." he said he would try to make it if he
could. During the conversation Koesterer also mentioned
he was looking for another job and was going to the De-
partment of Transportation.
Mary Deen's version of this conversation was Koes-
terer told her he quit. However, Deen testified his wife
had reported to him that Koesterer had said he was
going to look for another job and if he didn't get it he
would be in.
I credit Koesterer rather than Mary Deen whose ver-
sion of the conversation that Koesterer told her he quit
is also contrary to what her husband stated she reported
to him.
Instead of going to work that day, Koesterer stated, he
went to the Department of Transportation. However,
upon learning the man whom he was supposed to see
was not there he then took his girlfriend shopping.40
On Monday, April 23, Koesterer testified when he
went to work Foreman Rheinecker asked him if he knew
he was fired and told him he would have to go to the
office. He told Rheinecker he had heard it.4
Koesterer testified he went to the office and asked
Deen for his check. When Deen told him he had quit he
denied it and said Foreman Rheinecker had fired him.4 2
Deen then started yelling and using profanity, said he
was not going to let the government run the place, and
he was not going to let the Union in. He also said he
wanted a petition Koesterer had. Koesterer, however,
denied having a petition or any knowledge of it. Deen
40 The evidence does not establish at the time Koesterer was terminat-
ed Respondent had knowledge about the shopping trip.
41 Koesterer stated he had heard from friends over the weekend he
had been fired
42 Deen denied Foreman Rheinecker had anything to do( with Koes-
terer leaving
then told him to go get his tools. Koesterer got his tools
and check which was made out by Mary Deen.
Deen denied having any conversation with Koesterer
that day. He stated Koesterer came in between 9 and 10
a.m., and asked Mary Deen for his check. According to
Deen after Koesterer did not show up for work on Sat-
urday, which he said put a strain on the other builders
who had to work late and the shipment did not leave
until 6 p.m., he told everybody on the shift Koesterer
was finished. He then pulled Koesterer's card.
I credit Koesterer rather than Deen and find such a
conversation, 43 as described by Koesterer, did occur on
April 23. Deen never informed Respondent he was quit-
ting his job and Deen's own testimony about what he
told the other employees on Saturday and pulling Koes-
terer's timecard established he had decided to fire him
which is consistent with Koesterer's testimony about
what transpired the day of his discharge.
Koesterer further testified he had missed work on sev-
eral other occasions prior to April 20. On some of those
occasions he called in and on other occasions he did not.
This included visits to the Department of Transportation
about a job which he stated he mentioned to both Deen
and Mary Deen. On three occasions when he did not call
in, which occurred in February and April, he stated
Deen and Foreman Rheinecker were upset because he
was off work without an excuse and asked him where
the hell he had been. However, no action was taken
against him.
M. The Discharge of David DeForest
David DeForest was employed by the Respondent
from March 12 until April 23. He worked as a roller in
the fiberglass department.
DeForest signed a union authorization card on April
12.
DeForest testified on April 18 he informed Foreman
Rheinecker he could not walk on his knee which he had
hurt at work and Rheinecker sent him home. The next
day he went to the hospital and had X-rays taken and
the doctor released him but informed him to stay off his
knee a few days. Copies of hospital records reflect De-
Forest was treated at the hospital that day for a knee
injury and X-rays were taken.
DeForest stated he did not work on April 19 or 20.
On April 20 upon telling Foreman Rheinecker, who
lived next door, he would not be in to work for a couple
of days because the doctor had said he sprained his knee
and should take a few days off work Rheinecker in-
formed him it was all right.
Mary Deen first testified DeForest called her on the
morning of April 19 and said he had injured himself the
night before at work. She told him he would have to go
to a hospital in Belleville, Illinois, and tell them it was a
workmen's compensation claim that would be taken care
of and for him to bring a pink sheet back so she could
fill out the form and send it to the insurance company.
She also said before he could return to work he must
'4 The statements made hb Deen on that occaslon were notl alleged in
the pleadings to be unlawful
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a note from a doctor saying he was eligible to
return to work. Contrary to her earlier testimony she
subsequently placed this conversation as occurring in her
office with DeForest's girlfriend being present.
DeForest denied having any conversation with Mary
Deen about his injury. According to him the only time
his girlfriend came to the plant with him was on one oc-
casion when he went to pick up his check.
I credit DeForest rather than Mary Deen where testi-
mony was contradictory.
DeForest testified on April 23 he went to the plant
that morning to go to work. However, Foreman Rhein-
ecker told him to go to the office and pick up his check
because he had been fired. Rheinecker also mentioned he
did not have anything to do with it and said there was
not anything else he could do.
DeForest stated he then talked to Deen outside the
office whereupon Deen told him the reason for his dis-
charge was because he had not returned with the report
or given it to the secretary and had not called in. Deen
also told him Mary Deen would bring him his check
which she did. Deen did not testify concerning this con-
versation.
I credit DeForest's undisputed testimony concerning
this conversation with both Foreman Rheinecker and
Deen that morning.
Mary Deen acknowledged giving DeForest his check
that day for the previous week. However, she denied
having any knowledge about DeForest being discharged
and stated he came to the plant on April 23 to get his
check and did not ask to go to work. She said he in-
formed her pursuant to her inquiry he had forgotten to
bring the slip from the hospital or a doctor's release
whereupon she informed him he could not return until
he brought them.
Again I credit DeForest's denials he discussed his
injury with Mary Deen. Further, the evidence estab-
lished he had already been discharged when he was
given his check by Mary Deen.
DeForest never furnished Respondent with any slips
from the hospital or a doctor's release.
Deen filed an employment application with the
Symons Corporation on May 15, giving as his reason for
leaving Respondent was for a better job. However, this
occurred after the charge had been filed on April 24 al-
leging his discharge by Respondent was unlawful.
N. Analysis and Conclusions
The General Counsel contends, contrary to Respond-
ent's denials, that the Respondent violated Section 8(a)(1)
and (3) of the Act as alleged by unlawfully creating the
impression of surveillance, interrogating, threatening,
promising, and making certain other statements to its em-
ployees concerning their union activities; discriminatorily
discharging David DeForest, Thomas Koesterer, James
Absher, Robert Hilscher, Michael Lewis, and Alva
Hilscher, Jr.; and discriminatorily laying off employees
in the fiberglass department and Donald Tounsand; and
refusing to give Tounsand a scheduled raise all because
of their union activities.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed them in Section 7 of
the Act. Section 8(a)(3) of the Act provides in pertinent
part: "It shall be an unfair labor practice for an employer
. . .by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment to en-
courage or discourage membership in any labor organi-
zation . . . ."
The test applied in determining whether a violation of
Section 8(a)(l) of the Act has occurred is "whether the
employer engaged in conduct which, it may reasonably
be said, tends to interfere with the free exercise of em-
ployee rights under the Act." Electrical Fittings Corpora-
tion, A Subsidiary of I-T-E Imperial Corporation, 216
NLRB 1076 (1975). Further, while an employer may
speak freely to employees regarding issues arising in con-
nection with a union organizational campaign, such state-
ments are unlawful if they contain threats of reprisal
such as plant closure. Components, Inc., 197 NLRB 163
(1972).
The findings, supra, establish that Foreman Rheinecker
on or about April 24 indicated to Michael Lewis and
Alva Hilscher., Jr., that Respondent terminated James
Absher because of the Union and threatened him that if
the Union came in Respondent would move the plant
and operate it without the employees; that on or about
April 18 or 19 he threatened Alva Hilscher, Jr., that if
the Union got in Respondent would close the plant and
discharge the employees who signed union cards, and
then created an impression of surveillance of employees'
union activities by telling Hilscher that Respondent had
a list of and knew who signed union cards; that about
the middle of April he threatened Alva Hilscher, Jr., that
if he engaged in union activities he would be falsely ac-
cused of stealing any tools found to be missing because
of his criminal record; that the week of April 14 he
threatened Alva Hilscher, Jr., that Respondent would
fire employees who signed union cards, threatened him if
the Union got in the employees who signed union cards
would be the first employees discharged and that Re-
spondent would close the plant, and threatened him that
Respondent could make it harder for employees to get
jobs because they signed union cards; on or about June 1
he threatened Randy Foster and other employees that
Respondent would discharge employees who voted for
the Union in the election; on or about June 1, 15, and 22
he unlawfully solicited Randy Foster to get his brother
to vote against the Union in the election, threatened him
that his brother would be discharged if he did not vote
against the Union in the election, and on June 22 created
an impression of surveillance of employees' union activi-
ties by telling Foster that Respondent would know how
employees voted in the election; on July 11 he informed
Randy Foster and Scott Foster that Respondent was
making an example of employee Donald Tounsand for
voting for the Union; on April 13 and on or about April
16 threatened David DeForest if the Union came in Re-
spondent would move or close the plant; on June 22 he
threatened Donald Tounsand that Respondent intended
to impose more onerous working conditions on employ-
ees because of the Union and threatened Tounsand with
possible discharge because of his union activities; about
1244
HOPP TOPP MFG. CO.
the early or middle part of June he threatened Walter
Sarkesian if the employees selected the Union to repre-
sent them that Respondent would close the plant and run
it without the employees; on or about April 20 he threat-
ened Thomas Koesterer and Kevin Milam that Respond-
ent would discharge the employees for joining the
Union; about April, May, or June he threatened Kevin
Milam that if the employees selected the Union to repre-
sent them Respondent would lay off the employees and
run the business without them; and on or about July 11
in order to discourage employees' union activities he
threatened Walter Sarkesian with discharge for going
into the workroom of Donald Tounsand. Respondent,
beginning on or about July 11 in order to discourage em-
ployees' union activities, prohibited employees, including
Walter Sarkesian and Kevin Milam, from going into the
workroom of Donald Tounsand.
Further, the findings, supra, establish that Emmitt
Deen, about the middle of April, interrogated Michael
Lewis about union activities; threatened Lewis if the em-
ployees selected the Union to represent them Respondent
would close the plant, reduce the employees' wages to
the minimum wage rate, and take away their insurance;
and threatened Lewis by informing him that Respondent
had previously discharged employees for trying to orga-
nize a Union; about the middle of April he interrogated
Alva Hilscher, Jr., about his and other employees' union
activities and threatened Hilscher if the employees select-
ed the Union to represent them Respondent would close
and move the plant and the employees would lose their
jobs; on April 24 he threatened Randy Foster and Scott
Foster that if the employees selected the Union to repre-
sent them Respondent would close the plant; on or about
May 23 or the end of May he threatened Donald Toun-
sand if the employees selected the Union to represent
them he would close the plant and move to another
State; on or about April 20 he threatened James Absher
if the employees selected the Union to represent them he
would have to close the plant, stop building tops, and
just have a sales place; on or about April 20 he informed
James Absher that he would have lent him money re-
quested except that if the employees selected the Union
to represent them he would have to shut the plant; and
on or about April 22 he threatened James Absher with
discharge because Absher was for the Union.
Applying the above test I find that Respondent by en-
gaging in these acts of interrogations, impressions of sur-
veillance, threats, and other statements just enumerated
has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in Section 7
of the Act and has thereby violated Section 8(a)(1) of the
Act.
Turning to the issues of whether Respondent discrimi-
nated against the employees as alleged, it is well settled
that the presence of valid grounds for discharging an em-
ployee does not legalize a dismissal which is due to a
desire to discourage union activity. Borek Motor Sales,
Inc. v. N.L.R.B., 425 F.2d 677 (7th Cir. 1970), cert.
denied 400 U.S. 823 (1971); and N.L.R.B. v. Symons
Manufacturing Co., 328 F.2d 835, 837 (7th Cir. 1964).
Direct evidence of discriminatory motivation is not nec-
essary to support a finding of discrimination and such
intent may be inferred from the record as a whole. Heath
International Inc., 196 NLRB 318 (1972). Further, the
fact layoffs may be economically justified is no defense if
the selection of those employees laid off was because of
their union activities. N.L.R.B. v. Bedford-Nugent Corpo-
ration, 379 F.2d 528, 529 (7th Cir. 1967); and N.L.R.B. v.
Denna Products, Co., 195 F.2d 330, 335 (7th Cir. 1952),
cert. denied 348 U.S. 827 (1953).
Insofar as the layoff of employees in the fiberglass de-
partment is concerned I find the evidence is insufficient
to establish it was for discriminatory reasons. Deen's
reason for the layoff that there were no orders to work
on was unrefuted and the evidence establishes employees
in the department had been laid off work on similar oc-
casions previously. Moreover, not all of those employees
laid off were shown to have engaged in any union activi-
ties and included among those laid off was Randy Foster
who served as Respondent's observer in the election held
on June 22. In so finding, I have considered the timing
of the layoff in relation to the election and the unlawful
conduct engaged in by both Deen and Foreman Rhein-
ecker herein found.
With respect to the two layoffs of Donald Tounsand,
another member of the fiberglass department, I am also
persuaded and find the evidence is insufficient to estab-
lish his layoffs were for discriminatory reasons notwith-
standing as herein found that Respondent had informed
employees it was making an example out of Tounsand
for voting for the Union, threatened Tounsand with pos-
sible discharge because of his union activities, and pro-
hibited employees under threat of discharge from going
into Tounsand's workroom in order to discourage em-
ployees' union activities. The reason for such finding is
Tounsand's job is highly specialized and except for rare
occasions he never performed any other duties in the fi-
berglass department normally performed by the other
employees who were also paid on an entirely different
basis. During Tounsand's layoffs his duties, with the ex-
ceptions of buffing one mold, waxing a couple of molds,
and spending approximately 25 minutes on another task
for which the employees were not paid, were not per-
formed by any other employees. Moreover, Respondent's
claim that it had no work for Tounsand to do because of
a steady decline in business, which was supported in part
by its July sales records and a substantially reduced
work force, was not refuted.
Accordingly, I find for the reasons expressed that Re-
spondent did not discriminatorily lay off from work the
employees in the fiberglass department or Donald Toun-
sand because of their union activities in violation of Sec-
tion 8(a)(3) and (1) of the Act as alleged.
Concerning the alleged refusal to give Donald Toun-
sand a scheduled wage increase, having discredited
Tounsand's testimony on this issue I find he was neither
promised nor denied a scheduled wage increase in viola-
tion of Section 8(a)(3) and (1) of the Act, as alleged.
Moreover, if as he so testified the alleged raise promised
him was to have become effective the end of March any
failure to grant it would also have occurred prior to his
engaging in any union activities.
1245
DECISIONS ()O NATlIONAI LAB()OR RELATIONS BOARD
The remaining issues to be resolved are whether the
six employees were discriminatorily discharged or had
quit their jobs or been discharged for cause as Respond-
ent contends.
James Absher, as established by the findings, supra,
was not permitted by Deen to return to work on April
24 on the grounds he had quit. Since he had never noti-
fied Respondent he was going to quit his job and ap-
peared for work on April 24 after being off work only a
half day, Respondent's contention he quit is rejected.
Rather, the evidence as herein found establishes he was
not allowed to return to work because of his union activ-
ities. Only a couple of days before, Deen had unlawfully
threatened Absher with discharge because he was for the
Union and indicated he was looking for an excuse to do
so and following his discharge Foreman Rheinecker indi-
cated to Michael Lewis and Alva Hilscher, Jr., that
Absher had been terminated because of the Union. For
these reasons and having rejected Respondent's defense I
am persuaded and find that on April 24 Respondent dis-
criminatorily discharged James Absher because of his
union activities thereby violating Section 8(a)(3) and (1)
of the Act.
Robert Hilscher's involvement in union activities was
limited to signing a union card and there is no evidence
to show Respondent had knowledge of such activity.
Absent as here any knowledge of his limited union activ-
ity
44 or reason to believe he engaged in any such activi-
ty and having credited Deen's testimony regarding the
incidents about which he was discharged, I am persuad-
ed and find the evidence is not sufficient to prove Robert
Hilscher was discriminatorily discharged because of his
union activities in violation of Section 8(a)(3) and (1) of
the Act, as alleged. The General Counsel's assertion
Scott Foster had been hired for the purpose of replacing
Robert Hilscher is not supported by the evidence even
though he may have assumed those duties after Hilscher
was terminated.
Insofar as Michael Lewis' discharge is concerned the
evidence establishes Lewis was active in the Union and
shortly before his discharge both Deen and Foreman
Rheinecker unlawfully interrogated or threatened him
concerning his union activities, as set forth supra, which
indicates in addition to establishing union animus they
had knowledge or reason to believe he was active in the
Union. The evidence also establishes on April 30 when
Lewis left work about 5 p.m., to be with his wife who
had been injured earlier at Respondent's premises, about
which the Respondent had knowledge, he was dis-
charged by Foreman Rheinecker.
Respondent's contention Lewis was off work for medi-
cal reasons and did not return with a doctor's excuse is
rejected based upon the credited testimony of Lewis and
the unretracted action taken by Foreman Rheinecker on
April 30 in discharging him.
Based upon the foregoing evidence including Lewis'
union activities of which Respondent either had knowl-
edge or reason to believe he was engaged in; Respond-
" To establish a discharge was discriminatorily motivated evidence
must be adduced to show knowledge on the part of the employer that the
alleged discriminatee was engaged in union activities. Glass Guard Indus-
tries, Inc., 218 NLRB 176 (1975)
ent's union animus as established through its unlawful
conduct herein found; the unlawful conduct directed
against Lewis by both Deen and Foreman Rheinecker
shortly before his discharge; and having rejected Re-
spondent's defense, I am persuaded and find that Re-
spondent on April 30, discriminatorily discharged Mi-
chael Lewis because or his union activities thereby vio-
lating Section 8(a)(3) and (1) of the Act.
The evidence, supra, with respect to Alva Hilscher,
Jr., establishes that on or about May 7, while on medical
leave and after being authorized by his doctor to return
to work, Hilscher was informed by Foreman Rheinecker
that he did not have a job and his place had been filled.
Under these circumstances Respondent's contention that
Hilscher quit his job by going on medical leave and not
returning to work with a doctor's excuse is rejected.
The evidence, as set forth supra, further establishes
that about the middle of April Foreman Rheinecker on
three different occasions unlawfully threatened Hilscher,
who had signed a union authorization card, concerning
union activities, and Deen also unlawfully interrogated
and threatened him about such activities.
Having found Hilscher was discharged rather than quit
his job as Respondent contends, and upon considering
the unlawful conduct engaged in by Respondent herein
found, and in particular, the unlawful threats made to
Hilsher personally prior to his discharge indicating Re-
spondent had knowledge or reason to believe Hilscher
was engaged in union activities, I am persuaded and find
that Respondent about May 7 discriminatorily discharged
Alva Hilscher, Jr., because of his union activities thereby
violating Section 8(a)(3) and (1) of the Act, as alleged.
The evidence, supra, with respect to Thomas Koes-
terer establishes contrary to Respondent's position he
quit his job that Koesterer was discharged by Deen on
April 23. Although Koesterer had failed to work the pre-
vious Saturday as scheduled he had also missed work on
prior occasions without any disciplinary action being
taken and Respondent was already aware he was looking
for another job.
The evidence, supra, also establishes the last day Koes-
terer, who signed a union authorization card, actually
worked Foreman Rheinecker unlawfully threatened him
that Respondent would discharge employees for joining
the Union after Koesterer suggested to him that he
should join. Further during the discharge conversation
Deen, who was aware through Daniel Sinunich that
Koesterer was getting union authorization cards signed,
accused Koesterer of having a petition he wanted and
threatened him that he was not going to let the Union in.
Such evidence establishes both knowledge of Koesterer's
union activities and union animus.
Based upon the foregoing evidence including Koes-
terer's union activities of which Respondent had knowl-
edge; Respondent's union animus; the unlawful threats
Respondent made to Koesterer prior to his discharge;
and the discharge conversation itself and having rejected
that Respondent's defense, I am persuaded and find that
Respondent on April 23 discriminatorily discharged
Thomas Koesterer because of his union activities thereby
violating Section 8(a)(3) and (1) of the Act.
124h
HOP' TOI'P MFG. CO.
The findings, supra, show that David DeForest was
discharged by Deen on April 23 when he attempted to
return to work. This occurred notwithstanding DeForest
had injured himself at work and had been off work with
the permission of Foreman Rheinecker. Thus, Respond-
ent's contention that DeForest failed to return to work is
rejected.
The evidence further establishes on two occasions
shortly before the discharge of DeForest, who signed a
union authorization card, Foreman Rheinecker informed
him Deen had found out about them signing cards and
talking Union and threatened him if the Union came in
Respondent would move or close the plant. Such evi-
dence establishes both union animus and the fact Re-
spondent had knowledge or reason to believe DeForest
was engaged in union activities.
Based upon the foregoing evidence including DeFor-
est's union activities of which Respondent had knowl-
edge or was aware; Respondent's union animus; the un-
lawful threats made to DeForest shortly before his dis-
charge; and having rejected Respondent's reasons why
DeForest is no longer employed, I am persuaded and
find that Respondent on April 23 discriminatorily dis-
charged David DeForest because of his union activities
thereby violating Section 8(a)(3) and (1) of the Act.
O. The Challenged Ballots
Michael Wood's ballot was challenged by the Union
on the grounds he is employed as a salesman and seldom
performs work at Respondent's facility. Respondent's po-
sition is Wood is a regular part-time employee eligible to
vote.
Although the Regional Director sustained the chal-
lenge to Wood's ballot the Board concluded substantial
issues were raised regarding the unit placement and eligi-
bility of Wood to vote to warrant a hearing.
The testimony, of Michael Wood 4s establishes he was
employed by Respondent as a full-time employee from
the latter part of 1978 until about February. He worked
as a builder in the fiberglass department installing win-
dows and doors in fiberglass tops. This work was per-
formed with three or four other builders who worked in
a building separate from the other unit employees. They
were paid S 15, except for Walter Sarkesian who was
paid $17, for each top which was divided among work-
ers of the crew.
About February, Wood quit his full-time employment
with Respondent and went to work full time as the man-
ager of another unrelated company. However, he subse-
quently continued working part time with Respondent
until sometime in July performing the same duties and at
the same pay as he did when he had worked full time.
The only difference between his work as a regular and
part-time employee was that as a part-time employee he
worked alone. This work was performed on Sundays and
occasionally evenings when the other employees were
not working. He also did not receive a paid vacation or
paid holidays which are company benefits.
"4 While Wood professed to having problems remembering things and
gave contradictory testimony, inasmuch as his testimony is undisputed. I
credit it.
Wood arranged his work hours with Deen. He esti-
mated he averaged working 15 to 20 hours a week and
worked every Sunday except for periods when his family
obligations prevented him from working.
According to Wood he was still working for Respond-
ent as of July 9 and acknowledged receiving a paycheck
dated July 2. Timecards for Wood reflect he worked 3
Sundays and 2 other days in May and worked 3 Sundays
in June.
Based upon the foregoing evidence I find Wood was a
regular part-time unit employee eligible to vote in the
election. Accordingly, the challenge to his ballot should
be overruled and his ballot counted.
The ballot of Ralph Rheinecker was challenged by the
Union on the grounds that he is a supervisor which Re-
spondent denies. Having found, supra, Ralph Rheillecker
is a supervisor under Section 2(11) of the Act, I find he
was not eligible to vote in the election. Therefore the
challenge to his ballot should be sustained and his ballot
not be counted.
The ballots of the remaining individuals; namely,
David DeForest, Alva Hilscher, Jr., Robert Hilscher,
Thomas Koesterer, and Michael Lewis were challenged
by the Board agent on the grounds their names were not
included on the voter eligibility list. Respondent con-
tends their ballots should not be counted because they
were terminated prior to the election while the Union as-
serts they were eligible voters since they were discrimin-
atorily discharged in violation of the Act. Having found
David DeForest, Alva Paul Hilscher, Jr., Thomas Koes-
terer, and Michael Lewis were discriminatorily dis-
charged in violation of Section 8(a)(3) and (1) of the Act,
I find they were eligible voters. Accordingly, the chal-
lenges to the ballots of David DeForest, Alva Hilscher,
Jr., Thomas Koesterer, and Michael Lewis should be
overruled and their ballots counted. However, with re-
spect to Robert Hilscher having found that he was not
discriminatorily discharged under the Act and was termi-
nated prior to the election, I find he was not eligible to
vote in the election and the challenge to his ballot should
be sustained and his ballot not be counted.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 111,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCI USIONS OF LAW
1. Charles Deen d/b/a Hopp Topp Mfg. Co. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Teamsters Local Union No. 50, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interrogating employees about their union activi-
ties and those of other employees; indicating to employ-
ees another employee was terminated because of the
Union; threatening employees if the Union came in or
the employees selected the Union to represent them Re-
spondent would lay off the employees, close the plant,
move the plant, operate the business without the employ-
ees, and stop building tops and just have a sales place;
threatening employees if the Union got in those employ-
ees who signed union cards would be the first employees
discharged; creating impressions of surveillance of em-
ployees' union activities by telling employees that Re-
spondent had a list of and knew who signed union cards
and would also know how employees voted in the elec-
tion; threatening an employee if he engaged in union ac-
tivities he would be falsely accused of stealing any tools
found to be missing because of his criminal record;
threatening employees with discharge for signing union
cards or for joining the Union; threatening an employee
with making it harder for employees to get jobs because
they signed union cards; threatening to discharge em-
ployees who voted for the Union in the election; solicit-
ing an employee to get his brother to vote against the
Union in the election; threatening an employee his broth-
er would be discharged if he did not vote against the
union in the election; informing employees it was making
an example out of another employee for voting for the
Union; threatening an employee it intended to impose
more onerous working conditions on employees because
of the Union; threatening employees with discharge or
possible discharge because of their union activities or
their being for the Union; prohibiting employees, includ-
ing threatening an employee with discharge, from going
into the workroom of another employee in order to dis-
courage employees' union activities; threatening employ-
ees if they selected the Union to represent them, with re-
ducing the employees' wages to the minimum wage rate,
taking away their insurance, and with losing their jobs;
threatening an employee that employees had previously
been discharged for trying to organize a union; and by
informing an employee he would have been loaned
money except that if the employees selected the Union to
represent them it would have to shut the plant, Respond-
ent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act and has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By discriminatorily discharging James Absher on
April 24, 1979, Michael Lewis on April 30, 1979, Alva
Hilscher, Jr., on or about May 7, 1979, Thomas Koes-
terer on April 23, 1979, and David DeForest on April
23, 1979, because of their union activities and thereafter
refusing to reinstate them, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(I) of the Act.
5. The challenges in Case 14-RC-8894 to the ballots of
Michael Wood, David DeForest, Alva Hilscher, Jr.,
Thomas Koesterer, and Michael Lewis are overruled and
their ballots should be counted and the objections to the
ballots of Ralph Rheinecker and Robert Hilscher are sus-
tained and their ballots should not be counted.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act I shall recommend that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.46 Accordingly, Re-
spondent shall be ordered to immediately reinstate James
Absher, Michael Lewis, Alva Hilscher, Jr., Thomas
Koesterer, and David DeForest to their former jobs or,
if those jobs no longer exist, then to substantially equiva-
lent jobs without prejudice to their seniority and other
rights and privileges previously enjoyed, and to make
them whole for any loss of earnings and compensation
they may have suffered as a result of the discrimination
against them in their employment herein found by discri-
minatorily discharging James Absher on April 24, 1979,
Michael Lewis on April 30, 1979, Alva Hilscher, Jr., on
or about May 7, 1979, Thomas Koesterer on April 23,
1979, and David DeForest on April 23, 1979. Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), plus interest
as set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962). and Florida Steel Corporation, 231 NLRB 651
(1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4 7
The Respondent, Charles Deen d/b/a Hopp Topp
Mfg. Co., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
and those of other employees.
(b) Indicating to employees other employees were ter-
minated because of the Union.
(c) Threatening employees with laying off employees,
closing the plant, moving the plant, operating the busi-
ness without the employees, and stopping building tops
and just having a sales place, if the Union comes in or
the employees selected the Union to represent them.
(d) Threatening employees with discharge for signing
union cards if the Union gets in.
(e) Creating impressions of surveillance of employees'
union activities by telling employees it has a list of and
knows who signed union cards and would also know
how employees voted in the election.
46 The unlawful conduct herein found warrants a broad cease-and-
desist order. Cf. Sambos Restaurant, Inc., 247 NLRB No. 122 (1980).
4 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1248
HOPP TOPP MFG. CO.
(f) Threatening employees if they engage in union ac-
tivities they will be falsely accused of stealing any tools
found to be missing.
(g) Threatening employees with discharge for signing
union cards or for joining the Union.
(h) Threatening to make it harder for employees to get
jobs because they signed union cards.
(i) Threatening employees with discharge for voting
for the Union in the election.
(j) Soliciting employees to gel their relatives to vote
against the Union in the election.
(k) Threatening employees their relatives would be
discharged if they did not vote against the Union in the
election.
(I) Informing employees it was making an example out
of another employee for voting for the Union.
(m) Threatening employees with the imposition of
more onerous working conditions on employees because
of the Union.
(n) Threatening employees with discharge or possible
discharge because of their union activities or their being
for the Union.
(o) Prohibiting employees, including threats of dis-
charge, from going in to the workroom of another em-
ployee in order to discourage employees' union activities.
(p) Threatening employees if they select the Union to
represent them their wages will be reduced to the mini-
mum wage rate and their insurance will be taken away
and employees would lose their jobs.
(q) Threatening employees it had previously dis-
charged employees for trying to organize a union.
(r) Informing employees they would have been given
loans except if they selected the Union to represent them
the plant would be shut down.
(s) Discouraging activities and membership in the
Teamsters Local Union No. 50, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, or any other labor orga-
nization by discharging, refusing to reinstate, or in any
other manner discriminating against employees in regard
to hire or tenure of employment or any term or condi-
tion of employment.
(t) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to James
Absher, Michael Lewis, Alva Hilscher, Jr., Thomas
Koesterer, and David DeForest to their former jobs or,
if those jobs no longer exist, to substantially equivalent
jobs without prejudice to their seniority and other rights
and privileges previously enjoyed, and make each of
them whole for any loss of pay or other compensation
they may have suffered by reason of the discrimination
against them herein found in the manner set forth in that
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary to analyze and determine the amounts of backpay
due under the terms of this Order.
(c) Post at its Fayetteville, Illinois, facility copies of
the attached notice marked "Appendix." 48 Copies of said
notice on forms furnished by the Regional Director for
Region 14, after being duly signed by Respondent's au-
thorized representative, shall be posted immediately upon
receipt thereof and be maintained by it for 60 consecu-
tive days thereafter in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or cov-
ered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the second amended con-
solidated complaint be, and it hereby is, dismissed insofar
as it alleges unfair labor practices not specifically found
herein.
IT IS FURTHER ORDERED that in Case 14-RC-8894 the
challenges to the ballots of Ralph Rheinecker and Robert
Hilscher be sustained and their ballots not counted, and
that the challenges to the ballots of Michael Wood,
David DeForest, Alva Hilscher, Jr., Thomas Koesterer,
and Michael Lewis be overruled and their ballots count-
ed, and that the case be remanded to the Regional Direc-
tor for Region 14 for the purpose of counting these bal-
lots whose challenges were overruled, certifying the re-
sults of the election and taking any other appropriate
action regarding the disposition of that case.
4s In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
their union activities and those of other employees.
WE WILL NOT indicate to our employees other
employees were terminated because of the Union.
WE WILL NOT threaten our employees with
laying off employees, closing the plant, moving the
plant, operating the business without the employees,
and stopping building tops and having a sales place
if the Union comes in or the employees select the
Union to represent them.
WE WILL NOT threaten our employees with dis-
charge for signing union cards if the Union gets in.
WE WILL NOT create impressions of surveillance
of our employees' union activities by telling em-
ployees we have a list of and know who signed
union cards and would also know how employees
voted in the election.
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees if they
engage in union activities they will be falsely ac-
cused of stealing any tools found to be missing.
WE WILL. NOT threaten our employees with dis-
charge for signing union cards or for joining the
union.
WE WILl. NOT threaten to make it harder for our
employees to get jobs because they signed union
cards.
WE WILl NOT threaten our employees with dis-
charge for voting for the Union in the election.
WE WILL NOT solicit our employees to get their
relatives to vote against the Union in the election.
WE WIL.L NOT threaten our employees their rela-
tives would be discharged if they did not vote
against the Union in the election.
WE WILL NOT inform our employees we have
made an example out of another employees for
voting for the Union.
WE Wi. L NOT threaten our employees with the
imposition of more onerous working conditions on
employees because of the Union.
WE WIt.L NOT threaten our employees with dis-
charge or possible discharge because of their union
activities or their being for the Union.
WE WILL NOT prohibit our employees, including
threats of discharge, from going in to the workroom
of another employee in order to discourage employ-
ees' union activities.
WE WILL NOT threaten our employees if they
select the Union to represent them their wages will
be reduced to the minimum wage rate and their in-
surance will be taken away and employees would
lose their jobs.
WE WIL L NOT threaten our employees we have
previously discharged employees for trying to orga-
nize a Union.
WE WILL NOT inform our employees they would
have been given loans except if they selected the
Union to represent them the plant would be shut
down.
WE WIL.L NOT discourage activities and member-
ship in Teamsters Local Union No. 50, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by discharging,
refusing to reinstate, or in any other manner dis-
criminating against employees in regard to hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights to self-organization; to form,
join, or assist any labor organization, to bargain col-
lectively through the representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection; or to refrain from any or all such ac-
tivities, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL offer immediate and full reinstatement
to James Absher, Michael Lewis, Alva Hilscher,
Jr., Thomas Koesterer, and David DeForest to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent jobs, without prejudice to their
seniority and other rights and privileges previously
enjoyed, and make them whole for any loss of pay
or other compensation they may have suffered by
reason of our discrimination against them by dis-
charging them, with interest.
CHARLES DEEN D/B/A HOPP TOPP MFG.
Co.
1250