Jarva Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1978

235 N.L.R.B. 1047 (N.L.R.B. 1978)

Jarva Incorporated and Donald Bratcher and James
Miller. Cases 8-CA- 10507 and 8-CA- 10519
April 21, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On November 4, 1977, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Jarva Incorporated, Solon, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(b):
"(b) Advising employees to submit to Respondent
copies of registered letters seeking return of authori-
zation cards submitted to the Union, or otherwise
coercively interrogating employees concerning union
activities and sentiments, or conducting surveillance
of such activities, or creating the impression that
such activities are under surveillance."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing her findings.
2 The recommended Order is modified to conform to the finding of the
Administrative Law Judge that the Respondent unlawfully directed employ-
ees to send to it copies of any letters they sent to the Union requesting the
return of signed authorization cards.
235 NLRB No. 144
JARVA INCORPORATED
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which all parties had the
opportunity to be heard, it has been found that we
violated the Act and we have been ordered to post
this notice. We intend to abide by the following:
WE WILL NOT promise or grant you pay
increases or other benefits for the purpose of
encouraging or persuading you not to be or
become members of or support District Lodge 54
of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
labor organization provided, however, that noth-
ing herein shall be constituted as requiring us to
vary or abandon any economic benefit heretofore
as established.
WE WILL NOT advise you to submit to us copies
of registered letters seeking return of authoriza-
tion cards submitted to the Union or coercively
question you concerning your union activities or
conduct surveillance of your union activities, or
do anything which creates the impression that we
are conducting such surveillance.
WE WILL NOT discharge or otherwise discrimi-
nate against any employees for the purpose of
discouraging membership in or support of the
above-named Union or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer Donald Bratcher and James
Miller immediate and full reinstatement to their
former positions or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges, and
WE WILL pay them compensation, with interest,
for all loss suffered by them as a result of being
discharged.
Our employees are free to join or assist the above-
named Union, or any other labor organization, and
to engage in other concerted activity for the purpose
of collective bargaining or other mutual aid or
protection. Our employees are also free to refrain
from any or all such activities, except to the extent
that such rights may be affected by an agreement
requiring union membership as a condition of con-
tinued employment, in accordance with the proviso
to Section 8(a)3) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JARVA INCORPORATED
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to charges filed by Donald Bratcher and James Miller
on October 13 and 15, 1976,1 respectively, complaints were
issued against Jarva Incorporated (hereinafter Respon-
dent) on November 26 (Case 8-CA-10507) and November
30 (Case 8-CA-10519), alleging that in October Respon-
dent violated Section 8(a)(1) of the Act 2 by promising and
granting wage increases and by creating the impression of
surveillance of employees' union activities and violated
Section 8(a)(3) and (1) by discharging Bratcher and Miller
on October 12 and 14, respectively. The two cases were
consolidated for hearing.
Pursuant to due notice, a consolidated hearing was held
before me in Cleveland, Ohio, on February 16, 1977. The
General Counsel and Respondent were represented by
counsel and all parties were afforded full opportunity to
present oral and written evidence and to examine and
cross-examine witnesses. The parties waived oral argument.
Posthearing briefs were filed on behalf of the General
Counsel and Respondent.
Upon the entire record, 3 together with careful observa-
tion of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
I. PRELIMINARY FINDINGS
Respondent, an Ohio corporation with its principal office
and place of business in Solon, Ohio, is engaged in the
manufacture and sale of tunnel boring machinery. In the
course and conduct of its business, Respondent annually
ships goods valued in excess of $50,000 from Ohio to points
outside Ohio. Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
District Lodge 54 of the International Association of
Machinists and Aerospace Workers, AFL-CIO (hereinaf-
ter the Union), is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Section 8(a)(1)
I. The evidence
Around the middle of September 1976, on the initial
suggestion of employee William Crosby, Bratcher consult-
ed a Mr. Strohler concerning the possibility of organizing
Respondent's employees. Strohler thereafter told Bratcher
I Except wvhere otherwise indicated, all dates herein are in 1976.
National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.
As corrected in accordance with the General Counsel's unopposed
motion to correct the transcript, which motion is hereby granted. Other
errors in the transcript are not being specifically corrected because they are
minor and generally self-evident.
to arrange for an organizing meeting to be held with
Clarence Davis, a business representative of the Machin-
ists, on September 28. At the union meeting on September
28, some employees, including Bratcher, signed union
authorization cards. Then, between September 29 and
October 1, inclusive, Bratcher distributed about 20 cards
outside the plant during breaks and lunch periods and after
work. A second union meeting was held on October 1.
Thereafter, on October 4, the Union demanded recognition
and filed a representation petition, which Respondent
received around October 6.
During this period, management called a meeting or
meetings of the employees. Donald Lewis, Respondent's
vice president, testified that only one meeting was held,
and that was in September. He referred to it as a "regular"
monthly meeting. When it was pointed out that September
30 was a Thursday and the "regular" meetings were held
on the first Wednesday of each month, Lewis said that an
emergency had arisen which required some supervisors to
leave the city "and we missed our regular monthly meeting,
the following week." He provided no clarification. Al-
though Lewis testified that minutes of such employee
meetings were kept, he produced none. Superintendent
Mariano (Mike) Marchetti apparently recalled two meet-
ings, one on September 30, the other around October 7.
The employee witnesses testified concerning a meeting on
October 6. Employees Miller and Crosby referred to that
meeting as an "emergency" meeting, although, it will be
noted, it occurred on the first Wednesday of the month.
While the evidence is not entirely clear, I find that two
employee meetings were held, one on September 30 and
one on October 6.
At the September 30 meeting Lewis informed the
employees, for the first time, that Respondent was engaged
in an area wage survey, which was being accelerated and
was nearly completed. Lewis testified that he told the
employees that on or about October 15 "increases would, if
justified, be paid."
The next employee meeting called by Respondent was on
October 6. Apparently Lewis opened that meeting by
briefly discussing some safety and similar matters and
again referring to the possibility (or probability) of wage
increases in the near future. He then turned the discussion
over to Art Baum, who was identified as a newly retained
personnel consultant. Baum held up a union authorization
card and read it aloud, adding comments on each portion.
According to the uncontradicted testimony of employee
witnesses, Baum informed the employees that their cards
were "illegal" because the employees had printed their
names on the top thereon and had not "signed," or affixed
their signatures, at the bottom. Baum also said that they
needed 18 cards to bring the Union in and he did not think
they had enough. He further said that if the Union had 30
cards, Respondent would recognize it.4 Baum did not
testify and neither Lewis nor superintendent Marchetti
denied the employees' testimony concerning this meeting.
Lewis testified that the blank union card that Baum used
4 Lewis testified that at the time in question there were around 50
employees at the plant. It does not appear how many employees there might
be in an appropriate unit. The representation petition, which presumably
defined the requested unit, is not in evidence.
1048
JARVA INCORPORATED
was the only one Lewis had obtained before the meeting. It
was not explained how Baum knew that any cards had
been submitted to the Union without signatures.
Baum impressed upon the employees that signing a
union card would authorize the Union to conduct a strike
through nonemployees, i.e., "outsiders." As Bratcher testi-
fied:
Mr. Baum had a green union authorization card
and he went through the process of tellin' us that if we
had our name printed on there that we were wrong
doin' it and if we signed the card we was givin' the
union the legal right to come in and strike usin' their
men - outside men - to strike and we would be out of
work. He informed us how much work we would be out
and how much money we would lose.
After Baum finished his exposition, there was a question
and answer period. One employee asked how an employee
could get his union card back if he wanted to. Baum
replied that he should first make a request of the person to
whom he had given the executed card. If that person no
longer had the card, the signer should send a request, by
registered mail, to the Union. Such registered letter should
be prepared in duplicate, with one copy being given to
Respondent for filing in Respondent's office.
Respondent maintains that the promise and grant of the
general wage increases were pursuant to plans made and
activity initiated and underway before there was any union
activity at the plant. Around June or July, Respondent had
undertaken to make a survey of employee sentiment,
including their complaints. Additionally, an area wage
survey was undertaken. Lewis commenced work with
Respondent, as its vice president and general manager, on
September 7. Lewis testified that during his first week at
the plant, he "read the opinion survey and saw [that] wages
were above everything else, it was a big item." He
proceeded:
I analyzed the wages immediately and did observe that
in my opinion they were somewhat out of line and I felt
it was essential to take care of it.
Lewis and Marchetti testified that around September 15
Lewis informed Respondent's high-ranking supervisors
that substantial wage increases would be forthcoming and
the supervisors were at liberty to inform the employees to
that effect. But Lewis did not indicate the basis of his
prediction. Nor did he say when the area wage survey was
completed. So far as appears, no employees were informed
of the probability of wage increases until the announce-
ment by Lewis. It appears also that the owners of the
business were not informed of the proposed increases until
October 10 when Lewis discussed the matter with Respon-
dent's president, one of four owners. Within an hour, the
president approved the increases, apparently without con-
sulting the other owners.
Bratcher testified that in the course of conversations
between October 6 and 12, superintendent Marchetti stated
that there were going to be substantial raises and Marchetti
5 He testified: "Q. Did you ever say to Mr. Bratcher I know you are the
ringleader, something like that? A. No sir, I did not. Q. Not even jokingly?
A. Not evenjoking. I know better than tojoke about the union."
believed that because of those raises the employees would
be unable to get the Union in.
There was considerable testimony concerning Marchet-
ti's conduct during the first week or two of October.
Marchetti himself testified that he is very friendly with the
employees who work under him and he converses with
them throughout the working day. He apparently rides to
and from work with employee Rick Klotz. Bratcher,
corroborated by employee James J. Holloran, testified that
sometime in the first week of October, while at work,
Marchetti and Bratcher had a conversation which included
some mention of the Union. Marchetti said something to
the effect that he knew Bratcher was the instigator of the
union campaign and would probably be the head union
committeeman if the Union got into the plant. Similarly,
Bratcher, corroborated by Crosby, testified that in the
second week of October Marchetti, in the presence of six
employees, again said that Bratcher would probably be the
union committeeman and that Crosby would probably be a
union steward if the Union got in. As Crosby testified:
"Mike Marchetti said that he knew that Don Bratcher was
the leader and then he was saying that when we get in
power don't forget him." The employees generally testified
that Marchetti's statements were made jokingly.
Although Marchetti admitted that he knew generally that
there was union activity in the plant, he denied knowing
who was responsible for the campaign. And he specifically
denied having at any time referred to Bratcher, even in a
joking manner, 5 as the instigator.
Marchetti, however, was unreliable as a witness. In
connection with several significant matters he fell into
contradictory statements. For example, he testified that he
first learned of the existence of union activity at the plant
from Lewis, at a meeting in which wages and the union
activity were discussed. Later, however, Marchetti testified
that he thought he first learned of the union activity in a
private conversation with supervisor Kenneth Ashley. In
the course of denying that he had discussed the union with
any employees, Marchetti referred to employee Klotz.
Marchetti's testimony in this connection was internally
inconsistent, as follows:
Q. [D]id Mr. Klotz ever tell you he asked for his
union card back?
A. He made a mention of it but I never encouraged
him or discouraged him any way about it. I may have
mentioned it.
JUDGE KLEIN: What did you answer Mr. Klotz when
he told you you that?
THE WITNESS: I said I didn't want to know nothin'
about it.
JUDGE KLEIN: Well, what did he say to you?
THE WITNESS: He just said that they had no union
cards and he hadn't signed a card or anything, well, this
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was after Mr. Art Baum discussed the card business
and we talked about the cards. Other than that,
nothing.
Klotz could not have said that he had asked the Union to
return his card and also that "he hadn't signed a card or
anything."
Marchetti testified that "several questions were asked by
several of the employees about the union." He added: "I
just told them that I was a member of a union and my
opinions of the union are kept to myself and I just never
elaborated on that." He also testified that he had been a
member of the Machinists Union from 1949 until 1970.
After the employee meeting of October 6, several
employees congregated in Respondent's parking lot where
they were seeking information from employee James
Miller, who had been a union member for sometime.
Marchetti to board his car and drive home with employee
Klotz. Employees Crosby and Bratcher called over to
Marchetti, who was about 30 to 50 feet away, and asked,
apparently jokingly, if Marchetti wanted to sign a union
card. Crosby testified that Marchetti said "he might want
to fill out a card," whereupon Crosby walked over and
asked Marchetti what he thought about the Union. Ac-
cording to Crosby, Marchetti said "it sounds like a good
idea" but then, after a pause, said "I know where my bread
and butter comes from."
Employee Holloran in substance corroborated Crosby's
testimony. According to Holloran, Bratcher and somebody
else called out asking Marchetti if he wanted to sign a
union card, to which Marchetti replied: "no, I know what
side of the fence I [have] to stay on." Although Marchetti
denied having made any reply when he was asked if he
wanted to sign a card, I credit the employees' testimony. 6
As promised, wage increases were granted around the
middle of October. Some employees received one-step
increases of about 45 or 50 cents per hour; others were
granted up to $1 per hour, in two steps. There is no
evidence of any past practice concerning wage increases.
Lewis testified that before the increases were granted each
employee's work and situation were reviewed. However, no
specifics were cited and there is no evidence how the
amounts of the raises were determined.
2. Discussion and conclusions
a. Wage increases
Apparently acting under a misconception that the com-
plaint did not allege independent violations of Section
8(a)(l), in its brief Respondent does not address the 8(aX)(l)
allegations, which are contained in the complaint in Case
8-CA- 10507. 7
Lewis testified that on September 30, with knowledge
that there was union activity at the plant, he, for the first
time, told the employees that general wage increases would
be announced by October 15. There is no suggestion that
the announcement followed any established past practice.
6 In this connection, it may be noted that Rick Klotz, who was with
Marchetti at the time, did not testify.
I Respondent's brief says: "The Company contends that there is
insufficient evidence upon which to base findings of any independent 8(aXl)
And, according to Lewis, the employees were notified even
before the owners of Respondent were consulted.
The promise and/or grant of wage increases at the
beginning of a union organizing campaign is presumed to
have been made to discourage employee support of and
adherence to the union, and thus violate Section 8(aXl) of
the Act. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405
(1964); D'Youville Manor, Lowell, Massachusetts, Inc., 217
NLRB 173, 178 (1975), enfd. 526 F.2d 3, 5 (C.A. 1, 1975).
The absence of evidence directly connecting Respon-
dent's conduct with the inception of the union organiza-
tional campaign is not decisive. As said in Texas Transport
& Terminal Co., Inc., 187 NLRB 466, 468 (1970):
In our experience, an employer rarely couples a wage
increase intended to affect employee desires during an
organizational campaign with an explicit avowal of
such purpose. The absence of such a statement does not
make the announcement lawful, however. [Citations
omitted.] Employees are well able to understand the
purpose of well-timed grants of benefits without being
told by their grantor that the increases are intended to
dissuade them from unionization ....
Even Chairman Miller's dissent in Texas Transport recog-
nizes the probative weight to be ascribed to the element of
timing. It says (at 471):
[W]hile . . . timing may reasonably create a doubt as
to motivation, it does not ... standing alone, demon-
strate an "express purpose of impinging upon [the
employees'] freedom of choice...." [W]hen General
Counsel introduced proof of the timing, the burden
shifted to the Respondent to show affirmatively a
business justification which, absent such suspicious
timing, it would not have been required to make ...
To the same effect, see, e.g. Rupp Industries, Inc., 217
NLRB 385 (1975); Colonial Haven Nursing Home, Inc., 218
NLRB 1007 (1975), enfd. in pertinent part 542 F.2d 691,
700 (C.A. 7, 1976).
To rebut the General Counsel's prima facie showing of
violation, Respondent presented only Lewis' testimony
that an area wage survey was initiated before the advent of
the Union and Lewis concluded that Respondent's wages
were "somewhat" out of line with those of other employees
in the area. Respondent did not produce the survey and
Lewis provided no information beyond the vague conclu-
sion quoted. Even his unsupported conclusion that Re-
spondent's wage rates were "somewhat" out of line would
not support the admittedly substantial increases granted.
That Lewis constituted "new management" at the plant
and sought to meet previously expressed employee com-
plaints does not adequately explain the increases. See Rupp
Industries, Inc., supra. Nor are the precipitous announce-
ment and grant of the increases adequately explained by
the fact that a wage survey may have been initiated before
the union campaign began. As the General Counsel argues:
violations. In this connection, since Company counsel consistently does not
fully litigate matters not encompassed in the allegations of the complaint,
the Company objects to any findings not based on specific allegations
contained in the complaint."
1050
JARVA INCORPORATED
"It is well settled that a wage increase plan that is either
conceived or accelerated for the purpose of counteracting a
union organizing campaign violates Section 8(a)(1) of the
Act."A & P Tea Co., 162 NLRB 1182, 1185(1967). See also
Phillips Industries, Incorporated, 172 NLRB 2119 (1968),
enfd. sub nom. Harry Clarke, President of Western Carolina
Industries, Inc., v. N.L.R.B., 410 F.2d 756 (C.A. 4, 1969).
The most significant fact in this case is the speed with
which the announcement of projected wage increases was
made-i.e., at an "emergency," special meeting within 2
days after the first union meeting and before the wage
survey was completed. Thus, the announcement was made
before it could be said how much, if any, increase was
required. And, most significantly, substantial wage in-
creases were promised before Respondent's owners were
consulted.
On all the evidence, I find and conclude that, as alleged,
Respondent violated Section 8(aX I) of the Act when, on or
about September 30, Lewis advised the employees that
wage increases would become effective by October 15 and
again when the increases were put into effect.
It is also found that, as alleged, Respondent further
violated the Act when, on two occasions early in October,
Marchetti referred to, and in effect reaffirmed, Lewis'
announcement. Marchetti's statements to Bratcher were
particularly coercive when seen in conjunction with his
statement that he believed the substantial wage increases
would make it impossible for the union to get into the
plant.
b. Surveillance
As stated above, it is undisputed that, at an employee
meeting on October 6, in answer to an employee's question,
personnel consultant Art Baum advised employees that, in
order to retrieve union authorization cards submitted to
the Union, employees should send registered letters to the
Union and give Respondent copies thereof. The complaint
alleges that by this conduct Respondent "attempted to
ascertain the identity of union adherents." In his brief, the
General Counsel argues: "The employee is apt to feel
coerced into requesting the return of his authorization card
because of the fear that the employer will assume and/or
conclude that the employee is pro-union unless a copy of
the withdrawal letter is submitted to the front office" and
the conduct, therefore, is "akin to" unlawful interrogation
or surveillance.
It is not entirely true that an employee's failure to give
Respondent a copy of a request for return of an authoriza-
tion card would lead Respondent to believe the employer
was prounion; absence of such a letter might well be taken
as meaning that the employee had not signed a card.
However, so far as appears, Baum did not give the
employees any reason why the employer should be given
copies of any such letters. Nor was any reason advanced at
s Even if Baum had not at least impliedly misstated the law, his conduct
would probably be violative of the Act, as the General Counsel contends.
See City Supply Corporation, 217 NLRB 950, 953 (1975), cited by the
General Counsel.
9 The Court of Appeals for the Seventh Circuit has rejected the Board's
broad rule, saying: "To establish surveillance or to create the impression of
surveillance as unfair labor practices requires more than showing that the
the hearing. An employee's relationship to a union during
an organizing campaign is, generally speaking, of no
legitimate concern to the employer. Respondent had no
legal right to ask what employees, if any, had submitted
cards and then changed their minds. Respondent's seeking
to learn about defections from support of the Union would
have the natural tendency to restrain the employees in
exercising free choice. Baum was introduced as a personnel
expert. Employees would naturally tend to take his state-
ments as representing the law. By suggesting to them that
retrieval of executed union cards required registered letters,
with copies to Respondent, Baum clearly exceeded the
permissible bounds of free speech in answering an employ-
ee's question.8
According to credited employee testimony, on two
occasions early in October Marchetti revealed his knowl-
edge that Bratcher and Crosby had instigated the orga-
nizing campaign. The Board has frequently held that such
statements unlawfully create the impression that employ-
ees' union activities are being kept under surveillance. See,
e.g., Carrollton Standard Printing Co., 209 NLRB 540
(1974), and Commerce Concrete Company, Inc., 197 NLRB
658, 659 (1972), cited by the General Counsel. 9 Coercive
conduct by supervisors is none the less coercive when
committed in a joking manner by a friendly supervisor.
Monarch Foundry Company, 106 NLRB 377 (1953). Indeed
such conduct committed by a friendly supervisor "can
carry a greater aura of reliability and truthfulness" than
when committed by a hostile supervisor. Hedstrom Compa-
ny, a subsidiary of Brown Group, Inc., 223 NLRB 1409
(1976). The employees here might well construe Marchet-
ti's remarks as well-intentioned advice, given on the basis
of his knowledge of management's views.
Accordingly, on all the evidence, I find and conclude
that Respondent unlawfully created the impression of
surveillance and thus violated Section 8(aX)() when Mar-
chetti identified Bratcher as the instigator of the union
campaign and predicted that Bratcher and Crosby would
hold union positions if the Union became collective-bar-
gaining representative at Respondent's plant.
B. Section 8(a)(3)
1. Donald Bratcher
a. Bratcher's employee status
Respondent maintains that Bratcher's discharge could
not be violative of the Act because he was a supervisor.
The evidence, however, does not support Respondent's
contention.
Bratcher was hired by Respondent in October 1972. For
about 2 years he served as supervisor on the second (night)
shift. Then, at his request, he was transferred to the first
(day) shift, where he worked as the hydraulics man. At
Respondent's expense, he successfully completed a course
employer knows who started the union." N. LR.B. v. Marlan One-Way
Clutch Co., Inc., 520 F.2d 856. 865 (1975), reversing in pertinent part 200
NLRB 316 (1972), also cited by the General Counsel. To the extent that the
Board's positions may differ from the court's, I am bound by Board
decisions. Ford Motor Company. (Chicago Stamping Planl), 230 NLRB 716
(1977), fn. 2; Iowa Beef Packers, Inc., 144 NLRB 615,. 616 (1963).
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of instruction at a training center for industrial hydraulic
technology. Also, on his own, Bratcher took another course
in hydraulics at a public high school. For about 4 months
he worked at hydraulics entirely alone. Thereafter, early in
August 1975, new employee Martin Hostettler was as-
signed to assist Bratcher. Then, about 3 or 4 months later,
Hostettler was transferred to welding and thereafter assis-
ted Bratcher on hydraulics only part time, averaging
around 2 days per week.
While working at hydraulics, Hostettler performed only
the specific acts directed by Bratcher. The uncontradicted
testimony of Bratcher and Hostettler' 0 establishes that
Bratcher's instructions to Hostettler concerned purely
routine matters in the performance of the work. For
example, Hostettler described Bratcher's directions as
follows: "If we are finishing up with one job he'd tell me to
go get things ready for the next job, parts made up and so
on." Bratcher got his assignments from Ashley. Bratcher
testified that his instructions to Hostettler were simply
those of an experienced worker to a neophyte, and were
designed only to help Bratcher in doing the work. There is
no evidence that Bratcher had any personnel authority
such as hiring, firing, disciplining, compensating, or trans-
ferring Hostettler or any other employee. Lewis testified
that he did not consult Bratcher when Hostettler's perfor-
mance was reviewed in connection with the October wage
increase.
Lewis testified that Bratcher's personnel file described
him as a supervisor. However, the relevant documents were
not produced. Lewis' testimony indicates that the "supervi-
sor" description was noted when Bratcher was hired as a
supervisor on the night shift and simply was not changed
when he was transferred to hydraulics work on the day
shift." In any event, Respondent's conferring the title of
"supervisor" would not be decisive. Golden West Broadcast-
ers-KTLA, 215 NLRB 760, 762 (1974), fn. 4; Tennessee
Leather Products, Inc., 200 NLRB 495, 497-498 (1972).
Respondent also relies on a purported acknowledgment by
Hostettler that Bratcher had the "right" to recommend
Hostettler for promotion?. The fact is that any "acknowl-
edgment" by Hostettler of Bratcher's supposed authority
was made in answer to leading questions put to him when
he was called into the office and questioned by Lewis just
the day before the present hearing. Neither Lewis' self-
serving discussion with Hostettler the day before the
hearing nor his testimony concerning Bratcher's personnel
file constitutes substantial probative evidence that Bratcher
had or exercised any supervisory authority over any
employees when he worked at hydraulics on the first shift.
On all the evidence, it found that Bratcher's direction of
Hostettler's work in hydraulics was simply the routine type
of instruction given by an experienced employee to an
10 Ashley, superintendent of assembly, who assigned Hostettler to work
with Bratcher and later transferred him to welding, did not testify.
Marchetti, Bratcher's immediate superior, was not questioned concerning
Bratcher's job responsibilities.
"I Lewis' testimony was: "Q. (By Mr. Baasten): You indicated that you
reviewed Mr. Bratcher's personnel file and that the file indicated he was a
supervisor on the night shift; what did that indicate about his transfer to the
first shift? A. It still indicated he was a supervisor."
12 Respondent refers to Hostettler's testimony on cross-examination,
which reads in part: "Q. [Dbo you recall a meeting with Mr. Don Lewis
when he asked you this very question, did Mr. Bratcher have the right to
inexperienced coworker. Golden West Broadcasters-KTLA,
supra;' Tennessee Leather Products, Inc., supra. Bratcher
neither had nor exercised any supervisory authority within
the statutory definition. Evans Orchard Supply Company,
166 NLRB 243, 248 (1967); Reeves-Wiedernan Company,
203 NLRB 850, 854 (1973).
b. The discharge
As previously set forth, Bratcher initiated the union
organizing campaign and arranged the original union
meeting. At that meeting he executed an authorization card
and thereafter distributed about 20 cards just outside the
plant. As previously found, early in October Marchetti
revealed that he knew of Bratcher's role as the instigator of
the campaign. Baum's statements at the employee meeting
called by Lewis on October 6 clearly establish Respon-
dent's opposition to unionization. It is against this back-
ground of company knowledge and opposition to unioniza-
tion that Bratcher's termination on October 12 must be
viewed.
On October 12 Bratcher was called to the office, where
Lewis informed him that he was being transferred to the
position of "assistant supervisor" on the second shift.
Bratcher said that he had previously had unpleasant
encounters with the second shift supervisor and believed
that the two men could not get along together. At that
point Lewis said that if Bratcher declined the second shift
transfer, "they had no further use for [him] in the shop."
Bratcher asked if that meant he was being fired, and Lewis
answered in the affirmative. 13 Lewis also testified that
Bratcher refused the transfer to the second shift because of
his previous difficulties with the second shift supervisor.
However, Lewis further testified that Bratcher said: "I
don't want to be a supervisor, I want to be a hydraulics
man."
As indicated above, Lewis maintained that, as a hydrau-
lics man on the first shift, Bratcher was a supervisor and
was so considered by management. However, Lewis further
contended that the transfer from day shift hydraulics work
to the position of assistant supervisor on the second shift
was dictated by Lewis' newly established policy that
anybody who has once been a supervisor must remain in a
supervisory position. These two contentions are obviously
inconsistent; if Lewis had really believed that Bratcher was
a supervisor on the day shift, there would have been no
need to transfer him under the "new" policy. When this
inconsistency was called to Lewis' attention, he shifted his
ground somewhat, stating that Bratcher would exercise
"more overall supervision on nights" and Respondent
would benefit by having Bratcher's "hydraulic capabilities"
on the night shift, with Hostettler on days. Lewis did not
recommend you for a raise or a promotion?. . . A. He asked me if I knew
Don's authority to direct me and tell me what to do with a certain job and I
answered yes. .... He did ask me if I knew who was the supervisor on the
night shift and I answered yes. . . . Q. Did he ask you any questions about
the raise or promotions?. .. .Whether Mr. Bratcher had that right? A. Yes.
Q. And, what was your answer? You answered yes, you knew he had the
right to recommend you for promotion? Right? A. No, I said yes to the fact
that I understood the question. I did say that I knew he had the right."
13 Although Lewis first indicated that he believed Bratcher had quit, that
contention was not pursued. Respondent apparently concedes that Bratcher
was discharged.
1052
JARVA INCORPORATED
undertake to explain the twofold need for Bratcher's
services on the night shift. Before being transferred to
hydraulics, Bratcher had been the only supervisor on the
night shift. And, as far as appears, the supervisor at that
time had been able to direct the night shift by himself.
Lewis did not indicate that circumstances had so changed
as to require additional supervision on the night shift. And
at the time of the hearing there was only one supervisor on
the night shift. After Bratcher was terminated, Hostettler
was returned from welding to hydraulics and another
person was hired to assist him. Ashley and Plant Manager
Jack Takahp spent more time observing Hostettler than
they had while Bratcher was on hydraulics. There is no
evidence that anyone was hired to do hydraulics work on
the night shift.
There is no suggestion that Bratcher's work was unsatis-
factory. On the face of it, it is strange that Respondent,
needing a worker experienced and knowledgeable in
hydraulics, would discharge Bratcher for refusing to take a
position as assistant supervisor on the night shift, a position
lower than the one he had held before being trained in
hydraulics. It is most improbable that Respondent would
take such drastic, apparently self-defeating action in order
to vindicate a claimed new policy, which, so far as appears,
had not previously been announced, either in writing or
orally, and which has since been violated or ignored in
several instances, e.g., by having former Foremen Ed
Rybek and Dominic Marchetti work as nonsupervisory
fitters.
Il its brief Respondent argues:
The facts clearly negate an argument that the
Company seized upon the plan of re-transferring
Bratcher in an attempt to rid itself of a pro-union
adherent. Because Bratcher refused to work under the
second shift foreman it would not have been necessary
for the Company to have classified the assistant
foreman as supervisory. If the re-transfer were pretextu-
al the Company could have merely taken the position
that it needed Bratcher's hydraulic experience on the
second shift, a transfer which the Company clearly had
the right to do.
Implicit in this argument is Respondent's prior knowledge
that Bratcher would refuse a transfer to the night shift. But
Respondent obviously could not be sure of Bratcher's
refusal of a nonsupervisory job in hydraulics on the second
shift. Lewis himself quoted Bratcher as saying he wanted to
do hydraulics work and did not want to be a supervisor. If
Respondent had offered, and Bratcher had accepted, a
nonsupervisory job on the night shift, he presumably would
have remained in the bargaining unit and free to continue
his union activity and support. Thus, it was only by
offering him a supervisory position that Respondent could
be sure of eliminating Bratcher as a member of the
bargaining unit and as a union sponsor.
The timing of the termination, within 2 weeks after
Bratcher initiated the organizing campaign and about a
week after the Union demanded recognition and filed a
14 In addition, while there was no specific, direct evidence to this effect, it
is certainly reasonable to assume that Respondent knew of Miller's prior
representation petition, leads to an inference that the
termination was discriminatorily motivated. See, e.g.,
N. LR.B. v. Fre'nont Manufacturing Co., 558 F.2d 889 (C.A.
8, 1977):
The abrupt discharge of a known union organizer
shortly after the initiation of a union organization
campaign supports an inference of discrimination.
[citations omitted] The Board could reasonably infer
that [Respondent ] had knowledge of [Bratcher's ] union
activity and that it discharged [him] because of that
activity ...
Where, as here, Respondent's claimed reason for its
action cannot withstand scrutiny because of inconsisten-
cies and inherent implausibility and is unsupported by any
evidence other than general and conclusionary testimony,
the inference of discriminatory motivation is strengthened.
And that inference is reinforced by the contemporaneous
commission of additional unfair labor practices.
On all the evidence, I find and conclude that, as alleged,
Respondent discriminatorily terminated the employment
of Bratcher in order to discourage union membership, in
contravention of Section 8(a)(3) and (I) of the Act.
2. James Miller
James Miller was hired by Respondent as an inspector
on February 24. He had previously worked at Warner and
Swazey, where he was a union steward.
On October I he signed a union authorization card
during his lunch hour at Respondent's plant. That evening
he attended a union meeting, at which he disclosed that he
had been a member of the Union for 5 years. Because of
his prior union experience, Respondent's employees asked
him numerous questions at the plant during lunch breaks.
Miller testified that chief inspector Art Carlson, an admit-
ted supervisor, was present several times when Miller
answered employee questions concerning the Union. Miller
also testified that on October 7, right after Carlson had
been present when Miller answered employee questions,
Carlson told Miller that he (Miller) "was too interested in
what was going on in the shop." Carlson declined to
expatiate when Miller asked him what he meant.
As set forth above, after the October 6 meeting, in which
personnel consultant Baum addressed the employees,
Marchetti appeared on the parking lot when Miller was
discussing with several employees the proper method of
executing union authorization cards.
In its brief, Respondent expressly "does not contest the
issue of Company knowledge but does strongly contest the
unwarranted speculation that the Company somehow
considered Miller more pro-union than any other employee
who had signed a union card." Despite Marchetti's denial,
on the basis of employee testimony, I find Marchetti knew
of Miller's role in counselling employees concerning the
Union. Carlson was also aware of Miller's activity.14 In this
connection, Respondent's failure to call Carlson as a
witness is significant.
employment and. as is usual within industries, knew that Warner and
Swazey, Miller's former employer, was unionized.
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller was discharged on October 14. The reason given
him for the discharge was his failure, as an inspector, to
catch an error in a template made by another employee on
September 25. According to Lewis, the error cost the
company something around $2,100, although this figure
was not supported by either documentary or verbal
testimony as to details. The employee who actually made
the faulty template was not reprimanded or disciplined in
any way.
At the hearing Lewis maintained that when the faulty
template was called to his attention he directed that other
work inspected by Miller be examined and that such
examination disclosed nine additional inspection errors
made by Miller. Lewis did not explain why the one error
led him to review Miller's other work. Nor was Lewis
specific as to the other alleged errors. And the fitter who,
according to Lewis, made the further examination did not
testify. The alleged additional errors were not mentioned to
Miller when he was discharged. Lewis' explanation of his
failure to mention the alleged additional errors was
unconvincing:
I think you can cloud the issue if you have to write
up why he was discharged and the document, the more
you put on that the more it gets confused.
This testimony certainly does not explain why Miller was
never told of the alleged nine additional errors.
Lewis also testified that Art Carlson, Miller's supervisor,
complained bitterly of Miller's lack of cooperation. Ac-
cording to Lewis, Carlson said that Miller would work at
an assigned chore only "when he felt like working on it
rather than fulltime" and that Miller was "unmanageable"
so that Carlson "could not have a man such as [Miller]
being an inspector." In addition to his discharge, it is
significant that, as stated above, Carlson did not restify.
Also noteworthy is the fact that in July Carlson had
obtained for Miller a wage increase larger than those
received by some other employees. However, Carlson was
not consulted about Miller in connection with the review
which Lewis said preceded the October raises.
Lewis made the conclusory statement that: "What Mr.
Miller did . . . here was serious enough to warrant the
harsh measures that I took." However, at other points
Lewis conceded that discharge was unwarranted. For
example, he testified: "If we had of had a reprimand
procedure I may have done that differently but since we
did not have one, I just had to do as I felt best." As the new
general manager, Lewis was under no restrictions as to
discipline. As he himself testified:
I felt when I arrived on the scene it was a whole new ball
game. As a matter of fact before I could perform my job I
decided I could not dig skeletons out of the closet the rest
of my life, I had to dig in and find out where the
weaknesses occured and correct the situations as well as I
could.
Yet Lewis did "dig skeletons out of the closet" by initiating
an investigation of other work performed by Miller,
although there was no apparent reason for doubting his
prior performance. And then the exhumed "skeletons"
were adduced to support a discharge said to be based solely
on one error.
As the General Counsel contends, the timing of the
discharge is most significant. Miller's error was made on
September 25, before the union campaign began. Nothing
was said about the matter at that time. Indeed, nothing was
said at any time until Miller was summarily discharged on
October 14, 2 days after Bratcher was terminated and after
Respondent, through Marchetti and Carlson, had become
aware of Miller's advising other employees concerning
union matters.
The evidence also establishes that Miller was the victim
of disparate treatment. Employee Rick Klotz had twice
caused accidents resulting in financial loss to the company,
yet he received no discipline. Lewis testified that one of
Klotz' mishaps "was considered an accident," occurring
without fault of the employee. Lewis did not know about
the other Klotz misadventure. But no investigation was
made and nothing was said to Klotz. The readily apparent
explanation for the difference in the handling of the Klotz
and Miller mishaps lies in the fact that Miller was a union
supporter, whereas Klotz made his antiunion position
known to Marchetti.
The evidence as a whole leaves no doubt that Miller's
union membership and his role in the organizing campaign
were controlling factors in his discharge and that his failing
to note an erroneous template made by another employee
was used as pretext for the discriminatory discharge. The
major factors leading to this conclusion are the timing of
the discharge, the post facto multiplication of alleged
grounds, the disparate treatment of Miller vis-a-vis Klotz
and the severity of the penalty in the absence of any prior
criticism and in the face of a recent substantial wage
increase. Again, as in the case of Bratcher, the inference of
unlawful motivation on the part of Respondent is strength-
ened by the commission of other unfair labor practices, as
heretofore found. Accordingly, it is concluded that, as
alleged, Respondent discriminatorily discharged Miller to
discourage union membership, in violation of Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Jarva Incorporated, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. District Lodge 54 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By promising and then granting wage increases for
the purpose of influencing employees not to support the
Union, Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
4. By advising employees to submit to Respondent
copies of registered letters seeking return of authorization
cards submitted to the Union, Respondent engaged in
unlawful interrogation and/or surveillance of union activi-
ties, in contravention of Section 8(a)(1) of the Act.
5. By indicating its awareness that employees Bratcher
and Crosby were active sponsors of the union campaign,
1054
JARVA INCORPORATED
Respondent created the impression of surveillance of union
activities, in violation of Section 8(a)( ) of the Act.
6. By discharging employees Donald Bratcher and
James Miller in order to discourage union membership,
and by failing and refusing to reinstate said employees,
Respondent has engaged in unlawful discrimination in
violation of Section 8(a)(3) and (I) of the Act.
7. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on interstate commerce,
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action necessary to effectuate the purposes of
the Act. Since Respondent's conduct strikes at the heart of
the Act, I shall recommend issuance of a broad cease and
desist order, as is customary in such cases. Further, having
found that Respondent unlawfully discharged employees
Bratcher and Miller, I shall recommend that Respondent
be required to offer them immediate and full reinstatement
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without loss of
seniority or other rights and privileges, and to make them
whole for any loss of earnings suffered by them by reason
of the discrimination against them, backpay and interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).15
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 16
The Respondent, Jarva Incorporated, Solon, Ohio, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Announcing or granting wage increases for the
purpose of influencing employees not to support District
Lodge 54 of the International Association of Machinists
and Aerospace Workers, AFL-CIO or any other labor
15 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
'" 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.
organization; provided, however, that nothing herein, shall
be construed as requiring Respondent to vary or abandon
any economic benefit heretofore established.
(b) Coercively interrogating employees concerning union
activities and sentiments, or conducting surveillance of
such activities, or creating the impression that such
activities are under surveillance.
(c) Discharging or otherwise discriminating against any
employee in order to discourage membership in or support
for the aforesaid Union or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Donald Bratcher and James Miller immedi-
ate reinstatement to their former jobs or, if such positions
no longer exist, to substantially equivalent jobs, without
loss of seniority or other rights and privileges, and make
said employees whole for any loss of earnings suffered by
them as a result of the discrimination against them, in the
manner prescribed in the 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 payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(c) Post at its office and plant in Solon, Ohio, copies of
the attached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by its representative, shall
be posted by Respondent immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
i" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading, "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1055