Justrite Mfg., Co.

National Labor Relations Board - Board Decisions

Sep 8, 1978

238 N.L.R.B. 57 (N.L.R.B. 1978)

JUSTRITE MANUFACTURING CO.
Justrite Manufacturing Co. and United Steelworkers
of America AFL-CIO, Local Union No. 8390 and
United Steelworkers of America AFL-CIO-CLC,
District No. 34. Cases 14-CA-10670 and 14-CA
10675
September 8, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On March 28, 1978, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions, a brief in support of its cross-excep-
tions, and an opposition to General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Justrite Manufacturing
Co., Mattoon, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
not found herein.
r General Counsel has excepted to certain c edibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all ot the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBI.EY, Administrative Law Judge: A hearing
was held in this case on November 9 and 10, 1977. at
Charleston, Illinois, pursuant to a charge, in Case 14 CA
10670, filed by United Steelworkers of America. AFL CIO,
Local Union No. 8390, herein sometimes called Local 8390,
on September 1, 1977, and served by registered mail on
Respondent on or about the same date: a charge. in Case
14-CA-10675. which was filed by United Steelworkers of
America, AFL CIO-CLC, District No. 34, herein some-
times called District 34. on September 2. 1977. and served
by registered mail on Respondent on or about the same
date: and on an order consolidating cases. complaint, and
notice of hearing issued by the Regional Director for Re-
gion 14 on October 1. 1977. which was also duly served on
Respondent. The complaint alleges that Respondent, at
various times during August 1977, violated Section 8(a)(l)
of the Act by threatening its employees with reprisals.
promising them benefits, interrogating them, etc.. in an ef-
fort to persuade employees to decertify the Union and that.
on August 26, 1977. Respondent violated Section 8(a)(l)
and (3) of the Act, by discharging employees Jean Runner.
Deborah Thomas. and Jerry Zike. for the purpose of dis-
couraging their union membership or activities and/or be-
cause they refused to sign a petition to decertify the Union,
In its answer to the complaint and in its amended answer toi
the complaint, both of which were likewise dulx served.
Respondent has denied the commission ot any unftir labor
practices.
For reasons which appear hereinafter, I find and con-
clude that Respondent has violated the Act essentially as
alleged in the complaint.
At the hearing all parties were represented bh counsel.
The parties were given full opportunity to examine and
cross-examine witnesses, to introduce evidence. and to file
briefs. At the conclusion of the hearing each party waived
the opportunity to present oral argument. Briefs have sub-
sequently been received from all parties and have been con-
sidered.
Upon the entire record' in this case including the briefs
and from mv observation of the witnesses, I make the tfol-
lowing:
FINI)ING(S ()- FA( I
I. THE BUSINESS Of RESPONDENI
Respondent is, and has been at all times material herein.
a corporation duly authorized to do business under the laws
of the State of Illinois.
At all times material herein. Respondent has maintained
its principal office and place of business at Daily Industrial
Drive, West Route 121, in the city of Mattoon, and State of
Illinois. Respondent is. and has been at all times material
herein, engaged in the manufacture, sale, and distribution
of safety containers, flashlights, carbide lamps. and related
products. Respondent's place of business located at Dail1
' Errors in the transcript have been noted and corrected
Pursuant to arrangements made at the heanng a stipulation has been re-
ceived from all parties with Resp Exhs. 15 and 16 attached thereto The
stipulation also includes a Resp. Exh. 17, for which no such arrangements
had been made. However, inasmuch as "17" was included with the stipula-
tion, I have received it into evidence along with Resp. Exhs. 15 and 16 and
the stipulation I have placed all three of these latest Respondent's exhibits
along with the stipulation in Respondent's official exhibit file.
Having satisfied the pertinent arrangements made on the record in this
regard, the record is herebs closed
238 NLRB No. 11
57
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Drive, West Route 121, Mattoon, Illinois, is the
only facility involved in this proceeding.
During the year ending December 31, 1976. which period
is representative of its operations during all times material
herein, Respondent, in the course and conduct of its busi-
ness operations, manufactured, sold, and distributed at its
Mattoon. Illinois, place of business products valued in ex-
cess of $50,000. of which products valued in excess of
$50,000 were shipped from said place of business directly to
points located outside of the State of Illinois.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
I1I. 11i1 I.ABOR O)R(;ANIZAiIONS INVO)I I)!
Local 8390 and District 34 are, and have been at all times
material herein, labor organizations within the meaning of
Section 2t5) of the Act.
ii. 1til Al.lI (;I) UINFAIR IL.AIOR PRA( TI( iS
A. Respondett s Relevant Hierarctiv
At all times material herein, the persons named below
occupied the positions set opposite their respective names
and have been and are now supervisors of the Respondent
within the meaning of Section 2(11) of the Act and its
agents:
Edward HI. Witt
Steve MacGregor
Pete Yokley
Al Tanner
Vice Pres. and General
Mgr.
Plant Superintendent
Foreman
Foreman
B. Background
Since at least December 1, 1974, the Respondent has rec-
ognized the United Steelworkers of' America and its Local
Union (apparently Local 8390) pursuant to a collective-bar-
gaining agreement styled "Labor-Management Agreement,
Justrite Manufacturing ('orporation, Mattoon, Illinois, and
the United Steelworkers of America, AFL-CIO, District
No. 34." This agreement was due to expire by its terms on
November 30, 1977, if automatic renewal was forestalled by
notice of termination (more than 60 days prior to the latter
date) by either party to the agreement. The agreement cov-
ered a unit of the Respondent's full-time production and
maintenance employees at Mattoon, Illinois, but excluded
office clerical employees, salary employees, professional
employees, guards and supervisors as defined in the Na-
tional Labor Relations Act.
Hereinafter the United Steelworkers of America, District
34 and Local 8390 will be referred to, collectively, simply as
the Union.
During the week of August 22. 1977, an informal petition
was circulated among unit employees to decertify the
Union. The complaint alleges a number of incidents
(claimed 8(a)(I) violations) during that same week wherein
various supervisors spoke to unit employees in an effort to
have the employees sign the petition. Three who refused to
sign or who removed their names after signing were Jerry
Zike, Jean Runner, and Deborah Thomas, who were dis-
charged on August 26, 1977. and have not been reinstated.
Their discharges are alleged as violations of Section 8(a)( 1)
and (3).
The charges herein were filed, as noted, on September I
and 2. 1977.
The informal petition continued to he circulated in early
September. Ihe informal petition was followed, eventually,
by a formal petition to decertify the Union in the Respon-
dent's production and maintenance unit. The formal decer-
tification petition, Case 14 RD-593, was filed by Margaret
Sparling, a unit employee, on September 15, 1977 with Re-
gion 14. Case 14-RD 593 was administratively dismissed in
November 1977 by the Regional Director who, as previ-
ously mentioned. issued the complaint herein alleging as
unlawful, inter ahia, various acts of supervisors whereby
they purportedly assisted in the circulation of the informal
petition.'
Hereinafter, unless otherwise noted, when I speak of the
petition or the decertification petition I am referring to the
informal petition and not the formal petition filed in Case
14 RD 593.
I will set forth the details of the incidents in issue later in
this Decision. TIhe testimony as to most of these incidents-
which involves some 21 separate alleged violations of the
Act- is in sharp conflict. Hlowever, based on a careful ex-
amination of' the conflicting testimony, I have determined
generally to credit the General Counsel's witnesses. Accord-
ingly, and in order to avoid a lengthy recitation of the con-
tradictory versions of most of the central events herein, I
shall treat with the credibility of each witness and then pro-
ceed to deal directly with the 8(a)(1) allegations and their
surrounding circumstances (two of wshich precede the circu-
lation of the decertification petition and all of which are
alleged in the complaint in chronological sequence). I will
conclude my findings by treating with the three discharges.
C. ('redihitlit
I. The General Counsel's witnesses
Connie Weber: Weber. an employee, struck me as testify-
ing in a straightforward manner and to the best of her abil-
ity. She testified about one incident where MacGregor in-
formed her that, as a probationary, she could sign the
decertification petition. She further testified, and MacGre-
gor denied, that MacGregor told her that by signing the
decertification petition an employee would be assured of
continued employment. While her versions of what Mac-
Gregor said vary and are also different from that of Run-
ner, who was also present when MacGregor spoke, each
testified that he told them that signing the decertification
petition would have a favorable effect on being retained as
Respondent's employees. In crediting Weber, I rely not
only on her sincerity but on the fact that MacGregor, ad-
21 take administrative notice of Case 14 RD 593 and its disposition pur-
suant to the request of Respondent in its brief to me. I advised the parties
that I would take such administrative notice in my order, previously referred
to, issued on March 1, 1978, unless cause was shown why I should not do so.
No party demonstrated cause why this should not be done.
JUSrRITE NP\NIANf A(C'I]IING C(O
mittedly. sought out her and Runner to tell them that pro-
bationary employees could sign the petition-an obvious
effort by him to get them, as probationaries. to do just that.
I also rely upon the fact that Weber is still employed by
Respondent.'
Michelle MacBride: MacBride, another employee, also
struck me as a sincere witness who testified readily and
candidly. Respondent attacks her credibility on the basis
that at least one conversation between her and MacGregor
at the plant, about which MacBride testified, could not
have occurred at the time MacBride stated because Mac-
Gregor was then on vacation. I reject the attack. Mac-
Bride's full testimony-that the conversation occurred no
more than 3 weeks before the circulation of the decertifica-
tion petition -would place the conversation (if in the third
prior week) in a time frame before MacGregor went on
vacation. Respondent, also contends that MacBride is bi-
ased against MacGregor because the latter during the
same week as the petition was initially circulated--hired
Brenda Walk. who had previously run off with MacBride's
former husband. I likewise reject this contention. MacGre-
gor testified that when MacBride asked him about Walk
and when MacGregor learned of the instant domestic con-
flict, MacGregor warned MacBride that if MacBride
caused any trouble with Walk, MacBride would be dis-
charged. MacBride frankly admitted this warning in her
own testimony. More significantly. MacBride is still em-
ployed,4 is newly married to a different husband. and, inso-
far as this record shows, has caused no trouble with Walk.
Dehra Schumacher: Schumacher, a former employee, was
likewise a credible and sincere witness. Respondent attacks
her credibility as being that of a former employee who quit
in pique over MacGregor's refusal to permit her time off to
get married. I disagree. The record shows that, while Mac-
Gregor refused to give her more than a couple days off for
that happy event. she quit only because she moved to a new
address after her marriage, which new location was at a
considerable distance from the plant.
Schumacher then is also a disinterested witness with no
apparent stake in the outcome of these proceedings.
I will pause at this point to comment that the central
theme of the General Counsel's whole case-the forceful
intention of MacGregor to have employees sign the decerti-
fication petition-is established. without more, on the basis
of the testimony of the foregoing highly credible witnesses.
Deborah Thomas. Thomas is an alleged discriminatee.
and I have taken her interest in the proceedings into ac-
count. However. I am satisfied that she was a credible wit-
ness. She created a very favorable impression in her demea-
nor on the stand, particularly under cross-examination.
Respondent contends she was not candid but was confused
and evasive. I disagree. The principal basis of Respondent's
attack devolves from the facts surrounding Respondent's
cause defense in respect to her discharge, that is, her tardi-
ness, two shipping errors, and 3 days' absence due to sick-
ness. She readily admitted all three of these elements of
Respondent's defense and volunteered that other shipping
errors could have been uncovered after her discharge.
IGeorgia Rug MIll. 131 NLRB 1304, 1305, fn. 2 (1961): The Coca (Oia:
Company. Foods Dirviion. 196 NLRB 892. 893. fn. 5 (1972).
Id
\While she was somewhat uncertain of the times when
these matters were called to her attention, she admitted this
uncertainit . She also readil testtified ahout the comments
made to her at such times. Further, her trestinlon( as to one
incident wherein Supervisor Yoklex told her who was in
possession of the petition iNlarg;lret Spadrling. the RI) Peti-
tioner) is supported hb the testimony of Y'tokles.
JeIan Runner. Runner is also an alleged discriminatee.
and I have taken her interest in the proceedings into ac-
count in judging her credibility, Her version of one inci-
denlt wherein an effort w as made hb, MacGregor to have
her sign the decertification petititon is at odds with certain
details of witness Weher's version of' the same incident as I
have already pointed out. hlokever. insofar as the central
point of the conversation is concerned- MacGregor's as-
surance that an employee's signature on the petition would
safeguard future employment the two versions coincide.
Further. MacGregor's testimony corroborates the other
tacts of this incident aside from the promised employment
security. While Runner falsified her employment applica-
tion (as to her age) she readily admitted this on the stand.'
I found her to be a credible witness who testified in a
straightforward manner.
Jerry Zike: Zike is the other discriminatee and therefore
has an interest in the outcome of the proceeding. I have
taken this into consideration, but I am satisfied that Zike
testified candidly and to the best of' his tabilit.
Respondent attacks his credibility on the basis that he
was "confused," that he is mentally retarded, and that his
testimony regarding the events preceding his discharge con-
flicts with the General Counsel's theory thereof. I disagree.
While Zike has an educational disability. which he ad-
mitted. Zike seemed to me to have an accurate understand-
ing of the events preceding his discharge.
Respondent's claim that Zike's testimony is inconsistent
with the General Counsel's theor 3 of his discharge is mis-
placed. 'hus. Respondent contends that since per Zike-
Zike remoed Zike's name from the decertification petition
at the suggestion of his supervisor (1Tanner), Tanner could
not have discharged Zike for this reason. However. Zike's
testinlmons. as I will later point out. indicates that Tanner
told Zike that the decision for Zike's discharge came trom
Mac(iregor. not Tulnner.5
Finall., Zike's testimony about consulting MacGregor
'There was likewise a discrepancy between Runner's affidavit and her
testimons In the affidavit Runner said that when she and Thomas were
leaving the plant on the last dty MacGregor told Thomas that Thomas was
not suitable fiar factors work. Runner testified that MacGregor gave no rea-
son 1o Thomas lor Thomas' discharge in that conversation. When confronted
with her affidavit she stuck by her testimony MacGregor corroboirated her
testimnon. He admitted that he gave Thomas no reason ftir Thomas' dis-
charge in that last colnsersation. In these circumstances, Runner's insistence
that her testimons was accurate (;is it was) on the point supports her general
credihility
' Zike also testified that when he initialls signed the decertification peti-
tion. the top part icontaining the decertification language) was typewntten.
The top part o t[his petition received in evidence was handwntten Howeser.
there were numerous staple-size holes in the original of this exhibit as I
observed at the hearing. The General Counsel conceded he maw have made
some of these staple holes He did not, however, concede that he made them
all. It is not imprhobable that a typewritten top (which would obviously be
more legible than the handwritten sersion) was stapled on when Zike signed.
Hence. I fine no adequate hasis ii) question his credibility in this regard.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before Zike removed Zike's name from the petition is, es-
sentially, confirmed by the testimony of MacGregor.
2. Respondent's witnesses
Stevwe MacGregor. MacGregor, the plant manager, was
not a very credible witness. His testimony was character-
ized by a number of significant contradictions, inconsisten-
cies, improbabilities, and conflicts with the testimony of Re-
spondent's other witnesses.
The most significant of these contradictions concerned
MacGregor's testimony in respect to his knowledge of what
the petition was about and when it first began circulating.
At one point in his testimony-where he was discussing
Zike's inquiry of him about how Zike could remove Zike's
name from the petition on Thursday, August 25, 1977'-
MacGregor stated he knew nothing about the petition (as
of that time). Later in his testimony, however, he stated he
became aware of this petition on Monday, August 22, and
called his attorneys about it at that time. In cross-examina-
tion he stated that he did not then know what kind of a
petition it was. Later on redirect he admitted that when he
called his attorney on Monday, August 22, he knew that it
was a petition "to kick the union out" that is, either "a
decert (sic) or a deauthorization." The former is, of course,
what it was.
He further testified that he then held a meeting of his
foremen at which he instructed them that on the advice of
his attorneys he was advising the foremen that they were to
keep their noses out of the petition being circulated in the
plant and that, if any questions were broached to the fore-
men by employees regarding the petition, the foremen were
to refer the inquirer to the National Labor Relations Board.
He then gave the foremen the telephone number of the
Regional Office in St. Louis. However, thereafter, he and
Foreman Yokley-contrary to this advice-took it upon
themselves to obtain answers to employee questions about
whether probationaries could sign the petition and told em-
ployees who had the petition.
In testifying about his discussion on August 22 with em-
ployee Thomas about her tardiness and his questions about
any car pool arrangements Thomas may have had, Mac-
Gregor denied hearing from Thomas that Thomas fre-
quently pooled with Zike. Yokley confirmed that Thomas
so advised MacGregor in this conversation.
MacGregor stated that he first learned Thomas had
signed the petition when it was reported to him by em-
ployee Julia Campbell that a fight had occurred in the la-
dies' room over the petition and that Thomas had crossed
her name off. Waffling in his attempts to explain why he did
not investigate this fight (fighting is a discharge offense un-
der Respondent's rules of conduct) MacGregor said the
fight was between two women and he could not take action
since it would have been one person's word against another.
I note that later he stated he did not know how many em-
ployees were involved in this reported altercation.
I feel constrained further to note that his comment about
one person's word against another and his consequent in-
All dates appearing hereinafter occurred in 1977 unless the contrary is
noted.
ability to act bears a significant relationship to his own tes-
timony. Thus in several instances where there was a one-on-
one conflict between MacGregor and a General Counsel
witness, MacGregor denied the occurrence altogether. As
to some other incidents where there were several witnesses
to the event, he admitted the incident but told a different
version from that of the General Counsel's witnesses. Also
in regard to the bathroom incident, he evasively said his
failure to investigate may have been due to a telephone call
or some other distraction. He did not specifically describe
this call or any other distraction at the time.
As to another matter, MacGregor's testimony conflicts
with that of Respondent's witness, former part-time Person-
nel Clerk McGahey, the one Respondent witness whom I
will find to be credible. This matter concerned whose idea it
was to prepare the discharge papers on all three discrimi-
natees early in the morning of Friday, August 26 (rather
than at the end of the day). MacGregor testified that
McGahey asked him to do this early. McGahey denied this,
saying it was rather MacGregor's idea and that MacGre-
gor's decision was prompted by her announcement that she
would be leaving early that day.
Indeed, MacGregor's testimony about the need to dis-
charge the three employees early that morning is inconsis-
tent with his other testimony that he needed the services of
all three (after his decision to terminate them earlier in the
week for various reasons) to maintain his tight daily pro-
duction schedule.
Additionally, MacGregor's testimony in respect to the
decision to terminate Zike contradicts the testimony of
Zike's last supervisor, Tanner. MacGregor testified that
MacGregor spoke with Tanner on Wednesday and Thurs-
day about retaining or terminating Zike. Tanner said the
two conversations occurred on Thursday and Friday. The
difference is crucial because, as I will find, MacGregor
learned on Thursday of Zike's desire to have Zike's name
removed from the petition. This means that, according to
Tanner's testimony, the decision to discharge Zike was
made after MacGregor learned that Zike desired to remove
Zike's name from the petition.
Brenda Davis. Davis is an employee on maternity leave
from Respondent who assisted in circulating the petition in
August. She testified about a union meeting which she said
she attended on August 24. She claimed that Ed Cline, the
Union's international representative, told some 25 to 30
people in attendance that those who were circulating the
decertification petition would be blackballed and taken to
court by the Union. She said Cline further stated that the
plant employees would lose important benefits such as se-
niority and good wage rates if the Union were voted out.8
Davis also testified about asking Runner and Weber to sign
the petition. She specifically testified that Connie (Weber)
looked at the petition but would not sign it. Later on cross-
examination, when she was confronted with Respondent's
no-solicitation rule, she denied that she had the petition
with her when she spoke to Weber and Runner. This is a
8 MacBride was the only other employee shown to have attended this
meeting. She testified that the matter of decertification was brought up at
several meetings but she had no details.
60
JUSTRITE MANUFACTURING CO.
direct contradiction. Inasmuch as this contradiction is sig-
nificant and in view of Davis' nervousness on the stand, I
attach little weight to her testimony.
Jean McGahey. McGahey, a former employee, who, in
addition to other duties, at one time assisted MacGregor in
handling personnel paperwork, testified to the best of her
ability. She has no interest in these proceedings, having
been separated from employment with Respondent by mu-
tual agreement in September. I found her a very credible
witness.
John Albert Tanner. Al Tanner, who is still employed,
was Zike's last foreman. His testimony in respect to the
leadup to Zike's termination conflicts with that of MacGre-
gor, as I have pointed out. Tanner blinked noticeably when
denying certain elements of conversation with Zike which
were pertinent to the General Counsel's case.
I also found him somewhat evasive with respect to his
knowledge of the petition. At first he said he had heard
about it from the employees a couple of weeks before Zike
was discharged (i.e., 2 weeks before August 26). But the
informal petition began circulating during the week of Au-
gust 22 (it is dated August 24 and the earliest signatures are
dated August 24). Still later Tanner vaguely recalled that
MacGregor brought out at a meeting in MacGregor's office
that a petition "was going around but that's all." Still later
in his testimony, Tanner recalled that at said meeting he
was provided with a telephone number for the NLRB.
which he said is still on his desk.
Tanner, who continues to be a foreman with Respondent,
has an obvious interest in the outcome of these proceedings.
I do not credit him.
Pete Yokley: Pete Yokley also continues to work as a
foreman for Respondent. He did not create a favorable im-
pression on the stand. He kept looking at MacGregor dur-
ing most of his cross-examination, as if to be sure of Mac-
Gregor's reaction to Yokley's testimony. This left me with
the distinct feeling that he was trying to impress his supe-
rior, MacGregor, with what he said, hence he was giving
testimony favorable to Respondent's case to advance his
own position. In my judgment he also played cat and
mouse with counsel for the General Counsel and with me in
answering questions about the packing errors of Thomas. I
have already commented on the contradictions between his
testimony and that of MacGregor. I do not credit his testi-
mony where it conflicts with that of the General Counsel's
witnesses.
D. The Events in Question
I. The alleged 8(a)(1) violations
These incidents are referred to in paragraph 5 of the
complaint.
5-A and B: During the first week of August MacGregor
approached MacBride at her station in the pressroom at the
plant and engaged her in discussion. MacGregor told Mac-
Bride that if the employees voted down the Union the Re-
spondent could guarantee 2 years without layoff. MacGre-
gor also told MacBride that every time the Union did
something to help the employees it cost the employees more
money, whereas Respondent wanted to do the same thing
for employees and it would not cost them anything.9
I find that MacGregor's statement about a no-layoff
guarantee was a promise of benefit to an employee to en-
courage her to withdraw support from the Union and that
Respondent thereby violated Section 8 (aX 1) of the Act.
I further conclude that MacGregor's statement about
what Respondent could do for employees was intended to
convey to MacBride the impression that Respondent would
provide the same benefits to employees that the Union had
obtained for them-only without the Union and the need to
pay union dues. This was likewise a promise of benefit to
encourage apostasy from the Union, and Respondent also
thereby violated Section 8(a)(l) of the Act.' °
5 C and D. On or about August 22, 1 find, based on the
admissions of MacGregor in this regard, Respondent
learned that a petition was circulating or about to circulate,
the purpose of which would be to remove the Union as the
employee's bargaining representative. MacGregor advised
his attorneys and his foremen of this matter on that morn-
ing.
On or about that same morning Foreman Yokley spoke
with Debbie Thomas, one of the alleged discriminatees at
the plant. Yokley asked Thomas what Thomas thought of
the Union. Thomas said she did not know because she had
not worked there very long and had little information about
the Union. Yokley continued by asking Thomas to sign a
petition which would be coming around. He told Thomas
that he had heard from someone higher up that if Thomas
signed the petition she could be pretty sure of having a job
there. When Thomas asked Yokley what he meant by that,
Yokley responded that usually when "probational" people
are late (Thomas was a probationary employee who had a
tardiness problem) "they let them go just like that.""
I find that, by promising Thomas a benefit for signing the
petition to decertify the Union, Respondent through Yok-
ley also violated Section 8(a)(l) of the Act.
I find that, by Yokley's questioning of Thomas about her
union sentiments in the same conversation in which he
promised her a benefit (continued employment) to with-
draw support from the Union, Yokley coercively interro-
gated Thomas in respect to Thomas' union views in viola-
tion of Section 8(a)(1) of the Act.
5-E. On or about August 23, Yokley again approached
Thomas and asked her if she had signed the petition. She
stated that she had not.'
Yokley's questioning on this occasion of Thomas neces-
sarily placed her in the position of admitting whether she
was for or against the Union (viz, if in favor, she would not
have signed the decertification petition; if against, she
would have signed). I find that by Yokley's instant ques-
91 so find based on the credible testimony of MacBnde. I do not credit
MacGregor's denial in respect to the no-layoff promise. He did not deny the
other aspects of the conversation.
I0 See South Shore Hospital, 229 NLRB 363 fn. 1 (1977).
t My findings as to this conversation are based on the credible testimony
of Thomas in this regard. I do not credit Yokley's denials that such a conver-
sation occurred. He did not specifically deny interrogating her about her
union sympathies at the time.
12 I so find based on the credible testimony of Thomas in this regard. A
careful analysis of Yokley's testimony indicates that while he denied asking
Thomas if she w.ere going to sign, he did not den) asking her if she had
signed.
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioning (against the background of Yokley's prior promise
of benefit to Thomas to encourage her to sign the petition)
Respondent again coercively interrogated Thomas in viola-
tion of Section 8(a)(l) of the Act.
5-F. On or about August 23 then-employee Debra Schu-
macher asked MacGregor for 1 week's leave around Octo-
ber 15, when she expected to be (and later was) married.
MacGregor asked if Schumacher wanted the time before or
after the wedding, and she responded "after." MacGregor
opined that she could probably have the time off, but he
asked her if she had heard about the petition going around.
Schumacher answered in the affirmative. MacGregor then
inquired what Schumacher thought of it, and Schumacher
stated she did not know. MacGregor explained that the
petition was not to get the Union out but just to vote to see
if an individual wanted to hear Respondent's side of the
matter. MacGregor asked Schumacher if she was going to
sign it, and Schumacher said she did not know. MacGregor
then started walking away and, as he was leaving, MacGre-
gor told her that whether she signed the petition would
decide if she got the time off.'
Schumacher candidly conceded that this parting shot was
made in jest.
Aside from arguing that MacGregor's version of this inci-
dent-which I have rejected-should be credited, Respon-
dent urges that since according to Schumacher the last
statement was made in jest, no threat could be implied from
this statement. I disagree.
It is a stock verity in the storehouse of conventional wis-
dom that many a truthful word is said in jest. And the
instant remark could well be taken seriously because Schu-
macher was not entitled necessarily to a week off-and in-
deed did not get it. Hence, the analysis of this incident
cannot end with what was said and how it was stated but
must proceed to examine whether the statement was taken
as a joke. Schumacher, with the same candor that marked
the rest of her testimony, stated that while her impression
was that MacGregor was joking she was not certain if he
was or was not.'4
This testimony then returns the analysis to square one,
that is, the remark must be judged by its essential content'
and not the manner in which it was delivered. Judged on
that basis, it is plainly a promise of benefit to an employee
to withdraw her support from the Union.
I therefore conclude that by this promise of benefit, Re-
spondent interfered with, restrained, and coerced Schu-
macher in the free exercise of her Section 7 right to support
the Union and that Respondent thereby violated Section
8(a)(l) of the Act.
By questioning Schumacher in the same conversation
about her intentions with regard to the petition, Respon-
dent through MacGregor coercively interrogated her also in
violation of Section 8(a)( ).
' These findings are based on the credible testimony of Schumacher. I do
not credit the contrary testimony of MacGregor who, although admitting the
leave request, testified that Schumacher asked about the petition (and he
referred her to the NLRB); that he did not ask her if she would sign it and
that he placed no such condition on her leave authorization.
14 The nature of the remark and the way it was taken distinguishes this
case from Radio Kemetal Industries, Inc., 144 NLRB 546, 554 (1963), relied
on by Respondent.
It See Wichita Eagle & Beacon Publishing Co., Inc., 199 NLRB 360 (1972).
5-H, 1, J, and K: On or about August 23, MacGregor
approached MacBride and asked her whether she had
heard about the petition going around. MacBride asked
him what petition he meant. MacGregor explained that the
petition was to see whether the employees wanted to have a
vote to see whether the Union goes out or not. MacBride
responded that she had not seen it.
MacBride thereupon proceeded to discuss the Union
with MacGregor. She asked him how employees would be
assured, without the Union, that he would not fire them. He
assured her that he would not take such action. MacBride
(obviously referring to her previous conversation with Mac-
Gregor of about 3 weeks before) reminded him that he had
promised 2 years without layoff and asked him how he
could do that. MacGregor rejoined, simply, that this was
right. MacBride then asked him about cost-of-living in-
creases, and he answered affirmatively. MacGregor con-
cluded the conversation by telling MacBride that if Mac-
Bride wanted to see the petition Margaret Sparling had it,
and MacGregor pointed out Margaret Sparling. '6
I conclude that by MacGregor's conduct in the foregoing
conversation, Respondent violated Section 8(a)(1) of the
Act, separately, by:
(a) Repeating his promise to MacBride that Re-
spondent would guarantee 2 years without layoff if the
Union was voted out.
(b) Promising cost of living increases under the
same condition.
(c) Coercively interrogating MacBride by asking
about the decertification petition in the same conversa-
tion and putting MacBride unlawfully to the choice of
taking action to sign it by showing where she could go
to find it.
(d) Assisting her in locating the petition after induc-
ing her to sign it in the same conversation."
5-L and M. On or about August 24, alleged discrimi-
natee Thomas was approached by MacGregor and asked in
the presence of Yokley if she had signed the petition. She
said she had not done so. She also stated that she did not
know who had the petition. After she said this. MacGregor
asked her if she knew certain people, but she knew none of
these. MacGregor thereupon advised Thomas that either he
(MacGregor) or Yokley would show her the woman who
had the petition. MacGregor told Thomas she could then
sign the petition.' 8
I conclude, against the background of Yokley's prior
beneficial inducements of Thomas to sign the petition, that
Respondent by the foregoing conduct of MacGregor coer-
cively interrogated Thomas about her failure to sign the
petition and that said conduct violated Section 8(a)(1) of
the Act.
I conclude that Respondent further violated Section
8(a)(1) by MacGregor's offer to show Thomas who had the
16 My findings in respect to this conversation are based on the credible
testimony of MacBride in this regard. I do not credit MacGregor's denial
that the conversation occurred.
'7Asheville Sleel Conmpany, 202 NLRB 146, 150, fn. 28 (1973).
~8 I so find based on the credible testimony of Thomas. I discredit the
denial of MacGregor that this conversation occurred and the denial of Yok-
ley that MacGregor discussed the petition in any conversation with Thomas
which Yokley witnessed.
62
JUSTRITE MANUFACTURING CO.
petition after inducing her unlawfully to sign it and interro-
gating her about whether she had done so.
5 AN. Later in the afternoon of the same day (as 5-L and
M, supra) that is, on August 24, Thomas was passing by
Yokley, and Yokley pointed out Sparling as the woman
who had the petition. Thomas said "O.K."' 5
By Yokley's instant conduct, which I conclude was a fol-
low-on of the incident described in 5-L and M, supra, Re-
spondent further violated Section 8(a)( 1) of the Act. "2
5 O. On or about August 24. alleged discriminatee Zike
signed the petition. Afterwards on that same day he was
approached by his foreman, Al Tanner, who asked him
why he had signed it. Zike responded that he had signed it
because he didn't think it would cause any trouble. Tanner
replied that Zike shouldn't have signed because he might as
well be working for nothing. For, said Tanner, without a
union "they" would lower the pay.2'
I conclude that by the foregoing act of Tanner, Respon-
dent created the clear impression of surveillance by Tanner
of Zike's exercise of his Section 7 right to oppose the Union
(by signing the petition), and Respondent thereby violated
Section 8(a)( 1) of the Act.
5-P and Q.' On the morning of August 25 Brenda Davis
approached employee Weber and alleged discriminatee
Runner at the plant. Davis withdrew the petition from un-
der her clothing and asked Weber and Runner to sign it.
They did not. In the afternoon of the same day Davis again
approached Runner and Weber and asked them to sign the
petition. Again they refused. In one or both of these meet-
ings Runner or Weber told Davis that one or both could
not sign the petition because they were probationary em-
ployees.22
Later Davis spoke to Yokley, her foreman, and asked
him if he had heard about the petition going around. He
admitted that he had. Davis then asked if Yokley could find
out whether a probationary employee could sign it. Yokley
said he did not know..)
Yokley thereafter took Davis' question to MacGregor,
who attempted unsuccessfully to reach his attorneys and
ask them. Yokley then telephoned the NLRB's Regional
Office, which advised him that if the probationary employ-
ees could become members of the bargaining unit, they
could sign a decertification petition.2 Later that afternoon
MacGregor spoke to Weber and Runner and told them
they had the right to sign the petition even though they
were probationary employees. MacGregor then told the
employees that those who signed the petition would still be
19 These findings are based on the credible testimony of Thomas in this
regard, as corroborated essentially by Yokley. I do not credit Yokley's fur-
ther testimony that Thomas asked Yokley who had the petition. Yokley
admitted telling her who did and further admitted that he knew who was
passing the petition around from information given him by Brenda Davis,
his sister-in-law. The latter is a rank and file employee and was a Respondent
switness. Davis herself helped circulate the petition.
20 .4,heille .iStel, (Compani, rupra
21 These findings are based on the credible testimony of Zike in this regard.
I do not credit Tanner's denial that this conversation took place.
22 These findings are based on a composite of the credible and essentially
corroborative testimony of Weber and Runner as partially further corrobo-
rated by Davis. To the extent that Davis' version is contrary I do not credit
it.
23 Davis credibly so testified without dispute.
24 MacGregor so admitted.
employed even if there were a strike or a layoff. Both re-
fused to sign.25
I conclude that in this incident MacGregor offered the
employees the promise of a benefit to withdraw their sup-
port from the Union, and that Respondent thereby violated
Section 8(a)( 1 ) of the Act.
5-R.' On or about August 29 or 30, that is, about a week
after employee Schumacher requested MacGregor for a
week's leave when she got married, MacGregor again spoke
to Schumacher on this subject. MacGregor told Schumach-
er he did not know whether he could give her a week's leave
as she had requested because production was up. He also
told her that at least one other person had asked for leave at
the same time for the same reason, hence he could only give
Schumacher a couple of days off.2:
In all the circumstances and contrary to the General
Counsel and the Charging Party, I do not find that Mac-
Gregor's instant determination to offer Schumacher a
smaller amount of leave constituted an implementation of
the condition he placed on that request a week before (that
she sign the petition). While it is true that she did not sign it
and it is further true that Zike. Thomas, and Runner had in
the meantime been discharged, MacGregor did offer Schu-
macher some leave and he offered a business justification
for cutting back on the amount of leave she had requested.
MacGregor did not mention the petition in this conversa-
tion nor the fact that Schumacher had failed to sign it.
Further, another employee. Donna Dow, as Schumacher
confirmed, was also about to get married at the time.
In the light of all the above, I conclude that MacGregor's
entire statement in this second conversation dispelled any
implicit connection between his eventual limited leave offer
and the earlier condition he had placed on Schumacher's
request for a longer period. Accordingly, I shall recommend
that this allegation of the complaint be dismissed.
2. The alleged 8(a)(3) violations
Deborah Thomas.' According to her absentee record,
Thomas began work on or about July 19. She was dis-
charged on Friday, August 26, before 9 a.m., while she was
still a probationary employee.27
During at least the last part of her employment she was
working in Respondent's shipping department under Fore-
man Pete Yokley.
While working for Respondent, Thomas was late some
nine times in the morning or at lunch. She was absent for 3
days due to illness (but obtained a doctor's excuse), and she
was charged with two shipping errors.
As I have already found, Yokley spoke with Thomas on
August 22, the Monday of the last week of her employment
and asked her opinion of the Union. She responded that she
25 These findings are based on the credible and essentially corroborative
testimony of Weber and Runner. MacGregor admitted advising them that
they could sign the petition even though they were probationanes. He denied
the remainder of the conversation. I do not credit the denial.
16 These findings are based on the credible testimony of Schumacher in
this regard as partly corroborated by MacGregor. MacGregor testified that
he said he could only give Schumacher a couple of days off which was not
denied by Schumacher.
-1 A new employee remained probationary for 45 working days under the
collective-bargaining agreement then in effect between Respondent and the
Union.
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew little about it. Yokley continued the conversation by
pointing out that there was a petition going around and,
according to someone higher up, said Yokley, Thomas
could be pretty sure of having a job there if she signed it.
When Thomas asked Yokley what he meant, Yokley said
that probationary people who were late were usually let go
like that, but if she signed the petition she could be fairly
sure of a job. In this same conversation Yokley asked
Thomas if she would sign the petition, and she said she did
not know.
On August 24, as I have recounted, Thomas was ap-
proached by MacGregor and Yokley, and MacGregor
asked her if she had signed the petition. She said she had
not. When she added she did not know who had the peti-
tion, MacGregor asked her if she knew certain people,
which she did not. MacGregor promised her that he or
Yokley would show her who had the petition and she could
sign it. Later that day Yokley pointed out Sparling to
Thomas and said Sparling had the petition.
On August 25, at the 9 a.m. break, Thomas signed the
petition. That afternoon, at the 2:30 p.m. break, she
scratched her name off the petition. Still later that same
afternoon, MacGregor, as he admitted, learned from Julia
Campbell, another petition signer, that Thomas had taken
her name from the list.
According to her timecard, Thomas was discharged the
next day effective 8 a.m. This was about the same time as
the discharge of Runner, who had not signed the petition
and Zike, who had struck his name from it. Yokley, who
discharged Thomas, gave her no reason for this action.
Thomas was initially unable to contact MacGregor to ob-
tain his explanation.
After her discharge Thomas went outside the plant where
she met Runner. After speaking to one another, Thomas
and Runner came back into the plant in an attempt to find
out why they were discharged. They met MacGregor in the
hall and engaged him in conversation. MacGregor gave
Runner the reason that she was unsuited to factory work.
MacGregor told Thomas that with Thomas it was just like
her discharge slip showed-"Probationary employee-no
assignment of cause." (Under the collective-bargaining
agreement in effect at that time, Respondent was not re-
quired to assign cause for terminating probationary em-
ployees.) Thomas continued to ask for a reason, but none
was given. Thomas also asked about her check, and Mac-
Gregor said she would have to come back for it. When the
three got to the plant door, MacGregor put his hand on
Thomas' back and shoved her, telling her to get out or he
would call the sheriff.'8
Respondent contends that Thomas was discharged for
lateness, absenteeism, and two shipping errors.
According to MacGregor and Yokley, they first spoke
about terminating Thomas in a telephone conversation
while MacGregor was on vacation during the week preced-
ing Thomas' discharge. Per MacGregor, his supervisor,
Witte, also spoke to him about Thomas' absence during this
same conversation. (Witte spoke to MacGregor, then Yok-
ley spoke to MacGregor in this same phone call.) Further,
according to Thomas and Yokley, they spoke twice on
:s The testimony as to this series of incidents is not essentially in dispute.
Monday morning, August 22, about Yokley's desire to fire
Thomas and decided to do so after the second conversation,
by which time MacGregor had learned of Thomas' two
shipping errors. MacGregor informed Yokley, he said, that
he would not fire Thomas on the morning of August 22, but
would wait until the end of the week when a replacement
would be hired for her. (Later that week MacGregor did
hire some II new employees, all of whom started the fol-
lowing Monday, August 29, except I skilled employee who
began on August 24.) That same morning, August 22, Mac-
Gregor spoke to Thomas in the presence of Yokley and told
her that her lateness would not be tolerated and that if she
carpooled with Zike she should not wait for him.
As to Respondent's claimed reasons fbor discharging
Thomas, Thomas' timecards show she was late some nine
times (although only on some four occasions was she suffi-
ciently late to require notation on a separate lateness rec-
ord). She was also absent for 3 days in mid-August for
which she had a doctor's excuse. Finally, she was indeed
guilty of two shipping errors which had occurred at the
beginning of August (although MacGregor did not learn of
them until later).
I reject Respondent's contentions that these deficiencies
supply the real reason fbr Thomas' discharge.
All of Thomas' derelictions occurred before Yokley
spoke to her on August 22 and told her she could be fairly
sure of continued employment if she signed the petition.
This means, of course, that however grievous were her of-
fenses (none of which was repeated thereafter) they were
insufficient to cause her discharge, if she would sign the
petition. Since she later signed the petition but still later
withdrew her name from it, the withdrawal could provide
the only basis for her discharge based on what Yokley had
told her.
Further, the testimony of Yokley and MacGregor, in re-
spect to their August 22 determination to discharge
Thomas, does not jibe with the actions they took thereafter.
Thus, both of them spoke to her that morning about her
tardiness problem-after they say they had decided to dis-
charge her. MacGregor explained this paradox by stating
that they would continue to need Thomas until the end of
the week and they needed her at work on time. He further
explained that Respondent's plant runs on a production
line system and "In Ms. Thomas' case the foreman lines up
her work prior to the start of the bell." MacGregor said if
Thomas did not show up the foreman would not know
whether to schedule her or not. MacGregor also pointed
out that Thomas, at the time, was one of only four employ-
ees in the shipping department.
Yet, when Friday (August 26) came, MacGregor let
Thomas go early in the morning despite the tight produc-
tion schedule and before any replacement for her had be-
gun employment with Respondent. MacGregor even stated
that probably no one finished her work that Friday. He
attempted to explain the decision to let her go early that
day on the basis that McGahey, the part-time personnel
clerk, was going to be leaving early and he wanted to get
the papers processed by McGahey while McGahey was still
there. Although McGahey did leave early that day, she did
not recall completing the personnel paper work. But even if
she did, the question remains unanswered why the tight
production schedule had to give way to this matter of per-
64
JUSTRITE MANUFACTURING (CO.
sonal convenience, particularly where-as a practical mat-
ter-the discharge slips could have been distributed in the
late afternoon and the several termination actions (on var-
ious records) could have been made effective at day's end
(albeit accomplished in the morning).
According, I reject Respondent's defenses. I conclude
rather that Thomas was discharged because she removed
her name from the petition. In so holding. I particularly
rely on what Yokley told Thomas about her continued em-
ployment when he first asked her to sign the petition. I also
rely on the efforts of both MacGregor and Yokley to have
her sign and the general interest of both MacGregor and
Yokley-as shown by the credible testimony throughout
General Counsel's case-in having the petition succeed. I
further note the anger displayed by MacGregor when he
shoved Thomas at the door of the plant, a physical act of a
man against a woman, which could hardly be justified on
the basis of some tardiness, 3 days' sick leave, and two
shipping errors.
I conclude therefore that, by discharging Thomas and
subsequently failing to reinstate her, Respondent has vio-
lated, and is violating, Section 8(a)(l) and (3) of the Act.2
Jean Runner. Runner was employed on August 8 and,
like Thomas, was still a probationary employee at the time
of her discharge on August 26 before 9 a.m. in the morning.
Runner was 17 at that time and had falsified her employ-
ment application to show that she was 18.
On August 25, Runner and Weber, it may be recalled.
were twice approached by Brenda Davis to sign the peti-
tion. Neither did so on either occasion, and in at least one
of the incidents one or the other of them raised the issue
whether a probationary employee could sign the petition.
Davis thereafter pursued this question with Yokley, who
repeated it to MacGregor, MacGregor called his lawyers,
unsuccessfully, and then telephoned the Regional Office of
the Board to get the answer (which was that they could sign
it, even though they were probationary). MacGregor spoke
to Runner and Weber later that day and conveyed this in-
formation to them. He also told them that any employee
who signed the petition would still be employed if there
were a strike or a layoff. Both refused to sign.
Respondent defends that Runner was discharged for fal-
sifying her employment application to show that she was
18.
MacGregor testified that state law prohibits the hiring of
employees under 18 to work with power-driven machinery
and that he was aware of this law. He said he became sus-
picious that Runner was underage when he was on vaca-
tion. He said that when he returned to work he was going
through employment applications on file and noticed Run-
ner's application and that of another Runner (Sandra,
Jean's sister-in-law as it turned out) and noticed their birth
dates were only 4 months apart. He continued that the mat-
ter then came up in an unrelated conversation at about that
time with Mr. Reveal of the Illinois Department of Labor.
While MacGregor was advising Reveal of the names of
people hired by Respondent who were on public aid, Mac-
Gregor mentioned Runner, whose mother is, apparently, in
that category. Reveal replied that Runner was underage.
29 The Rogers Manufacturing Company. 228 NLRB 882 (1977)
MacGregor testified that on or about Wednesday, Au-
gust 24, he went and spoke with Runner's supervisor. Yok-
ley, and her foreman, Bates, about Runner's performance.
Yokley, he said, said Runner was slow and that Respondent
should get rid of her. MacGregor claims he nevertheless
decided to retain Runner Friday (so that she could be re-
placed on Monday) because, under Respondent's schedule,
she was required to stack boxes on Thursday.
Runner was given a pink slip showing merely "proba-
tionary employee-no assignment of cause" and let go on
Friday, August 26, before 9 a.m. I have already recounted
how she ran into Thomas outside the plant and both re-
turned to ask MacGregor why they were discharged. In
that conversation MacGregor told Runner that Runner was
discharged because she was not good enough for factory
work. He did not tell her she was fired for being underage.
Nor indeed did he ever ask her if she was.W
Respondent's defense that Runner was discharged for
cause falsifying her employment application to show she
was 18, when she was really 17-rests on the testimony of
MacGregor, who claimed he was fairly sure of this falsifica-
tion on or about Wednesday, August 24. Reveal did not
testify. I do not credit MacGregor's testimony about when
he learned of this falsification, hence the defense fails.3
But even if I were required to deal with the defense on its
merits I would still reject it. For here again MacGregor's
actions do not jibe with his words.
Thus, if state law prohibits the hiring of an employee to
work in a factory with power-driven equipment, why was
Runner not let go immediately? And what need was there
for MacGregor to ask Yokley about her performance? For
her performance, good or bad, would make no difference if
she were forbidden to work in the plant. While Runner
went to work on Thursday stacking boxes, which does not
seem hazardous, MacGregor admitted she was sent back to
work on power-driven equipment on Friday! Even then,
bearing in mind the claimed exigencies of Respondent's
production schedule, she was let go before 9 a.m. (instead of
at 3:45 p.m.). MacGregor testified he had no idea who fin-
ished her work that day.
Further, state law does not require individuals to be 18 to
" Curiously, about 2 months later when MacGregor suspected that an-
other employee, Wallace, was underage he confronted Wallace directly and
asked her. She admitted she was under 18 and asked him what he would do.
He said he would contact his attorney.
n I do not credit this testimony for a number of reasons. I have already
commented at length on the credibility of MacGregor. And I have men-
tioned that the testimony, as to when MacGregor learned of the falsification,
is uncorroborated. Also I note that MacGregor never told Runner that she
was being discharged for being underage despite the fact that, contrary to
Respondent's normal policy in respect to probationary employees, he did not
give her a claimed reason for her termination on August 26 the said she was
not good enough for factory work).
Further, MacGregor's full testimony as to the event which allegedly sub-
stantiated his initial suspicion about Runner's age is not convincing. That
event, as noted, was his examination of the employment applications on file
for Jean Runner and Sandra Runner which he uncovered after August 22
while reviewing applications with a view toward hinng new employees. Later
in his testimony, when MacGregor was describing the hiring procedure, he
said that applications were "only good for 30 days." When it was pointed out
to him that. when he purportedly looked at Jean's application after August
22, that application (dated June 6) was 2-1/2 months old, MacGregor nim-
bly explained that he was "probably" reviewing older applications because
he did not find what he wanted among those from August and July. What he
did not explain is why he would be looking through applications which were
no longer "good" (by his own admission) as a source of new employees.
65
DECISIONS OF NATIONAL. LABOR RELATIONS BOARDI)
work at a factory. They must be 16.12 While Respondent
belatedly argued (after the hearing) that Federal law and
regulations do have a prohibition against employees work-
ing with power-driven equipment who are under 18, this is
not what MacGregor said. Nor has it been demonstrated
with any certainty that all the power-driven presses or
equipment operated by Respondent fall under the proscrip-
tion of Federal law for employees under 18.
I, accordingly, reject Respondent's defense.
I rather conclude that Runner was fired for refusing to
sign the petition. In so finding I note that she was fired
abruptly with two other employees who withdrew their
names from the petition on the morning of the day after all
refused to sign or withdrew their names from the list. I also
rely on what MacGregor told Runner on August 25 aiter he
purportedly suspected she was underage, that is, essentially
that employees could be assured of continued employment
if they signed the petition. This means, of course, that ift'
MacGregor then indeed knew she was underage, he would
nonetheless have retained her if she had signed. And he
might have placed her in a capacity which would not re-
quire her to operate power-driven machinery, if a powered
production assignment at Respondent's plant is indeed
barred by Federal law and regulation (or if he thought it
was barred by State law and if nonproduction work is not
thereby barred). She was, in fact, working in a nonproduc-
tion assignment on August 25 (stacking boxes).
I, accordingly, conclude that by discharging Runner and
refusing to reinstate her, Respondent has violated and is
violating Section 8(a)(1) and (3) of the Act."
Jerry Zike. Jerry Zike began work for Respondent on
July 25, 1977, and, when he was discharged on August 26 at
about 9 a.m., he was still a probationary employee. Zike has
an educational disability which Respondent knew when it
hired him. He was, in fact, hired under a program to hire
the handicapped which Respondent operates as a Govern-
ment contractor. Zike was employed first as a material han-
dler in department 21 under Supervisor Ray Grasl. Zike's
job was to keep some 16 production employees supplied
with parts. After several days it was clear that Zike could
not keep up with the work and he threatened to quit.
MacGregor, therefore, transferred him to a similar job
under Foreman Tanner, which was less hectic.
Zike was given his termination slip by Tanner before 9
a.m. on the morning of August 26, when Tanner took Zike
to coffee in the break room. Zike told Tanner that Zike
thought the reason Zike was being fired was because Zike
had taken his name off the petition. Tanner agreed. In fur-
ther discussion of the reasons for Zike's discharge, Tanner
told Zike that MacGregor said MacGregor thought Zike
could not handle Zike's job. The conversation concluded
when Tanner patted Zike on the back, told Zike that Zike
did good work, and that Zike could use Tanner's name for
a reference if Zike sought further employment.3 4
I have recounted at length Respondent's efforts to have
employees, particularly probationary employees, sign the
32 See Resp. Exh. 16.
t
3 The Embers of Jacksonville, Inc. 157 NLRB 627 (1966). N'e Foodland
Inc., 205 NLRB 418 (1973).
13 These findings are based on the credible testimony of Zike in this regard.
I do not credit the testimony of Tanner to the contrary. Tanner, in any event.
admitted that Tanner offered to be a reference for Zike.
decertification petition. Probationaries were not required at
the time to join the Union under the current collective-
bargaining agreement's union-security clause until they had
been employed for 45 calendar days. Zike signed the peti-
tion on August 24 but removed his name on August 25.
Zike took the latter action after lForeman Tlanner told him
it would be unwise for the employees to work tor Respon-
dent without union representation as I have recounted.
Prior to removing his name, Zike spoke to MacGregor to
ask MacGregor how Zike could go about getting his name
off the petition. There is a conflict in the testimony as to
what each said on this occasion; but, significantly, it is not
disputed that Zike at that time advised MacGregor of
Zike's desire to get his name off the petition. Zike crossed
out his name that afternoon in the same incident in the
break room as that in which Thomas struck her name from
the petition. In view of T anner's statement to Zike about
Zike signing the petition, MacGregor's knowledge that
Thomas crossed out her name, and the intimate involve-
ment of Respondent with the circulation of the petition all
week, I conclude that MacGregor. on August 25, learned
that Zike had carried out Zike's wish by striking his name
from the petition on the same date.
Respondent defends that Zike was discharged during a
regularly scheduled 4-week review of his qualifications as a
probationary employee.? MacGregor spoke with Zike's
then supervisor, Tanner. who suggested to MacGregor both
on that day and the next day that Zike be discharged. Tan-
ner's purported reason was that Zike was too slow and that
the production employees with whom Zike worked were
complaining that Zike was not getting materials to them on
time. I reject this defense.
1The defense rests entirely on the testimony of Tanner and
MacGregor, both whom I have generally discredited. No
production employee with whom Zike worked was called to
testify. No written warnings were produced nor any other
documentary evidence to show any complaints made by
management or by employees about Zike's performance.
But here again, even if I were to consider the testimony
of' Tanner and MacGregor in respect to their reasons for
discharging Zike. I would again reject it as a valid explana-
tion for Zike's discharge. For MacGregor testified that he
spoke with Tanner about Zike's performance on August 24
and again on August 25 when it was agreed that Zike would
be terminated. Tanner said that MacGregor spoke to him
twice about Zike but the second time was August 26. This
difference, as I have already mentioned in my credibility
findings, suprt, is crucial because according to Tanner no
decision was made to fire Zike until after Zike had taken
Zike's name off the petition.
Respondent also urges, in attacking the General Coun-
sel's case in respect to Zike, that Zike's testimony concern-
ing Tanner's influence over Zike's decision to remove Zike's
name from the petition is at odds with the General Coun-
sel's theory of Zike's discharge. Thus, Respondent says, if
Zike withdrew his name at Tanner's urging, Tanner could
not have discharged him for this reason. I reject this conten-
tion.
15 Mac(Gregor does this because the employee becomes eligible fbr insur-
ance after 30 days.
66
JUSTRITE MAN[!FA( ItURING CO.
For in Zike's termination interview, recounted suprl,.
Zike was told hb Tanner that MacGregor was the one who
opined that Zike could not do Zike's job. That is, MacGre-
gor, and not Tanner, was the one who determined to dis-
charge Zike and for the purported reason of Zike's incoim-
petence. There is no indication from Zike's testimony that
Tanner decided to discharge Zike. Tanner. according to the
testimony of Zike. thought Zike's work performance was
good and agreed with Zike that the real reason Zike was
discharged was because Zike removed Zike's name from the
petition.
I so find. I further find that by discharging Zike for this
reason and failing to reinstate him, Respondent has vio-
lated and is violating Section 8(a)(1) and (3) of the Act."
IV. tilt u111 t tO 1 ( i UNFAIR L.ABOR PRA tiitUS tPO'N
( O)MMI:R( I
The activities of Respondent set forth above. occurring in
connection with its operations described 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 disputes burdening and obstructing commerce
and the free flow of commerce.
CON( t I SIONS ()I LA\V
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
2. Local 8390 and District 34 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees about their
feelings toward the Union; by asking them to sign a decer-
tification petition and coercively interrogating them about
whether they had signed it; by offering them inducements
to sign it or to vote the Union out: and by assisting them in
supporting that petition. Respondent has violated Section
8(a)(1) of the Act.
4. By discharging Jerry Zike, Debbie Thomas, and Jean
Runner on August 26, 1977, and by thereafter refusing to
reinstate them. Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not committed any other violations
alleged in the complaint except as found herein.
M Respondent further contends that ans analysis of its hires (Resp. Exh
11) and the names on the petition indicates that nine probationary employ-
ees, employed in the week of August 22, did not sign the petition and are still
employed. I see no significance in this. Respondent's failure to discriminate
against some employees does not establish that it has not discriminated
against others
Respondent further notes that two of three other probationary employees
who signed the petition haise subsequently been discharged without assign-
ment of cause Again I do not see where this takes us The record does not
show whether or not these employees were induced to sign b5 a Respondent
official or, it so, on what basis, nor does the record show what derelictions of
duty they may have been guilts of which could have required Respondent to
discharge them
Tltli Ri.MEI)Y
The recommended Order will contain the conventional
provisions (except as regards Jean Runner) for cases involv-
ing unlawful discharge and unlawful refusal to reinstate in
violation of Section 8(a53) and ( 1) of the Act and unlawful
restraint and interference in vt),lation of Section 8(a)(1) of
the Act. This Order will require Respondent to cease and
desist from the unfair labor practices found and to post a
notice to that effect which will also state the affirmative
action Respondent will be required to take to remedy these
violations.
Thus, Respondent will be required to offer Debbie
Thomas and Jerry Zike immediate and full reinstatement to
their former positions or, if such positions no longer exist.
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges. Each will be
made whole tior an, loss of earnings he or she may have
suffered by reason of Respondent's discrimination by pay-
ment of a sum of money equal to that which he or she
would have earned from the date of their discharge to the
date of' the oflfer of' reinstatement less net interim earnings.
if any. to be computed in the manner prescribed in F W4
H'o/lls'orih (ompan'r, 90 NLRB 286 (1950). with interest
thereon as prescribed by Florida Swcel Corporation, 231
NI RB 651 (1977)."
It will be further recommended, in view of the unfair
labor practices in which Respondent has engaged (see
N.L. R.B. . Dntwistle Mfg. Co., F.2d 532. 536 (1941)), that
Respondent shall he ordered to cease and desist from in-
fringing in any other manner upon the rights guaranteed
employees by Section 7 of the Act.
The remedy in respect to Runner must take into account
certain factors which vary from the conventional situation
involving a discriminatory discharge. Respondent contends
that, if Runner is found to have been unlawfully dis-
charged. as I have held. she should be found ineligible for
reinstatement and backpay because she falsified her age. I
find partial merit in this contention.
Respondent introduced no evidence of an explicit corpo-
rate policy not to hire employees who are under 18. How-
ever, MacGregor testified that he does not hire employees
under that age; and Runner. for her part, candidly con-
ceded that she knew that in order to be involved in factory
work she had to be at least 18 years old-whereas she fur-
ther admitted that she was only 17 when she began work on
August 8 after stating falsely on her employment applica-
tion that she was 18.
Nevertheless, the falsification of a prior Respondent em-
ployment application (at least insofar as age is concerned)
does not, under Respondent's policy, forever preclude the
applicant from all opportunity to work for Respondent.
Thus Respondent, after the discovery of an age falsification
in a recent incident, discharged the employee but gave her
the right to file a new application for further employment
after she reaches her 18th birthday.?9
Summarizing these anomalous elements, it is clear that if
'7See, generally. Iris Plunmbing & Heauing (;o. 138 NLRB 716 (1962)
13 MacG(regor s, advised Jeanne Wallace who was discharged for being
underage on Octobher 28. 1977.
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Runner had not falsified her application, she would not
have obtained work when she did.3 On the other hand, as I
have held, she was not discharged for being underage but
rather because she refused to sign the decertification peti-
tion. Finally, while it is now known that she falsified her
employment application when she came to work for Re-
spondent in August, it has also been established that such a
falsification does not per se bar her from all future employ-
ment with Respondent.
Hence, in order to remedy the unfair labor practice I
have found in respect to her discharge and Respondent's
refusal to reinstate Runner-but at the same time to bal-
ance the conflicting equities just outlined-I shall recom-
mend that Runner now be offered immediate and full rein-
statement to her former position, or if such position no
longer exists, to a substantially equivalent position with
backpay and seniority to commence effective January 19,
1978, Runner's 18th birthday.?
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 4'
Respondent Justrite Manufacturing Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, activities in behalf of,
or sympathies toward United Steelworkers of America,
AFL-CIO, its Local Union No. 8390, and its District No.
34, or any other labor organization, by discriminating in
regard to hire or tenure of employment or in any other
manner in regard to any term or condition of employment
of any of Respondent's employees in order to discourage
union membership, activities or sympathies.
(b) Coercively interrogating its employees about their
feelings toward the above-named Union.
'9 See Southern Airways Company, 124 NLRB 749, 759 (1959); W Kelley
Gregory, Inc., 207 NLRB 654 (1973).
4o Cf. The Embers of Jacksonville, supra, New Foodland Inc., supra. Back-
pay will otherwise be computed on the basis of the formula in Woolworth,
supra, with interest as prescribed by Florida Steel Corporation, supra.
'" 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.
(c) Asking employees to sign a decertification petition.
(d) Offering them inducements to sign such a petition or
to vote the Union out.
(e) Coercively interrogating employees about whether
they have signed such a petition.
(f) Assisting employees in supporting a decertification
petition.
(g) In any other manner interfering with, coercing, or
restraining employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer Jean Runner, Deborah Thomas, and Jerry Lee
Zike immediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges (except for Runner whose senior-
ity shall date from January 19, 1978), and make them whole
for any loss of pay they may have suffered as the result of
the discrimination against them in the manner set forth in
The Remedy section herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment cards, timecards, per-
sonnel records, and reports, and all other records necessary
or useful in complying with the terms of this Order.
(c) Post at its plant at Mattoon, Illinois, copies of the
attached notice marked "Appendix."42 Copies of this notice
on forms provided by the Regional Director for Region 14
shall, after being duly signed by Respondent, be posted by
it immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to ensure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS HEREBY FURTHtER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges violations not
found herein.
21 In the event that this Order is enforced by ajudgment ofa 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."
68