Koronis Parts, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1997

324 N.L.R.B. 675 (N.L.R.B. 1997)

675
324 NLRB No. 119
KORONIS PARTS, INC.
1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by its issuance of disciplinary warnings to leading
union proponents William Bertram and Alan Remmel on October 16,
1995, for violation of its ‘‘front-door rule,’’ we acknowledge that the
rule itself was not shown to be unlawful and, as the judge found,
the two employees did actually violate it on that day. The record
supports the judge’s finding, however, that during the approximately
10 years of the rule’s existence, violations had occurred ‘‘regularly’’
and had never been subject to disciplinary action; and the reminder
posted by the Respondent on September 22 gave no intimation of
any change in enforcement policy regarding the rule. That the Re-
spondent issued disciplinary warnings to four other employees either
on October 16 or shortly thereafter does not undermine the judge’s
conclusion that the warnings to Remmel and Bertram were moti-
vated by its animus against their union sentiments. It is not uncom-
mon for an employee to discipline some of its employees in order
‘‘to give credence to its pretextual reasons’’ for disciplining other
employees whom it has unlawfully targeted. See, e.g., Fast Food
Merchandisers, 291 NLRB 897, 898 (1988). Since the General
Counsel did not include the warnings to the other employees in the
complaint, we have no occasion to pass on their legality, but this
omission does not disturb our conclusion concerning the motive for
the Respondent’s disciplinary notices to Bertram and Remmel for
exiting by doors other than the front door of the plant.
In adopting the judge’s findings regarding discipline for violations
of the telephone rule, we rely as to employee Bertram, not only on
the judge’s factual findings and analysis but also on the difference
between the rule as it was stated in the 1991 written policy (G.C.
Exh. 3), which was effective on November 6, 1995, when Bertram
was disciplined, and the policy as described in the notice issued to
Bertram and as amended in a policy published not long after the dis-
cipline of Bertram. The 1991 policy prohibited ‘‘personal phone
calls . . . during working hours without prior arrangement’’ (empha-
sis added). Bertram testified without contradiction that he made the
call to Union Vice President Behr on his break, conduct which the
policy did not prohibit. The disciplinary warning notice contained no
reference to ‘‘working hours,’’ and the Respondent shortly thereafter
issued a revised policy ‘‘amended November 14, 1995’’ (G.C. Exh.
2) that removed the reference to ‘‘working hours’’ and included
more details so that the rule would clearly prohibit calls such as the
one made by Bertram.
1 Unless stated otherwise, all dates occurred during 1995.
2 Appended to Respondent’s brief is a Notice of Decision and
Right of Appeal issued by an administrative law judge of the Job
Service and Reemployment Insurance Division of the State of Min-
nesota Department of Economic Security on May 30, 1996, after the
hearing had closed in the instant case. It pertains to the discharge
of William L. Bertram, an action alleged in the amended and con-
solidated complaint to have violated Sec. 8(a)(3) and (1) of the Act,
and concludes that the discharge was for misconduct. Respondent
‘‘moves that the record be reopened for the limited purpose of re-
ceiving’’ that decision.
The General Counsel opposes reopening the record and receiving
the Notice of Decision and Right of Appeal, arguing that it sheds
no new light on the motivation for Bertram’s discharge, that there
is no indication that Bertram’s union activities were considered in
reaching that decision, and that the General Counsel would be preju-
diced by not receiving an ‘‘opportunity to cross-examine witnesses
or otherwise rebut the alleged scope and significance of the unem-
ployment decision.’’
The two cases cited primarily by the General Counsel in opposing
Respondent’s motion, however, involve State Civil or Human Rights
and Equal Employment Opportunity Commissions: Foster Electric,
308 NLRB 1253 fn. 1 (1992), and Central Broadcast Co., 280
NLRB 501 fn. 1 (1986). Such statutes involve different purposes
than the Act. In contrast, as to unemployment benefits claims—or,
as here, reemployment insurance benefits—the Board has ‘‘long held
that such decisions, although not controlling as to the findings of
fact or conclusions of law contained therein, have some probative
value and are admissible into evidence.’’ (Citations omitted.) West-
ern Publishing Co., 263 NLRB 1110 fn. 1 (1982). See also Volt In-
formation Sciences, 274 NLRB 3098 fn. 3 (1985). However, that
does not conclude consideration of Respondent’s motion.
Koronis Parts, Inc. and Teamsters Union Local No.
970, affiliated with International Brotherhood
of Teamsters. Cases 18–CA–13787, 18–CA–
13848, 18–CA–13884, and 18–CA–13966
October 10, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On November 21, 1996, Administrative Law Judge
William J. Pannier III issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed cross-exceptions with a
supporting brief and a brief in opposition to the Gen-
eral Counsel’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s ruling,
findings,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law and orders
that the Respondent, Koronis Parts, Inc., Paynesville,
Minnesota, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Florence I. Brammer, Esq., for the General Counsel.
Steven C. Miller and John P. Haberman, Esqs. (Martin L.
Garden), of Minneapolis, Minnesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Minneapolis, Minnesota, on April 17
through 19 and on April 22, 1996. On March 18, 1996, the
Regional Director for Region 18 of the National Labor Rela-
tions Board (the Board) issued an order further consolidating
cases, amended and consolidated complaint and notice of
hearing—based on unfair labor practice charges filed in Case
18–CA–13787 on October 4, 1995,1 and amended on Octo-
ber 24 and on February 3, 1996; in Case 18–CA–13848 on
November 24, and amended on November 27 and on Feb-
ruary 23, 1996; in Case 18–CA–13884 on December 18, and
amended on February 23, 1996; and, in Case 18–CA–13966
on March 8, 1996,—alleging violations of Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act). All
parties have been afforded full opportunity to appear, to in-
troduce evidence,2 to examine and cross-examine witnesses,
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676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Justak Bros. & Co., 253 NLRB 1054 fn. 1 (1981), enfd. 664
F.2d 1074 (7th Cir. 1981), the Board refused to reopen a record to
receive a similar decision and its underlying transcript, pointing to
the differences in statutory definitions, policies and purposes, as well
as to the absence of a showing that the unfair labor practices had
been considered in the state proceeding and the Board’s administra-
tive law judge’s responsibility to render a decision based upon the
evidence received in the unfair labor practice proceeding. Still, 4
years’ later, the Board did allow a record to be reopened to receive
such a decision. Garrison Valley Center, 277 NLRB 1422 fn. 1
(1985). There, as here, the state agency’s decision was not issued
until after the unfair labor practice hearing had concluded. Unlike
the instant case, however, the General Counsel in Garrison Valley
had agreed that the state decision should be made part of the record.
More importantly, the parties must have discussed during the hearing
the possibility of receiving a subsequently issued decision by the
state agency. For, the Board pointed to ‘‘the judge’s explicit direc-
tion to the parties to forward to him any final decision on Brown’s
claim[.]’’
Without belaboring the matter further, I deny Respondent’s motion
to reopen the record and to receive the Notice of Decision and Right
of Appeal. For the reasons set forth in sec. II,I, infra, I am conclud-
ing that a preponderance of the credible evidence fails to establish
that Bertram’s discharge had been unlawfully motivated under the
Act. That conclusion is based on the evidence presented during the
hearing in the instant case. Even if the state determination were re-
ceived, it would not be controlling and, in any event, would add
nothing to the conclusion which I am reaching under the Act con-
cerning Bertram’s discharge.
3 Respondent admits that, at all material times, it has been an em-
ployer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act, based on the admitted facts that during calendar
year 1995, it purchased goods and supplies valued in excess of
$50,000 which it received directly from suppliers located outside of
the State of Minnesota.
4 At all material times, it is undisputed, the Union had been a labor
organization within the meaning of Sec. 2(5) of the Act.
5 The letter misspells Kessler’s name ‘‘Kesoler.’’ Still, there is no
basis in the record for concluding that Respondent would not have
understood, despite the misspelling, the identity of the employee to
whom the letter was referring. There is no evidence that, during Sep-
tember, Respondent had employed anyone with the surname
‘‘Kesoler.’’ Nor is there evidence that, during that month, it em-
ployed anyone, other than Kessler, whose surname was spelled even
closely to ‘‘Kesoler,’’ much less someone with a similar surname
whose first name also had been Robert. Indeed, no official of Re-
spondent, particularly Edward Webb, claimed that the letter’s use of
the surname ‘‘Kesoler’’ had led him or her to conclude that someone
other than Robert Kessler had been intended by the Union.
6 Not to be confused with Donovan Whitcomb, Respondent’s ma-
chine shop manager or leadman.
and to file briefs. Based on the entire record, on the
briefs which were filed, and on my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Koronis Parts, Inc. (Respondent) is a Minnesota corpora-
tion, with an office and place of business in Paynesville,
Minnesota. In its facilities located there, Respondent manu-
factures aftermarket replacement snowmobile parts and ac-
cessories.3 It is owned by Edward H. and Kathleen V. Webb,
husband and wife. Respondent admits that Edward Webb is
a statutory supervisor and its agent. Its operations and sales
manager is Bruce Vanderpool. Reporting to him is Robert
Cloakey, the plant manager. It admits that, at all material
times, Vanderpool and Cloakey, each, had been a statutory
supervisor and agent of Respondent.
There is a dispute, however, regarding the supervisory and
agency status of Kathryn Lenz, a department head. The Gen-
eral Counsel contends that she had been a statutory super-
visor and agent to Respondent at all material times. Respond-
ent disputes those contentions. The issue of her supervisory
and agency status is addressed in section II,A, infra.
Webb acknowledged that, during the summer, he had seen
a letter from Bertram explaining why the latter thought his
wage review had been unfair. In fact, testified Webb, be-
cause of that letter he had directed that there be prepared a
checklist of machines and equipment which Bertram had be-
come competent to operate.
During early September, some of Respondent’s employees
contacted Teamsters Union Local No. 970, affiliated with
International Brotherhood of Teamsters (the Union).4 Meet-
ings and an organizing campaign ensued. By letter dated
September 7, the Union’s vice president, George Behr Jr.,
notified Edward Webb of the organizing campaign and, fur-
ther, that Bertram ‘‘is on the Organizing Committee, assist-
ing with the campaign.’’ So far as the evidence reveals, this
had been Respondent’s first knowledge of its employees’
contacts with the Union. In a second letter to Webb, dated
September 15, Behr identified six additional employees of
Respondent ‘‘who will be on the Organizing Committee
along with Bill Bertram[.]’’ Those employees were Jack
Martinson, Peter McCann, Philip Schmitz, Allan Remmel,
Shari Keller, and Robert Kessler.5
Aside from being named in the Union’s correspondence to
Respondent, at least some of those employees engaged in
other union activities. For example, several newsletters, ad-
vocating selection of the Union as the bargaining representa-
tive of Respondent’s employees, were periodically prepared
and distributed to coworkers by Bertram, Kessler, Remmel,
press operator Daniel L. Whitcomb,6 and, on occasion,
McCann. Additionally, T-shirts and/or caps bearing union in-
signia were worn by several employees, including Bertram,
Kessler, and Remmel. Indeed, T-shirts seem to most fre-
quently have been worn on Tuesdays. For, the phrase ‘‘T-
shirt Tuesday’’ was coined with regard to wearing them on
that day of the week. As will be seen, both the T-shirt wear-
ing and literature distribution became springboards for cer-
tain of the amended and consolidated complaint’s allegations.
B. Retention of Tamara Sondrol
During the summer, Respondent had examined and ar-
ranged to purchase from Lincoln Welder a robotic welder
that would eliminate a significant amount of manual labor
once jigs are built and parts need to be welded. Because
there was a 60-day money back guarantee for the robot, and
schooling or training in Ohio for an operator was included
in the robot’s purchase price, Respondent needed to select an
operator and commence operating the welder as soon as pos-
sible. That posed a problem.
Manager Vanderpool testified that ‘‘we didn’t necessarily
know who was going to operate it’’ and ‘‘our hope was to
find somebody that may already know a little bit about
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677KORONIS PARTS, INC.
robotic training’’ so that ‘‘we would have a better chance of
having jigs built before they went to school to learn how to
. . . program the thing’’ to ‘‘keep the torch head at arc’’ so
that the various metal parts could be welded. But, ‘‘we didn’t
have that person,’’ testified Vanderpool.
As a result, Vanderpool testified, he contacted The Work
Connection, a temporary employment placement agency lo-
cated in St. Cloud, Minnesota. ‘‘I dealt with Terri’’ Karolus,
he testified, who was at that time a staffing coordinator with
The Work Connection. Vanderpool explained to her that ‘‘we
were on a relatively tight time frame, but we were looking
for somebody that had welding ability, that knew what a
good weld looked like and somebody preferably that had
robotic experience but if we couldn’t find that person, some-
body that could recognize a good weld would probably work
for us.’’ Of equal import, given the facts as they unfolded
in the instant case, Vanderpool testified that ‘‘we were look-
ing for a long-term individual. Our investment in the training
was quite a bit and so [we] didn’t necessarily want some-
body to come and go to the training and then leave the
plant.’’ Karolus confirmed that testimony: ‘‘They were look-
ing for somebody that was willing to give [a] long term com-
mitment and eventually move this person into a robotics area
of the company.’’
Karolus supplied to Vanderpool resumes of a few people,
one of whom was Tamara Sondrol. She had participated in
2 years of industrial welding schooling. Robotic welding had
been included among her courses. Vanderpool testified that
when he expressed interest in Sondrol, Karolus mentioned
that Sondrol had earned ‘‘somewhere around $10.00 an
hour’’ at her previous job. In response to that, testified
Vanderpool, ‘‘I said, well we are in a position where we are
developing this, I don’t know necessarily that we will be
paying $10.00 an hour to somebody where we don’t know
for sure that all of their experience is exactly what we
want.’’ Still, Vanderpool arranged for an interview with
Sondrol.
During the middle of the workweek of September 11 to
15—the week following the Union’s first letter to Webb—
Sondrol was interviewed, and escorted on a tour of Respond-
ent’s Paynesville welding areas, by Vanderpool and Plant
Manager Cloakey. During the interview, ‘‘I told her that I
had talked to Terri at [T]he Work Connection and that we
were kind of thinking of somebody from—in the $8.00
range,’’ Vanderpool testified. That testimony is significant
because there is an allegation that, on or about September 15,
Vanderpool ‘‘instructed an employee to not discuss wages
with other employees.’’
As to that allegation, Sondrol testified that, during the
tour, she had waved to a welding department employee
whom she recognized and that Vanderpool had commented,
‘‘Oh, you know Ron,’’ to which she replied in the affirma-
tive. According to Sondrol, Vanderpool then said, ‘‘It’s real-
ly important that you don’t talk about wages to any of the
employees,’’ and Cloakey repeated that admonition: ‘‘It is
really important not to [t]alk about wages.’’ Sondrol testified
that she responded that she ‘‘understood.’’
Cloakey gave no testimony regarding the above-described
admonitions to Sondrol. Vanderpool agreed that he had men-
tioned to Sondrol the subject of discussing her wages with
Respondent’s employees. He claimed, ‘‘I can’t tell you ex-
actly where it was, and what time I talked with her,’’ but
he acknowledged having said to her, ‘‘that we were going
to pay [T]he Work Connection a larger dollar amount and
what she received was basically finalized by them and I’d
rather at this point if she didn’t talk about [it] with others.’’
Indeed, the General Counsel appeared not to dispute that $8
an hour was higher than the typical base pay for a welder
starting employment with Respondent.
The Work Connection was given notice that same week
that Sondrol’s service would be retained, with the under-
standing that Respondent would be hiring her if she worked
out during an approximately 1-month trial period. She started
welding at Respondent on Monday, September 18. She was
carried as an employee of The Work Connection during the
time that she worked at Respondent through Friday, October
6. Nevertheless, the General Counsel alleges that, during that
period, Respondent and The Work Connection had been joint
employers of Sondrol.
C. September Disciplinary Reports Issued to, and Job
Transfer of, William Bertram
One or two days after Sondrol commenced working at
Paynesville, two other events occurred. They involved Ber-
tram, the employee first identified to Respondent by the
Union as being on the latter’s organizing committee. He had
begun working for Respondent on June 20, 1994, in the wear
bar department where he operated the induction welding ma-
chine. During early 1995, he was transferred to the machine
shop. There, he worked primarily in the resleeving depart-
ment, but also worked elsewhere in the machine shop when-
ever a need arose. He continued doing so until Wednesday,
September 20.
Bertram received an employee disciplinary report signed
by Cloakey on ‘‘9–20–95,’’ and listing ‘‘9–19’’ as ‘‘Date of
Incident.’’ Checked on it, as ‘‘Nature of Incident,’’ are
‘‘Failure to follow instructions,’’ ‘‘Substandard work,’’
‘‘Carelessness,’’ and ‘‘Defective and improper work.’’ In the
‘‘Supervisor’s Remarks’’ section is handprinted:
BILL HAS RUINED TWO CYLINDERS IN THE LAST 3 DAYS
BY NOT PAYING ATTENTION TO WHAT HE IS DOING. WE
HAVE TOLERATED THIS PROBLEM LONG ENOUGH, HE
HAS HAD A PROBLEM WITH QUALITY FOR AWHILE. I
HAVE DONE EVERYTHING POSSIBLE TO TRAIN BILL TO
DO THIS JOB, BUT THE LACK OF QUALITY AND THE IN-
ABILITY TO MEASURE HAS MADE THIS EMPLOYEE UN-
ABLE TO DO HIS WORK CORRECTLY. BY MEASUREMENTS
WE MEAN BY USING THE MACHINERY AND ENDING UP
WITH PROPER TOLERANCES.
The General Counsel alleges that this disciplinary report had
been issued in retaliation for Bertram’s recently disclosed
union support and activities.
The disciplinary report was given to Bertram by Cloakey
during a meeting on September 20. As will be seen in sec-
tion II,F, infra, the basis for it was incorrect measurements
made by Bertram when resleeving cylinders.
During that same meeting, Bertram was informed that he
was being transferred back to the wear bar department. The
General Counsel alleges that this action also had been moti-
vated by hostility toward Bertram’s recently revealed support
for the Union. However, it is undisputed that he suffered no
reduction in pay as a result of the transfer. Moreover, Ber-
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678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tram declined an offer to be transferred instead to the fiber-
glass plant. As to the latter, he testified, ‘‘I worked in there
once before in cleaning and that fiberglass bothered me a
lot.’’
As to Respondent’s reason for having transferred Bertram
from the machine shop, Vanderpool testified that he ‘‘had
thought . . . for a fair amount of time’’ about closing the
resleeving operation, but had not had enough time to think
it through until ‘‘we were right back into’’ the fall when
people want to get sledding, they don’t want their sled
down, they don’t know when the snow is going to
come, so even though a project could have been three
or four weeks, they wanted it the next day, even if
there is no snow, but—because if it snows the next day,
they have to have it, and—there was a fellow down-
town that did a real good job of sleeving, he has many
times if somebody had a technical issue about an en-
gine or something, they’d reference this fellow, so he
carried quite a bit of prestige with him and I went
down and I asked him[.]
According to Vanderpool, he had worked on price with
that ‘‘fellow’’ and, then, had approached Webb, saying:
‘‘Ed, I’d really like to have somebody else do the
sleeving so we get the products out to the customer at
a rapid rate but I’ve got to be honest with you, I don’t
think we are going to make a lot of money on it. We’ll
make a nominal amount.’’ I said, ‘‘I almost have to
write this one off and it’s a customer service client
that—if we’re going to take care of the customers, they
have to have it, whether we have problems or not, they
don’t give a rip, they want their product and they want
it finished.’’
Although Webb ‘‘didn’t like the idea very well,’’
Vanderpool testified that he ultimately was ‘‘able to con-
vince him, if it’s based on customer service, often I can con-
vince him that we need to make a change that way.’’ As to
why he had ostensibly concluded that Bertram would not be
able to continue resleeving in the machine shop, Vanderpool
explained, ‘‘Because I felt that he couldn’t measure and if
you can’t measure, you can’t machine.’’
In light of certain October-based allegations, it also should
be noted that included with employees’ paychecks and post-
ed on September 22 was a notice to all employees. It stated:
On August 16, 1991 Koronis Parts, Inc. issued the fol-
lowing; [sic]
All employees will enter and exit through the front
door when coming to or leaving work. This includes
lunch and break periods.
On July 31, 1993 Koronis Parts, Inc. reminded all em-
ployees of this policy with the following notice; [sic]
When coming to and from work, use the front door
. . . no exceptions.
With the many phone calls and visitors we receive, this
is very important when trying to locate employees.
There is no allegation that, of itself, posting and distribu-
tion of that notice had been unlawfully motivated or other-
wise violated the Act. But, as discussed in subsection I, infra,
when disciplinary reports were issued to Bertram and
Remmel on October 16, for having used doors other than the
front one, the complaint alleges that Respondent violated the
Act.
Bertram returned to the wear bar department following the
above-described meeting. There, he resumed operating the
induction welding machine, as he had done prior to having
been transferred to the machine shop. On September 27, a
written document was handed to him by Lenz. That docu-
ment recites:
Warning to Bill Bertram for performing a known
task to less than standard and less than he previously
[has] shown us that he could do.
After a few days on the induction machine the stand-
ards are not being met. We anticipated at least 100%.
Kathy indicated to Bill that it was most important to
make good parts and the standards were secondary. We
looked back in our records and found that Bill excelled
on the standards last winter and no defective bars. We
can’t find any reason that he is not doing at least as
well as last winter. We do realize that he may need a
day or so to reacquaint himself to the process. Also, we
had another person work on it for 3 weeks and she did
more per hour than Bill is doing now. This is a warning
to Bill that we expect at least 100% of standard on the
induction machine. If his standards stay low we will
take necessary action. If he has questions or thinks that
this is not reasonable we will put someone else on it
and prove to him that he is far below standard. We also
expect quality bars. The induction process is very sim-
ple and very controlled so we should have no
defectives. We have moved Bill to this area after poor
quality warnings were given at his previous job. Com-
pany policy provides for us to take action when prob-
lems like this occur.
The document had not been signed or dated when handed
to Bertram by Lenz. At his request, she signed and dated it.
As with the prior two September personnel actions involving
Bertram—the disciplinary report and the transfer—the Gen-
eral Counsel alleges that his ‘‘Warning’’ also had been moti-
vated by considerations unlawful under the Act.
Lenz testified that she merely had been ‘‘given this docu-
ment to give to Bill.’’ Asked who had given it to her, she
responded, ‘‘I believe Bob Cloakey did.’’ Yet, Cloakey never
acknowledged that he had done so and, further, gave no testi-
mony whatsoever in connection with this ‘‘Warning to Bill
Bertram[.]’’ Instead, Vanderpool provided the explanation for
its preparation and issuance to Bertram:
Well, he moved back onto the department and I was
looking at the standards and all of a sudden my curios-
ity, see how he was doing, it seemed like the standards
were like 67, 74 percent which I felt that he could do
better at and so I wrote this up and I said, ‘‘Give this
to Bill, I know he can do better than that.’’ He basi-
cally had set the standard [when he had worked pre-
viously on the induction machine] and I talked to Bob
a little bit about it, so put it together and gave it to Bill.
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679KORONIS PARTS, INC.
To support that testimony, Respondent produced produc-
tion analysis records showing that from September 20
through 26 Bertram’s production had varied from 61 to 78
percent of standard. Bertram acknowledged that, when Lenz
had given him the warning, ‘‘I told her that I had needed a
few days to get back into the groove of things to know how
to do things again and find all the tricks and trades and ev-
erything and get my production up[.]’’ In short, Bertram con-
ceded that his production through September 26 had been
below standard. In contrast, from September 27 through 29—
after having received the ‘‘Warning’’—his production rose to
between 94 and 101 percent of standard.
D. September Bonuses and Gift and Prize Awards
On September 27, Respondent had a picnic for its employ-
ees. That was not a particularly unusual event. It is undis-
puted that Respondent sponsored functions, at which food
was served to its employees, quite a few times in the past.
In fact, the General Counsel does not allege that conducting
the September 27 picnic, of itself, had violated the Act. Still,
the complaint does allege that ‘‘Respondent awarded a
$1,000 bonus to each employee with more than ten years of
service, and gave other employees gift certificates, in order
to discourage employee support for the Union.’’
During the picnic, in fact, Respondent did award 10-year
service plaques to six employees and $1000 bonuses to three
of them. As discussed further in section II,C, infra, however,
it presented evidence that those plaques and bonuses had
been planned several weeks before the organizing campaign
had been revealed by Behr’s September 7 letter.
Less evidence was presented concerning the gift certifi-
cates and monetary prizes awarded as a result of drawings
conducted during the picnic. There is no dispute that such
drawings did occur. Edward Webb testified that at previous
company functions, such as at Christmas and New Year, and
at lunchtimes, similar drawings had been conducted. Yet,
whereas the September 27 prizes ‘‘varied from $5 to $20’’
and the majority of that the gift certificates ‘‘were in the $10
area,’’ Webb testified that prizes or awards at previous draw-
ings had been ‘‘[j]ust little stuff,’’ such as ‘‘$5 gift certifi-
cates to Subway. Stuff like that.’’ He did not explain the rea-
son(s) for the higher value prizes and certificates awarded on
September 27.
E. Request for Restriction on Distribution of Union
Literature and Issuance of Employee Disciplinary
Report to Kessler on October 3
One final event may have occurred during September, or
may not have occurred until early October. In either event,
the General Counsel alleges that Cloakey unlawfully had
‘‘instructed an employee to not hand out Union literature
during breaks.’’ As stated in subsection A, above, Kessler
had been one employee who had distributed literature on be-
half of the Union. Some had been distributed during breaks.
Cloakey testified that when literature had been distributed
during breaks, rather than returning to work afterward, em-
ployees ‘‘were standing around talking about the literature
and everything[,] so I went to Bob [Kessler] and I asked him
if it would be possible that we could compromise and do this
after work, meaning him distributing his literature and us dis-
tributing our literature, meaning the company.’’ According to
Cloakey, Kessler ‘‘wondered if he would be able to leave a
minute or two early to get to the front door to pass out the
literature and I said[,] ‘Whatever you have to do, Bob, go
ahead and do,’’’ with the result that Kessler was allowed to
leave early and was paid for such early departures from
work.
No evidence was presented to challenge Cloakey’s de-
scription of employees having discussed literature distributed
during breaks, rather than returning to work. Kessler admit-
ted that Cloakey had done no more than ask for an agree-
ment concerning the time of literature distribution. He also
acknowledged that, in doing so, Cloakey had said that he
could not force Kessler to do anything.
According to Kessler, he had been summoned by Cloakey
to the latter’s office where Cloakey had ‘‘asked . . . if we
could try to pass [Union literature] out after work instead of
during breaks because it disrupted people after break. They
would be looking at it or whatever,’’ and Kessler promised
to confer with Bertram and Remmel to ascertain if they
would agree to such an arrangement. Kessler did not testify
to any other remarks during that conversation. As will be ex-
plained in subsection O below, the proposed arrangement did
not work out and resumption of breaktime literature distribu-
tion led to another alleged violation of the Act.
On October 3 Kessler received from Edward Webb an em-
ployee disciplinary report for ‘‘Improper Conduct.’’ On it,
Webb had written, under ‘‘Supervisor’s Remarks’’:
I HAVE INFORMATION THAT YOU HAVE MADE STATE-
MENTS TO ONE OF MY VENDORS THAT ARE UNTRUE.
THESE WERE STATEMENTS SUCH AS ‘‘THE COMPANY
MADE 3-1/2 MILLION LAST YEAR’’ AND ‘‘HE’S HIDING
MONEY.’’ I CONSIDER THESE STATEMENTS DEFAMATORY
AND THEY MUST CEASE NOW. CONTINUED DEFAMATORY
STATEMENTS SUCH AS THESE WILL RESULT IN FUTURE
DISCIPLINE.
There is no dispute about the sequence of events which led
to preparation and issuance of that disciplinary report, though
the General Counsel alleges that those events warrant the
conclusion that it had been unlawfully issued to Kessler.
To repair the SL3 turning center, Bart Kuney, owner of a
repair business, had come to Respondent’s Paynesville place
of business. Whenever he had come there, Kuney and
Kessler would lunch together. They did so on October 2.
During the course of that lunch, they discussed the union ac-
tivities then in progress at Respondent. Kessler mentioned
that, at one of the Union’s meetings, employees had been
told that Webb ‘‘was hiding money and when I got back [to
work] I got a warning letter the next day’’ from Webb.
As to that latter subject, Kessler testified that he had been
called to Webb’s office where he had been issued the above-
mentioned disciplinary report. In the accompanying conversa-
tion, testified Kessler, Webb ‘‘said that I had used poor judg-
ment I think was how he said it, and it was a derogatory
thing towards the company that I said these things to Bart.’’
Kessler testified that he had replied, ‘‘I thought it was okay
that I said these things. I was off company property on my
own time, but I did think . . . I probably could have used
better judgment in what I said to Bart.’’
Webb testified that he had known Kuney for approxi-
mately 15 years and that, on October 2, Kuney had asked to
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680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Bertram testified that, after work, he had helped his father on the
latter’s farm.
speak with Webb. During their ensuing conversation, accord-
ing to Webb, Kuney said that Kessler ‘‘had told him that I
was hiding money and that I had made $3-1/2 million last
year and he said that it concerned him as a vendor and a
friend’’ that someone would be saying such things.
When he met with Kessler, Webb testified that he repeated
what had been reported by Kuney and Kessler admitted hav-
ing said as much to Kuney, though ‘‘he said that the [U]nion
said it[.]’’ Webb responded, ‘‘[T]that the end result is the
same and I would prefer if you’re not sure on the facts that
you don’t spread rumors to my vendors. He agreed that that
wasn’t in good taste, and he also agreed that he wouldn’t do
it. I said that I had to give him a warning for that.’’ But,
Webb never explained why he had felt it necessary to issue
a disciplinary report to an employee who had promised that
he would not repeat such conduct. Nor, for that matter, did
Webb explain why, on that disciplinary report, he had
backdated the ‘‘Date of Incident’’ to ‘‘9–22–95.’’
F. T-Shirt Incidents
As described in subsection A, above, union T-shirts were
being worn by some employees, particularly on Tuesdays.
Webb testified that ‘‘a number of employees came to me and
said, can we get shirts that say, vote no, and I said that
shouldn’t be a problem’’ Webb never identified any of the
employees who purportedly made that request. Nor did any
employee appear as a witness to corroborate his testimony
about that asserted request by ‘‘a number of employees,’’
though employees and former employees were called by Re-
spondent to corroborate other aspects of Edward Webb’s tes-
timony.
Respondent did obtain ‘‘VOTE NO’’ T-shirts and they
were offered to employees by, at least, Vanderpool. For ex-
ample, Sondrol testified that as she returned from lunch one
Tuesday, Vanderpool had been standing by the front door—
through which employees were supposed to enter and exit
the building, as described in subsection C, above—and he
asked if anyone wanted one of the ‘‘bunch of T-shirts’’ he
had. It is not disputed that Sondrol asked, ‘‘We don’t have
to wear it if we take one, do we?’’ When Vanderpool merely
smiled in response, Sondrol took one, saying, ‘‘I’ll take a
free T-shirt.’’ But, so far as the evidence shows, she never
wore it at work.
Similarly, it is uncontested that when Bertram walked in
the front door, wearing a blue union T-shirt, and encountered
Vanderpool handing out Respondent’s T-shirts, Bertram
asked if he could have one. Vanderpool replied in the affirm-
ative and, as he handed one to Bertram, remarked, ‘‘Now
you can get rid of the blue one.’’ That remark is not alleged
as an independent violation of the Act. However, the amend-
ed and consolidated complaint does allege that Respondent
interfered with, restrained, and coerced employees in the ex-
ercise of statutory rights by the act of having ‘‘distributed
‘VOTE NO’ T-shirts to employees.’’ Further, it is alleged
that Respondent also violated the Act when Webb threatened
that if an ‘‘employee was not going to wear the T-shirt at
Respondent’s Paynesville . . . facility, the T-shirt had to be
returned.’’
That employee had been Bertram. After receiving a T-shirt
from Vanderpool, Bertram returned to work, remarking to a
coworker ‘‘that I should turn it inside out and wear it in the
barn.’’7 Bertram did not identify the individual to whom he
had made that statement. Yet, it is clear that he had made
such a statement. For, Webb testified that it was reported to
him that Bertram ‘‘had told someone in the plant that . . .
he was not going to wear the shirt at work but he was going
to take the shirt home and wear it in the barn with the pigs.’’
Webb did not identify the individual who had made that re-
port. Nor did either side call as a witness the individual to
whom Bertram had spoken and, presumably, who had made
the report to Webb.
Webb testified that he felt what Bertram had said, ‘‘was
improper’’ and, consequently, ‘‘the next day or so I went and
talked to Bill and asked him if he wasn’t going to wear the
shirt at the plant if he would please return the shirt,’’ point-
ing out that it cost $15. Bertram agreed that, during this con-
versation, Webb had ‘‘said the T-shirt costed [sic] about $15
and that if I wasn’t going to wear it at the shop that I should
bring it back and that the comment I made was a rude com-
ment, and I apologized for the comment.’’ Interestingly,
when the subject was pursued with Webb during cross-exam-
ination, Webb embellished his account, testifying that Ber-
tram had ‘‘told other employees’’—not just the ‘‘someone’’
whom Webb had mentioned during direct examination.
Bertram did not immediately return the T-shirt. So, Webb
used one of Respondent’s ‘‘Message Reply’’ forms to notify
Bertram that, as Webb put it when testifying, ‘‘[I]f he wasn’t
going to use it the way it was intended to . . . be used, if
he would please return it.’’ In addition, it is uncontroverted
that the message imposed a noon, Friday deadline for com-
pliance, although it apparently contained no overt warning of
discipline for noncompliance. When returning from lunch the
following Friday, Bertram stopped by Webb’s office and re-
turned the T-shirt.
G. Individual Meetings with Some Employees
On Thursday, October 5, and on Friday, October 6, the
Webbs met with groups of 10 to 12 employees, to explain
Respondent’s position on employee-selection of the Union as
a bargaining agent. There is no allegation that anything said
during those group meetings had violated the Act though, as
will be seen in subsection H, below, the events at one of
them provide background for an event that is alleged to have
done so.
The complaint enumerates various unlawful remarks alleg-
edly made by Edward Webb during November conversations
with individual employees. However, the evidence reveals
that those conversations actually occurred in connection with
the October 5 and 6 group meetings. Following those meet-
ings, Edward Webb testified during direct examination, ‘‘a
number of people had asked for’’ information regarding their
employment records and Respondent’s profit-sharing plan.
During cross-examination, however, Webb conceded that
only ‘‘Some’’ employees had initiated the individual meet-
ings with him which had followed the group meetings. And
he further conceded expressly that ‘‘some of them did not.’’
He went on to admit that, ‘‘[p]robably Bob Cloakey might
have arranged’’ the meetings with employees who had not
initiated them and, moreover, that he had directed Cloakey
to arrange for ‘‘some of them.’’
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681KORONIS PARTS, INC.
Kessler testified that he had been assigned a time to report
to Webb’s office. Once there, he testified, there had been
discussion of wage percentages and raises he received while
having worked for Respondent. That was followed, according
to Kessler, by discussion of the Union and, during that por-
tion of the conversation, Webb ‘‘said if it gets in, I’ll just
close, and then he stopped and he said I’ll retract that, or I’ll
take that back.’’ Kessler testified that Webb had continued
by saying, ‘‘[I]f it did get in, or you know, that he would
have a hard time negotiating with someone that called him
a son of a bitch.’’ In fact, Union Vice President Behr, testi-
fied Kessler, ‘‘[H]ad said he had called [Webb] that at one
of our meetings.’’
Based on the foregoing testimony by Kessler, the General
Counsel alleges that Webb had threatened to close if the
Union became the bargaining agent of Respondent’s employ-
ees and, additionally, had created the impression that em-
ployees’ union activities were under surveillance, as a result
of Webb’s statement about Behr’s S.O.B. comment. Webb
agreed that he had met with Kessler ‘‘after the group meet-
ings’’ and that, during their meeting, he had provided infor-
mation concerning Kessler’s wage increases while employed
by Respondent. Webb testified that he had said that ‘‘I
couldn’t understand why somebody would want a union in
here.’’ However, he denied having discussed closing the
plant, denied that the issue of plant closure even had arisen,
denied that either he or Kessler had mentioned the possibility
of closing the plant, and denied having made any statements
which he then said that he was retracting.
Bertram testified that, following the group meeting he had
attended, ‘‘Bob Cloakey I believe came and told me the time
I was supposed to go up’’ to Edward Webb’s office. ‘‘I had
been in’’ that office before, testified Bertram, ‘‘[B]ut not for
a personal one on one talk like that.’’ According to Bertram,
Webb asked, ‘‘[W]hy I wanted a union’’ and ‘‘[W]hat I
thought was going to improve and different questions of that
sort,’’ to which Bertram explained, ‘‘[W]hat I thought would
improve’’ and that ‘‘my turning point on when I contacted
the [U]nion’’ had been when he had received only ‘‘a quarter
raise on my yearly review[.]’’ Webb’s above-quoted ques-
tioning of Bertram is alleged to have constituted unlawful in-
terrogation.
Webb acknowledged that he had participated in a one-on-
one meeting with Bertram. During direct examination he
claimed that the meeting had occurred when Bertram ‘‘had
asked to see his wages.’’ Yet, when asked during cross-ex-
amination if Bertram, as well as Kessler, had been among the
people whose individual meetings had been arranged by a su-
pervisor, Webb reversed field by equivocating: ‘‘I don’t
know. Could be.’’
As to what had occurred during his one-on-one meeting
with Bertram, Webb testified, ‘‘I don’t remember anything
particular other than giving him the [wage] information.’’
Nevertheless, his asserted lack of memory did not preclude
Webb from denying that there had been any conversation
about Bertram’s union support and, moreover, denying that
he had asked why Bertram wanted a union and had asked
questions about Bertram’s union activities. When asked if
Bertram had discussed why he supported the Union, how-
ever, Webb answered merely, ‘‘Not that I remember.’’
As discussed in the immediately following subsection, and
in section II,D, infra, during the afternoon of October 6 Re-
spondent notified The Work Connection that it no longer
needed the services of Tamara Sondrol. Based on his de-
scription of what Webb said during it, Remmel’s one-on-one
conversation with Webb obviously occurred afterward,
though it is not clear how long afterward. Remmel testified
that Webb started by claiming that Remmel had received
‘‘better raises and bonuses than the [U]nion would have ever
gotten for me’’ and, later, asked if Remmel felt that employ-
ees had been unfairly treated. According to Remmel, he iden-
tified three employees, one being Sondrol, whom he felt Re-
spondent had treated unfairly. Webb responded by explaining
the situation of each of those three employees. Specifically,
uncontradicted was Remmel’s account that Webb had said
that Sondrol ‘‘didn’t work for the company. He didn’t fire
her, the company that she worked for, the placement agency,
had fired her[.]’’ As will be seen, no such firing of Sondrol
was made by The Work Connection.
Remmel testified that he mentioned that he believed that
Respondent owed him a bonus for developing ‘‘a new type
of stud’’ which Respondent was attempting to patent. Webb
responded, testified Remmel, ‘‘[T]hat I would get that bonus
and that if my attitude had been better I would have gotten
more bonuses by then too.’’ That asserted remark is alleged
by the General Counsel to have constituted a threat that
Remmel ‘‘would have received other bonuses had his atti-
tude been better, in order to discourage employee support for
the Union.’’
Indeed, Webb did acknowledge that a bonus for develop-
ing a new stud had been discussed with Remmel and, further,
that he had given Remmel ‘‘a $500 bonus check,’’ because,
asserted Webb, he ‘‘thought there was a possibility that it
was something that was patentable, and I felt it was a little,
maybe, above and beyond the normal situation so I gave him
a $500 bonus check.’’ Still, Webb further testified, Remmel
had complained that he ‘‘felt that he was worth more
money,’’ contending ‘‘that he made me $250,000 last year
on his R & D—things that he did in R & D.’’ When he
asked what Remmel meant, testified Webb, Remmel speci-
fied a trail tamer suspension which he had been involved in
developing. Discussion of the $250,000 concluded when,
Webb testified, he ‘‘said why don’t you over the weekend
put down on paper what this $250,000 profit that you made
for me was.’’
Webb denied that, during this one-on-one conversation, he
had criticized union activity in any way: ‘‘No, I was very
careful not to talk about the [U]nion other than the fact that
I had said a number of times that based on the percent of
pay increases I didn’t understand why people would want a
union.’’ Nevertheless, when asked specifically if, during his
meeting with Remmel, there had been any discussion of
Remmel’s union activity, Webb responded only, ‘‘I don’t re-
member.’’
Webb did admit that, at one point during their conversa-
tion, he had said that Remmel ‘‘could have or may have pos-
sibly received a bonus if he had a better attitude.’’ Asked
about his remark about Remmel’s attitude, Webb answered,
‘‘Well, he had a tendency to agree on something and then
a few weeks or months later all of a sudden he’s upset[.]’’
Yet, Webb conceded that he had not explained to Remmel
what was meant by the remark ‘‘better attitude.’’
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682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. Discontinuance of Sondrol’s Relationship
with Respondent
As set forth in subsection B, above, Tamara Sondrol had
commenced working at Respondent on Monday, September
18. Vanderpool agreed that, once the contractual period with
The Work Connection was completed, he had planned to hire
her, so that she could attend school in Ohio and then operate
the robotic welder. There was no equivocation by
Vanderpool about these plans, assuming that Sondrol per-
formed satisfactorily while working at Respondent before
being sent to school in Ohio.
From September 18 through October 6, Sondrol had been
actually paid by The Work Connection and Respondent char-
acterized her as The Work Connection’s employee. As
Vanderpool testified, ‘‘[T]hey were employing this individual
at one location for us to use to see if this all works out.’’
He acknowledged, however, that Respondent had been billed
for the hourly pay—and apparently benefits costs—while
Sondrol had worked at Paynesville. Furthermore, it is undis-
puted that, while working at Respondent, no one else from
The Work Connection had been there to supervise Sondrol’s
work. Her assignments were determined and made by Re-
spondent’s supervisory personnel. The caliber of her work
was evaluated by Respondent’s supervisors. She punched Re-
spondent’s timecards. Her break and lunchtimes cor-
responded to those of Respondent’s employees. In short, so
far as the record reveals, save for the identity of the entity
referred to as her employer, Sondrol had been treated as
would an employee of Respondent during her employment at
its place of business from September 18 through October 6.
There is no evidence that, while working there, Sondrol
had engaged in any activity on behalf of the Union which
might have come to Respondent’s attention. In fact, so far
as the evidence discloses, she did no more than sign a card
authorizing the Union to represent her and talked about the
Union on breaks with other employees. There is no evidence
that Respondent learned about these activities by October 6.
Still, there were certain events which, the General Counsel
argues, naturally would have led Respondent to suspect
Sondrol of being sympathetic to the Union, and to believe
that she would become a union supporter should she be
added to Respondent’s payroll. For example, as described in
subsection F, above, she had asked Vanderpool if employees
had to wear one of the ‘‘VOTE NO’’ T-shirts before having
accepted one from him. Further, there is no evidence that she
ever had worn that T-shirt at Respondent. Of course, it had
been a similar failure to wear such a T-shirt which had got-
ten Bertram into trouble with Edward Webb, as described in
subsection F, above.
A more significant event occurred in connection with the
October 5 and 6 group meetings. Sondrol had not been
scheduled to attend any of them. When she asked Cloakey
why she had not been scheduled for attendance at a meeting,
it is undisputed that he said she was not yet an employee of
Respondent. She told him that she would like to attend one
to ‘‘get to know the company firsthand rather than [through]
hearsay’’ and Cloakey said he would ask Edward Webb.
Shortly afterward, Cloakey returned and said that Sondrol
could attend the 9:10 a.m. meeting on October 6.
At that meeting, testified Sondrol, she asked two questions
and expressed one concern. As to the latter, she complained
that the condition of her jig was preventing her from achiev-
ing 100 percent of Respondent’s standard. As to her ques-
tions, she testified that one had resulted from Edward
Webb’s invitation for employees to bring their questions and
concerns to him. According to Sondrol, she asked Webb if
employees who did so ‘‘would be treated differently’’ and he
responded in the negative.
She testified that her second question had pertained to a
welder who would not be receiving a raise. According to
Sondrol, she asked why an employee should not get a raise
if it was the machine which was causing defects in product
manufactured on it. Sondrol testified that Webb had replied
that such an employee would get a raise if the machine was
the problem, but that the meeting was not the place to dis-
cuss such a subject.
Edward Webb testified that Sondrol ‘‘asked basically what
I remember two items.’’ He identified her problem with
‘‘one of her fixtures’’ and her question about a coworker’s
failure to receive a raise. However, while he did not ac-
knowledge that she had asked about it, neither did he contest
her testimony that she also had asked about possible reprisals
against employees who brought questions or concerns to his
attention, pursuant to his invitation to do so.
After that meeting the employees took their break. On re-
turning from break, Sondrol was joined at her workplace by
Webb, Vanderpool, and Cloakey who examined the jig about
which she had complained during the group meeting. None
of those three supervisors explained why it had been nec-
essary for all of them to do so.
Vanderpool’s testimony about that jig examination is sig-
nificant, especially as Respondent argues that he had been
the official who had made the decision later that same day
to cease utilizing Sondrol’s services. During direct examina-
tion, he denied unequivocally having received any report
about Sondrol’s statements during the group meeting which
she had attended. Yet, as he conceded having been one of
the supervisors who inspected her jig shortly after Sondrol
had complained about it during the group meeting, it is log-
ical to doubt his denial.
Vanderpool admitted during cross-examination that he had
met in his office with Edward Webb and Cloakey imme-
diately after the group meeting which Sondrol had attended.
He then renewed his earlier denial that he had been told what
Sondrol had said during that group meeting. He even denied
having been told about her problem with her jig. When he
next was asked how he had learned of that problem,
Vanderpool testified, ‘‘Ed came down and said to me, he
said we got a problem with the jig and follow me, so we
went out there and looked at the jig.’’
Yet, any seeming plausibility to that latter description
tends to be undermined by Vanderpool’s earlier above-de-
scribed admission that he had met in his office with Webb
and Cloakey immediately after the 9:10 a.m. group meeting
on October 6. One can speculate that the jig had not been
discussed during that office meeting. But, Vanderpool never
testified, nor did Webb and Cloakey, that it had not been dis-
cussed there. In fact, none of those three supervisors ex-
plained what had been discussed during their meeting after
the 9:10 a.m. group meeting on October 6. Given the prox-
imity of the two meetings, it is difficult to avoid inferring
that the events occurring during the one with the employees,
in fact, had been discussed during the one among the super-
visors.
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683KORONIS PARTS, INC.
Such an inference tends to be further confirmed by what
occurred when counsel returned to cross-examining him
about the events which had followed the group meeting. For,
rather than simply answer questions, Vanderpool began fenc-
ing, obviously attempting to avoid making any admissions
while also trying to avoid inconsistencies between his an-
swers:
Q. When you were in the office with Mr. Webb and
Mr. Cloakey for at least 20 minutes between the time
the group meeting ended and the time you went out to
check Tamara Sondrol’s jig weren’t you?
A. I can’t tell you that, I don’t know. I am in Ed’s—
what was I in Ed’s office supposedly or was I in my
office?
Q. Your office.
A. Very seldom was there any lengthy meetings that
occur in my office. I could have been in Ed’s office for
that length of time. My office is crowded.
Later that same day, Vanderpool called The Work Connec-
tion and gave notice that Respondent no longer wanted
Sondrol to report to Paynesville and, further, did not intend
to hire her. Respondent’s telephone records reveal that on
that date three calls were placed to The Work Connection:
at 12:26 p.m., at 2:24 p.m., and at 3:29 p.m. Obviously, in
whichever of these calls notice was given regarding Sondrol,
that notice had to have occurred after Sondrol’s remarks dur-
ing the 9:10 a.m. group meeting with the Webbs. And the
call also had to have occurred after the following meeting of
Edward Webb, Vanderpool, and Cloakey. The General Coun-
sel urges that, with regard to Sondrol, Respondent and The
Work Connection had been a joint employer of Sondrol,
while she worked at Paynesville, and, therefore, Respondent
had discharged her on October 6 in violation of the Act. Al-
ternatively, the General Counsel argues that Respondent had
intended to hire Sondrol, but refused to do so because it sus-
pected her of being union or potential union supporter.
Respondent disputes those arguments, as discussed more
fully in section II,D, infra. Essentially, as described in sub-
section B, above, Respondent had been seeking a commit-
ment for long-term employment from whomever it sent to
robotic training and assigned to operate the robotic welder.
Vanderpool testified that as time passed, after she had begun
working at Paynesville on September 18, he ‘‘started being
a little nervous,’’ as a result of Sondrol’s seeming indiffer-
ence to working for Respondent. Given the 60-day money
back guarantee for the robotic welder, the investment of
time, and money for schooling the person who would operate
it, and Sondrol’s seeming reluctance to be enthusiastic about
long-term employment with Respondent, Vanderpool testified
that he decided on October 6 to cease utilizing her services
and select someone else for the Ohio schooling.
I. Disciplinary Actions of October 16
The next set of events material to the amended and con-
solidated complaint occurred on Monday, October 16. As de-
scribed in subsection C, above, on September 22, Respondent
republished its proscription on use of doors other than the
front one when coming to and leaving from work, and also
during lunches and break periods. On October 16, Bertram
and Remmel were each issued an employee disciplinary re-
port for ‘‘Failure to follow instructions’’ and ‘‘Violation of
Company Rules.’’ The ‘‘Supervisor’s Remarks’’ portion of
Remmel’s disciplinary report states that he ‘‘went into [sic]
the shipping door’’ at ‘‘lunch time.’’ The corresponding por-
tion of Bertram’s disciplinary report states that he left and
entered by the side door and adds, ‘‘IF HE DOES THIS
AGAIN HE WILL BE DISMISSED.’’ The General Counsel
alleges that the two disciplinary reports were unlawfully mo-
tivated and, accordingly, violated Section 8(a)(3) and (1) of
the Act.
In opposing any such conclusions, Respondent points to
three factors. First, the rule restricting use of doors other than
the front one had been a longstanding one. It predated by
several years the Union’s organizing campaign.
Second, Bertram admitted that he had gone out a side door
to check damage to his car, from having struck a deer earlier
that day, and had returned through that same side door.
Remmel denied that he had used any door but the front one
when entering or leaving the building for personal business.
Still, he acknowledged that he had exited and re-entered ei-
ther, or perhaps both, the self-opening garage door or the lit-
tle swinging door in the dynamometer room in the course of
performing his duties that day.
Third, Bertram and Remmel were not the only persons
who received disciplinary reports on October 16 for using
other than the front door. Greg Ranthum also received one
that day. Moreover, on October 24 disciplinary reports were
issued to Jeff Oliver and Yvette Andrews. On October 25,
a disciplinary report was issued to Brenda Lang. Signifi-
cantly, Ranthum’s disciplinary report had been issued for
having used the same side door as Remmel had been dis-
ciplined for using. And Lang’s disciplinary report had been
for using the same side door as had Bertram had used and
been disciplined for using on October 16.
Nonetheless, the General Counsel points to the conceded
fact that no one ever had been disciplined prior to October
16 for using other than the front door.
In addition to receiving the disciplinary report on October
16, Remmel also was handed an ‘‘INTERNAL MEMO’’
from Vanderpool. In pertinent part, it states:
It has been brought to my attention by other Koronis
Parts employees that you are very unhappy with your
current wages at Koronis Parts. It is Koronis Parts Pol-
icy to do everything possible to keep our employees
happy, as happy employees are productive employees.
Koronis policy is that any work or wage concerns are
to be handled within our procedures and that is, you
need to discuss this with your direct supervisor not
other employees. Other employees cannot solve your
concerns. You know what Ed’s feelings are with his
employees. That all employees should enjoy their work
and if they don’t they should discuss it with their super-
visors. If that is not satisfactory see ED. If you are still
unhappy he asked that you look for a job that makes
you happy.
Based on your voiced unhappiness and your current
attitude, Ed offered you a day off with pay to look for
another job that meets your goals. You stated that
Willmar Manufacturing is looking for an R and D per-
son that pays $14–$16 per hour. You were given the
opportunity to go last week but didn’t. I suggest you
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684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Par. 6(m) of the amended and consolidated complaint alleges that
this had occurred during late November or early December. That
pleading is supported by Andrews’s prehearing affidavit. When she
testified, however, Andrews was firm, despite having her attention
directed to the affidavit, that she had been questioned about a month
after starting work for Respondent on September 18.
arrange to apply at the other Companies by this Thurs-
day as this paid offer expires on 10–19–95.
The complaint alleges that the memo had been issued in re-
taliation for Remmel’s support for the Union and to discour-
age employee support for it.
Respondent contends that it had been dissatisfied with
Remmel’s performance, citing as asserted examples
Remmel’s wandering and inability to ‘‘keep track of him’’
when he was supposed to be working on specific projects,
as well as his inability to finish projects after starting them.
Vanderpool testified that Remmel ‘‘just seemed to be un-
happy,’’ and after ‘‘a series of meetings’’ at which the ‘‘kind
of things he was so unhappy about’’ were discussed,
Vanderpool offered Remmel a paid day off to look for an-
other job. However, testified Vanderpool, Remmel ‘‘was al-
ways wanting me to write everything down and document it,
so I typed up a form that I gave him that said exactly what
we talked about at the meeting so he didn’t think . . . we
are not going to pay him.’’ At no point did Vanderpool ex-
plain the disparity between his testimony and the above-
quoted wording of his memo, which quite clearly is ad-
dressed only to dissatisfaction with wages.
J. Alleged Interrogation of Yvette L. Andrews
A final October event involves alleged unlawful interroga-
tion of wear bar department employee Yvette L. Andrews by
Lenz.8 Andrews testified that, as she was getting ready to re-
sume work after the morning break, Lenz approached and
asked, ‘‘[I]f I had attended the union meeting.’’ When she
replied that she had done so, to ‘‘find out some information
about the [U]nion because I had never been to one before
and I want to have some questions answered,’’ testified An-
drews, Lenz ‘‘said yeah, I had every right to go to these
meetings and to get my questions answered and find out in-
formation but they were going to lie to me anyway.’’
It developed during cross-examination that the above-
quoted question, which Andrews attributed to Lenz, was not
consistent with the question described by Andrews in her
prehearing affidavit: ‘‘She . . . asked me if I was going to
the union meeting.’’ (Emphasis added.) Yet, Andrews ap-
peared not to truly appreciate the distinction in verb tense
and, further, maintained while testifying that ‘‘[t]he con-
versation took place the day after’’ a union meeting which
she had attended. Indeed, her affidavit’s description of Lenz’
question is preceded by a sentence which reads, ‘‘It was on
a Friday morning, the morning after I attended a Thursday
night union meeting. (Emphasis added.)
In the final analysis, the distinction in verb tense, as well
as the disparity in date, is much ado about nothing. For,
called as a witness by Respondent, Lenz never denied with
particularity having questioned Andrews. Further, asked if
she had ever discussed with Andrews the subject of going to
union meetings, Lenz answered, ‘‘I don’t think that I ever
discussed anything with her but I did try to encourage every-
body to go to at least one meeting.’’ Yet, Lenz never identi-
fied even one employee whom she had tried to encourage
‘‘to go to at least one meeting.’’ Nor did Lenz testify with
specificity regarding her purported words of encouragement.
No employee, other than Andrews, appeared as a witness to
corroborate Lenz’ asserted encouragement to attend at least
one union meeting. And, of course, Andrews would be en-
compassed by the general term ‘‘everybody.’’
K. Disciplinary Reports for Unauthorized use of
Company Telephones
On November 7 Bertram and Kessler each received em-
ployee disciplinary reports. Both were for ‘‘Improper Con-
duct,’’ ‘‘Theft (Stealing),’’ and ‘‘Violation of Company
Rules and Conduct.’’ The ‘‘Supervisor’s Remarks’’ portion
of Kessler’s disciplinary report states:
USING THE COMPANYS [SIC] DIRECT DIAL PHONE SYS-
TEM TO MAKE PERSONAL PHONE CALLS BOTH DURING
WORK HOURS AND OR DURING BREAKS ARE NOT AL-
LOWED. I CONSIDER THIS AS IMPROPER CONDUCT AND
THEFT. ANY FURTHER LIKE CONDUCT COULD CAUSE
TERMINATION.
The corresponding section of the disciplinary report issued to
Bertram recites:
ON NOV. 6, 1995 BILL MADE A PHONE CALL TO GEORGE
BEHR JR. THIS WAS A LONG DISTANCE PHONE CALL,
BILL DID NOT HAVE PERMISSION TO MAKE THIS PHONE
CALL WHICH COSTS THE COMPANY MONEY, AS FAR AS
I AM CONCERNED THIS IS STEALING WHICH IS NOT TOL-
ERATED.
Both employee disciplinary reports are alleged as violations
of Section 8(a)(3) and (1) of the Act.
Page 2 of the ‘‘COMPANY POLICY,’’ which became
‘‘Effective 4–8–91’’—and, as far as the record discloses, re-
mained effective on November 7—states, ‘‘Personal phone
calls or visitors will not be allowed during working hours
without prior arrangements.’’ Kessler acknowledged that he
had been aware of Respondent’s policy that no personal calls
should be made on its phones without prior approval from
a supervisor. In contrast, Bertram claimed not to know if Re-
spondent had a policy of asking permission to make personal
calls on its phones. He did acknowledge, however, having re-
ceived a copy of the above-mentioned ‘‘COMPANY POL-
ICY’’ effective April 8, 1991.
A somewhat different explanation for each of the two dis-
ciplinary reports was advanced by Cloakey, who assertedly
had initiated the sequence of events which led to issuance of
both. ‘‘I had noticed that [Kessler] was on the phone quite
a bit,’’ he testified, and ‘‘I talked to Kathy Webb and asked
her if it was possible to get all the phone records off of that
calling number.’’ The calling number refers to the code num-
ber which Respondent had assigned to Kessler, as it does to
some of its other personnel, for making business-related
calls. According to Cloakey, Kathleen Webb had said that it
was possible to do so and, having obtained those records,
Cloakey called every telephone number listed for Kessler’s
code number, discovering that there had been ‘‘thirty some’’
personal calls made by him.
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685KORONIS PARTS, INC.
9 Cloakey had not been present at the beginning of that meeting.
As to Bertram, to whom no code number ever had been
assigned, Cloakey testified that ‘‘I happened to see him on
the phone,’’ which he regarded as an ‘‘unusual occurrence,’’
and, again, went to Kathleen Webb who showed Cloakey
how to redial a number called from Respondent’s system. He
did so and, testified Cloakey, ‘‘[G]ot an answering machine
for George Behr, Jr.’’
Edward Webb signed Kessler’s disciplinary report regard-
ing use of the telephone. He testified on direct examination
that his wife ‘‘came to me with the phone records and I
asked her . . . to ask Bob to go through the records and
check the phones.’’ During cross-examination, however, Ed-
ward Webb testified inconsistently that ‘‘I believe it was Bob
[Cloakey] or Kathy, my wife’’ who had the idea of auditing
Kessler’s phone calls. Aside from who had initiated the idea
of auditing those calls, during direct examination Edward
Webb testified that it had been Cloakey who had checked the
telephone records for Kessler’s personal calls. But during
cross-examination, Edward Webb testified, ‘‘[T]hat Kathy
looked because those are the only phone calls [sic] records
that she had at that time[.]’’ Kathleen Webb was never called
by Respondent to clarify the discrepancies in her husband’s
descriptions, though she clearly was available as a witness
for Respondent.
During direct examination, when asked about his involve-
ment in issuing the warning notice of November 7 to Ber-
tram, Edward Webb testified merely, ‘‘I knew about it after
it happened obviously.’’ During cross-examination, however,
he testified that he had known on October 6 about Bertram’s
telephone call, but that ‘‘at that point I didn’t. I wasn’t told’’
that Behr had been the party to whom Bertram had placed
the call. ‘‘Nobody knew that that I’m aware of,’’ he added.
By the time that the November 7 disciplinary report had
issued, testified Webb, he had known that it had been Behr
whom Bertram had called. He had been told that, Webb testi-
fied, by Mark Svejkovsky, Respondent’s controller. Asked
how Svejkovsky had known whom Bertram had called, Ed-
ward Webb testified that Svejkovsky had ‘‘called the phone
company and traced the phone call.’’ Of course, that latter
account contradicted the one set forth above which Cloakey
had advanced. Svejkovsky was called as a witness by Re-
spondent. Yet, he gave no testimony about having partici-
pated in the events which led to issuance of the November
7 disciplinary report to Bertram. Moreover, while he is listed
as one of the ‘‘Witnesses’’ on the disciplinary report issued
to Kessler on November 7, at no point does Svejkovsky’s
name appear on the disciplinary report issued to Bertram.
As cross-examination of Edward Webb progressed, he
modified somewhat his above-described testimony about the
trace of Bertram’s telephone call: ‘‘Well, I talked to Kathy.
Mark Svejkovsky made the phone call and I believe Kathy,
after we got the phone number, called to verify who it was,
or maybe it was Bob Cloakey. And it was Mr. Behr’s resi-
dence.’’ Of course, at no point was Kathleen Webb called as
a witness to straighten out her husband’s sometimes conflict-
ing testimony about the sequence of events which supposedly
had led to issuance of the November 7 disciplinary report to
Bertram.
Bertram admitted that he had called Behr from Respond-
ent’s telephone on November 6, without first having obtained
permission to place a personal call on Respondent’s tele-
phone. Both he and Kessler testified that, during a break that
day, they had gone to the machine shop office where Ber-
tram had placed the call to Behr, as Kessler worked one of
the newsletters. Both testified that Kathleen Webb and
Cloakey had come by and had said that the two employees
should not be there. According to Bertram, he and Kessler
had been told that ‘‘there were crumbs and stuff getting on
the floor.’’ It is uncontroverted that nothing was said about
Bertram being on the telephone. Still, he was later called to
Cloakey’s office where he was handed the above-described
employee disciplinary report.
In contrast, Kessler received his disciplinary report during
a meeting in the office with Edward Webb, Vanderpool, and
Cloakey.9 Kessler testified that he was informed that he had
used his phone code to make unauthorized, excessive long-
distance calls, that he had never offered to pay for those
calls, that such conduct constituted stealing, and that he
should pay back the costs of those calls. According to
Kessler, he protested that when he had made the first call,
to his army reserve unit, he had asked Cloakey and had of-
fered to pay for the call. When he made subsequent personal
calls, he testified that he explained during the meeting, he
had asked Cloakey and had offered to pay for the calls, but
he never received a bill from Respondent for any of those
calls. So, he told Respondent’s officials, he simply had
ceased asking Cloakey before making personal calls. ‘‘I
don’t know their exact response’’ to his explanation during
the meeting, testified Kessler, ‘‘I think they rather doubted
that I had said it.’’ However, Cloakey and Webb testified
that the former had been told about and had authorized only
the first of Kessler’s personal calls, the one to the army re-
serve unit.
Edward Webb testified that, as a result of the investigation
of Kessler’s telephone calls, Cloakey ‘‘found 37 phone calls
between 7–5–95 and 10–18–95.’’ During his and
Vanderpool’s ensuing meeting with Kessler, testified Webb,
Kessler claimed that he had received permission from
Cloakey to make the calls. But, when Cloakey was sum-
moned into the meeting, Webb testified, ‘‘Cloakey said that
he only had authorized Kessler’s army reserve call during the
first one or two days that Kessler had been employed by Re-
spondent.’’ Cloakey corroborated that account by Edward
Webb.
The meeting concluded with Kessler offering to pay for
the calls and with Edward Webb saying that Kessler would
have to get the telephone records. Kessler testified that he
obtained those records from Edward Webb, who had them on
his desk during the meeting; Webb testified that Kessler had
gotten those records from Kathleen Webb. Of course, she
gave no testimony concerning that subject.
Edward Webb claimed that, after obtaining the telephone
records, Kessler had ‘‘found 72 phone calls and he gave that
information to Kathy [Webb].’’ Kessler testified that his re-
view of those records revealed that ‘‘I had made close to 40
calls and they added up to about $28 total.’’ Asked if
Kessler ever paid for those calls, Edward Webb answered
simply, ‘‘No, he did not.’’ Kessler testified that, after he had
totaled the calls and their cost, he had asked Kathleen Webb
‘‘to review it again, and add the tax and stuff in, and I would
write them a check for it.’’ He testified without contradic-
tion, however, that he never received that amount, nor a re-
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686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quest for payment of it, from Kathleen Webb. Respondent’s
witnesses advanced no explanation for never having at-
tempted to collect from Kessler the amount of his unauthor-
ized personal telephone calls.
L. Issuance of Changed Company Policy About
Discussion of Wages
Respondent had put into effect on April 8, 1991, a
‘‘COMPANY POLICY’’ handbook. It had a section pertain-
ing to ‘‘WAGES’’ which stated:
A new employee’s starting wage will be based on the
Company’s guidelines set at that time. Wage increases
reflect on your position within the Company, your job
performance and your length of service with the Com-
pany. Wages are normally reviewed on an annual basis
with variations depending on skill levels and job per-
formance.
Edward Webb testified that there had been occasional up-
dates to the handbook. But, Respondent presented no evi-
dence of any modification to the above-quoted provision
prior to November 14.
On that date a revised ‘‘COMPANY POLICY’’ regarding
wages was published by Respondent:
A new employee’s starting wage will be based on cur-
rent Company guidelines and will be agreed upon by
both the employer and employee. Wage increases re-
flect on your position within the Company, your job
performance and your length of service with the Com-
pany. Wages are normally reviewed on an annual basis
with variations depending on skill levels and job per-
formance.
Below that language, with a border drawn around them, ap-
pear the following two sentences: ‘‘Wages paid to employees
by the Company are personal and confidential. The Company
asks that wage discussions be limited between the employee
and their supervisor, plant manager or Company owners
only.’’
Respondent provided no explanation for the change in the
first sentence of the section: from solely Respondent’s guide-
lines to those guidelines plus agreement between Respondent
and new employees. Nor was any explanation advanced for
the newly added, bordered sentences. Edward Webb denied
flatly that it prohibited employees from discussing wages.
And, disregarding the plain meaning of ‘‘personal and con-
fidential’’ in the first sentence, he testified that:
In the policy there’s [a] small paragraph asking that
employees if they have a problem with wages that we
would request that they talk to a supervisor or manage-
ment, and the reason for it is that if, for instance, some-
body felt they had more wages coming or a raise or
wasn’t happy with something[,] that talking to another
employee wouldn’t solve their problem. What they need
to do is talk to somebody that could solve the problem.
Webb denied that anyone ever had been disciplined for dis-
cussing wages and there is no evidence to the contrary.
M. Bertram Sent Home for Lack of Work
The amended and consolidated complaint alleges that on
Tuesday, November 21, Respondent acted for an unlawful
motive by sending Bertram home and by refusing to pay him
for that day. There is virtually no dispute about the sequence
of events underlying that allegation. The motor went down
on the induction welding machine water pump, through no
fault of Bertram. It had to be sent out for repair. Cloakey
and Vanderpool said that ‘‘there was no other work for Ber-
tram to perform and that he should go home for the rest of
that day, but should call at the end of the day to ascertain
if the motor was fixed, so that Bertram could resume work
on the following day.’’ Bertram did so and was able to re-
turn to work the next morning. He was not paid for work
time lost as a result of the motor’s repair.
Neither Cloakey nor Vanderpool contradicted Bertram’s
testimony that, when told that he was being sent home, he
protested that Respondent had located work for other em-
ployees confronting similar situations. In fact, it is undis-
puted that Bertram had been the first employee ever sent
home, rather than being assigned to other work, whenever
machinery had broken down.
On the other hand, there is no particularized evidence of
any work which Bertram could have performed that day in
any other area of Respondent’s Paynesville place of business,
save for in the fiberglass plant. However, Bertram conceded
that, in the past, he had told Respondent’s officials that he
did not want to work there, because the fiberglass adversely
affected his skin. Furthermore, over the course of days ensu-
ing after November 21, Bertram was offered overtime work
to compensate him for income lost as a consequence of being
sent home early on that Tuesday. He admittedly turned down
that overtime offer ‘‘because I was busy,’’ he testified, and
‘‘had other obligations.’’
N. Termination of Allan Remmel
Wednesday, November 22, was the day on which Remmel
was terminated. That event is discussed more fully in section
II,G, infra. At this point, the significant considerations are
that Remmel was told on November 22 that Respondent in-
tended to sell its clutch department, where Remmel had been
the only employee working, because sales had not been satis-
factory, and there was no other work which Respondent
wanted Remmel to perform. As discussed in subsection I,
above, Respondent assertedly had been dissatisfied with
Remmel’s wandering around the premises and his inability to
finish projects assigned to him.
Significant to his termination is a ‘‘CLUTCH DEPART-
MENT JOB DESCRIPTION’’ signed by Edward Webb and
by Remmel 1 year earlier, on November 25, 1994. The text
of that document recites:
1. Oversee the Clutch Dept.
2. Organize the Cluch Department
A. Write or rewrite instructions for the
consumer/dealer manual 12–31–94
B. Determine a formula for new clutch applica-
tions and write it down, along with examples. 12–
31–94
C. Reduce parts and costs
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687KORONIS PARTS, INC.
D. Arrange shelving etc. in the clutch department
so that it is neat and orderly. Make sure parts are in
a numerical sequence and arranged appropriately on
the shelf so that assembly will be the most efficient.
12–31–94
E. Write complete instructions for the assembly of
the clutch to train others to build the clutch and bal-
ance it. Make sure those instructions are posted so
that the others can help if needed. 12–31–94
F. Application chart needs to be ready for catalog
by 01–25–95. Along with advertising information.
3. Your involvement in R and D projects will be di-
rected by Ed and or Larry.
4. Daily goals sheet will be kept and turned in to
Bruce each day of all projects started and completed.
This is building clutches, writing instructions, working
on the application chart, organizing parts, etc.
5. Tools and projects kept neat and orderly and all
tools put away at the end of each day and projects or-
ganized.
6. Work on personal projects at home and not in R
and D.
7. Monitor machine shop so that work is done for
you. Be sure your work is scheduled in advance and
that it is done on time.
8. Wage will rise to $28,000 and you will get a
$1,000 bonus in the spring if we don’t have to go to
the mountains to get proper high altitude applications.
We are expecting our clutch sales to reach 475 mini-
mum for 1994–95. If clutch sales reach 650 at year end
1994–95 you will get another $1,000 bonus.
9. This clutch department is being studied for 1 year
to monitor success and will be evaluated 1 year from
now. Our goals for future clutch sales are as follows
94–95 650
95–96 1300
96–97 1690
97–98 2200
10. Clean up all front suspension projects in R and
D by 12–01–94 and direct your attention to the clutch
department.
In the final analysis, paragraph 9 provides Respondent’s as-
serted basis for the decision to terminate Remmel, since
clutch sales did not achieve by November the number speci-
fied in the job description for 1994–1995.
Edward Webb testified that the job description ‘‘was a one
year agreement for [Remmel’s] employment at’’ Respondent.
It resulted, he further testified, from the resignation of prior
clutch department manager Duane Watt, with the result that
Remmel was asked if he would take over the department.
According to Webb, ‘‘[W]e sat down and we talked and dis-
cussed the number of clutches that were sold in the last three
years, and what our goals were for the future years,’’ based
on prior discussions between Webb and Vanderpool.
Remmel said that he would consider taking the position,
Webb testified, but only if he got more money. And, as a
result, item 8 was included in the job description. In return,
Webb testified that he told Remmel, ‘‘We are expecting our
clutch sales to reach 475 minimum for 1994–1995. If clutch-
es reach 650 at year end 94–95, you will get another $10,000
bonus.’’ In addition, testified Webb, he warned Remmel that
‘‘if the minimum wasn’t met, there wouldn’t be a position
for Allan.’’ According to Webb, he specifically had informed
Remmel at that time that the clutch department was ‘‘the
only position’’ which Respondent had available for Remmel.
Vanderpool testified that he had discussed working in the
clutch department with Remmel even before Webb had be-
come involved in those conversations with Remmel. Accord-
ing to Vanderpool, though he had been willing to move into
the clutch department, Remmel ‘‘expressed interest that he
should have an increase in salary because his responsibil-
ities’’ would be changing. It was that exchange which, testi-
fied Vanderpool, led to preparation of the ‘‘CLUTCH DE-
PARTMENT JOB DESCRIPTION’’: ‘‘we wanted to be real
clear with Allan on exactly what was going on, where we
were headed and what our expectations were and why he
was going to have a rise [sic] in wages, what our expecta-
tions were for that rise [sic] in wages and to a degree a list
of what we expected to take place[.]’’ Although he had pre-
pared the job description, Vanderpool testified that he had
not been present when it had been signed by Webb and
Remmel.
Remmel could hardly deny having signed the job descrip-
tion. However, while he conceded that it had been important
in his relationship with Respondent, he claimed, ‘‘It isn’t a
job description, it’s a clutch department job description,’’
and claimed further that, while he had asked for a job de-
scription for himself, Respondent never had given him one.
More significantly, Remmel denied that there had been
any discussion between himself and Webb before the clutch
department job description had been prepared. Furthermore,
Remmel testified that at the time it had been given to him,
he had told Vanderpool ‘‘that these goals [in par. 9] were,
in my opinion, unrealistic.’’ Remmel also testified that he
never had been told what would be the outcome if those stat-
ed goals were not achieved. Yet, Remmel acknowledged that
he later told Vanderpool that ‘‘if my job depended on the
clutch production that they were forecasting I didn’t think I
could produce it and they might as well fire me then,’’ but
Vanderpool had replied, ‘‘[O]h, no, your job isn’t dependent
on this clutch department work or assessing [sic] it.’’ Ac-
cording to Remmel, that conversation had occurred, ‘‘Within
two months of my starting in the clutch department.’’
Vanderpool did not deny having given that assurance to
Remmel. Moreover, Vanderpool agreed that Remmel ‘‘did
express some concern about reaching the sale of 475 clutch-
es,’’ though Vanderpool testified that Remmel had not done
so until ‘‘I would think March or so maybe.’’ In response,
testified Vanderpool, he had told Remmel ‘‘to work
harder[.]’’ In addition, Vanderpool testified, Remmel had ex-
pressed concern about the prices at which Respondent was
selling clutches.
O. Webb’s Statements to Bertram About Breaktime
Literature Distrbution
Kessler testified that his last day of work for Respondent
had been approximately November 27. Webb testified that
‘‘after Bob Kessler had left,’’ Bertram had been passing out
union literature during break period. Because of the con-
versation between Kessler and Cloakey, discussed in sub-
section E, above, regarding passing out campaign literature
only after work, Webb approached Bertram about breaktime
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688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
literature distribution. In the process, alleges the complaint,
Respondent unlawfully threatened that Bertram could not
pass out union literature during breaks.
Bertram testified that, consistent with Cloakey’s request of
Kessler, the Union’s supporters had tried confining literature
distribution to after work hours. But, that arrangement im-
paired their ability to distribute literature to employees who
continued working after the normal quitting time, testified
Bertram, and so breaktime literature distribution was re-
sumed.
According to Bertram, when he was approached by Webb,
the latter asked if Bertram had spoken with Kessler about
distributing literature. In response, Bertram acknowledged
that there had been an agreement between Cloakey and
Kessler, but told Webb that it had not worked out, and could
not work out because literature distribution to late working
employees would be impaired. Bertram testified that, before
walking away, Webb said that if Bertram kept distributing
literature during breaks, ‘‘[W]e’ll be talking again or some-
thing of that sort.’’
During direct examination, Webb testified that he merely
had asked if Bertram was aware of the agreement for both
sides to distribute literature only after hours and that Bertram
had retorted, ‘‘[Y]es, but he didn’t care,’’ which ended fur-
ther discussion between them. Asked about that conversation
during cross-examination, however, Webb testified that when
he had asked if Bertram would honor Kessler and Cloakey’s
agreement, concerning the time of literature distribution, Ber-
tram had ‘‘said, no.’’ Asked if that answer meant that Ber-
tram ‘‘didn’t say, I don’t care,’’ Webb contradicted his
above-described testimony during direct examination by an-
swering, ‘‘Well, I don’t think that was—I don’t know if that
was my testimony.’’
P. Mid-December Conversations Between Cloakey
and McCann
Bar-straightener Peter McCann—whose name appeared as
an organizing campaign member in the Union’s September
15 letter, and who had helped Bertram pass out union lit-
erature one early December day—testified that, after punch-
ing in for work 1 day in mid-December, he had been sum-
moned to Cloakey’s office. There, testified McCann, Cloakey
asked, ‘‘[W]hat I thought about the [U]nion,’’ to which
McCann responded, ‘‘[T]here were some good things that I
seen and some bad things.’’
As he was leaving work 2 or 3 days’ later, McCann testi-
fied, he again was summoned to Cloakey’s office where
Cloakey asked, ‘‘[H]ow my work was going. If I liked my
job,’’ to which McCann replied that he did like his job. Ac-
cording to McCann, Cloakey inquired which job McCann
liked best and, after McCann answered that ‘‘Cloakey knew
that McCann preferred bar straightening,’’ Cloakey ‘‘told me
there is a lot of union stuff going on and I’d like to know
what you think about the [U]nion and what people are talk-
ing about in the shop about union.’’
McCann testified that he never really answered the latter
question, pertaining to what people were talking about the
Union, but instead ‘‘pretty much answered . . . the same as
I did two days earlier saying there is some good things and
some bad things I’ve noticed about the [U]nion[.]’’ When
Cloakey ‘‘didn’t really say anything’’ more, testified
McCann, ‘‘I just got up and proceeded to leave.’’ McCann
testified that on both days he had been frightened to answer
Cloakey ‘‘because I didn’t know what would happen to
myself[.]’’
Cloakey denied that he ever had called McCann into his
office to ask what McCann thought about unions and denied
having asked McCann that question during mid-December,
denied ever having called McCann into his office to ask
about union activity, denied ever having asked McCann what
the Union was doing, denied ever having asked McCann
what people were saying about the Union, and denied ever
having asked McCann about his union sympathies.
Q. Suspension of Daniel Whitcomb and Suspension and
Discharge of Bertram
The final allegations arise from an Occupational Safety
and Health Administration (OSHA) test conducted at Re-
spondent’s facility on December 14. As set forth in sub-
section C, above, by then Bertram again was working in the
wear bar department. A wear bar is a carbide bar installed
on the bottom of a snowmobile ski so that it will be the wear
bar, not the ski, which wears out as a result of vehicle oper-
ation.
Each wear bar has a groove cut in the bottom. Flux or
paste is put into each groove to hold the pad or carbide
which will be inserted into that groove. To position the flux,
the wear bar is then braised by radio waves in an induction
welding machine for approximately 30 to 40 seconds to a
heat of approximately 1600 to 1700 degrees. Then, the car-
bide pad is pushed, by a hand-held tool, down into position
in the groove after which, using another hand-held tool,
called a holder, the induction machine operator moves a red-
hot wear bar to a cooling table. The operator ordinarily
stands essentially with the cooling table to his/her left and
with the induction welding machine to his/her right. This al-
lows heated wear bars to be moved from the induction ma-
chine to the cooling table with minimum movement.
As might be expected, this process of heating wear bars
emits a certain amount of smoke and fumes. A venting sys-
tem has been installed to carry most smoke and fumes away
from the induction machine operator, as well as away from
others working in the facility. It had been that system which
was being tested during the morning of December 14 by
OSHA. Because he was induction machine operator, Bertram
wore a monitor intended to measure the volume of smoke
and fumes not being vented.
During the afternoon that same day, Lenz reported that
two employees—Paul Chupp and Jane Torborg—said that
they had seen Bertram using the holder to carry heated bars
from his induction machine-cooling table work area to a
nearly work station, the paste table, where he added paste to
those hot wear bars. As a result, unvented smoke and fumes
were emitted, thereby skewing the OSHA test results to Re-
spondent’s disadvantage. It also was reported that press oper-
ator, Daniel L. Whitcomb, had been encouraging Bertram to
engage in the conduct, from Whitcomb’s nearby work sta-
tion.
On December 15 Respondent set out to investigate Lenz’
report. Whitcomb, Chupp, and Torborg were each summoned
to a conference room where Webb, Vanderpool, and Cloakey
sought descriptions of what each had seen Bertram doing
during the preceding day’s test. Chupp and Torborg de-
scribed having seen Bertram carrying around hot wear bars
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689KORONIS PARTS, INC.
and adding flux or paste to them while away from the induc-
tion machine-cooling table venting system. Whitcomb said
that he had not seen Bertram doing anything out of the ordi-
nary, although he acknowledged that Bertram had only been
putting paste on hot bars on December 14 while wearing the
OSHA monitor. Whitcomb also told the three officials that
if Bertram could have altered the OSHA test, he would have
done so. Whitcomb denied that he had been encouraging
Bertram in such an effort.
At the conclusion of his interview, Whitcomb was told
that he was being sent home for the remainder of December
15. He protested, saying that he had not done anything
wrong and was told that he would be paid for that time off.
He was asked for a written account of what he had seen Ber-
tram do. His statement recited: ‘‘I saw Bill Bertram put paste
on bars while he was wearing the device. I feel that if he
was to alter the test he may have by putting the paste on.’’
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by sending Whitcomb home
for the remainder of that workday. Respondent argues that,
given the report that Whitcomb had encouraged Bertram to
add paste to heated wear bars while away from the induction
machine-cooling table area, it had sent Whitcomb home as
no more than a prudent step in an ongoing investigation of
employee misconduct and, also, to prevent Whitcomb from
conferring with anyone else, particularly Bertram, while con-
tinuing to work at Respondent’s place of business for the re-
mainder of December 15.
Bertram also was sent home on December 15 after being
interviewed. During that interview, Bertram testified, Webb
reviewed what had been reported about Bertram’s December
14 conduct, saying ‘‘that I was being unsafe during that and
that it was a health hazard and I was trying to sabotage the
safety test[.]’’ According to Bertram, either Webb or
Vanderpool pointed out ‘‘that if I dropped the bar out of the
holder . . . the bar is red hot and that if it hit someone’s
leg or something it could burn the leg.’’
Significantly, Bertram’s own account of the December 15
interview reveals that he never denied having carried hot bars
away from his immediate work station on December 14. In-
stead, he claimed that he had done nothing different that day
from his normal operating procedure and, he testified,
‘‘[A]sked what safety rules I violated,’’ to which Vanderpool
responded that Bertram ‘‘didn’t violate any written safety
rules but it was ‘common sense rules’ that I violated.’’
When he was told on December 15 that he was being sent
home, Bertram was told to call at 8:30 a.m. on Monday, De-
cember 18, the next workday. He did so and was told that
he was still suspended. During a later telephone call that day,
he was told to report at 7 a.m. on the following day. When
he did so, he was discharged.
According to Bertram, on that day he had been escorted
by Cloakey to the conference room where Vanderpool was
present and Edward Webb eventually joined them. Bertram
testified that, after being accused of sabotaging the OSHA
test, ‘‘They said when I carried the bar over hot to the flux
machine to put more paste on it that supposedly someone
had seen me waive it. One of the other employees sup-
posedly had told them that they had seen me waving it
around to cause smoke and . . . making sure that the smoke
would go in the monitor.’’ Bertram protested that he had not
done anything differently that day than he had done on pre-
vious days, as far as carrying hot bars to the paste table.
Nevertheless, he was handed an employee discipline report
stating that he was dismissed for ‘‘Improper Conduct,’’
‘‘Violation of Safety Rules,’’ and ‘‘Carelessness,’’ and recit-
ing, in the ‘‘Supervisor’s Remarks’’ portion: ‘‘1. UNSAFE
WORK PRACTICES,’’ ‘‘2. AN EFFORT TO SABOTAGE
SAFETY TEST,’’ and, third, reasons set forth in an ‘‘AT-
TACHED MEMO.’’ That memo states, in pertinent part:
During the air test Bill Bertram was observed by em-
ployees in the area taking the hot bars walking over to
the pasting area (where Jane Torborg was working) and
applying paste to the bars in an effort to get it to smoke
and alter the results of the test. The altering of the test
is a major problem when it was so obviously done on
purpose. The other problem is the red hot bars are be-
tween 1600 and 1700 degrees and when he took the
bar, turned around, moved to the pasting area (18
inches from Jane Torborg) and proceeded to add more
paste, he endangered himself and those around him.
The memo concludes, ‘‘He is being dismissed for creating an
unsafe work area for himself and fellow employees and for
trying to sabotage the test results.’’ The General Counsel al-
leges that Bertram’s suspension and discharge violated Sec-
tion 8(a)(3) and (1) of the Act.
II. DISCUSSION
A. Statements to Employees Regarding the Union
An employer’s statements to employees about a union are
significant for three reasons. First, they may interfere with,
restrain, or coerce employees in the exercise of Section 7 ac-
tivities, thereby constituting independent violations of the
Act. Second, where such unlawful statements are made, they
may supply background for other actions and remarks, in the
context of their utterance showing that those other actions
and remarks also violate the Act. Finally, if made, they con-
stitute evidence of the employer’s state of mind or attitude
toward union activities by its employees which, in turn, are
relevant to alleged acts of discriminatory conduct.
Six instances of statements to employees specifically about
the Union are alleged in the amended and consolidated com-
plaint. Three of those instances pertain to remarks allegedly
made by Edward Webb in the immediate wake of the Octo-
ber 5 and 6 meetings of the Webbs with groups of Respond-
ent’s employees, as discussed in section I,G, supra.
Thus, Kessler testified that Webb had threatened to close
if the Union ‘‘gets in’’ and, after retracting that threat, said
that he ‘‘would have a hard time negotiating with,’’ in effect,
Behr because the latter had called Webb ‘‘a son of a bitch.’’
During his one-on-one conversation, Bertram testified that
Webb had asked why Bertram wanted a union and, further,
what Bertram felt ‘‘was going to improve,’’ in effect, as a
result of unionization of Respondent’s employees. Third,
after being told, during his individual meeting, that he had
received better raises and bonuses than the Union could have
secured for him, and after being asked if he felt that employ-
ees had been treated unfairly, Remmel testified that Webb
had said that Remmel would have gotten more bonuses if his
attitude had been better.
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690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Edward admitted, then claimed that he did not remember,
having made the ‘‘bad attitude’’ remark to Remmel. He de-
nied that he had asked the questions attributed to him by
Bertram, though Webb conceded, ‘‘I don’t remember any-
thing particular’’ about his conversation with Bertram ‘‘other
than giving him the [wage] information’’—a concession
which tends to negate the reliability of Webb’s denials of un-
lawful remarks to Bertram, since it displays Webb’s uncer-
tainty as to everything said during that conversation. Finally,
Webb denied having made the plant closure statement to
Kessler, though he did not deny having made the ‘‘hard time
negotiating’’ statement during that one-on-one meeting.
When testifying, Webb did not appear to be doing so can-
didly. That conclusion is confirmed by a review of the record
of his testimony. Illustrations of his self-contradictions and
internal inconsistencies, as well as his inconsistencies with
other evidence, are provided in the various subsections of
section I, supra. For example, as described in section I,F,
supra, Webb first claimed that he had received a report that
Bertram ‘‘had told someone’’ about wearing the ‘‘VOTE
NO’’ T-shirt in the pig barn, but then tried to portray Ber-
tram in an even more unfavorable light by claiming that the
latter had told that to ‘‘other employees.’’ After claiming that
employees had requested individual meetings, as discussed in
section I,G, Webb admitted that only ‘‘some’’ had done so
and, moreover, admitted further that he had directed Cloakey
to arrange for ‘‘some’’ of those meetings. He also vacillated
as to what he had meant by Remmel’s ‘‘bad attitude.’’ Sev-
eral internal discrepancies were revealed by his telephone
calls disciplinary reports, described in section I,K, and cer-
tain aspects of his accounts in connection with them were
uncorroborated. I do not credit Edward Webb, except where
other credible evidence lends support to his accounts.
In contrast, Kessler, at least, appeared to be testifying can-
didly. I credit his account that Webb had said he would ‘‘just
close’’ if the Union ‘‘gets in.’’ A threat of plant closure
should employees become represented, of course, is regarded
under the Act as one of the ‘‘hallmark’’ and most serious
violations of the Act. See, e.g., Chemvet Labs, Inc. v. NLRB,
497 F.2d 445, 448 (8th Cir. 1974). See also Amalgamated
Clothing Workers of America v. NLRB, 527 F.2d 803, 807
(D.C. Cir. 1975), cert. denied 426 U.S. 907 (1976). For, clo-
sure would mean that personnel, such as Kessler, would be
terminated, thereby losing their, and their families’, means of
livelihood.
As one of Respondent’s two co-owners, Edward Webb ob-
viously had the ability to take—or, at least, meaningfully in-
fluence taking—such a course of action as closure. To be
sure, he did ‘‘retract’’ the threat. Yet, mere articulation of
words such as ‘‘retract’’ or ‘‘take back’’ do not, standing
alone, constitute a repudiation under the Act. Passavant Me-
morial Area Hospital, 237 NLRB 138 (1978). At no point
did Webb assure Kessler that Respondent would not close if
its employees chose representation by the Union. He did no
more than retract articulation of a closure threat, leaving
Kessler to fairly infer that it had been no more than the im-
providence of uttering such a threat, as opposed to the inten-
tion to close, that was being retracted. Therefore, Respondent
violated Section 8(a)(1) of the Act by threatening an em-
ployee with plant closure if the Union became the representa-
tive of employees working there.
Respondent argues that ‘‘[t]o the extent it is claimed that
department heads like Kathryn Lenz are supervisors, then
Kessler is a supervisor, too, and is not protected by the Na-
tional Labor Relations Act.’’ In support of that argument, in
its brief, Respondent points to evidence that Kessler ‘‘partici-
pated in a warning notice and even signed it as a super-
visor,’’ ‘‘acted as department head for the machine shop
when Donovan Whitcomb was not available,’’ and ‘‘became
involved in showing employees how to run equipment and
generally directed their activities.’’ Yet, in the context of this
record, these are not so convincing indicia of supervisory sta-
tus as Respondent seeks to portray.
‘‘[T]he burden of proving that an individual is a supervisor
is on the party alleging such status’’ (citation omitted), and
‘‘[t]he Board has a duty not to construe the statutory lan-
guage too broadly because the individual found to be a su-
pervisor is denied the employee rights that are protected
under the Act.’’ (Citation omitted.) Azusa Ranch Market, 321
NLRB 811 (1996). When asked by the General Counsel to
describe Respondent’s management hierarchy, Edward Webb
included Lenz—at least initially—as wear bar department
leadperson. But, Webb did not include, and made no mention
whatsoever of, Kessler. Unlike Lenz, there is no evidence
that, prior to the hearing in the instant case, Kessler had been
classified or referred to by Respondent as a department head.
In a prehearing affidavit, Kessler stated that he supervised
the machine shop more than Donovan Whitcomb, machine
shop supervisor, and that he had directed employees in what
they did in the machine shop. Yet, in describing what those
conclusionary statements meant, Kessler testified, without
contradiction, that he ‘‘helped [employees] work on the ma-
chines,’’ and ‘‘I trained them, or I helped get, you know,
when they were on a machine, I would help them change
offsets on the machine[.]’’ No official of Respondent dis-
puted Kessler’s testimony that ‘‘I guess I was the most expe-
rienced CNC operator there, or person there[.]’’ Also undis-
puted, were his specific denials that he had decided which
machines employees would run, had participated in hiring
decisions, had interviewed applicants, had attended super-
visory or managerial meetings, and had been involved in Re-
spondent’s meetings with its managers and supervisors re-
garding the Union’s campaign. In short, whatever authority
Kessler may have exercised regarding work of others, so far
as the evidence shows, had been routine and had been based
on his superior knowledge and experience, without requiring
the exercise of independent judgment. See, e.g., Consolidated
Services, 321 NLRB 845 (1996), and cases cited therein.
Respondent relies somewhat heavily on the fact that once
on a time—about October 23—Kessler had signed an em-
ployee disciplinary report, for Gary Steffenson, on the line
above ‘‘Signature of Supervisor.’’ Still, there is no showing
that he ever had done so on any other occasion. Further,
there is no evidence that Kessler ordinarily had possessed au-
thority to issue disciplinary reports. Consequently, so far as
the record reveals, that single disciplinary report constituted
no more that an ‘‘incidental and extraordinary exception[ ]
to . . . regular practice, and when looked against a total
background do[es] not in any way show that [Kessler] had
the authority to discipline or recommend the discipline of
employees as one of his regular functions.’’ NLRB v. Orr
Iron, Inc., 508 F.2d 1305, 1307 (7th Cir. 1975). See also
Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1157–
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691KORONIS PARTS, INC.
1158 (7th Cir. 1970), cert. denied 400 U.S. 831 (1970). The
Board has long held that it does ‘‘not consider [a] few iso-
lated instances, in view of the record as a whole, to be suffi-
cient to establish . . . possess[ion of] supervisory authority
contemplated by Section 2(11) of the Act.’’ Commercial
Fleet Wash, Inc., 190 NLRB 326, 326 (1971). Especially is
that conclusion valid where, as here, Kessler testified that he
had been, in effect, directed by Cloakey to sign the
Steffenson disciplinary report. Cloakey appeared as a witness
for Respondent. But, he did not contradict that testimony by
Kessler.
As to Kessler’s testimony that he directed machine shop
employees’ activities whenever Donovan Whitcomb was
‘‘doing other things,’’ there is no evidence that Kessler had
done so other than in a routine fashion, on the basis of his
experience. To the extent that Respondent argues that such
activity by Kessler shows that he had filled in as department
head when Whitcomb had not been available, Respondent
has failed to show that, on such occasions, Kessler exercised
independent judgment in connection with any of the super-
visory indicia enumerated in Section 2(11) of the Act. Nor
has frequency of such occurrences been established.
‘‘[S]pasmodic and infrequent assumption of a position of
command and responsibility does not transform an otherwise
rank-and-file worker into a ‘supervisor.’’’ NLRB v. Quincy
Steel Casting Co., 200 F.2d 293, 296 (1st Cir. 1952). In con-
sequence, ‘‘an employee does not acquire supervisor’s status
by reason of temporarily taking over the duties of an absent
supervisor.’’ NLRB v. Sayers Printing Co., 453 F.2d 810,
815 (8th Cir. 1971). Therefore, I conclude that Respondent
has failed to establish, by a preponderance of the credible
evidence, that Kessler had been a supervisor within the
meaning of Section 2(11) of the Act while working for it.
Webb further violated Section 8(a)(1) of the Act when,
during his meeting with Kessler, he warned that it would be
hard to negotiate with someone who had called him an
S.O.B. There is no evidence that Behr ever had made such
a remark to Webb; Webb never testified that Behr had done
so. The only evidence about Behr’s S.O.B statement about
Webb pertained to a statement made during a meeting be-
tween Behr and Respondent’s employees. Respondent never
explained how Webb would have learned what Behr had
been saying to Respondent’s employees at such a meeting.
Furthermore, it is not evident from the record that Kessler
would likely have concluded that Webb learned of the S.O.B.
remark from some source other than by surveillance of what
was being said the Union’s meetings with Respondent’s em-
ployees.
Accordingly, Webb’s S.O.B. remark to Kessler created an
impression that Respondent was engaging in surveillance of
at least some union activities by its employees—‘‘was close-
ly monitoring the degree and extent of their organizing ef-
forts and activities.’’ (Footnote omitted.) United Charter
Service, 306 NLRB 150, 151 (1992). In addressing that re-
mark to Kessler, moreover, Webb advanced no ‘‘assurance
that no reprisals [would] be taken,’’ and, as a result, left
Kessler ‘‘to conjure up various images of employer retalia-
tion.’’ Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d 568,
571 (4th Cir. 1967).
In fact, Webb had earlier supplied explicitly one such
image when he warned, during the same conversation, of clo-
sure should Respondent’s employees choose to become rep-
resented. Therefore, his S.O.B. remark was coercive and, by
creating an impression that at least some of the union activi-
ties of Respondent’s employees were under surveillance, vio-
lated Section 8(a)(1) of the Act. See, e.g., Filler Products v.
NLRB, 376 F.2d 369, 374–375 (4th Cir. 1967); Dayco Corp.
v. NLRB, 382 F.2d 577, 579 (6th Cir. 1967).
In a similar conversation, Bertram was asked his reason
for wanting a union and, also, what he thought would im-
prove by having one. Viewed from Webb’s perspective, Ber-
tram seemed to be the Union’s leading proponent at Paynes-
ville. In fact, the Act does allow some flexibility for employ-
ers to engage in questioning, as part of the ongoing dialogue
involved in employee choice regarding representation, of
leading union proponents concerning the benefits those pro-
ponents foresee as resulting from selection of a bargaining
agent. See Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). Yet, sight must not be lost
of the fact that those proponents remain employees within
the meaning of Section 2(3) of the Act. Their efforts to se-
cure representation do not completely strip them of the Act’s
protection.
Here, it had been Webb—not Bertram—who, Webb con-
ceded eventually, had initiated the one-on-one meeting be-
tween them. That meeting occurred in Webb’s office where,
it is not contested, Bertram have gone in the past, but never
for such a one-on-one meeting with Edward Webb. The latter
is one of the two highest ranking officials of Respondent.
Before that one-on-one meeting, Webb and his wife had met
with groups of employees, one of whom had been Bertram,
and had expressed Respondent’s opposition to unionization
of Respondent’s employees. Nothing unlawful in their doing
so. To follow such a group meeting with individuals meet-
ings with leading union proponents, however, tends naturally
to give rise to employee apprehension concerning the rea-
son(s) and consequence(s) of those individual meetings. For,
having already made Respondent’s position plain during the
group meetings, there was no basis for an employee, such as
Bertram, to understand why an individual meeting should be
necessary. In fact, no such purpose was provided to him by
Edward Webb.
Neither did Webb give any assurance to Bertram that the
latter’s answers would not be utilized as a basis for retaliat-
ing against Bertram nor, at least, for engaging in other unfair
labor practices—such as implementing new benefits in re-
sponse to improvements identified by Bertram, as a result of
Webb’s questions—to discourage employee support for the
Union. Indeed, as concluded throughout this section, the
questioning of Bertram occurred in a context of various un-
lawful statements and actions by Respondent’s officials, in-
cluding Webb. Further, so far as the evidence discloses,
Webb never even assured Bertram that the latter was not
obliged to answer Webb’s questions and, moreover, was free
not even to participate in the one-on-one meeting with Re-
spondent’s co-owner.
In sum, Bertram’s support for the Union was known to
Respondent by early October, but he remained a statutory
employee entitled to the Act’s protection. Given the above-
described circumstances during and surrounding Webb’s
questioning of Bertram, even a leading employee proponent
of unionization would naturally become apprehensive about
possible adverse consequences. In the overall circumstances,
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692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the questioning of Bertram had been coercive and did inter-
fere with the exercise of employee right in violation of Sec-
tion 8(a)(1) of the Act.
Any argument that the questioning of Bertram had been no
more than an isolated occurrence—a one-time event—found-
ers on the existence of two other considerations. First, the
one-on-one meeting between Webb and Bertram had been
but one of apparently a number of such meetings, according
to Webb, with individual employees. To be sure, there is no
evidence that Webb had questioned any employee other than
Bertram during those individual meetings. Still, the question-
ing of Bertram did occur during a pattern of similar individ-
ual meetings. The existence of such a pattern cannot be ig-
nored in evaluating any contention of isolatedness.
Second and, more importantly, Bertram would not be the
lone employee questioned about the Union and about support
and sympathy for it. Three other instances of statements to
employees about the Union also involved interrogation of the
employees. As described in section I,P, supra, bar straight-
ener McCann testified that he twice had been called into
Cloakey’s office during mid-December. On the first occa-
sion, he testified, Cloakey asked what McCann ‘‘thought
about the [U]nion’’ and, on the second occasion, Cloakey re-
peated that question and, also, asked, ‘‘[W]hat people are
talking about in the shop about union.’’ McCann appeared to
be an honest individual and I credit his descriptions of those
two conversations.
Of course, like Bertram, McCann had been an identified
organizing campaign member. Still, as pointed out above,
known union activism does not leave the activist as fair
game for employer interference, restraint, and coercion. In
neither of the mid-December conversations did Cloakey ad-
vance to McCann a reason for suddenly questioning him.
Nor was a reason advanced during the hearing in the instant
case. Moreover, Cloakey’s questioning sought information
about sympathies of employees other then activist McCann:
‘‘[W]hat people are talking about in the shop about union.’’
Such questioning, by its terms, had not been confined to
other employees who also were union activists. Accordingly,
it cannot be concluded that Cloakey’s questioning sought no
more than information confined to union activists—sought to
dialogue about no more than the rationale for activists’ con-
tinued support of the Union.
As with Webb and Bertram, Cloakey chose his own of-
fice—not the plant floor—as the situs for questioning
McCann. During their second conversation, furthermore,
Cloakey specifically interjected mention of McCann’s job,
how McCann liked that job and which job McCann preferred
to perform. Again, no purpose for those questions had been
advanced to McCann, nor was one advanced during the hear-
ing. Certainly, an implied connection between the subjects of
an employee’s happiness with his job and the duties he was
performing, on the one hand, and that employee’s and his co-
workers’ support for a union, on the other, would not likely
escape notice by the employee being interrogated. That is, an
employee likely would become fearful that his answers to
questioning about a union could lead his employer to deprive
or reward that employee with jobs which he preferred, de-
pending on the acceptability of that employee’s answers to
those questions by his supervisor.
In fact, McCann testified expressly that he had been fright-
ened by the occurrence of the meetings and by the possible
consequences of his answers. And his equivocal answers to
Cloakey’s questions tend, as an objective matter, to support
McCann’s testimony regarding his state of mind during the
questioning.
As with Webb’s questioning of Bertram during early Octo-
ber, Cloakey gave no assurances to McCann that the latter’s
answers would not adversely affect his employment by Re-
spondent. Nor did Cloakey assure McCann that the latter
need not answer the questions being put to him. To be sure,
Cloakey is not a co-owner of Respondent. Still, he is, and
was at the time, its plant manager. Thus, he hardly can be
fairly characterized as a low-level supervisor. In any event,
his questions about McCann’s continued attitude toward the
Union are essentially the same as the questions put by Webb,
Respondent’s co-owner, to Bertram. Further, as concluded in
succeeding subsections, the questioning of McCann occurred
against a background of numerous other unfair labor prac-
tices committed by Respondent. In the totality of these cir-
cumstances, I conclude that Cloakey’s interrogation of
McCann had been coercive and, consequently, that it violated
Section 8(a)(1) of the Act.
Another conversation which involved interrogation oc-
curred when Lenz asked wear bar department employee An-
drews if the latter had attended or intended to attend a union
meeting, as described in section I,J, supra. Respondent denies
that allegation and, in addition, denies that Lenz had been a
statutory supervisor and its agent. However, Edward Webb
acknowledged that, during the representation proceeding aris-
ing from the Union’s organizing campaign, Lenz had been
found to be a statutory supervisor. The General Counsel ar-
gues that that finding is dispositive of Lenz’ status in the in-
stant case. But, that is not correct.
The instant case is not a ‘‘related’’ proceeding, inasmuch
as this is a proceeding arising under Section 8(a)(1) and (3)
of the Act and, consequently, is not one which bars relitiga-
tion of representation determinations concerning supervisory
status under the Act. See Clark & Wilkins Industries, 290
NLRB 106 fn. 2 (1988); Lab Glass Corp., 296 NLRB 348,
350 (1989), and cases cited therein. Nevertheless, a prepon-
derance of the credible evidence in the instant case estab-
lishes that Lenz had been a statutory supervisor and agent of
Respondent at all material times.
Prior to the Union’s organizing campaign Lenz, as well as
others, had been called a supervisor by Respondent. At some
point after that campaign began, that title was changed to
lead person. Further displaying his lack of reliability, Edward
Webb testified, ‘‘I don’t know if it totally has. It’s unclear’’
when that change in Lenz’ title had occurred. Respondent ad-
duced no evidence of any changes in Lenz’ duties and re-
sponsibilities as a consequence of the change in her title. In-
deed, asked, ‘‘[W]hat some of those changes have been and
specifically with regard to Kathy Lenz,’’ Webb responded
merely, ‘‘Well, I’m not sure if Kathy Lenz fits under that
category.’’
When his attention was directed to the ‘‘COMPANY
POLICY’’ handbook issued on November 14, mentioned in
section I,L, supra, and he was asked if Lenz was considered
a ‘‘department head’’ as recited in it, Webb resumed fencing
with counsel, by answering, ‘‘I don’t know. That’s pretty
confusing just exactly who you are asking, you know, what
is defined as a department head.’’ Given the fact that he is
Respondent’s co-owner, and the further fact that he and his
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693KORONIS PARTS, INC.
wife are the cosigners of the ‘‘Welcome new employee!’’
covering letter for that handbook, Edward Webb’s answer
hardly instills confidence in the reliability of his testimony.
Ultimately, Webb did admit that a wear bar department
employee who read the handbook would consider Lenz to be
one of the two department heads for that department. Ac-
cording to that handbook, department heads possess authority
to require employees to work overtime; to discuss with em-
ployees solutions to their job performance problems; to re-
ceive reports of on-the-job injuries; to receive reports of
needed repairs and maintenance, and to ‘‘contact the proper
maintenance personnel’’ for repairs; and to check that all
doors and windows are secured at the end of working hours.
Most significantly, under the title ‘‘CHAIN OF COM-
MAND,’’ the handbook imposes a requirement that:
Every employee . . . follow the chain of command in
any and all cases. Each employee is to report directly
to his/her department head. If an employee does not get
sufficient satisfaction regarding his/her situation, he/she
may go to management to resolve the situation.
Respondent presented no evidence that even tends to con-
tradict the plain meaning of that handbook provision: that de-
partment heads, such as Lenz, possess authority to adjust em-
ployees’ complaints—that is, grievances.
Called as witnesses for Respondent, former wear bar em-
ployee Paul Chupp agreed that, when he had worked for Re-
spondent, Lenz had been ‘‘a supervisor of the wear bar
department[.]’’ Also called as a witness for Respondent,
Lenz gave no testimony concerning any change in her duties
after Respondent had ceased calling her a supervisor and
began calling her a department head. Consequently, I con-
clude that, at all material times, Kathryn Lenz had been a su-
pervisor within the meaning of Section 2(11) of the Act and,
as such, an agent of Respondent within the meaning of Sec-
tion 2(13) of the Act. Glenroy Construction Co., 215 NLRB
866, 867 (1974), enfd. 527 F.2d 465 (7th Cir. 1975); Ideal
Elevator Corp., 295 NLRB 347 fn. 2 (1989).
Whether Lenz asked if Andrews had attended a union
meeting, as Andrews testified, or was going to attend one,
as stated in Andrews’ prehearing affidavit, turns out not to
be a material consideration. As a general proposition, no stat-
utory purpose is served by allowing employers to interrogate
employees about whether they have attended or plan to at-
tend union meetings.
Lenz attempted to supply a legitimate purpose for such a
remark. Although she never categorically denied having
asked if Andrews had attended, or intended to attend, a union
meeting—‘‘I don’t think that I ever discussed anything with
her’’ (emphasis added)—she claimed that she had tried ‘‘to
encourage everybody to go to at least one [Union] meeting.’’
Assuming, arguendo, that employers are free under the Act
to encourage employees to attend at least one union meeting,
that objective is not achieved by allowing employers to go
one step further and interrogate employees as to whether they
have attended, or will attend, a union meeting. Encourage-
ment can be accomplished without such accompanying inter-
rogation.
Beyond that, as pointed out in section I,J, supra, not only
did Lenz not identify a single employee whom she sup-
posedly had encouraged to attend a union meeting, but she
never described exactly what she purportedly had said to en-
courage them to do so. The lone description in the record of
what she had said about attending such a meeting was An-
drews’s ultimately uncontested recitation of what had been
said to her by Lenz. Yet, in contrast to her asserted expla-
nation for having spoken to employees about attending union
meetings, Lenz’ accompanying words to Andrews hardly
constituted encouragement.
It is undisputed that Lenz said that Andrews ‘‘had every
right to go to these meetings and to get my questions an-
swered and find out information[.]’’ Nonetheless, a statement
of an employee’s right to do something hardly rises to the
level of encouragement. Further, that remark was accom-
panied not by words of encouragement, but by words which
tended to discourage attending such a meeting. For, Lenz
never denied specifically having then said to Andrews that
the Union was ‘‘going to lie to me anyway.’’ If so, there was
no need for an employee to waste nonwork time attending
such a meeting. In short, the undisputed account of Andrews
refutes Lenz’ asserted purpose for having spoken to employ-
ees about attendance at the Union’s meetings.
To be sure, Lenz is a relatively low-level supervisor and
her question to Andrews appears to have occurred on the
work floor, as opposed to having been put to Andrews in an
office. Still, as concluded above, Respondent has shown no
legitimate purpose for having questioned Andrews about at-
tending the Union’s meetings. There is no evidence that An-
drews had been an activist—much less, an open one—on be-
half of the Union. As concluded in succeeding subsections,
and above in this subsection, Respondent engaged in other
unfair labor practices both before and after Lenz’ interroga-
tion of Andrews. Some of those unfair labor practices in-
volved unlawful interrogation of employees. Consequently,
there is no basis for concluding that Lenz’ questioning of
Andrews had occurred in an atmosphere otherwise free of
unlawful words and conduct, nor in one otherwise free of un-
lawful interrogation of employees. Moreover, there is no evi-
dence that Lenz informed Andrews of the purpose of ques-
tioning the latter, assured Andrews that no reprisals would be
directed against her for her answer, nor informed Andrews
that she need not answer Lenz’ question. Therefore, I con-
clude that Lenz’ interrogation of Andrews had been coercive
and did violate Section 8(a)(1) of the Act.
This leaves for consideration the conversation during
which Edward Webb admittedly said that Remmel ‘‘could
have or may have possibly received a bonus if he had a bet-
ter attitude.’’ Obviously, this remark referred to past situa-
tions, as illustrated by the context in which it had been ut-
tered by Webb, as described in section I,G, supra. Still, it
was a remark which had implications for Remmel’s future
situation at Respondent. After all, there is no evidence that
Respondent had no intention of awarding future bonuses to
employees. Even if there had been such evidence, there is no
evidence that Respondent had communicated such a changed
intention to any of its employees, particularly Remmel. To
the contrary, either during this conversation, or in close prox-
imity to it, Remmel had received a bonus for helping to de-
velop a new type of stud.
The phrase ‘‘better attitude’’ is an inherently ambiguous
one. It also is a subjective one, in the sense that Respondent
determines whether an employee’s attitude is, or is not, bet-
ter. The conversation, during which Webb used that phrase,
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694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had occurred shortly after a group meeting in which Remmel
and other employees had been informed of the Webbs’ oppo-
sition to unionization of Respondent’s employees. Webb did
not convincingly deny having initiated his one-on-one con-
versation with Remmel by expressly referring to the Union:
by saying that Remmel had received ‘‘better raises and bo-
nuses than the [U]nion could have ever gotten for’’ Remmel.
In these circumstances, absent an alternative explanation, an
employee could fairly conclude that ‘‘better attitude’’ encom-
passed sympathy and activism for representation. And inas-
much as bonuses still were a viable prospect for Respond-
ent’s employees, such an employee could fairly infer from
that unexplained phrase that attitude toward unionization
would be considered, at least as a factor, in determining
whether or not to grant that employee bonuses in the future.
Therefore, I conclude that Webb’s ‘‘better attitude’’ state-
ment, viewed objectively, constituted a threat that continued
support for the Union would be taken into account in decid-
ing whether or not to award bonuses to Remmel and, accord-
ingly, that Webb’s ‘‘better attitude’’ statement violated Sec-
tion 8(a)(1) of the Act.
B. Interference with Employee Activity
This subsection covers the amended and consolidated com-
plaint’s allegations that, in effect, Respondent restricted em-
ployees ability to engage in statutorily protected activity by
prohibiting discussions of wages among themselves, by dis-
tributing and insisting that at least one employee wear a
‘‘VOTE NO’’ T-shirt, and by prohibiting breaktime distribu-
tion of union literature. As will be seen, I conclude that Re-
spondent did violate the Act with the regard to the first and
second of those allegations. However, the evidence fails to
support a conclusion of violation in connection with distribu-
tion of the Union’s literature during breaks.
As set forth in section I,L, supra, on November 14 Re-
spondent issued an updated ‘‘COMPANY POLICY’’ hand-
book which made two changes in its policy concerning
wages. The General Counsel voices no protest about the first
change: from established starting wage rates exclusively on
the basis of Respondent’s guidelines, to establishing them
based on those guidelines and, as well, the agreement of Re-
spondent and the employees beginning work for it. The com-
plaint does challenge the addition to that section which
‘‘asks that wage discussions be limited between the em-
ployee and their [sic] supervisor, plant manager or Company
owners only.’’ On its face, that request constitutes an overly
broad restriction which violates Section 8(a)(1) of the Act.
Wage levels, obviously, are one employment term which
frequently provide a reason for employees’ desire to organize
and become represented by a bargaining agent. ‘‘Early in the
history of the administration of the Act the Board recognized
the importance of freedom of communication to the free ex-
ercise of organization rights.’’ Central Hardware Co. v.
NLRB, 407 U.S. 539, 542–543 (1972). Thus, a rule which
prohibits employees from discussing wages among them-
selves, by requiring them to confine such discussions to
‘‘their supervisors, plant manager or Company owners only’’
violates the Act. ‘‘No restrictions may be placed on the em-
ployees’ right to discuss self-organization among themselves
unless the employer can demonstrate that a restriction is nec-
essary to maintain production or discipline.’’ NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105, 113 (1956). Respondent
has not shown that the border rule had been added ‘‘to main-
tain production or discipline.’’
Respondent’s situation is not salvaged by the fact that the
newly announced rule merely ‘‘asks,’’ or ‘‘requests,’’ that
employees limit their wage discussions to supervisors, man-
agers and owners. For, a ‘‘request’’ that employees not dis-
cuss among themselves employment terms, such as wages,
‘‘constitutes a clear restraint on the employees’ Section 7
right to engage in concerted activities for mutual aid or pro-
tection concerning an undeniably significant term of employ-
ment.’’ Heck’s, Inc., 293 NLRB 1111, 1119 (1989). The ra-
tionale for that conclusion—that a ‘‘request’’ is as unlawful
as an outright prohibition—‘‘is not premised on mandatory
phrasing, subjective impact, or even evidence of enforce-
ment, but rather on the reasonable tendency of such a prohi-
bition to coerce employees in the exercise of fundamental
rights protected by the Act.’’ Radisson Plaza Minneapolis,
307 NLRB 94, 94 (1992), enfd. 987 F.2d 1376 (8th Cir.
1993).
In fact, one earlier event shows that Respondent intended
the new rule to be a direction, rather than a request. As
quoted in section I,I, supra, on October 16, Remmel was
handed an ‘‘INTERNAL MEMO’’ which stated that ‘‘wage
concerns’’ need to be discussed ‘‘with your direct supervisor
not other employees,’’ adding that if such discussions with
Edward Webb still left Remmel unsatisfied about his wages,
then he should ‘‘look for a job that makes you happy.’’ Such
a statement suggests that Respondent regards the protected
activity of discussing ‘‘wage concerns’’ with other employ-
ees as essentially incompatible with continued employment.
See NLRB v. Crystal Tire Co., 410 F.2d 916, 918 (8th Cir.
1969). That is, it ‘‘is essentially a thinly-veiled threat to fire
[Remmel] for his [protected] activities and is thus violative
of the Act.’’ (Citation omitted.) NLRB v. Intertherm, Inc.,
596 F.2d 275, 276 (8th Cir. 1979). As such, it constitutes a
violation of Section 8(a)(1) of the Act. It also provides back-
ground evidence as to how Respondent’s employees would
evaluate use of the word ‘‘asks’’ in the newly revised and
issued handbook.
Furthermore, the request was newly announced in the mid-
dle of an organizing campaign. During that campaign, as
concluded in various subsections of this section, Respondent
engaged in unlawful conduct in retaliation for employee sup-
port of the Union and to discourage such support by its em-
ployees. In these circumstances, it would be natural for em-
ployees to view what Respondent was ‘‘ask[ing]’’ as less re-
quest than direction. In these circumstances, I conclude that
the rule interferes with employee exercise of Section 7 rights
and, therefore, violates Section 8(a)(1) of the Act.
Respondent points out that there is no evidence that any
employee ever had been disciplined for discussing wages
with nonsupervisory or nonmanagerial personnel. Yet, the
absence of enforcement, or lack of discipline, for violation
of such a rule does not obviate the need for finding of a vio-
lation and for issuing a remedial order because of that viola-
tion. See, e.g., Jas. Mathews & Co. v. NLRB, 354 F.2d 432,
441 (8th Cir. 1965), cert. denied 384 U.S. 1002 (1966). Ab-
sent a showing of employee knowledge that there would be
no discipline imposed for violating the bordered restriction,
see, e.g., SMI of Worcester, Inc., 271 NLRB 1508, 1509
(1984), its nonenforcement does not erase its facial invalidity
and the need to provide a remedy because of it. The most
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695KORONIS PARTS, INC.
that can be said about the absence of discipline for breach
of the ‘‘request’’ is that the bordered addition to the wages
section of the handbook achieved its purpose. That is, it suc-
ceeded in deterring discussion of wages among Respondent’s
employees.
Of course, publication of the expanded wage section, ask-
ing that employees not discuss wages among themselves, had
not been the first time that Respondent sought to limit such
discussions. Even before the ‘‘INTERNAL MEMO’’ to
Remmel, the same subject had been raised during September,
when Sondrol was escorted on a tour of Respondent’s weld-
ing areas, as described in section I,B, supra. At that time,
both Manager Vanderpool and Plant Manager Cloakey ex-
pressed to her the importance of not talking about her wages
with any of Respondent’s employees.
Based on Vanderpool’s testimony, Respondent argues that
those admonitions represented no more than an effort to min-
imize potential friction caused by the fact that Sondrol would
be receiving a higher pay rate than the one ordinarily paid
to new employees. Nevertheless, as discussed above, the Act
does protect the right of employees to discuss among them-
selves the subject of comparative wages. That some receive
more than others is hardly a statutorily countenanced basis
for depriving employees of their right ‘‘effectively to com-
municate with one another regarding self-organization at the
jobsite.’’ Beth Israel Hospital v. NLRB, 437 U.S. 483, 491
(1978). The words of those two supervisors to Sondrol, im-
pressing on her the need for her to refrain from discussing
her wages with coworkers, at the very least ‘‘put in doubt
[her] right to engage in [discussions of wages] protected by
the Act without fear of punishment by . . . her employer.’’
Albertson’s Inc., 307 NLRB 787, 788 fn. 6 (1992). Indeed,
her apprehension would be but heightened in view of her po-
sition as, at that time, merely an applicant for employment
at Paynesville.
It should not be overlooked that Sondrol’s tour of Re-
spondent’s welding areas had occurred within a few days of
the Union’s September 7 letter. In it, Bertram had been iden-
tified as the sole organizing committee member. There is no
evidence showing that, as of the day of Sondrol’s tour, Re-
spondent had been aware of the involvement of any other
employee on behalf of the Union. As described in section
I,A, supra, it had been Bertram who, during the preceding
summer, had corresponded about his wage review with
Webb. In consequence, by the time of Sondrol’s tour, Re-
spondent knew that wages were a sore subject with the lone
employee then identified as the Union’s supporter. Presum-
ably, neither that employee, nor some of the others employed
at Paynesville, would have been cheered to learn that she
was to be paid in excess of the usual starting rate. Accord-
ingly, general knowledge of her starting rate could increase
the number of union supporters there. So far as the record
shows, there would have been no other reason for
Vanderpool and Cloakey’s admonition to Sondrol. Yet, such
a reason is hardly one which justifies curtailing employees’
statutory right to discuss wages among themselves. There-
fore, that admonition to Sondrol violated Section 8(a)(1) of
the Act.
A like conclusion is warranted with regard to the cir-
cumstances of the ‘‘VOTE NO’’ T-shirt distribution. That
subject is discussed in section I,F, supra. Respondent does
not dispute the fact that it made the shirts available to its em-
ployees. Webb claimed that it had done so as a result of re-
quests by ‘‘a number of employees,’’ but he never identified
any of them. No employee appeared as a witness to corrobo-
rate Webb’s testimony. Still, the Board has held that ‘‘avail-
ability of procompany insignia, in the absence of supervisory
involvement in the distribution process or other evidence that
management pressured employees into making an observable
choice or open acknowledgment concerning their campaign
position, did not reasonably tend to interfere with employee
rights under the Act.’’ (Citations omitted.) Schwartz Mfg.
Co., 289 NLRB 874, 879 (1989). Consequently, even without
employee requests for prorespondent apparel, Respondent
would not have violated the Act had it done no more than
make T-shirts available to its employees. But, it did do
more—did go two steps further in connection with them.
It is undisputed that Vanderpool offered ‘‘VOTE NO’’ T-
shirts to employees as they were entering the front door—
the only one they were supposed to use when entering Re-
spondent’s place of business. Further, he asked Sondrol if
she wanted one, thereby tending to put her on the spot as
to whether she would have to wear it and thereby dem-
onstrate support for Respondent. When handing one to Ber-
tram, Vanderpool said that Bertram would now be able to get
rid of the Union’s T-shirt. Consequently, there had been ‘‘su-
pervisory involvement in the distribution process’’ of Re-
spondent’s T-shirts.
The second step, described in section I,F, supra, occurred
when Webb became involved, after learning about Bertram’s
comment that he would wear the T-shirt in the barn. There
perhaps might have been no violation of the Act had Webb’s
remarks to Bertram been confined to a use of the shirt which
could be fairly characterized as deliberate destruction or
abuse of it, such as taking one and immediately tearing it to
shreds. But, Webb did not so confine his comments to Ber-
tram. Instead, he demanded return of the shirt if Bertram was
not going to wear it at Respondent’s place of business.
Under the Act, an employer is not allowed to insist that
employees wear antiunion—nor, for that matter, prounion—
insignia. Webb’s undisputed remark to Bertram—to return
the shirt if Bertram was not ‘‘going to wear it at the
shop’’—rose to the level of such insistence. Furthermore,
that remark was reinforced by the ‘‘Message Reply’’ direc-
tion to return the shirt if Bertram ‘‘wasn’t going to use it the
way it was intended to . . . be used[.]’’ By memorializing
that insistence in a written document which demands that the
shirt be returned by a particular time, if Bertram did not in-
tend to wear it at Respondent’s place of business, Webb ele-
vated his oral insistence to the level of implied threat. That
is, though he did not explicitly threaten adverse con-
sequences for failure to wear or return the shirt, memorializa-
tion of the demand that Bertram do so, on a form ordinarily
utilized by Respondent for messages, would create a natural
apprehension by an employee that noncompliance would re-
sult in adverse consequences. Therefore, both Vanderpool’s
involvement in distribution of the T-shirts, and Webb’s de-
mands of Bertram regarding the shirt which the latter had ac-
cepted, violated Section 8(a)(1) of the Act. A contrary result
is warranted, however, with regard to the allegations con-
cerning distribution of union literature.
As discussed in Indian Hills Care Center, 321 NLRB 144
(1996), workplace literature distribution during reasonable
times and in nonwork areas is protected by Section 7 of the
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696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act. However, an employer can seek to limit it where nec-
essary to maintain production or discipline. No evidence was
presented to contradict Cloakey’s testimony, described in
section I,E, supra, that on receiving literature distributed dur-
ing breaks, employees ‘‘were standing around talking about’’
its contents, rather than returning to work. That is, it is un-
disputed that literature distribution during breaks had been
resulting in interference with production, even though there
is no evidence that the literature distributors had intended
such a result.
Cloakey took no action, nevertheless, to prohibit abso-
lutely the distribution of union literature during breaks. Rath-
er, he proposed a compromise to Kessler, asking that the
union supporters defer their literature distribution until shift’s
end, in return for which Respondent also would do so. In
making that proposal, Kessler admitted, Cloakey said explic-
itly that he could not force Kessler to agree to it. This ex-
change hardly constitutes an instruction, much less a threat,
that the Union’s literature not be distributed during breaks.
To be sure, Respondent displayed antagonism toward the
Union and its employee advocates on other occasions. None-
theless, there is no evidence that Cloakey’s proposal regard-
ing no breaktime literature distribution had been generated,
or likely would have been perceived by an employee listener
such as Kessler, by any motive other than concern about get-
ting production restarted following breaks. That is a legiti-
mate concern under the Act. And the proposal to defer lit-
erature distribution until shift’s end, rather than continuing it
during breaks, is tailored to eliminate the production-related
concern which had arisen, while seemingly allowing the em-
ployees to continue to disseminate the Union’s literature to
coworkers. In these circumstances, I conclude that Respond-
ent did not violate the Act by proposing that union literature
not be distributed during breaks, but be conducted at the end
of the workday.
As it turned out, that proposed compromise proved un-
workable to the Union’s supporters, as described in section
I,O, supra, and they resumed breaktime literature distribution.
However, there is no evidence that Kessler, or any other
member of the Union’s organizing committee, informed
Cloakey or any other official of Respondent, specifically Ed-
ward Webb, of the reason for that resumption. So far as the
record discloses, nothing was said subsequently to any of the
Union’s literature distributors about doing so until Webb
happened on Bertram distributing literature during a break in
late November, after Kessler had ceased working for Re-
spondent.
The complaint alleges that, on that occasion, Webb threat-
ened that employees could not pass out Union literature dur-
ing breaks. But, as described in section I,O, supra, that is not
what actually happened. Webb did ask if Bertram was aware
of Kessler and Cloakey’s agreement. That question is an in-
dication that Webb’s true concern had not been with prevent-
ing distribution of union literature, as such, but with the no-
breaktime literature-distribution agreement and the reason un-
derlying it. Moreover, while Webb did attempt to embellish
his initial description of what Bertram had said—only to later
retreat from his portrayal of Bertram in an unfavorable
light—the fact remains that after Bertram explained that the
Kessler-Cloakey agreement had not worked out, Webb
walked away. So far as the record discloses, the subject of
distribution of literature during breaks never again surfaced.
Of course, Bertram testified that, as he had been walking
away, Webb had said ‘‘something of the sort’’ about ‘‘we’ll
be talking again’’ if Bertram continued distributing literature
during breaks. Yet, as discussed in subsection I, below, Ber-
tram was not always a reliable witness. Beyond that, he dis-
played no certainty—‘‘something of the sort’’—as to what
Webb had actually said as the latter walked away. Even if
Webb truly had said, ‘‘[W]e’ll be talking again,’’ that remark
is ambiguous. It does not rise to the level of an overt threat
of discipline or other retaliation.
Perhaps Webb’s remark, as described by Bertram, could
be construed by an employee as an implied threat. But, it
also reasonably could be construed as a statement of inten-
tion to try working out some different type of agreement, to
replace the unworkable Kessler-Cloakey one. It also could be
construed as no more than grumbling by Webb, on learning
for the first time that the Kessler-Cloakey agreement had
proven unworkable. In any event, notwithstanding Respond-
ent’s other unfair labor practices, the evidence does not suf-
fice to establish that, whatever remark had been made by
him, Webb had made a statement that could be construed by
an employee as a threat.
Therefore, I conclude that a preponderance of the credible
evidence does not establish that Respondent either unlawfully
instructed an employee to not hand out union literature dur-
ing breaks, or that it unlawfully threatened that an employee
could not pass out union literature during breaks.
C. Bonuses, Awards, and Gift Certificates
As stated in section I,D, supra, at a company picnic of Re-
spondent’s employees on September 27, 10-year service
plaques and $1000 bonuses were awarded to certain employ-
ees. Respondent had never awarded either plaques or cash
bonuses to employees for length of service. Given that fact
and, further, the timing of these awards in relation to Behr’s
letters, the General Counsel argues that the bonuses had been
awarded as a benefit, to dissuade employees from supporting
the Union by demonstrating its ability, without a bargaining
agent, to confer improvements in terms and conditions of
employment.
Further supporting that allegation, is the fact that, by the
time of the picnic, only three of those six employees—Loret-
ta Christman, Marge Mohr, and JoAnne Welle—had worked
for Respondent for 10 years. Indeed, Christman and Mohr
had worked for it well over 10 years by September 27. Of
the other employees who received 10-year plaques at the pic-
nic, two—Don Rooney and Elly Mohr—would not complete
10 years of service for Respondent until 1996. The sixth em-
ployee—Myron Koenig—had worked for Respondent only
since January 1991.
Although the foregoing facts would appear to support the
General Counsel’s allegation regarding the bonuses, certain
other facts point to a contrary conclusion. Webb testified that
he had made the decision to honor employees with 10-year
or close to 10-year service plaques during late July. In fact,
Respondent presented correspondence dated August 25—be-
fore there is any evidence that Respondent knew about the
Union’s campaign and, as noted in section I,A, supra, before
any of Respondent’s employees even had contacted the
Union—between Controller Svejkovsky and West Central
Trophies, arranging for 10-year service plaques for
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697KORONIS PARTS, INC.
Christman, Koenig, Marge Mohr, Welle, Rooney, and Elly
Mohr.
As set forth above, the latter two employees would not
complete then years of service with Respondent until early
1996. However, Webb testified that, by July and August,
Rooney and Elly Mohr ‘‘were within a few months of ten
years’ service’’ and he decided to include them. That may
seem a somewhat unusual approach and, given Webb’s gen-
eral unreliability as a witness, might tend to undermine Re-
spondent’s defense. After all, length of service awards are
usually given after the stated service periods have been com-
pleted, not in anticipation of them. Still, Svejkovsky’s Au-
gust correspondence with West Coast Trophies—listing all of
the above-named six employees—removes whatever doubt
may otherwise arise as a result of Webb’s general
unreliability.
Although neither Koenig nor Rooney actually had worked
for 10 years for Respondent by September 27, before begin-
ning work there they had worked for Wet Jet, another com-
pany owned by Edward Webb. He testified that ‘‘it was peo-
ple that worked for me ten years or longer’’ (emphasis
added) whom Respondent intended to honor. Again, the late
August documentation supports that testimony and, con-
versely, refutes any argument that the list of employees to
be honored had been cobbled together in response to the
September notice of the Union’s organizing campaign.
Of course, the foregoing evidence pertains only to honor-
ing 10-year employees with plaques. It does not cover the
three $1000 bonuses awarded during the picnic. Although the
record is not a model of clarity regarding that subject, it
would appear that neither Rooney nor Elly Mohr received a
$1000 bonus on September 27. For, Respondent’s docu-
mentation, discussed in the next paragraph, shows that only
$4000 had been budgeted for 10-year bonuses and neither
Rooney nor Elly Mohr had completed 10 years of service by
that date. Seemingly, Respondent was willing to award each
a plaque in anticipation of completing 10 years of service,
but not to award either of them the cash bonus which accom-
panied the plaques received by the four employees who actu-
ally had completed 10 years of service for Webb.
Svejkovsky provided documentation to support his testi-
mony—which appeared to be candid—that, for the four
$1000 bonuses, he had booked a $4000 journal entry on Au-
gust 2, almost a month before his correspondence with West
Central Trophies and, thus, even further removed from com-
mencement of union activity at Respondent and notice by
Behr to it about the Union’s campaign. That documentation,
along with Svejkovsky’s seemingly candid testimony dooms
any allegation that the bonuses had been conceived as a re-
sponse to notice of the Union’s organizing campaign.
Left for consideration is the timing of the bonus awards:
within 3 weeks of Behr’s first letter to Webb. According to
his August 25 memorandum to Edward and Kathleen Webb,
Svejkovsky anticipated a ‘‘lead time [of] approximately
seven (7) days including the engraving’’ for receipt of the
plaques. Svejkovsky placed that order with West Central
Trophies on that same date. By invoice dated September 8,
West Central Trophies billed Respondent for the six plaques
and Webb wrote a check for them on September 15.
By then, of course, Webb had received Behr’s notice of
the organizing campaign. Still, that notice did not oblige Re-
spondent to abandon its 10 years’ awards plan. For, it is set-
tled that, even during a preelection period, an employer may
announce benefit improvements which have become
concretized as a result of an already initiated and ongoing
process. NLRB v. Tommy’s Spanish Foods, 463 F.2d 116,
119 (9th Cir. 1972); Southbridge Sheet Metal Works, 158
NLRB 819 (1966), affd. 380 F.2d 851 (1st Cir. 1967).
As to the almost 2-week period that lapsed between the
dates of his check for the plaques and the picnic, Webb ex-
plained that ‘‘[w]e had to contact the person that we had
lined up to cook the meal . . . it took a little time to get
the plaques in-house and arranged so that this person could
. . . get off from work to come over during the middle of
the day to cook the lunch we had, and so it took a few days
to get it lined up.’’ On its face, that is not an illogical expla-
nation. There is no evidence contradicting or tending to con-
tradict it. Moreover, inasmuch as the plaques had been trans-
mitted by invoice dated 1 day after Behr’s first letter, it hard-
ly seems significant, for analytical purposes, whether the pic-
nic had been held 1 day, 1 week, or 2 weeks after receipt
of Behr’s letter. In light of the foregoing considerations, I
credit Webb’s denial that the bonuses had been awarded in
response to notice to him of the Union’s campaign and, fur-
ther, conclude that a preponderance of the credible evidence
does not support the allegation that the bonuses had been
awarded to discourage support for the Union. But, what
about the amounts of prizes and gift certificates awarded to
other employees during the same picnic?
As set forth in section I,D, supra, there had been past
drawings for gift certificates and prizes. However, whereas
those drawings had been $5-gift certificates and, as Webb
phrased it, ‘‘little stuff,’’ the September 27 drawings had
been for gift certificates, as he also put it, ‘‘in the $10 area,’’
and for prizes varying ‘‘from $5 to $20.’’ In other words,
higher amounts were involved on September 27 than in the
past. Respondent never explained its reason(s) for having in-
creased those amounts in the wake of receipt of Behr’s cor-
respondence. The absence of such an explanation for so ab-
rupt an increase naturally would lead employees to connect
those increases to the recently revealed organizing campaign.
Indeed, that impression would be reinforced by Respondent’s
October 5 and 6 expressed opposition to unionization of its
employees and by its unfair labor practices discussed in pre-
ceding and succeeding subsections.
To be sure, the certificates and prizes had been, in effect,
gifts to recipient employees. Nevertheless, Webb acknowl-
edged that periodic awards to employees of certificates and
prizes had been an ongoing benefit periodically awarded to
employees at company sponsored events. Even if they had
not risen to the status of terms and conditions of employ-
ment, within the meaning of Section 8(d) of the Act, see
NLRB v. Wonder State Mfg. Co., 344 F.2d 210, 213 (8th Cir.
1965), one can hardly dispute that an employer’s one-time
payments to employees, for the purpose of inducing those
employees to oppose representation, would be regarded as in-
terference with unfettered exercise of statutory rights. That
is, such payments would not be evaluated in terms of Section
8(d) of the Act.
Of course, the amount of any individual gift certificate or
prize had been relatively small, viewed from an objective
perspective. Still, an employer’s misconduct ‘‘is not to be
measured in economic terms alone.’’ American Oil Co. v.
NLRB, 602 F.2d 184, 187 (8th Cir. 1979). Even individually
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698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
small monetary amounts serve to demonstrate to employees
their employer’s power over all its employees’ economic
destinies. Furthermore, even small scale violations of the
Act, at least those which exceed de minimis, require the
Board’s attention. St. Regis Paper Co., 192 NLRB 661, 662
(1971).
The increases might be regard as de minimis had they oc-
curred in a vacuum. Yet, as concluded in preceding and sub-
sequent subsections, they did not occur in a context free of
other unfair labor practices. Consequently, their relatively
small amounts do not serve as a basis for dismissing the alle-
gation pertaining to them. Therefore, in the totality of the
above-discussed circumstances, and especially given the ab-
sence of an explanation for the seemingly abrupt increase in
their amounts, I conclude that by increasing the amounts of
gift certificates and prizes awarded on September 27, Re-
spondent interfered with the exercise of Section 7 rights and
violated Section 8(a)(1) of the Act.
D. Discharge of, or Refusal to Hire, Tamara Sondrol
As pointed out in section I,H, supra, the General Counsel
alleges alternatively that, on October 6, Respondent dis-
charged, or refused to implement its firm plan to hire, Ta-
mara Sondrol. The discharge alternative is based on an al-
leged joint employer relationship between Respondent and
The Work Connection with regard to Sondrol during the time
that she had been working at Respondent’s Paynesville place
of business. Given its control over essential aspects of her
employment during the 3 weeks that Sondrol work there, it
is difficult to conclude that, from September 18 through Oc-
tober 6, Respondent had not been a joint employer of
Sondrol. That is, a preponderance of the evidence dem-
onstrates that Respondent had codetermined essential terms
and conditions of Sondrol’s employment at its Paynesville
place of business. That being so, there is ample basis for
concluding that it had discharged her on October 6.
Still, the more precise description of what had occurred on
that date is that Respondent refused to allow her to continue
working there, pursuant to its contract with The Work Con-
nection, until it implemented its firm plan to hire her as
robotic welder operator. However characterized, the evidence
is clear that Respondent did terminate Sondrol’s continued
employment at Paynesville. Indeed, Respondent concedes as
much.
The crucial issue is not whether Respondent severed its re-
lationship with Sondrol, but its motivation for having done
so. I conclude that a preponderance of the credible evidence
establishes that Respondent’s motivation had been its belief
or suspicion that Sondrol was sympathetic to the Union and
likely would become a supporter of the Union were she to
be allowed to continue working at Paynesville and be hired
as Respondent’s robotic welder operator.
Of course, suspicion or belief that an employee is a union
sympathizer is as unlawful a motivation as actual knowledge
that she supports a union. ‘‘[T]he Act is violated if an em-
ployer acts against the employee[] in the belief that [she has]
engaged in protected activities[.]’’ Henning & Cheadle, Inc.
v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975). Accord:
NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 98 (8th Cir. 1965).
More specifically, belief that a job applicant may become a
union supporter is equally unlawful as a motive for refusing
to hire her. See, e.g., Polynesian Cultural Center v. NLRB,
582 F.2d 467, 469, 474 (9th Cir. 1978); Big E’s Foodland,
242 F.2d 963, 968 (1978).
As discussed in section I,B, supra, Sondrol had begun
working at Paynesville, because Respondent sought someone
to operate the robotic welder which it had purchased and, ac-
cording to Vanderpool, ‘‘didn’t have [a] person’’ qualified to
operate. That testimony should not be overlooked, since there
is no evidence that Respondent had been in any different sit-
uation on October 6, when Vanderpool informed The Work
Connection that Respondent no longer desired Sondrol’s
services.
Essentially, Sondrol had been working on a probationary
basis at Respondent. It had been evaluating her work while
it was arranging for a time when she could be dispatched to
Ohio for robotic training needed to understand and to operate
the newly purchased welder. So far as the record shows, nei-
ther Vanderpool nor any other official of Respondent had
any complaints about the welding work which she performed
from September 18 to October 6. Further, while it did not
occur as soon as Respondent would have preferred, eventu-
ally a slot for robotic welding school did open in Ohio. But,
during the afternoon of October 6 Respondent abruptly re-
versed field.
As stated in section I,B, supra, Vanderpool testified that
Respondent wanted someone who was willing to make a rel-
atively long-term commitment to operate the robotic welder
‘‘and so didn’t necessarily want somebody to come and go
to the training and then leave the plant.’’ Vanderpool’s testi-
mony concerning that preference is not contested. To the
contrary, both Terri Karolus of The Work Connection and
Sondrol, herself, confirmed that Respondent sought someone
willing to make such a commitment to continued employ-
ment with Respondent.
According to Vanderpool, he had spoken periodically with
Sondrol while she was working at Respondent, but her re-
sponses about her job showed no more than, as he put it,
‘‘Questionable satisfaction.’’ During that same period, he tes-
tified further, he had spoken with Karolus about Sondrol’s
attitude and Karolus had said that she could not say that
Sondrol would continue working for Respondent for a long
period.
In fact, Karolus—who, when she testified, obviously was
disposed to Sondrol’s position—acknowledged that she had
told Vanderpool that Sondrol had been ‘‘evasive’’ on the
point of long-term employment with Respondent and, in ad-
dition, that she had agreed with Vanderpool that maybe
Sondrol did not want to stay with Respondent for a long pe-
riod. Moreover, during conversations conducted while
Sondrol was working at Respondent, Karolus testified that
Sondrol had said that she was not thrilled about working
there, because she was doing the same thing over and over,
and that she did not want to continue doing the work which
she was being assigned because it subjected her to physical
strain.
As a result of those conversations, Karolus testified that
she did not have a good feeling about Sondrol’s long-term
prospects at Respondent. Still, it should be kept in focus that,
once she was trained to operate the robotic welder, Sondrol
would be performing duties different from the ones that Re-
spondent had been assigning to her as, in effect, fill-in weld-
ing work—work that she could perform until schooled in
Ohio.
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699KORONIS PARTS, INC.
As pointed out in section I,H, supra, Vanderpool placed
three telephone calls to The Work Connection on October 6,
the first of which had been at 12:26 p.m. The first call lasted
11-1/2 minutes. During it, testified Vanderpool, he had first
spoken with The Work Connection’s officer manager, Sheila
Martinek, and then with Karolus. He expressed his nervous-
ness about Sondrol’s unwillingness to make ‘‘the commit-
ment that I was interested in,’’ Vanderpool testified, and
Karolus replied that she ‘‘didn’t really have a reading for me
to tell me over the phone at that time,’’ saying that she
would have to talk to Martinek about it.
According to Vanderpool, responding to a message to call
her, he later telephoned Karolus who said, ‘‘[W]e kind of
have somewhat the same feeling they [sic] do, we are not
getting that reading of extreme satisfaction’’ and ‘‘[C]an’t
tell you that we think . . . she’s going to stay for a long
time[.]’’ Further discussion, as described by Vanderpool, left
the situation no less ambiguous and, he testified, he said,
‘‘Well, I’ll call you back.’’ Later that afternoon, Vanderpool
testified, he did call Karolus and, during that conversation,
said that ‘‘I think I have to stop this’’ and that Sondrol’s
services no longer would be needed by Respondent.
Vanderpool denied having perceived Sondrol as a union sup-
porter and testified that his sole reason for not allowing her
to continue working at Paynesville, and hiring her, had been
her ambiguous attitude about continuing to work at Respond-
ent.
Vanderpool’s denial that he had perceived Sondrol to be
a union supporter encountered heavy going during cross-ex-
amination. For, at the bottom of the first page of Sondrol’s
‘‘PERSONAL RESUME,’’ faxed to him by The Work Con-
nection, Vanderpool admitted that he had handwritten and
then scratched over, ‘‘some time after I received it I would
assume,’’ the word ‘‘UNION.’’ He advanced no explanation
of his own for having written that word on Sondrol’s resume,
although he readily adopted an explanation, suggested during
redirect examination, that he had a habit of writing or doo-
dling on pieces of paper.
Of course, that is a somewhat strange word to write on
someone’s resume. Vanderpool equivocated somewhat when
asked directly if the notation disclosed that he had believed
Sondrol to be prounion: ‘‘I don’t believe it has anything to
do with that, other than I would have written on the piece
of paper from some conversation maybe I had or some-
thing.’’ (Emphasis added.) Asked next if the notation would
necessarily have been related to Sondrol, Vanderpool re-
sponded, ‘‘Very likely not. It’s not necessarily related to
that.’’ (Emphasis added.) Yet, at no point did he deny cat-
egorically that the notation ‘‘UNION’’ had pertained to
Sondrol. Furthermore, at no point did Vanderpool advance
any particularized explanation whatsoever as to how he had
come to write, and then scratch out, that word on Sondrol’s
resume.
The evidence provides a basis for Vanderpool to have
come to suspect that Sondrol was disposed to be sympathetic
toward the Union and, should she be added to Respondent’s
payroll and included in the bargaining unit, that she likely
would become a union supporter and vote in favor of rep-
resentation, should an election eventually be conducted.
Thus, when he offered her one of the ‘‘VOTE NO’’ T-shirts,
as described in section I,F, supra, Sondrol asked Vanderpool
if she had to wear it. That hardly is a question that would
be asked by someone not sympathetic toward the Union.
Though she accepted a shirt from him, there is no evidence
that she ever wore it while working at Respondent over the
course of succeeding days.
Her failure to wear the T-shirt likely would not have es-
caped Respondent’s notice. As described in subsection B,
above, it had been Bertram’s unwillingness to wear the shirt
which he had accepted which caused Webb to demand it re-
turn. It is a fair inference that Respondent did not overlook
others who accepted, but did not wear, Respondent’s $15 T-
shirts. Failure to wear one of the shirts, after having accepted
it from Vanderpool, would be some indication to Respondent
of the recipient’s lack of sympathy with Respondent’s posi-
tion respecting representation of its employees.
Sondrol also asked to attend one of the group meetings
conducted by the Webbs. To be sure, in making that request
and in her questions during the meeting which she attended,
she never said explicitly that she supported the Union and its
organizing campaign. Still, her questions and comments dur-
ing that meeting, described in section I,H, supra, hardly can
be characterized as favorable to Respondent. After all, a
question about possible retaliation, against an employee who
brings a concern to her/his employer’s attention, hardly dis-
plays confidence in the fairness of that employer. Nor does
it display an attitude of indifference toward the need for em-
ployees to secure some protection against such an employer.
Moreover, a question regarding denial of a raise to an em-
ployee, because of equipment failure hardly demonstrates be-
lief in the fairness with which employees are treated. Those
types of questions would more likely lead an employer to
suspect that the employee was unsympathetic, than sympa-
thetic, to the argument that its employees did not need a col-
lective-bargaining agent to protect their interests.
As set forth in preceding subsections, Respondent had not
been reluctant to resort to unfair labor practices to deter its
employees from supporting the Union. By October 6 it had
not made a final commitment to hire Sondrol. The decision
not to do so was made abruptly. It also was made shortly
after the group meeting which she had attended and during
which she posed the above-described questions to the Webbs.
The word ‘‘UNION’’ had been written on Sondrol’s resume
and, then, had been scratched out. The totality of these cir-
cumstances give rise to a fair inference that Respondent, par-
ticularly Vanderpool, did suspect her of being a potential
union supporter.
That inference, and a conclusion that she had been hustled
away from Respondent’s place of business because of her
potential support for the Union, are reinforced by one undis-
puted remark made by Vanderpool to Karolus on October 6.
During a telephone conversation with Vanderpool on that
date, Karolus testified, he had said that Sondrol ‘‘had got
[sic] mixed in with the wrong group of people’’ or ‘‘was
mixed in with the wrong group of people,’’ and, further,
‘‘that she now had a bad attitude’’ or ‘‘that Tammy’s attitude
had changed.’’ While he challenged other aspects of
Karolus’s testimony—time of day of his telephone conversa-
tion with her, length of the call during which he said that
Respondent no longer desired Sondrol’s services—
Vanderpool never contested her testimony that he had made
those remarks to Karolus about Sondrol.
To be sure, when testifying, Karolus appeared to favor
Sondrol’s position. Moreover, it is clear that she had not
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700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been accurate when she testified that her telephone conversa-
tion with Vanderpool had occurred during the morning and
had lasted ‘‘an hour to two hours.’’ Respondent’s telephone
records effectively contradict both assertions. Yet, in the
final analysis, neither aspect of her testimony is so central
as to demonstrate that none of Karolus’s testimony is reli-
able. Indeed, if the call had occurred during the morning, as
she testified, the timing could undermine any conclusion
based on Sondrol’s questions during the Webbs’ 9:10 a.m.
group meeting on October 6—that is, such testimony tends
to undermine, rather than further, Sondrol’s position. Further-
more, it is not the length of the telephone conversation be-
tween Vanderpool and Karolus which is critical. Rather, it is
the substance of the words spoken during that conversation.
In sum, at worst it appeared that Karolus had been mistaken
about the time of day when she spoke with Vanderpool and
the length of the conversation during which he said that
Sondrol should no longer report to Respondent. But, neither
mistake serves to render inherently unreliable the words of
Vanderpool, which he never disputed having spoken to
Karolus, regarding Sondrol’s ‘‘attitude’’ and her having be-
come ‘‘mixed in with the wrong group of people.’’
Respondent presented no evidence that, during early Octo-
ber, there had been some, what Respondent regarded as, ‘‘the
wrong group of people,’’ other than the Union, at its place
of business with whom Sondrol had become involved. Ac-
cordingly, it is a fair inference that, in making that statement
to Karolus, Vanderpool had been referring to employees sup-
porting the Union. Not only do Vanderpool’s undenied state-
ments to Karolus reinforce the conclusion that Respondent
suspected Sondrol of being a likely potential union supporter,
should Respondent continue with its plan to hire her, but the
above-quoted statements constitute virtually an admission
that Vanderpool, the official who claims to have made the
decision concerning Sondrol, had decided not to put her on
Respondent’s payroll because of his concern about increasing
the number of unit supporters for the Union.
A careful examination of the evidence underlying Re-
spondent’s defense to its refusal to hire Sondrol reveals that,
as an objective matter, that defense is unreliable. There can
be no dispute about the fact that Respondent had been seek-
ing a long-term employment commitment from Sondrol and,
moreover, that she had not made one as of October 6. Still,
Vanderpool testified to only one occasion when he had spe-
cifically ‘‘asked Tammy directly about long term,’’ and on
that occasion, he admitted, Sondrol ‘‘just said, for a number
of years.’’ Surely, that response is some indication of
Sondrol’s intention to remain working for Respondent for
more than a brief period. And, Vanderpool admitted that the
commitment he had been seeking had been ‘‘for a year or
two, that would have got us on our feet with the robotic
welder and we could have done really well.’’ In sum, on the
only occasion when Vanderpool spoke directly to Sondrol
about remaining as an employee of Respondent, so far as the
evidence discloses, she had given him a response which
should have satisfied the limited commitment which he testi-
fied that he had been seeking.
In all other respects, Vanderpool claimed that he had re-
lied on his ‘‘feelings’’ or ‘‘reading’’ of Sondrol’s answers to
his more general questions, such as ‘‘how things were
going’’ and, ‘‘How do you like what you’re doing[?]’’ Of
course, when those questions were being asked, Sondrol had
not been working on the robotic welder; she had been per-
forming, in effect, fill-in welding until dispatched to robot
school. Indeed, Vanderpool conceded that he understood that
Sondrol would not be pleased with performing that fill-in
work. For, he testified that he had explained to her that ‘‘the
robot wasn’t there [at] that time, that she needed to work on
some welding and I said I realize these booths really aren’t
where you want to be, but it gives us an opportunity to see
how you do according to some standards, it’s a good gauge
for us.’’ Yet, having acknowledged that Sondrol had been
doing welding work other than the type which she had been
hired to eventually perform, and having told her he knew
that ‘‘these booths really aren’t where you want to be,’’
Vanderpool never explained how, when he had asked how
nonrobot welding work was going and how Sondrol liked
what she was doing, he had concluded that her
‘‘[q]uestionable satisfaction’’ responses could be extrapolated
to reflect what her attitude would be when she eventually got
to perform the robot work which she had been hired to per-
form.
When employees are disciplined for asserted misconduct,
one objective factor evaluated in analysis is employer will-
ingness to advise that employee of the asserted misconduct
and to offer her/him an opportunity to defend herself/himself.
Unwillingness to do so tends to show lack of true interest
in whether the misconduct actually had occurred. See
Handicabs, Inc., 318 NLRB 890, 897 (1995), and cases cited
therein. The situation here is analogous.
Despite admittedly having been told at one point by
Sondrol that she planned to remain employed ‘‘for a number
of years’’ at Respondent as a robotic welder, the position
which Respondent intended her to occupy, Vanderpool
claimed that her equivocal responses to his questions about
satisfaction with other nonrobot work led him to doubt her
willingness to remain as a robotic welder. But, he never
claimed, and Respondent presented no other evidence, that
he ever again had asked explicitly if Sondrol intended to re-
main employed by Respondent once she completed the
schooling and began performing robotic welding. His failure
to do so, especially in light of her earlier satisfactory re-
sponse to that specific question, tends to show a lack of true
interest in whether or not Sondrol intended to remain with
Respondent once she began operating the robot. Further, his
effort to seize on answers to his questions about work which
he conceded that she did not want to perform, and then to
transport those answers to robot welding, tends to dem-
onstrate that Vanderpool was attempting to create a pretext
for not following through on Respondent’s plan to hire
Sondrol as its robotic welder.
One other factor tends to confirm a conclusion that Re-
spondent’s true motive for not allowing Sondrol to continue
working at Paynesville had been an unlawful one. As pointed
out above, during September Vanderpool had concluded that
Respondent ‘‘didn’t have that person’’ then employed who
could qualify for assignment to the robotic welder. Then, as
described in section I,B, supra, Vanderpool selected one of
those very same employees—Ron Masters—to send to
school in Ohio, after deciding not to hire Sondrol. He had
been one of the very employees whom Respondent had re-
garded 1 month earlier as not qualified for assignment to the
robotic welder. There is no evidence that he had done any-
thing while Sondrol had been working at Paynesville that
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701KORONIS PARTS, INC.
would warrant a conclusion that he was qualified in October,
when he had not been in September. Nevertheless, Respond-
ent abruptly rushed him into the breach created by Sondrol’s
departure.
In sum, the considerations set forth at the first part of this
subsection provide ample evidence that suspected potential
union sympathy motivated Respondent’s refusal to continue
with its plan to hire Sondrol. The burden of showing that she
would not have been hired in the ordinary course of events,
despite her display of potential union support, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), was undertaken on Re-
spondent’s behalf by Vanderpool. I do not credit his expla-
nation. Therefore, I conclude that a preponderance of the
credible evidence establishes that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by failing to follow through
on its plan hire Tamara Sondrol.
E. Disciplinary Reports Issued for
Employee Misconduct
A series of allegedly unlawfully motivated disciplinary no-
tices were issued by Respondent to its employees: to Bertram
on September 20, along with a transfer from resleeving to
the wear bar department’s induction welding machine, and
on September 27, as described in section I,C, supra; to
Kessler on October 3, as described in section I,E, supra; to
Bertram and Remmel on October 16, as well as an additional
‘‘INTERNAL MEMO’’ to Remmel on that same date, as de-
scribed in section I,I, supra; and, to Bertram and Kessler on
November 7, as described in section I,K, supra. While the
notices issued to Bertram on September 20 and 27, and the
‘‘INTERNAL MEMO’’ issued to Remmel on October 16,
were related to job performance, the other notices were for
asserted misconduct and it is the motivation for those notices
which is analyzed in this subsection.
As set forth in section I,E, supra, Kessler received an em-
ployee disciplinary report on October 3, as a result of his ad-
mitted luncheon remarks to repairman Kuney about Webb
purportedly hiding money. In making that remark to Kuney,
it is undisputed that Kessler said that he had heard about that
hidden money during one of the Union’s meetings. Con-
sequently, he was repeating to Kuney no more than what had
been said during the organizing campaign. There is no evi-
dence that Kessler ever made an accusation of his own that
Webb had engaged in any financial impropriety.
Respondent contends that Kessler’s remarks to Kumey
were beyond the protection of the Act, because those re-
marks tended to undermine ‘‘that cooperation, continuity of
service and cordial contractual relation between employer
and employee that is born of loyalty to their common enter-
prise.’’ (Footnote omitted.) NLRB v. Electrical Workers
Local 1229 IBEW (Jefferson Standard), 346 U.S. 464, 472
(1953). Yet, the situation presented in that case differed from
Kessler’s remark to a single person about what had been said
during a union meeting.
The employees in Jefferson Standard had ‘‘sponsored or
distributed 5000 handbills making a public, disparaging at-
tack upon the qualify of the company’s product and its busi-
ness policies, in a manner reasonably calculated to harm the
company’s reputation and reduce its income.’’ (Supra, 346
U.S. at 471.) In contrast, there is no evidence that Kessler
had engaged in any form of broad-based public dissemina-
tion of what he had heard from the Union about Webb. That
is, he repeated what he had heard only once and, then, to a
single person during a private luncheon. The remark which
he repeated did not pertain to Respondent’s product or busi-
ness reputation. Kuney was a vendor or supplier of Respond-
ent, not a customer. There is no evidence that he was a posi-
tion to affect Respondent’s income in any fashion. Moreover,
there is no evidence that Kessler sought to have Kuney dis-
seminate what was being said, nor that Kessler could fairly
have anticipated that Kuney would have done so. In these
circumstances, the Jefferson Standard doctrine is inapplicable
and there is no basis for concluding that Kessler had been
engaging in activity which placed him outside of the Act.
Beyond that, as set forth in section I,E, supra, Webb ad-
mitted not only that he had been told on October 3 by
Kessler that it had been ‘‘the [U]nion [which] had said’’ that
Webb was hiding money, but that Kessler also ‘‘agreed that
he wouldn’t’’ repeat those union-originated remarks about
Webb. That is, Kessler effectively apologized for having re-
peated the Union’s accusation to Kuney and promised to
never do so again. Nonetheless, Webb testified that he had
said, ‘‘I had to give [Kessler] a warning for’’ having done
so. At no point did Webb explain why, in the light of the
apology and promise, he ‘‘had to give him a warning for
that.’’
There is no evidence that, in the past, Kessler ever had
made any type of negative comment about Respondent or
Edward Webb to an outsider. Webb did not claim that he
disbelieved Kessler’s promise not to again repeat the Union’s
accusation. The fact that Webb issued an employee discipli-
nary report to Kessler in these circumstances tends to show
that Webb’s actual concern had been not with preventing
what he regarded as employee misconduct, but instead with
utilizing any possible misstep by a union supporter as a basis
for issuing disciplinary reports that could eventually be used
against identified union supporters. That inference is
strengthened by the circumstances leading to other discipli-
nary reports discussed below and in the succeeding sub-
section.
Furthermore, Kessler had been one of the employees iden-
tified by Behr, in his September 15 letter, as being ‘‘on the
Organizing Committee[.]’’ As such, Respondent could fairly
anticipate that Kessler would be communicating with co-
workers in an effort to garner support for the Union. Obvi-
ously, one type of communication which employee-organiz-
ers naturally would be making to other employees involved
criticisms of existing terms and conditions of employment
provided by Respondent. If—as Webb stated in the October
3 disciplinary report—critical remarks by Kessler would be
‘‘CONSIDER[ED]’’ by Webb to be ‘‘DEFAMATORY,’’
then, according to that Report, Kessler would be subjected to
‘‘FUTURE DISCIPLINE.’’ As a result, the October 3 dis-
ciplinary report had an inherent chilling effect on Kessler’s
statutorily protected activity. To be sure, the disciplinary re-
port arose as a result of Kessler’s remark to someone not
employed by Respondent. Still, the warning which it contains
is so broadly worded that an employee likely would be con-
cerned that any criticism of Respondent to any person, em-
ployee or nonemployee, would be ‘‘considered’’ by Webb as
defamatory and, accordingly, a possible basis for future dis-
cipline.
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702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, Kessler’s repetition to a single outsider of a re-
mark made by the Union during one of its organizing meet-
ings with Respondent’s employees was not outside the scope
of the Act’s protection. It led Respondent to issue an em-
ployee disciplinary report to Kessler, even though he in-
formed Edward Webb that he was repeating what he had
been told by the Union, not making an accusation on his
own, and promised not to do so again. In view of that prom-
ise, Respondent provided no explanation as to why it had
been necessary to issue a disciplinary report to Kessler. Not
only did that disciplinary report serve as a means for build-
ing a record against Kessler for possible future discipline, but
its admonition about future discipline was so broadly worded
that it inherently infringed on Kessler’s ability to engage in
organizing activities protected by Section 7 of the Act.
At the time of issuing the disciplinary report, Respondent
knew that Kessler was one of the Union’s leading pro-
ponents. As concluded in preceding and subsequent sub-
sections, Respondent engaged in unfair labor practices as a
means of retaliating against the Union’s supporters and as a
means of discouraging support for the Union among its em-
ployees. In the totality of the circumstances, it is a fair infer-
ence that the October 3 employee disciplinary report was
issued to Kessler as a means of furthering those unlawful ob-
jectives. Therefore, I conclude that a preponderance of the
credible evidence establishes that the disciplinary report
issued to Kessler had been unlawfully motivated and, con-
sequently, violated Section 8(a)(3) and (1) of the Act.
The employee disciplinary reports issued to Bertram and
Remmel on October 16 also were based on conduct in which
both employees had engaged, though Remmel denied that he
had used a door other than the front one to enter and exit
during nonworktime. Moreover, Bertram and Remmel were
not the only employees who received disciplinary reports on
October 16 for that infraction. As set forth in section I,I,
supra, Greg Ranthum also had receive an employee discipli-
nary report that day for the same offense as Bertram and
Remmel: using a door other than the front one to enter or
leave Respondent’s building. Within the next 10 days three
other employees each received disciplinary reports for that
same offense.
As to the comparative substance of all those disciplinary
reports, five, including the ones issued to Bertram and
Remmel, listed as offenses, ‘‘Failure to follow instructions’’
and ‘‘Violation of Company Rules.’’ Only the latter was
checked on the disciplinary report issued to Brenda Lang on
October 25. Yet, so far as the record reveals, omission of
‘‘Failure to follow instructions’’ on her disciplinary report
was no more than an oversight. In any event, there is no
basis for concluding that the omission had some significance
in evaluating the actual motive for the ones issued to Ber-
tram and Remmel.
Similarly, in the ‘‘Supervisor’s Remarks’’ portion of the
form, no inference adverse to Respondent can be drawn from
the sentence, appearing in the disciplinary report issued to
Bertram, ‘‘IF HE DOES THIS AGAIN HE WILL BE DIS-
MISSED.’’ For, substantially the identical warning—‘‘NEXT
OFFENSE OF THIS WILL MEAN DISMISSAL’’—appears
on Lang’s disciplinary report. However, there is no evidence
that she had been viewed as being a union supporter. Con-
versely, Remmel, like Bertram an identified supporter of the
Union, received an employee disciplinary report which
makes no mention of consequences for future violation of the
front-door only rule.
As pointed out in sections I,C, and I,I, supra, the rule
against using other than the front door, to enter and exit
when coming to and leaving work, and during lunches and
breaks, had been a longstanding one. Employees had been
notified of its existence during 1991 and, again, during 1993.
Shipping and Receiving Department Head Marge Mohr testi-
fied, without contradiction, that concern about employees
taking product had existed since the mid-1980s. According to
her, one possible method for doing so had been use of a side
door to take parts from the building. Those parts would be
placed outside the side door and, at night, the taker(s) would
return and pick them up from the outside location where they
had been placed.
As to republication of the rule on September 22—which,
it should be remembered, is not alleged to have violated the
Act—Webb, Cloakey, and Marge Mohr each testified that
the latter had discovered and reported product, which should
have been stored elsewhere, stacked by the warehouse door.
In addition, Mohr testified that during August one employee
had reported that another employee was selling studs to peo-
ple in the area. A review of Respondent’s records disclosed
no purchases from Respondent of those studs by that em-
ployee. From those facts, Respondent concluded that the em-
ployee was taking the studs. As a result, the front-door only
rule was republished to try to channel employees in and out
one door, so that they could be more carefully watched to
ascertain if any was removing product. The General Counsel
does not challenge the logic of that policy.
Cloakey was involved in all of the above-enumerated em-
ployee disciplinary reports for use of other than the front
door. He issued those disciplinary reports to Bertram,
Ranthum, Oliver, Andrews, and Lang. He served as ‘‘wit-
ness’’ for the one issued to Remmel by the latter’s super-
visor, Vanderpool. That was not illogical, since Cloakey tes-
tified that he had been the one who had seen ‘‘Allan go in
and out the side door by the dyno room in R & D.’’
As described in section I,I, supra, Bertram conceded that
he had existed and re-entered a side door on October 16 to
check on damage to his vehicle cause by having struck a
deer on his way to work that morning. Remmel, in contrast,
advanced what appeared to be a tailored denial of having
violated the rule. In so doing, he demonstrated objectively
that his testimony was not always reliable.
Remmel denied having used any door other than the front
one when he had arrived for work on October 16 and when
leaving or returning from breaks that day. He further testified
that when given the disciplinary report, he had said to
Vanderpool ‘‘that I had gone out and in the front door for
my break[.]’’ All well and good—except that the ‘‘Super-
visor’s Remark’’ on Remmel’s disciplinary report (G.C. Exh.
28) begins: ‘‘I am told that you departed from R & D at
Lunch time without going through the front door. I under-
stand that you went into [sic] the shipping door.’’ (Emphasis
added.) At no point did Remmel deny with particularity hav-
ing used a door other than the front one on October 16 to
leave for lunch.
To be sure, it might be argued that lunch is a break period
and that Remmel’s general denial regarding breaks had been
intended to encompass his lunch period that day. Still, as he
testified, Remmel appeared to be a very precise person who
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703KORONIS PARTS, INC.
would not resort to generalities whenever he intended to be
specific. Moreover, as quoted above, the employee discipli-
nary report which he had been handed on October 16 stated
expressly ‘‘Lunch time’’ and I doubt, had he used the front
door to go to lunch that day, that he would have utilized the
more general term ‘‘break’’ in protesting to Vanderpool. Cer-
tainly, there is no basis for speculating that Vanderpool
would, or should, have understood ‘‘break’’ to mean ‘‘Lunch
time,’’ as specified in the disciplinary report.
Remmel’s sometime unreliability was further demonstrated
when he testified, with regard to which door other than the
front one he had been accused of going out, ‘‘They didn’t
specify, and I don’t remember.’’ A rereading of the above-
quoted ‘‘Supervisor’s Remarks’’ portion of his disciplinary
report, however, shows that Vanderpool had specified ‘‘the
shipping door’’ as the one through which Remmel had de-
parted ‘‘at Lunch time.’’ In light of the foregoing consider-
ations, I conclude that a preponderance of the credible evi-
dence does support Respondent’s position that both Bertram
and Remmel had violated the ‘‘front-door only’’ rule on Oc-
tober 16.
Still, that does not conclude evaluation of this allegation.
The rule had been a longstanding one at Respondent. Both
Bertram and Marge Mohr testified that it had been violated
regularly. Indeed, the latter testified that it had been because
‘‘too many people weren’t following it again, they were
using the side doors’’ that Respondent had republished the
rule on September 22. Nevertheless, Respondent never con-
tended that it ever had issued, or ever had contemplated
issuing, employee disciplinary reports prior to September 22
for violation of the ‘‘front-door only’’ rule. Further, nothing
in its September 22 republication indicated an intention to
start issuing disciplinary reports for nonobservance of the
rule. Nor did Mohr, Cloakey, Vanderpool, or any other offi-
cial, testify to an intention to do so at the time of rule’s Sep-
tember 22 republication.
By October 16, of course, Respondent knew about the
Union’s organizing campaign. It knew that Remmel and, es-
pecially, Bertram were leading proponents of the Union. It
opposed representation of its employees by the Union and,
as concluded in preceding subsections, had been willing to
resort to unlawful conduct to retaliate against the Union’s
supporters and to discourage selection of the Union as its
employees’ bargaining agent. Most specifically, as concluded
above, an employee disciplinary report had been the vehicle
for retaliating against, and for beginning to construct a record
against, Kessler because of his union support.
Respondent never explained its seemingly abrupt reversal
on October 16 of not issuing disciplinary reports for use of
doors other than the front one. Two of the first three employ-
ees to whom disciplinary reports were issued, for violating
the rule, were members of the Union’s organizing committee.
Obviously, Respondent could not issue disciplinary reports to
them without issuing a like report to Ranthum and, later, to
other employees who subsequently violated the rule. Possibly
the General Counsel could have alleged that those other em-
ployee disciplinary reports were also unlawfully motivated,
because issued to conceal and justify an unlawful motive for
issuance of like reports to Bertram and Remmel. That the
General Counsel chose not to do so does not somehow con-
stitute a waiver of his statutory obligation to proceed on the
disciplinary reports which were issued to the Union’s sup-
porters. Indeed, issuance of disciplinary reports to a few em-
ployees not shown to have been union sympathizers does not
automatically preclude a finding of discrimination against
employees who do support a union. Alliance Rubber Co.,
286 NLRB 645, 647 (1987); Frank Letz Honda, 321 NLRB
482 fn. 5 (1996).
In sum, there is no evidence that Respondent had con-
templated issuing, or ever had issued, employee disciplinary
reports to any employees who violated its ‘‘front-door only’’
policy prior to the advent of the Union’s organizing cam-
paign. Respondent supplied no explanation whatsoever for
having abruptly decided to do so following notice that an or-
ganizing campaign was in progress. Two of the initial three
employees who received disciplinary reports for violating the
rule were identified union activists. Respondent opposed
unionization of its employees and engaged in unfair labor
practices to retaliate against union supporters and to discour-
age support for the Union. By issuing disciplinary reports to
Bertram and Remmel on October 16, Respondent was able
to begin in the case of Remmel, and to continue in the case
of Bertram, as discussed in the succeeding subsection, laying
a paper trail against them as the basis for possible future,
more severe, disciplinary action. Therefore, I conclude that
a preponderance of the credible evidence establishes that, in
issuing employee disciplinary reports to Bertram and
Remmel on October 16, Respondent had been unlawfully
motivated and violated Section 8(a)(3) and (1) of the Act.
Events leading to issuance on November 7 of employee
disciplinary reports to Bertram and Kessler are set forth in
section I,K, supra. They were issued for unauthorized use of
Respondent’s telephone to make personal calls and, in fact,
both employees had done so. Nonetheless, they were issued
to two of the Union’s organizing committee members against
a background of other unfair labor practices, including
issuance of disciplinary reports on prior occasions in retalia-
tion for the union sympathies and activities of, as well as to
build a record against, some of the Union’s leading pro-
ponents. In the totality of the circumstances, I conclude that
those same motives led Respondent to issue the November
7 disciplinary reports to Bertram and Kessler.
To be sure, Respondent has a written policy which pro-
hibits unauthorized personal calls, just as it has a written pol-
icy against use of doors other than the front one for entering
and leaving its building. In contrast to that latter policy, how-
ever, it is undisputed that it had audited employees’ calls and
had disciplined employees for making unauthorized ones. For
example, on March 1, 1994, employee Geralyn Rychman had
been fired for excessive personal telephone calls.
Furthermore, Bertram admitted having called Behr on No-
vember 6, without having first obtained permission to do so,
and Kessler admitted having made a number of personal call,
also, for the most part, without first securing permission to
place them. Still, the foregoing circumstances are not so con-
clusive of Respondent’s motivation on November 7 as Re-
spondent contends.
The rule which Bertram violated prohibited altogether,
‘‘Personal phone calls . . . during working hours without
prior arrangements.’’ It had been Bertram whom Kathleen
Webb and Cloakey had observed, on November 6, engaging
in a telephone conversation while in the machine shop office.
Unlike Kessler, Bertram had no code number assigned to
him for placing business-related telephone calls. Accordingly,
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704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regardless of whom Bertram had called that day, he had vio-
lated Respondent’s above-quoted policy, at least if he had
placed that call ‘‘without prior arrangements.’’ Yet, there is
no evidence that Respondent’s officials—Kathleen Webb and
Cloakey—made the least effort to ascertain if some super-
visor other than Cloakey had authorized Bertram’s call. In-
stead, Respondent went to the not insignificant trouble of at-
tempting to ascertain to whom Bertram had been speaking—
a seemingly irrelevant consideration, if none of its super-
visors had authorized him to make the call.
Respondent argues that the effort to locate the identity of
the other party had constituted no more than a legitimate in-
vestigation. However, at no point during their sometimes in-
consistent, and other time internally contradictory, expla-
nations, about the effort to check on the identity of that
party, did Respondent’s officials truly claim that this effort
had been made to investigate whether there had been a viola-
tion of the rule against unauthorized telephone calls. Indeed,
the inconsistencies between their accounts, as well as the in-
ternal contradictions in the testimony of Edward Webb, serve
only to fortify the conclusion that, during the hearing, Re-
spondent’s officials were attempting to construct a defense
that could be construed as legitimate, rather than testifying
truthfully concerning the motivation for having issued the
employee disciplinary record to Bertram on November 7.
That conclusion is further supported by Controller
Svejkovsky’s failure to corroborate Edward Webb’s testi-
mony that Svejkovsky had participated in the effort to ascer-
tain with whom Bertram had been speaking on the telephone
and, moreover, by the absence of corroboration by Kathleen
Webb of her husband’s testimony about her participation in
the events leading to issuance of the disciplinary report to
Bertram. Their failure to corroborate Edward Webb’s testi-
mony concerning them gives rise to a fair inference that, had
they been asked about the events of November 6 and 7, they
would not have corroborated Edward Webb’s testimony.
The fact that Respondent made a not insignificant effort to
ascertain the identity of the party with whom Bertram had
been speaking, instead of trying to determine whether some
supervisor other than Cloakey had authorized Bertram’s No-
vember 6 call, is an indication that its true concern about the
call had been with the identity of that party, and less with
the fact that Bertram might have made an unauthorized call.
That effort gives rise to a further inference that the true rea-
son for disciplining Bertram had been the identity of the
party whom Bertram had called, rather than his failure to ob-
tain authorization to place the call. The fact that Respondent
undertook the effort to ascertain the identity of that party,
rather than trying to find out if some supervisor other than
Cloakey had authorized Bertram to place the call, tends to
undermine the argument that Respondent would have dis-
ciplined Bertram for having made a unauthorized call, re-
gardless of to whom it had been placed. After all, it hardly
makes sense to undertake an investigation of the identity of
that party unless that party’s identity is significant in decid-
ing whether or not to discipline the employee.
Of course, the November 7 addition of an employee dis-
ciplinary report to Bertram’s personnel file made it possible
for Respondent to further buttress its position in future, more
severe, disciplinary action against Bertram, should an oppor-
tunity arise. He had been the first union supporter whose
identity had been revealed by Behr. Respondent opposed the
Union and engaged in unfair labor practices to undermine
support for it. Furthermore, a conclusion of unlawful motiva-
tion for Bertram’s disciplinary report is supported further by
analysis of the parallel disciplinary action taken against
Kessler on that same date.
He had worked for Respondent since February, approxi-
mately 9 months by November 7. Although there was dispute
between Kessler and Cloakey concerning the numbers of per-
sonal calls which the latter had authorized the former to
make during the early period of Kessler’s employment, it is
undisputed that Kessler had made a number of personal calls
without securing prior authorization. Still, though Respondent
had audited employees in the past, there is no evidence that
it had made any effort to audit Kessler’s telephone calls until
November 6, when he was discovered in the same office
where Bertram was speaking on the telephone with, as Re-
spondent discovered, the Union’s vice president. Yet, Kessler
had not been participating in a telephone conversation at that
time. And there is no evidence that any of Respondent’s offi-
cials had observed Kessler participating in any telephone
conversation on November 6. Nevertheless, Respondent un-
dertook an audit of his personal telephone calls in the imme-
diate wake of discovering him in the office with Bertram.
As set forth in section I,K, supra, Cloakey claimed that he
had initiated the sequence of events leading to investigation
of Kessler’s telephone calls, by having asked Kathleen Webb
if ‘‘it was possible to get all the phone records off
[Kessler’s] calling number,’’ because he had assertedly ob-
served Kessler ‘‘on the phone quite a bit[.]’’ She replied that
it was possible to do so, testified Cloakey, and he obtained
those records and conducted his investigation of the tele-
phone calls placed by Kessler. At no point did Cloakey men-
tion any involvement by Edward Webb in the events which
supposedly had led to that investigation.
Yet, Edward Webb testified that, in effect, he had initiated
the investigation of Kessler’s telephone calls, when his wife
‘‘came to me with the phone records[.]’’ Of course, it is pos-
sible that after Cloakey had spoken to her about Kessler’s
telephone calls, Kathleen Webb had brought those records to
her husband. Still, that is sheer speculation, since she never
testified regarding what had occurred on November 6 and 7.
As a result, the record is left with inconsistent explanations
by Respondent’s witnesses as to the events which triggered
investigation of Kessler’s personal telephone calls.
That was not the lone inconsistency with regard to that in-
vestigation. As quoted in section I,K, supra, Edward Webb
testified during direct examination that he had requested his
wife ‘‘to ask Bob to go through the records and check the
phones.’’ Of course, that account is consistent with
Cloakey’s testimony that he had been the official who had
checked out Kessler’s calls. But, during cross-examination,
Edward Webb testified that it had been his wife who had
checked Kessler’s phone records. Again, it is possible that
Cloakey reviewed the Kessler’s phone call records and re-
ported his findings to Kathleen Webb who, in turn, related
those findings to her husband. Again, however, to reach such
a conclusion would be to speculate—by patching together
isolated scraps of testimony—as to what had occurred. For,
there is no testimony to that effect by Kathleen Webb. ‘‘The
employer alone is responsible for its conduct and it alone
bears the burden of explaining the motivation for its ac-
tions.’’ Inland Steel Co., 257 NLRB 65 (1981).
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705KORONIS PARTS, INC.
Given Kessler’s disclosed role as a member of the Union’s
organizing committee, Respondent’s hostility toward organi-
zation of its employees, its willingness to try preventing that
by engaging in unfair labor practices, and its above-con-
cluded willingness to utilize employee disciplinary records as
one means for retaliating against union sympathizers and for
building records against them, it is a fair conclusion that,
with respect to the November 7 employee disciplinary
record, Kessler had been a target of opportunity for Respond-
ent. That is, he was discovered in the same office at the
same time as Bertram was talking by telephone, Respondent
later discovered, with Behr. Its phone records turned out to
provide a basis for disciplining Kessler, as well as Bertram.
Any contention that Respondent truly had been concerned
about Kessler’s unauthorized telephone calls, as opposed to
seeking a pretext to discipline him, is obliterated by one un-
disputed fact: Respondent made no effort to collect from
Kessler the cost of personal calls made by him, even though
Kessler offered to pay for them and totaled the costs of the
personal calls which he had made. Given the accusations lev-
eled against him, in the employee disciplinary report and
during the meeting in which he received that disciplinary re-
port, it would appear to be logical that, once the cost of
those calls had been totaled, Respondent would have sought
to collect from Kessler. But, though he submitted his total
to Kathleen Webb and asked her to ‘‘add the tax and stuff
in,’’ to arrive at a figure for which he then would write a
check, she never got back to Kessler so that he could do so.
Her failure to do so is unexplained.
As pointed out in subsection D, above, an employer’s fail-
ure to offer an alleged discriminatee the opportunity to de-
fend himself/herself against an accusation of misconduct is
some evidence of lack of true interest in whether the mis-
conduct actually had occurred. Similarly, Respondent’s disin-
terest in collecting the cost of the calls, which it had charac-
terized, inter alia, as ‘‘Theft (Stealing)’’ by Kessler, is a
strong indication that Respondent had not been truly inter-
ested with the cost of those calls. Rather, that disinterest
tends to show that Respondent’s actual interest in the calls
was elsewhere. Of course, the only other alternative interest,
so far as the record shows, had been Respondent’s antag-
onism toward the Union and its supporters. The evidence re-
veals no other reason for Respondent to have pursued mak-
ing a record of Kessler’s unauthorized personal telephone
calls, but to have ignored the opportunity to recover their
cost. In the totality of the circumstances set forth, above, I
conclude that a preponderance of the credible evidence estab-
lishes that Respondent was unlawfully motivated in issuing
the employee disciplinary records to both Bertram and
Kessler on November 7 and, therefore, that issuance of those
disciplinary records violated Section 8(a)(3) and (1) of the
Act.
F. Warnings and Notices Related to Job Performance
and Transfer of Bertram
As set forth in section I,C, supra, Bertram had been trans-
ferred to resleeving in the machine shop during early 1995.
Without belaboring the matter, resleeving, in the context of
Respondent’s operations, involves aluminum cylinders used
mostly in snowmoblies, though some have been used for mo-
torcycles. Inserted in the cylinder when new is a sleeve
which usually is chrome, but sometimes is cast iron. The
point at which Respondent became involved was whenever
a cylinder seized or something broke, causing damage, and
requiring installation of a new sleeve.
Sleeves are made from special cylinders which Respondent
received in lengths somewhat longer than 2 feet. Those were
cut into four or five pieces, each of which became a sleeve.
Each sleeve was placed on a computer-operated CNC lathe,
or SL3, to bore out the inside and, as well, the top and bot-
tom. The sleeve next went to an indexer which turned it so
that holes, or ports, could be cut in the sleeve. It was then
ready for insertion into a cylinder.
As to the cylinder to be resleeved, the original chrome or
cast iron sleeve was bored out of it, to make way for the new
sleeve. Next, the cylinder was heated to cause expansion.
The newly fabricated sleeve was frozen to cause it to con-
tract. That process allowed the new frozen sleeve to be in-
serted readily into the heated cylinder, with ports in each
aligned. After that, the sleeve would expand while it warmed
and the cylinder would contract as it cooled. Ideally, a
pressed fit would result.
The sleeve’s inside would be further bored out so that it
would accommodate whatever the customer intended to put
in it. Ports were chamfered to clear the ridges around the
now-mated ports. Afterward, cross-hatches were put on the
cylinder by means of a honing machine, so that the engine
would break in properly. If either the boring or honing was
performed incorrectly, the piston rings installed on the cyl-
inder might not seat. If a cylinder’s inside were bored to ex-
cess, leaving too much clearance between it and the sleeve,
an entire engine could be ruined. In consequence, it is not
disputed that ability to measure—to make accurate measure-
ments—is an essential aspect of a resleeving operator’s job.
This serves as background for discussion of Bertram’s
resleeving work in the machine shop during 1995.
Prior to his transfer to resleeving during early 1995, Ber-
tram’s work in the wear bar department had been satisfac-
tory. However, he encountered difficulty in performing
resleeving work. ‘‘We got a series of problems, actually a
fair number of them, generally having to do with motoring
the size of our bore,’’ testified Vanderpool, because ‘‘the
size of the hole that he made, unfortunately most of the time
it wasn’t too small, it was generally always too big.’’ That
testimony was uncontradicted. Doug Monson, general man-
ager for recreational engineering—a customer of Respondent
which is also owned by Edward Webb—testified that ‘‘prob-
ably starting February, March’’ he began encountering a va-
riety of problems ‘‘with resleeving work performed by Re-
spondent’’ some pertaining to chamfering, others involving
incorrect bore sizes, and still others concerning deck height
on sleeves. ‘‘Little things like that,’’ he testified, ‘‘Mostly
pertaining to machine work.’’
On February 17, Cloakey submitted a payroll change no-
tice for Bertram, stating that there had been improvement in
the latter’s attitude and performance since his transfer to the
machine shop, that he ‘‘CARES AND APPRECIATES
MORE ABOUT WHAT HE IS DOING,’’ keeps his work
area clean, no longer has to be told constantly what to do
and to quit talking, and had become quite dependable. Yet,
below that description, Kathleen Webb had written, inter alia,
that she had trouble with granting a pay raise to an employee
when Monson ‘‘HAS TO SPEND 2 HOURS ON THE
CYLS [Bertram] DOES.’’ In the margin next to his wife’s
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706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
comment, Edward Webb had written, ‘‘NOT HIS FAULT’’
and ‘‘POOR TRAINING.’’ In short, whatever problems were
encountered initially by Bertram in resleeving, Edward Webb
appeared willing to discount.
In fact, Vanderpool testified that by March customer
claims ceased to be filed on work performed by Bertram:
‘‘We had a few problems there that continued, but more
slight, it didn’t seem like it was a big thing.’’ During March
Bertram was trained on a machine which Respondent had
purchased and Kessler helped adjust any programming prob-
lems, according to Vanderpool. Still, not all aspects of Ber-
tram’s work were regarded favorably.
During June, he was given a 25-cent-an-hour raise, appar-
ently the one about which he complained to Edward Webb,
as described in section I,A, supra. While Cloakey’s com-
ments leading to that raise were largely favorable, he did
point out that Bertram needed ‘‘A LITTLE PUSH’’ with re-
spect to cleanliness and ambition, needed to learn that the
workday ended at 3:30 rather than 3:15 p.m., and deserved
a raise only because he had learned to operate other ma-
chines: ‘‘HE NEEDS TO PROVE HIMSELF FOR AT
LEAST SIX MONTHS.’’ Although no concerns were ex-
pressed about then retaining Bertram in resleeving, Edward
Webb wrote on this document, ‘‘I THINK HE NEEDS TO
BE REVIEWED IN 30 DAYS & 60, AND IF HE HAS
NOT IMPROVED CONSIDERABLY WE NEED TO LOOK
FOR SOMEONE ELSE FOR SLEEVES, ECT. [sic].’’ Ac-
cordingly while Cloakey and Vanderpool were not then con-
sidering transferring Bertram from resleeving, Edward Webb
certainly was doing so, even before having received Behr’s
September 7 letter.
Vanderpool testified that, during August, Bertram over-
bored the inside of a customer’s cylinder, with the result that
the sleeve fit loosely: ‘‘you don’t want it to come loose
when the engine is running or we are going to buy [the cus-
tomer] a whole engine,’’ because the customer’s engine had
been ruined as a result of the loose sleeve. On August 25,
Machine Shop Supervisor Donovan Whitcomb, Bertram’s
immediate supervisor, prepared a review which made highly
favorable remarks in six categories. With respect to the cat-
egory of quality, however, Whitcomb wrote: ‘‘I think Bill is
doing A good job here Also. There has beeN somE scrap,
but I don’t Think much of iT can be contributed [sic] directly
to operator Error.’’ The obvious inference is that some of it
could be attributed to operator error.
Cloakey, 5 days’ later, prepared his review, agreeing with
Whitcomb’s evaluation of the six above-mentioned areas. As
to quality, however, Cloakey wrote, ‘‘THERE HAS BEEN
SOME BAD PARTS BUT I DON’T KNOW IF IT’S HIS
FAULT.’’ Beside that comment, when he reviewed
Cloakey’s, in effect, 60-day review, Edward Webb wrote and
circled, ‘‘FIND OUT.’’ All of the foregoing events, of
course, occurred before any notice to Respondent, so far as
the record discloses, of union activity by Bertram. Collec-
tively, they show that Respondent was not enchanted with
Bertram’s performance prior to September. Certain events
during that month naturally served to heighten Respondent’s
disenchantment with that performance.
During September, Vanderpool testified, Bertram improp-
erly performed three resleeving jobs. He left a gap between
part of the cylinder and sleeve on a mono block for rec-
reational engineering. It rejected the supposedly resleeved
cylinder. He over-bored the sleeve of a single cylinder on an-
other recreational engineering cylinder. It also was returned
to Respondent. Finally, testified Vanderpool, on September
19 Bertram over-bored a cylinder for Josuda Corporation.
That was discovered before the cylinder was shipped to
Josuda. The latter two mistakes involved errors of measure-
ment which Vanderpool regarded as inexcusable, because
‘‘you need to creep on the measurements, if you are looking
at a half a thousands and it’s easier to creep up on it and
make it larger than it is to go too far and make it smaller,
it’s kind of a common sense thing.’’
Cloakey prepared and signed the September 20 employee
disciplinary report, apparently at Vanderpool’s direction. For,
asked about the reason for having issued it to Bertram,
Cloakey testified, ‘‘Bruce had talked to me about it and I be-
lieve, it was—had something to do with measuring,’’ specifi-
cally, ‘‘quality and . . . inability to measure.’’ Asked the
same question, Vanderpool testified that the two cylinders
mentioned in the disciplinary report had referred to the mono
block and the single cylinder for recreational engineering.
Thus, testified Vanderpool, the employee disciplinary report
had been issued to Bertram because:
I felt that for the amount of time that I was in Ed’s of-
fice and my exposure to this was whenever there was
a problem, like I said, called number 12, I could just
as well forget going back to work for a couple of hours
because we would be in there trying to teach Bill how
to measure, it had gone away and now why did it reoc-
cur. We hadn’t had a problem and here all of a sudden,
we got two of them right in a row. One happened to
be non-boring issue. Very, very obvious the other one
is a bore. If it hadn’t been so basic, such as chamfering
a part, at maybe just a hair at different angle or what-
ever, I probably wouldn’t [have] issued a warning no-
tice for that, because that is very, maybe a little more
technical.
Bertram never disputed the occurrence of the foregoing
four problems beginning in August. He blamed the boring
problems on the lathe he had been using. He claimed that he
had not been trained properly to perform resleeving. Of
course, Edward Webb acknowledged during February, as set
forth above, the inadequate training received by Bertram.
Still, the latter did not dispute having been trained to operate
the new machine. Nor did he contest having foregone an op-
portunity to participate in training at a school, though he ex-
cused having foregone doing so because of a conflict. In the
final analysis, however, the major difficulty in his excuses is
that by June—and, surely, by August—Bertram had been
gaining experience resleeving. That experience seemingly
should have compensated for any initial inadequacy in train-
ing. Indeed, it is undisputed that from March to August there
had been no major deficiency in his resleeving work, al-
though Edward Webb appeared not to have been satisfied to-
tally with its quality, as shown by his above-quoted com-
ments on Bertram’s performance review.
As with Respondent’s officials, Bertram was not always a
credible witness. In the circumstances set forth above, his ex-
cuses for resleeving mistakes were not always advanced with
candor. And they do not withstand scrutiny. I conclude that
Respondent has shown that it had not been altogether satis-
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707KORONIS PARTS, INC.
fied with Bertram’s resleeving performance even before he
became involved with the Union. His August and September
performance only reinforced that dissatisfaction. Neverthe-
less, that does not terminate evaluation of Respondent’s mo-
tivation for having issued an employee disciplinary report to
Bertram on September 20.
Before addressing that ultimate issue, however, it is nec-
essary to evaluate a parallel sequence of events unfolding as
Bertram was working in the machine shop. As described in
section I,C, supra, Vanderpool had been exploring the possi-
bility of, in effect, subcontracting resleeving work. When it
became apparent that Bertram continued to encounter meas-
uring problems, testified Vanderpool, ‘‘we didn’t have any
time for training somebody new’’ and, so—in a September
18 memo to Webb, Cloakey, and Donovan Whitcomb—he
proposed to Webb that Respondent discontinue its own
resleeving operation and allow Robert Pjelver to perform the
work. As to Bertram, Vanderpool stated in that memo that
his ‘‘troubleE on the sleeves . . . doesn’t make him a bad
worker[,] probably just in the wrong position,’’ and that Ber-
tram could be transferred to a vacancy then-existing in Re-
spondent’s fiberglass operation, possibly with a raise of 25-
cents per hour.
Of course, as pointed out in section I,C, supra, Bertram
was unwilling to work in the fiberglass plant. As described
above, on September 19 Respondent discovered that he had
over-bored the Josuda cylinder. In a memo to Webb,
Cloakey, and Donovan Whitcomb of that same date, an obvi-
ously exasperated Vanderpool recited the Josuda error, point-
ed out that the cost of errors in the fiberglass operation
would be higher than in the machine shop, and recommended
that Bertram be fired. Obviously, acceptance of that rec-
ommendation would have allowed Respondent to eliminate
what it had to have perceived, from Behr’s September 7 let-
ter, as the Union’s foremost supporter. Respondent refrained
from taking that step, however.
Instead, as set forth in section I,C, supra, at a meeting on
September 20 Bertram was given the employee disciplinary
report, for the two recreational engineering cylinders, was
told that he could not work in the machine shop if he could
not measure, and was informed that he was being transferred
back to the induction welding machine in the wear bar de-
partment where there was a vacancy for operator. The Gen-
eral Counsel alleges that transfer as being unlawfully moti-
vated. However, evaluation of the facts underlying that alle-
gation, as well as the circumstances of Bertram’s transfer,
warrant a conclusion that a preponderance of the credible
evidence shows that Respondent would have transferred Ber-
tram from resleeving even had the Union not appeared on the
scene.
First, the above-described records, predating advent of the
Union’s campaign, confirm Respondent’s witnesses’ testi-
mony that Bertram’s resleeving performance had not been
satisfactory to them. Bertram’s excuses for his problems rang
hollow. He did not dispute that, during August and Septem-
ber, he had improperly performed work on the recreational
engineering and Josuda cylinders.
Second, there is no evidence contradicting that presented
by Respondent regarding Bertram’s inability to measure and,
moreover, that ability to measure properly was necessary for
every job in the machine shop. To be sure, while working
there resleeving, Bertram had filled in on other machine shop
jobs and, apparently, had not encountered difficulty measur-
ing. Still, there is no evidence that such fill-in work would
have kept Bertram occupied on a full-time basis. Nor is there
evidence that Respondent had need of a permanent fill-in
employee for its machine shop. Certainly, there is no evi-
dence that Respondent ever had employed anyone as a full-
time fill-in machine shop employee. ‘‘The burden of estab-
lishing every element of a violation under the Act is on the
General Counsel.’’ Western Tug & Barge Corp., 207 NLRB
163 fn. 1 (1973).
Third, while Bertram’s freedom of movement throughout
portions of Respondent’s building may have been less work-
ing on the induction welding machine, than when resleeving,
there is no basis for concluding that such a difference has
analytical significance. For, there is no evidence that Bertram
had engaged in statutorily protected activities while moving
around the machine shop—that is in activity which could be
curtailed by his transfer to the induction machine. Beyond
that, there is no evidence admitting of even an inference that
Respondent would somehow have appreciated that Bertram’s
movements would have been curtailed as a result of that
transfer and, further, that Respondent had been motivated by
such a concern in deciding to transfer Bertram from
resleeving.
To the contrary, Bertram’s employment on the induction
machine had been concededly exemplary during the initial
months of his employment at Respondent, before he had
been transferred to the machine shop. If Respondent had
been attempting to disadvantage Bertram in some way, by
transferring him from resleeving to induction machine opera-
tor, it seems unlikely that it would have transferred him back
to a position where, based on past performance, Bertram was
likely to perform proficiently. In contrast to the disciplinary
reports discussed in this and in the preceding subsection,
there is no basis for concluding that a transfer back to the
induction machine would operate to Respondent’s antiunion
advantage, by allowing it to continue building a record
against Bertram for future, more severe, discipline. Indeed, if
that had been Respondent’s objective, it would have been
better furthered by leaving Bertram to perform resleeving, re-
lying on his undisputed inability to measure as a basis for
future retaliation against him, including the termination
which Vanderpool eventually recommended.
In sum, Bertram had been unable to master measuring
which is a necessary aspect of resleeving, as well as of other
machine shop work at Respondent. That problem had existed
before Respondent had learned of his union activities and it
had been a problem which concerned Respondent’s officials.
The problem was compounded by repetition of Bertram’s
mistakes during August and September, coupled with the
onset of the snowmobile season when increased resleeving
work could fair be anticipated. Even had Respondent not ad-
dressed the possibility of subcontracting resleeving oper-
ations, a preponderance of the credible evidence shows that
transfer of Bertram from resleeving likely would have oc-
curred by the latter part of September. The companion deci-
sion to subcontract most of that work to Pjelver merely adds
to the inherent logic of Respondent’s decision to transfer
Bertram from resleeving. Furthermore, there is no basis for
concluding that transferring him to the induction welding
machine could be construed as so disadvantaging him, and
his statutorily protected activities, that it could be concluded
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708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the transfer had been motivated by a desire to hard-time
Bertram. In consequence, despite Respondent’s antiunion at-
titude and its other unfair labor practices, a preponderance of
the credible evidence fails to establish that the job transfer
of Bertram had been unlawfully motivated.
Still, that conclusion does not dispose of the disciplinary
report issued to Bertram on September 20, at the same time
as the transfer. As Vanderpool pointed out in his September
18 memo, inability to measure simply had left Bertram ‘‘in
the wrong position.’’ There is no contention that his measur-
ing inadequacy had been somehow the result of deliberate
unwillingness to learn how to measure, although Bertram
could possibly have taken some action—such as schooling—
to improve his ability to do so. Still, any improvement may
only have been marginal. Their testimony and other evidence
seems to show that Respondent’s officials seemed to believe
that Bertram simply would not be able to master the task of
measuring correctly. Given that belief, the logical question is
what motivated Respondent to issue an employee disciplinary
report to Bertram at the same time as it was transferring him
from resleeving.
Not only that, but unexplained was the decision to check
such ‘‘Nature of incident’’ choices as ‘‘Failure to follow in-
structions’’ and ‘‘Carelessness.’’ In the circumstances, the
act of having checked those infractions, which imply ability
to perform a task but deliberate or inattentive failure to do
so, tends to be a further indication that Respondent was at-
tempting to tarnish Bertram’s work record, rather than ad-
dress the underlying problem which Vanderpool’s September
18 memo identifies.
To be sure, as pointed out above, a reading of
Vanderpool’s September 18 memo discloses an obvious ex-
asperation with Bertram’s over-boring of the Josuda project.
So exasperated was Vanderpool that he changed his transfer
recommendation to termination of Bertram. Yet, Respondent
concedes that the September 20 employee disciplinary report
had not been based on the Josuda over-boring. Instead,
Vanderpool identified the two earlier committed mono block
and single cylinder projects as the ones referred to in the
September 20 employee disciplinary report. If so, that also
leaves unexplained Respondent’s reason for having waited
until September 20 to discipline Bertram for those two ear-
lier-committed mistakes—ones which, two days before the
disciplinary report was issued, Vanderpool had written
‘‘doEsn’t make him a bad workEr[.]’’
Certainly, there is no basis for concluding that Respondent
had intended the September 20 employee disciplinary report
as a means of motivating Bertram to work more diligently
after resuming induction machine work. In the first place,
none of its officials claimed that any such purpose his been
the motive for the disciplinary report. And, as an objective
matter, there was no basis for a belief that Bertram would
not adequately perform on the induction machine. After all,
his prior work there had set the standard for that machine
which Respondent subsequently imposed.
As it would turn out, Respondent began issuing discipli-
nary reports as a vehicle for retaliating against the Union’s
supporters and for discouraging union support. That was con-
cluded in the preceding subsection. The one of September 20
appears to have been the first occurrence of that method of
retaliation and discouragement. At that time, Bertram ap-
peared, from Behr’s September 7 letter, to be the leading
union proponent. Respondent opposed unionization of its em-
ployees. It was not hesitant to resort to unfair labor practices
to buttress that opposition. While Bertram had made mistakes
previously when resleeving, no disciplinary reports had been
issued to him until after disclosure of his union sympathies
and activities. No explanation was advanced for so seemingly
abrupt a decision to begin issuing them to him. Nor did Re-
spondent explain why it had waited until September 20 to
issue a disciplinary report to Bertram for mistakes made ear-
lier during September—and at a time when Respondent had
concluded that Bertram simply could not master measuring
and, consequently, had decided to transfer him back to the
induction machine. The totality of these circumstances war-
rants the conclusion that Respondent would not have issued
the September 20 employee disciplinary report to Bertram
absent disclosure of his union sympathies and activities.
Therefore, its issuance violated Section 8(a)(3) and (1) of the
Act.
A like conclusion is warranted with regard to the origi-
nally unsigned and undated ‘‘Warning to Bill Bertram’’ de-
scribed in section I,C, supra, for having failed to produce to
standard on the induction welding machine. There is no dis-
pute that, during the period September 20 through 26, Ber-
tram had failed to even approach the production standard for
that machine. Also undisputed is the fact that the standard
existing during September had been based on production
demonstrated by Bertram when he had performed that same
job in the wear bar department during 1994 and early 1995.
Based on that past experience, it was not inherently illogical
for Respondent to assume that Bertram would be able to
produce to that standard after being transferred from
resleeving on September 20. Indeed, records of September 27
through 29 show that he was able to do so. Nevertheless, a
preponderance of the credible evidence establishes that the
‘‘Warning’’ had been issued for a purpose other than genuine
concern about Bertram’s September 20 through 26 produc-
tion—to create a record against Bertram because of his union
sympathy and activity.
A factor which most dramatically attracts attention is the
difference between the September 27 ‘‘Warning to Bill Ber-
tram’’ and other written discipline issued to employees, as
described throughout section I, supra. In every other in-
stances disclosed by the record, when Respondent issued
written discipline to employees, employee disciplinary re-
ports had been utilized. Respondent advanced no explanation
for the abrupt change in the form of written discipline on
September 27.
Beyond that, when the ‘‘Warning’’ had been issued to
Bertram on September 27, it had been unsigned. Again, so
far as the record reveals, some supervisor—Cloakey,
Vanderpool, Edward Webb—uniformly had signed employee
disciplinary reports when issued to employees. Either
Vanderpool or Cloakey had prepared the ‘‘Warning to Bill
Bertram.’’ Both testified as witnesses for Respondent. Nei-
ther explained the failure to have signed the ‘‘Warning’’ be-
fore it had been issued to Bertram.
A third distinction between it and other written discipline
had been the absence on September 27 of any meeting be-
tween the issuing supervisor and the employee being dis-
ciplined. To be sure, as concluded in subsection A, above,
Lenz had been a statutory supervisor. Yet, she had not pre-
pared the ‘‘Warning.’’ She merely had been the messenger
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709KORONIS PARTS, INC.
for its delivery to Bertram. There is no evidence that she
possessed any authority to modify or to withdraw the
‘‘Warning.’’ As a result, Bertram had no opportunity to ex-
plain his side of the situation to the supervisor who had pre-
pared it. That should not be overlooked, since it tends to
show that Respondent was not truly interested in the sub-
stance of the ‘‘Warning,’’ so much as it was interested in
having a warning on file against Bertram.
In that respect, Respondent has not shown any evidence
that Bertram had been engaging in a work slowdown follow-
ing his transfer back to the induction machine. While not al-
ways a credible witness, Bertram’s explanation for his sub-
standard production during the first week back there—
‘‘need[ing] a few days to get back into the groove of
things’’—was not inherently illogical, given that it had been
6 months since he last had worked on the induction welding
machine. Indeed, the ‘‘Warning’’ concedes as much: ‘‘We
do realize that he may need a day or so to reacquaint himself
to the process.’’ By merely having issued an anonymous
‘‘Warning’’ to Bertram, without Cloakey or Vanderpool
meeting with Bertram, Respondent effectively denied Ber-
tram an opportunity to explain his first week’s substandard
production—and, moreover, eliminated any possibility that
such an explanation might lead to re-evaluation of the deci-
sion to issue the ‘‘Warning’’ to Bertram.
By September 27 Bertram had been known to Respondent
as a leading, if not the foremost, union activist among Re-
spondent’s employees. As concluded in this and in preceding
subsections, Respondent harbored hostility toward such em-
ployees, because it opposed unionization of its employees,
and was willing to engage in unfair labor practices to rein-
force that opposition. One specific means of doing so had
been to issue employee disciplinary reports to build a record
against union supporters. Indeed, in the September 27
‘‘Warning to Bill Bertram, there appears the sentence, ‘‘We
have moved Bill to this area after poor quality warnings were
given at his previous job.’’ (Emphasis added.) The use of the
plural is significant, since, so far as the evidence discloses,
only a single employee disciplinary report had been issued
previously to Bertram—the unlawfully motivated one arising
from his resleeving measuring mistakes. Yet, Respondent
chose to utilize the plural and that choice was never ex-
plained by any official of Respondent. Absent such an expla-
nation, and given the other circumstances, it is a fair infer-
ence that the plural had been chosen in an effort, through
words, to buttress an adverse personnel record for Bertram.
Therefore, in the totality of the circumstances, I conclude
that Respondent had been unlawfully motivated in issuing
the ‘‘Warning to Bill Bertram’’—that it would not have been
issued absent his union sympathies and activities—and vio-
lated Section 8(a)(3) and (1) of the Act.
The final notice discussed in this subsection is the one
issued on October 16 to Remmel, as described in section I,I,
supra. It offered him ‘‘a day off with pay to look for another
job that meets your goals.’’ As concluded in subsection B,
that notice violated Section 8(a)(1) of the Act, because it ef-
fectively invited an employee to quit for having engaged in
the statutorily protected activity of discussing wage
dissatisfactions with persons, including other employees,
other than supervisors, managers and co-owners. It also vio-
lated that section of the Act for another reason.
The notice had been signed by Vanderpool who claimed
that Remmel had ‘‘seemed to be unhappy’’ and, further, that
there had been ‘‘a series of meetings’’ during which he and
Remmel had discussed the ‘‘kind of things [Remmel] was so
unhappy about.’’ Vanderpool did not testify with particular-
ity, however, concerning the dates and substance of those
meetings. Nonetheless, asserted Vanderpool, it had been as
a result of those meeting that he had offered Remmel a paid
day off to look for another job. Inasmuch as Remmel ‘‘was
always wanting me to write everything down and document
it,’’ Vanderpool testified that he had prepared the October 16
notice so that Remmel would not think that ‘‘we are not
going to pay him’’ for that day off. Yet, there is no evidence
that Remmel had questioned Respondent’s willingness to pay
him for taking the day off. And Vanderpool’s testimony
about Remmel ‘‘always wanted me to write everything down
and document it’’ was vague and unsupported by other evi-
dence.
Remmel agreed that he had protested to Vanderpool about
the number of different tasks that he was being required to
perform. So far as the record shows, however, it had been
Vanderpool who initially had suggested orally that Remmel
look elsewhere for employment. In response to that oral sug-
gestion, Remmel said that he ‘‘would be interested’’ in tak-
ing a paid day off to look elsewhere for work and mentioned
having heard of a research and development opening at an-
other employer, Willmer Manufacturing. When 2 or 3 days
passed without Remmel having acted on the situation, testi-
fied Remmel, he received the October 16 notice. Several
points about that notice are worth a second look.
First, it makes no mention whatsoever of Vanderpool’s
supposed prior conversations with Remmel. Instead, the no-
tice states that it is being written because of reports to
Vanderpool ‘‘by other Koronis Parts employees[.]’’ No ex-
planation was advanced by Vanderpool for having omitted
mention in the notice of the purported prior conversations,
between himself and Remmel, which assertedly had led to it
preparation.
Second, both in the notice and when testifying,
Vanderpool referred to Remmel’s alleged unhappiness—with
his wages in the notice and, when testifying, in general. That
alleged concern by Vanderpool about employee unhappiness
is a not unfamiliar refrain. After all, it had been Sondrol’s
supposed appearance of lack of happiness with her work
which, Vanderpool claimed, had gotten him rethinking about
hiring her, as discussed in section I,H, supra. However, as
concluded in subsection D, above, that supposed appearance
of unhappiness had been no more than a pretext, intended to
conceal Respondent’s true, unlawful, motive for not allowing
her to continue working at Paynesville and for not then hir-
ing her. Utilization of a substantially similar generality—ap-
pearance of unhappiness—as an asserted reason for offering
Remmel a paid day off to look for other work, tends also
to show unlawful motivation.
Third, there is no showing that Respondent ever had
awarded a seemingly unhappy employee a paid day off to
look for work elsewhere. Vanderpool never explained why
he had chosen to follow such a unique course in the case of
Remmel.
Of course, Remmel had been one of the organizing com-
mittee members identified in Behr’s September 15 letter, de-
scribed in section I,A, supra. As concluded in preceding sub-
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710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sections, Respondent harbored animus toward the Union and
its employee supporters. It engaged in several unfair labor
practices aimed at retaliating against those employee support-
ers and at discouraging support for the Union.
One of those unfair labor practices had been its decision
not to hire Sondrol whom it believed to be a likely supporter
of the Union. By doing so, Respondent not only avoided
adding another union supporter to its employee complement,
but it also eliminated another vote for the Union in any rep-
resentation election which might be conducted at its place of
business. Essentially, persuading Remmel to quit would serve
a similar purpose. Not only would it reduce by one the num-
ber of votes for the Union in any representation election, but
it also would eliminate the ongoing presence at Paynesville
of one union supporter, should Remmel be able to locate al-
ternative employment and quit working for Respondent.
I do not credit Vanderpool’s explanation for having issued
the October 16 notice to Remmel. In the totality of the cir-
cumstances enumerated above, I conclude that a preponder-
ance of the credible evidence establishes that it had been a
uniquely formulated effort to persuade Remmel to quit be-
cause of his union and protected concerted activities. There-
fore, its issuance to him violated Section 8(a)(1) of the Act.
G. Termination of Allan Remmel
Allan Remmel was terminated by Respondent little more
than a month after it had unlawfully attempted to persuade
him to quit because of his support for the Union. That effort,
occurring the context of other unfair labor practices—some
of which had been directed specifically against Remmel—
discussed in preceding subsections, provides a seemingly
ample basis for concluding that Remmel’s discharge had vio-
lated the Act. Yet, certain other factors serve to establish
that, notwithstanding Remmel’s support for the Union’s cam-
paign and Respondent’s hostility toward the Union’s support-
ers, he would have been terminated in late November had the
Union never appeared on the scene.
Remmel had begun working for Respondent, doing re-
search and development work, during March 1994. Prior to
that, he had been working with Respondent, on a consultant-
like basis, to develop a front-end suspension prototype. Once
he began working for Respondent, his work in research and
development largely had been devoted to suspension systems.
In November 1994 he signed the ‘‘CLUTCH DEPART-
MENT JOB DESCRIPTION,’’ the text of which is quoted
in section I,N, supra.
At the time of signing it on November 25, 1994, it appears
to have been contemplated by Remmel and Edward Webb
that, though he would be working primarily with clutches,
Remmel would continue performing research and develop-
ment in other areas, as well. For, item 3 of the job descrip-
tion states that ‘‘[y]our involvement in R and D projects will
be directed by Ed [Webb] or Larry [Miller].’’
As it turned out, clutch department work did not occupy
all of Remmel’s worktime. His then-immediate supervisor,
Bruce Vanderpool, testified that ‘‘most of the work of appli-
cations and all of that was over and everything seemed to
be pretty good for season, we had some extra time, and so
I put Allan on some other jobs.’’ Similarly, Edward Webb
testified that ‘‘maybe six months into the [JOB DESCRIP-
TION] . . . Bruce had told me that Allan said that he had
completed everything in the clutch department and so Bruce
was then directed to find some other projects [for Remmel]
to do until the one year contract was up,’’ inasmuch as Re-
spondent ‘‘had to pay him anyway[.]’’ Still, there is no basis
for concluding that such other work had been regarded by
Respondent as other than, in effect, fill-in work, as been the
fact with Bertram’s nonresleeving machine shop work, dis-
cussed in subsection F, above. That is, that such other work
had been subordinate to Remmel’s primary job in the clutch
department and that if clutch department work had increased,
such other work would have to be set aside or performed by
someone other than Remmel.
According to Webb, ‘‘[S]ome of the projects [assigned to
Remmel] were maintenance, fixtures, stud gun as Allan had
mentioned, the stud welding area, that was a new area.’’ Nei-
ther Webb nor Vanderpool disputed Remmel’s estimate of
having spent ‘‘roughly 25 percent’’ of his time on all aspects
of clutch production, while spending 75 percent of his time
working on projects other than clutches. That had been the
situation, so far as the record discloses, as of November 22,
when he was discharged.
To establish that Remmel would have been terminated on
that date, regardless of any union support and activity by
him, Respondent addressed both the clutch and nonclutch as-
pects of Remmel’s work. As to the clutch work, Edward
Webb, the official who made the decision to terminate
Remmel, pointed to the ‘‘CLUTCH DEPARTEMENT JOB
DESCRIPTION,’’ formulated and executed with Remmel al-
most a year before any union activity had been initiated.
Though there was confusion in Respondent’s evidence as to
the exact number of clutches manufactured from November
1994 to November 1995, it is uncontested that the number
produced during that 1-year period had been well below that
job description’s minimum of 475, much less the target of
650. Respondent’s testimony was that it had been under-
stood, when the job description had been signed, that if its
stated minimum were not achieved, clutch work would be
largely discontinued and Remmel would be out of a job.
The General Counsel points out, however, that nowhere in
the job description is it stated that the clutch manager’s posi-
tion will be discontinued if either the minimum or target goal
for 1994–1995 is not achieved. Rather, the job description
states only that the ‘‘clutch department is being studied for
1 year to monitor success and will be evaluated 1 year from
now.’’ In other words, termination of Remmel was by no
means so certain under the wording of the job description as
Respondent now seeks to portray.
As pointed out in section I,G, supra, Edward Webb testi-
fied that, when the job description had been signed, he had
alerted Remmel that ‘‘if the minimum wasn’t met, there
wouldn’t be a position for Allan.’’ If so, of course, then
Remmel’s termination had been consistent with that notice to
Remmel, notwithstanding its omission from the job descrip-
tion and, further, notwithstanding the intervening advent of
the Union’s campaign. Remmel claimed that he never had
been told what the outcome would be if the stated clutch
minimum and goals were not achieved. But, while Edward
Webb was not ordinarily a credible witness, Remmel ap-
peared not always to be testifying candidly. And in this area,
Remmel gave testimony which tends to support what Webb
testified that he had said to Remmel on November 25, 1994.
Remmel testified that, during a conversation with
Vanderpool, he had said that ‘‘if my job depended on the
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711KORONIS PARTS, INC.
clutch production that they were forecasting I didn’t think I
could produce it and they might as well fire me then.’’ That
would be an odd remark for an employee to make, out of
the blue, if nothing truly had been said to that employee
about continuation of his job being contingent on attainment
of goals forecast by his employer. After all, one’s job is not
ordinarily contingent on such forecasts. And Remmel pro-
vided no explanation as to why he would have made such
remarks—about his job being dependent on production and
about being fired if the forecast could not be achieved—had
he not been put on notice that he would be fired if the clutch
production forecast was not achieved.
To be sure, Remmel also testified that, in response to his
remark, Vanderpool had opined that Remmel’s employment
was not dependent on clutch department work. However,
having observed him as he testified, I doubt very much that
Vanderpool would have made such a statement—would have
contradicted Webb’s stated position on the consequences of
failure to achieve stated production levels. Even if
Vanderpool had made that statement to Remmel, his remark
is at best the opinion of a supervisor who hardly was in a
position to overrule Respondent’s co-owner. As to what had
been said during November 1994, Remmel’s own account of
his remark to Vanderpool shows that Remmel understood,
before the Union appeared on the scene, that he was to be
‘‘fire[d]’’ if the stated minimum clutch production was not
attained for 1994–1995.
It is accurate, and conceded, that Respondent continued
performing clutch production after Remmel’s termination.
But, it is undisputed that the amount of such work was lim-
ited. Cloakey testified that slide department employee Me-
lissa Buer had been performing it for but ‘‘one to two hours
a week’’ only. He further testified that, to allow her to per-
form that work, it had not been necessary to increase her
number of weekly work hours. There is no contention, nor
evidence to support one had it been made, that Remmel
should have been retained during November, with Buer being
the employee terminated. In fact, there is no evidence that
Remmel had been qualified to perform slide department
work. Thus, the fact that, since Remmel’s termination, she
had been performing a limited amount of clutch production,
on a fill-in basis, does not, of itself, undermine Respondent’s
contention that it had lawfully terminated Remmel. But, it
does raise another consideration.
As pointed out above, by the time of his termination,
Remmel had been spending only approximately 25 percent of
his time performing clutch production. So, as with Buer,
most of his time had been occupied with other types of
work. Given that fact, it is logical to question why Respond-
ent simply had not continued employing him to perform that
other work, which was occupying 75 percent of his work
time, and have him, like Buer, fill-in on whatever clutch pro-
duction needed to be performed after November 21.
Asked why had had not continued employing Remmel to
perform that other work, Webb answered, ‘‘[B]ecause I’ve
had experience in that area. We had him over the last five
or six months in various other job areas, both in the mainte-
nance and working on jigs, and it didn’t work out. We
weren’t happy with the results.’’ Asked for examples of
those problems, Webb testified that ‘‘Vanderpool is probably
a little better. He was closer to it, but in general some of
the things that [Remmel] did were temporary fixes and that
never got the problem totally fixed.’’
In fact, Vanderpool supplied a litany of complaints about
Remmel: ‘‘[S]ometimes I couldn’t keep track of him very
well. . . . sometimes when I thought he was supposed to be
he wasn’t always there’’; he ‘‘just never seemed to get quite
finished’’ with projects that he was assigned to work on, but
was ‘‘always kind of just tinkering’’ and ‘‘it seemed like we
had a fair amount of breakdowns’’ on projects supposedly
taken care of by Remmel; he made derogatory comments to
customers about Respondent’s product. To be sure,
Vanderpool was not always a credible witness, as illustrated,
for example, by his testimony concerning severing Respond-
ent’s relationship with Sondrol. Still, there were aspects of
his complaints about Remmel’s nonclutch work which even
Remmel corroborated.
For example, Vanderpool testified that, during early No-
vember, a customer had reported having been told by
Remmel that there was something wrong with Respondent’s
shock. In one demonstration of why I do not credit Remmel
in some situations, during cross-examination he fenced with
counsel when asked about that customer:
Q. Isn’t it a fact that you told potential customers
that there was a defect in the shocks of one of the com-
pany’s products?
A. Not that I recall.
Q. You don’t recall that?
A. No.
Q. Okay.
A. The shocks would be on the suspension, not on
the clutch.
Q. Yes, but you got into a conversation with a cus-
tomer where you raised that issue, that’s correct isn’t
it?
A. I didn’t raise that issue. If somebody called in
about the suspensions, it was either they were wanting
to buy one and wanting to understand it better, or had
a problem with the one that they had and wanted it cor-
rected.
Q. So that was your conversation?
A. I had a lot of conversations about the suspensions
and if you want to specify what conversation and detail
it for me, I could probably give you more accurate in-
formation.
It appeared obvious that Remmel understood to what counsel
was referring. In the end, he never did deny having made the
statements about the shocks which the customer had reported
to Vanderpool.
Relatedly, Vanderpool testified that when he questioned
Remmel about the above-described customer’s report,
Remmel had retorted, ‘‘[W]ell then don’t give me any of
those calls.’’ In fact, conceded Remmel, at some point during
November, ‘‘calls on suspension were not directed to me any
more [sic].’’
In the end, Remmel never did deny convincingly any of
Vanderpool’s assertions, particularly the assertions about his
tendency to wander around Respondent’s place of business
and to fail to complete projects assigned to him. It should
not pass unnoticed that no employee discipline reports had
been issued to Remmel for that type of conduct. But, that is
not a persuasive consideration, since there is no evidence that
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712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent had so freely issued disciplinary reports before
advent of the Union’s campaign, as it did after it learned of
that campaign.
Significantly, there is no evidence that Respondent ever
hired anyone to perform either clutch production or the other
tasks which Remmel had been performing prior to November
21. In consequence, as Webb testified that he had been trying
to accomplish, the termination did result in a savings for Re-
spondent—it had one less employee and, thus, eliminated the
wages that it otherwise would have paid Remmel after No-
vember 21.
The totality of the foregoing circumstances convinces me
that Respondent had notified Remmel, a year before his ter-
mination and almost 10 months before it learned of
Remmel’s role in the Union’s organizing campaign, that he
would be terminated if clutch sales did not meet the mini-
mum goal established for 1994–1995. They did not attain
that goal. That was not Remmel’s fault, but absence of fault
is not a necessary element in employer-decisions as to
whether or not to continues particular operations. While cir-
cumstances during 1995 had led Respondent to assign other
duties to Remmel—ones which came to occupy a significant
majority of his work time—there is no evidence that Re-
spondent ever had considered these assignments as anything
other than fill-in work, because clutch production had not
been absorbing all of his worktime. There is no evidence that
Respondent ever had considered creating a position to per-
form that other work which Remmel had been assigned.
Moreover, I credit the testimony that his performance had
been less than satisfactory when performing that nonclutch
work. Therefore, I conclude that a preponderance of the evi-
dence fails to overcome the credible evidence that Respond-
ent would have discharged Remmel on November 21 even
had the Union not appeared on the scene and notified Re-
spondent that Remmel was a member of its organizing com-
mittee.
H. Sending Bertram Home for 1 Day
As set forth in section I,H, supra, Bertram’s induction ma-
chine’s water pump broke down on November 21. Operation
of it could not resume until repairs were made. Respondent
had a practice of assigning employees in similar situations to
other duties. But, Bertram did not want to work in the fiber-
glass plant and there is no evidence of other alternative avail-
able work which he was qualified to perform. Indeed, while
he protested to Cloakey and Vanderpool on November 21
that Respondent always had located work for employees,
whenever their machinery malfunctioned, there is no evi-
dence that Bertram had identified any work to which one or
the other of those two supervisors could have assigned him.
And the record will not support a conclusion that, absent
needed work which an employee could perform while his/her
machine was being repaired, Respondent historically had cre-
ated some sort of ‘‘busy-work’’ for that employee.
To be sure, as concluded in preceding subsections, Re-
spondent had harbored animus toward the Union and its em-
ployee supporters. Further, it had engaged in conduct which
rose to the level of unfair labor practices, as a means of re-
taliating against those employee supporters and of discourag-
ing employee support for the Union. Still, there is no evi-
dence of available alternative work on November 21 which
Bertram could, and had been willing, to perform. As pointed
out in subsection F, above, it is the General Counsel who
bears the burden of establishing every element of a violation.
Western Tug & Barge Corp., supra. Absent credible evidence
of such work, there is no basis for concluding that Bertram
would not have sent home on November 21 in the absence
of his union sympathies and activities. Therefore, I shall rec-
ommend that this allegation be dismissed.
I. Suspensions of Bertram and Whitcomb and Discharge
of Bertram
These allegations are rooted in the events arising from
OSHA’s December 14 test at Respondent’s place of business,
as described in section I,Q, supra. They provide an illustra-
tion of one particular balance which must be struck under the
Act. Employers are prohibited from discrimination against
employees because of hostility toward those employees’
union or statutorily protected concerted activities. At the op-
posite pole, however, employees who engage in misconduct
are not protected from discipline, including discharge, merely
because of their union or protected concerted activities, even
though their employers harbor animus toward such activities
and welcome an opportunity to eliminate employees who en-
gage in such activities. As the Board stated in Klate Holt
Co., 161 NLRB 1606, 1612 (1966):
If an employee provides an employer with a sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event, and
the employer discharges him for that reason, the cir-
cumstance that the employer welcomed the opportunity
to discharge does not make it discriminatory and there-
fore unlawful. [Footnote omitted.]
As concluded in preceding subsections, Respondent had
been hostile toward the Union and toward its employee sup-
porters. It engaged in unfair labor practices against them, as
a means of retaliation and as a means of discouraging em-
ployee support for the Union. Moreover, Bertram, as seem-
ingly the Union’s leading proponent, had been the specific
target of several of those unfair labor practices.
On the other side, occupational health and safety legisla-
tion is intended to ensure ‘‘minimum safe and healthful em-
ployment conditions for the protection and well-being of em-
ployees’’ and, in consequence, is ‘‘designed for the benefit
of all employees,’’ as well as for the benefit of the general
public. Alleluia Cushion Co., 221 NLRB 999, 1000 (1975).
An employee who acts to interfere with implementation of
such legislation, no less than an employer who does so, inter-
feres not only with proper safety and health protection for
employees, in general, but also undermines ‘‘the overall pub-
lic interest’’ underlying that legislation. Id. For, not only
does such an employee’s employer suffer possible penalty
for a nonexistent unsafe or unhealthy condition, but public
support for such legislation is undermined, if it ultimately is
shown that penalties were not properly imposed. Further-
more, in such situations, the public agency implementing
such legislation is put to needless and expensive enforcement
actions to correct, what turns out to be, an unsafe or
unhealthy condition which does not actually exist.
Such agencies, no less than the Board, have only limited
resources. If directed to nonexistent conditions, those re-
sources are diverted from other, actually unsafe and
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713KORONIS PARTS, INC.
unhealthy situations, thereby depriving employees in those
latter situations of the benefits of statutes enacted for their
protection. In sum, an employee’s effort to skew an OSHA
test, so that his/her employer appears to be maintaining un-
safe and unhealthy conditions in the workplace, undermines
both the interests in proper protection under such legislation
of employees, in general, and, as well, undermines the public
interest in proper implementation of such legislation. Such an
employee engages in misconduct which is outside of the
Act’s protection. Beyond that, the Act does not protect em-
ployees who engage in unsafe practices in their workplaces.
As disclosed by the employee disciplinary report, de-
scribed in section I,Q, supra, Bertram had been terminated,
at root, for two reasons. First, for the unsafe practice of car-
rying hot bars away from the induction machine-cooling
table area to the nearby paste table, thereby risking injury to
himself and his coworkers, should the bar slip from its carry-
ing device or touch another employee while being carted
around. Second, by adding flux to those hot bars while away
from the induction machine-cooling table, smoke and fumes
were emitted which could not be vented through the system
in place above that induction machine-cooling table area. In
turn, the unvented smoke and fumes, being measured on the
monitor which Bertram had been wearing, skewed the OSHA
test of that venting system to Respondent’s disadvantage—
made it seem that more smoke and fumes were not being
vented by the system than ordinarily was the fact.
Bertram admitted that, while wearing the OSHA monitor
on December 14, he had carried hot bars from his assigned
work area to the nearby paste table where he had applied ad-
ditional paste or flux to the heated bars. In having done so,
Bertram did not dispute that smoke and fumes had been
caused which, while away from the induction machine-cool-
ing table area, could not have been vented through the hood
over the induction machine. However, Bertram asserted that
this had been his ordinary practice and, further, that it had
been a practice followed by others, as well. Yet, these asser-
tions were not advanced convincingly. Moreover, there was
no credible corroborative evidence in support of those asser-
tions.
The only witness who supported those assertions by Ber-
tram was Daniel L. Whitcomb. That was not necessarily sur-
prising, given the fact that Whitcomb was a union supporter
and, more importantly, had been implicated in Bertram’s De-
cember 14 action, as a person who had been encouraging
Bertram to apply more paste to the heated bars while away
from the venting hood.
Bertram and Whitcomb each identified Brenda Lang and
Melanie Smith as employees who also had put paste on hot
bars. In addition, Bertram identified Debbie Christianson,
Samantha Marie Huberty, and Shari Keller as employees
who had done so. Of those five employees, only Huberty ap-
peared as a witness, though there was neither evidence nor
representation that Lang, Smith, Christianson, and Keller
were unavailable to appear as corroborative witnesses for
Bertram and Whitcomb. Huberty had trained Bertram on the
induction welding machine, before leaving employment with
Respondent. She denied flatly ever having applied flux or
paste on a hot carbide bar, pointing out that doing so ‘‘would
make it really smoke a lot.’’
The two employees who reported having seen Bertram
putting paste on hot carbide bars on December 14—Paul
Chupp and Jane Torborg—each denied ever having seen Ber-
tram or anyone else putting paste on hot bars prior to having
seen Bertram do so on December 14. Torborg’s testimony
was particularly significant, for she had been the employee
who prepared the bars, applying paste or flux to them, for
Bertram to place in the induction machine. She conceded
that, on December 14, Bertram may have complained that the
carbides were not being put on straight or were not being
pushed down all the way, just as he had voiced such com-
plaints on many occasions. However, she testified that when-
ever in the past Bertram had added paste to a hot bar, he
‘‘never brought the bar over to put paste in the bar itself,’’
but instead, ‘‘he’d always use a needle nose and pick up a
carbide and put it on the carbide and put it in the hot bar
while it was in the induction machine.’’ (Emphasis added.)
Of course, in following that procedure, most resultant smoke
and fumes would be vented through the hood, not into the
workplace at large as occurred during the morning of De-
cember 14.
A number of arguments have been advanced in support of
the allegation that Bertram’s discharge had been unlawfully
motivated. Many are based on the somewhat ham-handed
procedure followed by Respondent when investigating the
events of December 14. Nevertheless, certain factors are un-
disputed and, of themselves, serve to refute any adverse in-
ference sought as a result of Respondent’s investigative tech-
nique. First, so far as the evidence shows, this had been the
first occasion on which Respondent had been confronted
with a report of conduct so serious as an employee engaging
in dangerous conduct to influence an OSHA test’s results so
that they would be adverse to Respondent. In consequence,
it is not necessarily surprising that Respondent’s officials
may have been somewhat clumsy in addressing investigation
of reports about the December 14 situation.
Second, by December 15, Respondent already was facing
allegations arising from the unfair labor practice charges filed
in Cases 18–CA–13787 and 18–CA–13848, as set forth in
the statement of the case, supra. Inasmuch as Bertram had
been identified by Behr as a proponent of the Union, Re-
spondent had to be aware that his discharge likely would
lead to filing of another charge, as indeed it did. Con-
sequently, it is not surprising that Respondent would want to
investigate Chupp and Torborg’s report before taking any
final personnel action against Bertram. Unlawful motivation
cannot be inferred from the mere fact of awareness that a
charge might be filed and from the further fact that an em-
ployer has taken steps to ensure the propriety of whatever
personnel action it may take, as a defense to such a charge.
See, e.g., Mac Tools, Inc., 271 NLRB 254, 255 (1984).
Third, this was not a situation—such as violation of the
policy against unauthorized use of company telephones for
personal calls, discussed in subsection E, above—where Re-
spondent’s officials had initiated investigation of misconduct
and seemed to be trying to ferret out an infraction so that
union supporters could be disciplined. It had been two em-
ployees, Chupp and Torborg—neither of whom has been
shown to be opposed to the Union and its supporters—who
had reported what they had seen during the morning of De-
cember 14. And one of them also volunteered that Bertram
had appeared to be trying to influence the OSHA test results
by his conduct that morning. In consequence, enough infor-
mation had been reported to Respondent, by employees, that
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714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it would be natural for an employer to investigate so that it
could ascertain whether there had been an unsafe practice
and whether there had been an effort to skew the OSHA test.
Fourth, whatever may be said about the content of the
written statements collected from Chupp, Torborg, and Dan-
iel L. Whitcomb, and the circumstances under which they
had been prepared on December 15 and 18, the fact remains
that both Chupp and Torborg had reported orally to Webb
and Cloakey, before writing out their statements, the essence
of the events which led Respondent to conclude that dis-
charge had been warranted. Thus, Chupp testified:
I told [Webb] that I seen Bill coming—turning
around with this hot bar, smoking hot bar to the induc-
tion machine and I guess at the time I was wondering
why he was doing that, but then later I found out why
this thing that was hanging on his waist [the OSHA
monitor], the reason that I felt that he was doing it be-
cause I never seen it before, was giving—creating extra
smoke—
. . . .
Well, I—about the laughing back and forth [between
Whitcomb and Bertram] and the hot smoking bar and—
I told him exactly what I seen.
Similarly, Torborg testified that she had told Webb,
‘‘[T]hat Bill had taken bars off of the burning induction ma-
chine and brought them over and pasted them and it was giv-
ing off extra smoke.’’ She further testified that she had told
Webb, ‘‘I felt that he was doing that just to run the meter
higher and that him and Dan made several contacts, eye con-
tacts and motioned to each other about what they were
doing. And that I felt that it was unfair.’’ Asked, during
cross-examination, if she had specified to Webb what she
meant by Whitcomb and Bertram ‘‘motioning to each
other,’’ Torborg replied, ‘‘I told him that I felt that Dan was
making a motion to make more smoke, him and Bill were
both making—trying to make more smoke to make it—the
meter to go higher,’’ and that Whitcomb had been waving
his hand ‘‘in circles and also they were laughing when it did
make more smoke, they were laughing at each other.’’
Chupp and Torborg appeared to be testifying candidly.
While it might be argued that the latter had something to
gain by testifying favorably to Respondent, since she was on
layoff and might be recalled by it, certainly that cannot be
said of Chupp. By the time of the hearing he had voluntarily
quit his employment with Respondent to become self-em-
ployed. There is no showing that his income remains, in
whole or part, dependent on continued good relations with
Respondent.
The oral reports of those two employees, made before
their written statements had been requested and prepared,
contained the essence of the reasons advanced by Respond-
ent for having terminated Bertram: that he had been carrying
hot bars to the pasting table, that while there he had applied
paste to those hot bars, that doing so had caused smoke and
fumes which were not vented through the hood in the induc-
tion machine-cooling table area, that those smoke and fumes
adversely affected the OSHA test from Respondent’s stand-
point, and that his conduct endangered himself and others. In
that regard, one aspect of Whitcomb’s testimony should not
escape notice.
He testified that he had told Webb, Vanderpool, and
Cloakey on December 15 that, on the previous day, Bertram
‘‘wasn’t really doing anything out of the ordinary’’ and that
other employees had put paste on hot bars. Significantly,
however, Whitcomb conceded that he also had told the three
supervisors that he had noticed Bertram putting paste on hot
bars on December 14 only while wearing the OSHA monitor.
In addition, he admitted having told Webb and Vanderpool
that if Bertram could have affected the OSHA test’s results,
he would have done so.
In sum, regardless of these employees’ written statements,
and the circumstances under which they were prepared,
Chupp, Torborg, and Daniel L. Whitcomb orally had pro-
vided Respondent with information that on December 14,
only while wearing the OSHA monitor, Bertram had left the
vented induction machine-cooling table area carrying hot
wear bars, had taken those bars to a nearby unvented loca-
tion where he added paste which caused smoke and fumes
to be emitted, and, in doing so, appeared to be deliberately
trying to skew the OSHA test to Respondent’s disadvantage.
Respondent’s conclusion that the latter had been the fact is
a reasonable inference from those oral statements. Respond-
ent’s officials were not precluded by the Act from disbeliev-
ing, as do I, Bertram’s explanations advanced to defend his
actions.
Even if Bertram always had followed that procedure, there
is no credible evidence that any of Respondent’s supervisors
and its co-owner had known as much during mid-December.
That practice, of itself, was an unsafe one. Beyond that, it
reasonably appeared to Respondent’s officials—and to me, as
well—that rather than having followed any asserted practice
on December 14, Bertram had been attempting to delib-
erately disadvantage Respondent by adding paste to hot car-
bide bars in an unvented area and only while wearing the
OSHA monitor.
To be sure, Respondent had no specific work rule prohibit-
ing hot carbide bars from being carried from the induction
machine-cooling table. Yet, Respondent argues that such
conduct is contrary to ‘‘common sense,’’ given the danger of
injury if one of them touches an employee, and is so aberrant
that no reasonable employer would foresee a need to publish
written proscription of doing so. That is a persuasive argu-
ment.
Every organization operates on the basis that personnel
will exercise common sense when performing their jobs. Cer-
tainly, the Act does not oblige employees to formulate and
publish rules prohibiting every conceivable unsafe practice
which may be committed before disciplining an employee for
engaging in obviously unsafe conduct. For example, no one
could dispute that an employee could be disciplined for such
egregious conduct as carrying a hot carbide bar while chas-
ing after another employee through the building. The Act
does not bar an employer from imposing discipline for such
misconduct simply because there is no specific rule prohibit-
ing it. So, too, Bertram carried hot carbide bars from his
work area, on each occasion obviously risking that the bar
might be mishandled and touch Bertram or someone else,
causing severe burn. Moreover, it seems obvious that his rea-
son for doing so had been to obtain paste that could be ap-
plied to the bars in an unvented area, thereby creating smoke
and fumes which would increase the reading on the monitor
he was wearing for OSHA. Surely, no specific prohibition is
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715KORONIS PARTS, INC.
necessary for an employee to naturally realize that such con-
duct was improper.
Respondent concedes that it had not been fined as a result
of Bertram’s conduct which heightened the OSHA monitor’s
reading concerning unvented smoke and fumes. But, the
record reveals that, on discovering what Bertram had done,
Respondent immediately contacted OSHA, explained the sit-
uation and another test was conducted. Had Respondent not
done so, OSHA may well have fined Respondent, in the nor-
mal course of affairs, because of heightened readings from
the monitor. In any event, the Act does not require employ-
ers to withhold discipline in such situations until those em-
ployers suffer a penalty and then only impose discipline.
It also is accurate that Respondent discharged only Ber-
tram and did not discipline Daniel L. Whitcomb for the
events of December 14. Yet, Whitcomb also had been an
open supporter of the Union, though his name had not been
mentioned in Behr’s letters to Respondent. Moreover, at
most, Whitcomb had encouraged Bertram’s conduct, but had
not actually engaged in unsafe conduct and conduct which
skewed OSHA’s test. Finally, Whitcomb denied that his con-
duct on December 14 had amounted to encouragement and,
viewed from Respondent’s perspective, the statements about
Whitcomb’s conduct had been ambiguous—did not show
clearly that he actually had been encouraging Bertram, as op-
posed to talking and gesturing to Bertram for some other rea-
son. In these circumstances, the fact that Respondent did not
discipline Whitcomb for his conduct on December 14 does
not evidence an unlawful motive for its discharge of Ber-
tram, the employee who actually did engage in misconduct
and attempt to skew the OSHA test.
In sum, Respondent harbored animus toward the Union
and its employee supporters. Further, it engaged in unfair
labor practices to retaliate against them and to discourage
support for the Union. Several of those unfair labor practices
were directed against William Bertram, the employee first
identified to Respondent by the Union as the latter’s sup-
porter. Nevertheless, on December 14 Bertram engaged in
unsafe conduct in the workplace and, also, conduct which
certainly allowed Respondent to infer that he had been at-
tempting to skew an OSHA test to Respondent’s disadvan-
tage. It had been for that conduct which Respondent con-
tends that it discharged Bertram. The credible evidence sup-
ports that contention. Therefore, I conclude that Respondent
has met its burden of going forward with evidence sufficient
to show that, even absent the Union’s campaign and Ber-
tram’s role in it, Respondent would have discharged Bertram
for engaging in misconduct on December 14. I shall dismiss
the allegation that Bertram had been unlawfully terminated.
So, too shall I dismiss the allegation that Respondent un-
lawfully suspended Daniel L. Whitcomb on December 15
and, inferentially, Bertram when he had been suspended on
that same date. Although Chupp and Torborg were not also
sent home that day, neither of them had been accused of en-
gaging in misconduct. It would be absurd to require that em-
ployers also send home employees who report unsafe or im-
proper conduct, in order to be allowed to lawfully suspend
employees accused of engaging in such misconduct. Re-
spondent’s evidence shows that Whitcomb—and Bertram, as
well—was sent home because Respondent did not want to
allow him to roam its place of business, possibly influencing
other workers who might be asked about what had occurred
on December 14. That is a logical explanation and the testi-
mony supporting it was advanced credibly. Therefore, I con-
clude that the credible evidence shows that the suspension
had not been unlawfully motivated and would have taken
place even had the Union not been on the scene.
CONCLUSIONS OF LAW
Koronis Parts, Inc. has committed unfair labor practices
affecting commerce by failing to allow Tamara Sondrol to
continue working at its place of business so that it could hire
her; by issuing employee disciplinary reports to William L.
Bertram on September 20, 1995; to Robert Kessler on Octo-
ber 3, 1995; to William L. Bertram and Allan Remmel on
October 16, 1995; and to Robert Kessler and William L. Ber-
tram on November 7, 1995; by issuing a ‘‘Warning to Bill
Bertram’’ on September 27, 1995; and by issuing an ‘‘IN-
TERNAL MEMO’’ to Allan Remmel on October 16, 1995,
in violation of Section 8(a)(3) and (1) of the Act; and, by
threatening plant closure if its employees selected Teamsters
Union Local No. 970, affiliated with International Brother-
hood of Teamsters, a statutory labor organization, as their
collective-bargaining agent, by creating the impression that
employees’ union activities were under surveillance, by coer-
cively interrogating employees about their own and other
employees’ union sympathies and activities, by impliedly
threatening that support for the above-named labor organiza-
tion would adversely affect an employee’s ability to receive
bonuses, by promulgating and publishing a rule prohibiting
employees from discussing their wages with one another, by
directing an employee not to discuss her wage rate with other
employees, by inviting an employee to quit if he was un-
happy with his wages, by involving a supervisor in distribu-
tion of ‘‘VOTE NO’’ T-shirts, by insisting that an employee
return one of those T-shirts if he would not wear it at work,
by impliedly threatening adverse consequences if that em-
ployee did not do so, and by increasing amounts awarded to
employees as gift certificates and prizes at a company-spon-
sored picnic to discourage support for the above-named labor
organization, in violation of Section 8(a)(1) of the Act. How-
ever, Koronis Parts, Inc. has not violated the Act in any
other manner alleged in the amended and consolidated com-
plaint.
REMEDY
Having concluded that Koronis Parts, Inc. has engaged in
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and, further, that it be ordered
to take certain affirmative action to effectuate the policies of
the Act. With respect to the latter, it shall be ordered to re-
move from its ‘‘COMPANY POLICY’’ handbook, ‘‘Amend-
ed November 14, 1995,’’ the bordered-portion of the
‘‘WAGES’’ section, which states that wages ‘‘are personal
and confidential’’ and which ‘‘asks that wage discussions be
limited between the employee and their supervisor, plant
manager or Company owners only.’’ It also shall be ordered
to distribute to all employees copies of the ‘‘COMPANY
POLICY’’ handbook with that portion deleted. Indian Hills
Care Center, 321 NLRB 144 (1996), and cases cited therein.
It shall be further ordered to, within 14 days from the date
of this Order, offer Tamara Sondrol full reinstatement to the
job of robotic welder, and provide schooling for her to learn
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716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
how to perform that job, equivalent to that which she would
have received during October 1995, as would have occurred
but for the discrimination directed against her, dismissing, if
necessary, anyone who may have been hired or assigned to
perform that job after October 6, 1995. If that job no longer
exists, Sondrol will be offered employment in a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges which she would have enjoyed
had she been allowed to continue working and been hired as
robotic welder. Moreover, it shall make Tamara Sondrol
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against her, with backpay to be
computed on a quarterly basis, making deductions for interim
earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and
with interest to be paid on amounts owing, as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). It
also shall, within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal to
allow Sondrol to continue working after October 6, 1995,
and to hire her, and within 3 days thereafter shall notify
Sondrol in writing that this has been done and that the re-
fusal to allow her to continue work and to hire her will not
be held against her in any way.
It shall be further ordered, within 14 days from the date
of this Order, to remove from its files the employee discipli-
nary reports issued to William L. Bertram on September 20,
October 16, and November 7, 1995; to Robert Kessler on
October 3 and on November 7, 1995; and to Allan Remmel
on October 16, 1995; the ‘‘Warning to Bill Bertram issued
to William L. Bertram on September 27, 1995; and the ‘‘IN-
TERNAL MEMO’’ issued to Allan Remmel on October 16,
1995, as well as any other references in its files to those un-
lawfully issued documents. Within 3 day thereafter, it shall
notify Bertram, Kessler, and Remmel, respectively, that this
had been done and that those documents will not be used
again each in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Koronis Parts, Inc., Paynesville, Min-
nesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening plant closure if Teamsters Union Local
No. 970, affiliated with International Brotherhood of Team-
sters, or any other labor organization, is selected as the col-
lective-bargaining agent of its employees; creating the im-
pression of surveillance of employees’ union activities; coer-
cively interrogating employees concerning their own and
other employees’ union sympathies and activities; threatening
that support for the above-named labor organization or any
other labor organization, will adversely affect ability of em-
ployees to receive bonuses; publishing rules that prohibit em-
ployees from discussing wages among themselves; telling
employees not to discuss their wage rates with other employ-
ees; inviting employees to look for another job and quit if
they are unhappy with their wage rates; involving supervisors
in the distribution of antiunion apparel, including ‘‘VOTE
NO’’ T-shirts; directing employees to return antiunion ap-
parel, such as ‘‘VOTE NO’’ T-shirts, if they are unwilling
to wear that apparel while at work, and threatening adverse
consequences if they are unwilling to return that apparel; and
increasing the amounts of gift certificates and prizes awarded
to employees as a result of drawings at company-sponsored
picnics and other events, to discourage employees from sup-
porting the above-named labor organization or any other
labor organization.
(b) Maintaining in its ‘‘COMPANY POLICY’’ a rule
which tells employees that wages ‘‘are personal and con-
fidential,’’ and ‘‘asks that wage discussions be limited be-
tween the employee and their supervisor, plant manager or
Company owners only.’’
(c) Refusing to allow Tamara Sondrol, or any other em-
ployee, to continue working at its Paynesville, Minnesota
place of business; refusing to hire Sondrol, or any other em-
ployee; and otherwise discriminating against Sondrol, or any
other employee, because of suspected or known sympathy
and activity on behalf of the above-named labor organization,
or any other labor organization.
(d) Issuing employee disciplinary reports, warnings, inter-
nal memos to, or otherwise discriminating against, any em-
ployee because of sympathy for, or activities on behalf of,
the above-named labor organization, or any other labor orga-
nization.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its ‘‘COMPANY POLICY’’ handbook,
‘‘Amended November 14, 1995,’’ the bordered-portion of the
‘‘WAGES’’ section, which states that wages are ‘‘personal
and confidential,’’ and which ‘‘asks that wage discussions be
limited between the employee and their supervisor, plant
manager or Company owners only,’’ and distribute to all em-
ployees copies of the ‘‘COMPANY POLICY’’ with that por-
tion deleted.
(b) Within 14 days from the date of this Order, offer Ta-
mara Sondrol full reinstatement to the job of robotic welder,
and provide schooling for her to learn how to perform that
job, as would have occurred had she not unlawfully been de-
nied employment after October 6, 1995, or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges
which she would have enjoyed had she been allowed to con-
tinue working had she been hired as a robotic welder.
(c) Make Tamara Sondrol whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section of
this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to allow
Tamara Sondrol to continue working at its Paynesville, Min-
nesota place of business, and to the unlawful refusal to hire
her, and within 3 days thereafter notify Sondrol in writing
that this has been done and that the refusal to continue al-
lowing her to work and to hire her will not be used against
her in any way.
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717KORONIS PARTS, INC.
11 If 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.’’
(e) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days from the date of this Order, remove
from its files the Employee Disciplinary Reports issued to
William L. Bertram on September 20, on October 16, and on
November 7, 1995; to Robert Kessler on October 3 and on
November 7, 1995; and to Allan Remmel on October 16,
1995; the ‘‘Warning to Bill Bertram.’’ issued to William L.
Bertram on September 27, 1995; and the ‘‘INTERNAL
MEMO’’ issued to Allan Remmel on October 16, 1995, as
well as any reference in its files to those unlawfully issued
documents, and within 3 days thereafter notify Bertram,
Kessler, and Remmel, respectively, that this has been done.
(g) Within 14 days after service by the Region, post at its
Paynesville, Minnesota place of business copies of the at-
tached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 18,
after being signed by its duly authorized representative, shall
be posted by Koronis Parts, Inc. and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by it to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings,
Koronis Parts, Inc. has gone out of business or closed the
Paynesville facility involved in these proceedings, it shall du-
plicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by it
at any time since October 4, 1995. In addition, it shall mail,
at its own expense, a copy of the notice to William L. Ber-
tram, Robert Kessler, and Allan Remmel.
(h) Within 21 day after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that it has taken to comply.
IT IS FURTHER ORDERED that the amended and consoli-
dated complaint be, and it is, dismissed insofar as it alleges
violations of the Act not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to close our Paynesville, Minnesota
place of business if you select Teamsters Union Local No.
970, affiliated with International Brotherhood of Teamsters,
or any other labor organization, as your collective-bargaining
agent.
WE WILL NOT create the impression that we are engaging
in surveillance of your union activities.
WE WILL NOT coercively interrogate you concerning your
own and other employees’ union sympathies and activities.
WE WILL NOT threaten that support for the above-named
Union, or any other union, will adversely affect your ability
to receive bonuses.
WE WILL NOT publish rules that prohibit you from discuss-
ing wages among yourselves.
WE WILL NOT tell you to not discuss your wage rates with
other employees.
WE WILL NOT invite you to look for another job and quit
because you are unhappy with your wage rates.
WE WILL NOT involve supervisors in the distribution of
antiunion apparel, including ‘‘VOTE NO’’ T-shirts.
WE WILL NOT direct you to return antiunion apparel, such
as ‘‘VOTE NO’’ T-shirts, if you are unwilling to wear that
apparel while at work and WE WILL NOT threaten adverse
consequences if you are unwilling to return that apparel.
WE WILL NOT increase amounts of gift certificates and
prizes awarded to you as a result of drawings at events
which we sponsor, such as picnics, to discourage you from
supporting the above-named union, or any other union.
WE WILL NOT maintain in our ‘‘COMPANY POLICY’’ a
rule which tells you that wages ‘‘are personal and confiden-
tial,’’ and which ‘‘asks that wage discussions be limited be-
tween the employee and their supervisor, plant manager or
Company owners only.’’
WE WILL NOT refuse to allow Tamara Sondrol, or any
other employee, to continue working at our Paynesville, Min-
nesota place of business; refuse to hire Sondrol or any other
employee; or otherwise discriminate against Sondrol, or any
other employee, because of suspected or known sympathy to-
ward, or activity on behalf of, the above-named Union, or
any other union.
WE WILL NOT issue employee disciplinary reports, warn-
ings, internal memos to, or otherwise discriminate against,
any employee because of their sympathy for, or activity on
behalf of, the above-named Union, or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL remove from our ‘‘COMPANY POLICY,’’ as
‘‘Amended November 14, 1995,’’ the bordered-portion of the
‘‘WAGES’’ section, which states that wages ‘‘are personal
and confidential’’ and which ‘‘asks that wage discussions be
limited between the employee and their supervisor, plant
manager or Company owners only,’’ and WE WILL distribute
to each of you a copy of the ‘‘COMPANY POLICY’’ with
that portion deleted.
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718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL, within 14 days from the date of this Order, offer
Tamara Sondrol full reinstatement to the robotic welder’s
job, providing her with the schooling needed for her to learn
how to perform that job, as would have occurred had she not
been denied employment after October 6, 1995, or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges which she would have enjoyed had we not unlawfully
deprived her of further employment on October 6, 1995.
WE WILL make whole Tamara Sondrol for any loss of
earnings and other benefits resulting from our unlawful de-
nial of employment to, and refusal to hire, her after October
6, 1995, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, re-
move from our files any reference to the unlawful refusal to
allow Tamara Sondrol to continue working and to the unlaw-
ful refusal to hire her, and WE WILL, within 3 days thereafter,
notify her in writing that his has been done and that those
unlawful acts will not be used against her in any way.
WE WILL, within 14 days from the date of this Order, re-
move from our files the employee disciplinary reports issued
to William L. Bertram on September 20, on October 16, and
on November 7, 1995; to Robert Kessler on October 3 and
on November 7, 1995; and to Allan Remmel on October 16,
1995; the ‘‘Warning to Bill Bertram’’ issued to William L.
Bertram on September 27, 1995; and, the ‘‘INTERNAL
MEMO’’ issued to Allan Remmel on October 16, 1995, as
well as any reference in our files to those unlawfully issued
documents, and WE WILL, within 3 days thereafter, notify
Bertram, Kessler, and Remmel, respectively, that this has
been done and that none of those documents will be used
against them in any way.
KORONIS PARTS, INC.
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