Lakepark Industries, Inc

National Labor Relations Board - Board Decisions

Mar 28, 1989

293 N.L.R.B. 452 (N.L.R.B. 1989)

452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lakepark Industries , Inc and International Union,
Allied Industrial Workers of America, AFL-
CIO Cases 8-CA-20195 and 8-CA-20618
March 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 14, 1988, Administrative Law Judge
Walter H Maloney issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed exceptions and
a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 as modified and to adopt the recom
mended Order as modified and set out in full
below 3
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We are also satisfied that the Respondents contention that the judge
was biased is without ment Careful review of the record shows no state
ments or other evidence indicating bias or prejudice on the part of the
judge
2 The Respondent citing Hoyt Water Heater Co 282 NLRB 1348
(1987) contends that the judge erred in finding that it engaged in unlaw
ful surveillance of a union meeting on April 1 1987 We find Hoyt distin
guishable from the present case In Hoyt the panel majority found that
the General Counsel failed to show that more than fortuitous circum
stances brought the supervisors to drive past the premises In con
trast here the judge found that Plant Manager Higgs and Plant Superm
tendent Gearhart each drove slowly back and forth past the meeting in
the elementary school parking lot and that Higgs later drove by the
meeting again when it moved to another location The record shows that
these drive bys were not merely fortuitous and supports the judges
conclusion that this conduct amounted to unlawful surveillance Chair
man Stephens in agreeing with his colleagues that the Respondent en
gaged in unlawful surveillance on April 1 1987 notes that he dissented in
Hoyt with respect to the dismissal of the surveillance allegation Member
Cracraft who did not participate in Hoyt agrees it is distinguishable
The complaint alleged that the Respondents assignment of union sup
porters to the 881 job violated Sec 8(a)(1) and (3) We adopt the judge s
finding that this conduct violated Sec 8(a)(1) No exceptions were filed
to the judge s failure to find this conduct violated Sec 8(a)(3) In the ab
sence of such exceptions we adopt pro forma the judge s failure to find
that this conduct also violated Sec 8(a)(3)
3 The judge inadvertently omitted from his Conclusions of Law rec
ommended Order and notice language reflecting his finding that the Re
spondent violated Sec 8(a)(1) by threatening to close the plant in the
event of unionization We shall amend the conclusions of law and modify
the recommended Order and notice accordingly
In his recommended Order the judge provided that the employees un
lawfully laid off be offered reinstatement to their former or substantially
equivalent employment We shall modify the Order and notice to pro
vide that the Respondent offer the employees substantially equivalent
employment only if their former jobs no longer exist The judge s recom
mended Order also included an expunction remedy for Charles Wolfen
The judge found, inter alia, that the Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
criminatorily laying off 31 employees on April 1,
1987, and by discriminatorily discharging Charles
Wolfenbarger on December 4, 1987 The determi-
nation of whether these actions violated the Act is
governed by the standard set out in Wright Line,
251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 U S 989 (1982), approved
in NLRB v Transportation Management Corp, 462
U S 393 (1983) Under Wright Line, the General
Counsel has the initial burden to prove that union
or other activity protected by the Act was a moti
vating factor behind the discharge The burden
then shifts to the employer to show that it would
have taken the same action even in the absence of
the protected activity Regarding the layoff, we
conclude that, given the judge's finding of a back-
ground of antiunion animus on the part of the Re-
spondent, the timing of the layoff 2 days after the
Union sent the Respondent a telegram informing it
that the Union was organizing the LPI plant, and
the Respondent's knowledge of the Union's orga
nizing effort, the General Counsel met her initial
burden to show that union activity was a motivat-
ing factor in the layoff 4
Regarding its rebuttal, the Respondent contends
in its exceptions that the judge ignored its stated
reason for the layoff It argues that the judge erro
neously characterized its claim as one based on
"economic necessity" and that he failed to analyze
its stated reason for the layoff, which "centered on
product quality and workforce stability " Although
the judge did not explicitly address the Respond-
ent s product quality and workforce stability' ar-
gument in those terms , it is clear from his decision
that he discredited any reason for the layoff other
than a union-related one In this regard, the judge
credited the testimony of former Assistant Plant
Manager John Drossman, who testified that when
he asked Plant Manager Larry Higgs why the
Company was laying off employees, Higgs told
him that the Company wanted to see if a loss of
jobs would have an impact on the union organizing
effort The judge further credited the testimony by
Drossman that showed that Higgs had told him
that the employees should be told that the layoff
was permanent because temporarily laid off em
ployees could vote in a representation election In
addition, the judge discredited the testimony of
Higgs and Midway's corporate manufacturing man
barger but not for the other employees who were unlawfully laid off
We shall modify the recommended Order and notice to include those em
ployees in the expunction remedy
4 See Transportation Management Corp 256 NLRB 101 (1981) enf
denied 674 F 2d 130 (1st Cir 1982) revd 462 U S 393 (1983)
293 NLRB No 52
LAKEPARK INDUSTRIES
ager, Jerry Graham, which the Respondent offered
as part of its "product quality" argument, that the
layoff had been long in the making, noting that the
Respondent kept hiring new employees virtually up
to the date the Union informed it of the organizing
campaign
There is considerable persuasive evidence that
the layoff was not motivated by a desire to im-
prove product quality Quality problems had exist-
ed at the Lakepark plant from the time it opened in
1985 Nevertheless, there had never been layoffs
there before, and the Respondent offered no reason
why it decided to address the asserted quality
problem with layoffs at this particular time Also,
although the plant's quality problems involved par-
ticular departments or classifications of employees,
most of the employees in those departments and
classifications were not laid off Similarly, the fact
that the Respondent chose a seniority-based layoff,
rather than selecting employees for layoff on the
basis of ability, belies the claim that the layoff was
designed to improve product quality Finally, the
Respondent has provided no explanation why,
given its assertion that quality problems prompted
the layoff of these 31 employees, it chose in the fall
of 1987 to recall all these laid-off employees, rather
than hiring new workers to meet its needs Thus,
we find that the Respondent has failed to rebut the
General Counsel's prima facie case, and we agree
with the judge's conclusion that the layoff violated
the Act 5
Regarding the discharge of Charles Wolfen-
barger, we find that the General Counsel estab-
lished a prima facie showing of discrimination
based on the judge's findings that the Respondent
had antiunion animus , had been informed by the
Union that Wolfenbarger was a union supporter,
and had previously threatened Wolfenbarger with
reprisal for union activities We also find that the
Respondent failed to meet its Wright Line burden
in light of the judge's findings that the Respondent
offered shifting reasons for the discharge and did
not establish that it had a nondiscriminatory reason
for discharging Wolfenbarger 6 Accordingly, we
5 We find merit in the General Counsels contention that the judge in
advertently misidentified certain of the 31 employees who had been laid
off on April 1 1987 We shall modify the judge s recommended Order
accordingly
6 With respect to the shifting reasons finding the Respondent contends
that it did in effect list creating a safety hazard as one of the reasons for
Wolfenbarger s discharge because his failure to follow work instructions
(a listed reason) created a safety hazard Even if we found that this con
tendon had merit we would still agree with the judge that this was not
the true reason for the discharge The conduct in question i e the slug
puncher incident was not shown to involve a saftey hazard different in
degree from others (e g miss hits dry runs various failures to notify su
pervisors) for which employees had not been discharged We would
therefore still find that the Respondent had failed to carry its Wright Line
burden
453
agree with the judge's conclusion that Wolfen-
barger's discharge violated the Act 7
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4
"4 By the acts and conduct set forth in Conclu-
sion of Law 3, by threatening employees with dis-
charge or other unnamed reprisals if they engaged
in lawful union solicitation on company premises,
by engaging in surveillance of the union activities
of its employees, by threatening employees with
plant closure in the event of unionization, and by
assigning more onerous work to employees in re-
prisal for their sympathies with or activities on
behalf of the Union, the Respondent violated Sec
tion 8(a)(1) of the Act "
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lakepark Industries, Inc, Greenwich,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Insert the following as new paragraph 1(d)
and reletter the subsequent paragraphs accordingly
"(d) Threatening employees with plant closure in
the event of unionization "
2 Substitute the following for paragraph 2(a)
"(a) Offer to each of the employees named
below immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision
Calloway Jones
Jackie Dewitt
David Mathias
Hayden Stephens
Rick Brant
Joe Mack
Jim Artz
Tom Perkins
Kerry Hale
Nick Kollar
Mike Stockmaster
Hillard Branham
Saul Chavez
Doug Mullins
Tim Stumbo
Robert Clark
In so doing however we do not rely on the judge s statements that
Wolfenbarger was a marked man from the time he returned to the LPI
plant that an incident in which Wolfenbarger received a written warn
mg for leaving his work station was an essentially trivial event that
Wolfenbarger should be reinstated regardless of whether or not the De
cember 4 1987 discharge is deemed unlawful and that [e]ven if a
safety violation were made out by the facts of this case no one had ever
been discharged for such a violation before
454
Chris Green
Angie Lacey
David Arthur
Teresa Hale
Richard Haas
Eddie Campbell
Wayne Breitigan
Kevin Archer"
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Michael Mills
Charles Wolfenbarger
Arvel Buffington
Freddie Tuttle
Rod Williams
Jeff Van Meter
Dale Wilson
3 Insert the following as new paragraph 2(b)
"(b) Expunge from the personnel records of
Charles Wolfenbarger and each of the employees
unlawfully laid off on April 1, 1987, any entries
that reflect the discriminatory treatment found, and
notify the employees in writing that this has been
done and that those entries will not be used against
them in any way "
4 Substitute the attached notice for that of the
administrative law judge
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 violated 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, j oin, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT engage in surveillance of the
union activities of our employees
WE WILL NOT assign more onerous work to em-
ployees in reprisal for their union activities
WE WILL NOT threaten employees with dis-
charge or other unnamed reprisals for engaging in
lawful union solicitation on company premises
WE WILL NOT threaten employees with plant
closure in the event of unionization
WE WILL NOT discourage membership in or ac-
tivities on behalf of International Union, Allied In-
dustrial Workers of America, AFL-CIO or any
other labor organization by laying off or discharg
ing employees or by otherwise discriminating
against them in their hire or tenure
WE WILL NOT in any other manner or by any
other means interfere with, restrain, or coerce em
ployees in the exercise of rights guaranteed to them
by Section 7 of the National Labor Relations Act
WE WILL offer to each of the employees named
below immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest
Calloway Jones Kerry Hale
Jackie Dewitt Nick Kollar
David Mathias Mike Stockmaster
Hayden Stephens Hillard Branham
Rick Brant Saul Chavez
Joe Mack Doug Mullins
Jim Artz Tim Stumbo
Tom Perkins Robert Clark
Chris Green Michael Mills
Angie Lacey Charles Wolfenbarger
David Arthur Arvel Buffington
Teresa Hale Freddie Tuttle
Richard Haas Rod Williams
Eddie Campbell Jeff Van Meter
Wayne Breitigan Dale Wilson
Kevin Archer
WE WILL remove from our personnel files any
entries that reflect the discriminatory treatment of
Charles Wolfenbarger or the employees unlawfully
laid off on April 1, 1987, and WE WILL notify the
employees in writing that this has been done and
that those entries will not be used against them in
any way
LAKEPARK INDUSTRIES, INC
Steven D Wilson and Victoria Belfigho Esqs, for the
General Counsel
William L Hooth Esq of Troy, Michigan, for the Re
spondent
Joseph Szumski, International Representative, of Parma,
Ohio for the Charging Party
DECISION
STATEMENT OF THE CASE
WALTER H MALONEY, Administrative Law Judge
This case came on for hearing before me at Ashland
Ohio on an unfair labor practice complaint' issued by
' The principal docket entries in these cases are as follows
Charge filed in Case 8-CA-10195 against the Respondent by Interns
tional Union Allied Industrial Workers of America AFL-CIO (the
Union) on June 26 1987 complaint issued against Respondent by the
Regional Director for Region 8 on August 26 1987 and amended on No
vember 13 1987 Respondent s answer filed on September 2 1987 first
Continued
LAKEPARK INDUSTRIES
the Regional Director for Region 8 which alleges that
Respondent Lakepark Industries, Inc 2 violated Section
8(a)(1) and (3) of the Act After a hearing on the original
complaint in Case 8-CA-20195 had been completed, the
General Counsel moved to consolidate Case 8-CA-
20618 with that case and to proceed to hearing on the
allegations in the second complaint The motion was
granted and a second hearing was held in the consolidat
ed case
FINDINGS OF FACT
The two complaints allege that the Respondent threat
ened employees with reprisal if they engaged in union
solicitation on company time, kept union meetings under
surveillance, engaged in following union adherents out
side the plant, assigned more difficult and onerous work
to union adherents, discriminatorily laid off 31 employees
on April 1, 1987 and on December 4, 1987, discrimina
torily discharged employee Charles Wolfenbarger The
Respondent denies the commission of independent acts of
8(a)(1) conduct, claims that the 31 individuals who were
laid off on April 1, 1987, were laid off for economic ne
cessity, and asserts that Wolfenbarger was discharged for
a series of on the job deficiencies, climaxing with the
misuse of a stamping machine on December 4 1987 On
these contentions the issues were framed 3
I THE UNFAIR LABOR PRACTICES ALLEGED
Since August 1985, Respondent Lakepark Industries,
Inc (LPI) has operated a pressing and stamping oper
ation at Greenwich, a small town in northern Ohio near
Cleveland LPI is a wholly owned subsidiary of Midway
Products Inc (Midway), of Monroe Michigan Midway
also owns P & A Industries (P & A), located at Findlay,
Ohio All three of these plants are controlled from the
Midway corporate headquarters at Monroe and are en
gaged in similar operations, namely, the stamping of auto
parts for the Ford Motor Company With small excep
tion, Ford is their only customer Midway employees are
organized in a union represented bargaining unit while
the employees at Findlay and LPI are not The events at
issue in this case relate to the LPI plant at Greenwich
The bargaining unit at LPI is in large measure com
posed of unskilled or semiskilled employees It has expe
rienced a great turnover in the past 2 years A significant
number of its new hires are individuals with little or no
hearing held in Ashland Ohio on December 9 and 10 1987 charge filed
by the Union against the Respondent in Case 8-CA -20618 on December
16 1987 complaint issued against the Respondent by the Regional Direc
tor for Region 8 on January 20 1988 order consolidating Case 8-CA-
20195 with Case 8-CA-20618 issued by me on February 3 1988 second
hearing held in Ashland Ohio on March 29 1988 briefs filed with me
by the General Counsel and the Respondent on May 31 1988
2 The Respondent admits and I find that it is a Delaware corporation
which maintains an office and place of business in Greenwich Ohio
where it is engaged in the manufacture of automotive stampings and as
semblies Annually the Respondent sells and ships directly from its
Greenwich Ohio plant to points and places located outside the State of
Ohio goods and merchandise valued in excess of $50 000 Accordingly it
is an employer engaged in commerce within the meaning of Sec 2(2) (6)
and (7 ) of the Act The Union is a labor organization within the meaning
of Sec 2(5) of the Act
S Certain errors in the transcript are noted and corrected
455
work experience who are employed pursuant to an on
the job training agreement between LPI and a state
agency known as the W S 0 S Community Action Com
mission Inc Pursuant to this agreement, the commission
agrees to pay LPI up to 50 percent of the hourly wage
for a period of 600 hours of each new employee for
whom coverage has been authorized The specified wage
rate is $4 per hour for the employees first 360 hours of
work and $4 25 per hour for the next 240 hours Ap
proximately 40 percent of the LPI work force was being
subsidized by this program Respondents announced per
sonnel practice treats each new hire, whether or not he
is covered by the state program, as a probationary em
ployee for a period of 60 days and thereafter as a regular
employee entitled to accrue seniority
On April 1, 1987, the date on which the principal
event in this case took place, the Respondent employed
68 production and maintenance employees in its Green
wich bargaining unit On that date it indefinitely laid off
31 of these employees under circumstances that are here
described According to former Assistant Plant Manager
John L Drossman,4 rumors had floated about the plant
early in 1987 that employees were considering unioniza
tion 5 At that time he discussed with Plant Manager
Larry Higgs what might be done to combat unionization
One suggestion proffered by Higgs to Drossman in
volved the annual bonus which was about to come due
Higgs suggested that supervisors speak to employees on
the plant floor and suggest to them that the Company
was considering the possibility of forgoing payment of
the bonus He stated that such a threat might put the
damper on unionization Following Higgs suggestion
Drossman spoke to three employees- Brian Rank, Larry
Hargis, and Polly Copsey-at the scale in the plant and
passed this word on to them
Early in February Second Shift Supervisor Gene Beal
had occasion to discuss unionization with hi lo operator
Terry Shepherd Record evidence is uncontradicted that
Beal told Shepherd the Company was building a new
plant in Michigan and would relocate the LPI operation
to that plant if a union ever came in Beal also told Shep
herd that, if a union ever did come into the plant he
would not mind dropping back to a production employ
ee
On March 25, Union International Representative
Joseph Szumski met with employee Oscar Bennett to dis
4 Drossman was formerly assistant plant manager at Greenwich On re
turning from vacation in mid April 1987 he received a telegram from
LPI dated April 17 which informed him that he was being permanently
laid off because the Company felt it necessary to reduce the number of its
salaried personnel along with the reduction in the size of the production
and maintenance force In fact Drossman was discharged for an assort
ment of asserted reasons all of which were discussed in detail in the
record in this case in an effort to impeach his testimony Shortly after he
was fired Drossman filed a multimillion dollar wrongful discharge com
plaint against both LPI and a number of LPI and Midway officials in the
Court of Common Pleas of Huron County Ohio His civil action was
pending at the time he testified in this proceeding I found Drossman to
be an honest forthright witness and I believe his testimony although of
forts were made to discredit him
6 Higgs also testified that he was aware of rumors going about the
plant concerning unionization but characterized them as nothing sub
stantial
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cuss organizing the plant Bennett set up a meeting the
following day with a few other employees and, at this
meeting additional organizing meetings involving the
entire bargaining unit were set up for Friday March 27,
and Saturday afternoon March 28 The Friday and Sat
urday meetings were scheduled to take place and did
take place at the L & K Motel located at Willard Ohio
about 12 miles west of Greenwich
Higgs admits that he was present at the L & K Motel
in the late afternoon of March 28 along with his wife
and Plant Superintendent Freelyn Gearhart Higgs and
Gearhart testified that, while en route to pay a social call
on Supervisor Gary Isaacs, who lived near Willard in a
town called Shelby, they stopped off at the motel to
have a cup of coffee at the motel restaurant Higgs took
advantage of the occasion to make a room reservation
for Paul Vaughn an applicant for an engineering job
who was coming to Greenwich for an interview There
is no doubt that several employees who were meeting at
a conference room in the motel saw Gearhart and Higgs,
both of whom drove off from the motel premises and re
turned sometime later to permit Gearhart to get his
pickup truck which he had parked at the motel during
the visit to Isaacs house I credit Drossman's testimony
that Higgs had informed him prior to this event that he
had heard rumors that a union meeting was scheduled to
take place at the L & K so he and Gearhart were going
to the motel to see what was going on He also told
Drossman that, if his presence at the motel were ques
tioned he would simply say that he had gone there to
make a room reservation for a prospective employee 6
On Monday March 30 Szumski sent a telegram to
Higgs which advised him of the names of seven individ
uals who were members of the Union s organizing com
mittee at the plant and notified him that they would soon
be distributing literature and soliciting authorization
cards The telegram reminded Higgs that such activity
was protected when it occurred on company premises
during nonworking time The text of the telegram was
phoned to the company office by Western Union that
day and was delivered in written form shortly thereafter
On Wednesday, April 1, Szumski sent Higgs a similar
telegram in which he disclosed the names of six addition
al employees as members of the organizing committee
The originals of these mailgrams were sent to Midway s
corporate manufacturing manager Jerry Graham in
Monroe He had also been notified by telephone when
the first message arrived from the Union in Greenwich
It is quite commonplace for Midway to transfer the
work of producing different items from one plant to an
other and on some occasions to transfer the work back
All three plants perform stamping operations so that
transferring production simply means relocating dies to
be fitted into other presses and possibly transferring raw
materials and packaging to the other plant Various fac
tors or combinations of factors govern these decisions
They might include the skill level of the factory the dif
ficulty of the job in question and the amount of work
8 From time to time visitors to the LPI plant have stayed at the L & K
in Willard On those occasions it was customary for the receptionist at
the plant to phone the motel to make reservations
available at a given plant in comparison with the backlog
at another plant On March 30 Higgs spoke with Dross
man, whose job duties included ordering raw materials
for the LPI plant, and told him that he was thinking of
pulling the 874 job (trunk hinge) out of the LPI plant
along with jobs 864 (engine brackets) 875 (air cleaner
brackets) and possibly the 813 job (shock towers)
Drossman had previously heard discussion that the 875
job might be transferred to another location for logistical
reasons since another plant had the capacity to do the
875 job and a transfer would free machinery at LPI for
other production However, this was the first time that
Drossman had heard any mention of the possibility of a
transfer of jobs 874, 864, and 813 7 I credit his testimony
that, on the following day Higgs said that the Company
wanted to see if a loss of jobs would have any impact on
the union organizing effort Higgs compiled a list of 21
employees who might be affected by such a transfer and
told Drossman that he had to call Graham in Monroe
when the list was completed 8 In the course of his call to
Graham , Higgs mentioned the names of the union orga
nizers that had been disclosed in the union mailgram
In the spring of 1987, the LPI plant worked two shifts
On March 31 during the lunchbreak on the second shift
Gearhart spoke with employee Charles Wolfenbarger
who, at the time, was wearing a button which stated
AIW-Ask Me For a Card I credit corroborated tes
timony to the effect that Gearhart pointed his finger at
Wolfenbarger and told Wolfenbarger that if he caught
him passing out Union cards on company time, Wolfen
barger s ass would be his
Shortly after the end of the shift at midnight on March
31 8 or 10 of LPI employees who were sympathetic to
the organizing drive held an informal meeting in the
parking lot of an elementary school located on Seminary
Street a block west of the plant The employees in
volved stood next to their cars not far from the street
They remained at this location for about half an hour
until a city policeman told them that because of the late
ness of the hour they would have to move to the munic
ipal parking lot a few blocks away on South Railroad
Street if they wanted to continue their meeting While
they were still at the school site Gearhart drove west
along Seminary Street past the gathering turned around
and drove back past the school in the direction of the
plant, looking at the employees while passing Shortly
thereafter Gearhart again drove his pickup truck along
Seminary Street past the school where the men were
gathering These men also saw Higgs drive slowly past
in his truck He turned around and drove past the group
a second time After moving to the municipal parking lot
they saw Higgs drive past this location looking at them
Higgs and Gearhart admitted they were there but insist
ed that they were only going to get a sandwich and hap
7 After the layoff Drossman and Higgs discussed the possible transfer
of job 786 (package tray) but this job was never transferred
8 Higgs denies advising Graham that the Company should lay off 21
employees Higgs was a consistently untruthful witness and I discredit
any of his testimony that contradicts evidence given by any other wit
ness
LAKEPARK INDUSTRIES 457
pened to go past the school yard en route to a cafe on
U S Route 224
I credit the testimony of Terry Lee Curtis, one of the
participants in these late night meetings , that, after the
second meeting broke up, he drove to his home along
Route 224, near where Higgs had been eating He ob
served Higgs following him on Route 224 and turning
down South Kniffen Street to Curtis home Curtis
parked, went inside, and stood looking out the window
of his house He saw Higgs drive past the house in the
opposite direction to which he had originally been going,
moving at an estimated speed of 10 mph 8
Respondent admits that it was plagued with a high
turnover rate During late 1986 and early 1987, this rate
approximated five or six employees per week Company
records indicate that, during the calendar week of March
22-28, LPI hired a total of 11 new employees on its first
and second shifts In the week of March 29 April 4, it
hired four additional employees on these shifts On the
afternoon and evening of April 1, it indefinitely laid off
31 employees in order of seniority On April 2, the day
after the beginning of the Respondents new fiscal year,
LPI shut down its entire operation for 2 days in order to
take inventory, a practice that it had followed the pre
ceding year On Monday, April 6, it resumed production
with a unit of employees which was approximately 55
percent the size of the unit that was working the preced
ing Monday According to Graham, this was five fewer
employees than what the LPI plant manager had in
formed him on April 1 were necessary to run the plant
The reason for the layoff on April 1 is the central issue
in this case
Higgs was present at the corporate headquarters in
Monroe on the date of the layoff He phoned Drossman
at Greenwich instructed him to announce the layoff, and
indicated who was going to be separated from the Com
pany In this phone call Higgs dictated to Drossman the
wording of the layoff notice and asked Drossman to read
back the test of the proposed announcement so that there
would be no mistake I credit Drossman's testimony to
the effect that he was instructed that the layoff would be
permanent because if it were only temporary the Com
pany would still be exposed to the possibility of a union
organizing because temporarily laid off employees could
vote in an NLRB election
Drossman personally made the layoff announcement to
the day shift Higgs returned to Greenwich in the after
noon and was present at the plant when Drossman made
the announcement to the evening shift Drossman was
asked by one employee if there was any chance that he
might get his job back He replied that there was not be
cause the layoff was permanent Another employee asked
if laid off employees would be recalled in preference to
new hires The answer was no A day or so later Higgs
and Drossman had an occasion to discuss the layoff
Higgs told him that the decision to lay off 31 employees
9 Curtis testified that he did not personally observe Higgs driving the
vehicle but that he was certain that the vehicle in question belonged to
Higgs Higgs admitted that he was driving his vehicle that evening in this
vicinity but denies following Curtis This testimony is sufficient to sup
port an inference that it was Higgs and no one else who was following
Curtis in Higgs vehicle on the night in question
had been made in Monroe before he arrived at the com
pany headquarters, adding that higher management had
originally decided to lay off only 29 but found that
known union adherents were the last on a 29 employee
layoff list so they added two more names in order to
keep it from appearing that the layoff was designed to
remove union supporters Higgs and Drossman decided
to operate the second shift with a skeleton crew of seven
employees and to place all known union sympathizers on
the day shift where they could be watched
When production resumed on April 6, Graham came
from Monroe to speak to employees on both shifts He
announced that the hiring in rate for employees had been
increased, that the 6 month in grade raise had been in
creased, and passed out profit sharing checks that also
showed an increase over the amounts contained in simi
lar checks which had been passed out the previous April
He told employees that the Company had to produce a
quality product and that the production jobs that had
been lost were transferred to other plants to stabilize
both the quality of the product and the labor force
More than one employee asked if there were going to be
additional layoffs He replied that there was no reason to
pull more jobs out of the plant and the Company was
going to try to bring some of them back Graham
brought with him to the meeting William Plier of
Empco, a labor relations consulting firm in Troy, Michi
gan Pher was brought to the meeting to discuss union
organizing but the record does not reveal what he said
to employees on this subject Graham told employees
that the Company did not need a union and expressed
the hope that we can work things out
Drossman testified credibly that known union adher
ents remaining in the plant were assigned to the assembly
line producing job 881 (cross member) This testimony
was corroborated by other witnesses Job 881 was the
most difficult and most tiring assignment in the plant be
cause it involved the frequent lifting of 20 pound items
as they were inserted and removed from the press For
merly these jobs had been rotated among all employees
who were working on the shift On April 7, Higgs told
Drossman that he had received orders to lay off five
more employees, including two union sympathizers be
cause the corporate headquarters wanted to see what
effect more layoffs might have on remaining employees
He reported that Graham had said that taking a press out
of the plant might wake people up In fact no addition
al layoffs occurred and no presses were relocated
On April 30 1987 the Union filed a representation pe
tition asking for an election in the LPI production and
maintenance unit (Case 8-RC-13630) When the first
charge in this case was filed on June 26 the processing of
the petition became temporarily blocked Over the
summer LPI lost an additional 15 employees through at
trition so, in late September and early October, it began
to recall the individuals who had been laid off in April
By the time the first hearing in this case had taken place
in December, all 31 had been offered jobs and 15 had ac
cepted them Those who were brought back to the plant
were classified as probationary employees regardless of
whether they had completed their normal 60 day proba
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tionary period of employment before the April 1 layoff
Among those who returned to work under these circum
stances was discriminatee Charles Wolfenbarger who
was rehired on October 13
On his first day back, Wolfenbarger and two other
former employees who were being rehired met with sev
eral management officials to discuss the terms and condi
tions of their return to the plant Wolfenbarger, who was
making $4 50 an hour when he was laid off on April 1,
was rehired at the rate of $4 25 and went back to work
on the first shift He had been a second shift employee
during his former employment
The three employees were told that, because they had
been in layoff status longer than they had worked for the
Company during their previous terms of service, they
were being hired as new employees and would undergo
another 60 day probationary period which all new hires
must serve before becoming what the Company calls
seniority employees Gearhart told the employees that
things had changed at the plant He warned them
Cross the line and you will be fired' The practical
effect of being probationary employees rather than a reg
ular or seniority employee is that they were subject to
discharge for offenses which otherwise might result in
the imposition of lesser punishment
Respondent published a personnel policy statement to
employees dated January 29, 1987, which sets up a point
system for job infractions The policy outlined is inappli
cable to probationary employees Points are assessed for
various kinds of infractions and progressive discipline is
administered in five steps as points are accumulated The
fifth step is discharge The types of minor infractions to
which this system is addressed were enumerated in rules
and regulations which were posted 2 days before the
system was announced Ten itemized infractions were
characterized as minor and were within the point
system They included various kinds of absenteeism,
making or causing excessive scrap failure to wear proper
clothing, failure to follow work instructions and similar
deficiencies The published rules and regulations also
enumerated 19 examples of gross misconduct, which
included disregard of safety rules or safety practices de
struction or abuse of company property and several
other matters
During his first 2 weeks of reemployment Wolfen
barger was late in arriving at work on two occasions and
was verbally warned about these infractions Higgs
warned Wolfenbarger that he was a probationary em
ployee and that if he was late to work again he would
be fired A written notation was placed in his personnel
file reciting that verbal warnings had been given for
these violations of company rules There is no evidence
of absenteeism on his part thereafter On November 23,
he was written up for two job related infractions On
November 18 he had accidentally run a die without a
blank in it 10 The warning recited that Wolfenbarger
10 A pressing machine operator is assigned to place a metal blank in his
press on top of a die which is bolted to the machine The press comes
down on the blank and stamps it into the desired format The item is then
removed by the operator and another blank is inserted to repeat the proc
ess An operator is expected to produce four or five parts per minute
failed to put a part in a die and it had run dry He also
ran dry or had a miss hit on November 23
On December 4, 1987, Wolfenbarger was discharged
about 2 p in in the afternoon for allowing a foreign
object to remain in the die when he caused the press to
stamp out a shock tower The press which Wolfenbarger
and another employee, Gerald Ingle, were operating in
tandem that day contained a die that produced the right
and left sides of a shock tower One employee was as
signed to one side of the press and the other was as
signed to be his partner on the other side of the press
Wolfenbarger's side produced the right portion of the
shock tower and Ingle s produced the left portion
Under standard operating procedure each operator
uses a wire rod, called a slug puncher, for the purpose of
cleaning scrap from around the die and for punching out
by hand any circular slugs which might be left in the
newly formed shock tower by the die as it struck the
metal blank A slug puncher is not a tool that is issued
but is merely a piece of excess wire which is bent and
shaped to perform this function Wolfenbarger noticed a
black slug puncher in the scrap area around his machine,
picked it up, and laid it by the side of the press During
the morning he and Ingle had shared the use of a single
brown rod but after lunch Wolfenbarger began to use
the black rod he had found About an hour after lunch,
Wolfenbarger removed a completed shock tower from
the press and noticed a ridge in the shape of a slug
puncher indented in the body of the part Part of the
wire from the slug puncher was in the part and some
was in the die He recognized it as part of the rod both
operators had been sharing earlier in the day He wiped
off the die ran another part, and kept the machine in
production for another hour or so He removed the
shock tower with the indented crease and placed it with
the scrap pile in the area of his machine 1 i Wolfenbarger
testified that he did not know how a piece of rod got
into the die
About an hour later Gearhart came around saw the
defective shock tower on the floor, and asked Wolfen
barger what had happened Wolfenbarger replied that he
did not know He also asked Ingle what had happened
and Ingle said that he did not know He held up the slug
puncher he was using to indicate that the rod that had
caused the crease in the right shock tower that Gearhart
was holding was not his Gearhart called William
Ludban, the toolroom supervisor, to the scene and asked
him to look at the die Ludban noticed that there was an
impression in the die and on the part which it had pro
duced and saw a piece of high tensile welding rod lying
near the bed of the press outside the die He inspected
the press and checked with the quality control inspectors
who reported that the parts which had been run since
the rod was initially discovered had a burr on one hole
but that these were within limits of acceptability so the
11 When a press produces a defective part the part is placed at the
foot of the machine and is ultimately collected painted with an identify
ing mark and saved by the Company in its storage room The purpose of
saving these parts is to put the Company in a position to support any ad
verse evaluation of an operators performance should it be called on to
do so
LAKEPARK INDUSTRIES
press was put back into operation and it continued to
stamp out shock towers for the rest of the day The die
was slated to be removed from the production line at the
end of that day and subjected to periodic maintenance
since the scheduled production run for shock towers had
been completed 12 Gearhart asked Wolfenbarger how
this irregularity had occurred Wolfenbarger replied that
he had flipped a part over in removing it from the press,
saw the indentation in the bottom of the part, and wiped
it off Gearhart left the area temporarily, came back with
another employee, Alfred Campbell, and put Campbell
to work on the press He took Wolfenbarger with him to
the break area
On arriving in the break area Gearhart informed Wol
fenbarger that he was being discharged as an unsatisfac
tory probationary employee He was told to clean out his
locker and turn in his safety equipment Higgs arrived at
this scene to give Wolfenbarger his final paycheck and
asked Wolfenbarger if he knew why he was being termi
nated Wolfenbarger said it was because he was an unsat
isfactory probationary employee Higgs then told him
that he had been warned about tardiness, running dry,
and leaving his work station early Wolfenbarger object
ed, saying that he had never been warned about leaving
his work station early Gearhart spoke up to remind him
that he had warned Wolfenbarger, Rick Robinson, and
others Wolfenbarger told him Freelyn, I think you are
making a mistake You never warned me Higgs then
added, You also ran a foreign object through the
press Wolfenbarger denied the charge I never ran
nothing through the press I didn t put it there I don t
know how it got there ' Higgs asked Wolfenbarger to
sign a form indicating that he had voluntarily quit his
job Wolfenbarger refused so Higgs handed him his pay
check and Wolfenbarger left the plant
Gearhart placed the following statement , dated De
cember 4, 1987, at 1 50 p in, in Wolfenbarger's personnel
file
Mr Charles Wolfenbarger Clock #311 was ter
minated for being an unsatisfactory probationary
employee for the following reasons
1 Tardiness
2 Leaving his work station before break, lunch,
or the end of his shift
3 Failure to follow work instructions on three
different occasions
See attached documentation
The documentation in question were the writeups that
had been placed in the file on previous occasions
The Union signed a request to proceed so the repre
sentation petition filed on April 30 1987, was processed
to an election on February 25, 1988 The Union lost by a
vote of 32 to 14
12 After the die was removed to the tooiroom for routine maintenance
additional reworking had to be performed to remove the crease caused
by the slug puncher The toolroom supervisor estimated that this damage
caused an additional 63 hours of maintenance work
II ANALYSIS AND CONCLUSIONS
459
A Antiunion Animus and Independent Violations of
Section 8(a)(1) of the Act
(a) In addition to specific acts and statements alleged
by the General Counsel to be violations of the Act, the
Respondent, through its agents , made various statements
which, while not alleged as violations, evidence a deep
and abiding hostility on its part toward the unionization
of its plant and a basically lawless attitude toward com
batting that activity These statements set a background
for this case against which the legality of other activity
can and should be measured For that reason they
should be pointed out at the beginning of any discussion
of the issues in this case
When rumors of unionization first began to surface,
Higgs suggested to Drossman that he mention to certain
procompany employees the possibility that the annual
bonus might be withheld It was his hope that, after cir
culating this suggestion among the work force, they
might chill the union activity which he perceived to be
in progress Drossman followed through on the sugges
tion In fact the bonus in question was paid but the strat
egy to shape up employees in this manner clearly reflect
ed the attitude and disposition of the Respondent Higgs'
statement over the phone to Drossman on the day of the
mass layoff-that Drossman should be sure to tell em
ployees that the layoff was permanent because temporar
ily laid off employees could still vote in a representation
election-was another display of the same mentality at
work The same could be said for Higgs further state
ment in that telephone conversation to the effect that
management had originally decided to fire 29 employees
but had added 2 more names to the list because the least
senior employees on a list of 29 were 2 union adherents
Two more names were being added to conceal the real
motivation behind the layoff
A few days later Higgs told Drossman that the Com
pany had given orders to lay off more employees, includ
ing two union supporters This was another display of
animus , as was Graham s reported statement that moving
some machinery out the door might wake people up
There are not many close questions in this case but
whenever they arise, repeated evidence of a devious and
on going antiunion purpose lends character to what oc
curred
(b) In February 1987 Supervisor Beal told Shepherd
that the Company was building a new plant in Michigan
and would relocate the LPI operation if a union ever
came in This statement is a threat to close the plant in
the event of unionization and a violation of Section
8(a)(1) of the Act
(c) On the Saturday before the layoff Higgs his wife
and Gearhart made a sudden and impromptu visit to the
L & K Motel in Willard An organizing committee meet
ing was taking place at that motel at the same time The
Respondents position is that it was purely coincidental
that these two events happened simultaneously Higgs
testified that he did not know of any scheduled union
meeting and that he went to the motel to make a room
reservation for a prospective employee who was coming
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to town Instead of merely accomplishing the stated pur
pose for the visit and moving on Higgs and his party
stayed at the motel for a period of 20-30 minutes and
later returned His explanation was, on its face, some
what suspect, but coupled with a statement made to
Drossman that he would use the making of a room reser
vation as a pretext to find out what was going on at the
union meeting , I conclude that the Respondent was on
this occasion, engaging in surveillance of the union ac
tivities of its employees Such activity is a violation of
Section 8(a)(1) of the Act
(d) Four days later, the Respondent engaged in the
same activity a second time A short, informal, and
public gathering of union supporters took place in front
of a school located a short distance from the plant The
employees involved in this meeting gathered there in the
early morning hours of April 1 shortly after the end of
the second shift Both Gearhart and Higgs drove past
this gathering and slowed down as they did so Howev
er, they were not content to make one pass but turned
around and went by again This activity was repeated by
Higgs when the gathering moved to another location a
few blocks away The late night driving patterns of
Higgs and Gearhart on this occasion make it abundantly
clear that they were once again snooping about for infor
mation relating to the union activities of Respondent s
employees Such activity amounts to illegal surveillance
and is a further violation of Section 8(a)(1) of the Act
(e) I have credited the testimony of one of the employ
ees who was a party to these late night union gatherings
that after they broke up, Higgs followed him home,
turned around, and drove slowly past his house a second
time This event took place about 2 a in By engaging in
surveillance of the union activities of Terry Lee Curtis in
this manner the Respondent violated Section 8(a)(1) of
the Act
(f) When Gearhart pointed his finger at Wolfenbarger,
who was then wearing two union buttons, and told Wol
fenbarger that he would have his ass if he caught Wol
fenbarger soliciting for the Union on company time the
Respondent violated Section 8(a)(1) of the Act Respond
ent did not have a no solicitation rule in effect and there
is no evidence that Wolfenbarger in fact had been solicit
ing for the Union, either on company time or any other
time Gearhart s remark was wholly gratuitous and was
uttered in an intimidating manner in the presence of
other employees
B The Layoff of 31 Employees on April 1
On Monday , March 30 the Union sent the Respondent
a telegram informing it that the Union was organizing
the LPI plant On Wednesday , April 1 the Respondent
laid off 31 of its 68 production and maintenance employ
ees 15 of whom had been hired during the preceding 2
weeks The Respondent would have us believe that this
was another coincidence The business necessity ad
vanced by the Respondent as its excuse for the layoff
was the loss of jobs owing to a transfer of work from the
LPI plant to other plants owned by the same employer
Unlike economic justifications often proffered by em
ployers as a defense to an unfair labor practice charge
the loss of work experienced by the Respondent in this
case was not occasioned by impersonal market forces
above and beyond its control but by a business decision
wholly within its control
I discredit the testimony of Higgs and Graham, both
of whom were untruthful witnesses, when they stated
that the layoff in question was long in the making Re
spondent experienced an employee turnover of five or
six persons per week The fact that until April 1 it kept
hiring new people while it was losing others indicates
quite clearly that, until the day it received the Union s
telegram, the Company had no thought of laying off
anyone There is not a whit of corroboration for the tes
timony of Higgs and Graham to the contrary, and there
is the credited statement of Drossman, who was in
charge of material purchasing for the LPI operation, that
he was given no inkling of a layoff until a day or two
before it occurred There had been talk over a consider
able period of time about transferring one or two specific
jobs to other locations, but such transfers were common
place at LPI and had never before occasioned any pre
cipitous reduction in the work force Higgs statement to
Drossman to the effect that the employees should be told
that the layoff was permanent because temporarily laid
off employees could vote in a representation election re
solves any lingering doubt as to the motivation which
prompted this massive housecleaning Immediately fol
lowing the April 1 layoffs, the Respondent shut down
for 2 days for its regular annual inventory When pro
duction resumed on the following Monday Graham was
at the plant with a labor relations consultant to address
the remaining work force Central to his message was
that a union was unnecessary at LPI and that the Com
pany and its employees could work out any differences
without the intrusion of an outsider
There is no merit to the Respondents argument that
the layoff could not be discriminatorily motivated inas
much as most of the laid off employees were not union
members In support of this contention the Company
points out that among the 31 who were terminated only
the names of Dale Wilson and Charles Wolfenbarger ap
peared on the union telegrams disclosing the identities of
its organizing committee In the case of a discrimmatori
ly motivated mass discharge the selection of employees
to be terminated is unimportant ACTIV Industries 277
NLRB 356 (1985) The theory of the General Counsel
well supported by the evidence, is that some employees
were discharged in order to intimidate others who re
mained In such an instance, the fact that those who
were used as the instruments for intimidation were essen
tially by standers to the incipient union effort (as many
might be, since they had barely joined the Company),
makes them discriminatees j ust as much as they would be
if they were part of the leadership of the campaign Ac
cordingly by discharging 31 employees on April 1, 1987
the Respondent violated Section 8(a)(1) and (3) of the
Act 13
' 9 Those laid off on April I were Calloway Jones Kerry Hale Jackie
Dewitt Nick Kollar David Mathias Mike Stockmaster Hayden Ste
phens Hillard Branham Rick Brant Saul Chavez Joe Mack Doug Mul
lins Jim Artz Tim Stumbo Tom Perkins Ron Jones Arthur Norman
Continued
LAKEPARK INDUSTRIES
C The Assignment of More Arduous Work to Union
Supporters
There seems to be general agreement that the most ar
duous job in the LPI plant involves the production of
cross members (job 881) The bulk of the production jobs
at this plant involves the use of stamping machines
Cross members are the heaviest item which must be in
serted and removed repeatedly from these machines in
the production process When the plant resumed produc
tion Higgs and Drossman decided to place all union
sympathizers on the day shift where they could be
watched more easily Drossman testified credibly that
known union adherents were assigned to job 881 Others
credibly testified that the only employees working on
that line when production resumed were union support
ers Again, I do not believe this to be a coincidence The
fact that they were later transferred to other lines when
the 881 job was finished and the Respondent ran out of
particularly arduous tasks for union supporters in no way
absolves the Respondent from the violation that oc
curred by virtue of the initial assignment By assigning
more arduous work to employees in reprisal for their ac
tivities in support of the Union, the Respondent violated
Section 8(a)(1) of the Act
D The Discharge of Charles Wolfenbarger on
December 4 1987
Beginning in October 1987, the Respondent began to
recall the employees it had laid off on April 1 This
action was prompted by several considerations One was
the fact that continued employee attrition during the
summer months had reduced its postlayoff work force
from 37 employees to 22 Another factor was the deci
sion of the Respondent to assign new jobs to the LPI
plant This decision involved both new work that the
Company had acquired and the reassignment of produc
tion jobs that had been taken away in April Over a
period of weeks all the 31 laid off employees were re
called but only 16 came back One of these was Charles
Wolfenbarger, who returned to work on the first shift on
October 13 1987 after an absence of about 6 1/2
months
Respondents personnel policy statement provides that
new employees are regarded during their first 60 days of
employment as probationary employees At the end of
this period of time they come to be so called seniority
employees and are entitled under the manual to certain
protections not afforded during their initial hiring in
period All the employees who were recalled during the
first weeks in October, including Wolfenbarger were re
hired as probationary employees on the theory that they
had been away from the plant longer than they had been
working and thus were in need of retraining Wolfen
barger had completed his probationary period before the
first layoff Returning as a probationary employee meant
that he forfeited the seniority he had accrued during
February and March a valuable asset in a plant like LPI,
Michael Mills Angie Lacey Charles Wolfenbarger David Arthur Arvel
Buffington Teresa Hale Freddie Tuttle Richard Haas Rod Williams
Eddie Campbell Jeff Van Meter Wayne Breitigan Dale Wilson and
Kevin Archer
461
which has experienced rapid turnover It also meant that
he went back to work at $4 25 per hour, which was 25
cents per hour less than he was earning at the time of the
layoff Moreover, he did not return to the same shift he
was working at the time of the layoff Most pertinent to
this case is the fact that he was not subject to the pro
gressive discipline system outlined in the Company s
manual and hence was subject to discharge for any of
fense or shortcoming, however trivial, without recourse
to any protection, however minimal, which the manual
might provide Gearhart admitted in testimony given
during the resumed portion of this case that probationary
employees were held to a higher standard of conduct
than regular or seniority employees and were fired
more readily than others, at least as far as attendance re
lated deficiencies were concerned No one has seriously
argued that either Wolfenbarger or any other recalled
employee was reinstated to his former or substantially
equivalent position, as the Board requires in the case of
discriminatory discharges and layoffs and I find and
conclude that they were not
On his first day back on the job, Wolfenbarger and
two other recalled employees met with Higgs and Gear
hart concerning their status They were told that they
were probationary employees and that the point system
governing progressive discipline did not apply to them
In the course of this discussion, Gearhart, the man who
had warned Wolfenbarger some months earlier that his
ass was his if he caught Wolfenbarger soliciting for the
Union on company time, told the recalled employees
that things had changed and cross the line and you 11 be
fired It is clear that Wolfenbarger as well as others
were grudgingly placed back on the company payroll It
is not too strained an inference to draw that the pending
Board case and a desire to toll possible backpay awards
played a role in the Respondent's recall decision
In a subsidiary argument the General Counsel con
tends that the failure of the Respondent to reinstate Wol
fenbarger and other discriminatees in the April layoff
was at least evidence of continuing discriminatory intent
He also argues that discharging Wolfenbarger in accord
ance with the more stringent standards applied to proba
tionary employees was in and of itself an unlawful act
since Wolfenbarger a discriminatee was entitled to be
reinstated as a seniority employee and treated accord
ingly Respondent contends that the discharge that oc
curred on December 4 would have taken place, regard
less of whether Wolfenbarger was a fully reinstated "se
niority employee because the difference in disciplinary
standards of probationary versus regular employees ap
plied only to minor offenses, principally attendance relat
ed infractions and Wolfenbarger was discharged for a
serious matter involving a grave breach of safety There
is little doubt that placing the April discriminatees on
probationary status and thus at the bottom of any seniori
ty listing they might eventually achieve makes them par
ticularly vulnerable to the same kind of layoff they expe
rienced before being recalled They will again be among
the first to go in the event that the Respondent seeks to
shake up its work force as it did in April 1987, when it
first received word of an organizing campaign More
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
over, Gearhart s warning to Wolfenbarger and his col
leagues on their first day back at work drew no distinc
tions between major and minor offenses His admonition
not to cross the line or else contained nothing of the re
fined explanation which the Respondent offered at the
hearing and in its brief It is clear from the evidence in
this case that Wolfenbarger, a known union supporter,
was a marked man from the time he returned to the LPI
plant and that it was just a matter of time until he would
be terminated again That time arose just a week before
he would have completed his second probationary period
and advanced again to the more protected ranks of se
niority" or regular employees
On October 19 and again on October 24 Wolfenbarger
was late to work 15 minutes and 35 minutes respectively
For these infractions a written warning was placed in his
personnel file, signed by the plant manager, which con
tained the statement Explained the seriousness of this,
and explained to the employee [again] that he is a proba
tionary employee The written warning was witnessed
and apparently endorsed by Gary Isaacs, the first shift
supervisor Wolfenbarger was not tardy again during his
7 week tenure in the fall of 1987 Had he been a regular
employee with such a record, he would not even have
received any disciplinary points under the Respondent's
progressive system since a third tardiness did not occur
within a 30 day period, or at all
The paper trail which started in late October was
lengthened on December 2, 2 days before Wolfenbarger
was discharged On this date he and three other employ
ees returned from a midmorning break found that they
were without work gloves, and went to the crib to get
them They were away from their machines for 5 min
utes or less on this errand For leaving their machines on
this errand the other employees were given a verbal
warning A written warning signed by Gearhart, was
placed in Wolfenbarger s file in which he was made to
look like the `heavy" in this essentially trivial event It
read
I verbally warned Charles Wolfenbarger, Don
Miller, Arvel Johnson, and Kevin Archer about
leaving their work stations prior to break lunch or
the end of their shift
Mr Wolfenbarger left his work station the 808
flange die, and went to the crib for gloves He was
followed by Kevin Archer, Don Miller and Arvel
Johnson shutting down the 808 line
Employees working the stamping machines normally
wear gloves in the performance of their duties Gearhart
stated that they should have provided themselves with
gloves on their own time or if they found that they
were without gloves during the operation of the line,
they should have summoned him to the machine and he
would have obtained gloves for them 14
14 Assuming that fetching work gloves is a violation of company work
rules-and the Company is the sole interpreter and judge of its work
rules in an unorganized setting-this offense amounts to a two point vio
lation for any regular employee covered by the Respondents progressive
discipline system
In the operation of stamping machines, certain mis
takes occur from time to time called dry runs or
miss hits A dry run occurs when an operator forgets
to put a blank in the press and causes it to come all the
way down on the die No finished part is produced A
miss hit occurs when the blank is inserted into the ma
chine askew so that the die is stamped into the blank at
an improper location 15 In either event, the Respondent
requires an operator to stop the machine and notify his
foreman or the tool room supervisor so that the machine
can be checked Respondent's tool room supervisor, Wil
Liam C Ludban, admitted that the checking procedure is
not always followed and, from time to time, an operator
will simply continue to run the machine after a dry run
or a miss hit has occurred
Wolfenbarger s machine had a dry run on November
18 and a miss hit on November 23 He was given verbal
warnings on both occasions and a written memo to that
effect was placed in his file by Gearhart In addition to
reciting events which occurred, Gearhart's memo of No
vember 23 contained a generalized explanatory or argu
mentative comment that this creates damage to the die
and a safety hazzard [sic] to himself and fellow work
ers According to Ludban, what normally follows if
several of these incidents occur involving the same oper
ator is that, after the machine is checked out, later we
will sit down and talk to that person He knew of no
instance when an individual had been discharged for cre
ating a miss hit, a dry run, or even several of them
Ludban was reluctant to quantify the frequence with
which miss hits occur at the LPI factory but stated that
they might range from none in an entire week to several
in the course of the day
As recited above on December 4 following the lunch
break Wolfenbarger noticed that a slug puncher had
been left in his side of the stamping machine and had
made an indentation on a part that was being stamped
out The part contained an indentation made by the press
as it stamped the die into the metal blank He removed
the defective part, wiped off the die, and continued to
run the machine An hour later Gearhart discovered the
defective part lying near the machine, stopped the oper
ation , and asked Wolfenbarger what had happened Wol
fenbarger said that he did not know Soon thereafter
Ludban and others inspected the stamping machine and
saw a slight indentation on the die itself but allowed
production to continue because the slight burr it made in
the shock towers was within limits tolerated by quality
control inspectors
Wolfenbarger was immediately discharged The notifi
cation placed in his file recited that he was being dis
charged for tardiness leaving his work station before a
break, and failure to follow work instructions on three
different occasions While this was the Respondent s
original position it eventually modified its reasons for
discharge at the hearing Higgs admitted that the first
items recited in the notice would not have caused the
Company to discharge Wolfenbarger In their view the
15 It would appear from a careful reading of the notice placed in Wol
fenbarger s file on November 23 that the terms dry run and miss hit
were sometimes used interchangeably
LAKEPARK INDUSTRIES
essence of Wolfenbarger s serious shortcoming was that
he created a safety hazard by allowing the slug puncher
to get into the stamping machine and by failing to notify
supervision after removing the foreign object so that the
machine could be checked out During the hearing the
Respondent advanced other related reasons justifying its
action but it ultimately backed away from them For in
stance, there was a suggestion that Wolfenbarger dam
aged an entire production run by allowing the slug
puncher to cause an indentation in the die However,
when it appeared that the Respondent had continued to
run an additional 300 shock towers during the course of
the afternoon in question, this contention was laid aside
Respondent also placed into the record a great deal of
evidence to the effect that Wolfenbarger s mistake had
cost the Company dearly To be precise the Company
removed the die at the end of the day because it was fin
ished producing the part in question and, during routine
maintenance it expended some 63 hours over and above
normal polishing to remove the ridge in the die caused
by the imprint of the slug puncher However, because
none of this was known to Higgs and Gearhart when
they fired Wolfenbarger the argument amounted merely
to a makeweight and it was ultimately discarded
Respondent then settled on breach of safety as the crit
ical element in Wolfenbarger s misconduct However,
there is no suggestion of a safety violation in the dis
charge notice that was handed to Wolfenbarger and
placed in his file on the afternoon he was fired Faced
with the fact that it had never fired an employee for a
miss hit, a dry run, or for failing to report one of these
incidents to a supervisor, Respondent sought to avoid the
contention of disparate treatment by painting the slug
puncher incident as a unique and unprecedented threat to
the safety of the plant and to employees working there
No such threat is apparent from the detailed description
in the record of what occurred 16 After Wolfenbarger
discovered the rod in the machine he simply wiped the
die clean and continued to run the machine It operated
without difficulty for an hour and would have continued
to operate without interruption for the balance of the
day if Gearhart had not spotted the defective part which
Wolfenbarger had removed and shut the machine down
Even if a safety violation were made out by the facts of
this case, Gearhart testified that he never knew of
anyone who had been discharged for that reason The
two instances advanced by the Respondent as safety re
lated discharges were instances of reckless horseplay
which were categorically different from the events in
this case, events which spell out nothing more than rou
tine negligence which the Respondent has routinely ac
commodated as an unavoidable aspect of its production
activity In light of these considerations, I conclude that
the Respondent discriminatorily discharged Charles Wol
fenbarger on December 4, 1987 for the second time and
16 Gearhart was asked whether he thought that Wolfenbarger deliber
ately attempted to sabotage the press by placing the slug puncher on the
die He declined to make that allegation However Higgs hinted around
without actually accusing Wolfenbarger of intentional misconduct that
this was what might really have occurred The Respondent took no such
position in its brief
463
in so doing once again violated Section 8 (a)(1) and (3)
of the Act
CONCLUSIONS OF LAW
1 Lakepark Industries Inc is now, and at all times
material has been, an employer engaged in commerce
within the meaning of Section 2(2) of the Act
2 International Union, Allied Industrial Workers of
America AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act
3 By discriminatonly laying off 31 employees on
April 1, 1987, and by discriminatorily discharging
Charles Wolfenbarger on December 4, 1987, the Re
spondent violated Section 8(a)(3) of the Act
4 By the acts and conduct set forth above in Conclu
sions of Law 3, by threatening employees with discharge
or other unnamed reprisals if they engage in lawful union
solicitation on company premises, by engaging in surveil
lance of the union activities of its employees, and by as
signing more onerous work to employees in reprisal for
the sympathies with or activities on behalf of the Union,
the Respondent violated Section 8(a)(1) of the Act
5 These acts and conduct have a close, intimate, and
substantial effect on the free flow of commerce within
the meaning of Section 2(2), (6), and (7) of the Act
REMEDY
Having found that the Respondent has committed vari
ous unfair labor practices I will recommend that it be
required to cease and desist and to take other actions de
signed to effectuate the purposes and policies of the Act
Because the violations of the Act found are repeated
pervasive and serious and evidence a fixed disposition
on the part of this Respondent to behave in a manner to
tally at odds with the requirements of an important con
gressional mandate, I will recommend to the Board a so
called broad 8(a)(1) remedy designed to suppress any and
all violations of that section of the Act Hickmott Foods
242 NLRB 1357 ( 1979) I will recommend to the Board
that the Respondent be required to reinstate the 31 em
ployees who were laid off on April 1 1987 including
but not limited to Charles Wolfenbarger and that these
employees be made whole for any loss of pay or benefits
which they may have suffered by reason of the discrimi
nations found in accordance with the formula set forth in
the Woolworth case 17 with interest thereon computed at
the short term Federal rate used to compute interest on
underpayments and overpayments of Federal income
taxes under the Tax Reform Act of 1986 New Horizons
for the Retarded, 283 NLRB 1173 ( 1980) The recommen
dation relating to the reinstatement of Wolfenbarger
would be the same regardless of whether the December
4 1987 discharge is deemed unlawful, since the Respond
ent has never fulfilled its reinstatement obligation to
Wolfenbarger arising out of the earlier discrimination
and should not be excused from that obligation by the
happening of any subsequent events I will also recom
mend that the Respondent be required to post the usual
17 F W Woolworth Co 90 NLRB 289 (1950)
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice advising its employees of their rights and of the
results of this case
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edis
ORDER
The Respondent, Lakepark Industries, Inc, Green
wich, Ohio its officers agents successors, and assigns,
shall
1 Cease and desist from
(a) Engaging in the surveillance of the union activities
of its employees
(b) Assigning more onerous work to employees in re
prisal for their union activities
(c) Threatening employees with discharge or other un
named reprisals for engaging in lawful union solicitation
on company premises
(d) Discouraging membership in or activities on behalf
of International Union, Allied Industrial Workers of
America, AFL-CIO, or any other labor organization by
laying off or discharging employees, or by otherwise dis
criminating against them in their hire or tenure
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar
anteed them by Section 7 of the Act
18 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to the 31 employees immediate and full rein
statement to their former jobs or if those jobs no longer
exist, to substantially equivalent positions, without preju
dice to their seniority or any other rights or privileges
previously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of the dis
crimination against them in the manner set forth in the
remedy section of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Post at the Respondents Greenwich, Ohio plant
copies of the attached notice marked Appendix 19
Copies of the notice, on forms provided by the Regional
Director for Region 8 after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
19 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 Nation
al 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