Laminated Products, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1989

294 N.L.R.B. 816 (N.L.R.B. 1989)

816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laminated Products , Inc. and Joseph E. Robinson,
Jr. and United Brotherhood of Carpenters &
Joiners of America , Local 161 . Cases 30-CA-
9561 and 30-CA-9615
June 8, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On September 30, 1988, Administrative Law
Judge Robert T. Wallace issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed cross-
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,' and
conclusions2 and to adopt the recommended
Order.
October 15 and 16. They involve allegations that Re-
spondent Employer discharged an employee (Robinson)
and reassigned another (Larry Rightler) to more onerous
duties in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act. Also, it is alleged that Re-
spondent conducted a survey of employees' views and
refused to recognize the Union's designated steward in
violation of Section 8(a)(1) and (5) of the Act.
Based on the entire record, including my observation
of the witnesses and after due consideration of briefs
filed by the General Counsel and Respondent, I make
the following findings, conclusions, and recommended
Order.
JURISDICTION
It is admitted and I find that Respondent, a corpora-
tion engaged in the manufacture and sale of cabinetry
and related items at a plant in Kenosha, Wisconsin, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
FINDINGS OF FACT
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Laminated
Products, Inc., Kenosha, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings 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
2 The judge, in accord with Wright Line, 251 NLRB 1083 (1980), enfd
662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), found that
the Respondent would not have discharged employee Joseph Robinson
absent Robinson 's union activism We agree Under these circumstances,
we need not reach the issue of whether his conduct with respect to the
paychecks constituted unprotected activity. Member Johansen, however,
would find his conduct protected
Paul Bosanac, Esq., for the General Counsel.
Ray Blankenship and Gary Wang (Blankenship & Associ-
ates), of Greenwood, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge.
Upon a charge filed on April 13, 1987,' by Robinson and
a charge filed on May 26 by the Union, separate com-
plaints were issued on June 25. The cases were heard by
me on a consolidated record in Kenosha, Wisconsin, on
' All dates are in 1987 unless otherwise indicated
I. BACKGROUND
Dan Molgaard, as superintendent, is the primary offi-
cer in charge of day-to-day management of the plant.
Reporting to him are approximately 10 "leadmen," all of
whom are conceded to be supervisors within the mean-
ing of Section 2(11) of the Act.
As of the date of trial Respondent had 119 employees,
up from 70 at the beginning of the year They work on
either of two shifts, the first beginning at 6 a.m. and the
second at 2:30 p.m.
The Union has represented Respondent's employees
since 1966. The most recent collective-bargaining agree-
ment took effect for a 4-year period commencing on
April 19, 1985. Among other things, that agreement con-
tains union-security/dues-checkoff provisions and author-
izes "merit" raises on a quarterly basis with the amount
and beneficiary left to Respondent's discretion. As there
are no job classifications, use of the latter authorization
has resulted in employees receiving different hourly rates
for performing equivalent tasks.
Most of the leadmen are members of the Union, in-
cluding Mike Anderson who was the sole steward at the
plant for 7 years until he resigned from that position on
May 6.2
Respondent states that over the years it "has had a
peaceful and good relationship with the Union without
any animosity or hostilities directed toward the Union."
2 The collective-bargaining agreement expressly excludes foremen from
being stewards Shortly after his appointment as leadman in April of
1986, Anderson asked Union Representative Ray Jacobson if he could
continue to serve as steward. The latter asked "Are you a foreman", and
Anderson replied, "No, I'm considered a leadman " Jacobson didn't ask
about Anderson's duties Instead, he advised Anderson not to worry
about it
294 NLRB No. 69
LAMINATED PRODUCTS
A. Robinson's Discharge
Robinson began his employment with Respondent in
1983 and worked primarily as a cabinetmaker. For a
brief period in 1986, he served as a leadman on the
second shift, but at his request, he returned to cabinet-
making on the first shift.
On March 1 Robinson was the only employee of Re-
spondent who attended a regularly scheduled union
meeting in Kenosha. It was the first such meeting that he
had attended and he went because he and other employ-
ees of Respondent had expressed to each other dissatis-
faction with the way they were being represented by the
Union He there voiced that perception to Business
Agent Jacobson, and the latter responded that he was
aware of "our problem" and intended to hold a special
meeting later in the month dust for employees of Re-
spondent.
The special meeting occurred on or about March 25.
Ten of Respondent's employees-all union members-re-
sponded to mailed invitations. These included Robinson,
Larry Rightler, Supervisor/Steward Anderson, and Plant
Production Coordinator Dave Robilard.3 Jacobson ex-
plained to them that Local 161 was a weak "craft" divi-
sion of the Union, and he opined that they would be
served more aggressively by its "industrial" division.
Also, he suggested that they choose a representative to
attend a convention of the industrial division in Oshkosh,
Wisconsin, on April 22-24, there to obtain more informa-
tion and special training as steward in that division Rob-
inson and Rightler were the only volunteers. An election
was held and the two having each received the same
number of votes, it was decided that both should go.
After the meeting Rightler spoke to Robinson about
how unfair it was that another employee (Dominque
Allozi) received more pay than he (Rightler).
Two other employees (Chris Cutler and "Frank") ap-
proached Robinson as he was reporting for work the
next day. Cutler said he had heard Robinson was the
"underground" steward and he proceeded to complain
that he was getting less money than a less senior fellow
worker. Frank expressed a similar concern.
The following Thursday (April 2) was payday. At
around 7 a m. Robinson told his leadman (Mark Davis)
that he and Rightler had been chosen to go to the union
convention at Oshkosh, and he asked for time off. Davis
replied that he would check and get back to him.
Robinson's work station was located approximately 20
to 30 feet from the rack where timecards were kept The
rack was on a wall adjacent to an exterior door, and em-
ployees and salespersons passed by it on their way into
and out of the plant. At about 8 a in. Robinson observed
Molgaard place paychecks in the rack behind each time-
card 4 The checks were folded" over stubs containing
payroll data.
3 Robilard reports directly to Molgaard, has an office, and is expected
to attend meetings of leadmen While he is not shown to have had super-
visory authority, I find that he is a management official
" Employees were supposed to pick up their checks at the noon lunch
period, and not before
817
One hour later, Robinson decided to verify claimed
disparities in pay; and, after ascertaining that Molgaard
was 50 yards away and apparently preoccupied in his
office, he quickly went over to the rack and examined
certain stubs He did this by raising the checks slightly
above the timecards and then turning down a top corner
of the checks, thereby exposing pertinent pay data. On
returning to his machine he shared what he had learned
with another employee (Ron Stoddard).
Around noon, Molgaard walked over to Robinson and
asked if he had been looking at paychecks. When Robin-
son denied that he had done so, Molgaard fired him on
the spot stating, "don't lie, I saw you . what right do
you have looking at other peoples' paychecks . . . . I
don't need your kind here . . . pack up your tools and
get out."
At the trial Molgaard explained that he waited until
noon before confronting Robinson because he needed
time to think. He regarded pay data as confidential and
was "very much in turmoil" as to what he should do. He
made his decision at about 11.50 a.m. after being in-
formed by leadman Davis that "a lot" of employees were
complaining because Robinson was telling what others
were making. In his view Robinson's act in looking at
data on the stubs amounted to stealing company proper-
ty, one of two causes for immediate dismissal specified in
the union contract-the other being physical abuse of a
foreman or other employees.5
During the early half of 1986 checks were handed out
to employees by Molgaard or Production Coordinator
Robilard. Molgaard decided to put them behind time-
cards in order to benefit second-shift employees who
often asked for their checks prior to 2:30 p.m. Since that
change, no rule prohibiting employees' viewing of
others' paystubs has been promulgated. Employees have
never been asked to sign confidentiality statements and
they are free to reveal their rates of pay to each other.
Molgaard states that he would have made such data
available to the Union, but no request had been made.
Several witnessess testified credibly that employees
had fellow workers pick up their checks at the noon
break and sometimes earlier on paydays Molgaard states
he had no knowledge that that had occurred. Immediate-
ly after the Robinson incident he obviated any problem
by reverting to hand delivery of checks by management;
and in "writing up" the incident he stated that an addi-
tional reason for the discharge was Robinson's "mali-
ciously" talking about wage information with other em-
ployees.
Earlier in the day Molgaard had approved Robinson's
request for time off to attend the union convention in
Oshkosh (Tr. 114) and he knew the purpose was to find
5 The contract also sets forth a detailed set of rules and policies for
bidding, among other things, punching another's timecard, verbally abus-
ing a foreman, intentionally damaging company property, tardiness more
than three times in I month, and it provides for varying degrees of pun-
ishment first offenses result in a verbal warning, second offenses elicit
written reprimands, third offenses merit 3-day suspensions, and fourth of-
fenses warrant termination
6 Robinson, Rightler, and an individual (Thomas Birchell) who several
months prior to appearing had resigned to return to college after having
worked for Respondent for nearly 1 year
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
out more about being represented by the industrial
branch of the Union (tr. 277). His knowledge in that
regard assertedly had nothing to do with his decision to
fire Robinson.
B. The Survey
In mid-April approximately 1 week before the conven-
tion, a meeting of all employees was called at the plant.
General Manager Robert Block and Molgaard first spoke
about a proposed new benefit whereby employees could
acquire up to 30 percent of the Company's stock. Mol-
gaard then proceeded to tell them that he knew they
were "very disgusted" with the kind of representation
they were getting from their Local, and that he knew
that "Larry" (Rightler) was going to Oshkosh to learn
what the industrial division of the Union had to offer.
After agreeing that they should have better representa-
tion, he offered to help them get a whole new union of
their own.7 He concluded by advising them that Ander-
son was stepping down as steward. Whereupon Ander-
son arose and said he would be looking for nominees to
replace himself. He said he thought it would be a good
idea to have separate stewards in each of the three main
departments. Rightler took issue with that suggestion
pointing out that Anderson knew from discussions at the
prior union meeting that the plant could have only one
steward.
Another meeting of the employees was held on May 6,
about 1 week after the convention and while Rightler
was on vacation. Prior to the meeting Molgaard and An-
derson cooperated in preparing a questionnaire designed
to elicit employee attitudes on a number of matters, as-
sertedly with Molgaard contributing questions relating
primarily to management and Anderson providing ques-
tions relevant to labor.8
As presented at the meeting, the survey had been
typed by a company clerk on company paper bearing an
embossed company logo. It contained 15 questions on
one page, each of which was to be answered either
"yes" or "no"9 and at the bottom of the page employees
in the cabinet department were asked to choose between
two candidates who had volunteered to be their "repre-
sentative."10 The bottom right hand corner bears the
legend, "Thank you for your vote on these important
issues-Mike Anderson."
During the first half-hour, Molgaard talked about
"changing insurances and different things," and at the
end of that period he left the meeting after stating that
"Mike had some stuff [i.e., union business] to go over
with you guys."
7I have credited Rightler's claim that Molgaard did indeed offer to
help the employees set up their "own union" His testimony in that
regard was clear, consistent , and apparently free of guile On the other
hand , Molgaard's response when asked whether he had made the offer
was rambling and evasive Tr 274-277
8 Molgaard states that they acted together in preparing the survey in
order to avoid extra nonproductive time attendant upon holding separate
meetings
9 The questions are set forth in Appendix A
10 Anderson explains that only one person volunteered from each of
the other two departments, and that their election was therefore automat-
lc
Anderson proceeded to distribute the survey. His ex-
planation to the assembled employees as to why it was
being taken was brief. He simply told them "We just
want to see where you are coming from [on relevant
issues]."
After writing their answers, the employees folded the
sheets and deposited them in a box that Anderson had
placed in the middle of the room. When voting was over
Anderson looked at the ballots but only for the purpose
of determining who won the contested election, and after
that was done Production Coordinator Robilard took the
sheets to his office, where he tallied the answers. He
then informed Molgaard and Anderson of the results,
and posted them on the bulletin board. Molgaard took no
action based on the survey. Anderson had not advised
the Union that the poll and vote was to be taken. Nei-
ther did he advise the Union about the results.
C. Rightler's Transfer
Rightler, with over 10 years service, is one of Re-
spondent's most senior employees. His primary job was
assembling miters in the countertop department, a job
which required several months of training and ability
skillfully to use a variety of power tools (routers, drills,
saber saws, etc.). According to his leadman (Scott Barth-
uly), he consistently did "a very good quality job."
Monday, May 4, was Rightler's last day at work prior
to his going on a 10-day vacation. At Barthuly's request
he punched in at 5 a.m. rather than 6 a.m.; and that early
reporting time normally meant working 9 hours until the
second shift arrived at 2:30 p.m. However, at about 6
a.m. he asked Barthuly for permission to leave at 1:30
p.m. in order to get a head start on his vacation. Barthu-
ly appeared to nod his head in assent. At 1:20 p.m., as
Rightler was putting away his tools, Barthuly asked
where he was going. Rightler reminded him of the earli-
er approval and said he had completed all available mi-
tering work. Barthuly denied having given permission
and pointed out that there was other work to be done.
Rightler told him he would discuss the matter when he
returned from vacation, and he proceeded to punch out
and leave the plant. Upset, Barthuly spoke to Molgaard
and at his suggestion made out a written disciplinary
report on Rightler. But having done so, he had a
"change of heart" and opted to discard the report.
During Rightler's absence, however, Barthuly intensi-
fied the training of three other employees who had been
learning miter assembly techniques by working with
Rightler; and when Rightler returned on May 15 he told
him to assist another employee (Scott Mink) in making
"end splashes"-a job that required minimal training and
could be learned by a new employee in a matter of
hours.
According to Rightler, no reason was provided for the
new assignment, so he assumed that Mink was temporari-
ly backlogged and needed help. But he became increas-
ingly concerned when, over a 3-week period, he found
that meeting the Company's need for splashes took only
about 16 hours per week and that he spent the rest of his
time doing odd jobs such as stockwork and sweeping
floors, jobs he had been too busy to do when working
LAMINATED PRODUCTS
on miters Approaching Barthuly he 'asked what was
going on. Barthuly replied that some of the men had
complained that you were belittling them, and that he
had reported their complaints to Molgaard who said I
was to put you in a different area. Rightler protested that
he had "got down" on other employees (i.e., urged them
to "get going") only occasionally when their work per-
formance caused delays affecting his production, and
that he had never intentionally belittled them. He also
added that he had considered Barthuly his friend and felt
hurt that he had not spoken up before about the com-
plaints With that, Barthuly volunteered that Rightler's
union activity could have been a factor in the transfer.
Barthuly's version is somewhat different. He explains
that employees' complaints about Rightler "started in
1986 . . were very widespread . . . daily . . and con-
tinuous" up until the day he was reassigned. He states
that the complaints related to his
belittling them, personally, [for reasons] which had
nothing to do with the job . . . [and as to job per-
formance, he] was telling them they were too slow,
they were making the same mistakes over and over
again. He . [kept] coming to me and telling me
that they were too young, that they weren't respon-
sible, couldn't listen [to him], which they weren't,
you know, [they] didn't have to. What really made
me mad was the personal attack he made,
and that he had spoken to Rightler about the problem
before.
When Rightler returned to his mitering position on
May 15, Barthuly claims to have told him he didn't want
him there anymore because "you can't get along with
anybody." He states he repeated that reason when, some-
time later, Rightler asked him why he was assigned to
end splashes, and added, "You took advantage of me by
personal attacks on employees." Asked whether he also
said the reassignment was Molgaard 's decision and
"could be related to your Union activity," Barthuly re-
sponded, "No."i l
Here too I was impressed by Rightler's apparent
candor and I credit his account. Barthuly, on the other
hand, did not inspire confidence. I found him hesitant
and evasive as a witness; and his testimony contains a
number of inconsistencies. For example, he asked Mol-
gaard's advice on how appropriately to punish Rightler
for leaving work 1 hour early on May 4, but claims not
to have done so on a matter (verbal abuse of employees)
which he regarded as more serious; and while he states
that he gave Rightler reasons for his transfer on May 15,
he did not remind Rightler of that circumstance when,
concededly, Rightler at a later date asked him "why?."
Instead, he answered the question as if for the first time.
i i Molgaard states that Barthuly made the decision to transfer
Rightler, that he (Molgaard) was not involved in it, and that Barthuly
told him he was taking the action because Rightler ridiculed other em-
ployees, was unwilling to work overtime when requested, and had a bad
attitude toward him (Barthuly) and to work
II. ANALYSIS
819
Robinson. In seeking to verify complaints of fellow
employees concerning perceived unfair disparities in
wage rates and in disseminating information to them in
that regard, Robinson patently was engaged in concerted
action relating to working conditions.12 The threshold
question, therefore, is whether the way in which he ob-
tained the information rendered his action unprotected; 13
and, since an employer, for lawful reasons, can treat
wage data as confidential and prohibit its general dis-
semination, 14 the question becomes whether, in the ab-
sence of any confidentiality rule, the employer neverthe-
less reasonably could consider as private, pay informa-
tion which it placed in a rack behind timecards of indi-
vidual employees in a manner whereby the pertinent data
was not in plain view of passers-by. 15
In my view the answer is yes. In so positioning the
checks the employer was using the timecard rack as a
means of communicating with employees on a one-to-one
basis Robinson was well aware of that intent. He ap-
proached the rack surreptitiously, and had to fold down
corners of checks to gain the desired information; and he
lied when Molgaard asked him about the incident.
No waiver of confidentiality arises from the circum-
stance that employees had fellow workers pick up their
checks in the absence any showing of acquiescence on
the part of the Employer. The Gray16 case is inapposite.
There, the Board found that index cards containing
names and telephone numbers of employees "were not
maintained in a place or manner that would indicate
management considered them to be of a private or confi-
dential nature "
But the matter does not end there because I am not
persuaded that Robinson's transgression (i.e., "stealing"
confidential data) would have been punished by the
severe penalty of discharge had it not been for his activ-
ism in trying to obtain more aggressive representation by
the Union's industrial division. Respondent had had a
longtime "peaceful and good" relationship with its craft
division and didn't want that situation to be disturbed. At
the time he fired Robinson, Plant Superintendent Mol-
gaard was aware that he (and Rightler) were spearhead-
ing a movement toward the industrial division by volun-
teering to attend its convention in Oshkosh. He knew
this because they had requested leave to do so and be-
cause he was fully informed of events that transpired
during the union meeting 1 week earlier at which they
were chosen to be representatives. 17 Robinson had
12 Jeannette Corp, 217 NLRB 653, 657 (1975), affil 532 F 2d 916 (3d
Cir 1976)
'a Macomb Daily, 260 NLRB 983 (1982), NLRB v Florida Steel Corp,
544 F 2d 896 (5th Cir 1977)
14 L G Williams Oil Co, 285 NLRB 418 (1987)
is Compare Ridgely Mfg Co, 207 NLRB 193, 196-197 (1973), enfd
510 F 2d 185 (D C Cir 1975), and New Process Co, 290 NLRB 704, 733-
734 (1988), where employees who attempted to memorize names on the
open front portion of timecards were held to be engaged in protected ac-
tivity
is Gray Flooring, 212 NLRB 668 (1974)
17 Supervisor Anderson and Production Coordinator Robilard were
present throughout that meeting and I infer that either or both informed
Molgaard In any event, Molgaard admitted telling employees prior to
Continued
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
worked for Respondent for nearly 4 years, and there is
no indication that he had ever been disciplined before
Indeed for a brief time in 1986 he served as a supervisor
on the second shift, and he left that position at his own
request to return to cabinetmaking on the first shift. Fur-
ther, the wage data he obtained, although placed in a
confidential area , was not secret. Employees were free to
discuss their rates of pay with each other and had the
Union requested the data Molgaard states that he would
have made it available. Finally, I find significant the fact
that Molgaard did not immediately confront Robinson
when he saw him browsing through the timecard rack.
Instead, he waited about 3 hours and acted only after
being informed that Robinson was generating discontent
among employees by citing disparities in rates of pay.
In these circumstances, I conclude that the extreme
punishment of discharge would not have been imposed
on Robinson for violating confidentiality of the timecard
rack18 but for his activism in seeking to obtain employee
support for more adequate union representation by dis-
seminating among them data perceived to show unfair
disparities in wages. I therefore find discrimination in
violation of Section 8(a)(3) and (1) of the Act.
The Survey. In the context of Molgaard's awareness
both of employee dissatisfaction with representation by
the craft division of the Union and the ongoing effort to
bring in the more aggressive industrial division, his firing
of an employee (Robinson) known to have been an activ-
ist, and his seeking to forestall the effort by proposing a
new benefit (stock ownership) and by offering to help
them set up an entirely new union, the questionnaire sub-
mitted to the employees on May 6 represents more than
a desire on the part of management "merely to determine
whether its personnel policies and benefit programs were
being properly communicated to its most recently hired
employees."19 Rather, it reflects a deliberate undertaking
(1) to deal directly with employees on matters (e.g., how
employees become "permanent" in each department'20
changes in the timing and amount of bonuses) which
properly should have been addressed to their collective-
bargaining representative 2' and (2) to undermine the col-
lective-bargaining agreement by asking suggestive ques-
tions (e.g., would you like a reduction of dues and "your
own union and . . . own representation? [emphasis added]
in order to induce defection from the Union.
Accordingly, in each instance I find a violation of Sec-
tion 8(a)(5) and (1)22 of the Act.
the convention that he knew they were "very disgusted" with the craft
division and that Robinson and Rightler were slated to attend
18 As noted in In 5 , successive acts of misconduct involving punching
another 's timecard is punishable by verbal warning in the first instance,
then by written reprimand , then by 3-day suspension , and by termination
in the case of fourth offenses.
19 United Technologies Corp, 274 NLRB 1069, 1071 (1985), enfd 789
F 2d 121 (2d Cir 1986)
20 Under the caption "SENIORITY" on p 5 of the applicable collec-
tive-bargaining agreement (G C Exh 2) is a subpar 3 which reads as fol-
lows
Temporary Employees will become permanent employees when they
have worked a maximum of one ( 1) calendar year Seniority will
start at this time and will be retroactive to starting time
21 NLRB Y Katz, 369 U S 736 (1962)
22 Compare , Obie Pacific, Inc, 196 NLRB 458 (1972)
Respondent seeks to avoid this result by claiming that
the Union was represented throughout the meeting by its
designated steward, Anderson. The short answer is that
neither Respondent nor any employee present at the
meeting could reasonably believe that he was acting on
behalf of the Union or that the Union was a party to the
survey. Although nominally steward, Anderson admit-
tedly was a statutory supervisor and as such he was
properly perceived as aligned with management both by
Respondent and the employees. Moreover, at the time
the meeting was called it was known by all. that he in-
tended to resign because of that circumstance. Further,
his role at the meeting was minimal. He simply passed
out the survey (typed on company stationery) with the
comment "We just want to see where you're coming
from." (Emphasis added.) Finally, the Union had no
notice of the meeting as Anderson chose not to convey
that information.
Rightler. As noted, Rightler was on vacation at the
time of the May 6 "survey" meeting; and shortly before
going on vacation he attended the convention of the
Union's industrial division as a representative of Re-
spondent's employees. On his return, he was moved from
"mitering"-a highly skilled job which had occupied all
of his working time and which, admittedly, he did
well-to the less demanding and part-time job of making
"end splashes"; and for the next 3 weeks most of his time
was spent doing odd jobs such as stocking shelves and
sweeping floors.
For reasons stated, I have credited Rightler's claim
that at the time he was reassigned he was not told why,
and that 3 weeks later the supervisor (Barthuly), who os-
tensibly was solely responsible for his transfer, told him
the decision was Molgaard's and that his union activity
"could have been a factor." Based on that admission and
its consistency with the record as a whole, I find that he
was transferred only for that reason.
Three reasons for reassignment are cited by Molgaard:
Rightler's ridiculing other employees, his unwillingness
to work overtime when requested, and his "bad attitude"
toward Supervisor Barthuly and to work. In his testimo-
ny, however, Barthuly did not mention Rightler's atti-
tude in regard to himself or work as a reason for the
transfer. Indeed he commended Rightler for doing "qual-
ity" work. As to overtime, his response that Rightler's
frequent unavailability was "a contributing factor" was
elicited in response to my leading question and after he
had had ample opportunity to provide reasons for the re-
assignment on his own initiative; 2 a and neither he. nor
Molgaard provided any details concerning the number of
times he was offered and declined overtime. Moreover,
Molgaard testified that "None of our employees are re-
quired to work overtime."
The remaining proffered reason-ridiculing other em-
ployees-is a matter which allegedly occurred daily for
nearly a year, yet there is no indication that Respondent
23 While Barthuly testified about an incident on May 4 when Rightler
left work an hour early, assertedly without permission, he did not men-
tion it either to Molgaard or Rightler as a reason for the reassignment In
fact, he admits that he opted not to pursue the matter through issuing
either an oral or written reprimand
LAMINATED PRODUCTS
ever gave Rightler a written reprimand or suspension
(see fn. 5) for that (or any other) repeated misconduct;
and although Barthuly avers that he spoke to Rightler,
he provided no information as to how often, when, or
what was said. In any event, I have credited Rightler's
testimony that Barthuly had not spoken to him before
about complaints from fellow, employees. I have also
credited Rightler's statement that Barthuly did not advise
him of any reason at the time of his reassignment, and
that he gave "ridiculing" as the reason 3 weeks later and
only in response to his (Rightler's) inquiry. Finally, the
record is devoid of any indication of the specific lan-
guage Barthuly viewed as constituting ridicule.
Having found the stated reasons for Rightler's transfer
to be pretextual24 an inference is warranted, and taken,
that the real reason was an unlawful one,25 to wit. by
assigning him to a trainee-type job which entailed tasks
such as sweeping floors, Respondent sought to punish
Rightler for seeking more aggressive union representa-
tion and to make him an example so as to deter other
employees from engaging in the same (protected) activi-
ty.
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(5), (3),
and (1) of the Act in the particulars and for the reasons
stated above, that those unfair labor practices have af-
fected, are affecting, and unless permanently enjoined
will continue to affect commerce within the meaning of
Section 2(6) and (7) of the Act, and that it is not shown
to have violated the Act in any other respect. Since no
need is shown for a visitatorial (discovery) remedial
order of the type urged by the General Counsel, her re-
quest in that regard is denied.26
REMEDY
In addition to the customary cease-and -desist order
and requirement for notice posting, my Order will re-
quire Respondent ( 1) to offer unconditional reinstatement
to Joseph E. Robinson , Jr. and to make him whole for
all wages and benefits lost as a result of his unlawful dis-
charge, in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as provided for in New Horizons for the Retarded, 283
NLRB 1173 ( 1987). See generally Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed27
24 Wright Line, 251 NLRB 1083, 1084 (1980), enfd 662 F 2d 899 (1st
Cir 1981), cert denied 445 U S 989 (1982)
25 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir
1966)
26 See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
27 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
ORDER
821
The Respondent, Laminated Products, Inc., Kenosha,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees or reassigning them to
more onerous duties because they seek to obtain more
adequate union representation
(b) Reassigning employees to more onerous duties be-
cause they seek to obtain more adequate union represen-
tation.
(c) Dealing directly with employees about matters
which properly should be addressed to their collective-
bargaining representative and seeking to undermine a
collective-bargaining agreement by asking suggestive
questions intended to induce defections from the Union.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Joseph E. Robinson, Jr. immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority and other rights and privileges pre-
viously enjoyed, and make him whole, with interest, for
any loss of earnings suffered as a result of the discrimina-
tion practiced against him in the manner set forth in the
remedy section of this decision.
(b) Reinstate Larry Rightler to the job he held on May
4, 1987, or, if that job no longer exists, to a substantially
equivalent position.
(c) Remove from its files any references to the dis-
charge of Joseph E. Robinson, Jr. on April 2, 1987, as
well as any references to the reassignment of Larry
Rightler on May 15, 1987, and notify them in writing
that this has been done and that those actions will not be
used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facilities in Kenosha, Wisconsin, copies
of the attached notice marked "Appendix B "26 Copies
of the notice, on forms provided by the Regional Direc-
tor for Region 30, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent 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.
28 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 "
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaints be dis-
missed insofar as they allege violations of the Act not
found herein.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
APPENDIX A
Written questions distributed to employees of Laminat-
ed Products, Inc. on May 6, 1987
1. Do you want to have an employees' meeting
every three months (90 days)?
2 Do you want to have a vote on important
issues regarding shop decisions?
3. Do you want to have a vote on whether or
not an employee becomes a permanent employee in
your department?
4. Are you interested in hearing more about
having ownership in Laminated Products, Inc 9
5. Are you interested in having ownership in
Laminated Products, Inc.?
6 Do you like the 25% bonus?
7. Would you like the three departments to have
their own bonus system (Cabinets, Countertops,
Marble)?
8. Would you like the bonus to be on a monthly
pay out instead of a three month pay out?
9 Would you like to have your own Union and
have your own representation?
10. Do you want to stay with the present Union?
11. Do you want to vote on how much Union
dues you must pay?
12. Do you want to pay $13.00 per month?
13. How much Union dues do you feel is
enough? (Circle One) $3 00 $5.00 $1000 $13 00
14. Would you like to have shop meetings to hear
what is going on with our business?
15. Would you like to receive a monthly status
report regarding our sales figures?
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discourage activity on behalf of any
labor organization by discharging or reassigning you or
in any other manner discriminating against you regard to
any term or condition of employment.
WE WILL NOT bypass your union and deal directly
with you about matters which should be discussed with
your union representatives, and WE WILL NOT unlawfully
seek to induce you to abandon your membership in any
union.
WE WILL NOT in any like or related way interfere
with, restrain or coerce you in the exercise of your rights
under the National Labor Relations Act.
WE WILL offer Joseph E. Robinson, Jr. immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially similar job, without preju-
dice to his seniority or other rights and privileges, and
make him whole, with interest, for any loss of earnings
he may have suffered as a result of our discriminatory
act in firing him
WE WILL return Larry Rightler to the job he held on
May 4, 1987 or, if that job no longer exists, to a substan-
tially similar job.
WE WILL remove from our records any references to
the discharge of Joseph E. Robinson, Jr. and to the reas-
signment of Larry Rightler on May 15, 1987, and notify
them,'in writing, that this has been done and that those
actions will not be used against them.
LAMINATED PRODUCTS, INC.