Leeson Electric Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1980

247 N.L.R.B. 1507 (N.L.R.B. 1980)

LEESON ELECTRIC CORPORATION
Leeson Electric Corporation and United Steelworkers
of America, AFL-CIO-CLC. Cases 30-CA-5073,
30-CA-5139-1, and 30-CA-5139-2
February 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 9, 1979, Administrative Law Judge
Thomas A Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs,
and Respondent filed a brief in opposition to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Leeson Electric Corpora-
tion, Grafton, Wisconsin, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
In agreeing with the Administrative Law Judge's finding that Respondent
violated Sec. 8(aXl) of the Act by instituting a new program called
Management Interact, designed to solicit grievances during the union
campaign, we do not rely on the Administrative Law Judge's discussion of
Alice Rathbone's testimony concerning the first Management Interact
seeing. Nonetheless, we find Jean Dempsey's testimony sufficient to
establish that this new program did constitute an 8(aX I) violation of the Act.
And as for this violation, we do not interpret the Administrative Law Judge's
Decision as saying anything more than that these meetings, starting on March
S. 1979. were in violation of the Act.
: In adopting the Administrative Law Judge's finding that Respondent
violated Sec. 8(aX I ) of the Act because of its unlawful no-solicitation rule, we
do not rely on the Administrative Law Judge's citation to Stanley Furniture
Company. Diision of the Mead Corporation. 244 NLRB 589 (1979), and his
comments concerning that decision.
In adopting the Administrative Law Judge's decision to dismiss the 8(a)(3)
allegation concerning the discharge of Dennis Koopman, we reject the
General Counsel's assertion that Our-Way. Inc./Our-Way Machine Shop.
Inc.. 238 NLRB 209 (1978), is identical in facts and circumstances to this
case. First. in Our-Way. the alleged discriminatee made an effort to be in
compliance with the company's safety rule. In this case. Dennis Koopman
flatly refused to comply with the unambiguous rule. Second. in Our-Way.
discrimination was evidenced by the fact that. despite the existence of
alternative modes of compliance. the discriminatee was forced to wear the one
kind of protection that was most uncomfortable for him. In this case,
conversely. Dennis Koopman was given the option of choosing any alternative
method of compliance but none was acceptable to him. Third, in Our- Way.
the discriminatee was one of the most active union adherents and openly
publicized his sentiments by wearing a union patch. Here. Koopman while a
participant in the Union's organizing campaign, was not shown to be one of
the most active union supporters, Finally, in Our-Way. prior to the
discriminatee's discharge. no other employee had ever been discharged or
even disciplined for any comparable alleged insubordination. In this case.
Koopman, as well as employee Mark Miziul. had been warned before
unionization efforts began for a similar failure to comply with the company
safety rule concerning hair.
In adopting the Administrative Law Judge's dismissal of this complaint
allegation, we do not rely on his comments that the hiatus between
Koopman's discharge and the time the charge was filed is any indication that
the charge was without merit or his reliance on the opinion of Alice Rathbone
as to the reason for Koopman's discharge.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
was held in this combined proceeding in Milwaukee,
Wisconsin, on July 16 and 17, 1979. Testimony was taken
pursuant to two separate complaints, each issued by the
General Counsel against the same employer, Leeson Electric
Corporation, herein called Respondent. Three separate
charges were filed, all by the same party, United Steelwork-
ers of America, here called the Union. The first charge was
filed on February 8, 1979 (Case 30-CA-5073), saying that
the Company maintained an unlawfully restrictive rule
against union solicitation and that its agents had made
coercive statements to stop the employees' organization
campaign. Based on this charge, a complaint issued on
March 7, 1979. Thereafter, on a single day, March 21, the
union filed two more charges. The first, Case 30-CA-5139-
1, says the company engaged in direct dealings with the
employees to influence them away from their prounion
resolve. The second charge, Case 30-CA-5139-2, says that
on January 31, 1979 (this would be 8 days before the Union
filed its charge in Case 30-CA-5073), the company dis-
charged an employee named Koopman because he had been
an activist in the union campaign. With this, the General
Counsel issued an additional complaint, on April 24, based
upon the two March 21 charges. The two complaints were
then consolidated for single hearing.
As will appear below, the discharge of Koopman presents
what has been known in Board language as an inference
case-the illegal motivation, proved or not proved, depend-
ing upon appraisal of many related factors. If the intended
purpose of the procedural technique of filing two separate
charges on the same day, and of issuance of multiple
complaints covering that is normally a single picture, was to
build up the discharge case and create the impression of
greater severity in that offense alleged, it will not do, for the
belatedness of the filing of any charge as to any dismissal 2
247 NLRB No. 203
1507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months after the discharge, as much suggests a pure
afterthought, in both the employee and the Union.
Briefs were filed by the General Counsel and Respondent
after the close of the hearing.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPI.OYER
Leeson Electric Corporation, a Wisconsin company, is
engaged in the manufacture of electric motors at its plant in
Grafton, Wisconsin. During the past calendar year, a
representative period, it sold and shipped goods in interstate
commerce from this location valued in excess of $50,000,
directly to customers located outside the State. I find that
Respondent is an employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOI.VED)
I find that United Steelworkers of America is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(a)(1)
The self-organizational campaign started when, on Janu-
ary 23, 1979, six employees met with Richard Breitenbach, a
United Steelworkers staff representative, who gave them
leaflets and authorization cards for distribution among the
approximately 370 rank-and-file workers in the plant. There
was a second meeting on January 30, again off the company
premises, where about 25 employees gathered to further the
campaign. Aware of what was going on, the Company's
immediate reaction was a programmed campaign of its own
to combat the prounion activity. On January 29, on
February 5, and again on February 12, its supervisors
distributed to every employee in the plant, at their place of
work, a written letter urging them the other way, with
arguments in support, some perfectly lawful, and some
obliquely intimidating. Management also took to enforcing a
no-solicitation rule in itself so restrictive as to constitute
coercion within the meaning of the statute.
We start with the rule against solicitation set out in the
employee handbook, in effect long before the union activity
started. It reads as follows:
It should be remembered that working time and work
areas are for work. Non-work activity (including
solicitation, distribution of written materials, asking for
money, collections, selling tickets or selling anything
else) should not be conducted during working time or in
work areas.
On its face, this rule is contrary to established Board law
because, in prohibiting union solicitation "in work areas," it
is "presumed unlawful." St. Johns Hospital. 222 NLRB 1150
(1976). There is no special justification shown here by
probative evidence that conditions in work areas generally
were such as to warrant departure from the general rule.
Respondent tried to show that it enforced the rule only
during work time, that when it reprimanded employees for
violating the rule it told them the prohibition applied during
work time and not during breaks. But, as the Board has also
recently held: "once a rule is found to be generally invalid, it
is invalid for all purposes, and cannot be applied as valid in
part to a specific area." The Times Publishing Co.. 240
NLRB 1158 (1979). 1 find, apart from everything else, that
by maintaining this rule in effect in January and February
1979 Respondent violated Section 8(a)(l) of the Act.
This rule, called too broad by the Board, was by necessary
implication reaffirmed by Respondent in the second of its
antiunion letters to the employees, distributed on February
5, when it told them in writing:
During non-working time you have the legal right to
express your opinion to your fellow workers as to why
you do not want the union in our plant and why they
should not sign a card.
The reason why the Board holds unqualified restrictions
against solicitation "in work areas" improper, is because
they leave open the question whether the prohibition applies
as well while employees are not working. When the
Company, on February 5, told the employees they could, it
they wished, campaign against union representation during
"non-working time," it not only left the confusing ambiguity
alive, but also passed the message permission was granted,
for whatever area was intended, on condition the solicitors
urged management's view and not that of the Union. The
illegally restraining effect of the rule as always appearing in
the employee handbook was thus made even more marked
by Respondent when, in the second of its antiunion leaflets,
it publicized a rephrasing of the rule. Quite contrary to its
contention now that the new writing clarified the existing
rule so as to make it lawful, the new wording makes stronger
the finding that it was indeed an improper one under the
statute.
Nothing could make clearer to the employees this dispa-
rate or discriminatory treatment among solicitors, than the
fact that during the very period it was enforcing the
company rule against employees seeking to establish the
union it expressly invited antiunion minded employees to
ignore the rule. Moreover, management agents were them-
selves soliciting an antiunion attitude not only in the
working area, but during working time. There is detailed
testimony, some of it disputed, by individual employees of
how they were criticized, and even warned, for having
passed union cards among themselves in the work area,
allegedly during working time. Did one employee hand some
union cards to another 2 minutes before or 2 minutes after
the bell rang? These minutiae add nothing of substance in
the light of what John Dietrich, the supervisor over the
assembly department, did time and time again. Most of the
story centers on what took place among the 25 or so
production employees who worked under Dietrich. No need
to look to the testimony of his underlings; it is enough to
quote him. Asked what had he done with the February 12
company antiunion statement, he answered:
Went around to each individual in the department
and handed it out to them and asked them to read it.
Q. You ask them any other questions about that
document?
1508
LEESON ELECTRIC CORPORATION
A. If they understood what they read.
Next, still from Dietrich:
Q. I show you what's been marked General Counsel's
Exhibit No. 6. [The January 29 company distribution].
Are you familiar with that document.
A. Yes.
Q. Did you follow the same procedure with respect to
exhibit 6, as you did with exhibit 5?
A. Yes.
Q. I show you what has been marked Joint Exhibit
no. 1. [The February 5 company distribution]. Are you
familiar with that document?
A. Yes.
Q. Did you follow the same procedures with joint
exhibit I as you did with General Counsel's Exhibit No.
5 and 6?
A. Yes.
If it is unlawful, as the Board only recently found, Stanley
Furniture Co.. 244 NLRB 589 (1979), for an employer to
permit the posting of antiunion notices on the plant bulletin
board while simultaneously prohibiting other employees
from posting their prounion literature, surely it is an unfair
labor practice for this Respondent to interrupt employees at
work to talk them out of their prounion resolve while
threatening to discharge them if they tried to do otherwise
anywhere in the work area. I therefore find, as the General
Counsel correctly argues in his brief, that Respondent
committed an unfair labor practice both in the maintenance
of its ambiguously written no-solicitation rule and in the
discriminatory conduct of having its managers talk to the
employees, to convince them to reject the Union. while at
the same time prohibiting them from engaging in their
protected statutory rights.
This record does not show the extent to which manage-
ment may have engaged in the sort of activities like
Dietrich's in other departments. The indications are that the
three company leaflets in question were distributed through-
out the entire plant. But regardless of the extent of the proof
in this record, Respondent must stop such coercive conduct
anywhere in the plant.
Some employees testified about being interrogated by
supervisors concerning their union activities and their
sentiments.' Laura Sullivan, a machine operator, said that
shortly after January 23, Dietrich asked her "why I thought
we wanted a Union at Leeson." When she said it was
because of the money, etc., the supervisor responded it was a
good place to work and the wages could be worse. On
February 1, still according to Sullivan, Dietrich talked to her
again. "And then he started in again about the union and
asked "why I felt we needed one." Sullivan continued that a
few days later Flannery, too asked why did she want a
union. When she gave him her views, Flannery argued, with
diversified reasons, why he thought it was not a good idea to
have a union. "all they did was take your money and they
didn't give you anything in return."
' One of the manager agents said to have coercively quesltioned employees is
Peter Flannery. As a witness for the company he described himself as
"Supervisor of Employment and Safety." Another company official said at the
hearing Flannery is "responsible for hiring." Respondent disputes the
Alice Rathbone, also of Dietrich's department, testified
that on January 24 he told her "I hear you're starting a
union," and when she said yes, asked did she think it would
do any good, laughed, and walked away. Jean Dempsey,
another employee, said Dietrich asked her in February what
her feelings were about the union, and then "he said that if
the union was in there, they would find a way to fire us
whether they like it or not and they couldn't do anything
about it."
Both Dietrich and Flannery denied, in conclusionary
language, that they questioned anybody about their personal
involvement in the union movement. I credit the employees
instead. This credibility finding rests only in part on the
general plausibility of the story in the total context, and on
the matter of demeanor. More important, in rejecting
Dietrich's denials especially, it is his attempted denial of
having questioned employees when he spoke to each of
them, time and time again, while putting the company
leaflets in their hands, that beclouds his testimony. He did
that while they were at work, at their machines. He asked
the employees to read it, he stood and waited, and when the
employee finished, he asked what did the employee think. As
one of them, Daniel Scheftgen, put it: "He was coming over
to my machine with a written statement about the union
trying to get back in and in that letter it stated that we had
an open door policy and that we didn't really need a third
party to take care of our problems. And after reading it over
he asked me how I felt about the statement, about the
Union." Testifying after the employees who had been
questioned, Dietrich started by admitting that after waiting
for the employee to finish reading the statement of opposi-
tion, he did ask each of them questions. But with counsel for
Respondent leading the witness, Dietrich tried to distort his
conversations with each employee as though his questions
related only to a piece of paper, to words standing apart
from any ideas, to subjects other than the Union, or to
something that had nothing to do with the employees' views
of the organization campaign that was going on. Nothing
could be clearer than that the purpose of each leaflet he
handed the employees was to sell the idea that a union is no
good, and to remove from their hearts any prounion feeling.
For Dietrich to say that after taking the employee away
from his work for that very purpose, he was not concerned
with the resultant attitude, pro- or antiunion, was to make a
farce of his testimony. It matters not how the questions be
put-brazenly or subtly; it is pure interrogation and prohi-
bited by the statute nevertheless. It is one thing to post a
notice, or even hand a pamphlet to an employee, stating the
employer's view on a perennially disputed subject. It is
something else again for the employer to accost the
employee at his place of work and, in one-on-one discussion,
probe into his or her mind, to ascertain whether he is for or
against unionization. This is what interrogation is all about.
I find that in every instance, and it happened times without
number involving 25 employees at least, ietrich, as an
agent of Respondent, coercively interrogated the employees
and committed unfair labor practices in violation of Section
complaint allegation that Flannery is an agent of the company within the
meaning of the Act. It would demean this decision to discuss that question at
all. I find he is a upervisor i fact and that Respondent is accountable for all
his activities proved on this rcord.
15(09
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(l). I also find that Flannery coercively interrogated the
employees and that Dietrich threatened to discharge them
for their union activities, all in violation of Section 8(a)(1).
Another complaint allegation is that about a month or so
after the union campaign started, Respondent instituted a
program of monthly meetings with a group of employees
designed to solicit their grievances and quieting them in
various other ways-the overall purpose of the total plan
being to kill off the entire organizational campaign. On
March 1, 1979, the Company distributed the following
notice to all employees.
MANAGEMENT INTERACT
We are initiating a new program whereby a group of
employees (selected at random from the Leeson Life
Birthday column) would meet once a month with Dan
Doerr, VP Manufacturing to discuss problems, ideas
and company progress. It is not intended to be a
decision making meeting but rather a roundtable
reflection of progress, individual ideas, shop conditions
and overall communication.
We plan on starting this program in March and will
continue it on a monthly basis using the same format.
Not all individuals will be involved every month,
however, we feel we will get a good cross section from
those chosen. For those involved it will provide good
open discussion (as good as we can make it) with top
management. We look forward to beginning the new
program.
The first employee meeting with management in imple-
mentation of the new program took place on March 8. There
were others during the following months. There is some
confusing testimony by the witnesses touching upon both
these meetings and certain other monthly employee meetings
that used to take place even before the union activity. The
Company witnesses tried to create the impression that
nothing changed, that the new program only continued what
communication had long been going on between employees
and supervisors, and that therefore the Respondent did
nothing new because of the union campaign. The suggested
conclusion is wrong, of course, if only because continuation
of the old practice would not have required so formal an
announcement about "initiating" another program. But a
clear enough picture emerges of what the Respondent was
really up to, showing without question that its object was to
buy the employees away from their current union resolve.
Rathbone testified that at the old meetings, there was talk
and questions about matters such as tools, supplies, short-
ages, and other production programs. In contrast, she said at
a March meeting, after the new announcement, there was
talk by a management agent, "about insurance things being
changed and the benefits from that." Employee Dempsey
testified that at the first interact meeting on March 8, this is
what the new ones were called, the employees were invited
to raise any questions and problems they might have, and
that there was discussion of such matters as "absenteeism,"
"that people weren't getting paid enough." Dempsey also
recalled that Dan Doerr, a company vice president who was
present, responded that it took thousands of dollars to run
the business, and that "they were planning to give us more
money, but they didn't know when and they didn't know
how much." There was also talk at that meeting about a
vacation plan.
I credit these employees as to those interact meetings.
From Doerr's testimony, speaking about that same March
meeting:
Purpose of the meeting is to listen to the employees,
to see what is on their minds. And generally, discuss
things of mutual interest both for the employees and for
myself.
Q. Did I also hear you say that one of the purposes is
to bring out what's on their minds, anything they have
on their minds?
THE WITNESS: In part, that's true, sir.... They
would ask me if they could have an additional fan in
their department.
Q. Isn't it a fact that they brought it to your attention
an item such as cutters for mills?
A. It might have come up. I don't recall.
Q. Didn't they bring to your attention more money?
A. I don't recall, sir.
Q. Didn't they bring safety concerns to your atten-
tion?
A. This discussion might have come up.
Q. Didn't they bring concerns about lack of supplies
to your attention?
A. Yes, sir.
Q. Didn't they bring the question of vacations to your
attention?
A. Vacations might have been discussed.
Q. And didn't they bring up vacation plan at a
company called Attaco?
A. I spoke with an employee with regard to a
program that a company called Attaco has. I cannot
testify that it was at a management interact meeting.
Q. Didn't they bring up a tardiness rule?
A. This might have been in the discussion ...
I find that the meeting with employees held after January
1979 were intended to solicit grievances and to influence the
employees away from their union resolve by promising them
some measure of satisfaction. By such conduct the Respon-
dent violated Section 8(a)(1) of the Act. First Data Re-
sources, Inc., 241 NLRB 713 (1979).
B. Alleged Violation of Section 8(a)(3)
Koopman started working for this company in December
1977 and was discharged on February 1, 1979. He worked in
Dietrich's department, where there are all kinds of moving
machines-lathes, grinders, mills, balancers, etc.-and
where the employees who operate them, as well as others
who pass close by, must stand close to the machinery. In the
modern fashion, Koopman wears his hair long, down lower
than his shoulders. Others in the department, many of them
women, wear their hair in the same long style. From the day
of his hiring there has been a rule of safety in this
department, requiring that the employees wear some kind of
protective device to keep their hair tied up so as to avoid the
danger of it becoming entangled in moving parts of the
machines, and causing personal injury. It is essentially a
safety measure, set out in the employee handbook; it was
1510
LEESON ELECTRIC CORPORATION
also enforced, in part least, in consequence of a suit for 2-1/2
million brought against this Respondent by an employee
whose hair had been caught in a machine while she worked,
causing terrible injury to her. At first the rule, as written,
emphasized that it had to apply to all employees working on
machines with moving parts. But with time arguments arose,
because some employees, for one reason or another, refused
to comply. Some of them, even in this department, at times
did other kinds of work, standing away from the moving
machines, and then argued there was no real need for them
to tie up their hair.
So, on December 11, 1978, the Company posted a
rewriting of the rule, emphasizing that all employees in the
department were required to comply.
Effective Monday December 11, 1978, all employees
with shoulder length hair or longer must tie it up and
back. The only alternative would be to use the caps or
hair nets provided through the tool crib.
This action is taken to lessen the risk of any future
accidents occurring that involve hair being caught in
machinery. The rule is endorsed by our insurance
carrier and the safety committee.
During the month of January 1979, Koopman did two
things. He attended the two union meetings with the United
Steelworkers agenr, be being one of six employees on
January 23 and one of about 25 on January 30. He also
distributed union cards at work, as did a number of others in
his department. He was by no means an outstanding activist;
as to the Company's knowledge of his such activities all this
record shows is that on about January 24 he handed some
union cards to Sullivan, also in his department, and that
Dietrich saw him do that.
The other thing, of significance now, that Koopman did in
January is, he refused to obey the rule to tie his hair up,
more than once. In fact, early in the month, before the start
of any union activity, he went to the office of Gene
Peplinski, Dietrich's superior, expressly to protest against
having to tie up his hair, arguing it was not right to force
him to do that, in part because he thought it unnecessary,
and in part, because his scalp "couldn't breathe" under a
net. Peplinski's answer was if he did not like to work under
such conditions "there is the door."
On January 31, at work in the department, Koopman
again had his hair down, in direct violation of the restated
and clarified rule that all (emphasis in the original) employ-
ees had to have it either tied up or covered in a protective hat
of some kind. Dietrich ordered him to tie up his hair and he
refused, as simply as that. According to Koopman's testimo-
ny, Dietrich went to consult some superior, returned, again
asked him to comply, and again he refused. Still according to
Koopman, Dietrich then went to talk to Peplinski, again
came back, and again ordered Koopman to comply. When
the employee refused a third time Dietrich told him to
punch out. As Dietrich recalled it, he only went to consult
Peplinski after Koopman's first refusal, and then ordered
him to leave when he again refused.
From Rathbone's prehearing affidavit:
I think the reason Dietrich fired Koopman was because Koopman was
pretty smart mouthed and he was very hard to get along with. It was just
As instructed by his supervisor, Koopman telephoned in
the next day. Now once again Dietrich asked him would he
or would he not obey the rule. When Koopman still gave
him a flat "no," Dietrich told him he was fired.
The theory of complaint as to this man is that the
Respondent did not fire him because of his refusal to comply
with the safety rule at all, but rather that its real reason was
because he favored the union. Stated in common Board
parlance, it is that management used Koopman's flouting of
Dietrich's correct order as a pretext to achieve a hidden
objective of ridding itself of an undesirable union leader.
Immediately the obvious question arises: Would any em-
ployer looking for an excuse to cover an illegal discharge,
after catching the man in a perfect prima facie act of
misconduct, give him three chances to correct his wrong and
deprive the company of the sought after coverup excuse?
The answer has to be no. If management did not care about
this hair business, as the General Counsel now contends,
why would it have its supervisor virtually humble himself by
repeatedly begging the man to put on that hat? The last
thing any rational man will do is act precisely contrary to his
true interests. Both logic and human experience dictate
dismissal of this allegation of the complaint.
Of course Koopman, himself closest to this situation,
knew the real reason for his dismissal, else why did he wait
almost 2 months before having the union file a charge on his
behalf, if it was his idea at all that the belated charge be
filed? He had been warned, before any union activity, he
could not work in that place if he disobeyed the rule. When
he went to the manager to protest the rule, he was wearing
the hat, and was told he would be out the door the day he
disobeyed. If this was not a threat of discharge, as the
General Counsel would have it in his brief, I do not know
what a threat is. And nothing could be more persuasive
proof that Peplinski meant what he was saying that early
day, than Koopman's offer, at that moment, to sign a
general release in favor of the company freeing it of any
liability in the event his long hair should become entangled
in any machine.
Dietrich's offer to put Koopman back to work on
February I so effectively defeats any suggested ulterior
motive that no purpose would be served by detailing the
disputed testimony about management's difficulty in enforc-
ing the rule, the variable length of this employee's or that
employee's hair, or the posting or reposting of rules. It is all
pretty much sumed up in the words of one of the General
Counsel's own prosecution witnesses. Rathbone, as to whom
there is conflicting testimony on whether she did or did not
always obey the rule, testified that the moment she heard
Koopman had been fired she was careful to comply with the
rule instructions. Why? "Because I saw that he would fire
you if you didn't. He fired Dennis for not."' And it was
perhaps because the record as made, compels a finding that
Koopman was discharged because of his conduct with
respect to the working rules, that in his brief the General
Counsel really abandon the initial theory of pretext and now
contends the man was dismissed because he tried to force the
a personality clash between Dietrich and Koopman and that's why
Dietrich picked on him because he could have done the same thing to the
rest of us if he had wanted to
1511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company to enforce the hair safety rule upon other employ-
ees. Such a dispute, were it the real reason-and I am sure it
was not-had nothing to do with union activity or Section
8(a)(3) of the Act. But more important, when Koopman
refused Dietrich's proper orders, both on January 31 and
again on February 1, he did not condition his compliance
upon what any other employee might do, or be ordered to
do. He simply gave an unqualified no about wearing his hair
up.
Dietrich's testimony is that on January 31, he told
Koopman to go home and call him the next day, and that
when Koopman did telephone, it was to say he was not
coming in "because he would not put his hair up." At this
point, still according to Dietrich, he told Koopman he could
put his hair up any way he wished "he could either have his
hair cut, up in a hairnet, up in a ponytail, tied batk or have it
cut," but that the man just refused. Koopman's version of
this conversation is that when Dietrich asked him if was he
going to wear the hat, he asked "is everybody else going
to?," and that he only said no after Dietrich told him "Don't
tell me how to run my department ... " At this point I
must credit Dietrich. This idea, that he was concerned with
what any other employee did about the rule had nothing to
do with what he admitted telling Peplinski in early January,
and it had no relationship with the reasons he himself gave
at the hearing as to why he did not want to put his hair up-
that his hair could not breathe and that while the rule could
be applied to females, it ought not be applied against a man.
On the basis of the total record, I shall recommend
dismissal of the allegation that Koopman was illegally
discharged.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set out in section III, above,
occurring in connection with the operations described in
section I, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. By maintaining and enforcing a rule prohibiting union
solicitation and distribution of union literature in work areas
not unequivocally defined as during working time, by
maintaining and enforcing a discriminatory no-solicitation
rule, by coercively interrogating employees concerning their
union activities, by threatening to discharge employees in
retaliation for their union activities, and by soliciting
employee grievances during a union organizational cam-
paign for purposes of discouraging union activities, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(l).
In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER'
The Respondent, Leeson Electric Corporation,
Grafton, Wisconsin, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Maintaining and enforcing a rule prohibiting union
solicitation and distribution of union literature in work areas
not unequivocally defined as during working time, maintain-
ing and enforcing a discriminatory no-solicitation rule,
coercively interrogating employees concerning their union
activities, threatening to discharge employees in retaliation
for their union activities, or soliciting employee grievances
during a union organizational campaign for purposes of
discouraging union activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist United
Steelworkers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind its rule against union solicitation and distribu-
tion of union literature applicable to work areas and its
discriminatory no-solicitation rule throughout the plant.
(b) Post at its plant in Grafton, Wisconsin, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 30,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in writing,
within 20 days from the date of this Decision, what steps the
Respondent has taken to comply herewith.
IT IS HEREBY RECOMMENDED that the complaint be, and
it hereby is dismissed, with respect to the allegation that
Dennis Koopman was unlawfully discharged.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the nlotice reading "Posted by Order of the
National Labor Relations Board" shall "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
1512
LEESON ELECTRIC CORPORATION
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 having found, after a
hearing, that we unlawfully interfered with the activities of
our employees in a union organizational campaign:
WE WILL NOT maintain or enforce any rule prohibit-
ing union solicitation or the distribution of union
literature in work areas of our plant which does not
unequivocally define the prohibition as limited to
working time.
WE WILl. NOT maintain or enforce a discriminatory
no-distribution rule with respect to union activities
inside the plant.
WE WIt.l. NOr coercively interrogate our employees
concerning their union activities.
Wti Wll. NOT threaten to discharge employees in
retaliation for their union activities.
Wt. WI.L NOT solicit employee grievances during
any union organizational campaign for purposes of
discouraging union activities.
WE WlI.. NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form, join or assist
United Steelworkers of America, or any other labor
organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities.
LEESON ELECTRIC CORPORATION
1513