Lube Devices, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1972

197 N.L.R.B. 770 (N.L.R.B. 1972)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lube Devices, Inc. and District No. 10, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Cases 30-CA-1641 and 30-RC-1539
June 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 10, 1972, Trial Examiner John G.
Gregg issued the attached Decision in this proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in his
Decision. He also found that certain employees were
eligible to vote in a Board-conducted election held
on August 20, 1971, and recommended that the
ballots of the eligible voters be opened and counted
and that the Board order such disposition as it may
deem appropriate in the circumstances. Thereafter,
the Respondent filed exceptions and a supporting
brief.
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 Trial
Examiner's Decision in light of the exceptions and
brief and the entire record in this proceeding and has
decided to affirm the Trial Examiner's rulings,
findings, and conclusions and to adopt his recom-
mended 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 recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Lube Devices, Inc., Manito-
woc, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
IT IS FURTHER ORDERED that Case 30-RC-1539 be,
and it hereby is, severed from this proceeding and
remanded to the Regional Director for Region 30 for
the purpose of opening and counting the challenged
ballots of Michael Meissner, John Van Ells, and
Thomas Kornek and thereafter issuing the appropri-
ate certification.
TRIAL EXAMINER'S DECISION
JOHN G. GREGG, Trial Examiner: This consolidated
proceeding was heard at Manitowoc, Wisconsin, on
October 12, 13, and 14, 1971. Subsequent to the trial, the
General Counsel moved to correct the transcript. It
appearing that the motion is appropriate and there being
no objection, the motion is hereby granted.
The representation proceeding in Case 30-RC-1539 was
initiated by a petition filed by the Union on July 2, 1971. A
stipulation for certification upon consent election was
executed on July 27, 1971, and approved by the Regional
Director on July 28, 1971, followed by an election on
August 20, 1971, which the Union lost. The tally of ballots
showed that of approximately 20 eligible voters 9 votes
were cast for the Union, 11 against, and 3 ballots, the
ballots of Michael Meissner, John Van Ells, and Thomas
Kornek, were challenged by the Employer on the ground
that these employees had been lawfully terminated prior to
the election.
Pursuant to charges, as amended, filed by the Union
herein, against the Employer in Case 30-CA-1641 a
Complaint and Notice of Hearing therein issued on
September 10, 1971, alleging that the Employer discrimina-
torily discharged employees Meissner, Van Ells, and
Kornek because of their interest in and/or activities on
behalf of the Union and in order to discourage member-
ship in and activity on behalf of the Union, in violation of
Section 8(a)(1) and (3) of the Act. On September 16, 1971,
an amendment to the complaint in Case 30-CA-1641 was
issued, alleging unlawful surveillance of union activities by
the Respondent in violation of Section 8(a)(1) of the Act.
On September 30, 1971, the Regional Director for Region
30 issued an Order consolidating the cases and a notice of
hearing on the challenged ballots. At the trial, the
complaint was further amended to add an additionally
alleged act of interference, restraint, and coercion by the
Respondent arising from an alleged threat of refusal to
offer an employee part-time work during the school year
because of the employee's union membership, activity, and
sympathy.
The issues raised herein are whether the Respondent
discriminatorily discharged Messrs. Meissner, Van Ells,
and Kornek and whether the Respondent unlawfully
interfered with, restrained, and coerced its employees as
alleged in the complaint as amended.
Upon the entire record herein, my observation of the
witnesses as they testified, and after careful consideration
of the briefs herein, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, is engaged in
the manufacture of lubrication devices at its plant located
at Manitowoc, Wisconsin. During the past calendar year, a
representative period, the Respondent sold and shipped
goods valued in excess of $50,000 in interstate commerce to
points located outside the State of Wisconsin. At all times
material herein, the Respondent is, and has been an
"employer" as defined in Section 2(2) of the Act, engaged
in "commerce" and in operations "affecting commerce" as
defined in Section 2(6) and (7) of the Act.
197 NLRB No. 122
LUBE DEVICES , INC. 771
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein , District No . 10, Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO, the Union herein , is and has been a labor
organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint as amended alleges that on or about June
30, 1971, the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act by the conduct of Gus Lukas, Floyd
Bydalek, and Ronald Daline in engaging in surveillance of
a union meeting in violation of Section 8(a)(1) of the Act;
that the Respondent discriminatonly discharged Michael
Meissner, John Van Ells, and Thomas Kornek and has
failed and refused to reinstate said employees to their
former positions of employment, all because of their
interest in, and/or activities on behalf of, the Union in
order to discourage membership in, and activity on behalf
of, the Union, in violation of Section 8(a)(1) and (3) of the
Act; and that the Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act through threats by
Shimon to refuse to offer Hartman part-time work during
the school year because of Hartman's union membership,
sympathy, and activity.
A. The Alleged Interference, Restraint, and
Coercion
The record indicates that around 4 p.m. on June 30,
1971, the day that Kornek was discharged, the Respon-
dent's employees were notified by the union representative
of a meeting to be held at the Dogs and Suds Drive-In
located about 2 1/2 miles from the plant.
Thomas Kornek testified that about 4:15 p.m. that day
there was a meeting at the Dog and Suds Drive-In. Kornek
stated that he and the Machinists representative went to
the plant and when the men came out they were told there
would be a meeting at the Dog and Suds and that anybody
who was interested should be down there. The meeting was
held in the parking lot at the Dog and Suds with about 15
employees present. According to Kornek, during the
meeting Bydalek was noticed driving past, Daline drove
past, and Mark Lukas drove past. After going by,
according to Kornek, they came back and went past again
within a period of say 5 minutes . I credit Kornek who
testified in a straightforward sincere manner . Additionally,
there was testimony of record by Joseph Pnkop, whom I
also credit as a sincere witness, that during this meeting
Bydalek, Daline, and Mark Lukas each separately drove
past twice, each going past westerly and returning in an
easterly direction.
There was no unqualified denial by Bydalek and Mark
Lukas of the allegation that they drove by the meeting
place at the time of the meeting . Daline did not testify.
The location of the site of this meeting being vis-a-vis the
location of the plant, the facts that Bydalek and Daline
were members of management and Mark Lukas the son of
the Respondent's president, and the obvious weakness in
the testimony of these two individuals insofar as setting
forth a reasonable basis for driving past that particular site
at that particular time, all lead me to conclude that through
this maneuver the Respondent indeed engaged in surveil-
lance of the union activities of its employees in violation of
Section 8(a)(1) of the Act.
There was testimony by Joseph Shimon with respect to
the alleged threat by the Respondent to deprive Thomas
Hartman of part-time employment.
In his testimony concerning his discussion with student
employee Hartman, Shimon testified that Hartman asked
him if he could figure on a job next summer and Shimon
told him yes, if there were work available.
Q. Did you say anything else?
A. No.
Q. Did you discuss the role he played with the
Union at that conversation?
A. Yes I did. I told him that we tried to teach him
as much as we could so he could always use that
experience in other jobs; and when we needed his help,
he kicked us in the teeth.
According to the testimony of Hartman, when Hartman
asked Shimon about work for the holidays "and he really
in the beginning didn't know what to say and then he said
when the Company needed me I was against them, and he
says what can I do, and I told them I was only trying to
better myself, and he said how could you when you were
leaving... .
Based on my observation of the demeanor of the
witnesses as they testified , I am convinced that both were
testifying truthfully. I am convinced that Shimon had
advised Hartman that he would be hired in the future if
work were available. However, I view his additional
remarks expressing displeasure at Hartman's union activity
and labeling Hartman's activity as a kick in the teeth for
the Company as going beyond the protection of Section
8(e) of the Act . In the circumstances of this case, the
supervisor discussing future employment with a student
-part-time employee at an exit interview at the end of a
summer employment-I find that Shimon's remarks
constituted a threat and were designed to chill his union
activity, thereby constituting interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.
B. The Alleged Discriminatory Discharges
The record discloses that Meissner was discharged on
June 25, 1971, Van Ells was discharged on June 25, 1971,
and Thomas Kornek was discharged on June 30, 1971.
The Respondent herein alleges essentially that the
discharges of Meissner and Van Ells were the culmination
of an effort which had begun months before to improve
production in the employer's assembly department. As for
Kornek the Respondent claims essentially that Kornek was
discharged as the result of an incident of misconduct. The
General Counsel contends that the Respondent had
knowledge of the employees' union activity and sympathies
prior to the time they were discharged and that it was such
knowledge that formed the basis of their alleged discrimi-
natorily motivated discharge.
Gus Lukas, president of the Respondent and plant
manager of the facility , testified that his office was less
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 50 feet removed from the production area, that in
connection with his duties he went into the production area
of the plant on a daily basis, and that he personally would
become directly involved with production problems on the
floor when there was a problem. He testified also that in a
general way he was personally acquainted with all of the
employees in the plant.
Lukas testified that during the summer his son Mark,
who is 17 and a student, worked full-time doing yard work
and assembly work, working in the production area of the
plant. Lukas testified that a nephew also worked in the
production area and in the machining and assembly area.
Lukas testified that the first time that he became aware
there was an organizational campaign among his employ-
ees was when he was advised of that fact by Tom Kornek
at roughly 10 o'clock in the morning on June 30, 1971, just
subsequent to the discharge of Kornek. According to
Lukas, this was the first he was aware that there was any
discussion among his employees with respect to forming a
union. Lukas testified that at the time Meissner and Van
Ells were discharged on June 25, 1971, he was not aware
that there was a union organizational campaign taking
place among his employees.
Lukas testified that he personally made the determina-
tion to terminate Kornek, Van Ells, and Meissner. With
respect to the discharge of Meissner, Lukas testified, "We
reorganized assembly and were putting efficient people in
and we had originally created a job for him. He was not
adept at the work that we had plus the fact that he told us
he was leaving." According to Lukas, months before the
discharge, Meissner had told Backey, one of the Respon-
dent's officers, that he would leave when he found another
job. According to Lukas, Meissner was not suited for the
job as he was not mobile in moving about and was limited
to "testing gages and a few other jobs. "
Lukas described his reorganization effort as the straight-
ening out of the assembly area indicating that for some
time the assembly area had been a mess, sloppy, with parts
laying all over and no productivity, and that this had been
getting progressively worse over a period of 5 or 6 months.
With respect to the discharge of Van Ells, Lukas testified
that he was discharged because he "went against the word
that he had given to the supervisor who had hired him."
According to Lukas, Van Ells was hired on the basis he
would not look for employment in his primary field of
forestry for which he had trained, but at which he was not
employed, and that the Respondent would not have taken
him in ,the first place had he not made a strong statement
that there were no government appropriations, that he
would not have a government job for 3 years, and that he
would stay with the Respondent. According to Lukas, after
Van Ells had been with the Respondent for less than a
week and a half he broke that promise by checking on
employment with the State of Michigan. According to
Lukas, when he was informed of this by Backey, on June
18 or 19 1971, Lukas made the determination that Van Ells
would be discharged.
With respect to Kornek, Lukas testified that his reason
or discharging Kornek was because Kornek had stated he
was sick at home and then appeared in the plant parking
lot later in the day not sick and in an ensuing discussion
called Lukas a liar. According to Lukas, on the afternoon
of June 29 , he made the decision to terminate Kornek.
Thomas Kornek testified that he began his employment
with the Respondent in June 1966 working as a setup man
on automatic turret lathes in the machine shop production
department, and was discharged on June 30, 1971. Kornek
stated that he was the longest term employee in the plant
except for Jim Matson. Kornek also testified that 1 week
prior to his discharge he was given an increase in pay from
$2.40 an hour, which he had been paid since 1969, to the
rate of $2.61 an hour.
Kornek testified that in the fall of 1970 he talked to a
union representative and then talked with five or six people
at the plant about the Union, but there wasn't too much
support for it. Subsequently in May 1971, according to
Kornek, he, Jean Ahrens, and Mike Meissner asked Roger
Marquardt to arrange a meeting with Lukas at which they
could air their differences and their grievances . According
to Kornek , the meeting took place in the plant in the
production shop and was attended by all employees and
management . Kornek testified that the discussion encom-
passed wages, insurance , and fringe benefits. Kornek
stated that he raised the question of why better wages
couldn't be paid when a new office had been put up.
According to Kornek, Lukas replied that it was a personal
investment and none of Kornek's concern and that he
didn't wish to discuss it any further. Kornek stated that
Lukas then seemed to be in favor of a plan advanced by
another employee to evaluate the worth of employees
according to the type of job they were performing.
Additionally, the matter of exhaust fans in the plant was
raised by Kornek and discussed. Kornek testified that he
had asked about exhaust fans a number of times over a
period of 2 years and the only satisfaction he could get was
that it would be looked into. Kornek stated that at times
insurance would be discussed and Lukas stated that he
hadn't found a suitable policy.
According to Kornek, after the meeting, Roger Mar-
quardt said that Lukas would put out a wage schedule on
June 15. When the schedule was not posted on June 15,
Kornek talked to Backey on June 18 and said that if the
wage schedule were not posted he was not going to punch
in and would not work until they had put it up. Kornek
believed he also discussed this with Roger Marquardt.
According to Kornek, when the schedule was not posted
by June 21, he told Marquardt that he wanted to speak to
Lukas about it. Subsequently, about 2 o'clock on June 23,
1971, Kornek met with Lukas in his office. Also present
was Roger Marquardt. Kornek testified concerning this
meeting , "I think the first thing I said was that we had
taken a vote . . . we had taken a vote among the
employees and that we were in favor of a union, and he
said, well you can have a union he said, but I think he said
Grummans in Two Rivers has a union and they had cut
back employment quite a bit." According to Kornek, a
general discussion followed covering insurance , wages, and
profits, and, as for the wage schedule, Lukas stated that it
would not be posted out in the shop. According to Kornek,
he told Lukas that there was no communication between
Backey and the men in the shop. They also discussed
exhaust fans and Kornek stated that if there would be any
LUBE DEVICES , INC. 773
reason why he would quit it would be because of lack of
exhaust fans . Kornek also stated that it got smokey in the
plant and it was not the best thing to be breathing.
According to Kornek , Lukas himself brought up the
subject of a raise for Kornek , "he said that he realized that
I hadn 't had a raise since March of '69 and he said he was
going to give me a 21 -cent raise retroactive to the week
before."
Kornek testified additionally that during the conversa-
tion with Lukas he advised Lukas that one of the
employees , Meissner, had said that he wasn 't receiving as
much as another employee who had just started. Kornek
stated that prior to this meeting with Lukas he had
discussed it with almost all of the employees in front of the
plant , right out on the walk, and that many of the
employees had ideas about what Kornek should tell Lukas.
According to Kornek , a vote had been taken out in the
parking lot after work on June 21 , 1971. Meissner took the
vote on a piece of paper to which the employees were to
sign their names and whether a union was wanted or not.
Kornek stated that at the meeting with Lukas on June 23,
1971, Kornek made reference to this vote that had been
taken among the employees.
With respect to the vote taken on June 21 , Kornek
testified that he had discussed the matter with other
employees on that date, prior to the time the vote was
taken and that Meissner and Ahrens had suggested that
Kornek pass out slips to employees in the production shop.
According to Kornek , these conversations took place
around 2 o 'clock or 2:30 during working time , and Kornek
went to the production area and mentioned what he was
doing to Roger Marquardt who told him that he should not
pass the slips out during company hours. It was then
decided that Meissner would pass the slips out after work
in the parking lot. According to Kornek , the vote was
taken in the parking lot around 5 minutes after 4 o 'clock.
According to Kornek , when he went off duty at 4:30 he
went out to the car and Meissner handed him the slips of
paper which turned out to be 12 to 3 in favor of the Union.
According to Kornek , he advised the employees of this the
next day. Kornek stated that after his meeting with Lukas
on June 23 , he reported to his fellow employees that he
thought it was futile and that they would not get
satisfaction from their request , that they would be better
off to try to get a union . These discussions took place,
according to Kornek , out in front of the plant at noon hour
and perhaps in the shop during the day. Kornek stated that
these discussions with employees were also had with Roger
Marquardt.
Kornek testified that on Monday , June 28 , 1971, he sent
a letter to the Machinists Union . Subsequently , he arrived
at work a little before 7 o 'clock and the automatic
machines were producing quite a bit of smoke throughout
the plant . It was a hot day with windows closed and the
smoke made him nauseous.
Kornek stated that he complained about the situation to
Marquardt . The following day, Tuesday, June 29, 1971,
Kornek arrived a little before 7 o'clock and started running
the same job . It was a hot day, the windows were shut and
it didn 't take too long before the area was smokey. Kornek
stated that at 8:30 he phoned Marquardt and said he was
going home at 9:30 at breaktime , that the area was smokey,
and he didn't feel good, especially from the day before.
Subsequently , Backey came out and said he was going to
open the windows and that if Kornek wanted to he could
go home, but he was going to open the windows and try to
get the smoke out of the shop . Kornek stated that he told
Backey he was going to go home and he went directly
home as he did not feel good.
According to Kornek , about 2 o 'clock that afternoon he
received a telephone call from the representative of the
Machinists Union who wanted to talk with him and the
other men in the plant . Subsequently , Kornek met the
representative at the Dog and Suds Drive-In in Manitowoc
around 3 :45 p.m . They found a place at the armory at
Manitowoc for the men to meet . Kornek testified that he
went back to the plant arriving there a little before 4
o'clock, just before the men came out, and he talked with
the men when they came out. He told them there was a
representative who wanted to talk to them about a union.
According to Kornek , these conversations took place
about 30 feet from the plant . He spoke first with three
employees who came out first and then a few more came
out and he spoke with them . Lukas and Bydalek came out
while Kornek was talking to some men and Lukas asked
him where he had been that day . According to Kornek, he
told Lukas that he had been home sick. Lukas said that he
wasn't sick , "I told him that it was just a matter of getting
some fresh air. I said that as soon as I left the plant I felt a
hundred percent better." According to Kornek , Lukas then
said that he had called and Bydalek had called and there
was no answer at Kornek's house and, according to
Kornek , Lukas said that Kornek was not home that
afternoon. Kornek said that he was "and he told me that I
should watch out, that this was private property and I
shouldn ' t bite off more than I can chew." Kornek stated
that during this conversation he believed that several
employees were present but could not say for sure. Kornek
denied calling Lukas a liar.
According to Kornek, later that evening he and Meissner
went to see a Steelworkers representative in Manitowoc
and they discussed the same items that they had previously
discussed with the representative for the Machinists
concerning their grievances . Kornek testified concerning
the meeting which was held around 4:15 that afternoon in
front of the armory located about a mile and a half from
the plant. Later that evening , there was a meeting with the
Steelworkers downtown attended by Kornek , Meissner,
Ahrens, Kovak , Van Ells, and others.
According to Kornek, the following morning, June 30,
1971, while he was on his break at about 9:30 in the
morning , he passed to all employees that were present
outside certain information that had been given to him by
the Machinists representative for distribution to the
employees . Essentially this material consisted of literature
relative to the right of I Americans to join the IAM, a
pamphlet concerning the conduct of elections by the
government, a union card, and related material. Kornek
testified that he passed out the literature during the break
and right in front of the plant on the lawn and he thought
that almost everybody was out there except perhaps the
girls in assembly and a few of the men that remained in the
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant . According to Kornek, two of the foremen, Mar-
quardt and Shimon , were also out there . Kornek stated
that Shimon asked Kornek if he could have some
information and Kornek gave him all the literature he had
been passing out. Kornek thought that he also gave copies
of the literature to Marquardt . Kornek stated that while
Marquardt remained outdoors during the break Shimon
went back into the plant.
Kornek testified further that around 10 : 30 or 10:45
Marquardt came to him in the plant and said that Lukas
wanted to speak to him. They both went to Lukas ' office.
According to Kornek , in the office he was told that since
he didn 't wish to cooperate and the plant was detrimental
to his health they were going to terminate his employment.
He was asked to sign a termination paper which he would
not sign . Present during that meeting were Marquardt,
Shimon , Lukas, Backey, and Bydalek.
Michael Meissner testified he was employed by the
Respondent in October 1970 working in the assembly area
and on automatic orders with Jean Ahrens as his
supervisor . He started at $1.65 an hour and was earning
$1.75 an hour at the time of his discharge receiving an
increase around January 1971. Meissner testified that he
and Kornek had discussed forming a union frequently, but
it really "got going" after the meeting with Lukas at which
the employee grievances were discussed . According to
Meissner, when Lukas failed to post the promised wage
schedule by June 15 , 1971, the men were willing to discuss
the Union . These discussions took place "mostly at break
outside of the building ... .
Meissner stated that he discussed his own feelings with
respect to the Union with Supervisor Marquardt prior to
his discharge . Meissner testified that on June 21, 1971, at
his work table his supervisor , Aherens, told him that she
had talked with a Steelworkers representative and asked if
Meissner and Kornek would take a vote to see if it would
be worthwhile for the representative to start a campaign.
Subsequently , Meissner took the vote after 4 p .m. that
day on the corner of the parking lot directly in front of the
plant over a period of 15 to 20 minutes . Meissner stated
that during this period he saw Floyd Bydalek drive by
within 10 or 15 feet . After the vote , Meissner gave the slips
to Kornek . According to Meissner , the next morning the
men were informed of the vote result, Meissner informing
those in the assembly area before 7 : 30 a.m.
Concerning the meeting of Kornek with Lukas on June
23, Meissner stated that Kornek had advised the men of
the meeting the day before and during the noon hour that
day the men discussed their grievances which were written
down by Kornek for representation to Lukas the next day.
According to Meissner, when the meeting with Lukas was
over Kornek told the men what had transpired and told
Meissner that during the meeting he had told Lukas about
the vote the men took on June 21 , 1971. He also told
Meissner that Lukas had said that if a man thought he was
worthy of a raise he should see Lukas personally.
Meissner testified that on June 25 he asked to see Lukas
about a raise, but Backey, after seeing Lukas, advised
Meissner there was no raise coming for him. According to
Meissner , Backey told him that Lukas had said that
Meissner had missed a day without calling and a few
months before had given Lukas an ultimatum that he
would start looking for a new job if he didn 't get a raise.
According to Meissner , at 4 p .m. that day he went into the
office where Backey discharged him. According to Meiss-
ner, Backey stated the basis for the discharge as the
reorganization of the assembly department "and he didn't
think I would be able to fit in ," and that Meissner had
given an ultimatum that he would start looking for a new
job if he didn 't get a raise . Meissner testified that he had
missed work without calling in on May 20 , 1971, and was
told that if it happened again he would have a 3 -day layoff.
Meissner also testified that he had asked for a raise once or
twice before the May meeting and that he had told Backey
that if he didn't get a raise he would look for another job.
According to Meissner, in May another employee, Cote-
zon, didn't call in at least three times and had been given a
3-day layoff . Meissner testified that during his tenure at the
plant he had never received complaints about his work but
had been complimented , by. Backey and' Bydalek.
John Van Ells testified that he was employed by the
Respondent around June 1971. At his employment
interview he told Backey that forestry and recreational
land management was his field , but, because of budgetary
cuts , there would be no Federal or state hiring for 3 or 4
years. Van Ells stated that he worked in assembly until his
discharge on June 25, 1971.
According to Van Ells , around June 14 he received a
telegram from the Michigan Department of Natural
Resources advising him of an error in the scoring of his
examination and asking him to come to Lansing, Michi-
gan, for an oral interview . Van Ells showed the telegram to
Backey , asked to take a day off, and Backey approved.
When Van Ells subsequently returned to work , Backey
asked if he had been offered a job. "I said , no, I was not.
All this amounted to was putting my name on the list with
many other applicants for this job."
According to Van Ells , during his employment by the
Respondent discussions took place among the employees
with respect to forming a union. Items discussed were the
lack of exhaust fans and the failure to post a pay schedule.
According to Van Ells, the men had talked about walking
off the job , but Van Ells had suggested forming a union.
These discussions took place, according to Van Ells, while
the men worked and during lunch and other breaks outside
the building . Van Ells recounted an incident in which he
and Jean Ahrens were discussing the Union in the
assembly department when he became aware that Backey
was standing about 10 feet away. Van Ells stated that he
participated in the vote in the parking lot.
According to Van Ells , on June 24, 1971, Backey called
him to the office and said he was being let go because
"things didn't work out" and that Van Ells might take a
better job if it were offered . Van Ells stated he had never
had a complaint about his work.
There was testimony on record by Margaret Erdman,
who testified that at the time of the discharge of Meissner
and Van Ells she was employed in the engineering
department at the Respondent's plant , that Bydalek and
Backey were in that department and that the department
was located practically adjacent to the door of Lukas'
office . Mrs. Erdman recalls having a conversation with
LUBE DEVICES , INC. 775
Lukas on the day that Meissner and Van Ells were
terminated . Erdman recalled telling Lukas that she was
sorry for the "crippled boy" referring to Meissner. And,
according to Erdman , Lukas said "that they were doing
reorganizing , and they had to lay off some of them and,
well, we were sort of talking back and forth like that, and
he said , too, that he was sorry to let Mr . Meissner go, and
he said that . . . something about organizing a union out in
the shop ...... Mrs. Erdman stated that she told Lukas
that was rather ridiculous , that any union would bother
with a place that small , and Lukas responded that "you
would be surprised they really are trying ." Erdman also
stated that during this conversation something was said
about a union meeting out on the parking lot, but that as
far as she was concerned she had not been aware of any.
Mrs. Erdman testified further concerning her discus-
sion with Lukas on the day of the discharge of Meissner
and Van Ells that she recalled Lukas giving her some
campaign letters, that is, union letters . When queued on
cross-examination as to whether it would have been
possible to look out into the parking lot from any of the
company offices , Mrs. Erdman testified, "Well I don't
know why it wouldn 't be possible . . . . When he said
something about union guys passing out literature we ran
and looked out of the windows. I looked out of McAlpine's
but they had gone already."
There was testimony by Jean Ahrens , who testified that
the day after the straw vote was taken out on the parking
lot she asked Meissner how the vote came out and he was
telling her and they were saying something about the
Union when she heard a noise , turned around, didn't see
anyone at the time , but a little later saw Backey at the aisle.
In her testimony, Ahrens stated that before the discharge
of Van Ells and Meissner there were no changes in the
operation of the assembly department and that there were
no changes in the manner in which the work is performed
at her end . Ahrens testified that she worked regularly with
Meissner and she felt that Meissner did everything he was
hired to do and that there had never been any complaints
about ' the quality or ' quantity of Meissner 's work.
There was testimony of record by Gus Lukas on the
Respondent 's direct case in which Lukas testified that, in
the first 3 weeks of June 1971 , he had too many people in
the assembly department and he instructed the supervisors
to call off the ones that were not needed and keep the good
ones. Lukas stated that he gave these instructions to Mr.
Backey repeatedly . Lukas stated that when he hired Mike
Meissner he did so on the recommendation of a consulting
engineer who had stated that he had good luck and good
results with handicapped people. With respect to Van Ells,
Backey stated that after Van Ells' employment interview
he, Lukas, and Backey agreed that they would hire him, if
he would reassure or if he would give assurance that he had
no intention of joining the forestry department after the
Respondent spent time training him. Lukas stated that
when he heard from Backey that Van Ells had received a
telegram from the Michigan Civil Service and had had a
job interview, Lukas suggested that Backey replace Van
Ells. Lukas testified he himself made the decision as to who
would be terminated in the assembly department inasmuch
as Backey was procrastinating . Lukas stated that he made
the decision to terminate Van Ells as soon as he found out
that Van Ells was leaving and he made the decision on
Meissner and another employee the following Monday
which was around June 20. Lukas stated that he had
instructed Backey to have these men continue until the end
of the week , unless they were involved in something that
demanded immediate dismissal.
Lukas described his conversation with Kornek on the
date that Kornek had taken off early allegedly ill and then
reappeared later in the afternoon on the parking lot to
engage in concerted activity . Lukas testified that he asked
Kornek what he was doing there as Lukas thought he was
sick . Lukas stated that Kornek said that he had been home
and Lukas said that he couldn't have been because "we
called you." According to Lukas , Kornek then said, "You
couldn't" and called Lukas a damn liar. Lukas stated that
as he walked back to the plant following this incident he
made up his mind that Kornek was through and he told
someone either with him or at the door "that was it."
Lukas testified that that night he consulted an attorney
who advised him to put the chronology in writing or to
outline the problem in writing and Lukas then drafted a
letter that evening and sent it the next morning to the
lawyer to have it approved . According to Lukas, around 8
o'clock that morning all supervisors were notified that
Kornek would be terminated.
Lukas testified further that after the general talk meeting
in May, either on June 21 or 23 , he called Kornek into the
office to discuss his wage . Lukas stated that he did most of
the talking, telling Kornek that he had not gotten a merit
wage because of his moodiness and inability to grasp the
functions of the machines and, while he was going to give
him an increase , it was strictly a cost-of-living arrange-
ment . Following this wage discussion , according to Lukas,
they talked somewhat about the fumes and the misunder-
standing about the posting of a wage scale and Lukas
stated that he told Kornek that there was no definite
statement that the wage scale was to be posted, but that
wage scales were being worked on. Lukas stated that, while
he began work on this project, he never completed it
because he didn't have the necessary help.
Lukas denied that Kornek , at any time during the
conversation, told him that the employees had taken a poll
as to the Union . He denied that Kornek ever told him that
Kornek had approached the Union , and stated that there
had been no discussion whatsoever about a union at the
meeting. In his testimony , Lukas denied that he had ever
seen any poll taken by any of the employees ; that he had
ever heard prior to June 30, 1971 , that such a poll had been
taken; that the first time he heard that such a poll had been
taken was in a discussion with his lawyer ; and that he had
ever heard Van Ells talk about anything outside his
window , or Meissner say anything outside his window.
Lukas also denied that he had ever heard from any
supervisor that Van Ells had talked about a union or that
Meissner had talked about a union or that Kornek had
talked about a union prior to June 30 , 1971. Lukas denied
that he had ever heard from any employee that Meissner,
Kornek, or Van Ells had talked about a union . According
to Lukas , during working hours in the plant one must be
very close to another person to hear what they say in
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normal conversation because of the steady drone of the
running machines and the intermittent shop noises. In his
testimony, Lukas denied ever instructing any supervisory
employee to drive past the Dog and Suds Drive-In on June
30, 1971. Lukas stated that no supervisory employee of
Lube told him that he had driven by the- Dog and Suds
Drive-In on that day. Lukas stated that he did not instruct
his son nor Benecke to drive past the Dog and Suds on
June 30, 1971.
There was testimony of record by Thomas Hartman, a
college student who testified that he began employment
with the Respondent July 1, 1968, worked full-time during
the summer and part-time during the school year until
August 17, 1971, working basically in the machine shop.
According to Hartman, Shimon and Marquardt were his
foremen. Hartman testified that occasionally he helped
Kornek on the automatic screw machines. Hartman
testified that there was a problem with respect to fumes in
the machine shop and that subsequent to Kornek's
termination a change was made in the amount of oil put on
the machine. Hartman testified that on or about June 21,
1971, a vote was taken in the parking lot and slips of paper
were handed out by Meissner about 50 feet from the plant.
Hartman stated that he saw Floyd Bydalek in the area at
that time in or about his car and then saw him drive out of
the driveway. Hartman testified that on the morning of
June 30, 1971, during a break from 9:30 to 9:40 Kornek
passed out union literature to most of the employees and to
supervisory personnel, Shimon and Marquardt. According
to Hartman, when Shimon received the pamphlets from
Kornek, Shimon took them into the office, where,
according to Hartman, he handed them to Backey.
Hartman testified further that later that afternoon the
union meeting took place at the Dog and Suds Drive-In
where 15 of the employees met. During the course of that
meeting, according to Hartman, he observed Bydalek
driving past and about 5 minutes later driving past in the
other direction.
On cross-examination, Hartman stated that he did not
see Backey read the literature that Shimon handed him and
he did not see what Backey did with the literature. He did
not see Lukas reading the literature. In effect, Hartman
only saw the literature being handed to Backey. According
to Hartman, at a conference with Lukas on August 31,
Lukas did tell him that if there were work during the
holidays he would get it. Hartman testified that he did not
recall any prior to June 30, 1971, but that such discussions
could have been conducted inside the plant during
lunchtime prior to June 30, 1971. Hartman testified that
prior to June 30, 1971, Roger Marquardt would have been
aware of the union activity at the Respondent's plant
because he knew about the vote that was taken and
Hartman talked to him about it prior to June 30, 1971. In a
written statement made by Lukas' lawyer recording a
discussion with Hartman at the plant on August 31, 1971,
Hartman stated "There was very little talk whatsoever
about a union prior to June 30, 1971, the day Kornek was
discharged. I think the day Tom got fired was the first day
any supervisor could have known about any interest in a
union because that day Tom gave some literature to Joe
Shimon and said to Joe `you should know what's going on
here too. . . .' I don't know of any way that any supervisor
could have found out before that. Nobody saidjust a heck
of a lot about it."
Joseph Prikop testified that he worked for the Respon-
dent for about 4 1/2 years and is currently employed as the
shipping and receiving clerk. Prikop testified that on June
28 and 29 there were fumes in the plant and the smoke was
quite heavy. There had been such fumes on prior dates,
several times before and after , on other dates prior to and
subsequent to these dates.
According to Prikop, he was present at the discussion on
June 29, 1971, m the parking lot between Kornek and
Lukas, and Prikop testified that Kornek did not call Lukas
a liar . Pnkop testified concerning the incident that when
Kornek passed out literature to Shimon and Marquardt
that they both took several copies of the literature and that
subsequently Prikop returned to his working area which
was less than 25 feet from the engineering department
where he observed Joe Shimon, Floyd Bydalek, and Earl
Backey looking at the literature. According to Prikop, after
he, Prikop, had resumed working he saw Lukas come into
the engineering department and look at the same literature
for over a period of approximately a half hour to an hour.
According to Pnkop, Bydalek, Backey, Lukas, and
Marquardt were in that office together all morning and at
about 10:45 that morning Kornek entered the engineering
department.
Prikop testified that there were discussions among
employees outside of Lukas' office about the Union and
these discussions took place at the lunchbreak, the noon
hour break from 12 to 12:30, quite frequently just about
every day, and they were also held sometimes at the 9:30 to
9:40 break in the morning.
Prikop testified that there were occasions during the 10-
minute break period when Shimon and Marquardt were
present when employees were discussing the Union and
that some of these occasions occurred prior to June 30,
1971, and that in none of these discussions did Shimon or
Marquardt directly participate.
Earl Backey testified that he started working at the
Respondent's plant February 15, 1971. Backey testified
that the first time he became aware that any employee of
the Respondent was interested in forming a union was on
the morning of June 30 when Marquardt brought Kornek
into the office to give him his written termination.
Concerning the incident of the receipt of union literature,
Backey testified that at 9:30 that morning prior to the
Kornek discharge, Shimon came into his office while he
was working threw some papers on the top of Backey's
desk and said "here's some papers." According to Backey,
he didn't even look up to see if Shimon stayed. Backey
testified that he let the papers lay until he cleaned off the
top of his desk and then he put the papers in his desk
drawer with the intention of looking at it later. According
to Backey, he did not take the papers out of the desk
drawer until after Kornek was escorted out of the plant
after his discharge. According to Backey, at that time,
when he was in the office with Shimon, Shimon told him
that he had given him some union literature that had been
handed out in the morning. According to Backey, Lukas
said, "What literature?" and Backey gave Lukas the
LUBE DEVICES , INC. 777
literature. Backey testified that the first he became aware
that Kornek was to be discharged was on June 29 on the
parking lot at 4 o'clock, when Kornek called Lukas a liar.
According to Backey, as they went into the plant, Lukas
said "get rid of that man, I don't want him around here."
Concerning the vote taken in the company parking lot by
employees, Backey stated that he would not be able to see
that from his office and he didn't know anything about it.
Backey stated that he never heard or never overheard Mrs.
Ahrens, Meissner , or Van Ells talk about a union in the
shop.
Backey testified that the situation in the assembly
department was a mess early in June 1971; "we were not
able to get orders out of the plant. We were not able to find
the parts in the place. The bins and the parts were thrown
in many places and they weren't supposed to be. There had
to be a whole organizational of this assembly department
so we could make money on it." According to Backey, the
first thing he did to remedy this situation was to say that he
needed help, needed to have a supervisor, and had to have
a reorganization of the department. Backey stated he hired
four new employees in June. According to Backey, starting
a week after he hired these men, Lukas ordered him to
clean house as he couldn't afford to have all those people
in that department at one time and "they weren't working
out like they should have."
According to Backey, when Backey advised Lukas that
Van Ells wanted a day off for an interview with the State of
Michigan, Lukas said "get rid of him, we can't afford to
train a man and then he leaves."
In his testimony, Backey stated that Meissner told him
twice that he was going to look for another job, within a
month before he was discharged. The record indicates that,
in a statement to the investigator for the Board, Backey
stated that Meissner told him he was going to look for
another job once.
Roger Marquardt testified that he was an employee of
the Respondent over a penod of 7 or 8 years and that he
was supervisor on the automatics. Marquardt stated that
the first time he became aware that any employees of the
Respondent were forming or were interested in forming a
union was on June 30, 1971, and that he became aware of
that at the time of Kornek's discharge. Marquardt stated
that he was not aware of it before the discharge.
Concerning his receipt of union literature from Kornek
on the day of Kornek's discharge, Marquardt testified that
he recalled that the break penod on that day he received a
piece of paper from Kornek which was "something about a
warning to supervisors or something like that."
Q. When you received that, what did you do with
it?
A. Put it in my pocket. I was talking to another
man.
Marquardt stated that Kornek never asked him for
permission to pass out slips for a petition in the plant.
Marquardt stated that he did not see a poll taken by
employees in the parking lot and that the first time he
heard that such a poll had taken place was in July 1971.
Marquardt stated that Meissner never talked to him about
forming a union at the Respondent's plant and that within
the 2 or 3 months before his discharge Kornek did not talk
to him about a union.
Marquardt did recall a meeting of plant employees and
management personnel in May 1971 at which time a
conversation took place between Lukas and Kornek.
According to Marquardt, during this exchange between
Lukas and Kornek, Lukas told Kornek that he was moody
and his work wasn't what Lukas expected and Kornek
mentioned that he didn't like the wage he was getting. In
his version of the conference between himself, Kornek, and
Lukas around June 29, Marquardt stated that Lukas gave
Kornek a 21-cent raise specifying that it was not a merit
raise ; that wages were discussed and that insurance might
have been brought up; that the wage schedule was
discussed and ventilators were discussed. According to
Marquardt, Kornek at no time during that meeting
indicated that the employees had taken a poll or that the
employees were interested in getting a union.
Marquardt stated that Kornek was called into the office
and discharged shortly after the break on June 30, and that
the absolute first time he ever knew there was a union
organizing campaign going on was when Kornek men-
tioned it during his discharge interview in the office.
In testimony at his second appearance on the stand,
Lukas stated that he had never told Mrs. Erdman that
Meissner was fired because of his interest in or activities on
behalf of the Union. Lukas stated that he did converse with
Erdman concerning the Machinists Union in general terms
and did this frequently during the penod from July 1, 1971,
to the date Mrs. Erdman left.
There was testimony of record by Floyd Bydalek in
which he said that on June 29, 1971, Marquardt came to
him and told him that Kornek had gone home sick and
that a bushing was missing. Bydalek stated that he called
Kornek at home after lunch and there was no answer and
he reported that to Lukas who instructed him to call again
later which he did and there was still no answer . Bydalek
stated that later that afternoon he was told that Lukas was
out in the parking lot talking to Kornek, he approached,
and according to Bydalek, Lukas said to Kornek that he
thought Kornek had been at home and Kornek said he
was, and Lukas said that he had tried calling Kornek and
Bydalek had tried calling Kornek, and according to
Bydalek Kornek said "you're liars." According to Bydalek,
Kornek took "perhaps" a half step toward Lukas and
Lukas said "Tom, remember, you're on private property."
According to Bydalek, as he- and Lukas walked back into
the plant, Lukas told him "we can't put up with this kind of
nonsense anymore." According to Bydalek, later that
evening he talked to Lukas on the telephone and Lukas
told him that he had sought legal advice on how to handle
the matter of discharging Kornek. According to Bydalek,
the next morning Lukas had a letter written which he gave
to Bydalek to be taken down to the lawyer's office for
approval. When Bydalek returned to the plant a final draft
of the letter was typed and the discharge of Kornek was
effected.
Bydalek testified further that after Kornek left the plant
after his discharge, the fact came out that literature had
been passed out during the breaktime and that Shimon had
brought it to Backey and Backey had put it in his desk
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drawer without looking at it . According to Bydalek, that
was the first notice that he or Lukas had had about union
involvement.
Bydalek stated that he had never seen any poll taken by
any employees in the parking lot; that he was never
instructed to drive past the Dog and Suds on June 30, 1971,
as he had spent the greater part of the afternoon attending
a hearing on unemployment compensation.
Joe Shimon testified that he was employed by the
Respondent as shop foreman and had been employed since
1962 and had served on a bargaining committee for the
Machinists Union at one time . Shimon stated that the first
time he became aware that any employee was interested in
getting a union at the Respondent's plant was on the
morning of the break when Kornek gave him the literature.
Shimon stated that Kornek told him that he might as well
know what's going on , too. Shimon stated that he glanced
at the literature to see which Union was handing it out and
took it into the office and gave it to Backey . According to
Shimon , Backey was behind the desk working on papers.
He handed Backey the material and walked out. Shimon
testified he ordinarily ate lunch by the packing bench and
took his coffeebreak outside occasionally and that he had
never heard the men talk about a union during those
breaks in June.
Analysis and Discussion , Findings, and
Conclusions
A threshold question is whether or not the Respondent at
the time of the discharges of Meissner , Van Ells, and
Kornek had knowledge of the union activity in the plant.
The record discloses that in May 1971 employees and
management attended a meeting in the plant at which
differences and grievances were aired . It is clear from the
record that Kornek was the key figure in the presentation
of concerted grievances for the employees . It is also clear
from the record that the men took a vote on the parking lot
on June 21 with Kornek and Meissner key figures and that
Marquardt was aware of this activity and the subsequent
discussions by the employees both in and out of the plant
concerning the vote favorable for unionization . Based on
my observation of the demeanor of the witnesses as they
testified, I do not credit Lukas' testimony that the first time
he was aware of union activity on the part of his employees
was subsequent to Kornek 's discharge the morning of June
30, 1971 . I found Lukas too smooth and contrived to be
credible . His testimony was lacking in conviction . Credit-
ing Kornek's versions of his meeting with Lukas on June
23, I find that Kornek advised Lukas at that time that a
vote had been taken and also made Lukas aware that
Meissner was involved in the activity . I do not credit
Lukas' denial . With respect to the conflicting versions of
Lukas and Kornek over the question of whether Kornek
called Lukas a liar that afternoon , I credit Kornek and find
that he did not call Lukas a liar . I do not credit Lukas'
testimony in this regard nor the attempt by others of
Lukas' management to corroborate Lukas' version. It is
also clear from the record that on the morning of June 30,
Kornek passed out union literature while on the 9:30 break
in the presence of Marquardt and Shimon , and Kornek
gave Shimon copies of the literature. It is also clear that
Shimon promptly and before the break was ended carried
the literature to Backey 's office where Backey , according to
his incredible testimony , placed the papers in his desk
without looking at them . In this regard , I do not credit
Shimon's and Backey 's testimony with respect to what
transpired at that time.
Shimon testified that he dropped the union literature on
Backey's desk and did not recall what he said, "if I said
anything."
Q. Didn ' t you consider it, at that time , pretty
significant, the fact that there was a union that was
trying to organize the employees?
A. Mr. Backey was busy . I didn 't care to disturb
him any more than I had to.
I simply do not credit Shimon 's testimony nor do I credit
Backey's statement that the first time he became aware of
the substance of the literature was subsequent to Kornek's
discharge . The testimony of Lukas , Shimon , and Backey
had an unmistakable flavor of fabrication.
In the close and interwoven working relationship
established on this record between Backey and Lukas, I am
thoroughly convinced that Backey came into possession of
the union literature through Shimon , was promptly aware
of the situation , and passed this critical news on to Lukas
prior to the discharge of Kornek . Additionally , it is clear
from testimony by Erdman, which I credit , that Lukas was
aware of the vote on the parking lot which had occurred on
June 23 and that in a discussion with Erdman , subsequent
to Meissner's discharge , Lukas linked Meissner 's decreas-
ing effectiveness as a worker with union activity. I am
persuaded and I find from all of the foregoing that the
Respondent indeed had knowledge of the union activity in
its plant prior to the discharges of Meissner , Van Ells, and
Kornek . In so finding, I credit the testimony of Prikop and
Erdman who impressed me as sincere witnesses. While
much was made of the incident in which Backey allegedly
overheard Ahrens and Meissner conversing with respect to
the Union, I do not view this incident as critical as there is
ample credited testimony of record to establish knowledge
by the Respondent without reliance on the Backey
incident.
It is well settled that direct evidence of a purpose to
discriminate is rarely obtained , especially as employers
require some sophistication about the rights of their
employees under the Act, but that such purpose may be
established by circumstantial evidence . In the case at hand,
following the vote for a union openly taken on the parking
lot on June 21 in which Meissner and Kornek were key
participants and the meeting on June 23 between Kornek
and Lukas , at which time Lukas was advised that a poll
had been taken, it is clear to me that the actions of the
Respondent in discharging Meissner and Van Ells sum-
marily on June 25 and also summarily discharging Kornek
on June 30 were discriminatory and that the reasons
asserted for the discharges advanced by the Respondent
were pretexts to mask the discriminatory discharge.
N.LR.B. v. Montgomery Ward Co ., Inc., 242 F.2d 497, 502
(C.A. 2), cert. denied 355 U.S. 829. In so finding, I have
taken into account the abruptness, manner , and timing of
these discharges and the nature of the Respondent's
rationale for the discharges.
LUBE DEVICES , INC. 779
The Respondent went to some length to establish an
economic rationale for a so-called reorganization of the
assembly area. I am persuaded that the rationale is invalid,
particularly since management was content to let this
alleged situation exist and was motivated to take action to
change it only after it became aware of the organizational
campaign and then precipitously. Additionally, I was not
impressed by the rationale for the discharges of Meissner,
Van Ells, and Kornek. The discharge of Meissner was
presumably based on his inability to move about, when in
fact over the penod of his employment he had clearly
functioned satisfactorily, and had been commended for his
work. Lukas' dissatisfaction with Meissner and his alleged
inability to function effectively is clearly coincidental with
the development of union activity and the Respondent
knowledge thereof. The discharge of Van Ells was
presumably based on the Respondent's concern that Van
Ells would be lost at some future time to other employ-
ment , and the discharge of Kornek was allegedly for lying
and calling the boss a liar, both of which reasons have not
been established by the evidence on this record.
While the Respondent argues in its brief that the
decision to make personnel changes in the assembly
department had been made long before any of the
reorganization activity occurred, on the contrary, the
record discloses that the decision was made sometime after
June 1, 1971, and perhaps a week or 2 prior to June 25,
1971. What is more significant in my view is that the record
does not establish that this decision involved the discharge
of Meissner or Van Ells, but that the decision to terminate
these individuals coincides with the conduct of the
employee poll on June 21, 1971.
With respect to the Respondent's argument that Meiss-
ner was discharged because in effect there was no job for
him which he could perform, this is simply belied by the
fact that Meissner on this record had performed satisfacto-
rily and was not given the opportunity to perform under
the reorganized system. The record indicates that underly-
ing the failure of the Respondent to give Meissner the
opportunity to perform is the testimony of Lukas linking
Mei§sner's allegedly worsening performance to the advent
of union activity. In sum, I am not persuaded on this
record that Meissner and Van Ells were candidates for
discharge prior to the advent of union activity and
knowledge thereof by the Respondent, nor am I convinced
that there was no job for Meissner which he could perform.
For while it is well settled that an employer may discharge
an employee for any cause or for no cause at all, it is also
well settled that he may not discharge an employee because
of his union or other protected concerted activity.
Assuming, arguendo, that the bases for the discharges of
Meissner, Van Ells, and Kornek were clearly valid, I would
nevertheless find, on the basis of the record herein, the
knowledge of the Respondent of the union activity was a
motivating or substantial reason for the discharge, notwith-
standing the existence of a valid ground for such discharge.
Accordingly, I find that the discharges of Meissner, Van
I 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.
Ells, and Kornek • were each discriminatory and each in
violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By unlawfully threatening employees and by engag-
ing in surveillance of the union activity of its employees,
the Respondent engaged in unfair labor practices constitute
ing interference, restraint, and coercion in violation of
Section 8(a)(1) of the Act.
2. By unlawfully discharging Michael Meissner, John
Van Ells, and Thomas Kornek, Respondent engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
4. Michael Meissner, John Van Ells, and Thomas
Kornek having been discriminatorily discharged by the
Respondent prior to the election held on August 20, 1971,
are eligible to vote in that election.
IV. THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary, and recommend, that the Respondent be
ordered to cease and desist from the unfair labor practices
found and from in any other manner interfering with,
restraining, or coercing its employees.
Affirmatively, I recommend that Respondent offer to
Michael Meissner, John Van Ells, and Thomas Kornek
immediate and full reinstatement to the position which
each respectively held at the time of discharge or to a
substantially equivalent position, without prejudice to
seniority and other rights and privileges, dismissing if
necessary and employee hired subsequent to the date of
such discharge. I further recommend that the Respondent
make Michael Meissner, John Van Ells, and Thomas
Kornek whole for any loss of earnings suffered because of
the discharge, by paying to each of them a sum of money
equal to that which would have been paid by Respondent
from the date of discharge to the date on which
Respondent offers reinstatement as aforesaid , less net
earnings, if any, during the said penod. The loss of
earnings under the order recommended shall be computed
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Having found that the discharges of Meissner, Van Ells,
and Kornek were unlawful and that they were eligible to
vote in the election, I will recommend that their ballots be
opened and counted.
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 recommended: i
ORDER
The Respondent, Lube Devices, Inc., its officers, agents,
successors, and assigns, shall:
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.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
a. Unlawfully threatening its employees and engaging
in surveillance of the union activities of its employees.
b. Unlawfully discharging employees or otherwise
unlawfully discriminating in regard to their hire, tenure of
employment, or any term or condition of employment
because of their interest in and activities on behalf of
District No. 10, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other union.
c. In any other manner interfering with, restraining, or
coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
a. Offer to Michael Meissner, John Van Ells, and
Thomas Kornek, each of them, immediate and full
reinstatement to their former or a substantially equivalent
position, and make them whole for any loss of earnings
they may have suffered by reason of Respondent's
discrimination against them, in the manner and to the
extent set forth in the section herein entitled "The
Remedy."
b. Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
c. Preserve and make available to the Board or its
agents on request, for examination and copying, all payroll
records and reports, and all other records necessary to
analyze the amount of backpay due and the right of
reinstatement under the terms of this recommended Order.
d. Post at its plant in Manitowoc, Wisconsin, copies of
the attached notice marked "Appendix." 2 Copies of said
notice on forms provided by the Regional Director for
Region 30, after being signed by a representative of the
Respondent, shall be posted immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter in conspicuous places. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
e. Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith .3
Finally, it is recommended that the ballots of Michael
Meissner, John Van Ells, and Thomas Komek in the
election in Case 30-RC-1539 be opened and counted and
that the Board order such disposition as it may deem
appropriate in the circumstances.
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
3 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 30, in writing , within 20 days
from the date of this Order, what steps have been taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully discharge employees or
otherwise discriminate against them because of their
union activities.
WE WILL NOT unlawfully threaten employees nor
engage in surveillance of union activities.
WE WILL offer to restore Michael Meissner, John
Van Ells, and Thomas Kornek to their jobs and pay
each of them for wages lost because of their discharges.
LUBE DEVICES, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Commerce Building, Second
Floor, 744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.