Manimark Corp.

National Labor Relations Board - Board Decisions

Feb 7, 1991

301 N.L.R.B. 599 (N.L.R.B. 1991)

599
301 NLRB No. 83
MANIMARK CORP.
1 Member Devaney noted in the order remanding that, at the hearing, the
Respondent objected to amendment of the complaint to include a threat of
plant closure. He further noted that the Respondent did not raise this issue to
the Board in its exceptions, and thus the question of amendment of the com-
plaint is not before us.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless a clear preponderance of all the relevant evidence
convinces us they are incorrect. Standard Drywall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
3 In adopting the judge’s conclusions that the Respondent unlawfully dis-
criminated against and discharged employee Butner, we note that these conclu-
sions are not affected by consideration of the alleged altercation between
Butner and his supervisor referred to by the Respondent. This event was not
discussed by the judge because there is no evidence that it was relied on by
the Respondent when it took action against Butner.
4 The record reflects that Day was an attendant, and that attendants were ex-
cluded from the unit. However, Day testified to the effect that she believed
her position was unclear because her salary and duties were analogous to those
of the drivers.
5 In light of our finding that Smith’s March 23 interrogation of Day was
unlawful, we find it unnecessary to pass on the alleged April 1 interrogation
of Day by Vending Manager Dunahoo. Any such finding would be cumu-
lative. The General Counsel in its cross-exceptions further asserts that an inter-
rogation of Butner by Dunahoo the night of the election was unlawful. Be-
cause this interrogation was not alleged or fully litigated, we decline to pass
on it.
Manimark Corporation and Joseph Butner. Case 7–
CA–28430
February 7, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 16, 1989, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief,
cross-exceptions, and a supporting brief.
On May 22, 1990, the National Labor Relations
Board remanded the proceeding to the judge for certain
further findings of fact, credibility resolutions, conclu-
sions of law, and recommendations. Specifically, the
complaint, as amended at the start of the hearing, al-
leged that a threat of plant closure by the Respondent
was made within a week of the election.1 Because the
judge believed that the General Counsel did not allege
that this threat occurred during the 10(b) period, he
failed to consider testimony relevant to this alleged un-
fair labor practice and to make credibility findings with
respect to such testimony. In light of the fact that the
complaint alleged, and the General Counsel asserted,
that the conduct complained of did occur within the
10(b) period, we remanded the case to the judge for
him to prepare a supplemental decision containing spe-
cific findings of fact, credibility resolutions, conclu-
sions, and recommendations concerning the threat al-
legedly made by the Respondent’s president.
The judge issued the attached supplemental decision
on June 27, 1990. Subsequently, the Respondent filed
exceptions to the judge’s supplemental decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the judge’s decision and
supplemental decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to
adopt the supplemental recommended Order as modi-
fied.
The judge failed to find that the Respondent violated
Section 8(a)(1) when it interrogated employees because
he noted the ‘‘absence of any showing of coercion.’’
We disagree and conclude that the interrogation of em-
ployee Day by Supervisor Smith on the day of the
election was unlawful. Day testified without
controversion that she had asked Smith on several oc-
casions whether she could vote in the election.4 On the
day of the election, she again asked Smith if she could
vote. Smith asked which way she was voting. After
Day said she would not answer, Smith said she could
not vote. Smith’s questioning of Day was thus ex-
pressly designed to elicit Day’s union sentiments and,
further, Smith’s response left the clear impression that
Day could not vote, even under challenge, because she
would not provide an answer. Contrary to the judge,
we find that such questioning has a chilling effect on
the union activities of employees and interferes with
employee exercise of rights guaranteed by the Act. See
Kellwood Co., 299 NLRB 1026 (1990), and Nemacolin
Country Club, 291 NLRB 456 (1988).5
ORDER
The National Labor Relations Board adopts the rec-
ommended supplemental Order of the administrative
law judge as modified below and orders that the Re-
spondent, Manimark Corporation, Belleville, Michigan,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraphs 1(e) and (f)
and renumber former paragraph 1(e) as paragraph 1(g).
‘‘(e) Prohibiting employees from discussing wages
with other employees.
‘‘(f) Coercively interrogating any employees about
union support.’’
2. Add the following as the last sentence of para-
graph 2(a).
‘‘Loss of earnings for the period of time Butner was
removed from his overtime route will by computed
consistent with Ogle Protection Service, 183 NLRB
682 (1970).’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1988 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript, dated
March 23, 1989, is granted and received in evidence as G.C. Exh. 9.
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 found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge, remove from a weekly
overtime route, issue a warning letter to, or otherwise
discriminate against any of you for supporting Local
124, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–
CIO or other union.
WE WILL NOT threaten any of you that we will close
the business if the Union wins the election.
WE WILL NOT indicate that your job is in jeopardy
for supporting a union.
WE WILL NOT, if you are subpoenaed by the NLRB,
refuse you time off because you are not testifying for
the Company.
WE WILL NOT prohibit you from discussing wages
with other employees.
WE WILL NOT coercively interrogate you about your
union support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Joseph Butner immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits, less
any net interim earnings, plus interest.
WE WILL reinstate Joseph Butner to the weekly
overtime route at the University of Michigan Hospital.
WE WILL notify him that we have removed from our
files any reference to his discharge, removal from the
overtime route, and warning for being late and that
they will not be used against him in any way.
WE WILL rescind our policy prohibiting discussion
of wages among employees.
MANIMARK CORPORATION
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Detroit, Michigan, on January 30–31, 1989. The
charge was filed September 12 (amended at the trial) and
served September 14, 1988.1 The complaint was issued De-
cember 26.
Route driver Joseph Butner, the Charging Party, was a fa-
vored employee until he began organizing the Union in late
January. After the Union filed a petition on February 16, the
Company referred to Butner as a ‘‘troublemaker’’ for starting
the Union and on February 23 gave him three warning letters
at one time. One warning was for ‘‘talk[ing] to other em-
ployees regarding their wages.’’
On March 24, the day after the Union lost the election, the
Company removed Butner from a weekly overtime route and
suggested that he consider other employment. On July 5 it
gave him a fourth warning letter and on August 26, when
he made the mistake of leaving a vent window on his truck
open (but with the alarm on), the Company summarily dis-
charged him.
The primary issues are whether the Company, the Re-
spondent—after the March 14 beginning of the 10(b) limita-
tion period—(a) enforced an illegal unwritten rule prohibiting
employees from discussing wages, (b) discriminatorily re-
moved Butner from the overtime route, issued him the fourth
warning letter, and discharged him for supporting the Union,
and (c) unlawfully informed a subpoenaed witness that she
could not have time off from work to attend the trial because
she was not testifying for the Company, violating Section
8(a)(1) and (3) of the National Labor Relations Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, provides vending and cafe-
teria services from its facility in Belleville, Michigan, where
it annually receives goods valued over $50,000 directly from
outside the State. The Company admits and I find that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that Local 124,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO (the Union), is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Section 10(b) Limitation Period
The complaint does not allege any violations of the Act
before March 14, which is 6 months before service of the
charge.
The General Counsel, however, contends in his brief (at
29) that the Company ‘‘violated Section 8(a)(1) throughout
the election campaign’’ (from late January until the March
23 election). He cites actions taken against route driver Jo-
seph Butner and evidence of other conduct before March 14,
including (1) interrogation by President Ralph Krochmal,
General Manager Gary Morris, Vending Manager Richard
601MANIMARK CORP.
Dunahoo, and Supervisor Randy Smith, (2) threatened plant
closure, (3) created impression of surveillance, (4) telling
employee to engage in surveillance, (5) promises of pro-
motion and benefits, etc. He then argues that although ‘‘no
remedy can be sought’’ for these ‘‘violations’’ outside the
10(b) limitation period, they are ‘‘relevant background evi-
dence’’ for violations within the limitation period.
I do not rule on the legality of any of the Company’s con-
duct before March 14, but I do find the Company’s giving
Butner three warning letters and calling him a ‘‘trouble-
maker’’ for starting the Union (discussed below) to be rel-
evant background to Butner’s August 26 discharge.
I credit the testimony of route driver Walter Ford that
Vending Manager Dunahoo (despite his denial, Tr. II, 103)
told Ford during the election campaign that the Company
‘‘knew for sure’’ that Butner started the Union and that
Butner ‘‘would be fired sooner or later’’ (Tr. 172). (By his
demeanor on the stand, Ford impressed me as being an hon-
est witness.)
I am not convinced, however, that this happened after
March 14, when President Krochmal was telling employees
in meetings that there was no truth to Butner being fired as
long as he did a good job (Tr. 72, 176; Tr. II (2d of trial),
48). I therefore do not rule on the legality of Dunahoo’s
statement. Furthermore, because of Krochmal’s denials in the
meetings, I do not rely on Dunahoo’s statement in deter-
mining the Company’s motivation for Butner’s discharge.
B. Discharge of Joseph Butner
1. A good employee
Route driver Butner was considered a good employee be-
fore he contacted the Union in late January and began orga-
nizing the employees. Hired in October 1984, he was the
second senior employee among the 15 route drivers. (Tr. 12–
13.) As discussed below, he was assigned ‘‘the best route,
the best hours.’’
President Krochmal had personally recognized Butner’s
good work performance. In August 1987, Krochmal told him
that Krochmal had heard he was considering leaving his job
because the Company was changing its insurance policy.
(Butner’s wife was expecting a baby.) It is undisputed, as
Butner credibly testified (Tr. 56), that Krochmal said: ‘‘Joe,
you’re a good employee and I’m willing to pay the $1000
deductible for our insurance out of my pocket.’’
Before his union organizing began, Butner had never been
given any written warning letter (Tr. 24). At the time of his
discharge, as discussed, his supervisor (Michael Bailey, who
did not testify) admitted to him that ‘‘personally I’ve never
had a problem with you or with your work.’’
2. Three warning letters at one time
a. Warning for discussing wages
On February 23, the week after the Union filed a petition
on February 16, General Manager Morris called Butner to
the office and gave him three written employee warning let-
ters (Tr. 5, 22). The first one (G.C. Exh. 2), dated February
22, read:
Joe received a verbal warning from Gary Morris not to
talk to other employees regarding their wages.
The warning concerned Butner’s conversation about Feb-
ruary 18 with attendant Pam Frost, a company employee who
serviced vending machines at the General Motors parts ware-
house. In Butner’s conversation with Frost, while he was
making a delivery to the warehouse, he mentioned the Com-
pany’s $6 attendant wage rate (which was the rate being paid
at the University of Michigan Hospital). (Tr. 16–17.) After
the conversation, Frost complained to General Manager Mor-
ris that she was not making this rate, and Morris explained
that the difference was the night differential at the University
of Michigan Hospital (Tr. 55–56).
The next day Morris asked Butner if he had talked to Frost
about her wages and he answered yes. Morris said that doing
so was a violation of company policy and that ‘‘Everyone
knows you just don’t discuss wages with other employees.’’
Butner said he was not aware of this policy and that he
would not do it again. (Tr. 17–18, 68.)
Even though Butner denied knowledge of the unwritten
rule against discussing wages and promised not to do it
again, the February 22 written warning letter was prepared—
Butner’s first in over 3 years of employment. (Because of
Supervisor Bailey’s statement to Butner at the time of his
discharge that ‘‘personally I’ve never had a problem with
you or with your work,’’ I note that the warning letter bears
a printed signature for Supervisor Bailey after the words,
‘‘Warning Written By,’’ not Bailey’s signature as on later
warning letters.) On February 23 General Manager Morris
presented the warning letter to Butner, together with the two
other warning letters.
Meanwhile, Vending Manager Dunahoo telephoned attend-
ant Kimberly Day at the University of Michigan Hospital.
Dunahoo asked if she had talked to anybody about her wages
and she told him yes. Dunahoo said she was not allowed to
talk to anybody about her wages, except to Dunahoo or the
company president. A few days later she asked her super-
visor, Randy Smith, why Dunahoo had questioned her about
this. Smith explained that an attendant (Frost) was upset
about her wages because Butner had told the attendant ‘‘how
much that we made at the U of M Hospital.’’ (Tr. 155–156.)
It is undenied, as Day further credibly testified, that both
Dunahoo and Smith talked to her about the Union. Dunahoo
stated that Butner was ‘‘a troublemaker in starting the Union
[emphasis added],’’ and Smith also referred to Butner’s start-
ing the Union. (Tr. 154–155.) General Manager Dunahoo,
who called Butner a ‘‘troublemaker,’’ signed each of the
three warning letters as ‘‘Supervisor,’’ even though Michael
Bailey was Butner’s supervisor.
b. Warning for unlocked machine
Butner’s second employee warning letter, dated February
23 (G.C. Exh. 3), read:
Randy Smith had to go to Pray Harold [building] Soda
3 and close door of Machine.
About 30 minutes before General Manager Morris gave
Butner this and the other two warning letters on February 23,
Morris called him to the office upon his return from his
route. There, as Butner credibly testified (Tr. 19):
Gary [Morris] asked me if I had serviced a particular
vending machine called Soda 3 [in the Pray Harold
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
building] on the Eastern Michigan campus. I said that
I had. He said, well, you left it open. We had to send
[Supervisor] Randy Smith out to close it. I told him I
found that hard to believe, but I guess it was possible.’’
As indicated by the other employee warning letters that the
Company produced at the trial, this was the first time that
a warning letter had been issued for this offense. (I note that
R. Exhs. 3 & 4 are not warning letters, merely notes to the
file.) Later in the election campaign, on March 2 and 16 (R.
Exhs. 6 and 12A), two similar warning letters were issued
to other employees.
This offense was a fairly regular occurrence among the
drivers and attendants, caused by the closed door not being
pressed hard enough against the frame to engage the ‘‘T’’
bar (Tr. 132–134, 162, 185–186; Tr. II, 36–38). The Com-
pany admits in its brief (at 21): True enough, this happens
from time to time to everyone [emphasis added].’’
It has even happened when an employee’s work was being
checked. On Friday, September 23, General Manager Morris
himself was riding with driver Lisa Bohus, checking her
route. The next Monday morning Morris stopped in the ga-
rage and told Bohms: ‘‘I meant to tell you . . . that one of
us left the [cup soda] machine . . . unlocked on the third
floor of BNR.’’ This occurring after warning letters were
issued for this offense during the election campaign, Bohms
asked, ‘‘Are we both going to get written up for this?’’ They
both ‘‘kind of laughed.’’ (Tr. 103–104.)
c. The overhead door warning
Butner’s third employee warning letter, dated February 23
(G.C. Exh. 4), which was given him at the same time on that
date, read:
Joe received a verbal warning from Gary Morris not to
leave overhead doors open and unattended.
In the conversation about 30 minutes earlier, when General
Manager Morris mentioned the unlocked vending machine,
Morris added that someone saw Butner leave the overhead
door open. Morris was referring to Butner’s daily practice,
for over 2 years, of pressing the overhead door control but-
ton after loading his truck and, while the door was opening,
going to pick up his already-poured cup of coffee in the of-
fice. (Tr. 19–21, 64.)
Butner responded: ‘‘I [have] always done it that way, and
I wasn’t away from the door for a period of more than 15
seconds or so.’’ Morris said it was a security problem, that
‘‘we couldn’t do that. Someone may be able to come in and
rob us.’’ Butner promised that it would not happen again.
(Tr. 19–20; Tr. II, 33.)
The evidence is clear that both before and after February
23, the overhead door was left open for long periods of time
(Tr. 96–99, 134–136, 141–142).
When Morris showed him and explained all three of the
warning letters, Butner responded (Tr. 22):
I [don’t] think it [is] fair, that other employees [have]
done the same type of so-called violations and not re-
ceived any warning at all. He said, well, you’re entitled
to your opinion.
Under all the circumstances, including the Company’s call-
ing Butner a ‘‘troublemaker’’ for starting the Union, I find
that the Company issued the three warning letters to him in
reprisal for his union organizing.
3. Removal from overtime route
Butner served as the union observer at the March 23 elec-
tion. The vote was 14 to 7 against union representation.
On March 24, the day after the election, President
Krochmal, General Manager Morris, and Vending Manager
Dunahoo spoke to Butner in Krochmal’s office. In the con-
versation, as Butner credibly testified, Morris told him (Tr.
37):
If you want to get the Union in here, you must be dis-
satisfied with the job. If you’re dissatisfied with the
job, you have a bad attitude. Therefore, we don’t want
you spreading this bad attitude. Therefore, we’re not
going to let you have any more contact with the attend-
ants.
Butner asked Morris if that included the University of Michi-
gan route. Morris answered, ‘‘Yes. You won’t be doing that
anymore.’’ (Tr. 37.) His removal from the University of
Michigan Hospital route deprived Butner of $55 in overtime
each week. For the past 2 years he had made a delivery to
that hospital every Friday, after his regular hours. (Tr. 40.)
At one point Morris admitted his concern about Butner or-
ganizing the attendants. Then questioned about the March 24
conversation, Morris testified: ‘‘I had told Joe that in his
contact with the attendants—he was not to discuss their
wages or in any way incite them as to union activity’’ (Tr.
II, 58, emphasis added).
In this conversation General Manager Morris also gave a
related reason for removing Butner from the University of
Michigan route. As Butner credibly testified, Morris told him
that he had again ‘‘violated their policy regarding discussing
wages’’ when he ‘‘tried to get [University of Michigan Hos-
pital attendant] Kim [Day] included in [the March 23] vote’’
(Tr. 38). Morris admitted taking Butner off the University of
Michigan route because he thought Butner was talking to
Day about wages (Tr. II, 72–73).
I find that both reasons for removing Butner from the Uni-
versity of Michigan Hospital route were unlawful. His re-
moval for the first reason (to prevent him from spreading his
prounion ‘‘bad’’ attitude to the attendants, ‘‘incit[ing] them
as to union activity’’) was unlawful interference with the em-
ployees’ protected activity and also was unlawful discrimina-
tion against him for supporting the Union, in violation of
Section 8(a)(1) and (3) as alleged in the complaint.
The second reason (to penalize Butner for violating the
Company’s unwritten rule, prohibiting all employee discus-
sions of their wages) was enforcement of a clearly illegal
rule. The court held in Jeannette Corp. v. NLRB, 532 F.2d
916, 919–920 (3d Cir. 1976): ‘‘[W]e sustain the Board’s
finding that the Company’s rule broadly prohibiting discus-
sion of wages among employees is an unfair labor practice
under section 8(a)(1).’’
I therefore find, as alleged in the amended complaint, that
the Company removed Butner from the overtime route to en-
force ‘‘its unlawful policy prohibiting employees from dis-
cussing wages with other employees,’’ in violation of Section
603MANIMARK CORP.
8(a)(1). I also find, as alleged in the complaint, that the
Company ‘‘interfered with its employees’ Section 7 rights by
reiterating [after March 14] its policy prohibiting employees
from discussing wages with other employees,’’ further vio-
lating Section 8(a)(1).
In addition I find that these reasons that General Manager
Morris gave for removing Butner from the overtime route
demonstrated a concern that Butner would not stop his union
organizing and, in another campaign, would attempt to
spread it to the attendants, who had been excluded from the
vote the day before (Tr. 5). I therefore find them to be rel-
evant to Butner’s discharge 5 months later.
In this connection I note that during the election campaign,
President Krochmal referred to an election a year later. After
asking Butner ‘‘How did you pick this Local?’’ Krochmal
criticized the Union and told Butner (Tr. 30) that we ‘‘may
have to vote no on this [local] and wait till next year.’’
I also note that on April 1 (the week after the election),
Vending Manager Dunahoo asked attendant Day why she
would want to be involved in the union election and pro-
ceeded to ‘‘straighten out’’ her pay problems. He revealed
the Company’s continuing concern about Butner’s union or-
ganizing by telling Day that Butner was ‘‘a troublemaker for
starting everything [emphasis added].’’
In the absence of any showing of coercion, I dismiss the
allegations of unlawful interrogation since March 14.
4. ‘‘Should consider other employment’’
It is undisputed that in the same conversation on March
24, as Butner credibly testified (Tr. 37), President Krochmal
reminded Butner that Krochmal had given him ‘‘the best
route, the best hours’’ and stated: ‘‘Joe, I’m very dis-
appointed in you. Trying to get the Union in here was the
lowest possible thing you could have done.’’
General Manager Morris also stated that ‘‘we’re very dis-
appointed in you.’’ He further stated, ‘‘I don’t know how
you can look yourself in the mirror in the morning knowing
you have to come to this job.’’ He then suggested that
Butner should consider other employment. Thinking that
Morris wanted him to quit immediately, Butner said that
‘‘this takes time.’’ Morris responded, ‘‘Well, I’d like a deci-
sion by Monday.’’ (Tr. 37.) Butner withstood the pressure to
quit.
According to Morris, after removing Butner from the Uni-
versity of Michigan route, ‘‘I also told Joe that I felt he was
bitter and unhappy and if he felt that bad, he probably should
go some place else and find work.’’ Morris then claimed that
he told Butner, ‘‘If he would keep his nose clean, he
wouldn’t have a problem.’’ (Tr. II, 55.) I credit Butner’s ac-
count (Tr. 37; Tr. II, 120) and discredit this claim. I find,
however, that even if this claim were true, the statements by
both Krochmal and Morris—particularly in the context of
Morris’ suggestion that Butner should consider other employ-
ment—were clearly coercive, indicating that his job was in
jeopardy because of his union activity.
I therefore find that in these circumstances, the statements
by President Krochmal and General Manager Morris, reveal-
ing their unhappiness with Butner’s support of the Union,
were coercive and violated Section 8(a)(1) of the Act.
I also find that these coercive statements by the top man-
agement of the Company are relevant in determining the
Company’s activation for summarily discharging Butner.
5. Warning for being late
About 3 months later, on July 5, Butner overslept and was
2 hours late on his route, without affecting the service of the
route (Tr. 41–42). This was the first time in over a year that
he had been late (Tr. 44–45).
Contrary to its policy of issuing warning letters only in
problem cases of repeated tardiness (R. Exhs. 4 & 5; Tr.
102–103, 136–137, 142–143, 163–164; Tr. II, 107–108), the
Company issued Butner his fourth warning letter (G.C. Exh.
5) since he began organizing the Union. It referred to the
‘‘Previous Verbal Warnings’’ dated February 22 and 23 and
read: ‘‘Joe received a verbal warning from supervisor for
being approximately 2 hours late without calling.’’ Super-
visor Bailey handed him the letter and said that ‘‘this is a
warning letter for being late’’ (Tr. 42).
The next day, July 6, Butner learned from route driver Mi-
chael Vincent (who also had a route that summer at the East-
ern Michigan University campus) that Vincent had been late
an hour on July 5 without getting a warning letter (Tr. 43;
Tr. II, 114). Upon returning to the warehouse, Butner asked
Vending Manager Dunahoo ‘‘how come I received a warning
letter for being late and Mike didn’t?’’ As Butner credibly
testified (Tr. 44), Dunahoo said, well,
‘‘I’m Mike’s supervisor and Mike Bailey is your super-
visor.’’ He said, ‘‘Mike Bailey chose to give you a
warning letter and I chose not to give Mike Vincent a
warning letter.’’ I told him I didn’t think that this was
fair, that I was being singled out; and he said, well, he
stressed that it was just a verbal warning and that it
didn’t mean anything.
In fact, Bailey was also Vincent’s supervisor (Tr. II, 116–
117). Particular because of Bailey’s statement to Butner on
August 26 that ‘‘personally I’ve never had a problem with
you or with your work, I infer that Bailey (who did not tes-
tify) was required to sign the warning letter.
Dunahoo admitted that Butner asked why he received a
written warning and Vincent received only an oral one.
Dunahoo then claimed: ‘‘I asked Mr. Vincent if he wanted
it in writing and he refused.’’ (Tr. II, 101.) Citing this im-
plausible claim, the General Counsel observes in his brief (at
18) that this would be an ‘‘Interesting system of discipline.’’
I agree and discredit the claim as a fabricated defense. Vend-
ing Manager Dunahoo impressed me as being less than can-
did.
Despite the vending manager’s assurance that the July 5
warning letter ‘‘didn’t mean anything,’’ I note that the Au-
gust 26 discharge letter (G.C. Exh. 6) cited this warning for
late arrival as documentation of Butner’s ‘‘deteriorating per-
formance.’’
As alleged in the complaint, I find that by issuing the July
5 warning letter to Butner, the Company ‘‘selectively admin-
istered a written disciplinary warning’’ to him. I therefore
find that the Company discriminatorily issued this warning
letter also in reprisal for Butner’s union activity, violating
Section 8(a)(3) and (1).
6. His summary discharge
On August 26, 5 months after being asked to consider
other employment, Butner set the alarm on his truck but
made the mistake of leaving a vent window open when going
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
into a building on the Eastern Michigan University campus
(Tr. 45–48). President Krochmal, who was early for an ap-
pointment in the area, noticed the security violation (Tr. II,
82–83). Upon returning to the truck, Butner assured
Krochmal that he did not make a habit of leaving the vent
window open and that he would not let it happen again (Tr.
45; Tr. II, 125). Yet Krochmal canceled his appointment and
returned immediately to the plant (Tr. II, 85). Although there
was no indication that Butner had ever made this mistake be-
fore, the Company summarily discharged him after he re-
turned from his route.
By that time the Company had prepared a termination let-
ter (G.C. Exh. 6), which General Manager Morris read to
Butner at the beginning of a meeting with him, Krochmal,
and Bailey, Butner’s supervisor (Tr. 48). The letter stated
that Krochmal had unlocked the truck door ‘‘and in doing so,
set off the alarm. . . . Krochmal opened the glove box and
found a ring of keys that had keys to Manimark’s building
on it, another security violation.’’ (Another driver, who was
laid off during the summer recess at the school, had left the
keys in the glove box (Tr. 47). Krochmal admitted (Tr. II,
91–92) that the name of the Company was neither on the
truck nor on the one key to the building.)
The letter concluded:
Joe, on February 22, 1988 you received a verbal
warning for leaving a soda machine at Pray Harold un-
locked and a verbal warning for leaving the garage
overhead door open while walking to the front of the
building. These past warnings and the security violation
today, August 26, 1988, show a blatant disregard for
Manimark security policies. Manimark cannot allow
this disregard to continue and expose us to financial
loss.
These security violations highlight a deteriorating
performance, documented by warnings for late arrival
and improper conduct. Because of this lack of regard
for Manimark policies, your employment at Manimark
is terminated as of August 26, 1988.
Thus, the Company was relying on the four employee
warning letters that it had given Butner in reprisal for his
union organizing. The termination letter specifically refers to
warnings for leaving a soda machine unlocked (the first
warning letter ever given for this offense), leaving the garage
overhead door open (for a few seconds, as the door was
opening and Butner was picking up his coffee), and being
late (the only time in over a year). General Manager Morris
admitted (Tr. II, 74) that the reference to the warning for
‘‘improper conduct’’ referred to the February warning letter
for ‘‘talk[ing] to other employees regarding their wages’’
(enforcing the Company’s clearly illegal rule).
After reading the letter, as Butner credibly testified, Morris
stated, ‘‘Joe, your employment here has ended,’’ but Morris
gave him the option of resigning. Butler protested that he
was getting ‘‘shafted’’ and requested a few minutes.
When Krochmal and Morris left the room, Butner told Su-
pervisor Bailey, ‘‘Mike, you know I’m getting a raw deal,
don’t you?’’ It is undisputed that Bailey responded, ‘‘Well,
all’s I can say is personally I’ve never had a problem with
you or with your work.’’ Butner then wrote out his resigna-
tion, stating ‘‘I find that there are no longer conditions in
which I can remain employed here and therefore have no al-
ternative but to leave.’’ Tr. 51–52; G.C. Exh. 7.) Finding
Morris to be a most untrustworthy witness (as discussed
below), I do not rely on his account of the meeting (Tr. II,
61–64, 74–80).
7. Disparate treatment
The General Counsel urges the disparate nature of the ac-
tion taken against Butner as compared to the Company’s ac-
tions in handling other security violations.
The General Counsel cites primarily route driver Michael
Halcomb’s losing a set of master keys and an on-call beeper
sometime before the Union filed the petition. The keys and
beeper were in a call box that he carelessly left on top his
car. General Manager Morris testified that the Company had
to rekey every vending machine, at a cost to the Company
of $4000. Yet the Company required Halcomb to pay only
$156 for the beeper (R. Exh. 13) and did not discharge him.
(Tr. 138–140, 145–147; Tr. II, 42–45, 87–90.) In contrast,
there was no financial loss when Butner carelessly left the
vent window open at the university campus, and the Com-
pany summarily discharged him. There is no contention that
the campus was a high crime area.
Halcomb had been employed less than a year and a half
(since April 1987, Tr. 129) and had received a written warn-
ing (R. Exh. 4) on November 1987 for continued tardiness.
The warning concluded: ‘‘The accounts that you service are
suffering from your lateness. This problem must be corrected
immediately.’’ (I note that later, on March 16, Halcomb was
given an employee warning letter (R. Exh. 6), stating:
‘‘[Money] Changer was left unlocked at Polk-Taylor account.
Verbal notice.’’) As found, Butner had never received a writ-
ten warning before his union organizing began.
The Company in its brief attempts to justify the disparity
in treatment by arguing that Butner had an ‘‘unrepentant atti-
tude’’ about the security violation, that he ‘‘treated the inci-
dent with nonchalance and even sarcasm when confronted by
the owner [Krochmal],’’ and that ‘‘his conduct when con-
fronted by the owner did not reveal an attitude or recognition
of the problem or anything approaching remorse for what
had happened.’’ I reject these contentions.
When Butner returned to the truck, as he credibly testified,
President Krochmal asked, ‘‘Joe, do you always leave your
vent window open?’’ He answered, ‘‘No, I don’t make a
habit of it.’’ (Tr. 45.) He also told Krochmal that he ‘‘would
not let it happen again’’ (Tr. II, 155). I discredit, as a fab-
rication, Krochmal’s claim that Butner ‘‘gives me a smart ass
remark’’ by saying ‘‘I’ll try not to let it happen again,’’ then
walks away (Tr. II, 84–85). I also discredit Krochmal’s claim
that Butner’s ‘‘attitude’’ was ‘‘How are you to tell me where
to put my keys or what I should be doing with them’’ and
that Butner is a ‘‘guy who is telling me to kiss off’’ (Tr. II,
89–90). Whereas Butler impressed me most favorably by his
demeanor on the stand as an honest, forthright witness,
Krochmal appeared to be less than candid.
I agree with the General Counsel that this example dem-
onstrates disparate treatment.
605MANIMARK CORP.
8. Lax security
a. Examples
The Company contends in its brief (at 6) that it is ‘‘con-
cerned with maintaining a high level of security.’’ To the
contrary, I agree with the General Counsel’s argument in its
brief (at 36) that ‘‘there is extensive evidence establishing
[the Company’s] relative lack of concern for security.’’
Butner credibly testified that in 1985, he drove his truck
with a broken vent window several weeks after reporting it
to Vending Manager Dunahoo before the vent was repaired.
On each of about four or five occasions, after reporting to
Dunahoo that the alarm on his truck was not working, he
drove from a few days to a couple of weeks before the alarm
was fixed. (Tr. 55–56.) After reporting the problem to
Dunahoo, for about 6 months on one route and about 16 or
18 months on another, he drove a truck in which the safe
was too small to hold all the money (daily receipts from the
vending machines), sometimes leaving from several hundred
to several thousand dollars in the truck outside the safe (Tr.
II, 123–125).
On two or three occasions route driver Halcomb drove his
truck several weeks without an alarm after notifying Super-
visor Smith. Then Halcomb quit in September (after Butner’s
discharge), Halcomb had been driving without an alarm
about 2 weeks after notifying Smith of the problem. (Tr.
137–138.) Also Halcomb drove a spare truck a day or two
after notifying Smith that the vent window would not close
properly (Tr. 150).
Route driver Lisa Bohms drove a truck with faulty vent
windows from February 1988 until late January 1989 before
the vent windows were replaced. All this time, as she
credibly testified, they closed most of the way, but would not
lock. It was visible from the outside that they were not
locked. (Tr. 104–105.) As she credibly testified, she could
push the vent open with her hand from the outside and had
done so a ‘‘couple times’’ (Tr. 119–120).
She did not report the faulty vent windows immediately,
‘‘Because I had an alarm; and if anybody . . . opened the
door . . . the alarm would have [gone] off.’’ But in April,
when the remote control to the alarm broke, she reported the
problem to Vending Manager Dunahoo: ‘‘I gave him the re-
mote control and told him, ‘It doesn’t work. I need one, be-
cause my vents don’t lock and anybody could get in my
truck.’’’ He did not, however, replace the alarm or fix the
windows. (Tr. 105–106.)
About June she told Supervisor Smith ‘‘I needed an alarm
and my vents fixed.’’ He said he would take care of it, but
he did not. (Tr. 107.)
In August, after Butner was discharged, Bohms asked
Smith ‘‘if they were just out to screw Joe or were they seri-
ously concerned about a security breach, because my vents
didn’t lock and I had no alarm, and I didn’t want to be re-
sponsible for the money and stock in my truck.’’ He again
promised to take care of it, but did not. (Tr. 107–108.)
Sometime that fall, General Manager Morris spoke to
Bohms and another employee in the garage and asked about
any problems. As Bohms credibly testified, she told Morris
‘‘that my vents did not lock and that my alarm didn’t work.
He asked me if I had reported it, and I said yes.’’ (Tr. 112–
113.) Still the problem was not corrected.
On December 6, when the trial in this case was pending,
Vending Manager Dunahoo issued a memo on ‘‘Vending Se-
curity’’ (G.C. Exh. 8). The last sentence read: ‘‘If any alarms
are not working, report to me by Wednesday, December 7,
1988.’’ Bohms immediately told Dunahoo that ‘‘I didn’t
have an alarm, and that my vents didn’t lock.’’ He said he
would take care of it, but he did not. (Tr. 109–110.)
Finally, in the third week in January 1989 in a pretrial
interview, Bohms was asked by the company counsel if she
considered Butner’s leaving the vent window open to be a
security risk. She answered, ‘‘Well, not really, because my
vents have never locked.’’ (Tr. 110–111.)
Still nothing was done until the following week, sometime
after Thursday, January 26, 1989, when Bohms was injured
on the job. By the time she was required to report back to
work Sunday night, January 29 (as discussed below), both
vent windows were replaced, but not the alarm. (Tr. 111–
112.)
b. The Company’s contentions
The Company in its brief completely ignores the evidence
of alarms being inoperative but not repaired or replaced
when reported, and trucks being driven with large amounts
of money being carried outside the undersized safes. It also
ignores driver Bohms’ testimony that the vent windows on
her truck could not be locked for nearly a year.
The Company merely contends in its brief (at 3) that its
‘‘witnesses disputed the claims that any truck ever was
knowingly permitted to operate with vent windows that
would not close [emphasis added].’’ It adds that ‘‘Common
sense alone supports [the Company’s] insistence that it
would not—and did not—permit trucks to operate that could
not be secured.’’ These contentions ignore the obvious. The
doors of a truck are not ‘‘secure’’ if a vent window can be
closed but not locked. Not only can the vent window be
pushed open from the outside, but the inside latch reveals
that the window is not locked when it remains up instead of
being pressed down behind the bar (see Tr. II, 23).
Supervisor Smith, when called as a defense witness, testi-
fied on direct examination that ‘‘Unless they tell me I don’t
know’’ about vent windows that do not lock. He then added:
‘‘I would say they would all lock or at least close [emphasis
added]’’—implying he was aware of the vent windows,
which driver Bohms had repeatedly reported to him, that
could be closed but not locked. He testified that if Vending
Manager Dunahoo is there, he usually turns the requested re-
pair in to Dunahoo and expects him to follow through. ‘‘My
main job is to be on the road.’’ (Tr. 108–109.)
Defense witness Dunahoo also testified on direct examina-
tion that he finds out about needed repairs when ‘‘An em-
ployee comes in and informs us.’’ When asked if he knew
of a company policy ‘‘about vehicles being . . . capable of
being secured, that is locked,’’ he claimed that ‘‘All vehicles
have to be secured. We have alarm systems.’’ (Tr. II, 95–
96.) The company counsel did not ask him about inoperative
alarms (which drivers Butner, Halcomb, and Bohms had re-
peatedly reported).
The counsel next asked Vending Manager Dunahoo about
vent windows that were broken or that would not close, but
not about vent windows that would not lock (Tr. II, 96–97):
. . . .
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Do you recall any employee telling you there
were broken vent windows on the employee’s vehicle?
A. Not specifically, not a specific employee. I can
say, if an employee informed us of a broken vent win-
dow, we would repair it.
Q. Do you have a recollection of Lisa Bohms’ telling
you that her vent window would not close?
A. No. [Emphasis added.]
Thus, Dunahoo did not deny receiving reports from driver
Bohms in April and again in December that the vent win-
dows on her truck could not be locked, nor deny that when
receiving a report of a broken vent window from Butner, the
window was not repaired for weeks.
When called as a defense witness, General Manager Mor-
ris gave much testimony that I find was fabricated. From his
demeanor on the stand, he appeared to be a most
untrustworthy witness, willing to fabricate any testimony that
might help the Company’s cause.
Contrary to Vending Manager Dunahoo’s and Supervisor
Smith’s testimony that they depended upon information from
the drivers concerning needed repairs, Morris claimed that
they checked the trucks themselves. He claimed: ‘‘When we
have the time we will, myself or Rick Dunahoo or the super-
visor in the evening, while the trucks are back, we’ll walk
through to do a check. . . . I do it once a week.’’ (Tr. 30–
31.) This claim also conflicts with the argument in the Com-
pany’s brief (at 21) that the ‘‘Company personnel . . . ac-
knowledged that they would not necessarily know about a
defective window unless the employee involved brought the
matter to their attention.’’
Morris also claimed that ‘‘there is no way I’m going [to]
allow a truck to go out that isn’t secure with our money’’
(Tr. II, 22).
When asked on direct examination about Bohms’ testi-
mony that she had been driving for a year with a vent win-
dow that would not lock, Morris ignored her testimony that
she reported to him in the fall about her vent windows not
locking and her alarm not working. He responded that he
checked her truck after the company counsel informed him
(in January 1989) that she said (in the pretrial interview) that
the vent window would not lock. (Tr. II, 22–23.)
Morris claimed that what he found was that although the
latch on the vent window ‘‘does not turn and go flush all
the way down,’’ it ‘‘did go down far enough to be locked.’’
As proof that the vent window actually did lock, he claimed
he tried to open the window vent from the outside and broke
it ‘‘trying to force it.’’ (Tr. II, 23, 67.) To the contrary,
Bohms (who impressed me most favorably as an honest,
trustworthy witness) credibly testified that the vent could not
be locked and that she had twice pushed it open from the
outside with her hand (Tr. 119–120). I discredit Morris’
claims as further fabrications. If his uncorroborated claim
were true that he did break the vent window when ‘‘trying
to force it,’’ I would find it more likely that he broke the
window when trying to force the latch down far enough to
lock.
Morris is the only witness that claimed ‘‘we asked em-
ployees to try to write things down’’ to report needed repairs
(Tr. II, 29). There is nothing in the December 6 memo on
vending security about reporting any problems in writing,
and Morris admitted on cross-examination that there are no
forms for that purpose (Tr. II, 68). When recalled as a rebut-
tal witness, Butner credibly testified that he had never been
told (in his nearly 4 years of employment there) to report
needed repairs in writing (Tr. II, 122).
In view of the credited testimony of the General Counsel’s
witnesses about delayed or uncorrected repairs, the limited
denials of defense witnesses Smith and Dunahoo, and the
most untrustworthy testimony of General Manager Morris, I
specifically discredit Morris’ claim that ‘‘If we knew that [a]
truck was not secure, we would not let it go out’’ (Tr. II,
32).
9. Concluding findings
I find that the General Counsel has made a prima facie
showing sufficient to support the inference that Butner’s
union organizing was a motivating factor in the Company’s
decision to discharge him. Wright Line, 251 NLRB 1083,
1089 (1980).
I rely particularly on the evidence that (a) Butner was a
favored employee before he began organizing, (b) the Com-
pany repeatedly called him a ‘‘troublemaker’’ for starting the
Union, (c) it gave him three warning letters at one time (his
first in over 3 years of employment) in reprisal for his union
organizing, (d) it discriminatorily removed him from an over-
time route on the day after the election, in the same con-
versation in which it urged him to seek other employment
because of his prounion attitude, (e) it gave him a fourth
warning letter in reprisal for his union organizing, (f) it sum-
marily discharged this senior route driver after he carelessly
left open a window vent at a university campus, although
there was no indication that he had ever made that mistake
before and although there was no financial loss to the Com-
pany, and (g) in doing so, it meted out disparate treatment.
The Company, however, contends in its brief (at 2) that
a preponderance of the evidence demonstrates that Butner
‘‘would have been dismissed regardless of his previous union
activity.’’ Particularly in view of the credited evidence of lax
security, I disagree and find that the Company has failed to
carry its burden under Wright Line to demonstrate that it
would have discharged Butner in the absence of the protected
conduct.
After weighing all the evidence I find that the reasons stat-
ed in the August 26 termination letter were pretexts and that
the Company discharged Butner for supporting the Union,
violated Section 8(a)(3) and (1).
c. Denied time off for subpoenaed witness
Route driver Bohms, a key witness for the General Coun-
sel, injured her foot on her route early Thursday morning,
January 26, 1989. Later that day she notified Vending Man-
ager Dunahoo that the doctor wanted her to stay off her feet
2 or 3 days and that she was returning to the doctor on Sat-
urday. (Tr. 91–93.) Meanwhile Supervisor Smith arranged to
have a swing driver to cover her route Sunday night (Tr. II,
110–111).
That Saturday the doctor released her to return to work
Sunday night. About 1 p.m. she spoke to Supervisor Smith,
who said they had covered her route. She said she had been
released to return to work but she would not be in Sunday
night because ‘‘I had to come down here’’ (to the trial in
Detroit) Monday morning and ‘‘I didn’t think I could stay
607MANIMARK CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
Continued
awake’’ after working that night. Smith said, ‘‘Okay.’’ (Tr.
94–95.)
Smith then called General Manager Morris, who had ar-
ranged for both vent windows on Bohms’ truck to be re-
placed after she advised the company counsel in the pretrial
interview that she had been unable to lock them since the
previous February. Evidently knowing that she would be an
important witness for the General Counsel, Morris advised
Smith that ‘‘she had better be in to work.’’ (Tr. II, 106.)
Smith then called Bohms back and stated (Tr. 95):
There was no way I could take my Monday off, that
they didn’t have anybody to cover me. I told him, I
can’t work and stay awake to drive to Detroit and get
back. He said, ‘‘Well . . . it’s not like you’re testifying
for our side. You’re going to have to come in.’’ [Em-
phasis added.]
Smith admitted telling Bohms that she was subpoenaed ‘‘not
by us’’ (Tr. II, 106). As required, Bohms worked her full
shift and then testified (Tr. 96).
I agree with the General Counsel that Supervisor Smith’s
statement that Bohms would have to come in because ‘‘it’s
not like you’re testifying for our side,’’ violated the Com-
pany’s obligation not to coerce employees in the exercise of
their right and obligation to attend scheduled Board hearings
as subpoenaed witnesses. Mid-East Consolidated Warehouse,
247 NLRB 552, 556 (1980).
I therefore find, as alleged in the amended complaint, that
the Company violated Section 8(a)(1) by informing an em-
ployee that because she was not testifying for the Company
at an NLRB hearing, she could not have time off from work.
CONCLUSIONS OF LAW
1. By discriminatorily removing Joseph Butner from a
weekly overtime route on March 24, issuing him a warning
letter for being late on July 5, and discharging him on Au-
gust 26, 1988, because of his support of the Union, the Com-
pany engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. By both President Krochmal and General Manager Mor-
ris telling an employee they were unhappy about his support
of the Union, indicating that his job was in jeopardy, the
Company violated Section 8(a)(1).
3. By reiterating its policy prohibiting employees from dis-
cussing was with other employees and by removing an em-
ployee from an overtime route for violating the illegal policy,
the Company violated Section 8(a)(1).
4. By informing a subpoenaed employee that she could not
have time off from work because she was not testifying for
the Company at an NLRB trial, the Company further violated
Section 8(a)(1).
5. The General Counsel has failed to prove other alleged
violations within the 10(b) limitation period.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged an
employee, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). It must also make him whole, plus inter-
est, for lost earnings resulting from his discriminatory re-
moval from the weekly overtime route.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Manimark Corporation, Belleville, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, removing from a weekly overtime route,
issuing a warning letter to, or otherwise discriminating
against any employee for supporting Local 124, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO or any other union.
(b) Indicating to any employee that the employee’s job is
in jeopardy for supporting a union.
(c) Refusing to permit an employee subpoenaed by the
NLRB to have time off from work because the employee is
not testifying for the Company.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joseph Butner immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Reinstate Joseph Butner to the weekly overtime route
at the University of Michigan Hospital.
(c) Remove from its files any reference to the unlawful
discharge, removal from the overtime route, and warning for
being late and notify the employee in writing that this has
been done and that the discharge, removal, and warning will
not be used against him in any way.
(d) Rescind its policy prohibiting employees from dis-
cussing wages with other employees.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Belleville, Michigan, copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
SUPPLEMENTAL DECISION
MARION C. LADWIG, Administrative Law Judge. My origi-
nal decision in this proceeding was issued August 16, 1989.
On May 22, 1990, the Board issued an order remanding
proceeding to administrative law judge, pointing out my fail-
ure to make credibility findings concerning the testimony by
former route driver Walter Ford that shortly before the
March 23, 1988 election, President Ralph Krochmal made a
threat of plant closure. The Board remanded the case for me
‘‘to prepare and serve on the parties a Supplemental Decision
setting forth the resolution of such credibility issues, findings
of fact, conclusions of law, and recommendations, including
a recommended order where appropriate regarding the issue
on remand.’’
In compliance with the remand order, I make the fol-
lowing supplemental
FINDINGS OF FACT
Walter Ford was employed from December 1987 until he
quit in July 1988 (Tr. 169–170). He testified that ‘‘maybe
four or five days’’ or ‘‘a week’’ before the March 23, 1988
election, he was called into President Ralph Krochmal’s of-
fice. There, in the presence of General Manager Gary Morris
and Vending Manager Richard Dunahoo, Krochmal ‘‘said
that he could not financially stand for a Union coming in
there,’’ and that if it did, ‘‘he would close the place down.’’
(Tr. 173–174.)
When called as a defense witness, Krochmal denied that
he told ‘‘any employees about closing the company if the
union won the election’’ (Tr. II, 90). Neither Morris nor
Dunahoo denied that Krochmal made the statement to Ford.
Morris claimed, however, that (in one or more meetings be-
fore the election) that ‘‘we said that [it] is absolutely not
true’’ that ‘‘we were going to close the business’’ (Tr. II,
48–49).
I credit Ford’s testimony about the threat. As found in my
original decision (JD slip op. at 2), ‘‘By his demeanor on the
stand, Ford impressed me as being an honest witness.’’ In
contrast, as found (at 9–10, 12–13), ‘‘Krochmal appeared to
be less than candid’’ and ‘‘General Manager Morris gave
much testimony that I find was fabricated. From his de-
meanor on the stand, he appeared to be a most untrustworthy
witness, willing to fabricate any testimony that might help
the Company’s cause’’ and ‘‘Finding Morris to be a most
untrustworthy witness . . . I do not rely on his account of
[another] meeting.’’ I discredit Krochmal’s denial and Mor-
ris’ uncorroborated claim.
Based on these credibility resolutions, I find as alleged in
the amended complaint, that ‘‘Within a week of March 23,
1988, Respondent, acting through its agent, Ralph Krochmal,
threatened an employee that Respondent would close if the
Union won the election,’’ violating Section 8(a)(1) of the
Act.
SUPPLEMENTAL CONCLUSIONS OF LAW
4(a) By threatening an employee that the Company would
close if the Union won the election, the Company also vio-
lated Section 8(a)(1).
On the supplemented findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended1
ORDER
The Respondent, Manimark Corporation, Belleville, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, removing from a weekly overtime route,
issuing a warning letter to, or otherwise discriminating
against any employee for supporting Local 124, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO or any other union.
(b) Threatening any employee that it will close the busi-
ness if the Union wins an election.
(c) Indicating to any employee that the employee’s job is
in jeopardy for supporting a union.
(d) Refusing to permit an employee subpoenaed by the
NLRB to have time off from work because the employee is
not testifying for the Company.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joseph Butner immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Reinstate Joseph Butner to the weekly overtime route
at the University of Michigan Hospital.
(c) Remove from his files any reference to the unlawful
discharge, removal from the overtime route, and warning for
being late and notify him in writing that this has been done
and that the discharge, removal, and warning will not be
used against him in any way.
(d) Rescind its policy prohibiting employees from dis-
cussing wages with other employees.
609MANIMARK CORP.
2 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Belleville, Michigan, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.