Mastercraft Casket Co.

National Labor Relations Board - Board Decisions

Jul 29, 1988

289 N.L.R.B. 1414 (N.L.R.B. 1988)

1414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
York Products, Inc., d/b/a Mastercraft Casket
Company and Chester J . Golat et al. Case 18-
CA-9923
and assigns, shall take the action set forth in the
Order.
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On September 30, 1987, Administrative Law
Judge Michael O. Miller issued the attached deci-
sion . The Respondent and the General Counsel
filed exceptions and supporting briefs.' The Re-
spondent filed a response brief and a motion to
strike the General Counsel's exceptions and brief.2
The General Counsel filed a statement in opposi-
tion to the motion to strike.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings, and
conclusions3 and to adopt the recommended
Order.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, York Prod-
ucts, Inc., d/b/a Mastercraft Casket Company, La-
dysmith, Wisconsin, its officers, agents, successors,
' The General Counsel and the Respondent except to the judge 's find-
ings concerning the seniority of the sewers who were recalled As the
judge noted in his decision , under the Respondent 's seniority policy, an
employee's seniority date is July 1 following his or her date of hire.
Thus, although an individual may have started working poor to the time
another employee was hired , he or she would not necessarily have great-
er seniority then the later hired person Applying this policy, the judge's
conclusions that Winter had more seniority than any of the sewers not
recalled except Barber and that no sewer with less seniority than Yako-
vetz was recalled are correct . In addition, although Barber and Coats had
the same seniority date , the judge did state correctly that Barber was
"nominally more senior" than Coats by virtue of the fact that Barber was
hired 17 days before Coats
The General Counsel also requested that a visitatonal provision be
granted . We deny this request as unnecessary Cherokee Marine Terminal,
287 NLRB 1080 (1988)
2 The Respondent's motion to strike the General Counsel's exceptions
and brief is denied.
s Chairman Stephens would not find that the Respondent violated Sec.
8(a)(1) of the Act through its plant manager's statement that he had laid
off his wife and daughter-in-law because the Union had discovered that
he was favoring his family There is no suggestion that this action was
taken because of the two women's sentiments either for or against the
Union, and Chairman Stephens is unable to find that any employee would
reasonably tend to be coerced in the exercise of Sec 7 rights by the sug-
gestion that favoritism towards managers' relatives might be discouraged
or even eliminated once the Union learned of it
4 The parties submitted to the judge a stipulation to correct certain
errors in the transcript The judge's decision notes that the stipulation
was received, but relies on the uncorrected testimony We rely on the
transcript as corrected, but find that the differences do not affect the out-
come of this case
James L. Fox, Esq., for the General Counsel
Donald W. Jones, Esq. (Hulston, Jones & Sullivan), of
Springfield, Missouri, for the Respondent.
Chester J. Golat, of Ladysmith, Wisconsin, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard in Ladysmith, Wisconsin, on 12 and 13
May 1987 based on an unfair labor practice charge filed
by Chester J. Golat, et al., on 23 January 1987 and a
complaint issued by the Regional Director for Region 18
of the National Labor Relations Board (the Board), on
27 March 1987. The complaint alleges that York Prod-
ucts, Inc., d/b/a Mastercraft Casket Company" (Re-
spondent) violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) by failing and refusing to
recall employees from layoff because of their union ac-
tivity; by blaming an earlier layoff on the employees'
union activity; and by threatening loss of employment if
the employees supported a union . Respondent's timely
filed answer denies the commission of any unfair labor
practices.
All parties were afforded full opportunity to examine
and cross-examine witnesses, to argue orally, and to
submit briefs. Briefs, which have been carefully consid-
ered, were submitted by the General Counsel and the
Respondent.
Based on the entire record,2 including my observations
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE RESPONDENT 'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent, a Delaware corporation, is engaged at
Ladysmith, Wisconsin in the manufacture, sale, and dis-
tribution of caskets. Jurisdiction is not in issue . The com-
plaint alleges, Respondent admits, and I find and con-
clude that Respondent is, and has been at all times mate-
rial, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that General Teamsters Union, Local 662,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) is, and has been at all material times, a labor or-
ganization within the meaning of Section 2(5) of the Act
Respondent 's name was amended at the hearing.
2 The stipulation to correct the record submitted jointly by counsel for
the General Counsel and Respondent is received
289 NLRB No. 157
MASTERCRAFT CASKET CO.
II. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, a Mastercraft Casket Company, began its
operations about 1961 . In 1984, Mastercraft was acquired
by Amedco and, in turn , Amedco was acquired by Serv-
ice Corporation International (SCI) on 26 September
1986 . SCI is a publicly held corporation owning and op-
erating about 300 funeral homes, cemeteries, and flower
shops and had previously been one of Respondent's cus-
tomers. Robert Betthauser, one of Mastercraft 's founders,
continued throughout its operation to be the chief execu-
tive officer and is presently the president of Mastercraft
and vice president of manufacturing for York Products.
B. Union Activity
Respondent's employees are not represented by any
labor organization . In February 1986,$ however , a union
organization campaign began . Among the employees in-
volved from the start were Chester Golat , Harold
Novak , Larry Kroening, Bernie Marshall, and Joe Smith.
The first union meeting was held about 7 February, at-
tended by 30 to 40 employees . A petition for an election
was filed about 24 February and, following the execution
of a consent agreement, an election was held on 18
April. All but two or three of Respondent 's employees
voted . The vote was 64 for no union , 38 for the Union.
While Respondent had campaigned against the Union,
no objections to the conduct of the election were filed.
However, on 16 April the Union filed an unfair labor
practice charge that led to the 26 June issuance of a
complaint alleging that Respondent had violated Section
8(a)(3) and (1) by laying off 27 employees between 21
March and 11 April and by otherwise engaging in con-
duct that interfered with, restrained , and coerced the em-
ployees . On 13 August, prior to a hearing , Respondent
and the Union adjusted the allegations of the complaint.
The employees who had been laid off received backpay,
the charge was withdrawn, and the complaint was dis-
missed.' There has been no resumption of union activity
since the election.
C. Evidence of Antiunion Animus and 8(a)(1)
Allegations
Respondent concedes that it campaigned against the
Union during the election campaign. It denies , however,
that its campaigning overstepped statutory bounds. The
General Counsel contends that there was extensive evi-
dence of antiunion animus . Eight witnesses for the Gen-
eral Counsel testified that they heard James Ewer, the
plant foreman , threaten that if the Union came in, the
plant's doors would be shut . These witnesses claim to
have heard it varying numbers of times . Thus, Susan
Celske and Carol Braden heard him say it at least once,
Mark Stranger heard it more than once, Joe Marshall
heard it twice, and Mildred Yakovetz heard it at least
four times . Chester Golat and Priscilla Barber recalled
s All dates are 1986 unless otherwise specified.
* The General Counsel makes no contentions , and I make no conclu-
sions, with respect to whether the March-April layoff was discriminatori-
ly motivated.
1415
hearing him say it as often as three or four times per
week and Harold Novak claimed to have heard it two or
three times per day. James Ewer did not deny having
said it, he admitted saying it to Golat in 1984 and further
admitted the possibility that he may have said it some-
time during 1986 . Priscilla Barber also testified, without
contradiction , that during the week of the election, Jim
Ewer told her that after the plant shut down , Respond-
ent would select the people they wanted to come back
and production would get tougher . Even allowing for
some exaggeration by Novak, Golat, and Barber with re-
spect to the frequency of threats to close , I am con-
vinced that James Ewer repeatedly told employees that
the plant would close if the Union came in. He also
threatened to eliminate union supporters during a layoff.
James Ewer was opposed to the Union, even according
to Foreman Ray Frafjord, and expressed his animus to
the employees.
Shortly after the start of the union activity, Carol
Braden heard Jim Ewer refer to Mildred Yakovetz and
Priscilla Barber as troublemakers and say that Barbara
Novak was working on the Union's behalf with her hus-
band, Harold . Her testimony is uncontradicted . 5 She fur-
ther testified that she heard Jim Ewer's wife , Florence,
repeat what had been said to her by Jim, to the effect
that if the Union got in, the Company would have big
layoffs and switch people around to get rid of the trou-
blemakers , naming Yakovetz and Barber. Florence Ewer
denied saying this to Braden . I deem Braden 's credible
testimony in this regard both corroborative of, and cor-
roborated by, Barber's uncontradicted testimony, de-
scribed above.
The General Counsel's witnesses also attributed
animus-laden statements to Rick Ewer, Jim Ewer's son.
To the extent that Rick Ewer was purporting to speak
on his own behalf, I find that those statements , while un-
denied , are entitled to little weight inasmuch as Rick
Ewer, as an assistant foreman, did not possess superviso-
ry authority.e That principle does not apply, however,
when Rick Ewer purported to speak for others with su-
pervisory authority. Thus, around the time of the March
layoffs, Rick Ewer told Chester Golat and Joe Marshall
that Betthauser had referred to Golat, Marshall, Harold
Novak, and others as being "up a creek without a paddle
in a boat that was sinking fast" because of their support
for the Union. Golat's testimony with respect to this
statement was corroborated by Marshall; Bethauser did
not deny having make such a statement to Rick Ewer. In
view of those facts and both Rick Ewer 's role as an as-
sistant foreman and his relationship to the plant foreman,
5 She also testified, without contradiction, that Ewer said that the
Company would "try to unload [Mark Stranger] except that he had hurt
his back and they thought he might sue him." She was unsure of the
date, but placed this testimony about the inception of the union activity.
However , Stranger 's injury was sustained in June.
6 Chester Golat allegedly observed Rick Ewer discharge an individual
named Stanley Tims for returning late from an excused absence. Re-
spondent's credible evidence indicates that there was no such employee.
There had been an employee, Stanley Tipsm, who was fired by Rick
Ewer but at his father's direction for insisting on taking unauthorized
leave. The only other record evidence on the subject indicates that Rick
Ewer attempted to direct the work of some employees , which direction
was frequently ignored
1416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which give his statements the likelihood of reliability,
this testimony has probative worth even though it is
hearsay . See K & S Circuits, 255 NLRB 1270 , 1274 fn. 10
(1981), and RJR Communications , 248 NLRB 920, 921
(1980). On the other side of the coin , I note that during
the same period , Rick Ewer also told Golat that if he
took a voluntary layoff he would probably not be called
back. Jim Ewer, hearing the statement , contradicted
Rick and stated that he believed Golat would be re-
called.
Several days before the 18 April election , Foremen
Ray Frafjord told employee Joe Marshall that if he
knew what was good for him, he would remove his
union button and change his mind . This testimony is un-
denied . At the conclusion of the election on 18 April,
Mark Stanger , who had been the Union 's observer, alleg-
edly heard Frafjord say, "You can kiss his ass goodbye."
He did not hear his name mentioned . However, Priscilla
Barber claims to have heard Frafjord say, "Stanger, your
ass will be out the door when this union thing is over."
Frafjord denies making any such statement . Noting the
contradictions between Stanger and Barber and Fraf-
jord 's otherwise credible and candid testimony , I find the
evidence that he made such a statement insufficient to
sustain the General Counsel 's burden.
In late or early July, Jim Ewer had a conversation at
work with Florence, his wife, which Priscilla Barber
overheard.' Ewer told his wife that "they are going to
start thinning out---they are going to lay off and thin out
the union people ." In the same time period , he allegedly
told Barber and two others employees that they would
have to watch the capping table "because he had to lay
off his wife and daughter -in-law because the damned
union figured out that he was favoring his family." He
repeated that "they would have to layoff and thin out
the union people ." Again, in mid-September , just before
the September layoffs , Barber heard Jim Ewer tell Flor-
ence that he was going to clean house and throw out a
few people.8
The General Counsel's complaint alleges Jim Ewer's
July or August statement , blaming the Union's knowl-
edge of his favoritism toward family members for the
layoffs of his wife and daughter -in-law , as a violation of
Section 8(a)(1). That complaint was expressly amended
at the conclusion of the General Counsel 's case, over Re-
spondent's objection , to further allege as violative his
late July/early August statements about using layoffs to
thin out the union people. Notwithstanding those express
allegations , neither Jim nor Florence Ewer contradicted
Barber's testimony of the July/August statements. Bar-
ber's uncontradicted testimony , even if deemed uncorro-
borated , is sufficient evidence to sustain the General
Counsel 's burden of proof. Moreover, it was essentially
corroborated by the similar statements Jim Ewer made
before the election . I also find that Barber's testimony
with respect to when these statements were made, late
' The 10(b) period began on 22 July and the General Counsel contends
that this statement , if credited , should be found to violate Sec 8(a)(l)
8 On direct examination , Barber testified that Ewer had said that he
was going to "clean house and thin out the union people " When recalled
by Respondent, she acknowledged that he did not mention the Union in
this September conversation.
July or early August , is sufficiently definite to warrant
the conclusion that they occurred after 22 July and
within the 10(b) period . Accordingly , I find , as alleged in
the complaint as amended , that Respondent violated Sec-
tion 8(a)(1) of the Act by these inherently threatening
statements.
Jim Ewer denied making the statement that Barber at-
tributed to him as having occurred in September and
Florence Ewer had no recollection of him making any
such statement at that time . Although the matter is not
altogether free from doubt, I am constrained to reject
the General Counsel 's contention with respect to this al-
legation . Barber acknowleged that there was no mention
of the Union in this latter statement and, while Ewer's
earlier statements would justify the suspicion that he was
again referring to union supporters , the testimony is too
ambiguous to warrant a finding of a violation, particular-
ly in light of the quality control program being instituted
at that time (discussed infra) to which he could conceiv-
ably have been referring . Accordingly , I shall recom-
mend that this allegation be dismissed.
Barber further testified that while she was visiting the
plant in mid-October during the layoff (discussed infra),
Florence Ewer said that Jim told her that when he had
gone to Betthauser with a list of employees he wanted to
recall, Betthauser had rebuffed him. Betthauser allegedly
said that he Betthauser would do the recalls, recalling his
"loyal" employees . The statements are denied by both
Ewers and by Betthauser and I find the hearsay evidence
too remote to carry any weight in light of those denials.
D. September 1986-Quality Control Program and
Layoffs
As noted , Respondent 's customers included funeral
homes and casket distributors who are not affiliated with
SCI. Because those customers did not want to give their
casket business to a competitor, "the bottom fell out" of
Respondent's business in September when SCI took
over. The Company ran out of orders, and between 15
September and 6 October , laid off 81 employees. The
majority were laid off on 29 September . The General
Counsel does not contend that the layoff , as distin-
guished from the failure to recall certain employees, was
unlawful.
Conptemporaneous with this downturn in orders, Re-
spondent was directed by its parent corporation to insti-
tute an improved quality control program . Instructions
to that effect were received on 11 August, with 31
August date set for reporting back . Additional directives
were received from both Amedco and SCI in September
and October. As a result , Respondent implemented a
quality control program in about early September. Fraf-
jord, formerly a supervisor in the KD (welding) depart-
ment, was made quality control supervisor . Joan Ewer
(Jim Ewer's daughter -in-law), Sharon Hayes , and Larry
Kroening (an early union supporter) were selected to
work as inspectors, checking and doing minor fix-up on
the caskets as they were produced . Additionally, in Oc-
tober after layoffs Respondent changed its written policy
on layoffs and recalls to emphasize qualifications over se-
niority in a department were laid off first and recalled
MASTERCRAFT CASKET CO. 1417
last. "Employee with the least seniority" was changed to
"employee who is at least qualified ." The General Coun-
sel makes no contention that the quality control program
or the changes in the policy manual were subterfuges for
the discriminatory action or otherwise unlawful.
At full capacity, with approximately 100 employees,
Respondent can produce about 120 caskets per day. Its
August shipments were at nearly that point . Shipments
dropped to about 84 per day in September , 34 per day in
October, and between 66 and 72 per day through Febru-
ary 1987. In March 1987 they dropped to about 53 per
day.
E. The Recalls
On 13 and 14 October, Respondent recalled 50 em-
ployees. Between 20 October and February 1987, an ad-
ditional 14 were recalled . According to Betthauser, the
Company called the employees back by qualifications
and seniority , by department . At the time the complaint
issued, 27 March 1987, there were 17 laid-off employees
who had not yet been recalled . Eight of them were al-
leged to be discriminatees : Chester Golat, Mark Singer,
Priscilla Barber, Joseph Marshall , Mildred Yakovetz,
Barbara Novak, Susan Ceiske , and Matthew Hall. Re-
spondent recalled each of the-eight in early April 1987,
on being notified of the issuance of complaint, so as to
limit its potential liability.
Included among those recalled in October were a
number of individuals identified in the record as having
been involved in the union activities to one degree or an-
other. Joe Smith , Bernie Marshall , and Larry Kroening
were active from the outset . Kroening, as noted, was
made an inspector . Arlene Grey was promoted to lead-
person . Frances Wojtyna and 20 to 30 others who had
attended union meetings and/or voted for the Union
were similarly recalled.
1. Paint department-Chester Golat and Joseph
Marshall
Chester Golat began working for Respondent in June
1984,9 in the paint department . For 4 months he worked
as a stripper , for the next year as a primer , and thereaf-
ter, until his layoff, as the operator of a dual-action
sander, a "DAer." In addition, he had loaded trucks,
washed caskets, and done scuffing and capping. Jim
Ewer testified that Golat was a versatile employee, one
who had "helped me out a lot." In March 1986, Ewer
had even written a letter of recommendation for Golat,
at Golat's request, which was highly laudatory . He com-
mented that Golat had an excellent attendance record,
was dependable , conscientious, and adaptable.
Golat was one of the leaders of the union activity. He
openly wore union buttons, he attended union meetings,
and he passed out authorization cards . On at least one
occasion, while displaying his union button, he ques-
tioned Betthauser about Respondent's encouragement of
antiunion activity. Jim Ewer also observed Golat wear-
ing a union button and Frafjord admitted discussing the
9 Under Respondent's seniority policy, an employee's seniority date is
1 July following his or her date of hire. Golat's seniority date was there-
fore 1 July 1984.
union activities of Golat, Stanger, Barber, Yakovetz,
Barbara Novak, Harold Novak , and others with Ewer.
Betthauser had included Golat in his "sinking boat"
statement , along with Joe Marshall and Harold Novak.
Golat 's support for the Union was known to Ray Fraf-
jord and I find , contrary to their testimony , to Jim Ewer
and Betthauser.
According to Betthauser 's letter of 24 February 1987,
setting forth Respondent's position on the charges (G.C.
Exh. 3), Golat was not recalled earlier because, with
lowered production needs, his DA job had been com-
bined with that of the grinder, which job he had refused
in March . In its subsequent statement setting forth its po-
sition (G.C. Exh. 9), Respondent further stated that had
Golat not refused the grinder job in March 1986, he
would have been recalled ahead of Jeff Papiernik. t ° Re-
spondent contended that when the grinder , Harold
Novak, quit on 19 March Ewer had offered that job to
Golat and Golat refused . The job was then given to Jeff
Papiernik . Ewer's testimony is corroborated by a note to
the same effect in Golat's personnel file.
Golat and Novak, however, testified that they had
trained Papiernik on the grinder job before Novak an-
nounced his intention to quit. According to Golat's spe-
cific and credible testimony , t t he was working on the
DA sander on 19 March and, because he was helping
train Papiernik , was behind in his own work . At that
time, Ewer asked him if he "wanted to grind a while."
He replied "No. I'm behind here." He did not under-
stand Ewer's statement to be an offer of a change in his
regular job duties.
Jeff Papiernik began working in Respondent's paint
department in September 1984 ; his seniority date was
thus 1 July 1985 , a year after Golat 's. Nonetheless, he
was recalled from layoff on 13 October and thereafter
did both grinding (which Golat had taught him) and DA
work . In addition, some DA work was done during this
period by Max LaPorte. LaPorte had been hired in July
to work part-time on the loading dock . He did not
become a full-time employee until 8 September (and thus
did not even have a seniority date). LaPorte had been
laid off on 29 September and was recalled on 13 Octo-
ber. Thereafter, he loaded and unloaded trucks and
helped Papiernik on the grinder and the DA sander. Re-
spondent contended that LaPorte had been recalled
ahead of those with greater seniority because he was
"very versatile" and "best qualified ." In light of his limit-
ed experience , especially when compared with an em-
ployee like Golat, I find this explanation to be, as
claimed by the General Counsel , "demonstrable non-
sense."
10 In light of these written position statements, Ewer's testimony, and
the letter of recommendation, I find that Respondent 's contention on
brief that Golat was not a highly regarded employee , with references to
several adverse notations in his personnel file, to be mere afterthoughts
entitled to weight only as evidence of a shifting position.
11 Noting, among other things , Ewer's denial of knowledge of Golat's
support for the Union and his subsequent admission that he saw Golat
wearing a union button and Frafjord 's candid admission that he discussed
Golat's union support with Ewer , I find Ewer to be a less than fully
credible witness.
1418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Additionally, the record reflects that Brian Srp, who
had only begun his employment in June, was recalled
from layoff on 13 October and did grinding. He had
done this work before the layoff and Respondent con-
tended that he was the most qualified to do it. In No-
vember, during the layoff, Respondent hired a new em-
ployee, Earl Main, who was assigned to the maintenance
department; he did various simple jobs such as installing
handles on caskets. Two employees who quit during the
layoff, Bruce Thomas and Delores Smith, were hired to
do grinding and scuffing respectively while Golat, Mar-
shall, and the others were still on layoff.
Joseph Marshall began working as a metal brusher in
Respondent's paint department on 30 December 1981.
He also loaded and unloaded trucks, washed caskets, in-
stalled beds and springs, operated the DA sander, and
did both grinding and sanding. He had not been laid off
prior to 29 September even when others in the plant had
been and, before becoming involved in union activity,
had frequently been called in for overtime work. Jim
Ewer considered him to be an employee to whom an as-
signment could be given with confidence that it would
be completed. Ewer testified that he "had nothing
against him." His work was never criticized.
During the union campaign, Marshall talked up the
Union among the employees who worked in the base-
ment of the plant, he signed an authorization card and he
attended union meetings. He also wore a union button;
both Frafjord commented negatively about it. He was
also one of the employees whom Betthauser included in
the "sinking boat" statement as repeated by Rick Ewer
to Golat.
Marshall was laid off on 29 September. Recalled to the
paint department before he was offered (and declined)
recall in April 1987 (in addition to Papiernik, Srp, Main,
Thomas, and LaPorte, discussed above) were Joe Smith,
Rick Ewer, Sharon Heath, Don Hunt, and Andrew
Nelson. According to Respondent's initial statement of
position, Marshall was not recalled because he was a
very slow worker who was holding up production. In its
subsequent statement, there was no mention of him being
a slow worker. There, it was asserted that of the three
people who could do the metal brushing job, including
Marshall, two were recalled. One was Joe Smith who
had substantially greater seniority than Marshall (and
who has been identified in this record as a union support-
er). The other was Rick Ewer, who, although he had
less seniority, was an assistant foreman. With respect to
the others, Betthauser testified that Sharon Heath had
greater seniority than Marshall and was recalled to do
touchup priming, scuffing, and inspecting; Don Hunt was
called back to wash caskets, the job he had been doing
for a number of years; and Andrew Nelson was similarly
called back to do the priming work, which was his job
before the layoff. Both Nelson and Hunt were less senior
than Marshall but were the best qualified to do the job
assigned them, according to Betthauser.
2. Mark Stanger
Mark Stanger was hired in September 1981 and was
primarily a dockworker under the supervision of Delbert
Thomas, foreman of shipping, receiving, maintenance,
and trucking. Prior to June, the work he had done most
was loading caskets; he had also installed springs and
gaskets. In June, he sustained an injury and was placed
on light duty. As his doctor restricted him from lifting
more than 25 pounds, he was assigned to touchup work
and he continued to do that job until the layoff. The
General Counsel concedes that Stanger never gave the
Company any written release from his lifting restriction.
It appears that his work on the dock was taken over, at
least in part, by Bernie Marshall.
Stanger was involved in the union activity from the
beginning. He made the initial call to the Union's elec-
tion observer. His union activity was known to at least
Ewer and Frafjord.
Respondent asserts, and the General Counsel does not
dispute, that following the layoff the touchup job was
combined with the painter's. Stanger was not qualified to
perform the combined job. Paul Dubiel and Bernie Mar-
shall, both painters and loaders before the layoff, were
recalled to do the combined job. Dubiel and Marshall
both have less seniority than Stanger. Marshall, it should
be noted, was heavily involved in the union activity.
The General Counsel does not contend that Stanger
should have been recalled in place of Dubiel or Marshall.
Rather, the General Counsel argues that less senior
people were recalled to work in jobs that Stanger had
done before his layoff. The only one suggested was
Richard Kroening. Kroening was hired in August and
company records show that he was listed as "dockwork-
er, maintenance, gaskets and hardware" in the hardware
(HD) department. The record does not show what Rich-
ard Kroening was doing during the period of Stanger's
layoff. However, when Stanger was recalled in April, he
worked for 1 day on touchup and then replaced Kroen-
ing on the job of installing springs and gaskets.
In addition to noting the weight restriction on
Stanger's work, Respondent argues that his extensive tar-
diness record was a factor in the decision not to recall
him. He had received a written warning for tardiness in
February and his attendance record indicates that he was
late for work virtually every day from June until he was
laid off. There is no indication that he was given any fur-
ther warning or discipline for his continued tardiness,
which may have been occasioned by the fact that he was
a farmer in addition to working for Respondent.
3. FT department-Sewers Priscilla Barber,
Mildred "Bernie" Yakovetz, Barbara Novak, and
Susan Celske
Recalled from layoff were sewers Dorothy Jenness,
Victoria Hoeft, Kay Franzen, Pamela Bosteda, Arlene
Grey, Harriet Reinaas, and Ruth Coats. All these except
Coats had more seniority than any of the four sewers,
named above, who were not recalled. Coats was hired 2
weeks after Barber (19 May 1983 vs. 2 May 1983) and
before Yakovetz (6 August 1984), Novak (21 March
1985) and Celske (22 July 1985). Also recalled to the FT
department, which included sewing, were Kathy Hoeft
and Wendy Ralston . Kathy Hoeft, hired 31 August 1984,
returned to do springs and gaskets, which had been her
job before the layoff; she also did some sewing after her
MASTERCRAFT CASKET CO. 1419
recall . Sewing was included in her job description and
she had done some sewing before the layoff. Ralston,
hired 13 August 1986, was a cap assembler and tacker
and that is the job she did on her recall . In January 1987,
after Jenness was injured , Respondent recalled Harriett
as a sewer . Winter had more seniority (5 November
1984) than any of the sewers not recalled except Barber.
Betthauser and Jim Ewer denied knowledge that
Barber, Yakovetz, Novak, and Celske had supported the
Union. For the reasons previously stated , particularly the
animus statements attributed to Ewer naming some of
these individuals, and for the additional reasons set forth
below, I do not credit their denials.
Priscilla Barber had attended all the union meetings,
signed an authorization card , and talked in favor of the
Union among the employees during their breaks . In prep-
aration for the hearing scheduled in the prior case she
had spoken with Respondent's counsel and had revealed
her support and her vote for the Union.
In April, Bonnie Timmers , a relative of Joan Ewer,
Jim Ewer's daughter-in-law , and a former friend of Bar-
ber's, allegedly told Joan and/or Florence Ewer that
Priscilla Barber had said that when she got ready to quit,
she would feign an injury at work and collect workman's
compensation as she had allegedly done at her prior
place of employment. Respondent never questioned
Barber about this and never took any action to protect
itself against an unwarranted claim or suit by Barber. If
they had questioned her, they would have had her
denial, as she denied it on the witness stand , and they
would have learned that there was an ongoing property
dispute between Barber's family and Timmers', rendering
Timmers less than an unbiased reporter. Notwithstanding
the uncorroborated nature of this hearsay, Respondent
initially asserted this information as the sole reason why
it did not recall Barber. Subsequently, Respondent added
that Barber had less seniority than all of those called
back except Coats and claimed that Coats had been
working on a special project, sewing sets on cardboard.
Respondent claimed that Coats was the only one doing
this special project, which had been assigned to her be-
cause she had a new sewing machine . Barber credibly
testified that all the sewers worked on this project and
that their machines were fully capable of doing that
work. Respondent considered Barber's work to be satis-
factory and made no contention that it failed to recall
her because of her job performance.
During the winter, Barber and her husband went to
Arizona where he sought temporary work. Respondent
learned of this when someone called her home and spoke
with her daughter about an insurance matter . When Jen-
ness was injured, Respondent made no effort to contact
Barber to be her replacement, allegedly believing that
she was unavailable for work. Harriet Winter was called
back in January 1987 to replace Jenness . Barber testified
that she was available to return and would have done so
had they contacted her. Contact, she said, could have
been made through her daughter.
Mildred "Bernie" Yakovetz had attended union meet-
ings, signed a union authorization card, talked about the
Union with her fellow employees, been named as an al-
leged discriminatee in the prior case, received backpay
from the settlement of that case , and had been inter-
viewed by Respondent 's attorney in preparation for the
earlier scheduled hearing . She was not a leader of the
campaign but her feelings toward the Union were known
and, as shown above , were not appreciated.
Respondent initially stated that Yakovetz was not re-
called because her job had been combined with another
and because of poor quality workmanship . In its subse-
quent statement , Respondent made no mention of the
combining of Yakovetz ' job with any others ; it relied on
her seniority and job performance . No specific evidence
was ever introduced as to what other job Yakovetz may
have been combined with and , when she returned to
work in April , she saw no evidence of job combination.
According to Jim Ewer , Yakovetz was a fast sewer
but she made a lot of mistakes requiring that her work be
redone . His testimony is corroborated by two file nota-
tions, showing that work was returned to her on 29 May
and 10 June . Yakovetz admitted that she made some mis-
takes in her sewing but volunteered that she did not do
so anymore than anyone else. She also testified that
before the layoff her leadlady, Arlene Grey, had told her
that she would be recalled quickly because she was one
of the best sewers.
Yakovetz was recalled on 6 April, worked 1 week,
and since a plant shutdown of 1 week , has not been re-
called . The General Counsel contends that there is a
continuing discrimination against her.
Barbara Novak is the wife of Harold Novak, one of the
principal union organizers , and this relationship was
noted adversely by Respondent . She attended two union
meetings and was observed at one of them, along with
about 30 others, by Florence Ewers . She signed an au-
thorization card , distributed two others, and received
backpay as an alleged discriminatee in the ULP case,
which was settled.
Respondent claimed in its position statements that she
was not recalled because she had the least seniority
among the sewers and her job had been combined with
another . In his testimony, Ewer stated that she was a
slow sewer; his notes on her work performance con-
firmed this . Yakovetz also corroborated it; she had heard
Ewer criticize Novak 's work pace. Novak admitted that
she was not fast, but denied that she was the slowest.
Novak was recalled on 6 April, worked for a short
while, and was then laid off again . She has not yet been
recalled and, like Yakovetz , is claimed to be a victim of
continuing discrimination.
Susan Celske, like Yakovetz, had attended some union
meetings, had talked about the Union in the shop, and
had been named as a discriminatee and received backpay
as a result of the earlier settlement . Also, like Yakovetz,
she was laid off again following her recall.
Respondent's position statements assert that she was
not recalled because her job was combined with another
and because she had the least seniority. In his testimony,
Ewer claimed that she was a slow sewer, that she had
been tried on several jobs on which she either could not
keep up or complained about the work. His testimony is
supported by file notations made in March and August.
1420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Welding department-Matthew Hall
Matthew Hall did not testify in this proceeding. Ac-
cording to Golat, Hall was very vocal in his support of
the Union and wore a union button. At one point, early
in the campaign, when Jim Ewer was telling employees
that they did not need a union, Hall replied that if it
were not for people like Ewer in the plant, they would
not need one. Ewer admitted that he was aware of Hall's
strong support for the Union.
Hall was an automatic head welder. According to Re-
spondent's initial statement of position , Hall was not re-
called from layoff because his job had been combined
with another and because he had moved out the area.12
Subsequently, Respondent expanded on the first reason,
pointing out that Hall's skills were limited to automatic
welding; he could not do other types of welding. The
extent of his experience was to put lids on, they were
welded automatically , and he installed hinges . The auto-
matic welder position , Respondent stated , was combined
with the corner and finish welder positions. To perform
this work, Respondent recalled Everett "Rusty" Junk, an
employee whose seniority dates from 1971. Ewer further
testified that Hall suffered from a hand tremor , causing
him to be nicknamed "Shakey." This tremor prevented
him from doing other work in Respondent's plant.
The General Counsel did not dispute the testimony
concerning Respondent's reasons for not recalling Hall.
Neither did the General Counsel suggest the name of
any employee who was recalled in lieu of Hall.
5. Analysis and conclusions regarding the alleged
discrimination
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 ((1st Cir. 1981),13 the Board set forth the
following causation test to be applied in all discrimina-
tion cases turning on employee motivation:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Resolution of the 8 (a)(3) allegations turns on motivation;
accordingly, Wright Line provides the analytical frame-
work for the discussion that follows.
The General Counsel has established that, to a greater
or lesser extent, each of the alleged discriminatees en-
gaged in union activity, that Respondent knew of that
activity both generally and with respect to each of the
alleged discriminatees , and that its supervisors dissembled
ignorance of that knowledge. The attempt to conceal its
knowledge of the union activity warrants an inference
12 This second reason was apparently "make weight " The only evi-
dence that Hall moved comes from the fact that his letter of recall from
the layoff, dated 31 March 1987 , was returned undelivered . There is no
evidence that Respondent knew of his move at any earlier time when
other employees were being recalled.
18 The Wright Line test was approved by the Supreme Court in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983)
that it was seeking also to conceal unlawful motivation.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966).
Unquestionably , it has also been established that Re-
spondent harbored animus against union activists in gen-
eral and the record reveals that its animus was specifical-
ly directed at Golat, Marshall, Stanger, Yakovetz, and
Barber , and possibly others. Significantly , the record
even reveals Respondent 's intention to use layoffs as a
means of ridding itself of prounion employees.
Finally, the General Counsel has shown that Respond-
ent put forth pretextual or shifting reasons for its failure
to recall some of the employees . The assertion of false or
shifting reasons for its actions is strong evidence that its
actions were unlawfully motivated . Delta Gas, 282
NLRB 1315 (1987); Swift & Co., 250 NLRB 1223, 1225
(1980). I consider as patently pretextual Respondent's
claim that La Porte was called back before Golat be-
cause he was a "very versatile employee." He had not
worked there long enough to become versatile. More-
over, Golat was expressly referred to by Jim Ewer as a
versatile and adaptable employee and had worked there
long enough to have earned that credit. It is thoroughly
implausible that Respondent would have recalled a very
short-term employee because of his alleged versatility in
place of a versatile and well -regarded long-term employ-
ee unless it had other motivations . In a similiar vein, one
must view Respondent 's contention that Golat was not a
highly regarded employee ; as noted, that contention was
a mere afterthought , contradicted by other evidence.
Likewise , the contention that Joe Marshall was a slow
worker , which was clearly contradicted by Ewer's own
testimony, and was advanced by Respondent and then
not pursued.
Clearly pretextual, also, is Respondent 's alleged reli-
ance on the double hearsay statement attributed to
Barber by Florence or Joan Ewer concerning her intend-
ed abuse of a workman 's compensation claim, without
even a perfunctory investigation . If Respondent had
placed sufficient credence in this statement to have de-
layed Barber's recall from layoff because of it, it would
have been sufficiently concerned to have confronted her
about it when the allegation first surfaced or to have
taken immediate remedial action . I find it totally implau-
sible that an employer would believe that an employee
intended to defraud it through an abuse of the work-
man's compensation laws and do nothing more than rely
on such knowledge to delay the recall of that employee
from a layoff. Its failure to do more , to even question the
employee about it, shows pretext and makes clear its mo-
tivation.14 Kidde, Inc., 284 NLRB 78 (1987); Brookshire
Grocery Co., 282 NLRB 1273 (1987).
The General Counsel having established a strong
prima facie case, the burden shifts to Respondent to
14 Additionally, I note that while Respondent contended that the jobs
of sewers Yakovetz , Novak, and Celske had been combined with other
jobs, it never made clear what other jobs, if any , they had been combined
with Regarding Matthew Hall, I note that Respondent threw in his
change of address as a reason for not recalling him although there was no
evidence that it knew of that change at any time prior to the turn of the
31 March recall letter.
MASTERCRAFT CASKET CO. 1421
show that it would not have recalled these employees
even if they had not been identified with the Union.
Much of its defense has , of course, been considered and
rejected in the foregoing discussion ; in pretext cases
there is seldom a clear line between the General Coun-
sel's burden and Respondent's.
Considering Respondent 's arguments and evidence, I
find that Respondent has failed to satisfy that burden
with respect to Golat, Marshall , and Barber . Thus, Golat
was a versatile and respected employee whom Respond-
ent had falsely attempted to portray otherwise. He had
experience on a number of different jobs, including
grinding, scuffing, and loading, and could have been re-
called ahead of Papiernik , Srp, La Porte, Thomas, and
Smith and before Main was hired . Even assuming that
Respondent honestly believed that Golat had declined
the grinding job in March when Novak quit, I would
find that he should have been offered the combined
grinding/DA job ahead of Papiernik. It is one thing to
decline a job transfer when one is fully occupied with a
preferred job; it is quite another to be offered that job in
combination with the preferred job when the alternative
is layoff. Respondent did not follow its stated policy of
recalling the employee who was both most qualified and
most senior when it preferred . Papiernik, Srp, LaPorte,
Thomas, and Main over Golat.
Virtually all that has been said above concerning
Golat applies with equal force to Joe Marshall. He had
experience in grinding and loading and was considered a
versatile and valuable employee , one who could be
counted on, before he became involved in union activity.
Respondent falsely attempted to portray him otherwise
and then dropped that position. He could have, and
should have, been recalled before Papiernik, Srp, or La-
Porte and before Respondent hired Main to do simple
tasks that could have as easily been assigned to Marshall.
A more difficult case is presented in Priscilla Barber.
She was only nominally more senior than Ruth Coats,
the only sewer recalled with less seniority . However,
Respondent's reliance on the alleged workman's compen-
sation matter is so blatantly pretextual that I must infer
unlawful motivation. In this regard I have also consid-
ered that Barber was fully capable of doing the "special
project" that Respondent claimed was Coats' assignment
and, in fact, had done it. The "special project" was no
justification for recalling Coats ahead of Barber.
Contrary to the situations presented by Golat, Mar-
shall, and Barber , I do fmd that Respondent has met its
burden of proof regarding Stanger, Yakovetz, Novak,
Celske, and Hall . Stanger was classified as a dockworker.
However, he could not be recalled to that position be-
cause Respondent understood him to be under a weight-
lifting restriction. It was Stanger 's obligation to secure a
release from that restriction and he had not done so.
Bernie Marshall , a prounion employee with greater se-
niority, was apparently recalled to the dockworker posi-
tion, apparently in conjunction with other work. Richard
Kroening , an employee with less seniority, was recalled
to the maintenance department but apparently did some
work that Stanger may have been capable of doing even
under his weight restriction. For a light-duty assignment,
Stanger had been giving touchup. The touchup job was
combined with painting following the layoff and he was
not qualified for the combined job. Additionally, Re-
spondent introduced uncontradicted evidence of exces-
sive tardiness by Stanger , a legitimate consideration
when determining whom to recall . 15 Considering the
lack of work for him within the weight-lifting restriction
and his tardiness , I am convinced that Respondent would
not have recalled Mark Stanger even if he had not been
known as an employee who favored the Union.
The General Counsel did not dispute Respondent's
adoption of a policy calling for recall by qualification
and seniority within departments . In the sewing depart-
ment, no sewers with less seniority than Yakovetz,
Novak, and Celske were called . Two employees, Kathy
Hoeft and Wendy Ralston , were recalled but they had
jobs other than sewing and did not sew as their principal
assignments following recall . I find that Yakovetz,
Novak, and Celske were properly recalled within the
terms of Respondent's written policy. There was no dis-
crimination in Respondent 's failure to recall Yakovetz,
Novak, and Celske earlier.
Similarly, there is no evidence that anyone was re-
called to a position that, by seniority or qualification,
should have been Matthew Hall 's. Absent such evidence,
I can find no discrimination.
Accordingly, I shall recommend that Respondent be
found to have violated Section 8(a)(3) and (1) of the Act
by its failure to recall Chester Golat, Joe Marshall, and
Priscilla Barber.' a I shall further recommend that the al-
legations of discrimination against Mark Stanger, Mil-
dred Yakovetz, Barbara Novak, Susan Celske, and Mat-
thew Hall be dismissed.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX3) and (1) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully failed and
refused to recall Chester Golat, Joe Marshall , and Pris-
cilla Barber from layoff unit' 6 April 1987, I recommend
that Respondent be required to make them whole for
any loss of earnings and other benefits they may have
suffered as a result of the discrimination against them,
with interest to be computed in the manner prescribed in
New Horizons for the Retarded.17
15 Even in the absence of evidence concerning the absenteeism records
of other employees, Stanger's was obviously bad enough to cause con-
cern.
's In so finding, I have not failed to consider that Respondent did
recall and even promote some people who were known to it as union
supporters. An employer need not discriminate against all known union
supporters in order to effectively discourage union activity by discrimi-
nating against some . Uptil6 Inc, 276 NLRB 583, 589 (1984).
17 283 NLRB 1173 (1987). Interest on and after January 1 , 1987, shall
be computed at the "short-term Federal rate " for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. 16621 ), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
1422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel has requested a visitatorial
clause authorizing the Board, for compliance purposes,
to obtain discovery from the Respondent under the Fed-
eral Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this
Order. Under the circumstances of this case, I find it un-
necessary to include such a clause. See BMD Sportswear
Corp., 283 NLRB 142 fn. 3 (1987).
CONCLUSIONS OF LAW
1. By threatening to terminate or thin out employees
because of their union membership, activities, or desires
and by blaming the Union for the layoff of other em-
ployees, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaran-
teed them under Section 7, thereby violating Section
8(a)(1) of the Act.
2. By discriminatorily failing to recall employees from
layoff because of their membership in or support for the
Union, Respondent has violated Section 8(a)(3) and (1)
of the Act.
3. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Respondent has not engaged in any unfair labor
practices not specifically found.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'8
ORDER
The Respondent, York Products, Inc. d/b/a Master-
craft Casket Company, Ladysmith, Wisconsin, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with termination because
of their union membership, activities, or desires.
(b) Blaming the Union for the layoff of employees.
(c) Discriminatorily refusing and failing to recall em-
ployees from layoff because of their union membership,
activities, or desires or other union or protected concert-
ed activities.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Chester Golat, Joseph Marshall, and Priscilla
Barber whole for any loss of earnings and benefits they
may have suffered as a result of the discrimination
against them in the manner provided in the remedy sec-
tion of this decision.
(b) Post at its Ladysmith, Wisconsin plant copies of
the attached notice marked "Appendix."19 Copies of the
18 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the fmdmgs , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
notice, on forms provided by the Regional Director for
Region 18 , after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT threaten to terminate or thin out em-
ployees because of their union activities, membership, or
desires.
WE WILL NOT blame the Union for the layoff of em-
ployees.
WE WILL NOT discriminatorily fail or refuse to recall
employees from layoff because of their union activities,
membership, or desires.
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 make Chester Golat, Joseph Marshall, and
Priscilla Barber whole for any loss of earnings and bene-
fits they may have suffered as a result of the discrimina-
tion against them, with interest.
YORK PRODUCTS, INC. D/B/A MASTER-
CRAFT CASKET COMPANY