Mohawk Tools, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1982

262 N.L.R.B. 242 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mohawk Tools, Inc. and National Industrial Work-
ers Union, affiliated with National Federation
of Independent Unions. Case 8-CA-13574
June 17, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On July 28, 1981, Administrative Law Judge
Karl H. Buschmann issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge, but not to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Mohawk Tools, Inc., Montpelier, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against employees because of their union activities.
(b) Coercively interrogating any employees
about their union activities.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action:
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
a In the next to the last paragraph of his Decision, the Administrative
Law Judge summarized the factors upon which he relied in determining
that Respondent's purported reason for discharging Turney was pretex-
tual. However, he inadvertently failed to note his earlier finding, based
upon credited testimony, that, contrary to Respondent's assertions,
Turney was in fact engaged in production between 7:20 and 7:40 on the
morning of February 6, 1980, as was reported on her job card.
3 We shall issue an Order in lieu of that recommended by the Adminis-
trative Law Judge to reflect the cease-and-desist and affirmative action
language traditionally used by the Board to remedy the violations found
· herein.
(a) Offer Naomi Turney immediate and full rein-
statement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Naomi Turney whole for any loss of
earnings she may have suffered due to the discrimi-
nation practiced against her, in the manner pro-
vided in the section of the Administrative Law
Judge's Decision entitled "The Remedy." 4
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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.
(d) Post at its Montpelier, Ohio, plant copies of
the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
4 Member Jenkins would award interest on any backpay due under this
Order, based upon the formula set forth in his dissent in Olympic Medical
Corporation. 250 NLRB 146 (1980).
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the Ilotice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of 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 Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
262 NLRB No. 30
242
MOHAWK TOOLS, INC.
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
union activities.
WE WILL NOT interrogate our employees
about their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Naomi Turney full and im-
mediate reinstatement to her former job, or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Naomi Turney whole for
any loss of earnings she may have suffered due
to the discrimination practiced against her,
with interest.
MOHAWK TOOLS, INC.
DECISION
KARL H. BUSCHMANN, Administrative Law Judge:
This case arose upon the filing of a charge by National
Industrial Workers Union (N.I.W.U. or the Union)
against Mohawk Tools, Inc. (Respondent), on February
19, 1980. The complaint, issued on April 14, 1980, al-
leged as three separate violations of the National Labor
Relations Act (the Act), that Respondent (1) unlawfully
interrogated an employee concerning his union activity
and made statements creating an impression of employer
surveillance of union activity, in violation of Section
8(a)(l) of the Act; (2) unlawfully stated to an employee
that Respondent was engaging in surveillance of employ-
ees' union activities in violation of Section 8(a)(1) of the
Act; and (3) discriminatorily discharged employee,
Naomi Turney, in violation of Section 8(aX1) and (3) of
the Act.
Respondent's answer, filed on April 21, 1980, admitted
the jurisdictional elements of the complaint' as well as
the discharge of Turney, but it denied that Respondent
had violated the Act.
A hearing was held on November 24 and 25, 1980, in
Bryan, Ohio. Briefs were filed by both sides on January
29, 1981. Upon a review of the whole record2 and my
I In its answer, Respondent neither admitted nor denied that N.I.W.U.
is a labor organization within the meaning of Sec. 2(5) of the Act. How-
ever, at the subsequent hearing, Respondent stipulated that N.I.W.U. is a
labor organization.
I The General Counsel's unopposed motion to correct transcript is
granted.
consideration of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
A. Background
Respondent Mohawk Tools, Inc., is an Ohio corpora-
tion with its principal place of business in Montpelier,
Ohio, and employs approximately 300 hourly rated em-
ployees. Respondent is engaged in the manufacture of in-
dustrial machine tools. Annually, in the course of its
business, Respondent receives, directly from points locat-
ed outside the State of Ohio, goods or materials in excess
of $50,000.
Union organizational activity began at Respondent's
plant in 1976 when United Steelworkers of America un-
successfully attempted to organize Respondent's employ-
ees. After this attempt, N.I.W.U. began their organiza-
tional activities. Two National Labor Relations Board
elections were held among Respondent's hourly rated
employees, the first in December 1977 and the second in
January 1979. The Union was rejected in both elections.
However, in the latter election, N.I.W.U. lost by only 14
votes.
B. Alleged Unfair Labor Practices
Interrogation. Roland Kirkendall was a rough center-
less operator and leadman in the employ of Respondent.
His foreman at this time was Patricia Wright. On several
occasions during the latter part of 1979, Kirkendall ex-
pressed his inability to get along with Foreman Wright
and asked the plant supervisor, Ed Davenport, to find a
replacement and transfer him. Pursuant to these requests,
around the latter part of November and beginning of De-
cember 1979, Kirkendall was called into a small confer-
ence office by Plant Superintendent Don Nicolen. Also
present at this meeting were Davenport and Wright. Ni-
colen asked Kirkendall if he wanted to give up his posi-
tion as leadman and why. Kirkendall responded, "I want
to give the job up"; and explained further that "I could
not get along with my foreman; we had too many prob-
lems." After this exchange, Nicolen then said, "we hear
that you have been going around trying to get people to
sign union cards on company time." Kirkendall an-
swered, denying that he had engaged in that activity.
The record contains no evidence denying or rebutting
this exchange between Nicolen and Kirkendall and Kir-
kendall appeared to be a credible witness. I, therefore,
credit his testimony. The General Counsel asserts that
Nicolen's statement constituted unlawful interrogation
and created an impression of employer surveillance of
union activity. Considering the surrounding circum-
stances, Nicolen's question was coercive. It attempted to
elicit a serious response by Kirkendall about his union
activity, and it occurred at a meeting between Kirkendall
and three supervisors in a management conference office.
See, e.g., Pioneer Natural Gas Company, 253 NLRB 17
(1980). In light of the foregoing evidence, I find that Re-
spondent violated Section 8(a)(l) of the Act. However,
this incident did not amount to creating the impression of
unlawful surveillance.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Surveillance. Marion Prosser, employed by Respondent
as a pointer in the saw department, testified that some-
time in early February 1980, she had a conversation with
her foreman, Charles Elison. Prosser's testimony referred
to a statement by Elison to the effect that employees had
better not report any union activities to their foreman,
since he had to report such matters to Nicolen.
The General Counsel asserts that this comment created
an impression of employer surveillance of union activities
in violation of Section 8(a)(1) of the Act. Although Re-
spondent offered no evidence denying or rebutting this
testimony, it is clear that Prosser's recollection of the
events were unclear and vague. This evidence is insuffi-
cient upon which to find a violation and I find that Re-
spondent did not violate the Act in this instance.
Discriminatory Discharge. Naomi Turney was em-
ployed by Respondent from March 3, 1969, until Febru-
ary 7, 1980. At the time of her discharge, Turney was a
finished grinder on the first shift, under the immediate
supervision of Foreman Patricia Wright.
Since 1976, Turney was actively involved in union or-
ganization, first for United Steelworkers then, from 1977
until several months after her discharge, for N.I.W.U.
Turney distributed union authorization cards, canvassed
employees in their homes, and attended union meetings
for both the Steelworkers and N.I.W.U. Turney was one
of Respondent's 11 employees to openly assert their sup-
port for the Union by signing a letter sent to all of Re-
spondent's employees. This letter, dated December 5,
1977, urged all employees to vote for the Union in the
upcoming election, N.I.W.U.'s first Board election at Re-
spondent's plant. Throughout her employment with Re-
spondent, Turney continued to actively promote
N.I.W.U. She wore buttons, displayed union stickers on
her toolbox at work, and continued to urge fellow em-
ployees to sign union authorization cards. When
N.I.W.U. began its third election campaign in August
1979, Turney was considered to be among the Union's
leading activists, if not the leading activist.
On the afternoon of February 7, 1980, Wright called
Turney into her office. Present at this meeting were
Turney, Wright, Ed Davenport, Don Nicolen, and Jerry
Pritchard. Pritchard read to Turney a statement prepared
by Wright, stating in substance that on the morning of
February 6, 1980, Turney had misrepresented the time
spent on production. Turney's job card for February 6
showed that she began production at 7:20 a.m.3 instead
of 7:45, the time Respondent claimed she actually began
production (G.C. Exh. 5; Resp. Exh. 1). Turney respond-
ed that she was working between 7:20 to 7:45 and that
the time posted on her job card was correct. Pritchard
informed Turney that this was falsification of records.
Turney was then summarily discharged.4
Turney testified that on the morning of February 6,
1980, she arrived at work at 6:35, and noticed that the
coffee machine was broken. She proceeded to her work
area, opened her toolbox, got out her cup, and waited
s All times mentioned hereafter are a.m., unless otherwise indicated.
Respondent's employees are required to list their starting and finishing
time for each job on their job card.
4 Falsification of company records was grounds for immediate dismiss-
al, according to Respondent's "Employee Handbook" (G.C. Exhs. 7, 13).
for the 6:45 buzzer announcing the start of the workday.
After the sound of the buzzer, Turney performed the
daily maintenance work on her machine and noticed that
she needed a new diamond. She then went to the bath-
room, washed her hands, and requested a new diamond
from her foreman, Wright. Turney also gave Wright her
prescription for new work glasses' (G.C. Exh. 4). She
returned to her machine, put on the new diamond and
"dressed" the wheel. Noting her starting time at 7:20,
Turney put in a tool and started working. From 7:20 to
approximately 7:35, Turney was working on her tools
and making adjustments with a micrometer. She also
went to the bathroom and get a cup of water. At around
7:35, a fellow employee, Sharon Staniski, came to Tur-
ney's work area and asked for a Tylenol tablet. Turney
gave Staniski the Tylenol from her toolbox and went
back to "micing" her tools.
Staniski, who impressed me as a reliable witness, cor-
roborated Turney's testimony stating that at the time she
obtained the Tylenol, Turney was in production and
micing a tool. She also testified that the time of her visit
was around 7:35.
Turney testified that 3 to 5 minutes after Staniski's
visit, or at 7:40, another employee, Shirley Makemson,
came by to get hot water from Turney, since the coffee
machine was broken. After that, Turney returned to
work on her tools and dressed her machine.
Makemson, in her testimony, corroborated this se-
quence of events, stating that after 7:15 she went to the
coffee machine and discovered it was broken.6 She went
back to work, but remembering that another employee,
Kay Elliott, had instant coffee, she got the coffee from
Elliott and the hot water from Turney. Makemson re-
membered that this occurred sometime between 7:25 and
7:35, but not as late as 7:45, and that Turney was work-
ing, micing a tool.
Another employee, Mary Krontz, also testified that
Turney was working at 7:30 that morning. Krontz's
work area was positioned in such a way that Turney was
in a direct line with the clock. She recalled getting a
drink of water at 7:30, since the clock was right above
the water fountain. At this time, she observed Turney
working and a few minutes later she saw Staniski at Tur-
ney's work area.'
On the other hand, Wright testified that on the morn-
ing of February 6, she purposefully watched Turney
from 6:45 until 7:45, since she had observed Turney
wasting time on the morning of Fei:ruary 1, 1980, and
had verbally warned her, "it was taking entirely too
much time before that machine was in production."
Wright believed that on February 1, Turney had record-
ed 7:20 as the starting time but that Turney actually
started at 7:45 (G.C. Exh. 9). Wright wanted to "see if
[she] was right or if [she] was wrong; if this was happen-
ing on a daily basis or in one day or whatever."
'Respondent's employees get a discount on wvork glasses through the
plant.
6 Makemson was sure of the time, since shl is always eager to get
coffee. Yet employees cannot get coffee until alter 7:15.
Turney and her three corroborating witnesses, Staniski, Makemson,
and Krontz, were all supervised by Foreman Wright.
244
MOHAWK TOOLS, INC.
During this I-hour period of observation, according to
Wright, she had looked at her watch twice, once at 7:20
when she saw that Turney had completed her machine
maintenance and again at 7:45 when she saw that Turney
was "actively in production." At the end of Turney's
shift, Wright pulled Turney's job card and discovered
that Turney had recorded 7:20 as the start of production
(Resp. Exh. 1). Wright promptly informed her supervi-
sor, Ed Davenport, that Turney had falsified her job
card.
Wright's recollection of Turney's actions from 7:20 to
7:45 was vague and uncertain. She recalled only that
Turney went to the bathroom, to the water fountain, and
talked for a few minutes to other employees. However,
she could not remember the employees who had spoken
with Turney, nor the specific sequence of Turney's ac-
tions. Turney's testimony, however, gave a detailed and
consistent account of her actions. It was also corroborat-
ed by three credible witnesses. I, therefore, find that
Turney was engaged in production between 7:20 and
7:40 on February 6.
Respondent denied any knowledge of Turney's promi-
nent union role. However, the credible record evidence
indicates that Wright, at least, was aware of Turney's
union sympathies, since Wright had been a union sup-
porter in 1977 before her promotion to foreman, had
signed the 1977 union letter (G.C. Exh. 2), and had at-
tended the same union meetings as Turney. Turney had
even asked Wright to sign a union authorization card just
prior to her promotion in December 1978. Wright ad-
mitted that she had become aware of union activity at
Mohawk as early as 1978 or early 1979 through a con-
versation with leadman, Duane Ward who corroborated
this admission. Wright also conceded that she had seen
the N.I.W.U. sticker on Turney's toolbox.
In the fall of 1979, Turney had a conversation with
Charles Elison concerning her union activity. This con-
versation took place about a month before Elison's pro-
motion to foreman. Further, according to Turney, Re-
spondent's president, Lyle Storrer, saw her union sticker
on her toolbox during his usual Christmas tour of the
plant in December 1979. In December 1979, the Union
was in the middle of another election campaign. Turney
consistently wore buttons throughout the union cam-
paign and was one of very few employees to clearly ex-
hibit union stickers. Storrer, Wright, and Jerry Pritchard
(personnel supervisor) testified that Storrer was upset at
the results of the Union's second election in January
1979 and told the supervisors that they had to get their
"act together" within the year, as the Union could then
petition for another election.8 Clearly, Respondent was
aware of Turney's union activities in 1979 and prior to
the time of her discharge.
The General Counsel also disagrees with Respondent's
position on the grounds that its treatment of Turney was
inconsistent and arbitrary. For example, on August 31,
1979, Wright gave Turney a written warning for loiter-
ing and explained the reason as "too much time spent in
' A former supervisor for Respondent, Albert Watson, testified that at
this meeting Storrer also stated that they knew who the union supporters
were and had "a year to weed them out." Storrer, Wright, and Pritchard
denied that this statement was made.
the bathroom" (G.C. Exh. 6).9 Turney had taken a 20-
minute break in the bathroom but had failed to note this
on her job card. On February 1, 1980, Wright also ver-
bally warned Turney about wasting too much time
before beginning production. Wright could give no ade-
quate reason why Turney's conduct was treated as loiter-
ing on August 31 and as falsification on February 6, yet
both occasions involved the same conduct, too much
time spent away from her machine. Jerry Pritchard, per-
sonnel supervisor, stated that there was a falsification on
February 6 because Turney's break should have been re-
corded under morning maintenance rather than under
production. However, he admitted that employees were
not required to separately record break time, and that he
had never instructed employees that a break at the start
of production should be recorded under maintenance.
There also was evidence of inconsistent treatment be-
tween employees. Employee Staniski testified that she
had taken breaks right after completing maintenance and
recorded it under production. Another employee, Shirley
Prather, testified that Wright had given her a written
reprimand on May 8, 1980, for an incorrect time on her
job card. She had arived late on a few mornings, re-
corded 6:45 instead of 6:40 or 6:50, and had completed a
late slip. Prather received a written warning for placing
the wrong time on her job card but was not accused of
falsification.
In response to the question about what was the real
reason for Turney's discharge, the record is clear. Re-
spondent knew of Turney's union activity at the time of
her discharge. Respondent's charge of falsification
amounted to disparate treatment of Turne min relation to
her past conduct and toward other employees. Pritchard,
the person who made the ultimnte decision to discharge
Turney, did not review her employment file before
making this decision, he failed to ask Turney for the
names of other employees who could corroborate her
claim, and he failed to give Turney an opportunity for a
detailed account of her actions. Pritchard himself had
only a vague knowledge of Turney's activities and did
not consider whether Turney's conduct could be deemed
loitering as opposed to falsification. Finally, no consider-
ation was given to any other forms of discipline.
On the basis of the foregoing, I find that Respondent's
claim of "just cause" due to falsification of company
records, in discharging Naomi Turney amounted to a dis-
ingenuous and pretextual attempt to rid itself of a union
activist in violation of Section 8(a)(l) and (3) of the Act.
CONCLUSIONS OF LAW
i. Respondent Mohawk Tools, Inc., is and was at all
material times, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union, National Industrial Workers Union, af-
filiated with National Federation of Independent Unions,
is and was at all material times, a labor organization
within the meaning of Section 2(5) of the Act.
* Loitering is also covered in Respondent's handbook under a four-step
disciplinary procedure. Loitering is defined as "excessive unauthorized
time away from work station."
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interrogating Roland Kirkendall concerning his
union activity during company time, Respondent violat-
ed Section 8(aXl) of the Act.
4. By discharging Naomi Turney on February 7, 1980,
becaue of her union activities, Respondent violated
Section 8(aX3) and (1) of the Act.
5. The aforesaid practices are unfair labor practices af-
recting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(aXl) and (3) of the
Act, I recommend that Respondent be ordered to cease
and desist from its unlawful practices. I further recom.
mend that Respondent be ordered to post an appropriate
notice and take affirmative action in order to effectuate
the policies of the Act.
In addition, I recommend that Respondent offer
Naomi Turmey immediate reinstatement without preju-
dice to her seniority rights or other privileges and be
provided with backpay and interest thereon, to be com-
puted in the manner prescribed in F. W Woolworth CO,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977)10 and that she be made whole for any
lokm of pay or other benefits which she suffered as a
result of Respondent's conduct found unlawful herein.
(Recommended Order omitted from publication.]
o S3e, pwraally, Isb Plumbing 4 Heating Co., 13S NLRB 716 (1962).
26