National Gypsum Co.

National Labor Relations Board - Board Decisions

May 19, 1989

293 N.L.R.B. 1138 (N.L.R.B. 1989)

1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gold Bond Building Products , a Division of National
Gypsum Company and United Paperworkers
International Union , AFL-CIO-CIC and Hugh
Hamilton and Ronald S Frey Cases 4-CA-
16354, 4-CA-16608, 4-CA-16649, and 4-CA-
16816
May 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 26, 1988, Administrative Law Judge
Joel A Harmatz issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief answering the
Respondent's exceptions
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,2
and conclusions and to adopt the recommended
Order as modified 3
ORDER
The National Labor Relations Board orders that
the Respondent, Gold Bond Building Products, a
division of National Gypsum Company, Milton,
Pennsylvania, its officers, agents , successors, and
assigns, shall
I Cease and desist from
(a) Coercively interrogating employees concern
ing union activity
' While this case was pending before the Board the Respondent filed
motions to reopen the record for submission of evidence concerning mis
conduct allegedly committed by discriminatee Ron Pfleegor after the is
suance of the judge s decision We agree with the General Counsel op
posing the Respondents motions that the allegations of misconduct even
if established as true would not alter the result in this case and thus the
motions are denied as lacking in ment To the extent that the alleged mis
conduct may affect Pfleegor s entitlement to reinstatement and backpay
we find it a suitable matter for the compliance stage of this proceeding
See e g Bartels & Shores Chemical Co 274 NLRB 1034 fn 3 (1985)
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In the judge s decision he inadvertently found that in mid December
1986 Plant Manager Shimshock was directed by his superiors to pre
pare a plan to bring the maintenance department within budget for the
rest of the year In fact the record establishes that this directive occurred
in mid September 1986
Further in analyzing the Respondent s unlawful distribution of over
time the judge inadvertently referred several times to the date Sunday
January 31 1987 The correct date is Sunday February 1 1987
3 Our Order corrects the judge s inadvertent failure to refer to one of
the 8(a)(1) violations committed by the Respondent and other minor
errors in his recommended Order
(b) Creating the impression that union activity is
subject to surveillance
(c) Threatening employees with lockout and re-
placement in the event that they support a union
(d) Threatening employees with loss of benefits
in the event that they designate a union
(e) Soliciting employees, under coercive condi-
tions, to repudiate their designations of a union
(f) Threatening to terminate employees because
of their support of a union
(g) Discouraging activity on behalf of the labor
organization by permanently laying off, denying
overtime, or in any other manner discriminating
against employees with respect to wages, hours, or
terms and conditions of employment
(h) 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 neces-
sary to effectuate the policies of the Act
(a) Offer Ron Pfleegor and Clair Yeagle immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the judge's decision
(b) Remove from its files any reference to their
unlawful layoffs and notify the employees in writ-
ing that this has been done and that the layoffs will
not be used against them in any way
(c) Make whole employees Ron Pfleegor, Ron
Frey, Jim Karnes, Judd Seiger, Bill Hockenberry,
Hugh Hamilton, and Clair Yeagle for the loss of
earnings they suffered by reason of the discrimina-
tory denial of weekend overtime work to them on
and after February 1, 1987
(d) Preserve and, on request, make available to
the Board and 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
(e) Post at its Milton, Pennsylvania plant, copies
of the attached notice marked "Appendix "4
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by
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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
293 NLRB No 142
NATIONAL GYPSUM CO 1139
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Ron Pfleegor and Clair Yeagle
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their unlawful layoffs, with interest
WE WILL notify them that we have removed
from our files any reference to their unlawful
layoff and that the layoff will not be used against
them in any way
WE WILL make whole employees Ron Pfleegor,
Ron Frey, Jim Karnes, Judd Seiger, Bill Hocken-
berry, Hugh Hamilton, and Clair Yeagle for earn
rags lost by reason of our discriminatory denial to
them of weekend overtime, with interest
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT question you concerning your
own union activity or that of your coworkers
WE WILL NOT threaten to lock you out and re-
place you because of your support of a union
WE WILL NOT create the impression that we are
spying on your union activity
WE WILL NOT threaten to take away your bene
fits should you designate the Union as your repre-
sentative
WE WILL NOT under coercive conditions ask you
to rescind your support of a union
WE WILL NOT threaten to terminate you because
of your support of a union
WE WILL NOT discourage activity on behalf of
United Paperworkers International Union, AFL-
CIO-CLC, or any other labor organization, by per-
manently laying off, denying overtime work, or in
any other manner discriminating against our em-
ployees with respect to their wages, hours, or
terms and conditions of employment
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
GOLD BOND BUILDING PRODUCTS, A
DIVISION OF NATIONAL GYPSUM
COMPANY
Joseph C Kelly and Richard Wainstein Esqs, for the
General Counsel
Steven S Greene and Daniel P Murphy Esqs (Constangy
Brooks & Smith), of Atlanta Georgia for the Re
spondent
DECISION
STATEMENT OF THE CASE
JOEL. A HARMATZ, Administrative Law Judge This
proceeding was heard by me in Lewisburg and Sunbury
Pennsylvania on various dates between December 2 and
11 1987, on an initial unfair labor practice charge filed
on January 29, 1987, and a consolidated complaint issued
on October 9, 1987 alleging that Respondent independ
ently violated Section 8(a)(1) of the Act by creating the
impression that union activities were subject to surveil
lance by interrogating employees concerning union ac
tivity, by soliciting employees to withdraw union desig
nation cards and by threatening employees and promis
ing them benefits to dissuade them from supporting the
Union The complaint further alleged that Respondent
violated Section 8(a)(3) and (1) of the Act in various re
spects, including the denial of overtime to seven named
employees the termination of Gary Hagerman the issu
ance of reprimands warnings, suspensions, and then dis
charging Hugh Hamilton and Ronald Frey, and the to
mination of Clair Yeagle and Ronald Pfleegor all in re
prisal for union activity In its duly filed answer, Re
spondent denied that any unfair labor practices were
committed Following close of the hearing briefs were
filed on behalf of the General Counsel and the Respond
ent
On the entire record in this proceeding, including con
sideration of the posthearing briefs and my opportunity
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
directly to observe the witnesses while testifying and
their demeanor ' I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation From its plant
located in Milton, Pennsylvania the sole facility in
volved in this proceeding, it is engaged in the manufac
ture of raw paper for use in producing gypsum wall
board During the calendar year preceding issuance of
the complaint a representative period, Respondent in the
course of its operations sold and shipped products valued
in excess of $50,000 directly to points outside the Com
monwealth of Pennsylvania
The complaint alleges the answer admits, and it is
concluded that the Respondent is now, and has been at
all times material an employer engaged in commerce
within the meaning of Section 2(5) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Paperworkers Intenational Union AFL-
CIO-CIC (the Union) is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Preliminary Statement
This case is primarily addressed to alleged acts of re
taliation against union sympathizers after a fourth unsuc
cessful attempt to organize production and maintenance
workers employed at Respondents plant in Milton
Pennsylvania The instant campaign began in October
1986 On December 5 1986 the Union filed a petition
for a representation election Later, union meetings were
held on January 28 and 29 1987 2 The election was held
on February 3 and 4 with the results showing 23 voted
for, and 57 against union representation No objections
were filed to the results of that election As of the date
of the hearing there has been no followup organization
activity at that location
Various allegations of discrimination are of foremost
remedial concern in this proceeding With a single excep
tion all involve maintenance department personnel, who
assertedly were victimized by several forms of discrimi
nation in consequence of their union sentiment Thus, it
is alleged that during the month prior to the election,
' Credibility resolutions hereinafter made are occasionally accompanied
by objective rationale This is intended to reinforce not diminish percep
tions gained through my first hand observation of the witnesses and their
demeanor Furthermore unmentioned testimony is rejected to the extent
that it is irreconcilable with expressly credited evidence It is also noted
that few if any interested witnesses were entirely believable They
have been credited and discredited with no clear facial pattern and even
against the same witness or where uncontradicted Though the resolu
tions may at first blush appear to be inconsistent each is based on my
impressions of the witnesses the possible influences of bias together with
the internal consistency and plausibility of their accounts when consid
ered against the quality of corroborative sources including objective fact
experience documentation and the believability of related testimony
2 Unless otherwise indicated all dates refer to 1987
and continuing thereafter certain employees were sub
jected to discriminatory reprimands reduced opportunity
for participation in weekend overtime, suspensions, and
finally discharge Beyond that the complaint alleges that
Gary Hagerman, a production worker, was discharged
during the critical preelection period on January 14,
1987, in reprisal for his union activities Finally the com
plaint alleges that the Respondent overstepped legitimate
bounds through a variety of statements by seven differ
ent management representatives which tended to coerce
and restrain employees in the exercise of Section 7
rights
B Concluding Findings
1 Interference, restraint and coercion
a By Ron Croll
The complaint alleges that Respondent independently
violated Section 8(a)(1) when Ron Croll, the shipping
and receiving superintendent, in November 1986 created
the impression that union activity was subject to surveil
lance, and threatened that the Respondent would not
bargain with the Union even if designated as collective
bargaining representative Gary Hagerman, an alleged
discriminatee, was the sole witness attesting to Croll s re
marks In his posthearing brief, the General Counsel con
cedes that the latter s testimony fails to substantiate the
precise offenses outlined in the complaint Instead the
General Counsel asserts, for the first time in his brief
that Croll engaged in coercive interrogation, that the
matter was fully litigated and that this unalleged unfair
labor practice should be remedied
Hagerman testified that Croll initiated a conversation
concerning the Union approximately in November 1986
in the receiving office Croll allegedly indicated that he
heard that the Union was trying to get in the plant again
going on to state that it would never happen again be
cause they had been trying for years and years and that
it always would be voted down Hagerman allegedly
argued back that this year would be a little different be
cause the Union was trying to sign up a majority before
going to an election Croll allegedly asked how many
cards were signed Hagerman did not reply According
to Hagerman Croll periodically questioned him concern
ing the Union s progress and inquired whether he had
signed a card and was pushing the Union The latter as
sertedly responded in the negative, but when asked by
Croll what the problems were and why everybody
wanted a union, Hagerman claims to have stated that
maintenance seemed to have the most problems and
they thought a union would help them
Croll s office was located close to Hagerman s work
area, but he was not Hagerman s supervisor Croll admits
to discussing the Union with Hagerman on about dozen
occasions However he avers that Hagerman woud initi
ate the conversations by informing him of the number of
cards already obtained and those yet to be acquired
before the Union would achieve a majority Croll denied
ever asking Hagerman whether he signed a card and in
dicates that Hagerman never told him whether he did so
Nevertheless, Croll relates that there was no question in
NATIONAL GYPSUM CO
his mind where Hagerman stood on the issues, and that
he communicated to Shimshock his belief that Hagerman
was prounion
Croll impressed as the more reliable witness Impor
tant aspects of Hagerman s overall testimony struck as
too pat and most unlikely He impressed as willing to
swear to anything that might support the complaint His
singling out maintenance personnel as the most disgrun
tied group, and hence the group most prone to support
the Union, falls within this category From the record it
is apparent that the most ardent union supporters were
among the production force In contrast union settle
ment within the maintenance department as a whole did
not present a consistent picture, nor the kind of outspo
kenness that would command attention of outsiders In
any event, as shall be seen, my misgivings concerning
Hagerman are based on even broader considerations Ac
cordingly, the unlawful conduct imputed to Croll is un
substantiated by credible proof and shall be dismissed
b By Dusty Pfirman
The complaint alleges that, in December 1986, Re
spondent violated Section 8(a)(1) through Tour Foreman
Pfirman s interrogation of an employee Here again, Ha
german was the sole witness offered on behalf of the al
legation He relates that Pfirman remarked that an elec
tion petition had been filed, adding that he could not un
derstand why they would want a union in here again
Hagerman claims to have replied this was a long time
coming, and that maintenance had the most gripes
they wanted a union in to represent them Although
Pfirman was not called as a witness my mistrust of Ha
german ran sufficiently deep to reject his testimony
albeit uncontradicted In dismissing the 8(a)(1) allegation
however, I conclude in any event that the rhetorical
statement atributed to Pfirman was no more calculated to
elcit a response than typical antiunion argumentation
and hence did not constitute coercive interrogation See
United Artists Theatres 277 NLRB 115, 123 (1985)
c By Brian Baker
The complaint attributes a variety of independent
8(a)(1) allegations to Maintenance Superintendent Baker
Clair Yeagle, an instrument technician in the mainte
nance department whose job was eliminated in March
1987 under allegedly unlawful conditions, testified in
support of alleged interrogation and surveillance He re
lates that in January he requested a meeting with Baker
to discuss rumors of an impending layoff Baker denied
being mindful of this possibility Yeagle then asked why
supervisors seemed to be ignoring him walking by with
out even looking at him or speaking Baker allegedly ex
plained that this was Because they had me [Yeagle] fig
ured, there was no sense talking to me, I was for the
union and that was cut and dry 3
Yeagle, who on an isolated basis had distributed two
blank union cards, testified to another conversation on
January 2, 1986, also in Bakers office At this time,
s The General Counsel in his brief fails to advert to this conversation
as substantiating any allegation in the complaint Accordingly I make no
findings of illegality thereon
1141
Baker sent for him, inquiring if Yeagle had a problem
with either Baker or the Company Yeagle responded in
the negative, but inquired about why Baker would ask
Baker allegedly stated Word is around that you ve
been passing out union cards and you re for the union
Baker denied that he had any conversation with
Yeagle concerning the Union during the months of No
vember and December 1986 or January 1987 He specifi
cally denied ever telling Yeagle that he had heard that
he was passing out cards In fact, he denied knowledge
that Yeagle had done so or even that he favored the
Union 4
Scotty Hamilton, another maintenance department em
ployee whose discharge is under scrutiny in this case, at
tributed additional 8(a)(1) conduct to Baker He avers
that in late January, the day after he attended a union
meeting he was summoned to Bakers office where the
latter stated You re Scotty s bastard I know
you re for the union I can t fire you I don t
like you I can t fire you because I don t like you
But I can make you quit
Baker testified that it was his understanding that Ham
ilton was not a union supporter, having told Baker that
he was procompany on three or four occasions He
denies having any other conversations with Hamilton on
this topic
As shall seen, Baker was an untrustworthy witness
However, no more could be said of Hamilton, and in this
one on one conflict, I am inclined to give the Respond
ent benefit of the doubt Accordingly, no violation is
found on the latter s testimony
Yeagle, however impressed me more favorably than
Baker and as between them I prefer the former Based
on Yeagle s credited testimony, I find that Baker s open
mg remarks in their January 2 conversation were calcu
lated to elicit information regarding his union sympathy
despite the fact that his union activity was conducted
under covert circumstances Furthermore the questioning
lacked legitimate purpose, and was conducted coercively
at the locus of supervisory authority In this respect, the
Respondent violated Section 8(a)(1) of the Act On the
other hand a like conclusion is unwarranted with respect
to the contention that Baker created the impression that
Yeagle s protected activity was subject to surveillance
According to Yeagle s own account Baker attributed
this information to rumors, and hence the latter identified
a source dispelling implication that management was ac
tively engaged in spying or surveillance Accordingly
the 8(a)(1) allegation to this effect is dismissed See, e g ,
Sheraton Plaza La Reina Hotel 269 NLRB 716, 717
(1984)
d By Richard Cass
Richard Cass is Respondents personnel and safety
manager at the Milton plant The complaint alleged that
Respondent violated Section 8(a)(1) when Cass created
the impression that union activity was subject to surveil
* Contrary to the General Counsel I see no direct conflict between
Shimshock s testimony that Baker reported that he was getting mixed
signals from Yeagle and Baker s dental of knowledge that Yeagle was
prounion
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lance Ron Frey another maintenance department em
ployee who was allegedly terminated under discriminato
ry conditions, testified to a conversation between Cass
and a group of unidentified individuals He relates that
he heard Cass refer to the upcoming election by stating
They were not worried because they knew all who was
for it Frey did not recall anything else having been
said by Cass on that occasion Cass testified that he en
gaged in `no discussions with Frey regarding the ad
vantages or disadvantages of the Union, nor did he ever
talk to Frey regarding the Company s assessment of
the union campaign These denials were not entirely re
sponsive Thus Frey s description of what transpired
plainly conveyed that he overheard or eavesdropped on
a conversation between Cass and others Yet, Cass was
not questioned whether he ever made the remark in
other contexts In the circumstances despite reservations
concerning Frey s reliability, in this instance, his uncon
tradicted testimony was believed Based thereon, it is
concluded that because Cass failed to disclose the source
of his information, employees rightfully could assume
that their union activities were subject to surveillance a
factor which would inherently tend to coerce and re
strain them in their right to engage in organizational ac
tivity Hence the Respondent thereby violated Section
8(a)(1) of the Act
e By John Bridges
John Budges, at times material was a tour foreman
and an admitted supervisor It is alleged that the Re
spondent violated Section 8(a)(1) of the Act through his
threats that wages would be reduced if employees select
ed the Union as well a comment that the Respondent
would not bargain even if the Union were designated as
the employee representative Also attributed to Bridges
is coercive conduct in the form of interrogation, creating
the impression of surveillance and the solicitation of
union withdrawals
In support alleged discriminatee Gary Hagerman testa
feed that sometime after December 26 1986 Bridges
called him to his office on two or three occasions with
other receiving department employees In the course of
those meetings, Bridges allegedly said that it appeared
the Union was trying to get in again That they would
never get in here they could try if they wanted to
but they would never negotiate a contract because they
would lock them out first and that we [would]
come back and work for minimum wage According to
Hagerman Bridges added that he had been a union stew
and in another plant, and thus was familiar with the
Company s practices in negotiating contracts
I did not believe Hagerman He was not assigned to
the shipping and receiving department and was not sub
sect to Budges supervision Employees in that depart
ment who allegedly attended those meetings were nei
ther called, nor identified Budges did recall a conversa
tion concerning the Union with Hagerman in the pres
ence of Ron Troxell or Greg Thomas in the receiving
office He admits that he expressed his prior experience
with unionization while employed for 15 years at Re
spondent s Anniston Alabama plant, going on to state
would have a contract they would have to negotiate
with the Union as required by law Bridges also criti
cied the Union s accomplishments at that location mdi
cating that while collecting his monthly dues its negoti
ating posture on wages was submissive, with the Union
refusing to strike, but always accepting the Employer s
last offer In crediting Bridges, I again note my mistrust
of Hagerman Moreover, Bridges account semingly re
sembles more accurately the bargaining history at Annin
ston, where it is fair to assume several collective bar
gaining agreements had been negotiated over the years
In this light the rationale imputed to him would be
easily verifiable as absolute nonsense I believe Bridges
version to be the more probable and prefer it to the un
corroborated account of Hagerman Accordingly as his
remarks merely constituted an expression of argumenta
tion protected by Section 8(c) of the Act the 8(a)(1) al
legation in this respect shall be dismissed
On the other hand Daniel Masser, an incumbent em
ployee with a long history of service, testified that on
November 11 1986 Bridges approached his work station
and inquired whether Masser knew wno was for the
Union Masser denied knowledge Bridges then invited
Masser to the privacy of his office where he stated that
Masser was known to have signed a union card, and that
the Company would not let the Union get in and that
they would shut the doors and hire all new workers
Bridges allegedly also warned that Masser would be
hurting himself and his family if the Union got in be
cause all benefits would be lost and employees would
have to negotiate for what they want After asserting
that the Union would be in automatically if enough cards
were signed Bridges advised Masser that if Masser
wished, although he was not supposed to do so he
would help him get his union authorization card back
Later Bridges provided Masser with addresses of the
Union and NLRB so that Masser could repudiate his
card On November 13 1986, Masser wrote the NLRB
expressing his intent to revoke his union authorization 5
Bridges did not deny that he discussed this issue with
Masser He also admits to opening the conversation by
stating that he had heard that Masser had signed the
card When Masser acknowledged that this was so
Bridges claims to have expressed surprise noting that he
had trained Masser had supervised him on and off for 6
or 7 years and hence their relationship had been close
Masser replied that he was talked into singing the card
and did not know what he was doing and according to
Bridges, inquired about how he could get out of it?
Several days later, according to Bridges he provided
Masser with the addresses, and at that time volunteered
his own disenchantment with the Union while employed
at the Alabama plant As an incumbent employee with
no perceptible interest in the outcome, Masser is regard
ed as an entirely credible witness In context Bridges
questioning of Masser concerning union proclivities of
coworkers and his professed knowledge that Masser had
signed a card were unlawful as having been made under
coercive circumstances The warning that management
"If the Union was voted in, that wouldn t mean they S See G C Exh 2
NATIONAL GYPSUM CO
would lockout and replace employees was an unmistak
able threat at the foreground of an equally unlawful insti
gatlon of Masser's repudiation of his union designation
The remark that, on unionization , benefits would be lost,
since offered in conjunction with the statement that
Masser would be hurting himself and his family, also
transcended legitimate bounds of argumentation,6 and
was calculated to convey that employees would lose
automatically on designation of the Union Whether
viewed collectively or severally, each of the remarks
outlined above violated Section 8(a)(1) of the Act
f By John Thomas
At times material, Thomas was Respondents purchas
ing agent Incumbent employee William Gill, who denies
that he was a union supporter testified that on or about
January 13, 1987, he confronted Thomas, inquiring about
what Thomas thought of this mess This reference to
union activity was met by Thomas remark Some of
these people better wise up or they re not going to be
here we re not going to go through this every year
Thomas was called by the General Counsel as an ad
verse witness, but was not otherwise examined, and
hence did not refute Gill s testimony Gill is credited
Nonetheless, the Respondent denies that it was bound
by Thomas conduct There is no merit in this view
Thomas was held out to be a representative of manage
ment , and at minimum , held apparent authority in the
eyes of employees, enabling his words to be taken as
originating at the highest managerial levels of the plant
Thus Thomas had been employed by the Respondent
for 25 years some 17 at the Milton facility Prior to
1984 Thomas was the superintendent of shipping and re
ceiving In 1984 he became purchasing agent , a reclassifi
cation that was taken by Thomas as a promotion No
doubt rank and file workers would agree By virtue of
his new job, Thomas reported directly to Plant Superin
tendent Erhardt and functioned at the same managerial
echelon as the personnel manager and the maintenance
superintendent His position is salaried he had his own
office and his contacts in the plant are not with employ
ees but with department heads and supervisors In these
circumstances, his antiunion remarks would naturally be
taken by employees as expressive of managements stance
on the issue of union representation Accordingly, as
Thomas had been endowed with apparent authority to
act on behalf of management, the Respondent violated
Section 8(a)(1) through his threat to eliminate union sup
porters Sears Roebuck de Puerto Rico 284 NLRB 258
(1987)
g By Tom Shimshock
The General Counsel offered alleged discriminatees
Hamilton and Frey to substantiate that in June 1987,
Plant Manager Shimshock promised benefits to antiunion
employees while threatening reprisals against those who
supported the Union This indendent 8(a)(1) allegation
derives from a regular shift meeting held in June 1987 4
6 See Mississippi Chemical Corp 280 NLRB 413 (1986)
1143
months after employees decisively voted against repre
sentation by a count of 57 to 23
Shimshock presided over the meeting Frey testified
that Shimshock addressed the group opening with a pro
duction report but then going on to state, There were
still 23 greedy people in this plant and as plant man
ager he was going to reward the people who kept the
plant as it was and he would continue to do so
Hamilton s version was a bit more graphic He claimed
that he arrived late for the meeting , and that, as he en
tered, Shimshock looked him straight in the face stating
There are 23 greedy people in this plant who voted for
the Union According to Hamilton Shimshock then
added, I m goint to satisfy the 65 who never voted for
the Union 8
Shimshcok testified that it was during shift meetings
on February 11 1987 that he last referred to the regular
ly conducted election He claims to have first thanked
those who supported the Company s position He next
referred to 23 people but states he simply described
them as dissatisfied and invited them to avail them
selves of the open the door policy, adding that he ap
parently had not answered all their questions during the
preelection campaign Shimshock s version of the June
meeting is to the effect that the Union or the election re
sults were not mentioned directly or indirectly in his
comments He did avert to the responsibility of employ
ees to pull their share of the load in areas of safety, pro
duction and quality Without mentioning names, he re
ferred to the fact that some employees were not doing so
and in this context he did state there seems to be a
greedy few at the plant who are trying to tear down
what has taken those who have accepted responsibility
[over the years] to build up at this plant Finally he ad
monished that he would not tolerate skating or leaching
everybody was going to carry their own weight 9
Despite misgivings concerning Shimshock in this in
stance his testimony was viewed as the more plausible
At the same time , Frey and Hamilton were unimpressive
and hardly could be described as disinterested Thus
both were discharged subsequently during the summer of
1987, and well after the one sided election Quite clearly,
the unsuspicious timing of those terminations would be
viewed in an entirely different light if Shimshock 4
months after the Union s demise had chosen to iterate a
lingering hostility Adding to my doubt is the fact that
Frey and Hamilton were not entirely consistent about
what was said and both labored under a limited recollec
tion of what transpired Furthermore not a single out
side witness was called to confirm their accounts In con
° Frey identified several workers who told him that Shimshock made a
similar reference at the meetings they attended None were called as wit
nesses
8 The General Counsel contends that a threat is inferable from the fact
that Shimshock allegedly referred to the prounion employees as greedy
while indicating that he would reward those who voted against union
representation Were I to credit Hamilton and Frey this interpretation
would be rejected
8 Although it was my initial reaction at the hearing that the use of the
term greedy was inappropriate in the context Shimshock described on
further reflection it is conceivable that this term might be used to char
actenze those who do not shoulder their share of the workload
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trast Shimshock s version of both February and June
meetings was corroborated by Brian Baker and Person
nel Manager Cass In composite form, their testimony
was supported in material part by Jim Karnes, a witness
for the General Counsel and former prounion mainte
nance department employee Karnes, who retired on
April 10, 1987, testified that at a shift meeting a couple
weeks after the election, he heard Shimshock state, we
still r have 23 people who are dissatisfied Considered
with the foregoing is the improbability that Shimshock
would reopen the union debate 4 months after the un
contested election, but while several unfair labor practice
charges were pending and a complaint had recently
issued Accordingly based on Shimshock s credited testa
mony it is concluded that the references to a greedy
few' was specifically linked to those who shirked their
job responsibilities, and pertained to no other group or
alliances Being irrelevant to statutory concerns, the re
marks accompanying that characterization did not vio
late Section 8(a)(1)
2 The discharge of Gary Hagerman
Of the five discharges under scrutiny in this case four
involved maintenance workers As indicated, Hagerman
was not within this group, being a stock leader in the
production area Moreover, Hagerman was terminated
on January 14, 1987, and hence, his was the only dis
charge effected by Respondent during the critical pre
election period
Hagerman testified that prior to the discharge, he had
professed union support by signing an authorization card
and discussing the pros and cons of organization with co
workers Though not among those who initiated the
campaign, nor one of the principal union activists, he
does relate that he gave a blank authorization card to
one employee, who never returned it Hagerman also tes
tified that he rode with Lynn Probst the International
representative responsibile for the campaign, and helped
him locate the homes of coworkers 10
At the time of his discharge Hagerman had been em
ployed by the Respondent for almost 12 years-8 as a
stock leader a job crucial to the quality of the plant s
output
By way of background the facts show that the Milton
facility produces paper manufactured from baled scrap 11
The production process requires a proper blending of
scrap having different characteristics, including corrugat
ed or cardboard materials having long fibers, short fi
bered or mixed scrap consisting of magazines and
newspapers and finally, a third variety called cut
down, ' consisting of previously manufactured but recy
cled paper These different scrap forms are fed into the
production process after blending pursuant to a pre
scribed ratio Quality paper of suitable grade and consist
10 Probst did not identify Hagerman as among those who assisted him
in this regard
11 No end product is produced at this location Instead Milton manu
factures feed stock in the form of various grades of paper that are distnb
uted to Respondents eight gypsum plants Because the Milton Plant
merely produces a raw material and has no market exposure it is consid
ered a cost rather than profit center with expenses of the operation allo
cated to the sister plants that utilize the paper produced at Milton
ency is achieved only if long and short fibered scrap is
combined in proper proportion Management devises the
formula for achieving this objective but the stock loader
is the sole employee responsible for balanced production,
through precise implementation of the formula
Unquestionably, the stock loader occupies a position of
great responsibility At the same time , the job is neither
exertional, nor mentally demanding The stock loader
uses a forklift truck to select and haul bales of the pre
scribed stock from a warehouse area to conveyors After
unloading the appropriate bales, he cuts the wires, pushes
the bales onto the conveyor with his truck and then
marks the type of bale and its weight on a tally sheet
Having reached this stage, the bale is committed and any
mistake in loading is irretrievable The scrap is then car
reed to a pulper where it is dumped, broken down mixed
with water, and subjected to a variety of cleaning proc
esses Finally, the material is placed on a belt where it is
converted into rolls of sheeted paper The capacity of
the conveyor is about 20 tons of stock per hour Once
loaded on the conveyor, it takes about 1 hour for a bale
to reach the pulper
The General Counsel asserts that the discharge was
motivated by Respondents desire to eliminate a union
sympathizer Initially the General Counsel is favored by
ample evidence that Respondent acted againt Hagerman
either with knowledge or strong suspicion that he would
vote for the Union Thus Ronald Croll Respondent s
shipping and receiving superintendent testified that
during the union campaign he participated in up to a
dozen discussions with Hagerman, most of which in
volved Hagerman s voluntary statements as to gains by
the Union toward its goal of securing signed designation
cards from a majority Based thereon, Croll testitifed that
he reported his belief that Hagerman was prounion to
Tom Shimshock the plant manager and the highest
rated management official at the Milton location 12
With this knowledge, Respondent discharged this
longterm employee only 2 weeks before the representa
tion election This despite the fact that such severe disci
plane had seldom been invoked in the recent past not a
single bargaining unit employee had been discharged
since 1983 13 These elements together with union
12 Shimshock claimed that he was uncertain of Hagerman s union sen
timent at the time of discharge He admitted that Ron Croll had informed
him that Hagerman was prounion but that this was countered by Terry
Yarger a substitute tour boss who stated that Hagerman was procom
pany Yarger did not testify and the basis for his report is unclear On
the other hand Croll s account of his frequent conversations with Hager
man revealed the latter s firm unmistakeable commitment to the Union
In this light it is not unreasonable to infer that Shimshock contrary to
his testimony had strong reason to believe that Hagerman would vote
for the Union
is According to the testimony of Shtmshock there was a single super
vening termination in July 1985 However the individual affected was
Charlie Rhodes a tour foreman whose job would be excluded from the
appropriate unit on statutory grounds Respondent explains that the 1987
shift in disciplinary philosophy stemmed from Shimshock s emergence as
plant manager in 1985 and his mandate that supervision would not toler
ate deficient performance unsafe work practices low productivity or in
subordination Although Shimshock testified that he made supervisors
more accountable for production quality and safety there is no evi
dence that he importuned them to a more aggressive implementaion of
Respondents disciplinary machinery
NATIONAL GYPSUM CO
animus, combine to support an inference that protected
activity was at least a' part of the Employers motive a
showing adequate to require the burden [to] shift
to the employer to demonstrate that the same action
would have taken place even in the absence of protected
activity ' See Wright Line, 251 NLRB 1083, 1089 (1980),
NLRB v Transportation Management Corp, 462 U S 393
(1980)
By way of defense Respondents witnesses attest to
the fact that Hagerman s discharge was triggered by a
serious breach of his work responsibility in the form of a
deliberate failure to follow formula while supplying the
corrugated conveyor John Bridges, a tour foreman at
the Milton plant for 17 years, was Hageman s immediate
supervisor on January 14 1987 In that capacity, Budges
was responsible for the entire operation during the 4 p in
to midnight shift, which was worked on that date by Ha
german The formula prescribed for Hagerman s corru
gated conveyor that evening was 6000 pounds of corru
gated, to 2000 pounds of mixed paper, to 1000 pounds of
cutdown 14 That evening, at approximately 7 p in,
Bridges began to encounter production problems in the
form of wet paper At 7 30 p in he received a telephone
call from Plant Superintendent Louis Erhardt, who was
second in command to Shimshock Bridges reported his
difficulties which were described as intermittent, having
subsided at the time of the Erhardt conversation
Subsequently the problem reappeared at approximate
ly 8 30 p in At approximately 9 p in Budges distributed
paychecks to employees including Hagerman He then
resumed his effort to identify the cause of the problem
Being unsuccessful, he again telephoned Erhardt shortly
before 10 p in Erhardt returned the call about 5 minutes
later Budges reported that the wet paper had resur
faced Erhardt decided to go to the plant, but told
Bridges we ve checked everything its got to be the
furnish 15 To that point Budges had not investigated
that angle for he had no reason to suspect that Hager
man, an experienced loader with the highest seniority in
that classification, had failed to adhere to the formula
On his way to the conveyor area Bridges observed
that stock in the corrugated pulper suggested an over
load of mixed short fibered stock When Bridges arrived
at the conveyor he related that it too had been loaded
with too much short fibered stock Thus at the top of
the conveyor he observed three bales of corrugated, fol
lowed by two bales of mixed stock followed by four
bales of corrugated and then two more bales of mixed
stock When Bridges confronted Hagerman concerning
the excessive mixed scrap, Hagerman referred him to his
tally sheet, insisting that the conveyor was loaded cor
rectly A heated argument ensued after Bridges indicated
that he could see that the conveyor was loaded wrong
irrespective of Hagerman s entries on the tally sheet As
the argument progressed Bridges eventually told Hager
man to go home When Hagerman protested and in
quired as to why, Bridges indicated insubordination
14 The combined components of the formula are collectively referred
to as a round
15 Furnish is the term used to describe the supply of scrap fed to the
conveyor
1145
Ultimately Bridges relented, telling Hagerman to wait
until Erhardt s arrival
Erhardt appeared shortly thereafter Bridges reported
on his encounter with Hagerman, then both left for the
conveyor area On encountering Hagerman, Erhardt
asked how come he was still there Hagerman indicated
that he was working, and that he was told by Bridges to
remain until Erhardt arrived Erhardt then sent Hager
man home, indicating that the matter would be discussed
either the next day, or at Hagerman s convenience
Erhardt basically confirms Bridges account Thus he
avers that in the 7 30 p in telephone report Bridges indi
cated that he would continue to check possible causes
and would get back to Erhardt Erhardt went on to testa
fy that later, at 10 p in he told Bridges that the problem
had to be at the furnish He therefore instructed
Bridges to check the conveyors, also indicating that he
would come to the plant He arrived at the plant at ap
proxiamtely 10 20 p in and, after being updated, he and
Bridges departed from the conveyor area 16
Erhardt claims that at the conveyor, he observed two
bales of mixed stock, weighing about 1500 pounds each,
sitting on the plate in front of the conveyor In addition,
half loaded on the conveyor and half on the plate were
two bales of corrugated, weighing approximately 1000
pounds each In front of the latter were two more bales
of mixed stock At the top of the conveyer were two ad
ditional bales of mixed plus four of corruogated Erhardt
testified that this was obviously wrong in that there
should not have been six bales of mixed paper anywhere
near the conveyor at one time 17 Erhardt added that
when he observed the tally sheet completed by Hager
man, he found that it contained entries inconsistent with
what he observed on the conveyor 18 Erhardt relates
when he caught up with Hagerman he sent him home
advising that he was not willing to discuss the matter at
that time that Hagerman could come back the next day
when they would discuss whether he had a job When
Hagerman mentioned that the next day was his day off
Erhardt indicated to come in at Hagerman's nearest con
venience
Gary Thomas an employee in the receiving depart
ment who had previous experience as a stock loader,
finished Hagerman s shift that evening Bridges testified
that it was not until after he left work that evening that
the problem with wet paper resolved itself, and that by
the next morning, the corrugated line was producing a
18 Erhardt testified that when he first observed Hagerman both estab
,,shed eye contact but Hagerman drove off to the rear of the warehouse
Budges does not mention any unusual reaction by Hagerman to their at
rival
17 Erhardt testified on cross examination that on arrival at the convey
or Bridges commented that the condition had worsened since his previ
ous visit Bridges did not confirm that he made any such comment and
in fact it is the sense of his testimony that on the second visit he paid
little if any attention to precilsey what bales were in the area
18 See R Exh 14 Hagerman s tally sheet contained an erroneous entry
pertaining to his next to last round Erhardt also testified that when he
arrived in the conveyor area no cutdown was in sight even though the
formula in place at the time called for 6000 pounds of hard 2000 mixed
and 1000 cutdown Although the tally sheet did not indicate that cut
down had been used Erhardt conceded that this may have been excuse
ble for it is possible that no cutdown was available at the time
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
good product There had been no adjustment to the
equipment to his knowledge and the source of the prob
lem, from all appearances, was isolated to the furnish
Hagerman s version admits of a diversion from the for
mula, but suggests that it was minor He testified that
when he reported for work that day, the formula had
been changed from the 6 to 2 ratio of the night before to
six parts hard, two parts soft, and one part cutdown, a
softer mix than customarily run When Bridges came by
about 4 30 p in , Hagerman asked if Bridges wanted to
increase the corrogated to a 7 to 2 ratio, but Bridges re
plied in the negative, indicating that everything was run
ning fine Hagerman related that when Bridges next ap
peared at 9 30 p in to deliver his paycheck, Bridges indi
cated that there had been a change, and that Things
weren t running too good right now Hagerman next
saw Bridges at 10 30 p m At that time Bridges accused
Hagerman of doing something wrong, explaining that the
stock suddenly had gotten real soft and looked sloppy
Hagerman argued that he followed the correct proce
dures and that his tally sheet would confirm this was so
This produced the argument 19 Ultimately, Hagerman
admittedly discovered that he had in fact made a mis
take In this respect, he claims to have noticed that at the
bottom of the conveyor were two bales of mixed, two
bales of corrugated, and two more bales of mixed The
latter were not supposed to be in that spot Instead three
more bales of corrugated were supposed to precede
them 20 Hagerman confirmed that in the course of their
heated argument, Bridges sent him home, but reconsid
ered stating that he could discuss the matter with Er
hardt who, according to Bridges, was going to be in
here in about five minutes " At this point Hagerman ac
knowledged his mistake to Bridges, and inquired wheth
er he should remove two bales of soft mix Bridges told
him to do so and to raise the formula by 1000 pounds of
corrugated Hagerman claimed that he then removed
three bales of mix to facilitate the new 7 to 2 formula
About 5 minutes later when he returned to the work
area , Bridges and Erhardt were coming down the steps
leading to the conveyor area Erhardt sent Hagerman
home telling him to come in the next day, and at that
time they would see whether he had his job
A meeting was held the next day January 15 Shim
shock presided He first gave Hagerman the opportunity
to explain his version of what had transpired the previ
ous night He then accused Hagerman of intentionally
double stacking the conveyor, a condition observed by
both Erhardt and Bridges 21 Hagerman denied doing so,
19 Hagerman did not confirm or deny that Bridges backed his accusa
Lion by referring him to the bales actually in the conveyor area
20 Hagerman attempted to mitigate the consequences of this error by
testifying that the two bales of mixed were on the plate and uncommit
ted as the wires had not been cut Contrary to Hagerman the fact that
they were even in the area is difficult to understand in light of the fact
Hagerman himself was aware of and even questioned the fact that the
formula called for a softer than usual stock His mistake is compounded
even further by his admission that at 9 30 p m he had been informed by
Bridges that they were encountering production problems One would
think that an experienced stock loader would be particularly careful to
avoid overloading soft mix in these circumstances
21 Double stacking is a process which corrugated and mix from two
rounds are combined and placed on the conveyor in sequence i e a 6-to
2 formula would actually be run 12 corrugated in a row followed by 4
but was told to disprove what had been observed by Er
hardt and Bridges When he was unable to persuade that
the latter were in error, Hagerman was informed that his
check would be made available the next day, and that he
was discharged The discharge report prepared by Shim
shock stated as follows
Employee was misloading [double loading] pulper
conveyer, falsified tally sheets and refused to leave
premises as directed by Foreman The misloading
caused numerous operational upsets and led to the
production of off quality paper 22
In the final analysis, the grounds on which Respondent
acted in terminating Hagerman are not inherently suspect
and, at least in part, were substantiated by Hagerman,
himself His own testimony reveals that with knowledge
of a quality problem within his product line, he trans
ported excessive bales of soft mix to the load area '23
while making erroneous entries on his tally sheet In this
light, the scenario depicted by Bridges and Erhardt as
sumes heightened probability, and their accounts about
what they observed at the conveyor are credited Based
thereon, Respondent rightfully could have assumed that
Hagerman, the most experienced stock loader in the
plant, intentionally sabotaged that evenings produc
tion 24
Accordingly, in view of the seriousness of the offense
which has been substantiated by credible evidence, the
Respondent has demonstrated that it would have termi
nated Hagerman even if he or other employees had not
engaged in activities protected by Section 7 of the Act
As the General Counsel has failed effectively to counter
this showing, the 8(a)(3) and (1) allegation in this respect
shall be dismissed
3 The alleged discrimination in the maintenance
department
a Overview
The proponents of the complaint target the mainte
nance department as the focal point of Respondents vin
dictive reaction to unionism Thus it is alleged that
maintenance department employees Ronald Frey and
mixed There is no dispute that the equipment cannot handle the swings
between long and short fibered stock that would occur in consequence of
double stacking The product would swing to very wet to very hard and
dry
22 See R Exh 4 According to Shimshock the falsification of records
allegation was founded on the variance between the tally sheet prepared
by Hagerman and the stock on the conveyor as observed by Erhardt and
Bridges
23 As Respondent correctly observes Hagerman s assertion that the
mixed bales were uncommitted is suspect Thus he relates that these
bales were on the plate at the threshold of the conveyor along with two
corrugated and two additional bales of mixed Contrary to Hagerman
considering the average dimensions of each bale it is inconceivable that
the 10 by 10 foot plate could accommodate six bales
24 Contrary to the General Counsel I see no inconsistency between
Bridges explanation of how and when the problem was resolved and the
double stacking allegation I also agree with Respondent that daily in
ventory records would provide no proof of relevance to the issue these
documents would merely show daily volume of stock consumed and not
the sequence of loading
NATIONAL GYPSUM CO
Hugh Hamilton were unlawfully issued disciplinary
warnings, suspended, and then discharged in reprisal for
their support of the Union It is further alleged that Re
spondent violated Section 8(a)(3) and (1) of the Act by
abolishing the position of instrument technician to fa
cilitate the termination of Clair Yeagle because of his
union activity It is similarly alleged that the one of two
electrician jobs was eliminated to enable termination of
Ronald Pfleegor another prounion maintenance worker
Finally the complaint alleges that these and certain other
employees in the maintenance department were victim
ized by a change in Respondents practice of distributing
weekend overtime an adjustment which reduced over
time opportunities made available in 1987 to union sup
porters
Respondent defends on grounds it had no knowledge
of union settlement of the employees affected, that the
disciplinary action including the discharges was based
on legitimate cause, and that the reduction of overtime
the cutback of an electrician, and elimination of the in
strument technician were based exclusively on economic
considerations Hence it is denied that any of the above
actions were based on any form of protected activity
b Alleged economic reductions
(1) Preliminary statements
(a) The overtime cutbacks
Before addressing the overtime issue it is necessary to
consider a preliminary contention by the General Coun
sel that Respondent, before the election, perceived that
certain employees in the maintenance department were
prounion, while others were not, and split the depart
ment along those lines for the purposes of conducting an
bunion meetings This division while relevant to the
motive underlying all issues of discrimination is central
to the overtime question because, as matters unfolded,
those relegated to the allegedly proumon group were
prejudiced dramatically in the assignment of overtime
during 1987
Prior to the advent of the Union, as a standard prac
tice, management attempted to conduct separate monthly
meetings among all employees, including the mainte
nance department During the organizational campaign,
these meetings were one of the vehicles used by Re
spondent to deliver its antiunion message Prior to Janu
ary 1987 all 16 maintenance employees attended these
so called shift meetings in their department This was the
case in mid November when Respondent for the first
time addressed the union question Shimshock presided
and several employees including alleged discriminatee
Pfleegor specifically challenged points made by Shim
shock concerning unionism The debate became heated
and the maintenance meeting was protracted to 2 hours
while similar meetings with other employees averaged
only 45 minutes
The next set of shift meetings were held in January,
the month prior to the election Commencing with the
first, the maintenance department was split with two sep
arate sessions being held The two groups were as fol
lows
Group A
Bob Hartley Ammon Rholand
Will Mensch Ron Runkle
Mel Metzger Jack Svern
Earl Rhodes Harold Sponenberg
Jim Sullivan
1147
Group B
Ron Frey Ron Pleegor
Hugh Hamilton Judd Seiger
Bill Hockenberry Clair Yeagle
Jim Karnes
The General Counsel insists that the above division
was knowingly made along union lines and that this iso
lation of pro and anti union maintenance personnel estab
lished a profile for discrimination with respect to the dis
tribution of weekend overtime
Over the years and apparently beyond recent
memory, employees in the maintenance department had
been broken down into two groups for purposes of re
ceiving weekend overtime Under this system overtime
was distributed on a rotation basis, with all maintenance
employees basically sharing equally in Saturday and
Sunday work Interestingly enough, Baker testified that
the historic overtime groupings were essentially the basis
on which he split the maintenance department in January
for purposes of the shift meetings
Respondent does not deny that 1987 overtime was re
duced but contends that this was an aspect of a broad
effort to contain maintenance expenditures in order to
bring that operation into line with budget allocations
For this reason it is argued that prescheduled overtime
on a rotating basis was terminated in January 1987 Ac
cording to Shimshock thereafter, maintenance personnel
were selected for weekend overtime based on the task
the particular maintenance worker was performing with
Baker adding that he thereafter scheduled overtime
based on skill and ability, with consideration given to the
jobs scheduled to be done against the skills available to
complete them Baker explained that because available
weekend work had been cut by one half, it was essential
that the most effective personnel be utilized to meet
work demands during those periods However although
Baker claims to have made the determination about
which employees possessed the requisite skills Frey
Hamilton Hockenberry Yeagle Seiger Karnes and
Pfleegor all from group B sustained an almost total re
duction in their weekend overtime opportunities Baker
attempted to explain away this coincidence on grounds
that the latter either were less productive, less quality
conscious or less skilled than the others
(b) Job eliminations
Prior to the union campaign and until about a month
after the election the maintenance department consisted
of 13 millwrights, 2 electricians and 1 instrument techni
can On March 6 Clair Yeagle, the sole instrument tech
nician, and Ronald Pfleegor one of two electricians
were informed that they would be laid off permanently
because their jobs had been abolished
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pfleegor had been employed as an electrician since
1977 During almost 10 years employment with the Re
spondent, he had not received a single written discipli
nary warning, while compiling an exemplary attendance
record Pfleegor admits to very little union activity
but indicated that he signed a union card and attended a
union meeting It is a fact however that during the
safety meeting held in November he openly confronted
Shimshock challenging the latter s assertion that em
ployees had struck an organized plant in the area Pflee
gor argued that those workers had been locked out,
adding that wages in the area were higher because
bouyed by local plants that were union Based on his
outspoken position in this respect, the Respondent had a
basis for suspecting that he was among the union sup
porters in the work force
Yeagle had been employed for almost 6 years He was
Respondents only employee occupying the position of
instrument technician In that capacity he was responsi
ble for maintaining all automatic valves, level controls
steam panels, boiler controls, the computer system and
almost all automated equipment Yeagle was one of two
maintenance men who solicited authorization cards and
in January had been informed by Baker that management
was mindful that he was prounion
(3) Concluding analysis
(a) The prima facie case
The General Counsels case in chief amply established
that union activity was at least a motivating factor in
both the reduction of weekend overtime to employees in
group B and the terminations of Yeagle and Pfleegor
See Wright Line supra It is true that the General Court
sel concedes that three was little overt union activity in
the maintenance department and that area could hardly
be described as an organizational hot bed At the same
time however there is no dispute that group B mainte
nance employees beginning in later January suffered an
unprecedented reduction in their weekend overtime op
portunities Moreover as to that group a compelling in
ference established that Respondent knew or suspected
that Frey Yeagle Pfleegor Hockenberry and Seiger
were prounion 25 The balance of that group-Karnes
and Hamilton-signed union authorization cards and ex
pressed to coworkers their prounion views Although
there is no evidence that Respondents officials were
28 Hockenbery at the November shift meeting argued with coworker
Jim Sullivan a group member in his attempt to discredit the Employers
quality circle program This produced a disturbance which according to
Respondent contributed to its decision to divide the group Moreover in
January 1987 when Hockenberry missed a shift meeting and was in
structed by Baker to attend another Hockenberry responded If you
have to attend another one of those antiunion meetings I will end up
voting for the Union Hockenberry s stance tended to suggest dissatis
faction with the status quo even though he at no time signed an authon
zation card Seiger at the January 1987 meeting rose to criticize Shim
shock s action in showing the assembled employees an antiunion props
ganda film advising Shimshock that as a former union president he un
derstood both sides of the issue Moreover Seiger s son who is still em
ployed at the plant actively solicited authorization cards during the cam
paign As for Frey Tom Henneberry a former substitute foreman testi
fled that Frey was identified at a management meeting as one who
might vote for the Union
mindful of such activities, with the exception of Hartley
and Sullivan, both of whom later repudiated their au
thorization cards, the status of Karnes and Hamilton con
trasts with the fact that not a single member of group A
supported the union Indeed of the nine in that group
five openly displayed antiunion insignia
The General Counsels initial burden is reenforced by
the impact of this change According to the overtime
schedules the new procedure was first implemented on
Sunday January 31 only 2 days before the election No
group B maintenance worker worked that Sunday In
stead, the prior rotation was broken when four from
group A were substituted in their place 26 The compara
tive summary set forth below demonstrates the magni
tude of the preference enjoyed by group A personnel
over those in group B
Weekend Overtime Shifts Worked
February 1, 1987 through August 16, 198727
Group A
Hartley 18
Metzger 21
Sponenberg 22
Rholand 17
Sullivan 23
Mensch 14
Rhodes 18
Runkle 17
Severn 16
166
Group B
Frey (discharged 8/17) 1
Hamilton (discharged 6/6) 2
Hockenberry (quit 6/15) 5
Karnes (retired 5/2) 0
Seiger (disability 2/20) 0
Pfleegor (terminated 3/6) 0
Yeagle (terminated 3/6) 0
8
Thus prior to Frey s termination the last surviving
group B employee 174 weekend shifts were assigned
since abandonment of the rotation system Of these a
mere eight were assigned to the prounion group Of the
eight two were scheduled shortly after unfair labor
practice charges were filed contesting Respondent s
practice in this regard 28 Considering the element of
28 Of the four group A employees who received Sunday overtime on
February 1 three (Sponenberg Rholand and Sullivan ) were identified by
uncontradicted testimony as among those who brandished antiunion insig
nia during the campaign
27 As of August 16 1987 not a single member of group B remained in
the Respondents employ
28 See G C Exh l(e) Electrician Pfleegor last worked overtime Sat
urday January 17 He received not a single weekend shift assignment be
tween that date and his discharge on March 6 On the other hand his
counterpart Metzger worked overtime every single weekend during that
interval
NATIONAL GYPSUM CO
union animus, together with the timing of Respondent s
preelection decision to terminate its longstanding prac
tice of equalizing weekend overtime, these statistics are
so overwhelming skewed agains the prounion employees
to suggest that proscribed considerations were a contrib
uting factor Indeed this inference is strong enough to
compel Respondent to come forth with an explanation
disproving that union sentiment played a role in the
severe reduction in what prior to the union campaign
had been a traditional source of enhanced earnings
Respondent under proper application of Wright Line,
supra, to the facts, has the same obligation to explain the
terminations of Pfleegor and Yeagle Here again, the in
voluntary terminations involved a seldom used personnel
action With the exception of Hagerman, no bargaining
unit employee had been terminated since 1983 on any
ground The termination of these known or suspected
union adherents occurred a little more than a month
after the election, and in the face of Purchasing Agent
Thomas augury that These people better wise up or
their not going to be here, were re not going to put up
with this every year ' The resulting overall inference
suffices to shift to Respondent the onus of showing that
the job eliminations would have occurred even in the ab
sence of union activity See Wright Line, supra
(c) Concluding analysis
By way of defense, the Respondent portrayed the re
vised distribution of overtime and the elimination of jobs
in the maintenance department as legitimate economic
action The parol testimony of Plant Manager Shimshock
is vital to this assertion He alone appears to have made
the major decisions affecting the maintenance department
during the period in question
Before transfer to the Milton plant in July 1985, Shim
shock had been employed at various of Respondent's fa
cilities in diverse capacities for some 17 years As Mil
ton's plant manager he was charged with the responsi
bility for increasing production improving quality, and
maintaining lower costs
The maintenance department in 1986 and apparently
1985 as well did not perform well against the budget
That Shimshock was prodded by his superiors to stop
cash flow overrides in that department is a documented
fact 29 Thus in mid December 1986 Shimshock was di
rected to prepare a plan to bring the maintenance oper
ation within the budget for the remainder of the year
When Shimshock s superior in 1986 was replaced by
John Capeless, Respondents regional manufacturing
manager performance of the maintenance operation con
tinued to receive criticism 30 In fact that criticism con
tinued into the spring of 1987 31 Shtmshock described his
inability to resolve the problem in 1986 as attributable to
repairs necessary to maintain increased production
during that period
29 See R Exhs 2(a) through (d)
30 See R Exh 2(f)
31 See R Exh 2(h) As shall be seen this document dated May 26
1987 is entitled to less weight than data available to Shimshock when the
cutbacks were affected
1149
In furtherance of the defense Shimshock testified,
logically, that labor costs were more readily subject to
management control than material costs According to
Shimshock, in mid December 1986 when he received
the 1987 maintenance budget he elected to reduce 1987
labor costs by reducing weekend overtime This was the
initial step to bring 1987 maintenance expenditures into
line with the budget Apparently, later in December
1986, maintenance employees were informed of the im
pending overtime reductions 32
According to Shimshock, the maintenance budget was
not again addressed until February 1987 when Shim
shock felt concerned that reduction of overtime would
not alone keep the operation within budget At that time
he and Baker discussed the possible abolition of jobs but
final action was shelved pending a maintenance shut
down of the plant scheduled for February 15-20 33 Ac
cording to Shimshock, after the shutdown he informed
Baker that his labor budget would be cut by 20 percent,
so as to recapture almost $100,000 annually 34 This
would be realized through elimination of three mainte
nance positions namely, the instrument technician one
electrician, and one millwright 35 Shimshock avers that,
due to accomplishments in rehabilitating the plant during
the years 1985 and 1986 these positions had become dis
pensable
Shimshock's account was not entirely convincing
While I am inclined to give him the benefit of the doubt
and conclude that the cut in overtime was a valid ap
proach to fiscal problems that predated the union cam
paign in all other areas including the manner in which
overtime was distributed, I did not believe him In highly
material areas, his testimony was internally inconsistent
at odds with probability and unsupported by documenta
tion
Unquestionably, the budget for the Milton plant was
drafted at a higher level of authority than local manage
ment Those responsible for the 1987 budget must have
been aware of maintenances performance in 1985 and
most of 1986 In 1985, labor costs represented only 12
1/2 percent of the overall deficit against budget In 1986,
labor costs overages declined to 3 percent Because ma
terial expenses were not subject to the same type of con
trol as labor expenses it is difficult to understand why,
against this background the allocation for materials was
not significantly increased in 1987 Thus the 1987 budget
did not account for the decline in labor costs contribu
tion to the deficit nor did the framers of that document
envision a need to reduce labor costs or to increase ex
penses for materials Nonetheless, Shimshock suggests
32 There is no evidence that employees were told that the Respond
ent s past recognition of panty in overtime distribution would be altered
by this decision
33 A complete shutdown of production operations was necessary on a
periodic basis to allow the maintenance force to perform repairs and
major maintenance
34 The savings allegedly was designed to offset extradinary materal ex
penses that were unbudgeted but that might be incurred during 1987
35 At the time a millwright Seiger was on indefinite leave due to an
industrial inability Because his compensation was not charged to the
maintenance budget no millwright was actually terminated at the time of
this decision
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that without reference to the union campaign, and only
2 months into the calendar year covered by that budget,
he altered the course charted by the budget process and
engaged in a major reshuffling of the plant expenditures
for labor and materials during fiscal 1987
The proffered justification of the $100,000 reduction in
1987 labor expenditures is difficult to reconcile with a
number of Shimshock s other actions First, in late July
1986 Shimshock developed a plan in response to prod
ding by the then director of manufacturing S J
Swider,36 which contemplated broad utilization of the
maintenance work force He described those recommen
dations as furnishing more justification to keep the staff
together There is no evidence that Shimshock s plan
was rejected, curtailed, or unimplemented
Consistent therewith, Shimshock testified that in Feb
ruary 1987 he could afford a 20 percent staff reduction
because in 1985 and 1986 he had engaged in an ambi
tious maintenance plan to upgrade the 18 year old facili
ty However, this highly significant aspect of his testimo
ny was neither internally consistent, nor in comport with
documentation Thus, if this ambitious plan took place it
apprently was without the blessing of Gold Bond s
budget planners Thus, the 1986 labor budget was in
creased by a mere 5 percent in 1986 That same year the
amounts allocated for materials actually declined Even
considering inflationary factors, these figures do not sug
gest that extraordinary demands on the maintenance de
partment were contemplated prior to 1987 As shall be
seen the actual 1986 performance figures are also at
odds with any major push that would have reduced 1987
demands on labor
Indeed, Shimshock later contradicted himself by relat
ing that the extraordinary" effort in fact had not been
completed by the end of 1986 Thus the continuing de
mands on the maintenance force, into 1987 in further
ance of this project is evident from Shimshock testimo
ny as follows
Well, towards the end of 1986 we had what I felt
still some significant repairs to make to maintain our
increased production And I was trying to sort of
weather the storm until the end of 86 in hopes of
1987 getting a bigger maintenance budget I felt if I
could get through 86, 87 might be better and I
could keep my ambitious maintenance plan intact
Moreover, the difficulty of staying within the budget
while completing projects in 1986 had been underscored
by Shimshock in his memorandum to Swider dated Sep
tember 8, 1986 37 Finally, that the major projects had
not been completed prior to February 1987 is further
confirmed by the fact that maintenance department ex
penditures during the last quarter of 1986 and the first
month of 1987 were within the budget
The suspicion generated by the fact that major
projects had to have been pushed back into 1987 was
reenforced by Shimshock s explanation of the timing and
immediate circumstances surrounding his decision to
reduce staff He claims in February he learned from Jan
uary figures that further reductions were necessary be
cause overtime cutbacks would not alone satisfy budget
constraints Thus, he described the overtime cutback as a
washout in that surplus labor costs in January 1987
only amounted to $439 Therefore he claims to have
opted for the 20 percent staff reduction Yet, for reasons
that should have been obvious, the overtime cutback
could have had little impact on savings in that month,
and hence would have been neutral to any decision to
reduce staff Thus, of the five Saturdays and four Sun
days in January, a reduced complement was worked on
only one of those days In this light and contrary to his
testimony, it is difficult to imagine that Shimshock drew
any conclusions from January overtime figures 38
Moreover, the departments performance against the
budget in recent months also failed to support the need
for a reduction in staff Thus Shimshock s decision in
this respect was made against January figures which re
flected that material expenditures for that month were
more than $27 000 within the budget This performance
mirrored the recent expense history, which showed that
in the last 4 months of 1986, actual labor costs were
within the budget with material costs being within the
budget during the entire last quarter of that year Not
only am I at a loss to understand how these figures war
ranted the radical budgetary strategy Shimshock adopted
in February 1987, but they underscore that all extraor
dinary work had not been completed in 1986 Indeed,
had that been the case the financial experience during
the 4 months pnor to the cutback decision would offer
no cause for alarm concerning the departments ability to
continue within the budget during the entirety of fiscal
1987
On balance, when all objective factors are considered
the supervening organization drive offers a more likely
explanation for the decision to reduce staff than Shim
shock s testimony Moreover as shall be seen, the infer
ence of proscribed discrimination is hardly allayed by
Shimshock s rationale for eliminating the instrument
technician position Yeagle testified that, in that capacity
he was responsible for servicing and maintaining all auto
matic valves level controls steam panels boiler controls,
and almost all automated equipment Yet Shimshock fo
cused exclusively on Yeagle s responsibility for the Mea
surex computer system In this respect his testimony is
summarized as follows (1) the Measurex system was in
stalled in 1977, (2) that system was effective for the level
and capacity of output in 1977, but had become updated
and ineffectual at present levels of production, and (3)
the Measurex, though still in use, is no longer as capable
of giving accurate measurements, which are now exacted
manually Shimshock added that, as dependence on the
Measurex declined so too did the need for the instru
ment technician Shimshock claims that in February he
checked with Gold Bond plants in Oklahoma and Ala
bama each of which had a Measurex system learning
that neither had an instrument technician but relied on
Measurex personnel for service Because his justification
38 See R Exh 2(c)
31 See R Exh 2(c) 38 See G C Exh 3
NATIONAL GYPSUM CO 1151
goes on further, the defense is flawed by Shimshock s
fractionalized explication which fails to reach other as
pects of the job highlighted within his colloguy with the
General Counsel, as follows
MR KELLY [W]hen you had Mr Yeagle work
ing there for eight hours a day, he worked on more
than just the Measurex equipment, doesn t he?
MR SHIMSHOCK He worked on Measurex and
nematic [sic] instrumentation
Q Yes, how many pieces of equipment do you
have other than the Measurex that Mr Yeagle
worked on? Could you name the pieces of equip
ment for us?
A No, I couldn t There are numerous nematic
[sic] instrumentation throughout the plant
Q Does the nematic [sic] instrumentation take up
a considerable part of his time or is his time mostly
spent on Measurex9
A He seemed to spend more on servicing the ne
matic cleaning than the Measurex
From the overall testimony of Shimshock, it is clear
that despite the reduced effectiveness of the Measurex, it
is still in use , and the troubleshooting and maintenance
work previously by Yeagle, remains necessary Equally
clear is the fact that the Measurex involved only a sector
of Yeagle s responsebilety, 39 and , thus, the defense stands
on testimony that merely reveals that an entire position
became unnecessary because an unquantifiable portion of
the job had lost its utility Under Wright Line, supra,
once protected activity is shown to be a' motivating
factor, the burden held by the employer is one of ' per
suassion, or as described by the Board in Roure Ber
trand Dupont Inc 271 NLRB 443 (1984) [A]n affirma
tive defense in which the employer must demonstrate by
a preponderance of the evidence that the same action
would have taken place even in the absence of protected
conduct " Here the defense, as a substantive entirety
was dependent on the credibility of Shimshock, whose
testimony is rejected both as to the reason for the cut
back in staff and the dispensable nature of Yeagle s job
Accordingly the Respondent has failed to prove that
Yeagle would have been terminated had he not engaged
99 Yeagle testified without contradiction that he spent only 25 percent
of his time working on the Measurer equipment prior to his termination
Baker and Forrest Aeppli an hourly maintenance foreman apparently
assert that this was unwarranted offering that after Yeagle s layoff the
pnematic instrumentation work had been assumed by millwrights and
completed in a total of 8 or 9 man hours per week First even if this was
true neither they nor Shimshock related that this had been anticipated at
any time prior to March 6 In any event Baker testified that his conclu
sions were drawn form jobsheets that he reviewed a week prior to his
testimony documents which were not produced in evidence In rejecting
this testimony it is first noted that Respondent does not argue that the
work involving the pneumatic instruments declined prior to or after the
March 6 termination It is also clear that no millwrights have been hired
since During the same timeframe the complement of millwrights had
been reduced due to quit retirement disability or discharge by five rep
resenting a 38 percent shrinkage The allegation that a previously un
trained short staffed group could achieve such efficiency raises the ques
tion why Yeagle had been retained so long while enjoying biweekly
overtime until only a month before his termination I did not believe the
testimony of Baker and Aeppli
in activity protected by the Act Hence, the Respondent
violated Section 8(a)(3) and (1) in this respect
Respondents burden was the same in the case of
Pfleegor As found in Yeagle s case, there was no credi
ble proof that the decision to reduce staff itself was
founded on legitimate economic considerations, and
hence the Respondent has failed to supply a lawful pred
icate for Pfleegor s termination and its concommitant
election to operate without a backup electrician for the
first time in at least 10 years 40 Having failed to meet its
evidentiary burden pursuant to Wright Line, supra, it is
concluded that Pfleegor was also terminated in violation
of Section 8(a)(3) and (1) of the Act 41
The Respondents defense to the alleged discriminator
ily distribution of overtime is no more persuasive There
can be no quarrel with the fact that beginning on
Sunday, January 31 those relegated to group B were se
verley prejudiced in their weekend overtime opportune
ties Previously this group had been segregated for pur
poses of the monthly shift meetings Thus Shimshock in
structed Baker to divide the men, indicating that he did
not care how this was accomplished as long as Sullivan
and Hockenberry and the two electricians, Pfleegor and
MEtzger, were separated In contrast with the General
Counsels insistence that the division was made on the
basis of union preference, Baker claims to have done so
on the basis of the original Saturday work schedule that
had been in place for years 42 As matters turned out,
Bakers explanation offers no answer to the General
Counsels claim for the men were not separated in con
formity with the historic overtime groups The discrep
ancies are chartered below
Group A-Historic Group A-Shift Meeting
Overtime
Jim Karnes
Clair Yeagle
Mel Metzger
Bob Hartley
Will Mensh
Jack Severn
Jim Sullivan
Ammon Rholand
Mel Metzger
Bob Hartley
Will Mensh
Jack Severn
Jim Sullivan
Jim Rholand
Harold Sponenberg
Ron Runkle
40 On the issue of whether economic considerations warranted elimina
tion of this position Shimshock testified that after receiving jobsheets it
was concluded that the Milton Plant had two part time electricians who
were being paid full shifts In short only one full time electrician was
needed Here again Shimshock s testimony was not believed His basic
unreliability was not salvaged by either documentation or objective evi
dence The timesheets were not offered Moreover if within the last 10
years there had been a curtailment in demand for electrical maintenance
the Respondent has not identified any change in operations or equipment
that would have brought about such a decline
41 Had the Respondent met its burden in this respect it would be con
eluded that Pfleegor rather than co-electrician Metzger was the logical
selection as the first to go In this respect objective factors such as
Metzger s superior length of service and the fact that in 1986 he was se
lected for emergency call ins on substantially more occasions than Pflee
gor would logically support a preference in his case
42 Baker testified that these separate groups were established prior to
his hire in April 1979
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Earl Rhodes
Group B-Historic Group B-Shift Meeting
Overtime
Harold Sponenberg -
Earl Rhodes
Ron Runkle43
Hugh Hamilton
Judd Seiger
Ron Pfleegor
Bill Hockenberry
Ron Frey
Hugh Hamilton
Judd Seiger
Ron Pfleegor
Bill Hockenberry
Ron Frey
Jim Karnes
Clair Yeagle
It is not without significance that Runkle, Rhodes and
Sponenberg, who wore antiunion stickers were assigned
to group A Their relegation to this group was not only
in conflict with the historic overtime groupings, but
placed them among those who later would receive the
lion's share of weekend overtime This unexplained con
tradiction with Baker s testimony 4,4 is complimented by a
stirring coincidence Thus, as previously indicated, fol
lowing the change in overtime procedures, the group B
maintenance workes were scheduled for only 8 of 174
possible shifts Baker attempted to explain this disparity
on grounds that, after implementation of the new over
time policy, maintenance workers were selected for
weekend overtime on the basis of skill and ability in rela
tion to the work that was scheduled to be performed on
a particular weekend He then went on to explain that
group B employees were passed over based on their indi
vidual lack of productivity, careless attitude toward
safety and poor skills It is somewhat remarkable that
while group B itself was not established on the basis of
such criteria application of these purely subjective stand
ards produced the same demarcation with respect to
post January 31 weekend work opportunities 45
Here again vital elements of the defense are frought
with inconsistency and lack plausibility While conclud
ing that the overall 1987 reduction in the quantum of
overtime was economically oriented 46 I reject, as entire
43 The historic overtime groups have been compiled from R Exh 18
See also R Exh 17(c) and G C Exhs 4(a) and (b)
44 Another unexplained departure emerges from the fact that the de
partment had been evenly split for overtime purposes but the 1987 dive
Sion placed nine in group A and seven in group B
45 As matters turned out opportunities made available to group A per
sonnel apparently did not reflect a broad diversity of ability within that
group Thus of the groups 9 employees the most weekend shifts
worked by any individual was 23 with 14 representing the lowest Those
who brandished the antiunion stickers averaged 19 4 shifts and individual
ly received more opportunities than all but Metzger the only available
electrician after March 6 and Hartley the individual who had repudiated
his union authorization card
46 This finding at least facially might be viewed as lacking consisten
cy with my rejection of the economic defense underlying the 20-percent
reduction in staff In this instance however I note that in giving the Re
spondent benefit of the doubt I am persuaded that the general reduction
in premium pay represented an easily reversible inherently sound more
likely approach to budget management than the more drastic unprece
dented and-most important-performance of the decision to eleimmate
longstanding employees and forever to deny the department their expen
ence skills and work capacities
ly unbelievable the Respondents explanation for depart
ing from the established overtime equalization policy At
the threshold of this conclusion is the absurdity in Re
spondent s position that employees were assigned to
group B for purposes of shift meetings under one stand
ard, but when it came to denying overtime to those same
employees entirely distinct, subjective standards pre
vailed to produce the identical result Moreover, Baker s
testimony in significant areas was at odds with indisputa
ble fact and so incredible as to reenforce the inference
that the separation for purposes of group meetings was
based on managements suspicion that the Union had es
tablished a beachhead within that group In sum the
record persuades that this was the criterion that con
trolled preference for weekend work beginning on the
Sunday immediately prior to the election Accordingly
it is concluded that, commencing Sunday January 31,
Respondent violated Section 8(a)(3) and (1) of the Act
by reducing overtime opportunities of Frey, Hamilton
Hockenberry, Karnes Seiger Pfleegor, and Yeagle on
the basis of their known or suspected union sentiment
c Disciplinary actions including reprimands
suspensions and discharges
(1) The General Counsels burden
On June 10 1987, Respondent terminated millwright
Hugh Hamilton Later, on August 17, Ron Frey, also a
millwright, was discharged Hamilton had been em
ployed for some 11 years prior to his termination, and
Frey almost 10 Both signed union authorization cards
and attended union meetings Frey was the sole surviv
ing group B employee, and his termination apparently
was the last in an unprecedented series of involuntary
terminations at the Milton plant Thus, as heretofore in
dicated, prior to the 1986 union campaign, not a single
bargaining unit employee had been terminated involun
tarily since 1983 Considering this pattern of discipline
together with Respondent's propensity to discriminate
against group B maintenance employees on pretexual
grounds an inference of illegal motivation arises suffi
cient to require Respondent to disassociate all contested
disciplinary action against Hamilton and Frey from their
known or suspected union acitivity See Wright Line
supra
(2) The defense
Respondent contends that Frey and Hamilton were
discharged under its corrective action policy That
policy sanctions progressive discipline commencing with
verbal warning to a written reprimand then a written
notice of suspension and, finally, discharge 47 The Gen
eral Counsel does not claim that the treatment of Frey
and Hamilton departed from this disciplinary process In
stead certain oral and written reprimands, the suspen
sions and discharges are contested individually as having
been issued in violation of Section 8(a)(3) and (1) of the
Act As shall be seen below, Respondent has met its
burden with respect to each and every disciplinary act, a
47 See R Exh 10
NATIONAL GYPSUM CO 1153
proffer not overridden by empirical evidence available to
the General Counsel
(3) The individual cases
(a) Hugh Hamilton
Hamilton, prior to the union campaign, did not com
pile a remarkable record of work related citations Inso
far as this record discloses, the only other set of warn
ings issued against him were dated June 24, 1985 Thus
in separate incidents, he received a verbal warning for
careless work and a written warning for destroying
company property His record was apparently clean
during the first 1 1/2 years of Shimshock s tenure as
plant manager 48
The first of Hamilton s contested warnings was issued
on January 13 1987 Two offenses were involved, both
were verbal and pertained to safety Pursuant to Re
spondent s safety practice, employees are required to
shut down or lock out operable equipment in the area
in which they are engaged Foreman Aeppli, having
issued the warnings, credibly testified that on January 13
Hamilton was working with Frey and Pfleegor The
latter had lockouts, but Hamilton did not When con
fronted, Hamilton excused the omission as unnecessary in
view of the lockouts already in place by his coworkers,
and because his work did not reach areas where he
would be jeopardized Aeppli disagreed, having observed
Hamilton neglect a lockout on equipment while assem
bling a coupling Hamilton s testimony does not address
Aepplt s assertion in this regard, and therefore no eviden
teary basis exists for disturbing this ruling
Aeppli again cited Hamilton orally for a safety viola
tion on January 23 At the time Hamilton was operating
a forklift truck Karnes was installing a steam line, while
elevated by a cage attached to the lift on Hamilton s
truck According to Aeppli he issued the reprimand
when he found the lift truck unattended while Karnes
was working on the cage Hamilton acknowledged that
safety policy precluded the operator from leaving a lift
truck under these circumstances adding that Aeppli had
reminded him about this policy However, Hamilton dis
counts the incident by denying that he ever left 49
Hamilton received his first written warning on March
10 It related to his performance on three distinct assign
meats during a maintenance shutdown of the plant, some
3 weeks earlier 50
The first incident related to an assignment in which
Hamilton was to patch holes in an exhauster According
to Aeppli, who assigned the job, he specified the three
holes to be filled and told Hamilton specifically to use
gasket material and pieces of metal and to close the holes
by riveting the metal to the exhauster Later, on review
ing the job Aeppli found that only one hole had been
ae See R Exhs 21 (a) and (b)
as Although it is possible that Aepph might have peen mistaken in his
observations that possibility is not considered likely and I believe that
he raised the issue with Hamilton because Hamilton had in fact left his
duty station again violating Respondents safety policy
so See R Exh 21(c) Between February 16 and 21 the plant was shut
down to facilitate maintenance operations that could not have been com
pleted effectively had the plant been in production
correctly patched a second had been plugged with quick
cement and nothing had been done to the third Hamil
ton offered a bevy of excuses for his performance on this
job First, he described the exhauster as completely
filled with holes ' explaining further that he patched all
the holes he could find, but ran short of time because the
mill was about to begin production He claims that when
he showed Baker what he had accomplished, stating that
it was the best he could do, Baker instructed him to fur
nish the job because he had to start production 51 How
ever, at another point, Hamilton testified that when
Aeppli and Baker asked if he had completed the job he
said, Yeah, I am doing the best I can' He then offers
that he couldn t put patches on the rest of them, be
cause if you look at the damn thing, you will find out
that there s nothing left on it to patch it was rusted
through Hamilton s excuses struck as shifting and in
consistent Here, again I believed Aeppli and, based on
his testimony, it is concluded that Hamilton had neither
performed as directed, nor completed the job in a work
manlike manner
The second incident set forth in the March 10 warning
was addressed to the manner in which Hamilton aligned
a coupling to a vacuum pump After the shutdown,
when the plant went back into production, the pump
failed The breakdown was attributed to Hamilton s fail
ure to properly complete the alignment Hamilton ex
cused his performance on this job on grounds that the
pump was adjacent to a tank that vibrated to the point of
historically preventing proper alignment Nonetheless,
Hamilton asserts that because of all the `pressure' on the
maintenance employees, after completing the job, he
asked a coworker to visually inspect his effort Hamilton
admits that Baker that next day called him into his office,
stating that the electrician had to realign the pump
Hamilton s version does not dispute that his work had to
be corrected, but he claims to have told Baker that the
misalignment was due to vibration Hamilton admits that
Baker did not accept this explanation 52
The third offense listed in the March 10 reprimand
pertained to warning signs that Hamilton was told to
erect on the docks and in other work areas Once more
the citation was based on poor workmanship Aepplt tes
tified that because of the materials selected by Hamilton
and the manager in which he used them, the signs were
fragile and some were quickly destroyed Hamilton
admits the breakage and that he was called into the
office the next day with Baker then accusing him of
shoddy workmanship Hamilton s sole explanation was
that when he completed the job and showed the results
to Shipping and Receiving Superintendent Ron Croll
the latter stated That s beautiful that s what I want
Hamilton asserts that when called down for this job he
pointed out that he simply did as Croll had instructed
51 On cross examination Hamilton first testified that he observed no
more than three holes but later corrected himself indicating that there
were more than three but time was running out
12 Hamilton s testimony was uncorroborated Here again it is conclud
ed that he did not perform his work properly
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To this, Aeppli responded ' Croll is no fucking mill
wright s a
On May 14, Hamilton reached level three of Respond
ent's four step progressive system of discipline At that
time he received a 3 day suspension founded on his fail
ure to comply with instructions and allegedly deficient
work performance 54 On this occasion, Hamilton was to
replace a washup hose Aeppli insists that, on this job, he
specifically instructed Hamilton to replace a section of
black iron piping with more durable and noncorrosive,
stainless steel piping When he later insepcted the job, he
found that Hamilton had used black iron piping, and that
he had hung the pipe with hose clamps of a type never
used to secure pipe Aeppli also found that Hamilton
had burned holes in structural steel, a step that is always
to be avoided because of its tendency to weaken building
support Hamilton did not deny Aeppli's criticism He
explains, however, that he received the assignment at
3 40 p m and because only 20 minutes were left on his
shift, and he was not told to work overtime, he simply
performed a temporary job He asserts that when the in
stallation was complete, he pulled on the line, and when
it did not leak, he left, expecting to return the next day
to complete the job 55
On June 6, Hamilton was to install expansion joints on
a warehouse steamline 56 Because of his alleged deficien
cies on this job, on June 7 Hamilton was suspended
pending investigation and, thereafter, on June 10, dis
charged
Prior to this assignment some months earlier, an at
tempt to correct leaks in the line was made through utili
zation of a straight pipe This apparently was a stopgap
measure designed to buy time until the Company could
obtain expansion joints When they arrived, Hamilton,
whose specialty was pipefitting, was given the task of re
moving the pipe previously installed and replacing it
with two new expansion joints
Hamilton testified that after installing the expansion
joints and tightening the line to the point where every
thing looked okay" he sought out Baker in the break
room about 2 30 a in He told Baker, I in ready to go
Baker directed him to remove the locks pressurize the
line, and, if there is no leak, to go home Hamilton claims
68 As neither Croll nor Aeppli contradict Hamilton in this instance I
credit him This does not mean however that the evidence suggests that
he was unfairly cited in this respect Even were that the case the March
10 warning since warranted by the two other incidents would appear to
represent a legitimate exercise of disciplinary discretion
54 See G C Exh 5(b)
ss Hamilton was not persuasive On the face of his testimony it is ap
parent that he performed an assigned task shoddily I also credit Aeppli
over Hamilton s denial that the latter was told to use stainless steel pipe
Baker testified that jobsheets reflect that the job was assigned 2 hours
before the end of the shift This highly material documentation was not
produced in evidence Although Hamilton s testimony that he received
the assignment only 20 minutes before the end of the shift was probably
exaggerated my mistrust of Baker also precludes acceptance of his un
corroborated testimony in this respect However my rejection of Baker s
testimony does not influence my conclusion that Hamilton was guilty of
a serious breach of his work responsibility in connection with this assign
ment and was properly disciplined
se The expansion joints are rubberized piping joined by steel pipe
called a spool piece This piping unit as a whole allows steam lines to
expand and contract as pressure vanes thus preventing lines from buck
ling and possibly bursting due to pressure changes
that he complied, and that it took approximately 10 min
utes to remove the locks He then pressurized the line
During this process he opened the hand valve, observed
steam condensating which indicated that the line was in
the process of pressurizing He then shut down the line
and left the plant, claiming to have arrived home at 3 30
am
The evidence clearly demonstrates that Hamilton ne
gelected to secure the new unit In this respect, Baker
testified credibly that after Hamilton left the plant, he
went to the site , finding that the spool niece between the
expansion joints had not been anchored John Reeder
was assigned to work with Hamilton on that job as a
helper In this respect, Reeder confirmed that Hamilton
had cut the braces off, but failed to replace them hence
allowing the new unit to hang free 57 Baker also credi
bly testified that this caused the line to buckle and that
without support from the spool piece, the line when
pressurized was subject to blow at any point, creating a
hazardous condition
According to Baker, the expansion joints were bowed
and runied and there were no replacement parts Later
that night he assigned another millwright to reattach the
braces, so that the system might be stabilized on a tem
porary basis Problems grew worse when, on June 7 and
10 blowouts on the steamline required the mill to shut
down As of the date of the hearing, the line remained in
a state of disrepair and leaking
Baker testified that in consequence of this infraction,
and considered against the background of careless work,
he recommended that Hamilton be discharged Follow
ing Hamilton's suspension on June 8, Shimshock re
viewed his performance record and accepted Baker s
recommendation Baker testified without contradiction
that during the discharge interview of June 10, Hamil
ton, in shifting fashion attempted to explain his failure to
secure the spool piece, first indicating that he forgot and
then stating that he was unable to perform this task
During the interview Hamilton did not deny that he ne
glected to anchor the spool piece 58
It is true that a claim of discrimination can never be
free from doubt in circumstances when, as here union
animus and a proclivity to eliminate known or suspected
union supporters is as sharply defined as on this record
However, Baker insists that he was unaware that Hamil
ton was a union supporter, claiming instead tht Hamilton
told him directly that he opposed a union in the plant
Shimshock also concluded that Hamilton as antiunion,
also because of specific discussions that he had had with
Hamilton in which the latter spoke of his dislike of
unions Although I find the testimony of Shimshock and
Baker unacceptable in this regard, on balance, the suspi
57 According to Hamilton when he started the job he found that one
of the pipe supports had already been removed and a second was twisted
out of shape Hamilton claims that he replaced the first but not the
second which he simply twisted back to shape
68 The General Counsel raises a question as to how Respondent ex
pected Hamilton to prevent a buckle when the same braces were unable
to hold the spool piece in line after the earlier repair The short answer is
that the earlier repair was made without use of expansion joints which
were not then available but essential to the equalization of pressure along
the line
NATIONAL GYPSUM CO 1155
cions generated by Respondent 's union animus , without
more , did not insulate Hamilton from an apparently
evenhanded application of the employer's disciplinary
process Here the Respondent's accepted proof demon
strates a litany of offenses that, when objectively viewed,
reflect a continuing , often inexplicable , breakdown on
Hamilton's part concerning his job responsibilities The
description by Shimshock, Aeppli, and Baker of Hamil
ton's warnings , and the circumstances leading to his dis
charge, even if not impeccably true,59 offered a believ
able and substantial basis for concluding that Hamilton
would have been terminated even if he had not engaged
in any union activity Each warning and the ultimate dis
charge reflected either violations of safety regulations, or
a failure to perform assigned tasks in a careful, workman
like manner Objectively viewed, each of the several in
fractions were sufficiently severe to support invocation
of the disciplinary process Hamilton s excuse laden,
finger pointing, generally unbelievable response reflected
a defensive posture that merely served to confirm his
own sensitivity to his offenses
In the face of this convincing showing of just cause,
no credible, evidentiary basis exists for concluding that
major infractions did not occur, that they were trivial, or
that they had been condoned in the past 60 In short, the
General Counsel has failed to present believable, persua
sive evidence refuting Respondent's substantial proof that
each of the warnings, as well as the suspension and dis
charge, would have been forthcoming even in the ab
sence of union activity Accordingly, the 8(a)(3) and (1)
allegation based thereon shall be dismissed
(b) Ronald Frey
Frey was terminated on August 17 for reasons set
forth on his employee termination report, as follows
69 The Respondent contends that Hamilton left the plant before the
line could be tested under proper pressure and temperature The latter
ground was disputed by Hamilton whose testimony was corroborated by
John Reeder Thus Reeder testified that Hamilton completed the job at 3
a in after pressurizing the line and checking it He asserts that at that
time the job was alright and leak free Later that morning however
Reeder returned to clean up the work area only to find that the steam
joint was bent at the expansion joints Reeder claims to have reported
this to Baker at 3 45 a in Baker with corroboration from Shimshock in
sists that he received Reeder s report at approximately 2 20 am when
Reeder informed him that the steam line was as crooked as a dog s hind
leg Baker testified that Reeder reported the condition only 25 minutes
to one half hour after he instructed Hamilton to pressurize and check the
line Baker then sought out Hamilton but found that he had already gone
home I credit Hamilton and Reeder the latter being an incumbent em
ployee of longstanding with no apparent reason to fabricate However
any possible confusion about the timing of the discovery is outweighed
by Hamilton s clear act of carelessness which created an immediate not
readily correctable hazard Thus although I believed Reeder s corrobora
tion of Hamilton that the check was made this aspect of the defense is
considered incidental and I am convinced that the alleged failure to
check was not a vital element in Respondents election to terminate Ham
ilton
60 The General Counsel argues that an inference of discrimination
should be drawn from the fact that Hamilton s problems seemingly began
only after the organization campaign However on this record it is just
as easy to conclude that the numerous citations issued Hamilton during
this period were attributable to a sharp decline in the quality of this mci
dent where against a background of warnings and a suspension Hamil
ton made an unthinkable mistake
Continued poor work performance and lack of pro
ductivity despite previous warnings and suspen
sions R Frey failed to demonstate any effort to im
prove 81
Prior to the discharge, Frey, on several occasions,
even before commencement of union organization, had
been cited for an inefficient approach to his work Thus,
on September 23, 1986, Baker observed Frey on five oc
casions wandering off his assigned job and talking to
others under conditions that slowed down his production
and that of coworkers According to Baker, he reminded
Frey that he had talked to him about this problem in the
past , and that others had indicated that they did not like
to work with Frey for this reason 62
On November 14, 1986, Baker issued Frey a written
warning , stating as follows
You are being given a warning for a lack of pro
ductivity, wasting company time and disrupting a
departments efficiency Your inattentiveness is
causing unnecessary work on fellow employees and
increases their exposure to possible injury Any fur
ther violations will result in more severe discipli
nary action up to and including termination 63
Baker testified that this warning was issued after Frey
took 4 hours to paint a workbench, a task which should
have been completed in 1 hour 84
The first disciplinary action against Frey, which is sub
ject to interdict of the present complaint relates to a
written warning issued to him on February 6, 1987 At
the time Frey was engaged on a repair job on an over
head crane Plant safety policy required that an employ
ee working under such conditions take precautionary
steps so that he not be endangered should another em
ployee attempt to use the equipment Compliance re
quires either that the equipment be locked out or that an
other employee be stationed at the controls to monitor
its use On the occasion in question, Frey had been paint
ing the rails on the overhead crane Aeppli testified that
he observed Frey working on the job while Hartley an
other employee, was operating the crane Frey admits
that the crane was not locked out on the occasion in
question According to Frey, he and Hockenberry, the
day before, had finished the painting, but an air hose had
been left hanging from the scaffolding That morning,
when Frey learned that they had been assigned to a dif
ferent job he climbed the scaffolding to remove the air
hose As he did so the crane was in motion According
to Frey, he did not adhere to the safety policy because
he felt he removed the hose at a point too distant from
the crane to present a safety concern 65
81 See R Exh 20(f)
62 This warning was memorialized by Baker in writing See R Exh
20(a) Frey was not shown this document He did however admit to re
ceiving a warning at that time
63 See R Exh 20(b)
64 Frey was not examined as to this warning
65 See G C Exh 6(a) Contrary to the General Counsel this warning
impressed me as a legitimate attempt to enforce an aspect of safety policy
whose scope is not limited by the employee s self discrimination whether
noncompliance would create a peril
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The complaint does not challenge a written warning
issued by Baker to Frey on March 10 1987 A coworker
Karnes also received a warning for the same offense
The discipline related to the failure of Karnes and Frey
to tighten a section of a pump casing, and their leaving
the job with the knowledge that the pump was leaking
Frey described this warning as being a set up, but was
not otherwise examined and hence did not specifically
deny the allegation contained therein
The complaint also does not contest an oral warning
addressed by Baker to both Hamilton and Frey on May
27, 1987 The warning pertained to their taking 4 1/2
hours to perform a job that should have taken only 2
hours, while both were earning overtime pay 66
The complaint alleges that Frey was suspended twice
in June on discriminatory grounds The first based on a
job assignment on June 2 which according to the warn
ing and 3 day suspension issued on June 8 pertained to
Frey s failure to perform an assigned job within a reason
able length of time 67 In support thereof Baker testified
that Frey took 5 to 6 hours on a 2 hour job Baker added
that when he asked Frey why it took so long Frey indi
cated that he had a lot of problems, but Frey did not
identify their specific nature Aeppli agreed that this as
signment required but 2 hours, or at most 3 Frey con
firmed that he took extra time on this job 68 Instead, he
attempted to explain the delay as caused by the inability
to complete the job in 1 day, hence requiring that it be
set up twice Frey also explained they ran into problems
in conjunction with the foils on the equipment involved
and also worked slower because of extreme heat
The second citation was issued on June 24 It was
based on assertions that Frey on June 22 and 23 again
failed to complete an assigned task within a reasonable
length of time The warning again recites You have not
responded to previous warnings about your lack of pro
ductivity and continue to need more direction and super
vision that an A mechanic should require 69 In conse
quence Frey was given a 7 day suspension Baker testa
feed that Frey took three times longer to perform this job
than would normally be expected of an experienced mill
wright With confirmation from Aeppli Baker related
that the job involved would take 1 1/2 hours compared
to the 7 hours Frey took Frey s only explanation was
that he was delayed by broken bolts Frey does not dis
pute that his completion of the job was delayed but here
again attempted to excuse the delay on the basis of prob
lems he encountered
Finally on August 17 Frey was discharged on
grounds documented by Respondent as follows
Between 7/27/87 and 8/4/87 R. Frey spent nine
teen (19) hours assembling and installing a 2 black
66 See R Exh 20(d) Neither Frey nor Hamilton was examined about
this warning and hence the allegation contained therein stands uncontra
dicted
87 See G C Exh 6(b)
88 Hamilton worked with Frey on this job It will be recalled that the
warning was issued to Frey on June 8 the day after Hamilton received
his indefinite suspension Frey testified that when Baker suspended him
Baker mentioned that Hamilton would have received the same discipline
were he not off already because of the steamline incident
69 See G C Exh 6(c) and R Exh 20(e)
iron line-6 long with three 90 [degree] elbows
one tee and two flanges for a discharge line On
8/14/87 R Frey was assigned to install ends on a
cylinder After spending 3 1/2 hours and advising
his Supervisor the job was finished he hoisted the
cylinder into a storage box It was then discovered
the job was only a third done chime rings were in
stalled but the end covers were not The cylinder
had to be removed from its storage box and the job
completed by another mechanic 70
According to Frey on August 17 he was taken off a
job and called to Shimshock s office where he was told
by the latter
I ve been on vacation for 2 weeks I ve had
people watching you You haven t improved any in
your productivity, your workmanship and stuff
As of today you are terminated
Counsel for the General Counsel did not examine Frey
concerning the July 27 or August 4 incidents On cross
examination, he was questioned about time spent on the
discharge line He testified that generally this job
would take 10 to 12 hours Frey admitted to exceeding
the normal time for the job but once more blames the
special problems he encountered He described the main
delay as possibly caused by his having to set up a second
time after being called off to work another project At
this juncture Frey appeared to be indulging in specula
tion, and I did not regard his testimony as an expression
of what actually occurred As for his August 14 failure
to install the end covers on the cylinder before boxing it,
Frey did not refute Aeppli s testimony that Frey had
been instructed to install the ends before boxing the cyl
inders and that Frey had done that very job in the past
Indeed Aeppli credibly testified that experienced mill
wright would never box cylinders without installing the
end covers and would question any instruction from a
supervisor to the contrary
Based on the foregoing it is concluded that the Re
spondent, through entirely plausible mutally corrobora
tive testimony of Baker and Aeppli, as confirmed by
documentation has established Frey s history of ineffi
ciency safety infraction and shoddy production dating
back to a period preceding the advent of union organiza
tion For the most part, Frey did not dispute the factual
basis for the accusations against him, but attempted to
mitigate his delinquencies through unpersuasive excuses
On this record there is no discernible basis for conclud
Ing that Respondents action entailed a departure from
the fairness embodied in its progressive system of disci
pline and in fact its failure to terminate Frey at the first
opportunity, suggests an intention to rehabilitate rather
than eliminate In concluding that the Respondent has
satisfied its burden under Wright Line supra, I have nei
ther overlooked Frey s status as the last surviving
member of group B nor the suspicion that emerges from
Respondents proclivities toward that group Neverthe
less any inference of discrimination emanating therefrom
70 See R Exh 20(f)
NATIONAL GYPSUM CO
is effectively countered by Respondents convincing
proof that Frey, who was unobstrusive in his union lean
ings, would have been the subject of each and every dis
ciplinary act even if there had been no organization cam
paign Moreover the defense has not been offset by the
General Counsel on the basis of credible proof that the
incidents did not occur, or that Frey was a victim of dis
parate application of Respondents work rules and prac
tices Accordingly the 8(a)(3) and ( 1) allegations pertain
ing to the warning of February 6 the suspensions of
June 8 and 24, as well as Frey s discharge on August 17,
1987, shall be dismissed
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees concerning union ac
tivity, by creating the impression that union activity was
subject to surveillance, by threatening that employees
would be locked out and replaced because of their union
activity, by threatening that on designation of the Union,
employees would lose their benefits, and by, under coer
cive conditions, soliciting employees to repudiate their
designations of the Union
4 Respondent violated Section 8(a)(3) and (1) of the
Act by permanently laying off employees Ronald Pflee
gor and Clair Yeagel because of their known or suspect
ed union activity
5 Respondent violated Section 8(a)(3) and (1) of the
Act by disparately distributing weekend overtime on the
basis of union considerations under conditions denying
work opportunities to Ronald Pfleegor, Ron Frey Jim
Karnes, Judd Seiger Bill Hockenberry, Hugh Hamilton,
and Clair Yeagle
6 The unfair labor practices found above are unfair
labor practices having an affect on commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
1157
Having found that the Respondent has engaged in cer
tarn unfair labor practices within the meaning of the Act,
it shall be recommended that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act
Having concluded that the permanent layoffs of
Ronald Pfleegor and Clair Yeagle were discriminatorily
motivated, it shall be recommended that they be offered
immediate reinstatement to their former positions and
made whole for any loss of earnings and benefits they
sustained by reason of the discrimination from the date
of termination to the date of a bona fide offer of rein
statement Having further found that Respondent unlaw
fully denied overtime to employees Ronald Pfleegor,
Ron Frey, Jim Karnes, Judd Seiger, Bill Hockenberry,
Hugh Hamilton, and Clair Yeagle, it shall be recom
mended that they be made whole for earnings lost by
reason of the discrimination against them 71 All backpay
awarded in this preceding shall be computed on a quar
terly basis as prescribed in F W Woolworth Co 90
NLRB 289 (1950), with interest computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173
(1987)
The complaint includes a request for a visitatorial
clause, authorizing the Board to obtain discovery, if nec
essary, to monitor compliance with any remedial order
issued However there has been no argument about how
the specific conduct under scrutiny in this proceeding
warrants such relief Accordingly, based on Cherokee
Marine Terminal, 287 NLRB 1080 (1988), the request is
denied
[Recommended Order omitted from publication ]
71 In the case of Pfleegor and Yeagle the entitlement to backpay for
lost overtime opportunities shall continue until a bona fide offer of rein
statement and if accepted beyond that until they are allowed to share in
overtime under nondiscriminatory conditions Beyond them with the ex
ception of Seiger this reimbursement obligation terminates with the date
of their retirement discharge or quit Seiger whose employment status
has not been conclusively litigated or resolved in this proceeding appar
ently incurred a job related disability shortly after January 31 and hence
his entitlement is also a continuing one subject to verification through
compliance or any other appropriate proceeding