Northern Indiana Tool, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1977

233 N.L.R.B. 917 (N.L.R.B. 1977)

NORTHERN INDIANA TOOL, INC.
Northern Indiana Tool, Inc. and Allen R. Keehn. Case
25-CA-8511
December 2, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 25, 1977, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and Respondent filed a brief
in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I we agree with the Administrative Law Judge, for the reasons stated by
him, that a remedial order is not warranted in the special circumstances here
to remedy the isolated 8(aX) ) violations committed by Respondent's former
vice president. James Cleveland. Cleveland is no longer associated with
Respondent and the plant which he supervised is no longer in existence. The
violations which he committed while he was still associated with Respon-
dent were committed at his home in a single conversation with his nephew.
Couts. In these circumstances, there is little likelihood that Cleveland's
remarks to Couts would have any continuing coercive impact upon the unit
employees. Moreover, since none of the present owners of Respondent was
involved in, or even aware of, Cleveland's coercive remarks, it would be
unfair to saddle them with a remedial order. Accordingly, in light of all of
the foregoing, we can perceive no useful purpose in issuing a remedial order
in this case.
2 Contrary to his colleagues. Chairman Fanning would issue a remedial
order to remedy the unlawful interrogation and threat made by Cleveland.
Cleveland's unlawful remarks, directed to Couts in the presence of
Newman, Cleveland's stepson and also a Walkerton employee, were of a
serious nature and were such as would likely be passed along to other
employees. Further, contrary to his colleagues' suggestion, Chairman
Fanning does not find it proper for the Board to excuse a respondent from
liability because the official engaging in misconduct is no longer associated
with that respondent or because other officials are unaware of the
misconduct. Where. as here, a high-ranking official has engaged in clearly
unlawful activity. Chairman Fanning does not believe that it effectuates the
purposes of the Act to withhold the Board's usual remedy and leave an
undisputed 8(aX I) violation unremedied.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on February
22 and 23, 1977, in Plymouth, Indiana, on the complaint of
the General Counsel issued on January 31, 1977,1 as
amended at the hearing, and the answer of Northern
Indiana Tool, Inc., herein called the Respondent or
Company. In issue are the questions whether the Respon-
dent, in violation of Section 8(aX3) of the National Labor
Relations Act, as amended, discriminatorily discharged
employee Allen R. Keehn because of his protected union
and concerted activities and whether the Respondent, by
this and other conduct interfered with, restrained, and
coerced employees in violation of Section 8(aX I) of the
Act. 2 At the close of the hearing, the parties waived their
right to argue their case orally but subsequently filed briefs
in support of their respective positions.
Upon the entire record and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FuTNDnOs AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation with its
principal office and place of business at Koontz Lake,
Indiana, operates a machine shop at this location where it
performs tool-and-die work and related machine shop
services, including the production of tools, dies, fixtures,
and special machines. From about May until its discontin-
uance on October 10, 1976, the Respondent also operated
another facility in Walkerton, Indiana, where it performed
metal stamping and fabrication work. The Respondent, in
the regular course of its operations, annually manufactures,
sells, and distributes products valued in excess of $50,000
which are shipped directly to points outside Indiana. The
' The complaint is based on a charge filed by Allen R. Keehn on
December 13, 1976, a copy of which was duly served on the Respondent by
registered mail on December 14, 1976.
2 Sec. 8(aX I) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent, Sec. 7 provides that
'le Imployees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection .... "
Sec. 8(aX)(3), with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization .... "
233 NLRB No. 139
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also annually purchases goods and materials
for its operations valued in excess of $50,000 which are
shipped into the State from sources located outside the
State.
It is conceded, and I find, that the Respondent at all
material times has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The main issue presents another familiar case of an
employee's discharge alleged to be due to his involvement
in union or other protected concerted activity whereas the
employer insists that the discharge was solely for legitimate
cause-here, insubordination and poor attitude toward his
superior and the Company. The essential facts and
circumstances leading up to and surrounding the discharge
of Allen R. Keehn, the Charging Party, are virtually
undisputed and are set forth below.
1. Employee Keehn's initial employment at the
Walkerton plant; his union advocacy; and the
nondiscriminatory closure of this plant
By way of background, in 1972, the Respondent was
formed with Thomas Kriskovsky as president and James
Cleveland as vice president. Since that date, the Respon-
dent has conducted its operations only in its Koontz Lake
plant except for the period from about May to October
1976,3 when it also operated a smaller plant in Walkerton
about 4 or 5 miles from the Koontz Lake facility.
Cleveland managed the Walkerton facility, determining the
wage scales and other working conditions of the approxi-
mately six production employees there employed. Kriskov-
sky, in turn, continued to run the Koontz Lake plant where
some 10 employees were employed. Because the relation-
ship between Kriskovsky and Cleveland was not of the
very best, Cleveland during the first week in October sold
his stock interest in the Respondent to the former and
completely severed his association with the Company. On
October 10, Kriskovsky shut down the Walkerton facility,
moving much of its machinery and equipment to the
Koontz Lake plant. Since their dissociation, there has been
no communication between Cleveland and Kriskovsky;
nor has Cleveland had occasion to visit the plant. About
November 13, Lloyd Knowlton and Carl Salyer each
became one-third owners of the Company along with
Kriskovsky, with each individual supervising a separate
department.4 Kriskovsky continued as the Respondent's
president while Knowlton and Salyer assumed the office of
vice president and executive vice president, respectively.
At or about the time the Walkerton plant went into
operation, Keehn, a boyhood friend of Kriskovsky, sought
a job from Kriskovsky. On the latter's recommendation,
Cleveland on May 3 hired Keehn as a press operator at the
Walkerton plant at $3.50 an hour. On May 24, Keehn
3 All dates refer to 1976 unless otherwise indicated.
4 Knowlton, who was a newcomer to the Company, was put in charge of
the Fabrication Department. Salyer, who worked for the Company
approximately 4 years, was put in charge of the machinery and lathe
operations, while Kriskovsky ran the Die Shop.
received a 25-cent raise and another 25 cents on July 1
bringing up his hourly rate to $4. While employed at this
plant, Keehn was unhappy with working conditions and
"from time to time" discussed the situation, both at and
away from the plant, with another employee, Mark Couts,
who was Cleveland's nephew and a close friend of Keehn
sympathetic to the latter's views. Also present at several of
these conversations at the plant were other employees
including Danny Newman, Cleveland's stepson and a
member of Cleveland's household. In these discussions,
Keehn pointed out the need for union representation to
secure job security, better wages and other improvements
in working conditions and named certain unions which
might serve the employees' purposes. The record contains
evidence of two incidents which prompted Keehn to
express his union views to the employees. One occurred on
July 2 when the employees were required to unload by
hand long, heavy steel tubes from a truck under conditions
which were dangerous and could have caused injuries but
fortunately did not.5 After the truck was unloaded and
Kriskovsky was not present, the employees gathered on the
receiving dock where Keehn criticized the assignment and
asserted that, had they been organized, they would not
have been directed to unload the truck by hand. Keehn
also evaluated the relative merits of different unions and
the benefits they could derive from such representation.
Concerning the second event, which occurred in Septem-
ber, Cleveland, who was away from the plant in the
morning, summoned the employees to his office on his
return. In an angry tone, Cleveland stated that he had been
informed that, in his absence, the employees idled their
time away and warned them that, if such idleness were
repeated or if he saw them standing around in a group or
not doing their jobs, they would be kicked out of the plant.
Shortly after this reprimand, while Cleveland was again not
in the plant, the employees met in the office. In the course
of the discussions, Keehn expressed his concern over the
fact that the employees lacked job security since Cleveland
was unpredictable and could fire them for making a
mistake, regardless of their years of service or experience.
Keehn also repeated that union representation would
obtain for employees job security they did not then enjoy.
Apparently, Keehn's union advocacy at the Walkerton
plant did not go beyond this "informal and casual" talking
stage.
According to Couts' uncontradicted and credible testi-
mony, in late September before the Walkerton plant was
closed down, he visited his uncle, Cleveland, at his home in
Koontz Lake. There, in the presence of Danny Newman,
Cleveland's stepson and a Walkerton employee, Cleveland
inquired of Couts whether he had heard anyone talking
about a union in the shop or whether he was aware of such
discussions, warning that, if he learned who that individual
was, he would not last long in his job. Cleveland also
indicated that the reason he did not want a union in the
shop was that it would put him out of business and that the
Company could not survive if it were organized. Couts
5 On this occasion, Cleveland was absent from the Walkerton plant.
Kriskovsky, who substituted for Cleveland on this day, assisted in the
unloading operation.
918
NORTHERN INDIANA TOOL, INC.
further credibly testified that he had probably two similar
conversations with Cleveland in or about September or
early October at Cleveland's home in which Cleveland
expressed the view that his business could not survive
union organization. Although Couts and Newman were
aware of Keehn's outspoken union sympathies, they
evidently did not reveal this information to Cleveland.
Except for the foregoing conversations with Couts, 6 there is
no evidence that Cleveland interrogated other employees
or threatened them with discharge or plant closure.
Kriskovsky denied any knowledge that Cleveland had
interrogated any employee or made any threats or
antiunion statements to him, although Kriskovsky was
generally aware that Cleveland did not favor having a
union in the plant. Nor is there any evidence that
Cleveland at any time reported Keehn's union sympathies
to Kriskovsky or his new partners. Indeed, about a week
before the Walkerton plant was closed down, Cleveland
advised Keehn that Kriskovsky wanted to see him about a
job at the Koontz Lake plant.
2. Keehn's subsequent employment at the Koontz
Lake plant; events leading to his termination
Following the shutdown of the Walkerton plant on
October 10, Keehn again sought employment from his
friend, Company President Kriskovsky, who stated that he
might have a welder's job for him in the Koontz Lake plant
in a week or so at a reduced wage rate of $3.25 an hour
since Keehn lacked experience in such work. On October
18, Keehn started working there7 under Kriskovsky's
supervision as an apprentice welder helping Terry Kilburn,
a welder. About a week later, Keehn came under the
supervision of Lloyd Knowlton,8 who had joined the
Company in the meantime and, as indicated above,
ultimately became a part owner. On November 7, at
Keehn's request, Knowlton raised his wage rate to $3.50 an
hour.
On November 22, an incident occurred which resulted in
Keehn's discharge undeniably for good reason and his
prompt reinstatement. About 7 o'clock that morning, when
Keehn reported for work, his supervisor, Knowlton, told
him that a delivery truck was due to arrive about 8 a.m. to
receive a shipment of pedestals which Keehn was to
prepare for loading. Since Keehn's fellow worker, who
would normally help in such job, was out sick that
morning, the assignment was his sole responsibility. About
10 or 15 minutes later, Knowlton returned and reminded
Keehn of the urgency of the shipment and directed him to
hurry it up. This provoked Keehn's obscene and abusive
response. Knowlton retorted that he was not obliged to
tolerate such language and summarily discharged Keehn
on the spot. Keehn, however, was permitted to remain in
the plant to speak to Kriskovsky concerning the incident.
Upon Kriskovsky's arrival a few minutes later, Keehn
6 The General Counsel adduced additional testimony by Couts, of little,
if any, probative value, that, while Couts was visiting his uncle Cleveland at
his home in early December. some 2 months after both of them had severed
their relationship with the Respondent, Cleveland told Couts that, if he had
kept the Walkerton plant as his own operation, he would not have retained
Keehn in his employ because he disliked people who talked union.
I Neither Cleveland's stepson Newman nor his nephew Couts continued
their employment at the Koontz Lake plant.
related what had happened and the language he had used
to Knowlton and asked for, and received Kriskovsky's
advice to apologize to Knowlton and try to settle the
matter between them. Keehn did so, explaining to
Knowlton that he was in a bad mood and disliked being
pressured on the job and requesting that the incident be
forgotten. Knowlton relented and allowed Keehn to return
to work but not without admonishing him that he would
not tolerate the language used by Keehn or insubordina-
tion.9 Subsequently, Keehn discussed this incident with
other employees.
Because Knowlton's authority was thus challenged by
Keehn,10 management decided to meet with the employees
to impress upon them that each owner had absolute power
of discipline over the employees under his supervision, with
which no other owner would interfere. Accordingly, such a
meeting was held on November 23 in which the indicated
message was conveyed to the employees. At one point at
the meeting, Keehn, directing his remarks to Knowlton,
declared that he was going to give what he considered to be
8 hours' work for 8 hours' pay. Knowlton answered that
perhaps Keehn's ideas regarding 8 hours' work might not
correspond with his and that, as long as Keehn worked for
him, it would be advisable that Keehn's ideas conform with
his.
After Keehn began working at the Koontz Lake plant, he
continued informally to discuss with a number of employ-
ees at different times the need for a union to improve
working conditions and to obtain better wages and job
security. However, all he could elicit from his fellow
employees was a lack of interest in being organized lest the
plant shut down or for some other reason. Following the
November 22 episode, Keehn for the first time attempted
to interest a union to organize the Respondent's employees.
According to Keehn, he was prompted to do so because he
feared that his job was in jeopardy as a result of his quarrel
with Knowlton on November 22. Therefore, on that day he
immediately contacted John Van Strien, a former United
Auto Workers committeeman, to discuss unionizing the
plant. In answer to Van Strien's inquiry whether the
employees favored a union, Keehn stated that they were
"pretty negative about it." Van Strien thereupon suggested
that Keehn would do well to forget the whole matter unless
the employees changed their mind.
On December 1, Keehn became involved in another
incident with his superior, Knowlton, which, the General
Counsel contends, furnished a pretextual reason for
Keehn's discharge on the following day. On December I,
Knowlton was doing some rewiring work in his depart-
ment. At or about 3:25 p.m., 5 minutes before Keehn's shift
s Knowlton testified that he was a member of an ironworkers' union on a
withdrawal card because of his management status.
9 The foregoing narration reflects Keehn's and Knowlton's testimony.
Whatever variances there are in their accounts, they are of no consequence
and do not affect my ultimate determination.
10 There is testimony in the record that Keehn did not have much respect
for Knowlton.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ended and at a time when Keehn was preparing to wash up
before leaving, as employees were permitted to do,"
Knowlton, who was standing on a table, called to Keehn to
help him pull a wire through a hole in a wall partition.
Keehn complied and assisted in this effort. However, by
3:30 p.m., the close of Keehn's shift, the wire had not yet
been pulled through because certain difficulties were
encountered. Keehn then asked Knowlton whether he was
going to work overtime on this job,' 2 which Keehn was not
averse to doing. Knowlton replied, "No, why?" Keehn
answered that he was not staying beyond 3:30 if he was not
going to be paid for overtime. Knowlton thereupon
remarked that therefore Keehn did not want to help him
finish that job.' 3 Consequently, Terry Kilburn, Keehn's
fellow employee, was asked to help and he agreed,
spending at most 5 minutes to pull the wire through the
hole. Kilburn performed this job on his regular time for
which he was not paid overtime.14 In the meantime, Keehn
left the plant.
Upon the completion of the wire-pulling job, Knowlton
related to Kriskovsky his latest problem with Keehn. He
informed Kriskovsky that Keehn was insubordinate again
and had actually "cut down" the Company. Stating that he
had not yet decided what he intended to do about Keehn,
Knowlton told Kriskovsky that he would reach a decision
by the next morning.'5
On December 2, sometime in the morning after Keehn
came to work, Knowlton informed Keehn that Friday,
December 3, would be his last day.1 6 In reply to Keehn's
inquiry as to the reason, Knowlton stated for "insubordina-
tion and bad attitude." Keehn retorted for "not working
past 3:30, without being paid for it?" adding that he would
not work overtime unless he was paid. When Keehn
remarked that he intended to go to the Labor Board,
Knowlton replied that he was not concerned as he had
already been in communication with the Labor Board
which supported the discharge for cause. Keehn then
warned Knowlton of his intention to complain to OSHA
about certain plant safety violations which Knowlton
indicated did not disturb him. Keehn also made the
comment that, in view of his termination, Knowlton should
not expect him "to break ... [his] ass" the next 2 days.17
Following his notification to Keehn of his termination,
Knowlton advised Kriskovsky of the action he had taken.
Since Knowlton appeared to be upset, Kriskovsky suggest-
ed that Knowlton take his car to get himself a cup of
coffee, which he did. In the meantime, Kriskovsky invited
to his office Salyer, the other owner, and Keehn. Keehn
was asked about the December I incident and whether it
ni Keehn's regular shift hours were from 7 a.m. to 3:30 p.m. Employees
were permitted to use the last 5 minutes of their shift to wash up.
12 According to Keehn's undisputed and credible testimony, alongside
the timeclock a company notice was posted, stating "No overtime without
foreman's permission." He further testified that this rule was the reason why
he made the inquiry. He also testified that employees customarily worked a
lot of overtime and that he was never asked to work overtime without being
paid for it.
13 The foregoing narration, in essence, embodies Keehn's testimony.
Although Knowlton's version differs in certain details, such variances do
not affect my ultimate determination and therefore a resolution of such
conflict in testimony is unnecessary.
14 According to Kilburn's credible testimony, he reported late for work
that morning and therefore his shift ended at 4 p.m.
would have hurt him to stay over 5 or 10 minutes to finish
the wire-pulling job. Keehn answered that he was willing to
remain and work as much overtime as the Company
wanted but, after finishing 8 hours work, he was not
disposed to continue beyond his regular schedule unless he
was paid overtime. Salyer then remarked that he expected
employees "to give and take" since they might report late
and yet be paid for the full shift. Keehn responded that the
Company only paid for the time punched in on the clock
and, besides, he was never late. Kriskovsky agreed with
Salyer that employees should not be reluctant to give their
company 5 minutes of their time. Concluding this inter-
view, Kriskovsky stated that it would be to everybody's
interest if Keehn immediately left the plant and that Keehn
would be paid for Thursday, December 2, but not for
Friday. Keehn, thereupon, asked for the paychecks due
him and Kriskovsky instructed his secretary, June Beem, to
prepare them. When Beem and Keehn were alone and
Keehn was given his checks, Beem, undeniably a nonsuper-
visory office employee, asked him whether, "[b]etween the
two of us, were you talking union?" Keehn answered in the
affirmative and the conversation ended as Kriskovsky
appeared. Although testifying that she made that inquiry,
Beem admitted that she had no actual knowledge that
Keehn was discharged for union activity or that she was
informed by any company owner that Keehn was terminat-
ed for that reason. Keehn left the plant a few minutes after
9 in the morning. The same day, Keehn visited employee
Kilburn at his home and, visibly disturbed, complained
that he was fired because he refused to work overtime on
December 1 (apparently without being paid).
Knowlton and Kriskovsky denied knowledge of Keehn's
union advocacy and no direct evidence to the contrary was
presented. Moreover, the record is barren of any evi-
dence-nor is it contended-that either of them or Salyer
ever unlawfully interrogated employees concerning their
union sympathies or threatened them for supporting a
union or even expressed opposition to a union to any
employee.
B. Concluding Findings
I. With respect to Keehn's discharge
The question whether an employee was terminated
because of his union membership or activities is not
susceptible of easy determination as it involves an inquiry
into the employer's state of mind. For this reason, all the
facts and circumstances surrounding the separation must
be carefully evaluated with due recognition being given to
it There is conflicting testimony whether Keehn told Kilburn, with
whom he performed welding work, to slow down on the job, which Kilburn
purportedly reported to Knowlton on December 1. This conflict need not be
resolved as I am not convinced that the alleged conduct entered into
Knowlton's discharge decision. Moreover, the alleged slowdown charge
appears to be nothing more than a complaint Keehn made to Kilbum that
the wages paid them were inadequate for the work they performed.
16 It appears that Knowlton himself made the discharge decision.
Contrary to the General Counsel's suggestion in his brief, there is
insufficient evidence that the discharge decision was made at an early
morning conference of the three owners of the Company.
1" The foregoing account reflects Keehn's testimony. Knowlton's version
does not differ from Keehn's in significant respects. The variances in certain
details do not require a different conclusion from that reached below.
920
NORTHERN INDIANA TOOL, INC.
the settled principle that an employer may terminate an
employee for any reason good, bad, or indifferent so long
as he is not motivated by the employee's union or
concerted activities. Of course, an employee's union
involvement does not insulate him from discharge for
nondiscriminatory considerations.
From my careful review of the record, I find that the
General Counsel has failed to sustain his burden of proving
by a preponderance of the evidence that Keehn's discharge
was on account of his union activities rather than for cause,
that is, his demonstrated insubordination and poor atti-
tude, as the Respondent vigorously urges. As noted above,
it was what Knowlton, Keehn's superior and a co-owner of
the plant, regarded as Keehn's uncooperative and insubor-
dinate conduct in refusing to work 5 extra minutes without
overtime pay that precipitated Keehn's discharge on
December 2. Whether or not Knowlton was unfair and
unreasonable in asking Keehn to give the Company 5
minutes free time and whether or not Keehn acted
justifiably in refusing to extend himself in that respect, this
does not necessarily establish that Knowlton's termination
of Keehn was motivated by pretextual or union-related
considerations. Unquestionably, an employer's unfairness
or unreasonableness is not the equivalent of discrimination
under the Act. In fact, the December 2 incident was the
second one in 9 days following the November 22 episode
where Keehn provoked Knowlton to terminate him
because of his insubordination and abusive and obscene
language directed at Knowlton. If Knowlton were really
discriminatory minded, as the General Counsel maintains,
he surely would not have relented and immediately
reinstated Keehn on that occasion. Moreover, the record is
devoid of any evidence of knowledge of Keehn's union
sympathies-much less of union animosity or antiunion
conduct-on the part of Knowlton or the other two co-
owners of the Respondent upon which an inference of
illegal motivation might be validly predicated. Contrary to
the General Counsel's contention, it would be rank
speculation to impute to Knowlton Cleveland's interroga-
tion of his nephew Couts at Cleveland's home or Cleve-
land's antiunion remarks made to Couts where, as here,
Cleveland had dissociated himself from the Respondent 2
months before Keehn's discharge s and about 1 month
before Knowlton joined the Company. Indeed, militating
against a finding of discrimination is the fact that
Cleveland, in contemplation of his severance from the
Company and the shutdown of the Walkerton plant which
he managed, advised Keehn to see President Kriskovsky
concerning employment at the Koontz Lake plant where
Keehn was subsequently hired by his friend Kriskovsky.
Nor, even assuming that Knowlton or his co-owners were
aware of Keehn's union sympathies because of the small
size of the Koontz Lake plant, as the General Counsel
argues, I find, under the facts and circumstances related
l' Cleveland's remark to his nephew Couts at the former's home 2
months after Cleveland's dissociation from the Respondent that, had he
retained the Walkerton plant as his own operation, he would not have kept
Keehn in his employ because of Keehn's union discussions is certainly a
very weak reed which the General Counsel grasps as evidence of the
Respondent's knowledge of Keehn's union advocacy and the discriminatory
nature of his discharge.
19 Sec. 8(c) provides:
above, such assumption to be an insufficient basis for a
determination that Keehn was a victim of unlawful
discrimination for union activity. Furthermore, whatever
suspicion the evidence might arouse concerning the
Respondent's inclination to penalize employees for their
union sympathies-and I have none-it is clear that
suspicion is an inadequate substitute for probative evi-
dence.
In sum, I conclude that the record falls far short of
establishing that Keehn's discharge was in retaliation for
his union advocacy or sympathies. Accordingly, the
relevant allegations of the complaint will be dismissed.
2. With respect to interference, restraint, and
coercion of employees
There can be no question that Cleveland's inquiry of his
nephew, Couts, then a Walkerton employee, during the
latter's visit at Cleveland's home in September 1976
whether he had heard anyone talking about a union in the
shop and Cleveland's simultaneous warning that, if he
learned the identity of such employee, he would not last
long, are well-recognized forms of restraint and coercion of
employees in the exercise of their statutory right to self-
organization which Section 8(a)(1) of the Act prohibits.
However, I find to be privileged expressions of opinion '9
and not violative of the Act Cleveland's further remarks to
Couts on this and about two other occasions that he did
not want a union in his plant because it would put him out
of business and that the Company could not survive if
organized. I am unable to find in such statements a threat
to close down the plant in reprisal for its unionization.
Returning to the coercive conduct noted above, I find
that, although the Respondent is undeniably responsible
for Cleveland's acts while he was part of management and
the operator of the Walkerton plant, effectuation of the
policies of the Act does not require, under the special facts
and circumstances of this case, that an order be issued
directing the Respondent to refrain from the unlawful
conduct herein. I reach this conclusion in view of the
isolated nature of the interrogation of, and warning uttered
to a nephew of a former co-owner, the closure of the
Walkerton plant and the absence of any antiunion conduct
on the part of the surviving co-owner and the two new co-
owners. Accordingly, the complaint herein will be dis-
missed in its entirety.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The expressing of any views, argument, or opinion or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent has not discriminated against Allen
R. Keehn in violation of Section 8(a)(3) and (1) of the Act.
3. Effectuation of the policies of the Act does not
require a remedy with respect to the isolated instance of
interference, restraint, and coercion violative of Section
8(a)(l) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 20
It is ordered that the complaint issued herein against the
Respondent, Northern Indiana Tool, Inc., be, and it hereby
is, dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
922