Nu-Line Industries

National Labor Relations Board - Board Decisions

Mar 7, 1991

302 N.L.R.B. 1 (N.L.R.B. 1991)

1
302 NLRB No. 1
NU-LINE INDUSTRIES
1 By order of the Acting Regional Director for Region 30 dated June 4,
1990, this proceeding was consolidated for hearing and decision with Cases
30–CA–10803 and 30–CA–10803–1. These cases have been deleted from the
above caption because, during the hearing, the issues presented therein were
resolved amicably. Although, technically, the adjusted cases remain a part of
this proceeding, this status is merely provisional, for they will be severed and
dismissed when compliance is achieved. Accordingly, to avoid confusion, the
above-caption is framed so as to embrace only the complaint and issues that
remain unresolved and presently in controversy.
2 Unless otherwise indicated, all dates refer to 1990.
Nu-Line Industries, Inc. and Drivers, Warehouse &
Dairy Employees Local No. 75, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Case 30–CA–10880
March 7, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 16, 1990, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Nu-Line Industries, Inc.,
Suring, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Paul Bosanac, Esq., for the General Counsel.
Gregory B. Gill, Esq. and Bruce N. Evers, Esq. (Gill & Gill,
S.C.), of Appleton, Wisconsin, for the Respondent.
Frederick Perillo, Esq. (Previant, Goldberg, Ulmen), of Mil-
waukee, Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Shawano, Wisconsin, on August 21 and 22,
1990, on an initial unfair labor practice charge filed on April
10, 1990, and a complaint issued on May 25, 1990, which,
as amended, alleges that the Respondent independently vio-
lated Section 8(a)(1) of the Act by coercively interrogating
employees concerning union activity; by declaring that it
would not negotiate in good faith if the Union were des-
ignated: by threatening to discharge employees if the Union
organized the plant; by engaging in surveillance and creating
the impression that union activity was subject to surveillance;
and by separating employees to prevent them from engaging
in union activity. The complaint further alleges that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by on
April 9, 1990, reducing the piece rates of employees Marilyn
Baumgardt and Barbara Talley because of their union activ-
ity. In its duly filed answer, the Respondent denied that any
unfair labor practices were committed. Following close of the
hearing, briefs were filed on behalf of the General Counsel
and the Respondent.
On the entire record, including my opportunity directly to
observe the witnesses and their demeanor, and after consider-
ing the posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent manufactures children’s furniture at its
place of business in Suring, Wisconsin. During the calendar
year ending December 31, 1989, in the course and conduct
of said operation, the Respondent sold and shipped products
valued in excess of $50,000 directly to points located outside
the State of Wisconsin. The complaint alleges, the answer
admits, and I find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Drivers, Warehousemen & Dairy Employees Local No. 75,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO1 (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
There is no history of collective bargaining for the 260
production and maintenance workers employed at the Re-
spondent’s furniture plant in Suring, Wisconsin. The Union
began organizing these workers in January 1990.2 The Gen-
eral Counsel contends that this effort was countered by a
campaign of intimidation and discrimination. Thus, the Re-
spondent is charged with a variety of independent 8(a)(1)
violations, as well as an 8(a)(3) and (1) violation based on
reduction of an incentive rate. The Respondent adduced testi-
mony in refutation of the alleged 8(a)(1) violations, and ar-
gues that the rate was adjusted on the basis of independent
business considerations, having no relationship to employee
organizational interests.
B. Interference, Restraint, and Coercion
1. The cafeteria incident
The complaint imputes 8(a)(1) conduct to a pair of man-
agement representatives the same day as the Union’s initial
organization meeting in mid-January.
First, it is alleged that Raymond Heimerl, the general man-
ager of the Suring plant, interrogated employees and told
them that there would be no good-faith bargaining even were
they to designate the Union. In support, Ann Ohlrich, a
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Clark did not testify. All except Ohlrich deny that they observed Clark in
the lunchroom during the incident.
4 Though the discharge threat that Ohlrich imputes to Heimerl is more seri-
ous than the other infractions attributed to him, it was not mentioned in the
complaint.
5 Strehlow and Fifield denied that Kiesling participated in any conversation
that they witnessed. It is of course possible that they could have left prior to
his arrival.
housekeeping employee, testified that on the morning in
question, as she was performing her duties in the cafeteria,
she overheard Heimerl ask employees Steve Fifield, Gary
Strehlow, and Tim Clark whether they would attend the
union meeting that had been scheduled for that evening, and
what their feelings were. She relates that Clark replied that
it would be a good idea to learn what the Union had to
offer.3 According to Ohlrich, Strehlow and Fifield expressed
a firm disinterest, mentioning the shutdown of a nearby
Nicolet Paper plant, while voicing the opinion that the Union
meant nothing but strikes and dues. Ohlrich further offered
that Heimerl then reinforced this view by making the point
that:
[I]f we would ever go on strike, if the union got in,
they could fire everybody and hire Coleman Product
employees. [T]hey never would have to negotiate a
contract with the union negotiators. That they could just
automatically say no.4
Finally, Ohlrich testified that Heimerl disparaged the Union,
associating it with the mafia, while stating that ‘‘they weren’t
a very nice bunch of guys.’’
Heimerl denied questioning anyone as to their intent con-
cerning the union meeting. He also denied reference to the
mafia. Finally, he denied stating that he did not have to bar-
gain with the Union or that if the Teamsters got in, he would
put them on strike and hire Coleman Products employees.
Under his version, on the morning in question, as he was
walking from the restroom, Strehlow and Fifield, who were
in the lunchroom, beckoned him to their table. Heimerl was
told that the union meeting was scheduled for that evening,
and the employees wanted to know what type questions they
should ask while attending. Heimerl responded that he had
no idea, stating, ‘‘It is up to you.’’ When they inquired as
to whether they should attend, he indicated that it was up to
them, and if they wished to go, to do so. He admits that he
noticed Ohlrich cleaning as he talked to the men, adding that
when they left, Ohlrich volunteered that she had no use for
unions, explaining that her uncle had ‘‘lost his pension and
everything else.’’
Heimerl’s account was confirmed basically by Strehlow
and Fifield. Both acknowledged that Ohlrich was in the
lunchroom at the time. Strehlow testified that he called
Heimerl and asked if he had any statistics on the Union be-
cause he knew little about it. Heimerl said that he should just
go to the meeting as he did not care if Strehlow did so or
not. He heard no mention of collective bargaining or a con-
tract, and did not recall anyone linking the Teamsters with
the mafia. Steve Fifield confirmed that he and Strehlow had
several questions about unions, so they approached Heimerl.
The latter suggested that if they had questions they should
go to the union meeting and get the Union’s opinion. He de-
nied hearing threats or promises, and did not question them
concerning their interests in the Union or the meeting. Fifield
heard nothing about a union contract.
In addition to the misconduct imputed to Heimerl, the
complaint alleges that the Respondent violated Section
8(a)(1) through Heinz Kiesling’s discharge threat. The latter
had been the Respondent’s yard supervisor for some 19
years. According to Ohlrich, at the end of the above discus-
sion of the union meeting, Kiesling approached the group,
stating that he had seen the announcement of the union meet-
ing, adding, ‘‘I hope you are not voting for the union, be-
cause . . . all they have to do is close the plant or hire Cole-
man Product employees.’’5 Kiesling denied having made any
such statement.
The allegations implicating both Heimerl and Kiesling are
based on Ohlrich’s uncorroborated testimony. Although the
Respondent’s evidence is not in perfect synch, I was dis-
tinctly unimpressed with Ohlrich, and my doubt as to her re-
liability is sufficiently deep to impel rejection of her testi-
mony where unconfirmed by strong probability or independ-
ent, credible sources. Neither being present here, the 8(a)(1)
allegations involving Heimerl and Kiesling are dismissed.
2. By Richard Genal
The complaint alleges that the Respondent violated Section
8(a)(1) on or about February 5, when Plant Engineer Genal
created the impression that union activity was being ob-
served.
Ohlrich, who claims to have been the employee respon-
sible for contacting the Union, and who brandished a union
button since the first union meeting in mid-January, testified
that some time later, she, together with another cleaning
lady, Kathy Creidle, were on break. They were addressed by
Genal, their supervisor, who stated that he did not care what
they did on their own time or breaks, but he did not want
union activity discussed during working hours. Ohlrich as-
serted that Genal went on to state that an unidentified supe-
rior had told him ‘‘that . . . [Ohlrich] had spent quite a deal
of time [2-1/2 hours] in the lunchroom talking about union
activity.’’
Ohlrich admitted to a union-oriented conversation earlier
that day in the lunchroom, as follows:
I . . . took my 10-minute break with Kathy Hanson
. . . an inventory clerk. . . . [S]he asked me if I could
give her a union card, if I had one. And I handed it
to her. At this time I noticed that Tom DeLeeuw and
Chris Peterson were in Chris Peterson’s office. . . .
And he saw me. I know he saw me. He was staring
right at me when I gave her the card.
She denied any prolonged conversation concerning the Union
during working time.
In California Dental Care, 272 NLRB 1153, 1165 (1984),
Judge Jerrold H. Shapiro stated: ‘‘In determining whether an
employer created the impression of surveillance the test ap-
plied by the Board is whether, under the circumstances, the
employee would reasonably assume from the statement in
question that the employee’s union activities had been placed
under surveillance.’’ In contrast with that requirement, here,
Ohlrich attributes Genal’s intervention concerning her union
activity to DeLeeuw, who was not her supervisor, and, who
3NU-LINE INDUSTRIES
6 There is no material difference between Ohlrich’s situation and that reck-
oned by the Board in Page Avjet, Inc., 278 NLRB 444, 451 (1986). There,
an employee was told by his supervisor of a report received by the latter that
the employee was soliciting cards during working time. The employee denied
any solicitations, whatever. The Board, without addressing the accuracy of the
report, declined to find an unlawful impression of surveillance, stressing that,
as in the instant case, the employee was informed that the report related solely
to worktime solicitation.
7 Creidle did not testify, and their is no indication of her union sentiment
or proclivity to discuss that issue.
8 The official transcript misidentifies Reed as ‘‘Wade.’’ The error is cor-
rected.
9 Management, under settled authority, is entitled to police work stations in
order to purge union literature from these areas. See, e.g., La Marche Mfg.
Co., 238 NLRB 1470, 1481 (1978).
10 Contrary to the General Counsel the record does not reveal that this was
‘‘the first Union meeting.’’
at the time presumably was engaged in company business. At
least, there is no suggestion to the contrary. Ohlrich, an open
supporter of the Union, admittedly was engaged in union ac-
tivity in what, for her, was a work area. The Board has rec-
ognized that ‘‘an employer’s mere observation of open, pub-
lic, union activity on or near its property does not constitute
unlawful surveillance.’’ Key Food Stores, 286 NLRB 1056
(1987). Neither DeLeeuw nor Peterson is charged with sur-
veillance or any other impropriety. In the circumstances,
even if Ohlrich’s union activity in the lunchroom was con-
fined to her break, she could not reasonably construe Genal’s
remark as suggesting that management operated on any pro-
clivity to watch employees as a means of impeding union ac-
tivity on nonworking time.6 Accordingly, it is concluded that
Genal did not create the impression that union activity was
subject to any unprivileged form of managerial action, and
the 8(a)(1) allegation in this respect shall be dismissed.
In addition to the foregoing, the complaint alleges that the
Respondent violated Section 8(a)(1) on or about February 26,
when Genal ordered employees to cease working together,
thus attempting to isolate and prevent them from engaging in
union activity.
This relates to Ohlrich’s return from medical leave on Feb-
ruary 26. That morning, Kathy Creidle, a part-time house-
keeper, was also present. According to Ohlrich, Creidle told
her that, ‘‘she was going to be working with me that day just
to make my day a little bit easier.’’ Genal’s intercession was
explained by Ohlrich, as follows:
Kathy Creidle and I were upstairs in the conference
room on the mezzanine, and we were getting ready to
clean it. . . . [Genal] . . . had come in there. . . . [A]t
first he asked me how I was and I told him. . . . [H]e
then explained to us that because of what was going on
in the plant that we shouldn’t be working together any-
more. . . . [W]e should each stay at our own end of
the shop. . . . [W]e really shouldn’t be seen taking
breaks together or anything like that because people
were starting to talk. . . . [H]e didn’t want us to get
into any trouble. He didn’t want anything to happen to
us. . . . [H]e said if you just stayed at your end, and
she stays on her end.
Genal admitted that, on this occasion, he told Ohlrich and
Creidle to stop working together. He avers, however, that
this directive conformed with normal procedures. Thus, typi-
cally, when these housekeepers worked overlapping hours,
one was responsible for the north end of the plant, the other,
the south end. There were two exceptions. The first was a
training period, which began in November 1989, prompted
by the need for substitute coverage because of Ohlrich’s fre-
quent absenteeism. Thus, Genal opted to have Creidle work
with Ohlrich in order that Creidle learn Ohlrich’s route, be-
cause during the latter’s absences, Creidle would be asked to
work full time, while required to work the entire plant. Genal
also permitted them to work together on occasions when
Ohlrich came off medical leave and was not fully recovered.
He avers that when on February 26, Ohlrich returned to
work, advising him that she was, ‘‘Okay,’’ he instructed
Creidle to return to her ‘‘normal route.’’
Genal’s explanation is at least partially verified by
Ohlrich’s own testimony that she and Creidle, when sched-
uled together, were responsible for separate sections of the
plant.7 I credit Genal. Considering my previously expressed
doubt as to Ohlrich’s reliability, it is concluded that Genal’s
action was consistent with established procedures and had
nothing to do with union activity. The 8(a)(1) allegation in
this respect shall be dismissed.
3. By Gary Tietyen, Karen Schneider, and Sam Reed
The complaint alleges that the Respondent violated Section
8(a)(1) on or about February 2 when the above management
representatives engaged in surveillance of union activity and
created the impression that such employee conduct was sub-
ject to surveillance. Tietyen is an admitted supervisor, and
Schneider and Reed, both subforeman, were admitted by the
pleadings to enjoy that status.
This allegation is based on the uncorroborated testimony
of Yvon Moede. She claims that after her attendance at a
union meeting, she received stepped up attention from super-
vision, sensing that from the first union meeting till late
March, she was being followed, and along with coworkers
was being watched. Tietyen, her supervisor, was allegedly
the principal offender, while Schneider and Reed8 were iden-
tified as having been observed spending excessive periods in
the lunchroom. Tietyen, according to Moede, seemed always
to be around when employees gathered, taking a position so
close that he could hear what was being said. She mentions
an occasion when she had a flyer announcing a high school
band concert with personal belongings at her work station;
Tietyen allegedly approached her, and glanced at the flyer.9
Moede furnished no foundation for any assumption that
she would be an apt target for improper surveillance. She
claims to have attended a union meeting, but neither identi-
fies when it took place,10 nor offers any testimony warrant-
ing an inference that management would have been sus-
pected this, or any other union activity on her part. She ac-
knowledged that supervisors watched employees prior to ad-
vent of the Union, but diminishes this history because they
did so ‘‘not that closely.’’
Heimerl confirmed that, during the union campaign, he in-
structed supervisors to assure that employees were doing
their jobs, an order that included closer scrutiny of employ-
ees in the plant. He justified this directive on a need in mid-
February 1990, to increase productivity due to a radical in-
crease in orders. In his words:
The problem was, as we got busier, and as the union
activity primarily picked up, we had some situations
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 It is virtually inevitable that an employee, after a rub with union activity,
might be betrayed by a false sense that he, she, or coworkers are being
watched for that reason.
throughout the whole company when people were get-
ting into a position where it was such a thing on the
floor, a discussion, that there was groups of people pri-
marily on the floor talking all the time about what was
going on. . . . Primarily production was sort of forgot-
ten about in a sense. . . . The drive wasn’t there. Too
many people had their minds on . . . other things. So
it was really one of the issues, and one of the reasons
why today I feel strongly that I am still digging out,
because I couldn’t get the productivity that I needed at
that point in time.
. . . .
I had a meeting with the . . . supervisors. And what
I expected the supervisors to do was, I said under no
conditions do you harass anybody on the floor. How-
ever, keep in mind that we do have a production plan
here that has to run. We have to supply our customers.
We cannot allow the people to be standing in the hall-
way, standing in the lunch room, when they are sup-
pose to be on their jobs working. What I want you to
do, I want you to walk up to them and ask them please,
would you go back to your job. And I don’t want an
argument. I just want you to politely do that. And from
what I understand, that did work. In some cases it
worked if they were just seen walking around by them,
get them motivated back to their machines.
The Act does not intrude on management’s right to mon-
itor employees within the plant where necessary to maintain
production and efficiency. Thus, as observed earlier, ‘‘it does
not constitute unlawful surveillance or creation of that im-
pression for an employer to observe that which is plain to
see while he is about his usual business or activities and
without his having deliberately and obtrusively placed him-
self to spy over his employees’ union activities . . . .’’
Well-Bred Loaf, Inc., 280 NLRB 306, 310 (1986). In short,
statutory policy does not necessarily demand that the overall
supervisory function be relaxed during an organization cam-
paign, where neither a tool of harassment, nor a pretextual
device calculated to impede the exercise of protected rights.
In terms of proof responsibility, generally, it is the effect
of management action, in the form of the tendency to impede
Section 7 rights, rather than the employer’s motive, that is
determinative under Section 8(a)(1). However, where man-
agement of the workplace is involved, illegality is not estab-
lished merely on realistic probability that employees hold to
an honest, albeit subjective, belief that union activity was a
factor.11 To accommodate competing interests that are
brought into play in the work environment, the monitoring
of employees in that area is presumptively legitimate, suffic-
ing alone, to meet the employer’s initial burden. In these cir-
cumstances, an illustration of the General Counsel’s burden
appeared in Southern Maryland Hospital, 293 NLRB 1209
(1989), where the Board stated: ‘‘As a general rule, manage-
ment officials may observe public union activity, particularly
where such activity occurs on company premises, without
violating Section 8(a)(1) of the Act, unless such officials do
something out of the ordinary.’’
Moede does not convince that this was the case here. Her
uncorroborated testimony that she and others were watched
closely and followed while on their breaks seemed exagger-
ated. In any event, it failed to furnish a persuasive vehicle
for discounting Heimerl’s credited testimony that stepped up
monitoring of employee behavior during that period was
based entirely on business exigency. In short, Moede’s
uncorroborated testimony was not regarded as a believable
basis for finding that managerial action exceeded privileged
limits or a departure from that which, in the circumstances,
was normal and necessary. Accordingly, it is concluded, in
this regard, that the Respondent neither engaged in any pro-
scribed form of surveillance, nor created the impression
thereof, under conditions violative of Section 8(a)(1).
C. The Alleged Discriminatory Reduction in
Piece Rates
1. Positions of the parties
The complaint alleges that the Respondent violated Section
8(a)(3) and (1) on or about April 9 by reducing the piece
rates of employees Marilyn Baumgardt and Barbara Talley
because of their union activity. The Respondent denies that
this was the case, arguing that it took this step as a correc-
tive measure solely in response to an operational change that
enabled Baumgardt and Talley to earn at disproportionately
higher wages than other machine operators performing like
work.
2. The rate change
At times material, Baumgardt and Talley operated one of
six Richardson Chucking Machines (XA) machines. These
units perform checking and boring operations in turning out
a variety of components. All are located in the precut depart-
ment. Baumgardt, on the second shift, and Talley, the first,
operated the unit designated ‘‘XA-2.’’ They alone were per-
manently assigned to, and engaged almost entirely in, cutting
dowels on the ends of slats, which later would be assembled
into rails for juvenile cribs. In essential respects, their earn-
ings, like operators of other XA machines, were based on a
piece rate, incentive system.
The Respondent does not deny that it was aware that these
employees had manifested prounion sentiment. Baumgardt
and Talley, without contradiction, testified that in March,
prior to the rate adjustment, they began wearing union but-
tons. They were the only operators in their department, on
their respective shifts, to do so, and there is no evidence that
others in any fashion had exhibited a prounion sentiment.
On Friday, April 6, Baumgardt and Talley were called to
the office of Jeffrey Prange, the human resources manager.
Plant Superintendent Al Johnson, DeLeeuw, and Tietyen
were also present. At that time, the rates in effect for the slat
operation were .0040 for those of 6 inches or less and .0039
for longer lengths. In the course of the meeting Johnson in-
formed that Baumgardt and Talley were making too much
money and that effective Monday, April 9, the rates would
be cut to .0030 on all slats. Baumgardt argued that they were
doing a good job, that quality was good, that they worked
through breaks, while questioning why their rates would be
5NU-LINE INDUSTRIES
12 Talley testified, again without corroboration that she asked if the rates
were being cut because of the Union, but there was no response. Johnson de-
nied any mention of the Union in conjunction with the rate adjustment. Talley
was not believed.
13 This memo was dated April 10. Talley testified that, on inquiry, Tietyen,
after checking with Heimerl, informed her that this document bore that date
‘‘because it was typed previously.’’ Talley was not a credible witness. My
doubt that this document existed on April 10 is nothing short of total.
14 The locks were removed largely in consequence of pleas by Baumgardt,
Talley and another operator, Jane Burhrandt that quality could be maintained,
overtime diminished, and greater productivity achieved if this step were taken.
15 Prior to September 1989, all six of the XA machines were subject to op-
eration with locks. At that time, all locks were removed. This did not mitigate
the advantage acquired by Baumgardt and Talley, in terms of earnings poten-
tial, as against other operators. Johnson credibly explained that, after Septem-
ber 1989, all other XA machines labored under design complexities, which re-
quired a continuation of output ceilings in order to preserve quality.
the only ones cut. Management explained that they were just
making too much money.12
As matters turned out, Johnson’s boss, Heimerl, was not
totally enchanted with the new rate. Thus, on April 11,
Baumgardt and Talley were called to Heimerl’s office, and
shown their time records which included earnings and out-
put data. Heimerl requested that they review this data and
asked that they come up with ‘‘a better rate’’ if they did not
like what they were getting. However, before they could do
so, Heimerl that afternoon canceled further consideration of
the rate issue. He advised the operators that the Company
had just received unfair labor practice charges concerning the
rate reduction, and, ‘‘He had to talk to his attorneys first,’’
as he did not wish to appear to be involved in a ‘‘bribe.’’
On April 16, Heimerl reopened these discussions, again al-
lowing Baumgardt and Talley to review the
production/earnings sheets, asking them to study the data and
propose an appropriate rate. Two days later, Heimerl asked
Talley if they had arrived at anything. She admittedly
replied:
[A]fter looking into it, finding out what other people
were making in the plant, average wages, after timing
how fast other . . . XA operators were running parts
and how much money they were making, I did specify
a couple of them to him. Which . . . did calculate quite
a bit higher than what we were making. I said that I
thought the rate was very fair where it was before they
cut it.
On April 20, Heimerl took it on himself to raise the rate to
.0034 for all lengths. On that date, Talley and Baumgardt re-
ceived a memo which also was posted for attention of all
employees, and which stated as follows:
In September of last year it was determined that the
speed on XA machines could be increased without sac-
rificing the quality of slats being produced. Obviously
if this proved to be correct it was estimated that pro-
duction of slats could increase by as much as 1/4 the
previous level.
The result however showed that the levels of produc-
tion attained were considerably higher than expected.
The rate was then set at .0030 per piece. After fur-
ther consideration, study and input from employees, it
is felt that the rate should be set at .0034 per piece.13
The Respondent, in contending that the April adjustments
had nothing to do with union activity, describes Baumgardt
and Talley as having sustained an artificial increase in earn-
ings following removal of locks on the XA-2 in September
1989. In support, it is argued that their incentive rates were
subject to ongoing monitoring since that date, and that the
determination was finally made in April 1990 following
complaints by coworkers as to the disproportionately higher
earnings of the slat operators.
3. Employee anticipation and concerns regarding
rate reduction
Baumgardt and Talley do not deny that prior to September
1989, as a quality assurance measure, locks were placed on
the XA-2 to prevent the operators from effecting adjustments
which would enhance the pace of the machine. They agree
that removal of the locks at that time allowed operation at
faster speeds and increased output.14 This translated into
greater earning opportunities.15 For example, Baumgardt ad-
mitted that she made a lot more when the locks were re-
moved, reaching almost $2 hourly more than other operators
in her department, and substantially above the departmental
average. She also admitted that Heimerl had told her that co-
workers in the department were upset with that differential.
Finally, she conceded that the downward adjustment in April
came as no surprise.
Talley’s accounting is another matter. If believed, her tes-
timony would offer a simplifying boost to the claim of dis-
crimination. She describes the April revision as a complete
reversal of no-cut assurances articulated repeatedly and at
various levels of management before her involvement with
the Union. Secondly, unlike Baumgardt, Talley attempted to
shift attention away from the heightened productivity of the
XA-2, by attributing her increased earnings to hard work, in-
cluding her practice of ‘‘always’’ shunning breaks to work
through them.
Talley avers that prior to April 6, inspired by a coworker,
she inquired of management as to a possible cut in rates be-
ginning in early March. Talley explained that at that time she
was running her machine at an inordinately fast pace when
Jane Burhrandt, another operator, warned: ‘‘You better slow
down, he will cut the rates.’’ Talley claims that for this rea-
son she collared Plant Manager Johnson, who, according to
Talley, stated that at that time there were no plans to cut the
rates. She avers that, despite this alleged assurance, 2 days
later, she sought to confer with Prange. She asked him if
they would cut the rates because the machine was running
faster. He allegedly replied:
[N]o they don’t do that anymore. They used to do that
when Ken Stewart owned the company, before Huffy
took over about almost three years ago. . . . He said
that unless some of the job duties were taken away, en-
abling the person to put out more production and make
up for it that way, make up for the pay, he said that
that would be monitored to make sure that it balanced
out.
In reference to the statement by Prange that rates aren’t cut
anymore, Talley claims to have made a comment, ‘‘to the ef-
fect of good, because of the union—the union being
around.’’
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In addition to Johnson and Prange, on cross-examination, Talley admitted
to addressing the issue to General Foreman Roger Firgens, asking him: ‘‘If
we are all going to be cut?’’ She attributes this inquiry to rumors circulating
about a change in the pay system, including a possible conversion to a straight
hourly system.
17 Documentation establishes that slat rates were cut in each of the 3 years
preceding 1986. With this in mind, it is noted that Talley testified that, in Sep-
tember 1989, when the locks were removed, she asked Mike Schilling—then
personnel director, but no longer employed by the Respondent—whether the
rates would be cut. Schilling allegedly told her that quality was the concern,
and other than that he did not care how much they ran and how much money
they made; i.e., ‘‘the more we produce was better for the company and better
for us.’’ Talley testified that Schilling twice stated, ‘‘that rates would never
be cut again at Nu-Line.’’ Baumgardt did not confirm this testimony. She stat-
ed that, to her knowledge, management did not discuss what would happen
to the rates. While I believe that Talley made the inquiry, and was prompted
by the same self-interest and concerns that actuated her to take similar steps
in March 1990, I reject her testimony that she was told that there would be
no reductions.
18 It would not surprise me in the least if Talley, who initially did not sup-
port the Union, changed her mind because of concerns for a rate revision. She
confirms that she did not begin to wear her button until a week or two after
Baumgardt began wearing her union button. Baumgardt testified that she first
wore a union button on March 22. She claims that she changed her mind about
the Union when, on March 6, the setup rate applicable to nonproductive
worktime was altered to a level beneath her average hourly earnings. In any
event, I did not believe Talley’s testimony, that during the second of several
conversations with Talley in which she informed him of her change of heart
concerning the Union, Tietyen said nothing, but walked off toward the office.
Also rejected is her further testimony that, on her inquiry as to why he went
to the office, Tietyen explained that Heimerl told him to report back on any-
thing Talley said.
19 The XA-2 on the third shift had no regular operator at the time of the
change. Baumgardt testified that Terry DeLeeuw, the sister of Supervisor Tom
DeLeeuw, at that time, was the third-shift operator. According to Baumgardt,
DeLeeuw was replaced by Lorain Anchor when the rate was lowered. How-
ever, Heimerl explained that Terry DeLeeuw was a junior employee, who
lacked established seniority and was moved from job to job. Anchor, a senior
employee, had complained that DeLeeuw was running the XA-2, allowing her
greater earning potential. It was decided to replace DeLeeuw with Anchor.
Based on Heimerl’s credited testimony, the timing of this action is considered
neutral and is not among the factors contributing to an inference of unlawful
discrimination.
Talley’s testimony was so unbelievable as to reenforce the
Respondent’s testimony that management at all times held
open the possibility of an incentive cut. Her initial denial of
personal concern for a potential cut bordered on the out-
rageous. In early March, she admittedly initiated separate
discussions of this issue with the Respondent’s production
manager, its personnel director, and its general foreman.16
Apparently, in her mind, one, two, or even three assurances
were not enough. All this, not out of her personal interest,
but as a gesture for a coworker, Burhrandt,17 whose wage
standards apparently were not even in jeopardy. My rejection
of her testimony is not only enforced by common sense, but
by her further testimony acknowledging her own personal
concern:
MR. GILL: You wanted guarantees from management
in early March that your rate would not be cut, didn’t
you?
MS. TALLEY: I wanted to hear it.
MR. GILL: And you were not given those guarantees
in early March were you?
MS. TALLEY: Yeah. . . . Jeff Prange gave me the
example about the job duties and those things. He said
that the rates wouldn’t be cut. They don’t do that any-
more.
MR. GILL: You were clearly concerned in early
March that your rate was still going to be cut, weren’t
you?
MS. TALLEY: I don’t think you—Well, there must
have been some concern there.
Talley’s concern was obviously personal, and far deeper
than she would have me believe. I am convinced that dating
back to September 1989, she labored under fear that a down-
ward adjustment was in the offing, and that her inquiries
concerning a possible rate cut were sparked by something
more tangible than either the offhand remark by Burhrandt
or the rumors concerning the general pay system.18
On the critical issue of what Talley had been told concern-
ing possible rate reduction, Production Manager Johnson tes-
tified that after agreeing to remove the locks, he informed
the operators that the increased output capacity would be
‘‘viewed.’’ He adds that when they expressed concern as to
a possible rate change, he informed them that he could not
guarantee that the rates would remain the same. DeLeeuw
confirmed that he told Baumgardt that their was no guarantee
that the rates would not be adjusted. General Foreman
Firgens testified that he specifically told Talley when the
locks were removed that he could not guarantee that the rates
would remain the same. Prange testified that when Talley in-
quired as to this issue, he advised that the rates were still
under study, ‘‘but that it was my feeling that if the rate was
to be reduced, that it would be reduced only enough in order
to compensate for the advantage the machine had given them
by having the locks taken off.’’ Apart from misgivings con-
cerning Talley’s credulity, it is entirely unlikely that any one
manager, let alone several, would take an unqualified stance
that incentives would not be cut. Here again, Talley was not
believed.
4. Concluding analysis
The threshold issue is whether the General Counsel’s
prima facie case might survive Talley’s misguided testimony.
Her attempt at overstatement merely served to enforce my
acceptance, generally, of the Respondent’s position both that
rates must be established and modified periodically to assure
comparable opportunities for earnings between like jobs, and
that the September 1989 removal of operating constraints
from the XA machines, offered the alleged discriminatees a
greater opportunity to enhance their earnings than was held
by other XA operators.
Yet, these findings, themselves highly favorable to the de-
fense, do not address the question of why the corrective ac-
tion was timed to correspond with the union campaign. One
explanation is offered by the the General Counsel; to wit: the
rate revision was a ‘‘hasty response’’ triggered by the opera-
tors’ overt declaration of union support. In my opinion,
prima facie evidence warrants an inference that this was the
case.
The General Counsel’s cause is aided initially by the nar-
row focus of the 1990 reduction. Thus, only the earnings of
Baumgardt and Talley were affected.19 They just happened
to be the only XA operators brandishing union insignia on
their respective shifts. To make matters worse, it does not
appear that any other operation was subject to a cut in rates
then or at anytime since January 1986.
The adjustment itself was far from trivial. Since January
1989, a premium rate of .0040 applied to 6-inch slats, with
7NU-LINE INDUSTRIES
20 Insofar as disclosed on this record, never before had there been a single
rate for the slat operation.
21 Earlier, however, between 1983 and 1986, these rates did not increase,
but basically, were on annual declining curve. R. Exh. 2.
22 An equitable incentive system would allow parity in earnings potential to
all whose operations involve similar dexterity, skill, and energy. This test
would be offended by rates which preclude a higher level of earnings, irre-
spective of how hard the operator might work.
23 Johnson testified that there is a record of how much every XA machine
operator makes, and though urged by me to produce this documentation, it was
never produced. It was also my impression that the Company does not rou-
tinely compile summaries reflecting the average earnings of XA operators on
an individual basis. Indeed, no such data was prepared for this litigation.
Needless to say, this record is devoid of such documentation.
24 Johnson offered no indication as to just how the ‘‘capabilities’’ of the five
other machines were measured. He does not describe any documentation con-
sulted in this connection, nor is there indication in the record that data of this
kind was ever available in any form. Moreover, if productivity rates had been
weighted into an overall equation, the precise formula involved could have
been defined on the record.
25 While evaluating comparative rates between jobs which embrace a mul-
titude of distinct functions, can one conclude that job content is effectively the
same without a motion study.
26 The record indicates that Heimerl’s involvement in the readjustment proc-
ess was limited to the rollback of the .0030 rate, not its promulgation. It is
important to note that Heimerl fails to explain the mathematical calculations
or data that supported the incremental figure that he adopted to compensate
the employees for the nonslat work.
all other lengths earning .0039. Management’s action on
April 6 eliminated the dual rates, substituting a single rate
of .0030 per unit,20 a reduction which at a minimum amount-
ed to 23 percent. Indeed, the dramatic nature of this reversal
is underscored by comparison of the .0036 and .0037 rates
which were in effect in January 1986. Until the April 1990
change, these were the lowest manifested on this record. Fi-
nally, the cut was without precedent in recent years; it
bucked the trend, for, at all times since January 1986, these
rates had been on a consistent ascent.21
The timing of the reduction, shortly after Baumgardt and
Talley brandished union insignia, also attracts attention. It
represents a coincidence which itself is inflamed by a facial
inconsistency with the Respondent’s published practice of
making such revisions in January. In this respect, one’s
curiousity is hardly allayed by the Respondent’s assertion
that the action in April, in the midst of the organization
drive, was actually driven by an event taking place 6 months
earlier.
In my opinion, these factors are sufficient to shift the bur-
den to the Respondent to neutralize the inference of illegal-
ity. While it is entirely possible that an adjustment might
have been appropriate at some time in the future, considering
the inaction and willingness to accept earnings disparities
over a number of months, the Respondent must persuade that
April would have provided the setting for the revision even
if the known union advocates had not engaged in activity
protected by the Act.
This burden is hardly enhanced by the Respondent’s testi-
mony as to the methodology followed in arriving at the April
9 adjustment. In this regard, there is no quarrel with
Heimerl’s entirely plausible testimony that any incentive sys-
tem must be administered with a sense of fairness to all simi-
larly situated employees.22 As a corollary, however, parity
through rate revisions is achievable only if the adjustment
process is faithful to logic and objectivity. Thus, changes of
this kind inevitably disrupt the status quo, and employee dis-
content will be mitigated only if the foundation for the new
earnings pattern is communicable in understandable terms.
In this instance, the Respondent’s evidence leaves the clear
impression that the 23-percent reduction sustained by Talley
and Baumgardt was a byproduct of arbitrary action. First,
there is no suggestion that this determination was pursuant
to any single historic, mathematical formula. The Respondent
concedes that it has never utilized engineering studies in sup-
port of rate changes. Instead, in 1990, the Respondent ap-
pears to have used a methodology so vague that management
representatives who participated in the process failed to pro-
vide a clear definition of the underlying computation, leaving
this record to stand devoid of any clear, consistent picture of
the arithmetical considerations and data used in reckoning
the .0030 rate.
Production Manager Johnson states that the April decision
was made between himself, General Foreman Roger Firgens,
and the human resources department. No attempt was made
to reconstruct the formulation and data used in arriving at the
.0030 rate, nor was there explanation for merger of the sepa-
rate rates into a single rate. Johnson was the only witness ex-
amined as to the process. Initially, he testified that the rate
was based on a comparison of 1989 earnings of XA ma-
chines other than XA-2,23 with slat production earnings on
the latter during January, February, and March 1990. How-
ever, he would complicate this formulation through subse-
quent testimony that units produced became a factor, because
the rate was based on ‘‘the average . . . capabilities of the
other five machines.’’24 The concept was blurred to myopia
when Johnson went on to explain that ‘‘the wage ceiling has
the biggest impact . . . . Output is a concern.’’ In sum, as
far as the April 9 revision is concerned, his testimony offers
no basis for associating the result with any equation or meas-
urable system of values.
Heimerl’s definition of the objectives sought in maintain-
ing an incentive system was simply expressed and easily un-
derstood. On the other hand, as was true of Johnson, his ex-
planation of how this would be achieved was neither consist-
ent nor enlightening. He testified that, over 25 years, rate ad-
justments had been made without benefit of an industrial en-
gineer. He describes the Respondent’s methodology and ob-
jectives in achieving pay equity as follows:
[W]henever . . . a rate starts wandering either high or
low, you immediately get complaints from the floor by
. . . employees. We try to keep it relatively close. I
guess there is no magic number. You take into . . . ac-
count the dollars to be earned and the pieces to be man-
ufactured. So virtually speaking we try to keep it in a
50 cent range if it is at all possible, of the overall aver-
age for that same type of job.25
While the overall average of the same type job might be as-
certainable, interaction between earnings and ‘‘pieces to be
manufactured’’ in any formula used in this process is left to
imagination. Management apparently played the revision
issue by ear, having no fixed equation for computing rates.
As for his precise involvement, Heimerl asserts that he de-
cided that .003 was too low and he raised it on April 20 be-
cause it took into account only the slat operations, when in
fact Baumgardt and Talley were doing other things as well.26
He testified that he made his computations alone, after his
secretary summarized the timecards of Baumgardt and
Talley, comparing slat earnings against the departmental av-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Heimerl’s competence to evaluate the timecards was brought into ques-
tion, on cross-examination, when he professed to a lack of familiarity with the
functional code entries, being unable to discern whether or not they referenced
slat operations.
28 Consistent with this criteria, Heimerl did not advert to ‘‘departmental
averages’’ during earlier testimony suggesting that the focus was on groupings
more individualized. At that time he related:
We take four or five different operators, we look at the possibility of the
average production they can do, realizing that you are going to have
highs, lows in there. And so then we average the job.
Obviously, the ‘‘departmental averages’’ would not establish an overall pro-
duction average for similar jobs.
29 My reservations concerning Heimerl’s testimony that he utilized the de-
partmental averages in readjusting the rates is based on more than this incon-
sistency. The Respondent describes these summaries (R. Exhs. 3(a) and (b))
as indicative of ‘‘the average rate of machine operators in the precut depart-
ment.’’ However, it is important, first, to recognize that the figures are com-
bined and not individual, and, hence, do not differentiate between the XA-2
and other machines. More importantly, prior to their admission, the General
Counsel used these documents—then marked G.C. Exhs. 14(a) and (b)—in
cross-examining Johnson. The latter testified, with encouragement from the
Respondent’s counsel, that this data was irrelevant since the averages were de-
partmental and, for that reason, did not reflect the relationship between the
XA-2 operators and those on the other five machines.
30 Johnson testified that company records revealed the earnings of all XA
operators. This data would be the only fair measure of the appropriate slat rate
on the XA-2. No comprehensive figures pertaining to the other five XA ma-
chines and their operators were introduced.
31 Johnson testified that rates on the six XA machines were not on a con-
stant annual rise. He averred that said rates had been reduced in the past in
order to keep earnings in line with those of operators on other machines en-
gaged in the same type of production. Documentation does not disclose that
this had taken place at any time since 1986.
32 This testimony is hardly of comfort to the Respondent. Thus, the first ad-
justment made in April was subsequently reconsidered, and then supplanted by
a new, higher rate. By logical extension of Johnson’s reasoning the raise an-
nounced on April 6 would have been either ill timed or inappropriately consid-
ered.
erage.27 On cross-examination, Heimerl adds that his deter-
mination also took into consideration ‘‘the other rates on the
other XA machines . . . [a]nd the pieces per minute, pri-
marily, that could be done.’’28 Heimerl at no time explained
how the diverse comparative data was correlated before used
against the earnings of Baumgardt and Talley, nor does he
identify the source of the rate/output data, how it was com-
piled, or whether it previously existed. Certainly, no docu-
mentation was offered in this area.29
In sum, the testimony throws little tangible light on the
method followed in reckoning the single consolidated .0030
rate. Apparently made without benefit of a routine, histori-
cally applied equation, soon thereafter, correction was re-
quired. Moreover, no clear, consistent picture is presented as
to just what records were consulted, if any, in assessing indi-
vidual average earnings of other XA operators. Indeed, I am
uncertain as to whether such records even existed. Though
prodded by me to produce such documentation, after being
told that it existed, no statistical summaries of this kind were
never offered. Instead, the focus of the computation, shifted,
with Heimerl’s subsequent testimony that departmental aver-
ages were the key to readjustment of the rates.30 In this light,
one might assume that the pertinent, available data would
not, at least as of April 9, have buttressed the Respondent’s
position that an adjustment was warranted at that time. See,
e.g., Advance Transportation Co., 299 NLRB 900 (1990).
Thus, a deficiency in the proof exists which lends a measure
of support to the General Counsel’s charge that rate reduc-
tion was ‘‘a hasty response to the Union activity.’’
This assessment is bolstered by the failure of the defense
to offer a believable explanation as to why the rate adjust-
ment was deferred for more than 6 months and not enter-
tained until the union campaign was in full gear. In this re-
spect, Johnson insists that the April adjustments were con-
sistent with company practice. He relates that the most ap-
propriate time to adjust a rate is after a history has been es-
tablished, enabling an assessment of the machine’s capacity
for quality production and earnings so as to permit compari-
son with other machines. He testified that, after the Septem-
ber 1989 lock removal, in consequence of the unfettered
operational capacity of the XA-2, it was discovered in No-
vember or December that operators on that unit earned dis-
proportionately higher rates than other XA operators who
performed no less complicated tasks.31 Obviously, however,
this discovery did not produce a recision under the Respond-
ent’s published criteria. Thus, the Company’s employee man-
ual states:
A review of wages is made at the beginning of each
year and any adjustments indicated by the review will
be made at this time.
Johnson and Heimerl explain, however, that action was de-
ferred in January because the earnings of Baumgardt and
Talley had not plateaued, but were still escalating. Johnson
attempted to explain that deferral until earnings stabilize has
the salutary effect of preventing a premature assessment,
thus, avoiding additional corrective rate changes.32 In short,
the Respondent asks that I believe that, in January, the opera-
tors’ earnings had not reached a ceiling, causing management
to freeze the XA-2 rates in the interest of further study.
If acceptable in terms of January’s inaction, this testimony
fails to reach the critical issue as to why April. In this latter
connection, there is no testimony whatever, as to how, why,
when, or on what basis a determination was made that the
earnings of Baumgardt and Talley had leveled off at that
point. In fact, the figures available to the Respondent as of
April 1990 do not substantiate that this was the case. Thus,
during the critical timeframe, the average earnings of Talley
and Baumgardt are summarized below:
Prelock Removal
Yr./Qtr. Talley Baumgardt
1989
1st $9.02 $8.79
2d 9.55 9.39
3d 9.53 9.25
Postlock Removal
4th 10.03 9.98
1990
1st 10.15 10.78
From this, it is evident that Baumgardt averaged $9.98 dur-
ing the fourth quarter of 1989—this, the first quarter after the
locks were removed, reflected only a 7.8-percent increase.
However, her average earnings ascended to $10.78, an 8-per-
cent increase, during the quarter ending March 31, 1990.
Against this background, one might more readily conclude
that in her case, as of April 6, her earnings continued on a
radically steep ascent. Although Talley did not show the
same upward curve, Baumgardt’s continuing advance, stand-
9NU-LINE INDUSTRIES
33 Heimerl’s attempt to explain this by reference to a freeze in certain rates
dating back to July 1989, tends to suggest that the departmental increase may
not have been attributable to greater productivity. This observation does not
diminish the impact of growth in departmental earnings on pay comparability
and the equity between rates.
34 The timing is not explainable under Respondent’s evidence that employ-
ees had complained about the level of earnings on the XA-2. While I have
no doubt that such reports were received, no attempt is made to isolate their
timing to periods relevant to the rate adjustments. Thus, Johnson avers that
he received reports from Firgens that two operators engaged in the same type
work as Baumgardt and Talley had complained that ‘‘they didn’t have the op-
portunity to make the same money doing the game job.’’ However, neither
he, nor Firgens, testified as to when they learned of this dissatisfaction.
Heimerl testified that, in January, he received an employee inquiry through the
management hotline as to why the rate and earnings on the XA-2 was so high
compared to all others in the department operating XA machines. Apart from
general expressions of concern in 1989, this was the sole complaint that ever
case to Heimerl’s attention. In response, he checked the rates, only to be told
that actual production on the XA-2 was still being monitored. He apparently
did nothing further.
35 This remedy ought not be construed as endorsing any notion that the in-
centives existing prior to April 9 constitute an immutable floor on the
discriminatees’ rates. The instant unfair labor practice finding does not ignore
the need for balanced earning opportunities under any incentive system, nor
does it deny the possibility that achievement of that goal may periodically re-
quire downward rate revisions. Instead, the premise for the unlawful conduct
lies exclusively in the fact that the Respondent took action at an inappropriate
time, thus, failing to counter the inference that it acted on proscribed consider-
ations. Accordingly, the Respondent should not be foreclosed, during compli-
ance stages, from limiting its backpay obligation, through clear, convincing
proof that the preservation of a fair incentive system required that XA-2 slat
rates be cut at some time in the future on grounds bearing no relationship to
union activity. See, e.g., Blue Square II, 293 NLRB 29 fn. 2 (1989).
36 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
ing alone, reflected an ongoing imbalance in earnings poten-
tial.
In addition, Talley’s earnings experience casts a shadow
on the Respondent’s claim that April presented the appro-
priate opportunity to achieve parity between operator earn-
ings. For, if that were the true objective, it would seem that
an adjustment would have been necessary much earlier.
Thus, during the three quarters of 1989 when the XA-2 was
constrained, Talley’s average earnings grew by a whopping
10.3 percent. (See R. Exh. 5.) No effort was made to adjust
rates based on enhanced earnings during this period. Yet, the
removal of the locks in September 1989, the factor which ac-
cording to the Respondent, foretold the April adjustment, re-
flected a proportionately lower increase in her productivity.
Thus, between October 1, 1989, and March 31, 1990, after
removal of the locks, and during a period of heightened de-
mand for productivity, her average earnings grew at a lesser
6.5 percent rate. In fact, after the April adjustment, using the
second quarter of 1990 as the barometer, Talley fell below
what she earned during the third quarter of 1989—the last
in which the locks were in place—by a substantial 7 percent.
(R. Exh. 4.) Finally, while the departmental average earnings
increased during the first two quarters of 1990,33 Talley’s
personal average fell by 11.5 percent.
These questions emerge from a proceeding in which the
Respondent had every opportunity to present the documenta-
tion requisite to any fair calculation of this significany rate
adjustment.34 That which was offered was materially incom-
plete or pointed in an opposite direction. The omissions deny
foundation for any reasoned conclusion that management
possessed evidence that slat earnings had reached a plateau
in April, a void compounded by its own proof, at least in
the case of Baumgardt, that such earnings continued to esca-
late in that timeframe. Finally, the credibility of the Re-
spondent’s action is rendered suspect by data suggesting that
the need to establish pay equity was just as propitious in Jan-
uary, the traditional month for incentive revisions, as April,
when the Union drive was in full swing. Considering the
omissions and contradictions in the Respondent’s proof, the
subjective denials that union activity was an influential factor
are substantially less persuasive than the inference that the
April adjustment was nonscientific, whimsical, and arbitrary
because a hastily conceived reprisal. Accordingly, the Re-
spondent has not demonstrated by credible proof that it
would have taken the same action if Baumgardt and Talley
had not engaged in union activity, and, hence, it is concluded
that the Respondent violated Section 8(a)(3) and (1) of the
Act by modifying their rates at that time.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By on April 9, 1990, reducing the incentive rates of
Marilyn P. Baumgardt and Barbara A. Talley in reprisal for
their union activity, the Respondent has violated Section
8(a)(3) and (1) of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having discriminatorily reduced the incentive rates of em-
ployees Baumgardt and Talley, the Respondent shall be or-
dered to restore those in effect prior to April 9, 1990, and
make them whole for any loss of earnings they may have
sustained by reason of the discrimination against them, with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).35
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended36
ORDER
The Respondent, Nu-Line Industries, Inc., Suring, Wiscon-
sin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging union membership by reducing incentive
rates, or in any other manner discriminating with respect to
wages, hours, or other terms and conditions, or tenure of em-
ployment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore the incentive rates enjoyed by Marilyn P.
Baumgardt and Barbara A. Talley, as they existed prior to
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
April 9, 1990, and make them whole for earnings lost as a
result of the discrimination against them, with interest, in the
manner set forth in the remedy section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in Suring, Wisconsin, copies of the
attached notice marked ‘‘Appendix.’’37 Copies of the notice,
on forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) 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
The National Labor Relations Board has found that we vio-
lated 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 representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage union membership by reducing
incentive rates, or in any other manner discriminating against
our employees with respect to wages, hours, or other terms
and conditions, or tenure of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights set
forth at the top of this notice.
WE WILL restore the incentive rates enjoyed by Marilyn P.
Baumgardt and Barbara A. Talley, as they existed prior to
April 9, 1990, and make them whole for earnings lost as a
result of the discrimination against them, with interest, in the
manner set forth in the decision of the administrative law
judge.
NU-LINE INDUSTRIES