Nudor Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 927 (N.L.R.B. 1986)

NUDOR CORP. 927
Nudor Corporation and United Electrical , Radio and
Machine Workers of America . Cases 25-CA-
13997 and 25-CA-15642
30 September 1986
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 11 June 1984 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Respondent filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that all the outstanding
8(a)(1) allegations in Case 25-CA-13997 were fully
remedied by the Respondent's compliance with the
60-day notice posting under the terms of the settle-
ment agreement in Case 25-CA-13997; that Jack
Hough's discharge alleged as unlawful in Case 25-
CA-13997 did not violate Section 8(a)(3) of the
Act; and that inasmuch as Jack Hough 's discharge
did not violate the Act, it was unnecessary to re-
solve those allegations of postsettlement miscon-
duct involving Section 8 (a)(3) and (4) raised by the
complaint in Case 25-CA-15642.
The General Counsel contends in the exceptions
that the judge should have first considered whether
the Respondent 's failure to rehire or recall Hough
was an unfair labor practice as alleged in Case 25-
CA-15642. If he found a violation, the judge
should have set aside the settlement agreement in
Case 25-CA-13997; that he then could have also
found that certain presettlement conduct alleged in
Case 25-CA-13997 also violated the Act; or, as he
did, he could have found that there was no preset-
tlement misconduct and dismissed the complaint in
Case 25-CA-13997. Conversely, the General Coun-
sel argues, had the judge found that there was no
postsettlement violation , the proper order would be
to dismiss the postsettlement complaint and to rein-
state the settlement agreement in Case 25-CA-
13997 . In any event , the General Counsel argues,
the judge 's initial obligation was to review the alle-
gations in the postsettlement complaint in Case 25-
CA-15642, not, as the judge did, to decide the
merits of the presettlement complaint in Case 25-
CA-13997. We find merit in the General Counsel's
exceptions.
As more fully set forth in the judge 's decision,
the first complaint ' issued 10 November 1981 al-
leging the Respondent had violated Section 8(a)(3)
of the Act by discharging Jack Hough , and Section
8(a)(1) by interrogating , threatening , and creating
the impression of surveillance of its employees'
union activity . The amended complaint issued 24
February 1982 alleging additional counts of interro-
gation , threats, and creating the impression of sur-
veillance . Thereafter, a settlement agreement was
approved by the Acting Regional Director on 26
March 1982 . Pursuant to the settlement, the Re-
spondent paid Jack Hough $2040 in backpay and
agreed to offer him reinstatement . A posting provi-
sion to remedy the 8(a)(1) violations was included.
The Respondent executed the settlement agreement
on 11 March 1982 and the Union did so on 15
March.
On 18 March 1982 the Respondent was pur-
chased by Phillips Industries , Inc., as part of its
subsidiary Malta Division , and the backpay and
posting obligations were discharged by Phillips.
The Respondent continued to manufacture the
same products in the same way, with basically the
same employees.
On 12 August 1983 , a second complaint issued2
alleging violations of Section 8(a)(1), (3), and (4)
based on the Respondent's refusal to rehire Hough
from a layoff for having engaged in union activity,
for having given testimony (an affidavit) in the
prior case, 3 and for having been the subject of the
charge in the prior case . Subsequently, the Region-
al Director concluded that in view of the miscon-
duct alleged in the 30 June 1983 charge ,4 the Re-
spondent had breached the 26 March 1982 settle-
ment agreement by refusing to rehire Hough. On
30 September 1983 the Regional Director notified
the Respondent of the withdrawal and vacation of
the prior settlement agreement and issued an order
consolidating cases and complaint alleging, inter
alia, the various 8(a)(1) allegations and the dis-
charge of Hough as an 8(a)(3) violation.
At the consolidated hearing, the General Coun-
sel took the position that Jack Hough was fired by
the Respondent because of his union activity, and
the Respondent argued that Hough was discharged
because he ran an excessive number of bad parts
without checking them . The judge concluded that
the Respondent should prevail on the grounds that
Hough ran a pallet of bad parts on the day of his
' Case 25-CA-13997.
' Case 25-CA-15642.
' Case 25-CA-13997.
* Case 25-CA-15642.
281 NLRB No. 126
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, and, after the machine was reset, imme-
diately ran off another pallet of bad parts; and
Hough did not check for defects that were observ-
able to the naked eye. The judge concluded that
Hough displayed negligence and incompetence,
which transcended any reasonable limits, and that
his discharge did not violate Section 8(a)(3) of the
Act. The judge also found the separate 8(a)(1) alle-
gations in Case 25-CA-13997 had been remedied
fully by the earlier notice posting. He further found
it was unnecessary to resolve those allegations of
postsettlement misconduct raised by the complaint.
We disagree.
The Board has often held that an unfair labor
practice will not be found based on presettlement
conduct unless there has been a failure to comply
with the settlement agreement, or subsequent unfair
labor practices have been committed.5 We fmd that
the judge mistakenly decided and dismissed the
8(a)(1) and (3) allegations in the complaint, which
had led to the settlement agreement in Case 25-
CA-13997, while, at the same time, finding it un-
necessary to resolve those allegations of postsettle-
ment misconduct raised by the 8(a)(1), (3), and (4)
allegations in the postsettlement complaint in Case
25-CA-15642.
Accordingly, we fmd that the issue in Case 25-
CA-15642 regarding the Respondent's refusal to
reinstate Jack Hough has not been considered by
the judge; that it first must be considered before
any analysis of the allegations in Case 25-CA-
13997 should be undertaken; and we shall order
this proceeding be remanded to the judge for a fur-
ther decision consistent with this Decision and
Order.
ORDER
It is ordered that this proceeding is remanded to
Administrative Law Judge Peter E. Donnelly for
the purpose of considering the allegations in the
postsettlement agreement complaint in Case 25-
CA-15642; to determine what, if any, part of the
settlement agreement should be set aside or rein-
stated in Case 25-CA-13997; and if that settlement
agreement is set aside, what disposition should be
made of the 8(a)(1) allegations in Case 25-CA-
13997.6
" Laborers Northern California District Council (Joseph's Landscaping
Service), 154 NLRB 1384 (1965) In another case, the Board held that
Based on this postsettlement unfair labor practice, Respondent 's preset-
dement conduct clearly may be the basis for further unfair labor practice
findings" Interstate Paper Supply Co, 251 NLRB 1423 (1980).
9 The General Counsel does not except to the judge 's dismissal of the
8(a)(3) discharge allegation in that case
The judge may also consider the successorship allegation in this pro-
ceeding
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
supplemental decision containing credibility resolu-
tions, findings of fact, conclusions of law, and rec-
ommendations, and that, following service of the
supplemental decision on the parties, the provisions
of Section 102.46 of the National Labor Relations
Board's Rules and Regulations, shall be applicable.
Cornele A. Overstreet, Esq., for the General Counsel.
John Neighbours, of Indianapolis, Indiana, and Robert D.
Wilkins, Esq., of Dayton, Ohio, for the Respondent.
Pamela A. Morin of Barberton, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
original charge was filed on October 9, 1981, by United
Electrical, Radio and Machine Workers of America,
(Union or Charging Party). A complaint thereon was
issued on November 10, 1981, alleging that Nudor Cor-
poration (Employer or Respondent) violated Section
8(a)(3) of the Act by discharging Jack Hough. The com-
plaint further alleges that Respondent violated Section
8(a)(1) of the Act by interrogating, threatening, and cre-
ating the impression of surveillance of the union activity
of its employees. An amended complaint was issued on
February 24, 1982, to allege additional counts of interro-
gation, threats, and impression of surveillance.
Pursuant to a settlement agreement approved by the
Acting Regional Director on March 26, 1982, Respond-
ent paid Jack Hough $2040 in backpay and agreed to
offer him reinstatement. The settlement also provided for
a 60-day notice posting to remedy the 8(a)(1) allegations.
Respondent executed this settlement agreement on
March 11; the Union on March 15. On March 18, the
Respondent was purchased by Phillips Industries, Inc.
(Phillips) as a part of its subsidiary, Malta Division
(Malta), and the backpay and posting obligations were
discharged by Phillips. The business continued to manu-
facture the same products in the same way, with basical-
ly the same employees.
Hough was not, however, offered immediate reinstate-
ment because by seniority he was within a group of 16
employees who had been legitimately placed in layoff
status after the time of the Hough's discharge. Phillips
therefore was not obligated to offer immediate reinstate-
ment, but only to offer reinstatement in seniority order
within the group of laid-off employees as they were re-
hired. In March 1983, Phillips began to rehire laid-off
employees, but did not offer employment to Hough.
On June 30, 1983, the Union filed a second charge
(Case 25-CA-15642) and on August 12, 1983, a com-
plaint thereon was issued alleging violations of Section
8(a)(1),(3), and (4) of the Act by Respondent's refusal to
rehire Hough for having engaged in union activity; for
having given testimony (an affidavit) in the prior case
(Case 25-CA-13997); and for having been the subject of
the charge in the prior case. Later the Regional Director
NUDOR CORP. 929
further concluded that by the misconduct alleged in the
June 30, 1983 charge (Case 25-CA-15642), Phillips had
breached the March 26, 1981 settlement agreement in re-
fusing to rehire Hough.' On September 30, 1983, the Re-
gional Director notified Phillips of the withdrawal and
vacation of the prior settlement agreement and issued, on
the same date, an "Order Consolidating Cases, Com-
plaint, and Notice of Hearing," alleging the various
8(a)(1) allegations contained therein, and the discharge of
Hough as an 8(a)(3) violation.
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Indiana corporation engaged in the
production, sales, and distribution of doors and window
frames with its principal office and place of business in
Geneva, Indiana . During the 12-month period ending
June 30, 1981, Respondent purchased and received at its
facility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Indiana.
Accordingly, I conclude that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
It is alleged and admitted and I find that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES2
A. Factss
Hough was hired on June 16, 1981, and discharged on
September 30, 1981.4 During the course of his employ-
r The General Counsel contends that Phillips , as the purchaser, is a
successor corporation obligated to remedy the unfair labor practices of
Respondent.
P There is conflicting testimony regarding some aspects of Hough's dis-
charge . In resolving these conflicts , I have taken into consideration the
apparent interests of the witnesses . In addition , I have considered the in-
herent probabilities ; the probabilities in light of other events; corrobora-
tion or lack of it ; and consistencies or inconsistencies within the testimo-
ny of each witness and between the testimony of each and that of other
witnesses with similar apparent interests. In evaluating the testimony of
witnesses, I rely specifically on their demeanor and have made my find-
ings accordingly Although, apart from considerations of demeanor, I
have taken into account the above-noted credibility considerations, my
failure to detail each of these is not to be deemed a failure on my part to
have fully considered it. Bishop & Malco, Inc., 159 NLRB 1159, 1161
(1966).
8 At the hearing, Respondent moved to dismiss the 8(aXl) allegations
of the complaint in Case 25-CA-13997, because the allegations had al-
ready been remedied pursuant to this settlement agreement . No other
8(a)(1) violations were alleged . This motion was granted , subject to the
right of the General Counsel to introduce evidence of the 8 (a)(1) inci-
dents to the extent that such evidence was relevant to establish the dis-
charge allegations concerning Hough . The General Counsel, however,
contends that having vacated the settlement agreement all the 8(aXl) alle-
gations covered by the settlement agreement , as well as Hough's dis-
charge, are now an issue As it is clear that all the outstanding 8(aXl)-
allegations were fully remedied by compliance with the 60-day notice
posting under the terms of the settlement agreement , and additional relief
of those 8(a)(1) allegations would constitute , essentially a duplication of
remedy , the General Counsel 's motion for reconsideration on that ruling
is denied.
4 All dates refer to 1981 unless otherwise indicated.
ment, Hough worked on various machines in the mill-
room where parts for the wood doors were cut. His im-
mediate supervisor in the millroom was Doug Mosier,
who reported to Plant Supervisor Charles Fravel, for the
second shift. Fravel reported to Plant Manager Melvin
Smith. During the period of Hough's employment, the
president and plant owner was John Bodle.
In late August or early September 1981, Jack Hough's
father arranged a meeting between Donald Agler, presi-
dent of Local 924 of the Union and employees Jack
Hough (Jack), his brother Joe Hough (Joe), and Jack
Gunter. This meeting and other early meetings were lim-
ited to discussions about organizing Respondent's em-
ployees. About the second or third week in September, a
wider effort was made to solicit interest among the em-
ployees of Respondent. Among those contacted by Jack
was Mosier.5 Mosier concedes that he knew about the
organizing effort and the involvement of both Joe and
Jack. Joe also testified to conversation with Mosier in
mid-September when Mosier told him that Bodle had
told Fravel that if they kept "pushing the Union thing"
Bodle would either shut down the factory or lower
wages and take away insurance benefits. Mosier, whose
testimony I credit in this regard, recalls the conversation
but denies representing to Joe that these statements were
made to him by Fravel; only that they were his own
opinions of the options available to Bodle. Mosier also
denies ever discussing the Union involvement of Jack or
Joe with Fravel. Mosier also credibly testified that he
was asked by Jack if he was interested in the Union, and
that he replied that he had not thought about it.
About September 27 or 28, Mosier told Jack that
Fravel thought Jack and Joe were the big wheels for the
Union and that because of Jack's involvement in the
Union he was being watched. This information caused
Jack and Joe some concern, and they consulted Agler
who advised them to wear union buttons to identify
them as union supporters and thus inhibit Respondent
from firing them for their union activity. Fravel con-
cedes that even prior to the wearing of union buttons by
Jack and Joe he knew about the union organizing activi-
ty, having overheard employees discussing the matter.
On September 29, both Jack and Joe began wearing
union buttons on their clothing at work. Mosier did not
recognize them as union buttons until it was confirmed
to him by Leroy Keys, another employee, who, accord-
ing to Jack, remarked, "All that's going to do his get
your ass fired."a
With respect to the circumstances of Jack's discharge,
it appears that the problem of running bad parts, i.e., the
machine production of incorrect sized door components,
was a continuing problem. When Fravel was hired by
Bodle in June 1981, he was instructed by Bodle to "clean
up" the second shift operation, including the problem of
bad parts being run by machine operators. Fravel testi-
fied that for about a month after he arrived the problem
was not serious, apparently within tolerable limits. How-
5 Mosier was related by marriage to Jack and Joe as his wife was a
cousin to them.
6 Although I conclude that this remark was made, the evidence does
not establish that Keys was a supervisory employee.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever , about mid-August , according to Fravel, whose tes-
timony is generally corroborated by Mosier , an employ-
ee named Bryan Beeler , normally a yard employee tem-
porarily assigned to the millroom , ran a series of some 20
to 25 bad parts on his machine . This incident prompted
Fravel to warn Beeler and to call an employee meeting
about the problem . At this meeting the employees were
told that they were to check their parts more closely and
more frequently , and that anybody running more than an
acceptable number of bad parts would be terminated.'
A second meeting on the matter of bad parts occurred
about the first week of September 1981 , when an em-
ployee named Anderson , normally a yard employee, was
temporarily assigned to the millroom and ran a number
(34-35) of bad parts . Fravel warned Anderson that any
repetition would result in his discharge , and again spoke
to the assembled millroom employees, warned them that
too many bad parts were being run, and that if it did not
stop , somebody would be "out the door."
On September 30, when Fravel arrived at work he
was confronted by Jim Zuercher, plant engineer, and
Bob Bailey , quality control supervisor, who complained
about a large number of bad parts having been run on
the second shift the prior day . This prompted Fravel to
call yet a third meeting of millroom employees before
they began work that day to warn them about continu-
ing to produce bad parts . He advised them to "check
their work and if they didn't they would be terminated
because this was the last time I was telling them." Ac-
cording to Fravel, Jack turned to show his union buttons
to Fravel and said "You can't fire me." To which Fravel
replied , "I don't give a damn about that button-you
goof up, you 're going to get fired anyway."
After the meeting , Jack went to the double cope ma-
chine to begin work producing bottom rails. After
having run approximately 25 to 30 consecutive bad
pieces, Jack went to Mosier and told him that the parts
were wrong . Mosier went over to examine the parts and
saw that all were cut too thin ; outside of an acceptable
tolerance, caused by the cutting blade being lower than
it should have been . Mosier testified , and Jack concedes
that calipers were not necessary to determine the error;
that the cut was so thin that the error was visible to the
naked eye . Jack also testified that he did not check any
of the pieces before or during this first run , and that he
was aware that it was his responsibility , as the machine
operator, to make periodic checks.
After this first bad batch , Fravel, who had been called
to the discussion by Mosier, warned Jack not to do it
again and told Mosier to reset the machine . Mosier pro-
ceeded to reset the head on the machine , ran a couple of
pieces to see that it was correct , and sent Jack for his
break . No one was at the machine during the time that
Jack was on his break . When Jack returned from his
break, he was told by Mosier to run the machine again
and make sure that he checked the parts . Mosier also ran
9 It appears that while machine operators were not responsible for the
initial setting of their machines , normally done by supervisors, they were
responsible for checking at intervals of five to seven pieces to insure the
correct dimensions of the pieces being run. In the event a machine
needed readjustment , the machine operator called the supervisor who
reset it.
a correct piece himself to show Jack, and then he left.
Jack onced again began to operate the machine and ran
another pallet of bottom rails, once again without check-
ing any of them , and once again all were run with the
same defect, a defect that Jack concedes was obvious to
the naked eye.
Having run the bad parts, Jack went to Mosier, tapped
him on the shoulder , and told him that the parts were
wrong again , adding "I'm probably going to get fired
over this ain't I." Jack was then discharged by Mosier
and was clocked out.
After Jack departed , the machine was reset once again
by Mosier and operated by another employee, Bobby
Betts, without running a single bad piece.
Moser testified that the machine was not repaired
either that night or the next . Zuercher testified that in
the summer of 1981 , at Bodle's request , he checked all
the machines and that nothing was wrong with the
double cope machine.
David Smitley, first cousin to Jack and Joe, also
worked in the millroom . Smitley testified that about a
week before Jack 's discharge Fravel , in speaking to the
employees in the lunchroom , told them that Bodle knew
that Joe and Jack were the two "main pushers" for the
Union at the plant . Further , that at a lunch break later in
the same week , Fravel told the employees that anyone
signing a union "letter of intent," that was circulating in
the plant , would not be recalled after the next seasonal
layoff. Smitley's testimony on these conversations is not
corroborated by any of those employees presumably ad-
dressed by Fravel . 8 Fravel specifically denied making
these statements . In these circumstances , I am disposed
to credit Fravel 's denial.
Joe Hough testified that either shortly before or short-
ly after Jack's discharge, during the luncheon break,
Zuercher , in the presence of several other employees, ad-
dressed himself to Joe and said that a couple of "wet
behind the ears kids" were going to cause them to lose
their jobs , that the company would close up and move
out. Further that he had lost the best job he ever had
trying to get a union in at another facility, and that
would happen to all of them eventually. Joe's testimony
is not corroborated by any of the employees identified as
being present. In view of the credibility criteria set out
above and particularly noting the lack of corroboration,
as well as Zuercher's specific denial , I find Zuercher's
denial to be the more credible version.
B. Discussion and Analysis
The General Counsel takes the position that Jack
Hough was fired by Respondent because of his union ac-
tivity, while Respondent argues that he was discharged
because he ran an excessive number of bad parts without
checking them . A review of this entire record persuades
me that the Respondent should prevail.
Jack, along with his brother Joe, and Jack Gunter,
were the initiators of the Union 's organizational effort.
Other employees were contacted with a view towards
8 Apart from Jack 's brother Joe, Smitley was the only employee called
to testify by the General Counsel.
NUDOR CORP. 931
organization . Among those were Mosier , who obviously
became aware of Jack 's involvement at that time . Fravel
also became aware of union activity upon overhearing
the conversations of other employees , which Fravel
admits . Of course, when Joe and Jack began to wear
union buttons on September 29, all pretense was ended,
since on the advice of the Union, they were advertising
their union involvement so as to protect themselves
against discharge . Thus it is beyond cavil that Respond-
ent was well aware at the time that Jack was discharged,
that he was an active union inherent.
However, in order to establish the illegality of a dis-
charge, the General Counsel must also show that the em-
ployee's discharge was motivated by antiunion consider-
ations , and this has not been done.
A review of the evidence , set out more fully above,
shows that waste was a continuing problem for Respond-
ent and that upon his hiring , Fravel was specifically in-
structed to correct that problem . After a month or so,
the problem worsened and on two occasions when exces-
sive waste was run meetings were held and employees
were instructed to "check their parts" and told that fail-
ure to do so would result in termination . On the day of
Hough's discharge, at the beginning of the shift, bad
parts produced the previous night occasioned another
lecture by Fravel and a warning about waste . Nonethe-
less, and immediately thereafter, Jack Hough ran a pallet
of bad parts . After the machine was reset , he immediate-
ly ran another pallet of bad parts. The records discloses
that Jack was aware of his responsibility to check these
parts and offers no explanation for his failure to do so.
Jack did not test check any parts prior to running the
parts for production ; did not check any of them after he
started; and did not check any until almost a full pallet
had been run . Moreover, he did essentially the same
thing twice, one time after another . Not only did he fail
to check the parts, but the dimensions of the negligence
become more apparent when one realizes , as the record
discloses, and as Jack concedes, that defects were ob-
servable to the naked eye.
Obviously, in an operation of this sort some waste is
unavoidable , and perhaps most employees have been re-
sponsible for some waste , but the negligence and incom-
petence displayed by Jack in the instant case transcends
any reasonable limits . The General Counsel contends
that the machine was set up to produce the error.9 How-
ever, the evidence is wholly inadequate to support that
contention . Other possibilities exist that could have
caused the machine settings to go awry , but even if the
machine had been deliberately set up to produce the
error and thus to provide a pretext for Jack 's discharge,
it is clear that had Jack been performing his job in a
competent fashion , any such plot would have been
thwarted , since errors in the settings would have been
revealed had he checked the parts as it was his responsi-
bility to do.
It is possible that Respondent , being aware of Jack's
union sentiments , welcomed the opportunity to rid itself
of an active union adherent . Nonetheless, when it is the
flagrant misconduct of the employee that motivates the
discharge , the Act has not been violated.
Accordingly, having concluded that Jack Hough's dis-
charge did not violate Section 8 (a)(3) of the Act, and
that the 8(a)(1) allegations have been remedied , I shall
recommend that the complaint be dismissed.' 0
CONCLUSION OF LAW
The Respondent has not engaged in any conduct vio-
lative of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
0 It is interesting to note however, that Jack testified that he does not
believe that Mosier, the logical suspect, was responsible for any tamper-
ing.
10 Having concluded that Jack' s discharge did not violate the Act, it is
unnecessary to resolve those allegations of postsettlement misconduct
raised by the complaint.