Ohio New and Rebuilt Parts, Inc. and/or Mel's Battery, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1983

267 N.L.R.B. 420 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio New and Rebuilt Parts, Inc. and/or Mel's Bat-
tery, Inc. and Truck Drivers, Warehousemen &
Helpers Union Local No. 908, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 8-CA-15128-2, 8-CA-15559, and 8-
RC- 12562
25 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 8 February 1983 Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and the General Counsel filed an answer-
ing brief to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge,
as modified herein.3
The Administrative Law Judge found that Re-
spondent repeatedly violated Section 8(a)(1) of the
Act during 1981 as follows: (1) Assistant Manager
James Halter threatened to discharge employee
Robert Vantilburg if he discussed his safety com-
plaint with an inspector from the Occupational
Safety and Health Administration in April; (2) after
the union organizing campaign began in July,
owner Melvin Booher, on 12 August, threatened
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto, Chairman Dotson and Member
Hunter adopt, pro forma, the Administrative Law Judge's findings that
Respondent violated Sec. 8(aXl) of the Act by threatening to discharge
employee Robert Vantilburg if he discussed his safety complaint with an
inspector from the Occupational Safety and Health Administration, and
thereafter by discharging Vantilburg and suspending employee Steven
Leugers because, in separate instances, they refused to perform certain
work they considered unsafe. The panel further notes that Leugers'
warning violated Sec. 8(aXI) of the Act, not Sec. 8(aX3) as the Adminis-
trative Law Judge found. Member Hunter notes that he does not rely on
the above findings of violations in adopting, infra, the Administrative
Law Judge's recommendation that a bargaining order is warranted in this
case.
3 In par. I(h) of his recommended Order, the Administrative Law
Judge uses the narrow cease-and-desist language, "in any like or related
manner." We have considered this case in light of the standards set forth
in Hickmott Foods Inc., 242 NLRB 1357 (1979), and have concluded that
a broad remedial order is appropriate. Accordingly, we shall modify the
recommended Order and use the broad injunctive language, "in any
other manner."
267 NLRB No. 66
the employees at its Wapakoneta, Ohio, facility,
with discharge and plant closure if they selected
the Union to represent them; (3) in July, Respond-
ent discriminatorily implemented a more stringent
attendance policy; (4) Booher coercively interro-
gated employee Vantilburg concerning his union
activities in early September 1981; (5) during a
meeting he conducted with five employees on 9
September (9 days before a scheduled union elec-
tion), Booher threatened to fire those persons who
supported the Union; threatened to discontinue Re-
spondent's practice of giving pay advances because
employees had sought union representation; and in-
terrogated an unnamed employee concerning his
union sentiments; (6) on 17 September, Booher
threatened all the employees at Respondent's Wa-
pakoneta, Ohio, facility that he would fire the
union adherents there if the Union won the elec-
tion the following day; (7) later on 17 September,
Booher interrogated employee Teddy Cross con-
cerning his union activities; (8) on the election
date, 18 September, Vice President Donald Miller
threatened Cross with bodily harm if he did not
vote against union representation; and (9) Respond-
ent, at separate times following the election, sus-
pended employee Steven Leugers and discharged
employee Vantilburg for their protected concerted
activities in refusing to perform certain work they
considered unsafe.
The Administrative Law Judge also found that
Respondent violated Section 8(a)(3) of the Act
when it discharged employee Daniel Cable, the
most vocal union activist, 4 days after the 18 Sep-
tember election was held. Based on these various
unfair labor practices, the Administrative Law
Judge further found that a bargaining order was
appropriate under the standards set out in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). We affirm
all but one of the violations that the Administrative
Law Judge found and, for the reasons that follow,
we agree that a bargaining order should issue here.
We find merit in Respondent's exception to the
Administrative Law Judge's conclusion that
Booher unlawfully threatened the Wapakoneta em-
ployees with possible plant closure during a meet-
ing on 12 August. In finding the violation, the Ad-
ministrative Law Judge relied on the testimony of
employee Leugers who testified that Booher told
the employees "something like he'd go out of busi-
ness, because if the Union came in . . . he'd have
to raise his prices, to be able to pay higher wages,
or whatever, and . . . [that] he's got the lowest
parts in town, and if he'd have to raise them, he
said he'd lose a lot of business." Vice President
Miller testified, by contrast, that Booher had not
threatened to close the plant during that meeting.
420
OHIO NEW AND REBUILT PARTS, INC.
When he appeared as a witness, Booher did not at-
tempt to describe the 12 August meeting. Howev-
er, he generally denied telling employees that he
was going to close the plant.
The Administrative Law Judge concluded that
he was "compelled to accept" Leugers' version of
the incident since Booher and Miller had not
denied Leugers' other testimony that Booher had
discussed the impact of unionization on Respond-
ent's operations. The Administrative Law Judge
then found that Respondent violated Section
8(a)(1) of the Act when "Booher sought to con-
vince employees that their selection of the Union
as their bargaining agent would compel him to
raise his prices, lose business, and possibly have to
close the plant." As noted, we reverse this finding
of an 8(a)(1) violation in Booher's remarks.
The question of the propriety of Booher's state-
ments to employees about plant closure must be de-
cided in light of the principles set out in NLRB v.
Gissel Packing Co., supra. There, the Supreme
Court established certain standards for determining
whether an employer's statements about the effects
of unionization are permissible. The Court stated,
in pertinent part, that:
. . . an employer is free to communicate to
employees any of his general views about un-
ionism or any of his specific views about a
particular union, so long as the communica-
tions do not contain a "threat of reprisal or
force or promise of benefit."4
In applying the Court's standard here, we em-
phasize that Leugers began his testimony about the
12 August meeting by stating that Booher had told
the employees "something like .... " Clearly,
Leugers was uncertain as to the exact nature of
Booher's remarks. Further, Leugers' testimony
then shifted so much that it is unclear whether
Booher really linked the Union to higher prices
that would possibly force him to close the facility.
We therefore conclude that the vague statements
that Leugers imprecisely attributed to Booher do
not support a finding that Respondent threatened it
would close the plant if employees selected the
Union to represent them., The point of this discus-
sion with the employees was that Respondent
could not afford to increase wages and might "lose
a lot of business" if forced to grant such raises.
Indeed, upon reviewing the record, Booher's posi-
tion is confirmed by his testimony that, even in the
absence of the Union, he had considered closing
the plant because of adverse economic circum-
stances. We note that no party has questioned his
comments about Respondent's financial status.
4 395 U.S. at 618.
Under these circumstances, we find that Leugers'
testimony is too ambiguous to warrant a finding
that employees were illegally threatened with pos-
sible plant closure. Accordingly, we shall dismiss
that portion of the complaint which alleges that
this statement of Booher violated Section 8(a)(l) of
the Act.5
Although we have reversed the Administrative
Law Judge in this one respect, we agree with his
conclusion that a bargaining order is an appropriate
remedy in this proceeding. However, we wish to
indicate at some length our reasons for finding that
this remedy is warranted by the circumstances
here.
In determining whether the violations Respond-
ent has engaged in warrant the issuance of a bar-
gaining order, we apply the test set out in Gissel,
supra, where the Court described two types of situ-
ations where such orders are appropriate: (1) "ex-
ceptional" cases marked by "outrageous" and "per-
vasive" unfair labor practices; and (2) "less extraor-
dinary" cases marked by "less pervasive" prac-
tices. 6 Thus, the Court approved the Board's use of
a bargaining order in "less extraordinary" cases
where the employer's unlawful conduct has a
"tendency to undermine [the Union's] majority
strength and impede the election processes. " 7 The
Court indicated that when the unfair labor prac-
tices are less flagrant and the union at one time had
majority support among the unit employees, the
Board may consider
. . . the extensiveness of an employer's unfair
labor practices in terms of their past effect on
election conditions and the likelihood of their
recurrence in the future. If the Board finds
that the possibility of erasing the effects of
past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employ-
ee sentiment once expressed through cards
would, on balance, be better protected by a
bargaining order, then such an order should
issue. 8
In considering Respondent's conduct in this case,
the Administrative Law Judge found, and we
agree, that the unfair labor practices Respondent
committed fall into the second category delineated
by the Court in Gissel.
b Cf. B. F. Goodrich Footwear Ca, 201 NLRB 353 (1973).
Member Zimmerman does not join in reversing the Administrative
Law Judge's finding with regard to Booher's statement. Inasmuch as a
finding of a violation is cumulative in this regard, he finds it unnecessary
to pass on this issue.
Gissel, supra at 613-614.
7 Id. at 614.
8 Id. at 614-615.
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, as found by the Administrative Law
Judge, Respondent conducted an antiunion cam-
paign in which it repeatedly engaged in coercive
interrogation of its employees, threatened unit em-
ployees with discharge on three separate occasions,
implemented a more stringent attendance policy,
threatened to discontinue its practice of giving pay
advances, and threatened an employee with physi-
cal harm if he did not vote against union represen-
tation. Some of these unfair labor practices oc-
curred during the final hours before the election.
Even after the election was held, resulting in a tie
vote, Respondent displayed its continuing hostility
toward its employees and its willingness and ability
to retaliate against them for the organizing cam-
paign that they had initiated. Thus, Respondent dis-
charged the most vocal union adherent, employee
Daniel Cable, because of his involvement in such
activities.
These violations were committed by Respond-
ent's highest level supervisors, including its owner,
vice president, and assistant manager. The positions
these persons held clearly served to reinforce and
increase in the minds of employees the seriousness
of the threats that were conveyed. Furthermore,
the repetitious nature of the violations Respondent
engaged in, e.g., the repeated threats of discharge
and coercive interrogations, suggests that they
were part of a general campaign to destroy em-
ployee support for the Union.
It also is highly significant that many of these
violations were of an extremely serious nature. In
this case, Respondent's owner twice told a gather-
ing of the Wapakoneta employees, who comprised
over three-fourths of the entire unit, that he would
discharge them if they supported the Union. The
widespread exposure of the unit employees to these
threats clearly magnified the coercive impact they
conveyed. More importantly, Respondent's subse-
quent unlawful discharge of Wapakoneta employee
and union activist Cable-conduct the Board and
the courts have long classified as misconduct going
"to the very heart of the Act" 9 -demonstrated to
the employees that Booher had meant what he said
about discharging those who supported the Union.
Further, the attendance policy that Respondent im-
plemented is a blatant example of an employer's pe-
nalizing employees for their union activities. Re-
spondent again wielded its economic power for an-
tiunion purposes when it threatened to discontinue
the practice of giving employees pay advances. Fi-
nally, Miller's threat of bodily harm to an employ-
ee shows that Respondent would resort to extraor-
dinary means to attempt to dissipate the Union's
9 See, e.g., NLRB v. Entwistle Mfg. Co., 120 F.2d 523, 536 (4th Cir.
1941).
support. By engaging in the unfair labor practices
set out here, Respondent thus has made it painfully
clear to employees that the penalties for supporting
the Union would be severe.
Respondent contends that, despite its 8(a)(l) and
(3) violations here, a bargaining order is inappro-
priate because, inter alia, "the necessary contacts
have been made . .. to offer immediate and full re-
instatement to . .. Cable." However, assuming ar-
guendo that such a reinstatement should be consid-
ered by the Board in determining the appropriate
remedy, Respondent has offered no proof other
than its assertion in its brief that Cable has, in fact,
been offered reinstatement. Since the record is
devoid of evidence that Cable was reinstated
before the hearing was held in this case, we can
only assume, if Cable has been reinstated, that Re-
spondent has taken such action only after the Ad-
ministrative Law Judge found against its interest
and recommended that it be ordered to reinstate
the discriminatee. Moreover, Respondent has not
indicated whether or not Cable has received his
lost backpay or whether the employees are on
notice that Respondent has recanted its unlawful
conduct toward Cable. Accordingly, we find that
Respondent's purported reinstatement of Cable has
not been shown sufficient to eliminate the effects of
its original unfair labor practice in discharging him.
In sum, based on the violations found herein, we
conclude that the lingering effects of Respondent's
past conduct render uncertain the possibility that
the imposition of the conventional reinstatement
and backpay orders and the posting of notices to
remedy the unfair labor practices would permit a
fair election to be conducted. In these circum-
stances, we conclude that the Union's designation
as the collective-bargaining representative by a ma-
jority of the employees having signed authorization
cards provides a more reliable test of employee
representation desires than would an election. Ac-
cordingly, we adopt the Administrative Law
Judge's recommended Order, as modified below,
requiring Respondent to bargain with the Union as
the duly designated representative of a majority of
its employees in the unit found appropriate for pur-
poses of collective bargaining, effective 12 August
1981, the date that Respondent embarked on its un-
lawful course of conduct.' 0 We therefore shall set
aside the election held in Case 8-RC-12562; order
that the petition therein be dismissed; and issue a
bargaining order.
IO Peaker Run Coal Co., 228 NLRB 93, 97 (1977).
422
OHIO NEW AND REBUILT PARTS, INC.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 5:
"5. By interrogating employees concerning their
union activities; by threatening to discontinue em-
ployee benefits, including pay advances, because
employees join or support the Union; by imple-
menting a more stringent attendance policy because
employees seek union representation; by threaten-
ing to discharge employees in retaliation for their
supporting the Union; and by disciplining or threat-
ening to discipline employees for engaging in pro-
tected concerted activities, Respondent has violat-
ed Section 8(a)(1) of the Act."
2. Insert the following as Conclusion of Law 6
and renumber the present Conclusion of Law 6 ac-
cordingly:
"6. By discharging employee Daniel Cable be-
cause he engaged in union activities, Respondent
has violated Section 8(a)(3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ohio New and Rebuilt Parts, Inc. and/or Mel's
Battery, Inc., Wapakoneta and Lima, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Delete paragraph l(b) and reletter all subse-
quent paragraphs accordingly.
2. Substitute the following for present paragraph
1(h) and reletter as paragraph l(g):
"(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
3. Substitute the following for paragraph 2(c):
"(c) Expunge from its files any reference to the
discipline handed out to employees Daniel Cable,
Steven Leugers, and Robert Vantilburg, and notify
these employees in writing that this has been done
and that evidence of this unlawful conduct will not
be used as a basis for future personnel actions
against them."
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
IT IS FURTHER ORDERED that the election in
Case 8-RC-12562 be, and the same hereby is, set
aside, and that the petition in Case 8-RC-12562 be,
and it hereby is, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees regard-
ing their union activities or sentiments.
WE WILL NOT threaten to discontinue em-
ployees' benefits, including pay advances, be-
cause employees join or support the Union.
WE WILL NOT promulgate and institute a
more stringent attendance policy because em-
ployees attempt to seek union representation.
WE WILL NOT inform employees that their
receipt of previous financial assistance obli-
gates them to abandon their support of the
Union.
WE WILL NOT discharge or threaten to dis-
charge employees because they join or support
Truck Drivers, Warehousemen & Helpers
Union Local 908, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any
other labor organization.
WE WILL NOT attempt to discourage em-
ployees from protesting what they reasonably
consider to be unsafe working conditions by
threatening to terminate them if they file com-
plaints with OSHA or by disciplining them for
refusing to perform work which they reason-
ably feel is unsafe.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the Act.
WE WILL, upon request, recognize and bar-
gain with Truck Drivers, Warehousemen &
Helpers Union Local 908, affiliated with Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees
in the appropriate bargaining unit, and, if an
understanding is reached, embody same in a
signed document if asked to do so. The appro-
priate unit is:
All full-time and regular part-time produc-
tion and maintenance employees, truckdriv-
ers and counter sales employees employed
by the Employer at its 100 Keller Dr., Wa-
pakoneta, Ohio, and its 459 North Main St.,
Lima, Ohio, facilities, excluding all office
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL offer Robert Vantilburg and
Daniel Cable immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions with-
out prejudice to their seniority or any other
rights or privileges previously enjoyed, and
WE WILL make them whole for any loss of pay
they may have suffered due to the discrimina-
tion practiced against them, with interest.
WE WILL expunge from our files any refer-
ence to the discipline handed out to employees
Daniel Cable, Steven Leugers, and Robert
Vantilburg and WE WILL notify these employ-
ees in writing that this has been done and that
evidence of this unlawful conduct will not be
used as a basis for future personnel actions
against them.
OHIO NEW AND REBUILT PARTS,
INC. AND/OR MEL'S BATTERY, INC.
DECISION
STATEMENT OF THE CASE'
DONALD R. HOLLEY, Administrative Law Judge:
Upon an original charge and amended charges filed by
Truck Drivers, Warehousemen and Helpers Union,
Local 908, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), in Case 8-CA-15128-
2, the Regional Director for Region 8 of the National
Labor Relations Board (herein called the Board) issued a
complaint on November 27, 1981, which alleged that
Ohio New and Rebuilt Parts, Inc., and/or Mel's Battery,
Inc. (herein called Respondent), had engaged in, and was
engaging in, conduct which violates Section 8(a)(l) and
(3) of the Act. Thereafter, on February 8, 1982, the
Region issued an amendment to complaint and order
consolidating cases, consolidating objections filed by the
Union in Case 8-RC-12562 with the above-designated
unfair labor practices for hearing. Respondent, having
filed timely answer denying that it had engaged in the
unfair labor practices alleged in the original complaint,
filed a motion to strike the original and amended com-
plaint on February 4, 1982, and said motion was denied
by Associate Chief Administrative Law Judge John M.
Dyer on March 1, 1982. Subsequently, the Union filed
the charge in Case 8-CA-15559 on March 1, 1982, and
on April 2, 1982, the Region issued an order consolidat-
ing cases, amended consolidated complaint and notice of
consolidated hearing, which, inter alia, realleged the
matter set forth in previous complaints and additionally
alleged that Respondent had engaged in conduct which
violates Section 8(a)(5) of the Act. The matter was heard
in Lima, Ohio, on April 19, 10, 21, and 22, 1982. All par-
ties appeared and were afforded full opportunity to par-
' All dates are 1981 unless otherwise indicated.
ticipate.2 Subsequent to the close of the hearing, counsel
for the General Counsel and counsel for Respondent
filed briefs which have been carefully considered.
Upon the entire record, including my observation of
the witnesses when they gave testimony, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
The record reveals that Ohio New and Rebuilt Parts,
Inc., and Mel's Battery, Inc., both Ohio corporations,
constitute an integrated enterprise which is engaged in
battery processing and salvage and the remanufacture of
auto parts at locations in Wapakoneta and Lima, Ohio.
The enterprise annually receives goods and materials
valued at in excess of $50,000 directly from points locat-
ed outside the State of Ohio. Respondent stipulated in
Case 8-RC-12562 that the appropriate collective-bar-
gaining unit includes employees employed at both its
Wapakoneta and Lima facilities, and that the labor poli-
cies of both corporations are determined by the same in-
dividuals. Finally, Respondent agrees that the above-
named corporations are jointly liable for any remedial
order which may issue in this case.
Upon the facts set forth above, I find that Ohio New
and Rebuilt Parts, Inc., and Mel's Battery, Inc., consti-
tute a single employer which is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Truck Drivers, Ware-
housemen and Helpers Union, Local No. 908, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent utilizes some 36-38 employees in its bat-
tery salvage and rebuilt automobile parts operation. At
some earlier time, the entire operation was located in
Lima, Ohio, but Melvin Booher, sole owner of the busi-
ness, indicated during his testimony that, when the city
of Lima attempted to compel Respondent to erect a
fence around the Lima location, he chose to build on
property he owned in Wapakoneta, Ohio, rather than
erect the fence at an estimated cost of $20,000. At the
time of the hearing some five to six employees remained
at the Lima facility. Respondent stipulated during the
hearing that its employees are supervised by Melvin
2 At the outset of the hearing, the General Counsel amended the con-
solidated complaint by changing Melvin Booher's title from president to
consultant (par. 6) and by deleting the allegation that Respondent had
failed and refused to reinstate Steven Leugers to his former or substan-
tially equivalent position of employment (par. 1I(a)). Respondent amend-
ed its answer to admit pars. 1, 4, 5, and 6 (with exception of the allega-
tion that James Halter, assistant manager, is and has been its agent and a
supervisor).
424
OHIO NEW AND REBUILT PARTS, INC.
Booher, owner and consultant, and Donald Miller, vice
president of Respondent. Such individuals are admittedly
assisted at the Wapakoneta facility by one James Halter,
whose title is assistant manager.3
On July 6, 1981, a group of employees employed at
Respondent's Wapakoneta facility decided they desired
union representation. Later that day, employees Steven
Leugers and Steven Stauffer contacted the Union and ar-
ranged to meet Business Representative George Brodie
at his home. When Brodie met with the employees he in-
formed them how they should go about organizing the
plant and gave each of them a number of blank union au-
thorization cards. Thereafter, the Union met with inter-
ested Respondent employees in a park in Wapakoneta
and at other locations on July 7 and 8, and, by the close
of the day on July 8, 19 of Respondent's employees had
signed authorization cards.4
Union Business Representative Brodie testified that on
Saturday morning, July 9, he visited Respondent's Wapa-
koneta facility and after ascertaining that James Halter
was in charge "Told Mr. Halter that a majority of em-
ployees at the Wapakoneta and the Lima plant had au-
thorized Teamsters Local 908 to represent them in
wages, conditions of employment, and working condi-
tions, and I wanted him to sit down and bargain in good
faith over a contract for those employees." According to
Brodie, Halter told him he did not have the authority to
recognize the Union, and, when Brodie asked him if he
would pass the message on, Halter indicated he would.
Employee Stauffer indicated during his testimony that he
overheard Brodie's conversation with Halter. He claims
he heard Brodie say he represented a majority of the
Company's employees and was requesting recognition,
and that Halter replied he could not recognize the Union
and Brodie would have to talk with Miller and Booher.
Additionally, Stauffer recalled that Brodie informed
Halter that the rights of the employees were being vio-
lated and he indicated he intended to press charges if the
conduct continued. Halter claimed during his testimony
that Brodie said nothing about representing employees or
requesting recognition on July 9. He claims Brodie
merely informed him he felt the employees' rights were
being violated and stated he would take Booher to court
so fast it would make his head swim if the violations
continued. Halter was a most unimpressive witness. I
credit, in main, the account of the conversation given by
Brodie and Stauffer. 5
a It is admitted, and I find, that Melvin Booher and Donald Miller are,
and have been at all times material, agents of Respondent and supervisors
within the meaning of Sec. 2(11) and (13) of the Act. James Halter's
status, which is discussed, infra, is in dispute.
4 See G.C. Exhs. 7, 11-17, 24-29, and 32-36. Signing were: Leugers,
Stauffer, Bob Vantilburg, Daniel Cable, oene King, Jeff Mabry, Paul
Rhodes, Aaron Spielman, Harry Vantilburg, William Hindenlang, Paul
Shade, Timothy Scott, Don Guess, Ron Sutton, Ronald Bigham, Tom
Boedecker, Richard Koch, Carl Williams, and Robert Archer.
s As of July 9, no employees at Respondent's Lima facility had signed
authorization cards. The record reveals five Lima employees were in-
cluded in the unit subsequently stipulated to constitute the appropriate
bargaining unit. I conclude Brodie sought to tailor his testimony to fit the
needs of what he conceived to be the General Counsel's burden of proof
by claiming he told Halter he represented Lima as well as Wapakoneta
employees on July 9. In all other respects, I credit Brodie's testimony.
The Union filed its petition for an election in Case 8-
RC-12562 on July 13, 1981. Thereafter the Union and
Respondent executed a Stipulation For Certification
Upon Consent Election on August 10, 1981.6 The appro-
priate collective-bargaining unit was described as:
All full-time and regular part-time production and
maintenance employees, truckdrivers, and counter
sales employees employed by the Employer at its
100 Keller Dr., Wapakoneta, Ohio and its 459
North Main St., Lima, Ohio facilities, excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
The election was held on September 18, 1981, and the
revised tally of ballots, issued on December 30, 1981, re-
veals that the Union received 15 votes and that 15 votes
were cast against the Union. 7 Objections to the election
filed by the Union on September 25, 1981, which have
been consolidated with the unfair labor practice cases for
hearing are treated, infra.
B. The Alleged 8(a)(1) Conduct
The consolidated complaint issued on April 2, 1982,8
alleges at paragraphs 7 and 10(a) through (1) that Re-
spondent violated Section 8(a)(1) in numerous respects
during the period April 17, 1981, through September 18,
1981. Such allegations and the evidence which relates to
them are discussed below.
1. Alleged threat to fire an employee if he talked to
OSHA inspector
Paraqraph 7 of the complaint alleges that James Halter
on April 17, 1981, unlawfully threatened an employee
with discharge if he spoke with an inspector of the Oc-
cupational Safety and Health Administration (herein
called OSHA). The General Counsel sought to prove the
allegation through the testimony of employee Robert
Vantilburg.
Vantilburg testified that, on an unspecified date prior
to Auqust 17, he filed a complaint with OSHA against
Respondent and that subsequently an OSHA inspector
appeared at the Wapakoneta facility on April 17. Vantil-
burg claims that, before the inspector reached his part of
the plant, James Halter told him if he spoke with the in-
spector he would lose his job. During his testimony,
Halter failed to refute Vantilburg's assertion directly. In-
stead, he testified that no employee had ever been fired
or reprimanded by Respondent for making a report to
OSHA concerning equipment. Vantilburg was by far the
more impressive witness, and I credit his testimony
rather than that of Halter.
Although I find that Halter threatened Vantilburg as
alleged on April 17, Respondent claims I should refrain
from finding that it violated the Act through Halter's
conduct as the record fails to reveal he was an agent of
Respondent or a supervisor as alleged in the complaint. I
find the contention to be without merit.
s See G.C Exh. 3.
7 See G.C. Exh. 6.
s Hereinafter called the complaint.
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record reveals that Halter, whose title is assistant
manager, shares an office with Respondent's safety direc-
tor and wears a white shirt with his title written on it.9
He is admittedly in complete charge of the Wapakoneta
facility each Saturday and on other occasions when
Miller is absent. The record reveals that during the time
involved in this case: He threatened to fire two employ-
ees (R. Vantilburg and Hemmert); he sent an employee
home for refusing to unload molten lead (Leugers); he
issued written disciplinary notices to employees (R. Van-
tilburg and Dan Cable); he assigned work to employees;
he decided when to entrust the maintenance man with
money to be used to purchase parts and equipment from
local suppliers; and he participated with Miller and
Booher in meetings at which Respondent's position on
unionization was delivered. As the record fails to reveal
that Halter was required to consult with Miller or
Booher before he engaged in the activities set forth
above, I infer that no such consultation was required and
that he is permitted to exercise independent judgment in
such matters. In the circumstances, it is clear he possess-
es several of the indicia of a statutory supervisor. Ac-
cordingly, I find he is a supervisor within the meaning of
Section 2(11) of the Act as alleged.
In sum, I find that Respondent, through Halter's con-
duct, violated Section 8(a)(1) of the Act on April 17,
1981, by threatening to fire employee Vantilburg if he
talked to the OSHA inspector. 0
2. The August 12 meeting
Paragraph 10(b) of the complaint alleges that on
August 12 Respondent's owner, Booher, violated Section
8(a)(l) by threatening employees with discharge, reduc-
tion in wages, and plant closure because of their union
activities, and paragraph 10(c) alleges that on the same
date Booher unlawfully polled employees concerning
their union sympathies and/or desires. The General
Counsel sought to prove the allegations through the tes-
timony of employees Robert Vantilburg, Dan Hammert,
and Steven Leugers.
The record reveals that Respondent's owner, Booher,
and his son-in-law, Miller, met with Respondent's Wapa-
koneta employees in the lunchroom of that facility on
August 12 to inform them that Booher and Miller were
to attend an electric car conference at some out-of-town
location and that James Halter would be in charge of the
facility in their absence. The witnesses who described the
meeting uniformly testified that, at the conclusion of the
meeting, Booher informed the employees that Halter had
been instructed to simply close the facility and go home
and watch television if the employees created problems
for him. At that point, Booher informed the employees
he would buy them a steak dinner if they cooperated
with Halter and he asked for a show of hands of those
who would work with Halter.
While the General Counsel's witnesses agree that the
general tenor of the August 12 meeting was as described
above, they claim Booher made several remarks about
I Production and maintenance employees wear blue shins.
'o See Krispy Kreme Doughnut, 245 NLRB 1053 (1979); Alleluia Cush-
ion, 221 NLRB 999 (1975); and GVR, Inc., 201 NLRB 147 (1973).
the organizing situation during the meeting. Leugers,
who described the meeting most completely, claims that
Booher stated that the Union was a non-Christian organi-
zation and he could not let it come into his plant; that he
could not have anyone working against him and would
know after the election who was for and against him,
that he would get rid of his wife if she were against him;
and that he said something like he would go out of busi-
ness if the Union came in as he had the lowest prices in
town and if he had to raise them he would lose a lot of
business. Vantilburg's recollection of the non-Christian
remarks differed somewhat. He testified that, at some
point during the meeting, Booher informed them he was
a Christian and did not want the Union in his plant. Van-
tilburg claims that Booher asked if the Union ever talked
to them about Christ, and that he (Vantilburg) asked at
that point how Booher knew the Union was non-Chris-
tian. Vantilburg asserts that Booher then asked him if he
ever read the Bible and stated that he would rather burn
at the cross than have the Union come in. Employee
Hemmert merely testified Booher told the employees he
and Miller were going to an electric car meeting; in-
formed them Halter would be in charge; asked for a
show of hands to see who was going to cooperate with
Halter; and informed them he did not want any non-
Christian organization in there.
When he appeared as a witness, Booher made no at-
tempt to describe the August 12 meeting. He did testify,
however, that he did not tell employees that he was
going to close the plant. Miller did describe the August
12 meeting in some detail during his testimony. His ver-
sion of the discussion regarding Halter being placed in
charge while he and Booher attended an electric car
meeting paralleled that given by the employees. With re-
spect to the non-Christian matter, Miller admitted that
Booher informed the employees he did not want the
Union in his place because it was non-Christian. Like
Booher, Miller denied that the employees were told at
the meeting that Respondent would close the business if
the Union came in.
While the General Counsel claims that Booher polled
the Wapakoneta employees to ascertain their union senti-
ments on August 12, it is clear that he polled them to
ascertain whether they would cooperate with Halter
while he and Miller attended an electric car function.
Accordingly, I recommend that paragraph 10(c) of the
complaint be dismissed. Noting that both Miller and
Booher failed to deny Leuger's testimony to the effect
that Booher would not have anyone who was against
him in the plant and that he would know who was
against him after the election, I find that Booher made
the comments attributed to him and through them Re-
spondent threatened to discharge employees for support-
ing the Union, thereby violating Section 8(a)(1) of the
Act as alleged. Similarly, as Respondent's witnesses
Booher and Miller failed to deny that Booher discussed
the effect of unionization upon the business on August
12, 1 am compelled to accept employee Leugers' asser-
tion that Booher sought to convince the employees that
their selection of the Union as their bargaining agent
would compel him to raise his prices, lose business, and
426
OHIO NEW AND REBUILT PARTS, INC.
possibly have to close the plant. Such predictions are
violative of Section 8(a)(1) of the Act, and I so find."
See NLRB v. Gissel Packing Co., 395 U.S. 575, 617-620
(1969); Crown Cork & Seal Co., 255 NLRB 14 (1981).
3. Alleged interrogation by Halter
Paragraph 10(d) of the complaint alleges that during
the week of August 16 Halter interrogated an employee
about his union activities, sympathies, and desires. The
General Counsel sought to prove the allegation through
the testimony of employee Dan Hemmert.
Hemmert testified that on a Saturday in mid-August
when Halter was in charge of the Wapakoneta plant he
went to Miller's office and asked Halter if he could go
home as he was sick. While he was in the office, he
claims Halter asked him what he thought the Union
could do for him and whether he was going company or
whether he was going to vote for the Union. Hemmert
further indicated that Halter thereafter asked him every
other day or so which way he was going to go.
When he appeared as a witness, Halter was not asked
whether he conversed with Hemmert in Miller's office in
mid-August. He admitted during his testimony that he
joked with people about the Union but denied that he
ever asked any employee how he was going to vote be-
tween the Company and the Union. In this respect, he
claimed he had been instructed by Miller not to ask such
questions.
Obviously, the conflict between Hemmert and Halter's
testimony requires a credibility resolution. As indicated,
supra, I found Halter to be an unimpressive witness. On
the other hand, Hemmert testified in a forthright manner,
and I am convinced he attempted to tell the truth when
testifying. I credit Hemmert's testimony and find that
Respondent, through Halter, unlawfully interrogated an
employee concerning his union activities and/or senti-
ments as alleged. Such conduct violates Section 8(a)(1)
of the Act, and I so find.
4. Alleged interrogation by Booher
Paragraph 10(g) of the complaint alleges that Booher
unlawfully interrogated an employee in Respondent's
restroom on September 3. The General Counsel sought
to prove the allegation through the testimony of Robert
Vantilburg.
Vantilburg testified that, on September 3 while he was
in the restroom at the Wapakoneta facility, Booher came
up to him, shook his hand, and asked him how he was
going to vote. Vantilburg claims he replied that he could
not tell him, that he was going to a union meeting that
night, and he was going to ask them the same questions
he (Booher) asked us in all his meetings. At that point,
Vantilburg states, Booher walked out.
When he appeared as a witness, Booher neither admit-
ted nor denied that he had a discussion with Vantilburg
in the restroom. He merely stated he did not ask Robert
Vantilburg whether he would vote for the Company or
the Union.
" No evidence was offered to prove that Respondent threatened to
reduce wages during the meeting, and I recommend that the applicable
allegation be dismissed.
Patently, the conflict in the testimony of Vantilburg
and Booher necessitates a credibilty resolution. I credit
the employee as he testified in a straightforward manner
and appeared to attempt to tell the truth, while Booher
refrained from denying much of the improper conduct
attributed to him and simply generally denied that he
had engaged in other wrongful acts. Having credited
Vantilburg, I find, as alleged, that Respondent, through
Booher's acts, violated Section 8(a)(1) of the Act by in-
terrogating Vantilburg concerning his union sentiments
on September 3, 1981.
5. The alleged misconduct during the September 8
meetings
The record reveals that Respondent conducted a series
of meetings with groups of four to five employees at the
Wapakoneta facility on September 8. According to Re-
spondent witness Miller, Halter merely read a series of
questions from flip charts during the meetings and Miller
read the answers from a prepared text which was placed
in evidence as Respondent's Exhibit 10. The General
Counsel contends that Booher attended some of the
meetings under discussion and that Respondent's man-
agement representatives engaged in unlawful conduct
during the meetings. The General Counsel sought to
prove his contentions through the testimony of employ-
ees Robert Vantilburg, Daniel Cable, Dan Hemmert, and
Steven Leugers.
Employee Cable testified that he attended a meeting at
the Wapakoneta facility at which the Union was dis-
cussed in early September. He indicated Respondent was
represented at the meeting by Booher, Miller, and
Halter, and that employees Robert Vantilburg, Harry
Vantilburg, Scott Fisher, and a newly hired employee
from Colorado also attended. Cable indicated that, after
the employees were asked to sit still and be quiet,
Booher read questions and Halter displayed cards which
were about 2 feet by 2 feet and which had the answers
to the questions on them. Cable claims that, after listen-
ing to the management representatives for some time, he
asked if they would get quiet for a while and if "we
would get our turn." Cable testified he then informed the
group that he had been in three unions himself and he
had never been treated as they said he would be treated.
Asked whether Booher made any comments about the
Union or the election during the meeting, Cable indicat-
ed Booher told them that he would not have people
working there that were against him, and that the people
who were for a union were against him; that he did not
want anybody coming in there and telling him what to
do; and that, while he had done some favors for employ-
ees like giving them pay advances, he would not be able
to do that anymore because it would look like he was
bribing or doing special favors for people. Additionally,
Cable claims that, at some point in the meeting, Booher
asked the new employee from Colorado if he had ever
been in a union. According to Cable, the employee re-
plied he had been in the Teamsters Union while working
in Colorado. After informing the group that he wanted
to see the Union in there to represent him, Cable, at his 4
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m. quitting time, informed the group he did not want
to hear any more and left. 2
Vantilburg's version of the meeting on September 8
was that Halter read questions from charts and Miller
read the answers. Vantilburg's recollection was that
Booher asked the new man from Colorado if he would
vote for the Union rather than whether he had ever been
in a union. He claims that, at some point in the meeting,
Booher asked for a show of hands of who was for the
Company. According to Vantilburg, Cable walked out of
the meeting after Miller had asked him if the Union had
any written guarantees that they could do anything for
the employees and Cable had replied the Union could
not write out guarantees. Vantilburg testified he asked
Booher during the meeting why Halter had received a
raise while the other employees had not. 13
Hemmert's description of the September 8 meeting
was brief. He indicated that management representatives
read from cards what the Union could and could not do
for employees, and attributed several comments to
Booher. The first was that Booher informed them that if
they got the Union in there they would drop the mini-
mum wage, and the second was that he said that they
would hire other people to replace them if the Union got
in and they went on strike.
Leugers' description of the September 8 meeting was
quite terse. He testified that Miller read from big pieces
of cardboard and the only thing he could remember was
that he was told that they could be replaced if they went
out on strike.
When Respondent presented its defense, Booher was
not asked whether he made any of the statements at the
September 8 meetings which were attributed to him by
Cable, Vantilburg, Hemmert, or Leugers. Similarly,
Halter merely testified that he read the questions at the
meetings and that Miller read the answers.
Miller indicated during his testimony that the Septem-
ber 8 meetings were conducted with Halter reading
questions from cards and with him following by viewing
Respondent's Exhibit 10, which contains the questions
and answers used, and reading the answers to the ques-
tions.' 4 Miller testified that Respondent's Exhibit 10 is
exactly what was said to employees at the September 8
meetings and nothing else was said. Asked if he asked
employees how they were going to vote or whether he
asked them any direct questions in attempt to cause them
to respond by indicating their attitudes toward the
Union, Miller answered no.
While counsel for the General Counsel urges me to
find that Respondent raised matters not covered by Re-
spondent's Exhibit 10 at the meeting attended by em-
ployees Cable and Vantilburg and also at the meeting(s)
attended by employees Hemmert and Leugers, I am not
convinced that Respondent departed from its prepared
text at the meeting(s) attended by the last named employ-
ees. Leugers candidly admitted that the only thing he
:: The record reveals Cable was not invited to attend further meet-
ings.
is After the meeting, Vantilburg claims Booher called him a liar once
over the Halter raise situation.
" Miller indicated he placed the ink corrections and/or additions on
the exhibit. With respect to the "Bargaining starts at O" addition on p. 5,
Miller testified he told the employees that zero meant minimum wage.
could recall about the meeting he attended was that em-
ployees were told they could be replaced if they went on
strike. I have no doubt that Leugers heard all the matters
set forth in the above-mentioned exhibit, and note that at
page 4 the document mentions the rehire of strikers.
Similarly, Hemmert's assertion that Booher threatened
during the meeting he attended to "drop the minimum
wage" before the Union got in makes absolutely no
sense, and his claim that rehire rights of strikers were not
mentioned during the meetings is unconvincing as Re-
spondent's Exhibit 10 does make mention of rehire
rights. In sum, I am convinced, and find, that, when de-
scribing the September 8 meeting(s) they attended, Hem-
mert and Leugers simply stated the conclusions they
reached upon hearing management representatives read
the material contained in the prepared flip charge presen-
tation under discussion.
With respect to the meeting attended by Cable and
Vantilburg, I am persuaded, particularly by the testimo-
ny given by Cable, which was delivered in a forthright
and forceful manner, that Booher made the remarks at-
tributed to him by Cable. Noting that the subject matter
described by Cable was not contained in Respondent's
Exhibit 10 and the significant fact that Booher failed to
deny the remarks attributed to him, I find Miller's asser-
tion that neither he nor anyone else departed from the
prepared material at the meeting under discussion to be
unconvincing.' 5
Having credited the account of the September 8 meet-
ing given by Cable, I find that Respondent, through
Booher's conduct at the meeting, violated Section 8(a)(1)
by: (1) threatening to fire employees who were for the
Union; (2) threatening to discontinue the practice of
giving pay advances because employees had sought
union representation; and (3) interrogating an employee
to ascertain his union sentiments.
6. The alleged threat of loss of employment if
employees engaged in a strike
In addition to contending that Booher mispresented
the legal rights of striking employees by making com-
ments not contained in the prepared speech he read at
the September 8 meetings, the General Counsel contends
that Respondent violated Section 8(a)(1) by reading the
following question and answer to employees during the
September 8 meetings. I 6
Question 8: If the union calls a strike, can we lose
our jobs?
Answer: YES. Under the law, if the union makes
you strike to try to force the company to agree to
the union's economic demands, this company is free
to replace the strikers. This means that after the
1' While I gained the impression that Vantilburg sought to tell the
truth to the best of his recollection, I do not credit his assertion that
Booher asked for a show of hands of who was for the Company during
the meeting, or his assertion that Booher asked the man from Colorado
how he was going to vote. With regard to the raise of hands, I suspect
Vantilburg confused the "electric car" meeting with the September 8
meeting, and I feel Cable's version of Booher's conversation with the
man from Colorado is more reliable.
6s Resp. Exh. 10, p. 4.
428
OHIO NEW AND REBUILT PARTS, INC.
strike is over, you may no longer have a job. The
law does not force the company to rehire you,
unless an opening occurs for which you are quali-
fied and you are next in line on the rehire list,
which could be a long time, if ever.
In the General Counsel's view, Respondent violated the
Act by reading the above question and answer to em-
ployees because it misrepresented the law.
While the Board and the courts have found that an
employee violates Section 8(a)(1) of the Act by telling
employees that if they engage in an economic strike they
can be permanently replaced, the instant Respondent
qualified its statement by indicating the law requires that
strikers be rehired if "an opening occurs for which you
are qualified and you are next in line on the rehire list."
While the above-quoted statement, which was read to
employees on September 8, fails to fully advise Respond-
ent's employees of the rights enjoyed by economic strik-
ers as delineated in Laidlaw Corp, 171 NLRB 1366
(1968), the statement explaining the law was merely in-
complete rather than false. I find that Respondent did
not grossly misrepresent the law by making the state-
ment under consideration and recommend that the appli-
cable paragraph of the complaint be dismissed.
7. The September 17 meeting
The record reveals that Respondent held a meeting
with its Wapakoneta employees on September 17, the
day before the election. It is undisputed that the meeting,
which was held in the warehouse, commenced shortly
after 10 a.m. Miller testified it ended at approximately
10:20 a.m. Reliable record evidence reveals that Re-
spondent's owner, Booher, read a prepared speech
placed in the record as Respondent's Exhibit 8 during
the meeting. When he appeared as a witness, Booher
gave no testimony concerning the meeting, save his as-
sertion that he never threatened to close the plant at any
time. Miller indicated during his testimony, however,
that he had read Booher's speech three to four times
prior to the meeting and he testified Booher's remarks at
the meeting were limited to the text of the prepared doc-
ument. The General Counsel sought, through the testi-
mony of employees Cable, R. Vantilburg, Teddy Cross,
and Hemmert, to show that Booher departed from the
prepared text and engaged in unlawful conduct during
the meeting.
Employee Cable indicated during his testimony that all
of Respondent's Wapakoneta employees and management
officials attended the September 17 meeting. He recalled
that Booher acted as Respondent's spokesman, and that
before he started to read a speech he commented that he
was sick as he had an ear infection or cold. Asked what
Booher discussed after mentioning his illness, Cable as-
serted that Booher told them that he would not have the
Union in there telling him what to do; and that anyone
who was for the Union, he would not have him at all.
Asked what else he could remember, Cable testified he
just read the speech about the Union and he wanted us
all to vote "No." Asked if Booher made any statements
about closing the shop, Cable claimed he said he would
close the shop if he had to.
Robert Vantilburg's description of the September 17
meeting was quite brief. He, like Cable, indicated that
Booher started the meeting by talking about his illness.
He claims Booher then asked for a show of hands of
who all were with him, and thereafter said something
about going to Dayton with employee Cross.
Hemmert's recollection was that Booher told employ-
ees at the September 17 meeting that, if the Union were
to get in there, he would shut the doors down, and he
had a bunch of daughters and a few sons-in-law that he
would bring in there to replace them. According to
Hemmert, Booher went on to say he "didn't want no
non-christian organization" running his business, and, at
some undescribed point, he said that, if the Union were
to get in there, he would immediately drop everybody's
benefits and their wages would drop to the minimum.
Asked whether Booher asked the people attending any
questions, Hemmert replied: "Yeah, how many were
going union-and he hoped that everybody would stick
with the Company." When counsel for the General
Counsel then asked: Did he ask for a response in any
way, from you? Hemmert stated: "Not really."i 7 Asked
if Booher made any statements about what would
happen to him if he did not vote for the Company, Hem-
mert replied: "You'd be looking for another job." When
counsel for the General Counsel then asked if Booher
made such a statement, Hemmert replied: "Yeah, well,
he didn't want anybody that wasn't for the Company
working for him." According to Hemmert, he looked at
his watch and the clock in the lunchroom and noted the
meeting ended at 10:45 a.m. He did not recall whether
Booher had anything in his hand during the meeting.
Teddy Cross, a truckdriver employed by Respondent,
was the last General Counsel witness to describe the
September 17 meeting. Cross testified he attended four
meetings, and he indicated he could not recall much
about the first three meetings. He recalled that Booher
indicated at the meeting under discussion that he wanted
to see everybody vote "NO." He then indicated that
more was said, but he did not remember what it was all
about. Thereafter, in response to leading questions, he re-
called that Booher made reference to starting a zero-to-
zero on wages, and that Booher indicated there were no
guarantees and if the Union got in he did not have to
sign a contract. Asked if strikes were discussed, he
claimed Booher said he could hire people off the street
to come in and do the work; employees would have no
paycheck coming in; and he would not have to hire em-
ployees back until he wanted to. Asked if employees
were asked to raise their hands, he stated they were
asked to raise their hands to see how many were for the
Union and how many were against the Union at one
meeting. He claims the meeting started at 10 a.m. and
ended at 10:50 a.m. 8
'7 During cross-examination Hemmert testified he was not asked di-
rectly which way he was going to vote at any meeting.
'8 Cross claims he left for Dayton as soon as the meeting was over and
logged the time as 10:50 a.m. in his logbook. The logbook was not pro-
duced.
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel contends in his brief
that I should find upon review of the testimony of em-
ployees Cable, Vantilburg, Hemmert, and Cross that
during the September 17 meeting Booher: (1) threatened
to fire prounion employees if the Union got in; (2) polled
employees to ascertain their union sentiments; (3) threat-
ened plant closure if the Union got in; and (4) threatened
to eliminate employee benefits and reduce them to the
minimum wage if the Union got in. While I agree with
his assertion that the record strongly suggests that
Booher departed from his prepared text on September
17,19 careful consideration of the testimony offered by
the General Counsel fails to convince me that Booher
engaged in most of the conduct attributed to him during
the September 17 meeting.
With respect to Cable's assertion that Booher told em-
ployees at the September 17 meeting that he would not
have the Union in there telling him what to do; and that
"anybody that was for the Union, that he wouldn't have
them at all," I note that the remarks described would not
appear to constitute a conclusion Cable may have
reached upon hearing the prepared speech read by
Booher during the meeting. Since Booher failed to deny
that he made the remarks attributed to him by Cable,
and I am persuaded that Cable sought to truthfully relate
what he recalled of the meeting, I find, as alleged, that
Respondent, through Booher, threatened during the Sep-
tember 17 speech to fire employees who were for the
Union if the Union got in. By engaging in such conduct,
Respondent violated Section 8(a)(1) of the Act as al-
leged.
Turning to the contention that Respondent polled its
employees to ascertain which way they would vote, I
note that Vantilburg's claim that Booher asked for a
show of hands of those who were with him is contradict-
ed by the testimony of Hemmert and that Cross indicat-
ed during his testimony that the show of hands may have
been requested at another meeting. In the circumstances,
I find that the General Counsel has offered insufficient
probative evidence to show that Respondent unlawfully
polled its employees during the September 17 meeting.
With respect to Booher's alleged threat to close the
plant and replace the employees with his daughters and
their husbands, I note that the September 17 prepared
speech contains considerable discussion of the possibility
of a strike and the actions Respondent could or might
take if a strike occurred. While I have no doubt that
Hemmert attempted to give his best recollection of what
was said at the September 17 meeting, he clearly voiced
the conclusions he reached upon hearing the speech and
I am persuaded that Booher's comments concerning pos-
sible Respondent actions in event of a strike caused
Hemmert to conclude Booher was threatening to close
the plant and replace employees with his relatives.
Absent corroboration of his testimony, I am unwilling to
find that Booher, who denied ever threatening to close
the plant, uttered the threat under discussion during the
September 17 meeting.
'9 In the absence of a specific denial. I credit Cable's assertion that
Booher commenced the meeting by telling employees he was ill, as
Cable's testimony was corroborated by Vantilburg.
Similarly, Cross' unsupported claim that Booher
threatened during the speech to eliminate employee ben-
efits and reduce employees to the minimum wage if the
Union got in appears to be a conclusion reached by
Cross upon hearing that portion of the prepared speech
dealing with Respondent's bargaining obligations and in-
tentions in event its employees selected the Union as
their bargaining representative. As Cross' assertion was
not corroborated by the other employees and it appears
likely that he was stating his conclusions rather than
what Booher actually said, I find that the General Coun-
sel has offered insufficient evidence to prove that Re-
spondent threatened plant closure if the Union got in on
September 17.
8. Booher and Miller's September 17 and 18
discussions with driver Cross
It is undisputed that, immediately after conducting the
September 17 meeting with employees, Booher went to
Dayton, Ohio, with Cross in the Company's truck. Cross
claims that, during the trip to Dayton, Booher asked him
how he felt about the Union; if he had talked to any
people on the CB about it, and if so how they felt; how
he was going to vote; and if he would wear a procom-
pany sticker that said "Go with the flow-vote no."
While Booher admitted that he discussed the Union
with Cross for perhaps 5 minutes during the ride to
Dayton, he claimed that Cross initiated the discussion by
telling him: "You know, Mel, you and I have been
friends too long that I don't have to wear one of those
badges." According to Booher, there was little other dis-
cussion of the Union. He denied he asked Cross during
the trip whether he was going to vote for the Union or
the Company.
In addition to attributing the above-described remarks
to Booher, employee Cross testified that before he voted
on September 18 Miller told him, "Think of two things:
your car and you house. If you don't vote no, I'll break
you arm." Miller admitted when he appeared as a wit-
ness that Respondent had either made loans to or ar-
ranged for Cross to obtain loans for his car and his
house. He admitted he told Cross before he voted to re-
member two things, a house and a car, but denied he
told him he would break his arm if he did not vote no.
Obviously the conflicting testimony set forth above
poses a situation in which the credibility of the witnesses
must be determined.
With respect to the Cross-Booher conversation, I note
initially that, while Booher has an interest in the out-
come of this case, Cross is a somewhat disinterested
party as he has not worked for Respondent since Sep-
tember 1981. While the testimony given by this employ-
ee regarding the September 17 meeting consisted primar-
ily of the conclusions he reached upon hearing Booher
read a prepared speech, his description of occurrences
during the trip to Dayton with Booher was delivered in
straightforward manner without hesitation. On the other
hand, when Booher referred to the conversation he
failed to state his best recollection of the conversation
and chose, instead, to merely assert that Cross started the
conversation and to generally deny that he asked Cross
430
OHIO NEW AND REBUILT PARTS, INC.
how he was going to vote in the election. Cross was the
more impressive witness, and I credit his assertion that
Booher, who had just concluded a speech by stating he
was "personally asking you [the employees] to vote no
tomorrow," asked him on the ride to Dayton how he in-
tended to vote in the election.
With respect to Booher's claim that the employees,
rather than himself, initiated the conversation concerning
the procompany button, I am inclined to accept Booher's
testimony because the record reveals that Miller had of-
fered Cross such a button at some unspecified time and it
would seem logical to assume that Cross would initiate
such a conversation as he apparently was not wearing
such a button on September 17. In sum, for the reasons
stated, I find that Respondent, through Booher, violated
Section 8(a)(1) by interrogating an employee concerning
his union sentiments on September 17, 1981. 1 further
find that the General Counsel has failed to offer suffi-
cient probative evidence to prove that Cross was asked
by Booher to wear a procompany button on the same
date.
While I have concluded there was an element of truth
in Booher's denial that he engaged in the conduct attrib-
uted to him during the ride to Dayton, I have no diffi-
culty in deciding that Cross is to be credited rather than
Miller. Throughout the trial, I gained the impression that
Miller was tailoring his testimony to meet the needs of
Respondent's defenses. I find, as alleged, that Miller
sought to interfere with, coerce, and restrain Cross in the
exercise of his Section 7 rights on September 18, 1981,
by uttering to Cross the remark attributed to him by the
employee. Such conduct violates Section 8(a)(l) of the
Act as alleged.
9. The attendance policy
Paragraph 10(a) of the complaint alleges that Respond-
ent violated Section 8(a)(l) by adopting a more stringent
attendance policy on July 20, 1981.
Miller indicated during his testimony that although
Respondent sought to deter employee absenteeism prior
to July 20 by giving employees a bonus of $1 per hour if
they worked the scheduled hours during a given week,
Respondent had no written attendance policy. Indeed,
the record reveals that employees could, prior to July
20, be absent for extended periods of time and suffer no
consequence. Illustrative is the fact that the record re-
veals that employee Charles Hogan had some 23 days of
unexcused absence between January 1, 1981, and May 9,
1981, but was not terminated until the latter date. Simi-
larly, the record reveals that several of the alleged discri-
minatees in the instant case (R. Vantilburg and D. Cable)
missed work on numerous occasions, failing even to call
in, prior to July 20 without suffering any consequenc-
es.20
It is undisputed that Respondent promulgated and im-
plemented a new attendance policy on July 20 by distrib-
uting the following document to its employees and post-
ing a copy on its bulletin board.
20 See Resp. Exhs. I and 2.
In order to assure good attendance and equity in
application of discipline, the following guidelines
are being established.
Whenever you are absent, you are expected to
call in and notify the Company. You must notify
the Company as to why you will be off and
when you are expected to return.
Three consecutive days without a call in will
be considered a voluntary quit.
An employee who misses 3 days of work
(except on the advice of a doctor) in a 6 month
period will be given an oral warning to improve
his attendance.
After the 4th missed work day (or occurrence)
he will be given a written warning, in an effort to
improve his attendance.
After the 5th occurrence, the employee will be
given a disciplinary suspension of 3 days.
If after this, there is a 6th occurrence, the em-
ployee will be terminated for excessive absentee-
ism.
The Company insists upon good attendance in
order to get the work done that is to be done. Also,
when an employee misses work his fellow employ-
ees have to work hard to take up the slack.
During his testimony, Miller sought to clarify and fur-
ther define the attendance policy followed by Respond-
ent from July 20 forward. He explained the meaning of
the word "occurrence" used in the written document
given to employees by indicating that, basically, an oc-
currence was an unexcused absence.21 Asked whether
any excuse other than a doctor's excuse caused Respond-
ent to treat employee absences as unexcused, Miller indi-
cated that such determinations were made on an ad hoc
basis. In this vein, he testified that death in the family
would cause him to treat an absence as excused, and he
admitted that, on one occasion when an employee spent
5 days in jail without calling in or subsequently present-
ing a written excuse, he treated the absence as excused.
On the other hand, Miller indicated that if an employee
left work sick but returned to work without a doctor's
excuse, his absence would be treated as an unexcused ab-
sence. 22 Finally, Miller indicated that Respondent al-
tered its recordkeeping upon adopting its new attendance
policy as it commenced on July 20 to maintain attend-
ance cards for each employee rather than simply note
the fact of or reason for employee absences on their
timecards.
In sum, the record reveals that Respondent had no set
attendance policy prior to July 20 and that employees
could absent themselves from work without calling in or
offering an excuse for their absence upon their return
21 If an employee was absent for one-half day and the absence was
deemed unexcused, he was credited with one-half occurrence.
22 Miller testified certain situations permitted employees to request and
receive leaves of absence and that, if such leave was granted, the ab-
sences did not count as occurrences. In this regard, he indicated that
Robert and Harry Vantilburg were granted a leave of absence during the
week preceding Robert's termination as their father had been hospitalized
with a serious illness.
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and suffer no consequences until they had been absent so
frequently that even the most lenient of employers would
have terminated them. On July 20, 11 days after the
Union demanded recognition, and I week after the
Union filed its petition in Case 8-RC-12562, the attend-
ance policy under discussion was implemented. Under
the new policy, employees were required to call in if
they were to be absent and they were required to submit
a doctor's excuse if their absence was to be deemed to be
excused. Under the new policy, six unexcused absences
within a 6-month period subjected the employees to dis-
charge.
In agreement with counsel for the General Counsel, I
find that the facts summarized above warrant an infer-
ence that Respondent promulgated and adopted its at-
tendance policy on July 20 because its employees were
seeking union representation.
During the trial Respondent, through the testimony of
Miller, claimed that it had hired a new safety director at
some unstated time prior to July 20 and that he was
hired, in part, because Respondent desired to promulgate
an attendance policy and a safety policy. Respondent did
not, however, adduce any testimony which would reveal
that the new safety director promulgated the attendance
policy under discussion prior to the commencement of
the union organizational campaign, and it offered no
reason for selecting July 20 as the date for implementa-
tion of the policy.
In sum, I find that the General Counsel has proved,
prima facie, that Respondent implemented a more strin-
gent attendance policy for discriminatory reason on July
20, 1981. I further find that Respondent has failed to
rebut the General Counsel's prima facie showing of viola-
tion. Accordingly, I find that by promulgating and im-
plementing the policy under discussion on July 20, 1981,
Respondent violated Section 8(a)(1) of the Act as al-
leged. 2
C. The Alleged 8(a)(3) Violations
1. The August 11 suspension and reprimand of
Steven Leugers
Paragraph I of the complaint alleges that Respondent
suspended and reprimanded employee Steven Leugers on
August 11, 1981, because he made complaints concerning
unsafe working conditions and/or in order to discourage
employees from engaging in concerted activities for the
purpose of collective bargaining or other mutual aid and
protection.
'3 The record reveals that Respondent, after being investigated by
OSHA as a result of employee complaints, promulgated and implemented
a "Progressive Disciplinary Program" on July 27, 1981, to "insure proper
compliance with Company Safety Regulations and O.S.H.A. require-
ments." Although such action was not alleged as a violation in the com-
plaint, counsel for the General Counsel urges me to find that Respondent
violated Sec. 8(a)(3) and (I) of the Act by promulgating and implement-
ing the policy. As the General Counsel failed to amend the complaint to
allege that the action under discussion was unlawful, Respondent made
no attempt to explain why the action was taken on July 27. In the cir-
cumstances, I conclude the issue was not fully litigated at the trial and
refrain from finding the violation. Assuming, arguendo, the issue was fully
litigated, I conclude no violation of the Act has been established. See
Atlas Corp., 256 NLRB 91 (1981).
The facts concerning the situation Leugers found him-
self in on August 11 are not in dispute. Leugers indicated
during his testimony that his work tasks at Respondent's
Wapakoneta plant included changing batteries, loading
lead into a smelter which melted the lead, and pouring
lead from the smelter into castings called pigs. With re-
spect to the last described task, Leugers indicated the hot
molten lead in the smelter reaches approximately 800 de-
grees and, to accomplish pouring of the lead into pigs
which are positioned on a rotating platform, the pourer
puts on asbestos gloves to protect his hands when he
reaches into the top of the smelter to operate the valve
that permits the lead to escape. According to Leugers,
he notified Halter on August 10 that the available asbes-
tos gloves had no more asbestos on the fingers and the
employee asked if any new asbestos gloves were avail-
able. After Halter answered that gloves were on order
but had not been received, Leugers put on two pair of
the available gloves which afforded cloth protection
only for the fingers and poured the lead from the smelt-
er.
On the afternoon of August 11, while he was putting
water into batteries and wiring them so they could be
charged the following day, Halter approached Leugers,
who had helped load the smelter with lead that day, and
told him to pour the lead into the pigs. Leugers informed
Halter he would not pour the lead because the Company
had not provided him with proper safety equipment, and
added that he was willing to perform any other work
that Halter wanted to assign to him. Halter instructed
the employee to go home if he would not pour the lead.
Leugers indicated during his testimony that he had not
completed watering and wiring the batteries which were
to be changed the following day when he was sent home
about 2 p.m.
When he reported for work on August 12, Leugers
was given a letter of reprimand signed by Miller which
stated:24
This is to advise you that your performance of yes-
terday, where you were grossly insubordinate and
refused to perform reasonable duties cannot be tol-
erated.
This is your final warning that should there be a re-
occurrence of this behavior it may lead to further
disciplinary action, up to and including discharge.
Citing Keystone-Seneca Wire Cloth Co., 244 NLRB 398
(1979), and Thermofil, Inc., 244 NLRB 1056 (1979), the
General Counsel argues that the facts in the instant case
parallel those in the cited cases, and, accordingly, I
should conclude that Respondent violated the Act when
it temporarily suspended and subsequently reprimanded
Leugers. I aqree.
In the cited cases, the employees involved refused to
operate machines because they personally felt that they
miqht be injured. Neither employee discussed his inten-
tion to refuse to operate his machine with other employ-
ees prior to his refusal to perform, but in each instance
24 See G.C Exh. 38.
432
OHIO NEW AND REBUILT PARTS, INC.
the facts revealed that the employees were pursuing a
matter of concern to other employees who were not
shown to have disavowed the action of the protesting
employee. Here, the record reveals that Leugers refused
to pour lead because he felt his fingers might get burned.
While he did not discuss his intention to refuse to pour
the lead with his fellow employees, the record reveals
that several employees other than Leugers regularly ac-
complished the necessary pouring of lead from the smelt-
er, and those employees were not shown to have dis-
avowed Leugers' refusal-to-pour action. Under the ra-
tionale expressed in the above-named cases, Leugers en-
gaged in protected concerted activity when he refused to
pour lead on August 11. In the circumstances described,
I find that by sending Leugers home at 2 p.m. on August
11 and by issuing a written reprimand to him on August
12, Respondent violated Section 8(a)(3) of the Act as al-
leged.
2. The discharge of Daniel Cable
Paragraph 12 of the complaint alleges that Respondent
discharged Dan Cable on September 22, 1981, because
he had joined, supported, or assisted the Union and/or
engaged in protected concerted activities and/or in order
to discouraqe employees from engaging in union or other
protected concerted activities.
Cable was hired by Respondent in mid-May 1981.
While employed, he worked as a laborer in the battery
cutting room. His job involved scrapping old batteries.
During the union campaign, Cable signed an authori-
zation card on July 7, and, on July 7 and 8, he distribut-
ed cards to other employees. Some six other employees
signed cards given them by Cable.
As noted, supra, Cable made his union sentiments
known to Booher, Halter, and Miller at the small group
meeting he attended on September 8. It is clear, and I
find, that Respondent was fully aware of the fact that he
favored representation of the employees by the Union.
Respondent claims that Cable was lawfully discharged
pursuant to the attendance policy it promulgated and
adopted on July 20. The General Counsel contends that
the discharge was unlawful because: (1) it resulted as a
consequence of an unlawfully implemented attendance
policy; (2) that Cable was the victim of disparate treat-
ment; and (3) that the reason assigned was shown to be
pretextual because Respondent did not, in dealing with
Cable, follow the attendance policy implemented on July
20.
With respect to the claim that Cable was subjected to
disparate treatment, the General Counsel points, in par-
ticular, to the attendance records of employees Tom
Boedecker (G.C. Exh. 41), Miller's testimony revealing
the absenteeism of employee Carl Williams, the attend-
ance record of Richard Koch (G.C. Exh. 40), and the at-
tendance record of employee Ron Bigham (G.C. Exh.
42).
Boedecker's attendance record reveals he was charged
with 13 days of unexcused absences during the period
July 20 through August 8. In addition, although Re-
spondent ceased to record the employee's unexcused ab-
sences after August 8, Miller indicated during his testi-
mony that Boedecker did not report for work or call in
during the 30 days preceding his termination for absen-
teeism on September 8, 1981. Asked why he did not ter-
minate Boedecker after he had accumulated six unex-
cused absences, Miller testified he wanted to wait until
the employee came back to work and he had heard his
excuse for being absent.
Respondent had no attendance record for Carl Wil-
liams but produced the employee's timecards which re-
vealed he had unexcused absences on August 9 and 29,
and September 9, 19, 25, and 26. While Williams submit-
ted no doctor's excuse for his absence on August 9,
Miller testified he decided to treat the absence as ex-
cused because Williams subsequently presented a doc-
tor's excuse indicating his absences from August 10
through August 17 were caused by a sacroiliac condi-
tion.
Inspection of Koch's attendance record reveals that at
one time eight "X" marks denoting unexcused absences
were placed on the card. Thereafter the letters "EO"
(excused other) were placed over the X mark for the
date August 22 and a circle or zero was placed over the
X mark for the date October 4. Miller failed to indicate
when discussing the Koch attendance record why the
August 22 absence was excused, but he testified the zero
was placed in the square for October 4 because Koch
was actually present that day and was erroneously
charged with an unexcused absence. According to
Miller, Koch was also erroneously charged with an un-
excused absence on October 14 after the employee quit
on October 13.
Bigham's attendance record reveals that he was
charged with 13 days of unexcused absence during the
period July 20 through October 1.25 At some subsequent
time, three of the full-day absences (August 10, 11, and
25) and a one-half day absence (August 24) were re-
marked excused s/s (self sickness). Additionally, Bigh-
am's absence during the period September 14 through
September 18, three of which had previously been
marked as unexcused, were marked excused with the
letter LA (leave of absence). Miller indicated he excused
Bigham's 5 days of absence on September 14, 15, 16, 17,
and 18 because he learned the employee was in jail
during that period.
Employee Cable's attendance record was placed in the
record as General Counsel's Exhibit 45. It reveals that
Cable was charged with unexcused absences on August
10, 15, and 24 and September 12 and 20. Additionally, he
was charged with one-half day of unexcused absence on
September 1. During his testimony, Miller indicated that
the Cable attendance record was inaccurate and failed to
reveal the full extent of Cable's unexcused absences.
Thus, through Miller, Respondent placed a compilation
of Cable's attendance in the record as Respondent's Ex-
hibit 2. Inspection of the document coupled with Miller's
testimony produces the following: The exhibit reflects
that Cable had unexcused absences on September 8 and
19, but Miller testified such entries are incorrect because
September 8 was a holiday and Cable actually worked
on September 19 until all employees clocked out to
25 He was charged with one-half day unexcused absences on August
24 and September 25.
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attend a company picnic. Continuing, Miller testified
Cable was charged with an unexcused absence on
August 10 because he went home sick and failed to bring
in a doctor's excuse the next day; that he was charged
with an unexcused absence on August 15 when he called
in and reported he had car trouble; that he was charged
with one-half day of unexcused absence on August 22
because he was 30 minutes late and left at 10:30 a.m. be-
cause he was mad because he lost his attendance bonus;
he had an unexcused absence on August 24 because he
did not show up or call in; he had an unexcused absence
on September 12 because he did not show up or call in;
he had an unexcused absence on September 14 because
he came in with a doctor's excuse indicating his girl-
friend had been treated and Miller would not accept his
claim that he had to take his live-in girlfriend for treat-
ment. Respondent's exhibit in question is somewhat am-
biguous as it indicates Cable subsequently brought in a
doctor's excuse for his September 14 absence and it indi-
cates he was absent on September 21 but brought in a
doctor's excuse for that absence on September 22.
On September 15, Cable was given a letter which
stated, inter alia:2 6 In lieu of suspension, this is your
final warning that any absenteeism with or without a
Doctor's excuse or early departures will result in
your immediate dismissal. [Emphasis supplied.]
On September 22, the alleged discriminatee appeared for
work with a doctor's excuse for the September 21 ab-
sence. Miller refused to accept the excuse and terminated
the employee.
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board set forth the causation test to be used in all cases
alleging violation of Section 8(a)(3), stating:
First, we shall require that General Counsel make a
prima facie showing sufficient to support the infer-
ence that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Summarized, the record in this case reveals: that Re-
spondent, through Booher, exhibited marked union
animus during meetings with employees on August 12
and September 8 by, inter alia, indicating he would know
the identity of union supporters after the election and he
would fire them; that employee Cable interrupted man-
agement's presentation at the September 8 small group
meeting he attended by telling management officials that
he favored union representation and by telling the other
employees that, while belonging to three unions, he had
never been treated as management predicted they would
be treated if they selected the Union as their bargaining
agent; that Respondent unlawfully implemented a new
attendance policy shortly after the Union petitioned for
an election, and the policy indicated that work missed
"on the advice of a doctor" would be treated as an ex-
cused absence; that an election was held on September
28 See G.C Exh. 21.
18, a Friday, and challenges were determinative of the
results; that Cable was warned on September 15 that if
he missed any further work "with or without a Doctor's
excuse" he would be immediately terminated; that after
implementation of the July 20 attendance policy Re-
spondent treated absences of employees other than
Cable, including absences caused by sickness, as excused
absences although no doctor's or other written excuse
was tendered to management; and that on September 21,
3 days after the election was held, Cable, who then had
been charged with less than six previous absences from
July 20 to that date, was absent and, on September 22,
Respondent refused to accept the doctor's excuse he of-
fered to justify the absence and terminated the employee.
Patently, the facts summarized above are sufficient to
support the inference that Cable's union activity was a
"motivating factor" in Respondent's decision to termi-
nate him.Respondent sought to defend its decision to ter-
minate Cable by placing a compilation of his absences in
the record to show that it had actually been quite lenient
with Cable as he had a bad absenteeism record from his
date of hire-May 14, 1981-until the date of his dis-
charge on September 22. While the document, Respond-
ent's Exhibit 2, does, in fact, reveal that Cable did not
show up for work and failed to call in on several occa-
sions prior to July 20, 1981, that evidence is not germane
because Respondent notified its employees on July 20
that their prior absences would not be counted against
them when the new attendance policy was implemented.
With respect to the period extending from July 20 to
September 22, the compilation, as corrected by Miller
during his testimony, fails to reveal that Cable had six
unexcused absences within a 6-month period at the time
he was terminated if the September 21 absence was
deemed to be excused rather than unexcused. As Re-
spondent failed to give a persuasive reason for its deci-
sion to alter its policy so as to treat Cable's absences sub-
sequent to September 15 as unexcused even if he justified
the absence(s) by presenting a doctor's excuse for them, I
am compelled to conclude it took such action because it
desired to terminate him because of his union activities
and sentiments.
In sum, I find that Respondent has failed to demon-
strate that it would have terminated Dan Cable on Sep-
tember 22, 1981, even in the absence of his protected
conduct. I find, as alleged, that by discharging Cable on
September 22, 1981, Respondent violated Section 8(a)(3)
and (1) of the Act.
3. The discharge of Robert Vantilburg
Paragraph 13 of the complaint alleges that Respondent
terminated employee Robert Vantilburg on October 8,
1981, because he had joined, assisted, or supported the
Union and/or because he had engaged in concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection. It is undisputed that Vantilburg
was discharged on October 8 when he refused to operate
a saw which cuts off the tops of batteries. The facts sur-
rounding Vantilburg's refusal to operate the saw are in
dispute.
434
OHIO NEW AND REBUILT PARTS, INC.
The record reveals Vantilburg was hired by Respond-
ent on November 4, 1980. He worked throughout his
employment in Respondent's battery cutting room where
the tops were sawed off of batteries and the lead was re-
moved. According to Vantilburg, four men were usually
involved in the sawing operation; one takes batteries off
of a skid and puts them on rollers upside down to drain
the battery acid: the saw man then passes the battery
through the saw cutting off the battery posts and top; a
third man slides the batteries down over rollers; and a
fourth man removes the batteries from the rollers and
stacks them.
Vantilburg first manifested his concern over the safety
of the battery saw at some unstated time shortly prior to
April 17, 1981, by calling OSHA and filing a complaint
with that office. Thereafter, on April 17, OSHA compli-
ance officer Ron Huffman appeared at the Wapakoneta
plant to conduct an inspection. As noted, supra, Halter
then threatened to fire Vantilburg if he spoke with Huff-
man during the inspection. Despite the threat, Vantilburg
showed him the battery saw and demonstrated how acid,
lead, and plastic chips came out of both ends of the saw
when batteries were passed through it.
On May 15, 1981, Vantilburg received a letter from
Glen L. Butler, area director for OSHA, advising him,
inter alia, "The battery cutter saw was inspected and
found to be in violation. The rollers had been repaired
prior to the Compliance officer's arrival at the plant." 2 7
Enclosed with the letter were copies of the alleged viola-
tions found by the compliance officer. With respect to
the battery saw, the following alleged violation was
noted:
29 CFR 1910.212(a)(1): Machine guarding was not
provided to protect operator(s) and other employ-
ees from hazard(s) created by flying chips:
At the battery cutting saw in the cutting room at
the north end of the building. Lead and plastic
chips were fying out of the saw at both ends of
the apparatus. Employees were exposed to flying
chips penetrating the sides of the face shield.
The citation listing the described alleged violation indi-
cated that the alleged battery saw violation was to be
remedied by May 4, 1981.
After the April OSHA inspection, Vantilburg asked
that he be taken off the saw because he had gotten acid
in his eyes on several occasions even though he wore ap-
propriate safety gear which included a face shield, arm-
guards, an apron, and boots. 2 8 He claims his request was
granted and that thereafter Russell Metzger and Don
King alternated operating the saw. Vantilburg further in-
dicated that Halter asked him to run the saw in mid-
August and approximately 1 week before the September
18 election. He refused on both occasions and claims
Halter told him he would get someone else. 29
27 See G.C. Exh. 46.
2" Vantilburg testified without contradiction that he went to the
doctor three times after getting battery acid in his eyes and that he
missed several days' work after such mishaps.
29 Halter denied that Vantilburg ever told him he refused to operate
the saw. and he testified there was never a 2-month period during which
During the union organization campaign, Vantilburg
signed an authorization card. As noted, supra, he attend-
ed the same group meeting employee Cable attended on
September 8 at which cards were used to explain the dis-
advantages of belonging to the Union. At or about the
time of the September 8 meeting, Booher interrogated
Vantilburg concerning his union sentiments, and, as indi-
cated, supra, Vantilburg informed Booher he intended to
go to a union meeting that night to ask them the same
questions management had asked at the meeting.
At some point not described with any certainty by the
witnesses who testified at the hearing, an extra rubber
flap was added to both ends of the battery cutting saw to
reduce the amount of lead, plastic, and acid which came
from the saw when it was in operation. It is undisputed,
however, that even with the added rubber flaps lead,
plastic, and acid continued to be thrown by the saw, par-
ticularly on those occasions when all the battery acid
had not been emptied out of the batteries.
During the week preceding his discharge, Vantilburq
and his brother Harry requested and were granted leaves
of absence for Monday through Thursday because their
father was in the hospital. Miller testified without contra-
diction that, while they had promised they would return
to work on Friday, neither reported on Friday or Satur-
day. On Monday morning, October 8, some 10 minutes
before Robert Vantilburg refused to operate the battery
cutting saw, Miller claims he agreed to extend both em-
ployees' leaves of absence to cover Friday and Saturday.
At approximately 7 a.m. on Monday, October 8, Miller
appeared in the doorway to the cutting room and told
Robert Vantilburg he wanted him to operate the battery
cutting saw. What happened thereafter is in dispute.
Vantilburg claims he told Miller he did not want to be-
cause it was unsafe; that lead and acid and plastic chips
still flew out of it. According to Vantilburg, Miller then
informed him: "When you are working for me you will
do anything I tell you to do." Vantilburg claims he then
informed Miller he would do anything back there except
for running the saw and that he specifically told him he
would load rollers, beat lead out of batteries, or anything
back there. At that point, Vantilburg claims Miller told
him to go home.
Miller's version of the incident which led to Vantil-
burg's termination is that he told Vantilburg he wanted
him to operate the saw, and Vantilburg replied he was
not going to run the saw, have Russell Metzger do it.
Miller claims Vantilburg said nothing about the saw not
working right; said nothing about acid in his eyes; and
gave no reason for refusing to operate the saw.30 Miller
testified that he would have caused the flaps on the saw
to be repaired or he would have issued safety goggles to
Vantilburg if he had indicated he did not want to oper-
ate the saw because he felt it was unsafe.
Vantilburg did not operate the saw. I credit Vantilburg who was by far
the more impressive witness.
ao Respondent sought to corroborate Miller's testimony throuqh em-
ployee Metzger. Metzger was a very confused witness and his testimony
is not reliable. In any event, he indicated he did not hear all of the con-
versation between Miller and Vantilburg on the occasion in question.
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Vantilburg's version of the conversation which
led to his discharge. In addition to the fact that Miller
was an evasive witness, I note that when Leugers re-
fused to pour lead from the smelter because suitable as-
bestos gloves were not available, Miller issued him a
warning the next working day which indicated Miller's
feeling that the employee had engaged in insubordinate
conduct. I conclude he reacted in like fashion when Van-
tilburg told him he would not operate the saw because it
was unsafe.
The General Counsel claims the record reveals that
Robert Vantilburg was discharged because he was a
known union advocate, and because he engaged in pro-
tected concerted activity by refusing to operate the bat-
tery cutting saw on October 8. 1 conclude that he has
failed to establish, prima facie, that Vantilburg was fired
because of his union activities. In this connection, I note
that Respondent placed a compilation which allegedly
revealed Vantilburg's attendance record in evidence as
Respondent's Exhibit I. That exhibit reveals that Vantil-
burg experienced numerous absences from work which
would have been deemed unexcused if the same criteria
applied to Cable's absences were applied to Vantilburg's
absences. Had Respondent desired to discharge Vantil-
burg because of his union activities, I am convinced
Miller would have treated Vantilburg's absence on the
Friday and Saturday preceding October 8 as unexcused,
thus enabling Respondent to claim he was discharged be-
cause of absenteeisms. In my view, the sole issue in the
Vantilburg situation is whether he was engaged in pro-
tected concerted activity when he refused to operate the
battery cutting saw on October 8.
In agreement with counsel for the General Counsel, I
conclude that the record reveals that Vantilburg engaged
in protected concerted activity when he refused to oper-
ate the battery saw on October 8. Thus, it is undisputed
that subsequent to the time that the OSHA compliance
officer determined that the cutting saw was operated in
violation of OSHA standards because it emitted lead and
plastic chips, the saw continued to emit acid, bits of lead,
and pieces of plastic.3s In the circumstances, Vantil-
burg's belief that the saw was unsafe was a reasonable
belief. While Vantilburg, an experienced saw operator,
was not shown to have discussed his intention to refuse
to operate the saw with his fellow employees, the record
clearly reveals that other employees operated the saw
most of the time. Consequently, Vantilburg's refusal to
operate the saw benefited and was of concern to other
employees, who were not shown to have disavowed his
action. In my view, the situation described is comparable
to the situations of the employees who refused to operate
machines in Thermofil, Inc., supra, and Keystone-Seneca
Wire Cloth Co., supra.
In sum, for the reasons stated, I find that by terminat-
ing Robert Vantilburg because he engaged in protected
concerted activity by refusing to operate the battery cut-
ting saw on October 8, 1981, Respondent violated Sec-
tion 8(a)(l) of the Act.
sL All the employee witnesses who gave testimony, including Hem-
mert, Stauffeur, and Respondent witness Metzger indicated as much
during their testimony.
D. The Request for a Bargaining Order
The complaint alleges that on July 9, 1981, the Union,
which then represented a majority of the employees in
an appropriate bargaining unit, demanded that Respond-
ent recognize it as the collective-bargaining representa-
tive for such employees and that Respondent unlawfully
refused to accede to the request, thereby violated Sec-
tion 8(a)(5) of the Act.
At the outset of the hearing, the parties agreed by stip-
ulation that the appropriate bargaining unit is:32
All full-time and regular part-time production and
maintenance employees, truckdrivers and counter
sales employees employed by the Employer at its
100 Keller Dr., Wapakoneta, Ohio and its 459
North Main St., Lima, Ohio facilities, excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
As noted, supra, the Union did not, as of July 9, 1981,
possess any authorization cards which had been executed
by employees employed at Respondent's Lima facility.
Moreover, I have indicated I do not credit Union Repre-
sentative Brodie's assertion that he told Respondent's as-
sistant manager Halter on July 9 that the bargaining unit
he represented was composed of the employees em-
ployed at both the Lima and the Wapakoneta facilities.
Accordingly, I find that the Union did not request recog-
nition as the bargaining agent of employees in the bar-
gaining unit which was stipulated to be appropriate on
July 9 as alleged.
With further regard to the complaint allegations relat-
ing to the Union's representative status on July 9, I note
that the only evidence offered to reveal the names and
number of employees in the above-described bargaining
unit at any given time is a document entitled "Agree-
ment on Voting Eligibility" dated August 10, 1981,
which was placed in the record as the General Counsel's
Exhibit 4. That document reveals that as of August 10 30
named eligible voters were employed at the Wapakoneta
facility and that 5 named eligible voters were then em-
ployed at the Lima facility.
In sum, as the record fails to reveal that the Union re-
quested recognition in an appropriate bargaining unit on
July 9, and it also fails to reveal the names of employees
in the unit stipulated to be appropriate on July 9, it is ob-
vious that Respondent in this case cannot be found to
have violated Section 8(a)(5) by refusing to recognize the
Union as the collective-bargaining representative of its
employees on July 9, 1981.
Under present Board law, the findings set forth above
are not dispositive of the bargaining order issue in this
case. As noted by the Board in Peaker Run Coal Co., 228
NLRB 93, 93-94 (1977), the Supreme Court in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969), approved the
Board's use of bargaining orders to remedy an employ-
er's independent 8(a)(l), (2), or (3) violations which un-
dermine a union's majority status and fatally impede the
holding of a fair election. In Gissel, the Court described
32 See G.C. Exh. 3.
436
OHIO NEW AND REBUILT PARTS, INC.
two types of situations in which such orders are appro-
priate. The first involves those unfair labor practices
which are so outrageous and pervasive that traditional
remedies cannot erase their coercive effect, with the
result that a fair election is rendered impossible. The
second involves less extraordinary cases marked by less
pervasive unfair labor practices which nonetheless still
have the tendency to undermine majority strength and
impede the election process. In my view, the unfair labor
practices committed by the Respondent were not so out-
rageous and pervasive as to fall within the first category
described in Gissel. Remaining then is the need to deter-
mine whether the practices were such that a bargaining
order should issue upon the second theory described.
In the second situation described in Gissel, the Board
will issue a bargaining order to remedy 8(a)(1), (2), and
(3) violations if the union represents a majority of em-
ployee's employees at some point in time and the Board
finds "that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order."
With respect to the Union's majority status, the record
reveals that the 19 employees named supra signed union
authorization cards on or before July 9, 1981. Subse-
quently, the following employees signed cards on the
dates indicated: Teddy-Cross-7/18/81; Dan Hemmert-
7/17/81; Lewis Brooks-7/23/81; and Bruce Lloyd-
7/13/81.33 Thus the record reveals that 23 of the 35 em-
ployees stipulated to be bargaining unit employees who
were eligible to vote executed authorization cards. While
Respondent contends that the cards of 3 employees-
Robert Vantilburg, Teddy Cross, and Dan Hemmert-
cannot be counted because the employees were told the
sole purpose of the card was to obtain an election, 20 of
the cards are not challenged. 34 It is clear, and I find,
that as of July 23, 1981, the Union represented a clear
majority of the employees in the appropriate bargaining
unit.
Summarized, the record in this case has caused me to
find that Respondent embarked upon an unlawful course
of conduct intended to cause its employees to abandon
the Union on August 12 when its owner threatened to
fire union adherents and predicted that their selection of
the Union as their representative would cause him to
raise prices and go out of business. Thereafter, Respond-
ent officials unlawfully interrogated employees concern-
3J See G.C. Exhs. 10, 23, 30, and 31, respectively.
34 While Vantilburg, Hammert, and Cross testified they were told that
by signing the card they would get an election, or (Cross) that they (the
Union) would try to get an election, each of the employees testified he
read the card presented to him before he signed it. The pertinent lan-
guage appearing on the cards is:
AUTHORIZATION FOR REPRESENTATION
I hereby authorize the Truck Drivers, Warehousemen and Hlelpers
Union, Local No. 908, through its Officers and Agents, to represent
me in rates of Pay, Hours of Labor, and other conditions of Employ-
ment, including election by the National Labor Relations Board. I
find that the cards signed by the employees named are valid cards
which may be counted as valid authorizations.
ing their union sentiments, informed them it was going to
discontinue the practice of giving pay advances, unlaw-
fully adopted a more stringent attendance policy, sought
to intimidate an employee by insinuating he would re-
ceive no further financial aid if he failed to vote for the
Company, and generally sought to convince employees
that they would gain nothing if the Union became their
bargaining agent. Last, but not least, Respondent tempo-
rarily suspended and reprimanded an employee for law-
fully protesting safety conditions; terminated a second
employee because he refused to perform what he justifi-
ably considered to be dangerous work; and, subsequent
to the election, discharged the most outspoken union ad-
herent because he had openly supported the Union.
In sum, the record clearly reveals that the Union rep-
resented a majority of Respondent's employees in an ap-
propriate bargaining unit on July 23, 1981, and that
thereafter Respondent engaged in the above-described
unfair labor practices with the intention of dissipating the
Union's majority status. As observed by counsel for the
General Counsel in his brief, the Board has found that
threats of plant closure and the discharge of employees
for engaging in union activity are actions which invari-
ably create a lasting effect upon employees. In my view,
each of the unfair labor practices committed by Re-
spondent had a tendency to undermine the Union and
impede the election process. Noting that Respondent's
coercive conduct continued until the eve of the election,
and that it terminated the most outspoken advocate after
the election, I conclude that the possibility of erasing the
effects of past practices and ensuring a fair election by
the use of traditional remedies is indeed slight in the in-
stant situation.
In sum, having considered all the relevant facts con-
cerning Respondent's unfair labor practices, I conclude
that they were sufficiently serious and pervasive in char-
acter to preclude the holding of a fair election and that,
on balance, the sentiment of Respondent's employees ex-
pressed through their signatures on cards would be
better protected by issuance of a bargaining order.
E. Case 8-RC-12562
I have found that Respondent violated Section 8(a)(l)
of the Act during the critical period during the critical
period by, inter alia: interrogating its employees regard-
ing their union activities and sentiments; threatening
plant closure if the employees selected the Union as their
bargaining agent; and threatening to fire employees for
engaging in union activities. As these findings reasonably
tend to substantiate the matters alleged in Objections 2
and 3, the latter are sustained.
Objection 1 alleges that on August 12, 1981, and on
other occasions during the organizational campaign, the
Employer inflamed employees by stating the Petitioner
was anti-Christian and a good Christian would not vote
for the Petitioner. While the record does reveal that Re-
spondent's owner, Booher, characterized the Union as a
non-Christian organization on August 12 and on other
occasions, the record further reveals that employee Van-
tilburg questioned the characterization at the August 12
meeting and that the Union via a leaflet described in the
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report on Objections and Challenged Ballots, placed in
the record as General Counsel's Exhibit 5, rebutted
Booher's remarks. In my view, it is unlikely that either
Booher's remarks or the Union's leaflet had any measura-
ble effect upon the outcome of the election. I recom-
mend that Objection I be overruled. Having found that
Objections 2 and 3 should be sustained, I further recom-
mend that the election conducted on September 18, 1981,
be set aside.
CONCLUSIONS OF LAW
I. Respondent is a single employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees, truckdrivers and counter
sales employees employed by the Employer at its
100 Keller Dr., Wapakoneta, Ohio and its 459
North Main St., Lima, Ohio facilities, excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
4. Since on and after July 23, 1982, the Union has rep-
resented a majority of the employees in the bargaining
unit described above.
5. By engaging in the unlawful acts described in sec-
tion III, above, Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
6. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act.
Having found that Respondent unlawfully terminated
employees Robert Vantilburg and Daniel Cable, it will
be recommended that Respondent offer to said employ-
ees immediate and full reinstatement to their former or
substantially equivalent positions of employment, without
prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of earnings suffered
by reason of the unlawful discrimination against them by
payment to them of backpay equal to that which they,
individually, would have earned from Respondent from
the date of their unlawful terminations to the date of Re-
spondent's offer of unconditional reinstatment, less any
net earnings during such period, with the backpay and
interest thereon computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977). 3 5
Having found that issuance of a bargaining order is ap-
propriate and necessary for the reasons set forth above, it
shall be recommended that Respondent be ordered to
recognize and bargain in good faith with the Union as
the exclusive representative of the employees in the ap-
propriate bargaining unit described in Conclusion of Law
3, and, if an understanding is reached, to embody such
understanding in a signed agreement.
Respondent will be required to recognize and bargain,
upon request, with the Union as of August 12, 1981, the
date it unlawfully threatened plant closure and thereby
embarked on its unlawful course of conduct which pre-
vented the determination of the Union's majority status
by a fair election. See Trading Port, Inc., 219 NLRB 298
(1975), and Peaker Run Coal Co., supra.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER3 6
The Respondent, Ohio New and Rebuilt Parts, Inc.,
and/or Mel's Battery, Inc., Wapakoneta and Lima, Ohio,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees regarding their union ac-
tivities or sentiments.
(b) Threatening employees with plant closure if they
select the Union as their bargaining agent.
(c) Threatening to discontinue employee benefits, in-
cluding pay advances, because employees join or support
the Union.
(d) Promulgating and instituting a more stringent at-
tendance policy because employees attempt to seek union
representation.
(e) Informing employees that their receipt of previous
financial assistance obligates them to abandon their sup-
port of the Union.
(f) Discharging or threatening to discharge employees
because they join or support Truck Drivers, Warehouse-
men and Helpers Union, Local 908, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization.
(g) Attempting to discourage employees for protesting
what they reasonably consider to be unsafe working con-
ditions by threatening to terminate them if they file com-
plaints with OSHA or terminating them for refusing to
perform work which they reasonably feel is unsafe.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
a' See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
3e In the event no exceptions are filed as provided in Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
438
OHIO NEW AND REBUILT PARTS, INC.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain with Truck
Drivers, Warehousemen and Helpers Union, Local No.
908, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of all employees in
the appropriate bargaining unit, and, if an understanding
is reached, embody same in a signed document if asked
to do so. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, truckdrivers and counter
sales employees employed by the employer at its
100 Keller Dr., Wapakoneta, Ohio and its 459
North Main St., Lima, Ohio facilities, excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Offer Robert Vantilburg and Daniel Cable immedi-
ate and full reinstatement to their former or substantial
equivalent positions of employment without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered
as a result of their unlawful termination in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Expunge from its records any reference to the un-
lawful reprimand given to Steven Leugers when he re-
fused to pour lead on August 11, 1981.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(e) Post at its Wapakoneta and Lima, Ohio, facilities
copies of the attached notice marked "Appendix A." 37
Copies of said notices, on forms provided by the Region-
al Director for Region 8, after being duly signed by the
Respondent's authorized representative, shall be posted
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
37 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
439