Pelton Casteel, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1979

246 N.L.R.B. 310 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pelton Casteel, Inc. and International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW). Case 30-CA-4641
October 29, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
On July 3, 1979, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent and counsel for the Gen-
eral Counsel filed exceptions and supporting briefs.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
The complaint alleged, inter alia, that between No-
vember 1977 and January 1978 Respondent unlaw-
fully interrogated employees with respect to their
union sympathies. With respect to this allegation,
Foreman Konieczka testified without contradiction,
and the Administrative Law Judge found, that in De-
cember 1977 Konieczka called each of the employees
under his supervision, with the exception of John
Seward, who as the Administrative Law Judge found
and we agree was unlawfully discharged, into his of-
fice individually. In the office, Konieczka showed
each employee a union card, and asked the employee
if he knew what the card was, why he was asked to
sign it, why it was being distributed, and to read the
card carefully. Konieczka then asked each employee
not to sign a card.
The Administrative Law Judge found that in his
Counsel for the General Counsel has excepted to certain credibility find-
ings 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 credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
No exceptions were taken to the Administrative Law Judge's failure to
make any findings with respect to employee Seward's testimony that in Janu-
ary 1978, during a company outing in a bowling alley, Foreman Konieczka
and Personnel Director Schuler told him they wanted to know why he was
trying to organize Respondent's employees. In the absence of exceptions,
and as the Administrative Law Judge made no finding with respect to Sew-
ard's testimony on this issue, we find it unnecessary to pass upon whether the
comment was made and, if so. whether it was unlawful.
I In view of our finding, that the discharge of Seward violated Sec. 8(aX 1)
of the Act and as the Order herein provides for his reinstatement and that he
be made whole, we need not pass upon counsel for the General Counsel's
contention that Seward's discharge also violated Sec. 8(aX3) of the Act.
discussions with employees Konieczka was merely
stating Respondent's position with respect to the
Union and that his statements were protected by Sec-
tion 8(c) of the Act. Accordingly, the Administrative
Law Judge recommended dismissal of this allegation
of the complaint. We find merit to the General Coun-
sel's exception to this recommendation.
Konieczka asked his subordinates, individually and
in a management office, a number of questions about
the distribution and solicitation to sign union authori-
zation cards. No business justification for the ques-
tions was proffered and no assurances against reprisal
were given. In these circumstances it is clear that the
purpose of the questioning was to obtain information
about the employees' union involvement and that the
interrogation was coercive, notwithstanding that
Konieczka did not ask the employees in so many
words whether they had signed cards. Indeed, Konie-
czka's testimony that he did not call Seward into his
office to discuss the cards because there was "no sense
talking to John Seward, I knew his stand. I knew how
he felt.... He was union organized" is tantamount to
an admission that Konieczka talked to the employees
about the authorization cards in order to ascertain
their union sympathy. In these circumstances we find
that Konieczka's interrogations, particularly in view
of the manner and setting in which they took place,
tended to have a coercive impact on employees' exer-
cise of their rights to become involved in union ac-
tivity,3 and conclude that by this conduct Respondent
violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Pelton
Casteel, Inc., Oak Creek, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraph (b), and re-
letter subsequent paragraphs accordingly:
"(b) Interrogating employees with respect to the
solicitation of union authorization cards."
2. Substitute the attached notice for that of the
Administrative Law Judge.
3 This case is readily distinguishable from Electro-Wire Products, Inc., 242
NLRB 960 (1979), for that case, unlike the instant one, involved allegedly
objectionable conduct in a representation proceeding, and the conversations
at issue consisted only of a statement of the employer's position and occurred
at the employees' work stations.
246 NLRB No. 45
310
PEITON CASTEEL, INC
APPEN D)IX
NorI(E To EMPI.OYEl!S
POSItED BY ORDER OF 11WE
NATIONAl. LABOR RILATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
WE WILL NOT interrogate employees about the
solicitation of union authorization cards.
WE WILL NOT suspend or terminate employees
for engaging in concerted activities with other
employees for their mutual aid and protection.
WE WILL NOT in the same or any similar man-
ner interfere with, restrain, or coerce employees
in the exercise of rights guaranteed them under
Section 7 of the Act.
WE WI.l. offer John Seward immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any
other rights and privileges previously enjoyed
and WE WILL reimburse him for the pay he lost
as a result of our discrimination, plus interest.
PELTON CASTEEL, IN(C.
DECISION
STATEMENI () TIIE CASE
JOHIIN M. DYER, Administrative Law Judge: Interna-
tional Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America (UAW). herein called
the Union, Charging Party, or UAW, filed a charge on
April 10, 1978,' alleging that Pelton Casteel, Inc., herein
called Respondent or the Company, violated Section 8(a)( I )
and (3) of the Act by the suspension and termination of
John Seward. On June 6, 1978, the Regional Director is-
sued a complaint alleging that Respondent had violated
Section 8(a)(1) of the Act by interrogating employees be-
tween November and January and issued or maintained
unlawfully broad rules prohibiting distribution of union au-
thorization cards and union literature on Respondent's
premises. The complaint also alleges that the suspension
and termination of John Steward violated Section 8(a)(1)
and (3) of the Act since they were caused at least in part by
Seward's union and/or protected concerted activities.
Respondent's timely answer admitted the service and ju-
risdictional aspects of the complaint, the status of the
Union, and the supervisory status of certain of its officers
and foremen. Respondent admitted that it discharged Sew-
ard but denied that it had violated the Act in any manner.
I Unless specified otherwise, the events herein took place dunng the latter
part of 1977 and the first part of 1978
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Milwaukee. Wisconsin, on November
30 and December I. 1978. Respondent and the General
Counsel have submitted hriefs which have been carefully
considered.
The principal question in this case is whether the Union
or concerted activities of John Seward played any part in
Respondent's decision to suspend and terminate him. Un-
der all the circumstances. I find that Seward's concerted
activities did enter into Respondent's consideration in ter-
minating Seward and therefore that the termination is in-
valid. On the entire record in this case, including the exhib-
its and testimony, and on my evaluation of the reliability of
the witnesses based on the corroborative and contradictory
testimony and the demeanor of the witnesses, I make the
following:
FINI)INGS O)F FAC(t
I. (OMMERCE FNDIN(GS AND UNION STATUS
Respondent is a Wisconsin corporation with plants in
Milwaukee and Oak Creek, Wisconsin, where it is engaged
in the production and sale of metal castings. During the
past year Respondent purchased and received, from di-
rectly outside Wisconsin, goods valued in excess of $50,000
and during the same time shipped and sold, directly to
points outside Wisconsin. goods valued in excess of
$50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
II. rill- t'NF IR I.ABOR PRA(' 1ES
A. Background and Undisputed Facts
Respondent's plant in Milwaukee has been in existence
for a number of years, and Vice President Harold Sotski
has worked for the Company some 28-1/2 years. Most of
the employees and supervisors in this proceeding are long-
time Respondent employees. The Oak Creek plant. which is
the site of the dispute here. was set up in January 1977 and
began operations around April of that year. Seward and a
number of employees transferred from the Milwaukee plant
to the Oak Creek plant when it began operations.
Jerome Dziedzic is the plant superintendent of the Oak
Creek plant, and under him is General Finishing Depart-
ment Foreman Herbert Ginner. Under Ginner are three
foremen, one of whom, James Konieczka, is supervisor of
the cleaning room with approximately 50 employees work-
ing under him.
Metal castings come in various sizes, and small castings
range up to 35 pounds. John Seward and four other em-
ployees were employed in grinding small castings. Each of
the grinding employees had a booth, sometimes called a
shack, in which they worked. They used a grinding wheel to
take the rough spots off castings. There were more employ-
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees engaged in grinding large castings which may run over
several hundred pounds. According to testimony, there was
always plenty of work on the large side, while the small side
occasionally ran short.
The employees work on a base rate plus a percentage or
incentive pay and may earn two to three times their base
rate, depending on their speed and dexterity.
Seward worked for the Company from April 1963 until
his termination on March 29, 1978, and said he attempted
to triple his base rate of $3.57 an hour and averaged some-
where around $10 per hour. However, when he had to work
on large castings, Seward claimed that he was not able to
make production because he had some back problems fol-
lowing a high school injury and was unable to move the
large castings without using a chain hoist which delayed the
processing.
Foreman Konieczka conversely said that Seward was
able to make production on the large side and did so on a
number of occasions and it was only on one or two occa-
sions that he did not make production, claiming that his
back was bothering him. Konieczka said that on these occa-
sions Seward was not working but was walking around or
standing outside of the booth.
Respondent has a progressive discipline system which
runs on a moving year basis. If within the period of I year
an employee receives two verbal warnings, the next verbal
warning is written up. If further discipline is called for, a
written warning is issued. If there is another occasion for
discipline within the year, the employee gets I week's sus-
pension and, if he is disciplined one more time, he is termi-
nated.
There was a union organizational attempt at the Milwau-
kee plant in 1971 which went to an election which the
Union lost. Seward was employed at that time and merely
signed a union card during that campaign. Another attempt
at organization was made in 1975-76 by UAW and Seward
said he took a more active part in the campaign and passed
out literature in front of the plant. No union election took
place during that campaign.
According to general testimony by the employees, discus-
sions concerning the feasibility of having a union would
occur when employees got disturbed about events in the
plant such as overtime and pay rates and such times have
occurred off and on throughout the years.
During the summer of 1977, a type of casting known as
an "ajax" was being worked on in the small-finish side by
the five grinders, including Seward. The employees thought
that the rate paid for grinding the ajax casting was way too
low, and on at least one occasion three of four of the em-
ployees together spoke to General Foreman Ginner, com-
plaining about the rate and stating that it was much too
low. Seward pursued the complaint vigorously and he and
Ginner became argumentative. Ginner told Seward to
punch out but Seward did not do so and went back to work.
Ginner stated he had been under the impression that Sew-
ard was not going to perform the work and so had told him
to punch out and come to his office to discuss it. When
Seward did not show up, Ginner found that Seward had
returned to work and Ginner forgot about the matter.
According to the employees, there were more conversa-
tions with foremen concerning the rate throughout the sum-
mer months. Some of the employees, including Seward, did
not like working overtime, particularly on Saturdays, and
resisted overtime directions from management. Seward also
resisted overtime instructions on a daily basis when he was
asked to work 9 hours, and there were more conversations
and complaints to the foremen concerning the imposition of
overtime requirements on employees.
When there was an insufficient number of small castings
to have the employees on the small-finish side work a com-
plete shift, the Company would rotate one person each day
from the small-finish to the large-finish so that the others
would have a complete day on the small castings. Several of
the employees, including Seward, protested this rotation to
the large side, with Seward claiming that working on the
large casting hurt his back.
Seward had problems with his back on other occasions
and had a medical history with Respondent of being out on
sick-leave status with back problems. However, Seward was
never given a letter by a doctor informing Respondent that
he had any physical limitations on the work that he was
able to perform.
B. Discipline Imposed on Seward
On July 7, Seward was given a verbal warning by Fore-
man Ginner for insufficient production on the large side.
The verbal warning was memorialized by a written record
which stated that Seward was warned for not meeting job
performance criteria in that he had made his base rate in
only 2.6 of' the 8 hours. On September 8, another verbal
warning was given to Seward by Foreman Konieczka for
unauthorized breaks. On October 12, Ginner wrote up an-
other verbal warning, stating that he had warned John Sew-
ard for excessive absenteeism and that further abuse of ab-
senteeism would lead to further disciplinary action.
According to Seward, it was sometime around October
that in talking to other employees they decided it was time
to try to organize a union, and towards the end of October
Steward called UAW headquarters for assistance and spoke
to Union Organizer MacNatt. MacNatt stated that they
talked several times and finally met in person, according to
Steward, on November 2. In the meantime Seward had at-
tempted to find out if there was enough interest among
employees in the Union. On November 2 they decided to
set a union meeting, and a meeting was held on November
15 in a cafe on the north side of town.
In the meantime, on November 1., Seward was called in
and given a written warning which stated, "This will serve
as a written warning to John Seward for past disciplinary
action. John must improve his conduct, attitude, attendance
and work record. The next offense will result in a one (I)
week disciplinary suspension. This warning is issued by his
foreman, Jim Konieczka." Seward refused to sign the warn-
ing. stating that he did not understand the language of the
warning.
In explaining this warning, Konieczka said he issued it
because of Seward's poor attitude towards his work. He
stated that when he gives orders he wants them carried out
and Seward would give him an argument and reasons for
not doing things, mentioning that Seward argued about a
rate on a particular job a number of times in the summer of
1977. Konieczka said some of the other employees gave him
312
PELTON ('ASTFEEL, INC.
arguments about that rate too. He added that Seward ar-
gued about overtime, stating that he did not like to work it.
On Thursday, November 10. Foreman Ginner told Sew-
ard they would have to work 8 hours' overtime on Satur-
day. Seward objected, stating that he could only work 7
hours, that he had some personal business to attend to on
Saturday. Ginner repeated that it was an order. Seward had
to work 8 hours on Saturday. Seward started at the regular
time on Saturday and during the day saw Ginner again and
said he had personal business and could only work 7 hours
and said that Ginner merely shrugged his shoulders. Ginner
said that Seward asked if they still had to work 8 hours and
he said yes. Seward said he could only work 7 hours and
Ginner shrugged his shoulders and walked away.
On Monday, November 14. Seward was given a written
warning and a -week suspension. The warnings said he
had failed to work his scheduled hours and walked off the
job early without authorization and that his next violation
would result in discharge.
At one point in his testimony, Seward said that in the
first week of November he saw two young men whom he
did not know and asked them to attend a union meeting.
One of them said that he was Vice President Sotski's son
and would not be interested. Later in his testimony Seward
said he thought this occurred on the same day that he did
not work the full shift, meaning Saturday, November 12.
The union meeting of November 15 was attended by 25-
30 employees. The meeting was given over to discussions of
problems with the Company such as enforced overtime and
problems with job rates, but no union authorization cards
were passed out. The process of organization was explained
and it was decided to hold another meeting but nothing
definite was set then.
The second meeting was held on December 15 at a differ-
ent location and was attended by 25 30 persons, a number
of whom had not attended the first meeting. Again there
was a discussion of the employee problems with rates and
overtime and the methods of union organization. Union
authorization cards were passed out and a number were
signed. Additional blank authorization cards were passed
out to those who indicated they would distribute them.
UAW Organizer MacNatt said the employees were told to
funnel the authorization cards back to the Union through
Seward. Seward told a number of the employees that he
would leave his automobile window open so that they could
put signed authorization cards in his car on the parking lot.
Seward said he talked to some people at the plant during
breaktimes and called people at home from the listing that
had been taken of those who attended the union meetings.
During December, Foreman Konieczka had the employ-
ees under him come into his office one at a time. There. he
showed them a union card. asked them if they knew what
the card was and why it was being distributed and why they
were asked to sign it. He asked them to read it carefully.
Konieczka said he did not call Seward in since he knew
where Seward stood. James Fields stated that, when he was
called in. Konieczka asked him not to sign a union card.
that he was committing himself and would be signing his
rights away.
Fields said he was at the Milwaukee plant around the
time of the first meeting and did not recall precisely when
or whether he had been sent for. but said it was about the
pension and how it worked. fie said Plant Superintendent
Dziedzic said that Fields had been talking about how much
the pension paid and after the discussion Dziedic told him
not to sign a union card because they did not need anybody
to run the plant. that they ran it themselves.
Dziedzic stated that he was a personnel director in 1975
76 when the Company changed the pension plan and there
was some misinformation going around which he heard
came from Fields. He called Fields to the office and set it
straight and that was the only time he discussed pensions
with him.
Since Fields' memory as to when this occurred was not
precise and since there was no indication that Dziedzic
knew anything about union organization in November. I
am inclined to believe that, if this occurred, it occurred in
1975 76 during another union organizational campaign
and is not timely as far as the present complaint goes.
Employee George Zollicoffer testified that around
Thanksgiving, some 5 to 6 minutes after having a conversa-
tion with an employee named Bert. Vice President Sotski
had him come into his office and told Zollicoffer to sta in
his working area, that he did not want to see him talking
out of the area, and told him to keep his business talks
outside the plant. Zollicoffer interpreted this reference to
business talks to mean talk about the Union.
Sotski testified he knew Zollicoffer was on light duty de-
livering parts and that from his office he can see out in the
plant and saw Zollicoffer walking around a lot. He later
was in the plant and saw Zollicoffer still walking around
and called him to his office. He told Zollicoffer to go back
to work where he belonged and recalled nothing else being
said. He said specifically that he did not know that Zollicof-
fer had just been talking to Bert.
In regard to his son. Sotski stated that sometime during
December his son came in laughing and told him that Stew-
ard had said something to him about a union, not realizing
that he was Sotski's son.
Just before Christmas, Seward stated Sotski had come
into his office and told him he did not want any union
literature distributed on company premises at any time,
that it could mean serious trouble if they caught him doing
it. Further. Seward was to remain at his work station and
not to talk to employees during work hours. Seward said he
answered that the UAW had instructed him in the laws
governing union campaigns and walked out of the office.
Seward had to be guided somewhat in his recollection as to
what was said in Sotski's office.
According to Sotski, Seward had asked to see him and he
had Seward come to his office in late December. Seward
complained that the foremen were picking on him. Sotski
replied that Seward was probably not cooperating with the
timestudy that was going on. Seward asked what his rights
were. Sotski replied that Seward could solicit before and
after work hours. at coffee breaks. and lunchtime. here
was no conversation concerning union literature, according
to Sotski, because none was being distributed. Seward then
said he knew what his rights were. Sotski denied specifically
telling Seward that he could not talk to other employees.
Sometime in late December. according to Seward. Plant
Superintendent Dziedzic told Seward that the Company did
not need a third party. that they could handle their own
313
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
affairs, and that there would not be a union at Respondent.
that they would do anything in the world to keep from
being organized. Dziedzic testified that in late December he
saw Seward standing outside of his booth looking disgusted
and asked him what was the matter. Seward answered that
he was not making enough money and thought that they
should get a union. Dziedzic said that the Company also
had rights and would exercise their rights within the law to
resist organization. He specifically denied saying the Com-
pany would do anything to keep the Union out.
In response to a leading question, Seward recalled that he
had a conversation with Foreman Konieczka and Personnel
Director Schuler at a company outing held at a bowling
alley in January. He stated they wanted to know why he
was trying to organize the Company and said that there was
no need for a union at the Company. Neither Konieczka
nor Schuler was asked about this testimony.
Seward testified that he continued to get some union
cards in January and February but was not sure that he got
any in March. He stated he talked to employees at both
plants, usually on the phone in the evenings.
C. The Discharge
On March 23. Mrs. Seward told her husband that she
had received a promotion and he suggested that they go out
and celebrate. Seward testified that he got home between 12
and 12:30 a.m., ate some pizza, and the next morning
around 5:30 a.m. he felt bad and told his wife to call the
Company and say he would not be in on time, that he
would be in later if he felt better. Mrs. Seward stated she
went to the phone in the other room, called, and asked for
her husband's supervisor, Konieczka. The person was away
from the phone for quite a while, came back and said that
Konieczka was not there and asked for her husband's clock
number. She called out to her husband and he told her 175,
which she repeated and told the person that she was John
Seward's wife and he would not be at work. Seward cor-
roborated that his wife asked for Konieczka, was on the
phone a long time and asked for his clock number, which
he gave to her, and heard her say please pass the message
on to Konieczka. Seward stated that he did not go into
work that day but stayed home all day and reported in on
the following day, Saturday, at 6 a.m. when he was sched-
uled to work. Konieczka said he could not work because he
had not come in or called in on the previous day, to come
back Monday at 8 a.m. to see General Foreman Ginner.
On Sunday, Seward called Plant Superintendent Dzied-
zic about the problem and said Dziedzic said he would get
to the bottom of it on Monday. Dziedzic said he received a
call from Seward on Sunday and that Seward told him that
his wife had a promotion and they were out late celebrating
and that he just could not make it to work. Dziedzic said
that he was not in a position to comment but that they
would find out about it.
On Monday, Seward met with Ginner., Schuler, and
Koniezcka and gave them his version of the event. He was
told that they would have to contact the company heads to
see what to do and to come back on Tuesday. That evening
he received phone messages not to come in on Tuesday and
come in Wednesday morning.
During his cross-examination. Seward admitted that the
foremen usually are not in the plant early in the morning
and the general procedure is to call in and tell the guard
your clock number and name and give the guard the reason
for not reporting to work. Seward was unable to state why
he had his wife call the foreman when in the past he had
contacted the guard when he was not going to work. He
also stated that he did not call in later on March 24 and was
home the whole day.
On Wednesday., Ginner and Schuler told Seward the
Company had decided to terminate him based on his past
disciplinary procedures, and during cross-examination Sew-
ard admitted he was told he was being discharged also for
not calling in and not reporting his absence. Seward was
asked about filing a statement with the Wisconsin Indus-
trial Commission for unemployment, wherein he stated that
it was not until after his I-week suspension in November
that he and others decided to start a union drive and then
contacted the Union. Seward's answer was that was when
the Union really' began building, not that that was when the
first contact was made.
Schuler stated he told Seward that he was being dis-
charged because of his past record of disciplinary actions.
his attitude and conduct, that he had missed another 7 days
after the I-week suspension in November and that the inci-
dent of March 24 was just too much. Ginner stated that in
the discharge interview he told Seward that his absentee-
ism, his attendance, and everything connected with the job
had brought him to this and that his not reporting and
being absent was the last straw.
Konieczka said that, after he found that Seward was not
present on the morning of March 24. he called to see
whether Seward had called in sick to the guard and there
had been no record of a call. Konieczka did not do any-
thing for another hour and a half, figuring that Seward
might be late. Around 8 a.m. he called the personnel office
and spoke to Sue Schultz and asked her to check on Seward
as to why he was not at work. She called him back and said
that she had called Seward's house, that a man answered
and said that Seward was not there. Konieczka then spoke
to Ginner and told him of Seward's absence and that he
had checked and there had been no call-in.
Ginner stated that on Monday Seward told them that he
had been absent because he had been out late celebrating
his wife's promotion, stating at one point that he had been
out until 3 a.m. and at another point until I a.m., and asked
his wife to call at 5:30 a.m. After Seward left, Ginner said
he checked with Foremen Konieczka and Tom Kearn to
find out whether they had been informed of Seward's ab-
sence and they told him they had not. He then had the
guard report checked and there was no mention of a call-in
by Seward. Ginner said he then checked the pattern shop
where calls are received between 6 and 8 a.m. and there was
no record of any call being made by Seward during that
time on March 24. Thereafter, he checked the switchboard
and was told that there had been no call. Ginner reported
this to Sotski. Sotski testified that a discharge by a line
foreman is not allowed until it is reviewed by himself or the
president. tie said he reviewed all the material regarding
the recommendation for the discharge of Seward with the
Company's president and he also checked with security in
314
PEI TON CASrEEL, INC.
regard to the alleged call. Sotski said that in approving the
termination they took into account Seward's bad attitude in
regard to overtime and went through all of his records for
the I-year period. They knew Seward had a bad attitude
throughout the summer of 1977 and knew Seward com-
plained about the rotation to the large side. Sotski said that
Seward would tell the company foremen what he was going
to do. The recommendation of termination was approved
and carried out on Wednesday.
D. .4nalysis and Conclusions
Although Seward claimed that he was being discrimi-
nated against by the amount of discipline being given to
him as compared to other employees, Respondent produced
evidence of other employees who were discharged for simi-
lar offenses following a course of progressive discipline.
Similarly, other employees were disciplined simultaneously
for like offenses.
The nub of Seward's case is that Respondent took into
account Seward's "poor attitude and conduct" in terminat-
ing him and had given him a written warning for the same
thing. This phrase translates to Seward's protesting and ar-
guing about rates for a particular job on a number of occa-
sions throughout the summer of 1977 and his resistance to
the company-imposed overtime. On several occasions, other
employees were together in making protests about rates.
It is clear from the testimony regarding the origins of the
union organization that the Company's imposition of over-
time and the unilateral fixing of rates which some employ-
ees thought were too low were motivating forces.
Where Respondent equates the protected concerted ac-
tivity of protesting wages and working conditions, as Sew-
ard did, with a "poor attitude" and uses that as a reason for
disciplining an employee, as Respondent did in giving Sew-
ard the written warning on November I and as a reason in
terminating him on March 29, Respondent has overstepped
the Board's 8(a)(1) boundary. The Board has held that a
person is within his Section 7 rights to protest an item re-
lated to his wages and working conditions which goes to not
only the person's good, but the common good of others.
This is precisely what Seward was doing in complaining
about the rates and the overtime throughout the summer of
1977. The concerted activities engaged in by Seward during
the summer were related to the union activities engaged in
by him and others from November through January since
those same topics were motivating organizational factors.
Thus, it follows that where Seward was exercising his
Section 7 rights in engaging in concerted activity and was
given a reprimand related to that concerted activity, the
reprimand was invalid and unlawful. Therefore, the written
warning of November I was wrongfully given and should
be eliminated from Seward's personnel file. Eliminating the
written warning reduces the number of warnings which
Seward would have been given and makes the discipline of
suspension and discharge in March unwarranted. Further,
the March 29 discharge was unwarranted following Re-
spondent's progressive system since those who made the
final determination in approving the discharge also took
into account Seward's "poor attitude" which again related
to his protesting of the rates and overtime in the summer of
1977. Therefore. the discharge is invalid and must be re-
scinded. and I will so order.
The General Counsel alleged that Respondent main-
tained unlawfully broad rules prohibiting employees from
distributing authorization cards or other literature on Re-
spondent's premises and prohibiting employees from solicit-
ing their fellow employees to join or support the Union. In
this regard. Seward testified that Vice President Sotski said
there was to be no distribution of literature on company
premises at any time and that it could mean serious trouble
if he was caught doing it, that he was to remain at his work
station and not talk to other employees during working
hours. Sotski's credible testimony was that the conversation
dealt only with union authorization cards, and he told Sew-
ard that he could distribute authorization cards on his own
time in the plant during breaktime, before and after work,
and at lunchtime. Sotski specifically stated there was no
mention made of union literature because none was being
distributed at the plant. Indeed, there was no testimony
that any union literature or leaflets were distributed at any
time during this organizational campaign. In regard to talk-
ing, Sotski stated that Seward asked why the foremen were
picking on him, and his answer was that he was not cooper-
ating with the timestudy and was not working. According
to Sotski. Respondent does not allow employees to disturb
other employees during worktime. TIhe General Counsel
produced testimony concerning some solicitation in the
plant, but none of the testimony directly demonstrated that
such occurred during work hours or that supervisors or
management knew of solicitation during worktime. I do not
credit Seward's version of the event but find that Sotski's
testimony was more convincing and cohesive.
Sotski's conversation with Zollicoffer about staying in his
area does not demonstrate a promulgation of a rule such as
the General Counsel alleges. There is nothing to demon-
strate that Sotski saw Zollicoffer talk to employee Bert or
that he had any suspicion that Zollicoffer was talking about
the Union to other employees.
Therefore. I conclude and find that the allegation con-
cerning invalid no-distribution rules and talking has not
been proven, and I will dismiss it.
As to the allegation concerning interrogation of employ-
ees with respect to their union activities or sympathies,
there is no question that Foreman Konieczka did talk to the
employees in his department concerning union authoriza-
tion cards. However, the testimony does not indicate that
this was unlawful interrogation. It appears that Konieczka
was merely stating the Company's position in regard to
being organized, and his statements are protected by Sec-
tion 8(c) of the Act.
Employee Fields' testimony concerning a conversation
with Dziedzic I believe occurred during the prior union or-
ganizational campaign in 1975-76 and is not relevant to
this case.
Seward's statement that Dziedzic would ask him how
things were going, which he took to be an inquiry as to how
he was getting on with the signing of union cards, is some-
thing that takes place only in Seward's mind and certainly
cannot be said to be interrogation in the manner alleged in
the complaint.
There was no question but that the Company knew that
Seward was the main union protagonist and organizer at
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant. Schuler and Konieczka may have been unfair in
starting the conversation with Seward as to why he wanted
to organize the Company, but they were not interrogating
Seward in the manner alleged in the complaint. Their ques-
tion was the initiation of a position statement and an at-
tempt to debate the question of union organization with
Seward. There being nothing to sustain complaint para-
graph 5(a), it should be dismissed.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II and
therein found to constitute unfair labor practices in viola-
tion of Section 8(a)(l) of the Act, occurring in connection
with Respondent's business operations as set forth above in
section 1, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair la-
bor practices set forth above, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act as follows:
Having found that Respondent suspended John Seward
on March 25 and terminated him on March 29, 1978, and
did not thereafter offer him full and immediate reinstate-
ment, I recommend that Respondent offer him immediate
and full reinstatement to his former position or, if such po-
sition has been abolished or changed in Respondent's op-
erations, then to any substantially similar position, without
prejudice to his seniority or other rights and privileges, and
that Respondent make him whole for any loss of pay he
may have suffered by reason of Respondent's discrimina-
tion by payment to him of a sum equal to that which he
would have normally received as wages from March 25,
1978, until Respondent offers him full reinstatement, less
any net earnings for the interim. Backpay plus interest is to
be computed on a quarterly basis in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).' 1 further
recommend that Respondent make available to the Board,
upon request, payroll and other records in order to facilitate
checking the amounts of backpay due and other rights he
may be entitled to receive.
Having further found that Respondent's November 1,
1977, written warning to John Seward was invalid, it is
recommended that Respondent rescind it and withdraw it
from John Seward's personnel file.
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by its
discriminatory suspension and termination of John Seward
because he engaged in concerted activities with other em-
ployees for the purposes of mutual aid and protection.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3
The Respondent, Pelton Casteel, Inc., Milwaukee, Wis-
consin, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discriminatorily suspending and terminating em-
ployees because they engage in concerted activities with
other employees for their mutual aid and protection.
(b) In the same or any similar manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Fully reinstate and make John Seward whole for the
loss of pay he suffered by reason of Respondent's discrimi-
nation against him in accordance with the recommenda-
tions set forth in the section of this Decision entitled "The
Remedy."
(b) Post at its Milwaukee and Oak Creek, Wisconsin,
plants copies of the attached notice marked "Appendix." 4
Copies of said notices, on forms provided by the Regional
Director for Region 30, after being duly signed by an au-
thorized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec. 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.
I 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
316