Production Plating Co.

National Labor Relations Board - Board Decisions

Oct 28, 1977

233 N.L.R.B. 116 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Production Plating Company and Metal Polishers,
Buffers, Platers and Allied Workers International
Union, AFL-CIO. Case 9-CA-10728
October 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 14, 1977, Administrative Law Judge John
M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith, to modify the remedy so
that interest is to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977),2 and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found, and we
agree, that a bargaining Order is warranted to
remedy the Respondent's extensive and pervasive
unfair labor practices that are violative of Section
8(a)(l) and (3). However, the Administrative Law
Judge also found, based on the allegations of the
complaint, that the representation petition filed by
Respondent on August 28, 1976, was, "in effect, a
I Respondent contends that it was denied "full opportunity to appear, to
examine and cross-examine witnesses and to argue orally at the hearing"
and attributes this denial to the "bias and prejudice" of the Administrative
Law Judge. After a careful examination of the entire record, we are satisfied
that these allegations are without merit. In our opinion, there is nothing in
the record to suggest that the Administrative Law Judge's conduct of the
hearing or the inferences he drew were based on bias or prejudice or that he
had prejudged the case. Iron Workers Local No. 10 (R & T Steel
Constructors, Inc.), 194 NLRB 971 (1972); The Cavern Supply Company, Inc.,
187 NLRB 160(1970).
However. Respondent correctly contends that the Administrative Law
Judge erred in refusing to permit it to proffer certain evidence regarding the
alleged criminal record of Rance Grimes, In our opinion, the Administrative
Law Judge was properly concerned with the possible problems ensuing if the
proffer of evidence was made in open court; however, he could have
permitted Respondent to "make a full record" by submitting a written
proffer or orally proferring the evidence at the bench. Nevertheless, the
ruling of the Administrative Law Judge clearly does not exhibit bias or
prejudice.
In accordance with its contentions above, Respondent filed a motion to
either admit certain evidence or to remand the proceeding for a new
hearing-evidence consisting, inter alia, of rejected exhibits, evidence
inadvertently not offered at the hearing, and a summary of the criminal
record of Grimes allegedly demonstrating the criminal proclivity of Grimes
as an employee organizer whose threats to fellow employees tainted the
campaign. We find the proffered evidence is unpersuasive for such a
purpose under the circumstances herein. Moreover, were we to construe
Respondent's purpose in introducing such evidence as an attack on Grimes'
233 NLRB No. 25
demand by the Union for recognition and bargaining
by the Respondent in an appropriate unit." The
Board has long held that the mere filing of a
representation petition does not constitute a request
for recognition or bargaining such as to make an
employer's failure to bargain, without more, a
violation of Section 8(a)(5).3 As the Union made no
demand as such on Respondent for recognition
and/or bargaining, we find that the evidence fails to
establish that Respondent violated Section 8(a)(5) of
the Act. However, the absence of a specific 8(a)(5)
violation does not affect the propriety of the
bargaining Order herein required to remedy Respon-
dent's extensive unfair labor practices that have
made unlikely the holding of a fair election.
The Administrative Law Judge found that, as of
August 12, 1976, the Union possessed at least II
cards in a unit of 21 employees. 4 Although he
included the card of Kathryn Smedley, it is unclear
whether she signed her card on August 12 or 20.
However, as Smedley signed her card by August 20,
at the latest, clearly the Union possessed an I -card
majority at the time Respondent began its unlawful
course of conduct. Respondent's unfair labor prac-
tice activities started sometime in the following
month, possibly with the posting (exact date un-
known) of the notice forbidding any solicitation on
company premises or specifically with Mosher's
unlawful interrogation prior to the union meeting of
September 20, 1976. Accordingly, we find that
Respondent's bargaining obligation commenced as
of September 20, 1976.5
credibility, it would not persuade us to reject the credibility determinations
of 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 (C.A. 3, 1951). We have
carefully examined the record as a whole and find no basis for reversing his
credibility findings. In that connection we note also that Grimes' testimony
in this case is largely corroborated.
Accordingly, we shall deny the motion to remand for a new hearing,
accept into evidence Respondent's summary of the criminal record of Rance
Grimes, and reject all other evidence covered by the motion as properly
excluded or not material or relevant.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
3 L B. Foster Cornany, 168 NLRB 83, 87, fn. 28 (1967), enfd. 418 F.2d I
(C.A. 9, 1969): Eagle Material Handling of New Jersey, 224 NLRB 1529
(1976).
4 The Administrative Law Judge would have counted the card of Eula
Florence, raising the total of authorization cards to 12; however, we shall
not include Florence's card as it appears that Florence took reasonable steps
to revoke her card the day after she signed.
I See Trading Port, Inc., 219 NLRB 298 (1975). For the reasons cited in
his separate opinions in Beasley Energy, Inc., d/b/a Peaker Run Coal Co.,
Ohio Div. No. 1, 228 NLRB 93 (1977), and Hambre Hombre Enterprises, Inc.,
d/b/a Panchito's, 228 NLRB 136 (1977), Chairman Fanning would make the
bargaining order prospective as there is no evidence that the Union
demanded and Respondent refused bargaining even though, as of August
20, such a demand could have been made.
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PRODUCTION PLATING CO.
AMENDED CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are hereby modified by substituting "August 20,
1976" for "August 12, 1976," in Conclusion of Law 4,
deleting Conclusion of Law 5, renumbering the
remaining conclusions accordingly, and adding the
following Conclusion of Law 7:
"7. The complaint shall be, and it hereby is,
dismissed insofar as it alleges a refusal to meet and
bargain with the majority representative of its
employees in an appropriate unit in violation of
Section 8(a)(5)."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Production Plating Company, Lexington,
Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraph l(a) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT try to discourage membership in
the Metal Polishers Union by discharging our
employees or by, in any other manner, discrimi-
nating against them.
WE WILL NOT question employees about the
location of union meetings.
WE WILL NOT create an impression that we are
spying on the union activities of our employees by
telling them we know who signed union authori-
zation cards or by threatening to make employees
work overtime and miss a union meeting.
WE WILL NOT threaten to discharge employees
for supporting the Union.
WE WILL NOT promulgate and enforce discrimi-
natory no-solicitation rules.
WE WILL NOT in the same or any other manner
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer Pauline Bruin, Howard Cham-
bers, and Jeffrey Robinson full and immediate
reinstatement to their former jobs and reimburse
them for the pay they lost by our discharging
them.
WE WILL recognize and, upon request, bargain
collectively with Metal Polishers, Buffers, Platers
and Allied Workers International Union, AFL-
CIO, as the exclusive collective-bargaining repre-
sentative of our employees in the following
appropriate unit:
All production and maintenance employees
at our Lexington, Kentucky, location, in-
cluding truckdrivers; but excluding all office
clerical employees, professional employees,
guards and all other employees and supervi-
sors as defined in the Act.
PRODUCTION PLATING
COMPANY
DECISION
STATEMENT OF THE CASE
JoHN M. DYER, Administrative Law Judge: Metal
Polishers, Buffers, Platers and Allied Workers Internation-
al Union, AFL-CIO, herein called the Union, Metal
Polishers Union, or Charging Party, filed a charge on
October 19, 1976,1 against Production Plating Company,
herein called the Company or Respondent, alleging that
Respondent had violated Section 8(aX I), (3), and (5) of the
National Labor Relations Act, as amended. The complaint
was issued by the Regional Director for Region 9 on
November 23, alleging that Respondent had refused to
bargain with the Union, had engaged in interrogation,
created impressions of surveillance, made threats of
discharge and stated it had discharged an employee for
union activities, and had laid off two employees, Howard
Chambers and Jeffrey Robinson, and thereafter discharged
them, and discharged Pauline Bruin, all in violation of the
Act.
Respondent's timely answer admitted the jurisdictional
and commerce allegations, the status of the Union, and the
supervisory authority of part owner W. L. Renaker and
Superintendent Donald Mosher but denied that it had
violated the Act in any manner.
The parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing in this matter held on March I and 2, 1977,
in Lexington, Kentucky. General Counsel and Respondent
have filed briefs which have been fully considered. I have
concluded that Respondent violated the complaint allega-
tions of Section 8(a)(I), (3), and (5) of the Act with the
exception of the layoff and two 8(aX1I) allegations. These
I Unless stated otherwise, all events herein occurred during the latter half
of 1976 and the first month of 1977.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions are based on my assessment of all the
evidence, including oral and documentary testimony, and
an assessment of the credibility of the witnesses based both
on demeanor and testimonial contradictions.
On the entire record in this case, including the exhibits
and the testimony, and on my evaluation of the reliability
of the witnesses based on the evidence and their demeanor,
I make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Production Plating Company is a Kentucky corporation
engaged in the business of electroplating metal products at
its plants in Lexington and Cynthiana, Kentucky. During
the past year, Respondent sold and shipped to points
directly outside Kentucky from its Kentucky plants goods
and materials valued in excess of $50,000. Only the
Lexington plant is involved in this proceeding.
Respondent admits, and I find, that it is 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.
11. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The Company is substantially owned by W. L. Renaker
who is also the president of the Company. Gene D. Hill is
the vice president and general manager and is the person
who is technically informed on the processes of the plant.
Hill's brother was the shop foreman at Respondent until
late August when he was succeeded by Donnie Mosher
who thereafter was in charge of the plant under Hill and
Renaker.
Hill and Renaker divided their time between the two
plants, with no set arrangement as to when they would be
at either one.
The Company operates principally on a one-shift basis.
Janitor Rance Grimes arrives at the plant sometime around
2 or 3 a.m. and cleans up the offices and the plant and
starts coffee for the employees. The first shift starts at 7
a.m. A half hour earlier than that, Pauline Bruin, who at
the time of the hearing was 60 years old, would report and
place hangers for the parts to be electroplated on the lines
that go through the plant. There are three electroplating
lines.
Jeffrey Robinson, who is 18 years old, had worked for
the plant approximately 2 months before he contacted the
Union through his girl friend's father. He thereafter was in
touch with Union Vice President Emanuel "Fuzz" Wil-
burn, and union meetings were set up. The first meetings
were held in early August and, by August 12, 12 employees
had signed union authorization cards. Howard Chambers
signed a card on August 8; Dave Madden, George Rioux,
and Jeff Robinson signed on August 9; Robert Abney and
Dorcus Blakey signed on August 10; Pauline Bruin and her
sister, Eula Florence, signed on August 11; Joy Broughton,
Charles Colley, Troy Reffitt, and Kathryn Smedley signed
authorization cards on August 12. In the following month,
Wayne D. Smot (or Smoot and hereafter Smoot) and
Rance Grimes signed authorization cards on September 20.
As of August 12, excluding W. L. Renaker, Jr., the son of
W. L. Renaker, owner of the Company, there were 21
employees at Respondent's Lexington plant in the produc-
tion and maintenance unit which included truckdrivers but
excluded all office clerical employees, professional employ-
ees, guards, supervisors and all other employees. The
parties stipulated both to the exclusion of W. L. Renaker,
Jr., and to the appropriateness of this unit for the purposes
of collective bargaining.
The authorization cards were identified and there was no
contention that they were improperly signed or signed
under false pretenses. One employee, Eula Florence, later
testified that, on the day after she signed her authorization
card, she told one employee at the Company that she really
did not want to sign the authorization card and that the
card should be destroyed. However, she did nothing
further than make this remark to an employee. Even
excluding her card, which I believe should be included, the
Union as of August 12 had a majority of the employees.
Thereafter, on August 28, the Union filed with the
Board's Regional Office a petition for an election which
was given the designation Case 9-RC- 158. There was no
contention that the petition was not served on Respondent.
The complaint alleges that the demand for recognition was
made through the filing of this petition and its service on
Respondent. The charge in this matter was filed thereafter
and served to block any further processing of the petition.
According to the undisputed testimony of George Rioux
and Dorcus Blakey, in September the Company posted a
notice on the bulletin board signed by Mr. Renaker which
forbade any solicitation on the premises of the Company.
Neither the wording nor the fact of this posting was
disputed by Respondent and, in fact, Respondent offered
no evidence whatsoever in regard to this notice.
There being no explanation of this notice and, on its face,
it being an improper no-solicitation rule, I find that
Respondent, by posting and promulgating this notice in
and after September, violated Section 8(a)(1) of the Act.
Respondent's defense to most of this case consisted
mainly of offering testimony concerning the atmosphere in
the plant and unspecified and unattributed threats which I
found to be no defense to the allegations charged and were
ruled immaterial and irrelevant.
B. The Discharge of Pauline Bruin
On Friday, September 24, Rance Grimes in a conversa-
tion with Don Mosher was told by Mosher that the
Company was going to fire all who signed the union cards
and that 19 employees signed the cards and only himself,
Helen, and Don Partridge had not done so. Grimes said
Mosher was wrong because he had not signed a card.
Grimes said they argued about it and he asked Mosher if
his brother-in-law, Troy Reffitt, had signed a card and
Mosher replied that he had. Grimes again said he had not
signed a union card and had been strictly for the Company
since he worked for it.
Shortly after this conversation, Grimes went into the
break room where Pauline Bruin and Eula Florence were
118
PRODUCTION PLATING CO.
sitting and, after some conversation about Pauline Bruin
being afraid to speak to people, Grimes told her she was
going to get fired for signing a union card. He said she went
to Dorcus Blakey and asked if Blakey had told on her that
she had signed a union card. Blakey said she had not.
Bruin went out to the line and said to Foreman Mosher,
"Lord, have mercy, don't fire me, I need the job. I can't get
ajob anywhere. I've looked everywhere."
Bruin testified that she had worked for the Company
about 4 years, attended a number of the union meetings,
and signed a union authorization card on August II. She
stated that she had had a conversation with Mosher outside
the building in which Mosher said that, if the Union got in
the plant, they would go on strike. She tried to correct his
idea and told him the procedure in order to get a union into
the plant. Mosher told her she was crazy, that, if the people
signed union cards, they would get fired and other people
would be brought in to work.
Bruin testified that, at the September 20 union meeting,
one of the plant employees who appeared to be against the
Union obstructed the meeting by continually interrupting
speakers with questions. During this meeting, Bruin spoke
to the employees and said she had tried to give away her
half hour extra early job of hanging racks for some 2 years
but nobody wanted it. She also commented in that meeting
about the acid in the plant and that she had to wash her
glasses every 2 hours in order to see what she was doing.
On Monday, September 27, while at work, she got sick and
nauseated around 7:30 a.m. and had to go home. She tried
to find Don Mosher to tell him that she could not work
and, not being able to find him, she told Rance Grimes and
Joy Broughton that she was going home, asked them to tell
Mosher, and left.
Grimes testified that on that same morning he saw
Mosher talking to Eula Florence and later saw Eula
Florence holler something at her sister, Pauline Bruin, and
that sometime thereafter Bruin asked him where Mosher
was, saying that she was nauseated and ill, could not find
Mosher, and was going home. She asked him to inform
Mosher. Grimes said that he looked for Mosher and
sometime later found him and gave him Bruin's message.
Broughton testified that on that morning Florence did say
something to Bruin and that sometime later Bruin told her
that she had to go home and left and that she later told
Mosher that Bruin had to leave.
Around 9 a.m., Bruin felt better and called the plant and
spoke to Mosher, saying she had been sick to her stomach
and left because she could not work, and Mosher told her
she would have to talk to Barbara Warburton, the
personnel manager, concerning leaving work. Bruin testi-
fied she called the office several times and it was not until
around 3 o'clock that she was able to reach Warburton.
She told Warburton she was better, had stopped being
nauseated, and would be back to work in the morning.
Warburton told her that Donnie Mosher had pulled her
timecard and that she no longer had a job.
During her cross-examination, Bruin admitted that on
that morning her sister did holler at her and that she called
back to her sister to go take a laxative and she would feel
better in the morning. She denied that there was any
argument between them. She denied telling Barbara
Warburton that she had left work because she was mad at
her sister and denied telling this to Mosher. She also denied
telling Mosher that she would not be back to work until her
sister apologized.
Respondent called her sister, Eula Florence, as a witness
and Florence testified that she had no argument with her
sister on that morning. She said that Mosher, at one point,
told her that her sister would not come back until she
apologized and she said she had not done anything to
apologize for and not to worry about it, that her sister
would be back on the following day. Her testimony clearly
indicates that there was no argument between them.
Mosher testified that, on the morning of September 27,
he was told by several people that Pauline and Eula had an
argument and Pauline had left the plant. Some 2 hours
later, Pauline called and said that the two of them had an
argument and she was not coming back until her sister
apologized. He said he told Pauline that he would talk to
her sister about it but did not do so but went instead to the
office and spoke to Barbara Warburton. He testified that
nothing had been said about Bruin being sick.
Warburton stated that Mosher told her Bruin had called
in and said that she had left work and would not come
back until her sister apologized and that he wanted her to
get hold of Renaker and Hill and tell them that Bruin had
walked off the job. She got hold of Hill at the Cynthiana
plant and repeated Mosher's statement and sometime later
Renaker or Hill called back and talked to Mosher and told
Mosher to pull Pauline's timecard and Mosher did so.
According to Warburton, Bruin called that afternoon,
saying she would be back to work in the morning and, if
her sister opened her mouth, she would take care of her.
Warburton said she told Bruin not to tell her that, but that
Mr. Renaker had already had her timecard pulled and it
was in the office and that she needed to talk to Renaker
and not to her. She stated she told Bruin that Renaker had
gone to the Cynthiana office and she could call him there.
Vice President Hill testified that all Barbara Warburton
knew about the Bruin controversy was that they had told
Mosher to pull Bruin's card. Hill's testimony, in effect,
contradicts Warburton's claim that the Company wanted
to discuss with Bruin why she had left the plant and the
inferential claim that Bruin had not been fired. Hill stated
that he did not consider that pulling Bruin's card was the
same thing as firing Bruin because, he said, they wanted to
discuss why she had left. This would not have been
communicated to Bruin, according to Hill, because
Warburton would not have known it.
Renaker, in turn, contradicted Hill by saying he told
Warburton to pull Bruin's card or have Mosher do it
because he wanted to talk to Bruin before she went back to
work to see what her family problem was. He stated that at
one point he was told by Warburton that Bruin would call
him at the Cynthiana plant but that he never heard from
her.
Renaker acknowledged that Mr. Wilburn, the Union's
vice president, contacted him concerning Bruin's discharge
and testified on direct that Wilburn told him Bruin had
been sick and he told Wilburn that was not the information
he had. He said Wilburn asked if the Company would take
Bruin back to work, adding that, if they did so, he would
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not file a complaint. He replied to Wilburn that he still was
waiting for a call from Bruin. On cross-examination,
Renaker contradicted his direct testimony, saying that,
when Wilburn called him, the only thing he told Wilburn
to do was to speak to his attorney.
That evening, Bruin called Rance Grimes and told him
she had been fired.
Bruin testified that there had been other occasions when
she had left the plant without contacting her supervisor
when there was an emergency or sickness and nothing had
ever been said or done about it. Mosher admitted that
other employees had left the plant when they were ill
without informing him and, as long as he got word of it, no
disciplinary measures had ever been taken against employ-
ees.
On the following day, Grimes and Mosher began talking
about the Union and Grimes said that if it would get the
old lady (Pauline Bruin) back to work, he would talk to
everybody in the plant and try to get them to drop the
Union. Mosher said that he had not fired Bruin but that
she was griping all the time and she and one other
individual were not fit for anything. Mosher then said that
Bruin would still have a job if she had not gone to the
union meeting and complained about hanging the racks
and having to come in early.
On Wednesday, September 29, Grimes spoke to Mosher
very early in the morning and said that Mosher told a
guard in his presence that he thought he had gotten rid of
the union ringleaders.
During his examination, Mosher was asked whether he
had ever told an employee that another employee had been
discharged because of union activity. Mosher's reply was
that at one time Grimes asked him why he had fired Bruin
and he said that he did not do so. This testimony is not a
denial of either the September 28 or September 29
statements concerning firing people for their union activity.
While it is possible that a few words passed between
Pauline Bruin and her sister, Eula Florence, on the
morning of September 27, both of them deny that there was
any argument between them. This is particularly significant
where Eula Florence was called by Respondent in regard
to an "argument" and denied that there had been any. The
testimony of Grimes corroborates Bruin that she was sick
that morning, and I credit that she was, and for that reason
left the plant. With the added testimony of Grimes
concerning Bruin's fear of losing her job, as demonstrated
on the previous Friday, I cannot believe that she would
have put her job in jeopardy by threatening to remain away
from work because of something that occurred between her
sister and herself, particularly where there appears to have
been no such argument or occurrence as testified to by
both Bruin and Florence.
The plant discipline appears to be somewhat loose, as
demonstrated by Mosher's corroboration of the testimony
of others that employees had left the plant without
notifying him when they had some problem and they had
never been disciplined for doing so. When these facts are
coupled with the direct statements of Mosher to Grimes
concerning the Company's getting rid of union card signers
and union adherents and that the Company had fired
people for their union adherence, it is clear that Respon-
dent's story is a thin veil to cover its discharge of Bruin for
her union activity.
I conclude and find that Respondent violated Section
8(a)(3) and (1) of the Act by its discharge of Pauline Bruin.
I further find and conclude that Respondent violated
Section 8(a)(1) of the Act by Mosher's statements to
Grimes concerning the discharge of employees for their
union support or adherence.
C. Other 8(a)(1) Violations in September and
October
1. Jeffrey Robinson testified that, prior to the meeting
of September 20, Supervisor Donnie Mosher asked him
what time the union meeting was and where it was to be
held, and he pretended that he did not know and said he
would like to know so that he could go himself.
When he testified, Mosher was read a complaint
allegation as to whether he had interrogated an employee
concerning the location of a union meeting and he said he
did not. Asked whether he had heard the testimony of
Robinson and if anything like that happened, he answered,
"Not that I can remember."
This is at best a quasi-denial of Robinson's testimony.
Robinson appeared to be a more credible witness than
Mosher. A number of things Mosher testified to were flatly
contradicted by the testimony of others. Robinson is a
young man, unsophisticated, and with a limited education.
He appeared to make an earnest effort to recall and give
his testimony without embellishment and without regard as
to whether the testimony was favorable to him or not.
Mosher was not straightforward in his answers. Eliciting
denials to complaint allegations rather than to specific
testimony does not inspire confidence in such qualified
denials. The answer of "not that I can remember" is not, I
feel, a proper or adequate denial of the specific testimony
that Robinson gave.
I credit Robinson's version of the occurrence and
accordingly find and conclude that Robinson, through
Mosher's questioning of Robinson as to where and when a
union meeting was to be held, engaged in unlawful
interrogation in violation of Section 8(a)( ) of the Act.
2. Rance Grimes testified, as noted above, that Mosher
stated he knew the names of all the employees who had
signed union cards. Dorcus Blakey similarly testified that
Mosher said in her presence that Gene Hill had a list of
everybody that signed union cards and they were going to
be fired.
Mosher was asked on direct examination, after being
read complaint paragraphs 5(a)(i) and (iii), if he knew
anything about those things happening and he said no.
Mosher was not asked about the testimony of Grimes and
Blakey recited above, so that all he denied was the
complaint allegations rather than the factual testimony of
the individuals. Mosher said that on one occasion he had
talked to Rance Grimes and told Grimes he knew who had
signed the cards and that Grimes said yes, he did too,
because the people had told him. Mosher said that was
about all that he said concerning the subject. This answer
appears to be at least partial confirmation of Grimes'
testimony and, in essence, confirms the testimony of
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PRODUCTION PLATING CO.
Blakey and supports the complaint allegation of creating
an impression of surveillance.
I conclude and find that Respondent, by the statements
and questioning of Donnie Mosher set forth above,
violated Section 8(a)(1) of the Act by informing employees
that Respondent knew of the identity of employees who
had signed union authorization cards, thereby creating an
impression that its employees' union activities were under
surveillance.
3. Grimes testified that sometime in October he heard
Mosher say that he was going to work the employees
overtime to keep them from going to a union meeting
which was supposed to be held that evening. Joy Brough-
ton corroborated this testimony by stating that she heard
Mosher say that he was going to make the employees work
overtime so that they could not attend a union meeting.
Again, on direct examination, Respondent's counsel read
complaint paragraph 5(a)(vii) to Mosher and asked if he
knew anything about it, and Mosher replied no. Mosher
said he asked people to work overtime because a customer
called in that afternoon and wanted his parts put on a
plane that evening and further said that the Company does
not force overtime on employees and therefore he did not
make people work overtime to keep them from the union
meeting.
This answer talks around the complaint allegation and
the testimony of Grimes and Broughton and does not
answer the specific allegation that Mosher threatened that
he would make employees work overtime to miss the union
meeting. The question is whether he made such a threat,
not whether he tried to enforce it. The answers which
Mosher gave to the questions propounded to him did not
answer the specific allegation or the testimony.
I therefore conclude and find that Respondent, through
Donnie Mosher, threatened to make employees work
overtime in order to have them miss a union meeting and
that this threat interfered or tended to interfere with
employees' Section 7 rights and thereby violated Section
8(a)(1) of the Act.
4. Wayne Smoot stated that, about a week before he
signed his union authorization card in latter September,
Donnie Mosher told him in the breakroom about 7 a.m.
that he could get fired if he voted for the Union.
On his direct examination, Mosher was asked whether he
told an employee, again in the language of the complaint, if
he threatened to discharge an employee if the employee
supported the Union. He replied he did not say anything to
Mr. Smoot about that and had never talked to Smoot
about the Union.
Smoot was an individual who apparently did not support
the Union when it started since he did not sign his
authorization card until September 20. Smoot did not
appear to have anything to gain by telling an untruth and,
although his testimony was a bit hesitant and he was still
employed by Respondent, he appeared to make an effort to
state just what had occurred. Cross-examination did not
shake his testimony.
Mosher acknowledged that word of union meetings and
who had signed the union cards leaked to him but rather
unconvincingly stated that he was not interested in such
information and that there had been a number of meetings
before the Company told him that a petition had been
filed. Actually, most of the meetings took place after the
filing of the petition. Mosher sought to deny what he
thought were violations of the Act while admitting facts he
felt were not violative. Mosher was not a credible witness
and the testimony elicited from him did not serve to make
him appear credible. In this instance, I credit Smoot and
find that Mosher did threaten Smoot as he had threatened
others.
I therefore conclude and find that Respondent violated
Section 8(aXI) of the Act by Mosher's threat that an
employee could be fired for voting for the Union.
D. The Unlawful Discharges of Robinson and
Chambers
Robinson and Chambers worked together on a phos-
phate plating line. On occasions oil would get into the
phosphate tank and the parts which were to be electro-
plated would not coat and it was then necessary to stop the
line, drain the tank, add new chemicals, and reheat the
tank, which would take anywhere from a half day to a day.
Chambers had injured his back at the plant several weeks
before mid-October, had been in the hospital, and had filed
a workmen's compensation claim. A doctor had allowed
him to return to the plant with instructions that he was to
be given light work. The Company put him on hanging
racks but Chambers complained that was harder than his
regular job and he was put back on the phosphate line. He
was on the line only 1 or 2 days before the line had
problems with oil in the tank on October 13. Chambers and
Robinson were laid off temporarily on that date. The
complaint alleges that the layoffs violated the Act as well as
the subsequent discharges.
Respondent produced testimony that this was the third
plating line to have problems within a few days. General
Manager Hill testified that the two other nickel lines were
shut down that week. An electric hoist on one line caught
fire and burned and the line had to be shut down until they
could get a new hoist, and the operator, George Rioux, was
transferred to another job. The electrolysis nickel line,
where Calley worked, caught fire, the line was closed down,
and he was placed on other work. When, thereafter, the
phosphate line had to be shut down because of oil in the
tank, Respondent did not have any other jobs to which to
transfer Robinson and Chambers because they were afraid
of Chambers' back injury and they had already put Rioux
and Calley on other jobs. According to other testimony, the
person for whom Respondent was doing the plating had
changed the lubricant used to coat parts and the cleaners
Respondent was using on the phosphate line were not
removing the oil. It took Respondent a day or two to
discover this and make changes in the chemical cleaners to
remove the oil and start the phosphate line back up.
Mosher and Hill worked on that line, with Mosher doing
most of the work on an experimental basis. When they
finally got the line back into operation, Robinson was
called back to work and by that time Chambers had been
discharged. Robinson worked on the line until his dis-
charge in January 1977.
Respondent offered testimony that after their layoffs
Chambers and Robinson complained about the layoffs and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were given layoff slips. There is no indication that the
reasons for the layoff were explained to them and, because
they had not previously been laid off when the tank had to
be changed, they became suspicious of the reason for the
layoff, believing that it was tied to their union activity in
light of the remarks Mosher had made in the plant. While
there is room for suspicion in these circumstances, the
unrebutted facts about the plating lines make sense and I
cannot find that the layoffs in these circumstances were
discriminatory.
On payday, I or 2 days later, Chambers went to the plant
to get his pay and walked through the plant carrying a
petition which he asked a number of people to sign. He
stated he got the petition from the State and it concerned
fumes from the plant which he said affected the employees
in the plant as well as those who lived in a nearby trailer
court. Chambers asked Barbara Warburton to sign the
petition but she declined, stating that it did not affect her.
Warburtori told Hill and Renaker about this petition.
Chambers was asked on cross-examination whether he
had made any threats to Mosher on that date and denied
doing so or saying that he would meet Mosher outside. He
further denied making any threats to a person named
Madden, saying that he was not even sure who Madden
was.
Mosher testified that when Chambers came into the
plant that day he acted as though he was mad but added
that apparently a lot of people were mad at him. Not
identifying it as the same day but indicating it was after
Chambers had been laid off, Mosher said that, on one
occasion when Chambers was going through the plant,
Chambers said something to him, that he would speak to
Mosher in the parking lot. Mosher then changed the
statement to "I will meet you in the parking lot." After
some additional pointed direct questioning, Mosher said
that Chambers acted like he was mad. When Mosher left
work, he did not see Chambers in the parking lot and did
not look for him. Madden was not produced by Respon-
dent and accordingly there was no direct testimony about
any alleged threat supposedly made by Chambers.
Jerry Sellers, Respondent's truckdriver who was opposed
to the Union and to some extent disrupted a union meeting
with a series of questions, was produced by Respondent
and testified, among other things, to some parts being
thrown in the plant. Respondent's counsel stated that an
individual named Abney was being harassed by parts being
thrown at him by Robinson and Chambers around
October 20, because they did not know Abney's position
regarding the Union. This allegation strains credulity
because on that date Robinson was on layoff and
Chambers had been discharged and further because Abney
had signed a union authorization card on August 10 and,
with Robinson and Chambers as the principal union
protagonists, they would have known that fact. Sellers
testified that he wrote a complaint to the Company because
Robinson and Chambers were harassing Abney but he
admitted that Abney never said anything to him. Finally,
Sellers admitted that what he said he observed could be
considered a bit of horseplay.
Chambers received the following letter from Respon-
dent:
October 19, 1976
Dear Mr. Chambers,
Because of process failure on the phosphate line
causing a reduction in our production capacity and
workload, and your refusal to work on the racks, it was
necessary to place you on layoff status Wednesday,
October 13, 1976. Since that time you have returned to
the plant without permission or recall, and it has been
brought to our attention that you have, and continue to
verbally threaten physical violence against certain
employees of the Company. We cannot, and will not
tolerate the behavior of anyone who threatens the
safety and well being of our employees; consequently,
we have no other choice but to terminate your
employment with the Company effective immediately.
Yours truly,
Production Plating Inc.
/s/ W. L. Renaker
/s/ Gene D. Hill
Chambers specifically denied threatening Abney, Mad-
den, or anyone else in the plant or engaging in any physical
violence against any of the employees or that anything
other than cigarette butts had been thrown.
Robinson worked steadily and, according to the Compa-
ny, did a good job until January. Robinson said he was off
sick a few days during January and later, on January 25
and 26, was not at work because his car would not start due
to the severe cold weather. He reported back on January 27
and worked a half day before he was discharged. Robinson
testified that, while he was off, he attempted to call the
Company but was given the telephone number of the
Cynthiana plant. When questioned about reading the
telephone book to determine the proper number, he stated
that he was unable to do so and indicated that he had
difficulties with reading and repeated that, when he called
information for the number, he was given only the number
of the Cynthiana plant.
Respondent has an employee's information sheet which
gives company policies; number 5 states, "If you are absent
for work for a period of two days without reporting to the
main office, you must contact the office before you return
to work."
Robinson testified that he had been absent for periods of
2 days prior to that time and nothing was ever said to him
when he returned to work. When he was discharged, he
thought he was being laid off because all that Mosher said
to him was they were going to have to let him go. As he was
leaving, Mosher added that he was being let go because he
did not come in for 2 days in a row and did not call in.
Mosher stated that Robinson was discharged for taking
off 2 days and not calling in. He stated that, when he talked
to Robinson on the morning of January 27, Robinson said
that he was sick. Mosher said he asked for a doctor's
statement and Robinson said he did not go to a doctor and
therefore had no statement; that he had tried to call him
but could not find the number and did not get the proper
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PRODUCTION PLATING CO.
number from the information operator. Mosher stated that
Robinson was let go for absenteeism, which he said was for
being off those 2 days without calling in.
Hill testified that after Chambers and Robinson had
been laid off it came to the Company's attention that
Chambers had been creating problems, such as throwing
parts at Robert Abney and interfering with his work. He
further indicated that Chambers said something to Renak-
er and they decided it was desirable to terminate him. In
regard to Robinson, Hill stated that he was discharged
after he did not report on January 25 and 26 and that he
was discharged because of absenteeism and his refusal or
inability to call in. In regard to the company rule, Hill
stated the company rule is that if anyone is absent 2 days
without notifying the Company the employee is liable for
discharge and that the Company had used this reason in
their unemployment hearings. His statement of the rule is a
misstatement.
Renaker testified that, after Chambers and Robinson
had asked for a layoff slip, Chambers asked if it had any
effect on his insurance and he replied that it did not. He
said that Chambers said something about taking the slip to
his lawyer and afterwards said something about "there will
be a matter, I'll have to take care of you." Whether this was
meant to be any version of a threat is unclear from
Renaker's testimony. Renaker was questioned further
about it and said that Chambers had said something about
giving the paper to his attorney and that someone would be
around to see Renaker about it, to take care. Renaker
offered secondhand testimony as to a threat regarding
Dave Madden but did not place it in any time sequence
and Madden was never called to testify nor was his
absence explained. Renaker acknowledged that it had been
reported to him and Hill by Warburton that Chambers had
a petition in the plant.
In regard to Robinson, Renaker stated that he and Hill
decided to terminate Robinson. They called the foreman
and told him to do so because Robinson had been off 2
days, had a poor record, and had no excuse for the 2 days.
Respondent admitted that its work schedule was cut in
January because of the severe cold and that Robinson had
been a good worker and had a good record until January.
Renaker's testimony regarding Robinson makes it
apparent that he and Hill were keeping close watch on
Robinson since he says he knew that Robinson had missed
work on January 25, and on January 26 he and Hill
discussed it and called on January 27 to find out whether
Robinson was there or not. No reason is given for this close
watch.
Respondent's reasons for the layoffs on October 13
appear to be valid and, although there might be some
suspicion due to the fact that in previous times the line had
been restarted within a matter of hours, the reasons given
by Respondent for the difference this time make sense and
are not contradicted by General Counsel. I therefore
conclude that the suspensions were proper and dismiss
those allegations of the complaint. I reach the opposite
conclusion as to the discharges, however. From his
testimony, it appears that Sellers was antagonistic toward
the Union and toward Robinson and Chambers. In
addition to any union sentiments and actions of Robinson
and Chambers (and apparently they did most of the
solicitation of employees), it appears that Respondent
would have been further angered by Chambers' bringing
into the plant a petition concerning the plant's production
of fumes and asking plant employees to sign it. The
combination of these two things are what I find brought
Respondent to the point where it discharged Chambers.
The question of any threats by Chambers was not
demonstrated by the evidence produced by Respondent.
Chambers was never faced by Respondent with any such
allegations or asked to explain any of his remarks which,
Respondent says, it considered as threats to its employees.
Similarly, Respondent's action in discharging Robinson for
being out 2 days and then reporting back to work
contravenes the language of its own rule. The rule, which is
stated as a company policy, does not indicate that
employees are subject to disciplinary action but only that
they should report if they are absent without notice for a
period of 2 days. Robinson did go back to work after this
absence in the same manner as he had done on previous
occasions and nothing was said to him and he immediately
started to work and worked for half a day. This could only
be considered by Robinson and other employees as
agreeable to Respondent. The rule had been understood by
the employees who testified to mean that "if you are absent
for 2 days, you must call in on the third day or be back at
work on the third day." This is the practice that they
followed without any disciplinary action being taken
against any of the employees prior to that time. Robinson
was only following company practice.
I conclude and find that Respondent violated Section
8(a)(1) and (3) of the Act by its discharges of Howard
Chambers on October 19, 1976, and of Jeffrey Robinson
on January 27, 1977, and that Respondent's asserted
reasons for discharge are pretextual.
E. The Refisal To Bargain
As was demonstrated, supra, the Union had a clear
majority of the employees in an appropriate production
and maintenance unit on August 12, which majority
continued thereafter through the Union's filing its petition
and Respondent's receipt of a copy of it. That petition,
was, in effect, a demand by the Union for recognition and
bargaining by the Respondent in an appropriate unit.
Respondent did not reply except that Respondent, by its
8(aXl) and (3) violations set forth above, clearly showed
the Union and its employees that it rejected the principle of
collective bargaining. Both on the basis of this rejection of
the principle and refusal to respond to the Union and the
unilateral promulgation and enforcement of an invalid no-
solicitation rule, all of which I find constitutes a violation
of Section 8(aX5), and on the basis of the severe violations
of Section 8 (aXl) and (3), I find it is necessary that an
8(a)(5) bargaining order be issued to remedy the violations
in this matter.
[II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I1,
above, occurring in connection with Respondent's business
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations as set forth above in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent violated Section 8(aX5)
and (1) of the Act by refusing to recognize the Union as the
employees' collective-bargaining representative and refus-
ing to meet and negotiate with the Union and, further, by
unilaterally promulgating and implementing an invalid no-
solicitation rule, it is recommended that such rule be
rescinded and withdrawn and that Respondent cease and
desist from refusing to recognize, meet and bargain with
the Union as the bargaining representative of its produc-
tion and maintenance unit employees in the unit heretofore
found appropriate.
Having further found that Respondent discriminatorily
terminated Pauline Bruin on September 27, 1976, and
Howard Chambers on October 19, 1976, and Jeffrey
Robinson on January 27, 1977, because of their actual or
suspected union sympathies and activities or their concert-
ed activities, I recommend that Respondent offer them
immediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions without prejudice to any seniority or
other rights and privileges they may enjoy. Respondent
shall make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, by
payment to them of a sum equal to that which each would
have received as wages from the date of their discharges
until they are fully reinstated, less any net interim earnings.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest at the rate of
6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I further recommend that Respondent, upon
request, make available to the Board payroll and other
records to facilitate checking the amounts of backpay and
any other rights due Pauline Bruin, Howard Chambers,
and Jeffrey Robinson.
Respondent also engaged in interrogation of its employ-
ees concerning the location of a union meeting; created in
its employees' minds an impression that it was surveilling
their union activities by informing employees it knew
which employees had signed union authorization cards and
by threatening to make employees work overtime to
prevent their attending a scheduled union meeting;
threatened to discharge employees if they supported the
Union and informed employees that union supporters had
been discharged; and promulgated and enforced a discrim-
inatory rule prohibiting solicitation on its premises, and I
recommend that Respondent be ordered to cease and
desist from violating the Act in the same or in any other
manner.
On the basis of the foregoing findings and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Production Plating Company of Lexington, Ken-
tucky, 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. All production and maintenance employees em-
ployed by the Respondent in its Lexington, Kentucky,
location including truckdrivers, but excluding office cleri-
cal employees, professional employees, guards and all
other employees and supervisors as defined by the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On and after August 12, 1976, and at all times
material since then, the Union has represented a majority
of the employees in the appropriate unit and has been the
exclusive representative of the unit employees for the
purposes of collective bargaining.
5. By refusing, on and after August 28, 1976, to
recognize, meet, and bargain with the Union as the
exclusive representative of its production and maintenance
unit employees, and by unilaterally promulgating and
enforcing, in September 1976, a discriminatory rule,
Respondent violated Section 8(a)(1) of the Act.
6. By discriminatorily discharging Pauline Bruin on
September 27, 1976, Howard Chambers on October 19,
1976, and Jeffrey Robinson on January 27, 1977, and not
thereafter reinstating them to their positions because of
their actual and suspected union sympathies and activities
and concerted activities, Respondent engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
7. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and 2(6) and (7) of the Act by:
(a) Interrogating employees concerning the location of a
union meeting.
(b) Creating an impression of surveillance of employees'
union activities by informing employees that it knew which
employees had signed union authorization cards and by
threatening to make employees work overtime to prevent
their attending a scheduled union meeting.
(c) Threatening to discharge employees if they supported
the Union.
(d) Informing employees that it had discharged union
supporters.
(e) Promulgating and enforcing a discriminatory no-
solicitation rule.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
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PRODUCTION PLATING CO.
ORDER 2
Respondent, Production Plating Company of Lexington,
Kentucky, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively in violation of
Section 8(a)(5) and (1) of the Act with Metal Polishers,
Buffers, Platers and Allied Workers International Union,
AFL-CIO, as the exclusive representative of its employees
in its production and maintenance unit.
(b) Discharging and refusing to reinstate employees in
order to discourage employees from being or becoming
union members or supporting the Union or for engaging in
concerted activities.
(c) Interrogating employees concerning the location of a
union meeting.
(d) Creating an impression of surveillance of employees'
union activities by informing employees that it knew which
employees had signed union authorization cards and by
threatening to make employees work overtime to prevent
their attending a scheduled union meeting.
(e) Threatening to discharge employees if they supported
the Union.
(f) Informing employees that it had discharged union
supporters.
(g) Promulgating and enforcing a discriminatory no-
solicitation rule.
(h) In the same or any other manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist Metal Polishers, Buffers, Platers and
Allied Workers International Union, AFL-CIO, to bargain
collectively with representatives of their own choosing, and
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
2 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 the 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.
(a) Upon request, recognize, meet, and bargain with the
Union as the exclusive representative of its employees in
the above appropriate unit and, if an understanding is
reached, embody such in a written signed contract.
(b) Offer to Pauline Bruin, Howard Chambers, and
Jeffrey Robinson reinstatement in accordance with the
recommendations set forth in the section of this Decision
entitled "The Remedy."
(c) Make Pauline Bruin, Howard Chambers, and Jeffrey
Robinson whole for any loss they may have suffered by
reason of Respondent's discrimination against them in
accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records and reports, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay and
the rights and privileges due Pauline Bruin, Howard
Chambers, and Jeffrey Robinson as set forth in the section
of this Decision entitled "The Remedy."
(e) Post at its Lexington, Kentucky, plant copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained 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 insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that complaint allegations
5(a)(ii) and (v) and 9 be dismissed.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Courts 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."
125