Production Stamping, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1979

239 N.L.R.B. 1183 (N.L.R.B. 1979)

Production Stamping. Inc. amd United Steelworkers
of America, AFL-CIO-CLC. Case 7-CA-14335
January 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 8, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 condisered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Aministrative Law Judge and to
adopt his recommended Order, as modified herein.
We find merit in Respondent's exception to the
finding that employee Gary Hopkins was deprived of
a half-hour overtime each morning in violation of
Section 8(a)(l) and (3) of the National Labor Rela-
tions Act, as amended. Hopkins was the observer for
the Union in the election held on September 16,
1977. The balloting on that day was concluded at 3
p.m. At 3:25, Plant Manager David Simpson told
Hopkins to go home and that there would be no
more overtime. During the hearing, Simpson admit-
ted the reason for his statement was that he Was
"probably mad the Union got in."
The record is far from clear on the issue but it
appears that after the election Hopkins no longer was
asked to report to work a half-hour before the regular
starting time, with the result that he lost "early over-
time" pay.2 Plant Manager Simpson's testimony sug-
gests that previously it was necessary for Hopkins to
report early to warm up the compressors which were
kept outside the plant. Simpson also testified, with-
out contradiction, that Respondent had recently
completed a warehouse facility and that the compres-
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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.
2 As noted by the Administrative Law Judge, although Hopkins no longer
received the half-hour early overtime, he continued to receive other over-
time and, in fact, since the election has worked more total hours of overtime
than before.
PRODUCTION STAMPING, INC.
sors were now housed indoors. Thus, according to
Respondent, the need for "early overtime" was elimi-
nated, not for discriminatory motives but rather as a
matter of economics.
Although we would agree with the Administrative
Law Judge that the circumstances surrounding the
loss of early overtime. Simpson's election day re-
marks in particular are suspicious, it is axiomatic that
suspicion is no substitute for evidence to sustain the
allegation of a complaint. Thus, given the state of the
record before us, we are unable to agree that the
General Counsel has met its burden of proof in
showing that the loss of early overtime was discrimi-
natorily motivated and hence unlawful.
Finally, although we agree with the Administrative
Law Judge's conclusion that the record fully war-
rants a finding that employee Patricia Bronikowski
was constructively discharged in violation of Section
8(aXl) and (3) of the Act, we do not agree with his
further conclusion that no reimbursement remedy is
called for.3 Thus, although the Administrative Law
Judge may be correct that the omission of a request
by the General Counsel for reimbursement of Broni-
kowski is "ascribable to events not in the record,"
such matters are not properly the subject of specula-
tion and conjecture in this proceeding but may, if
relevant, be raised and resolved at the compliance
stage. Hence, we shall order Respondent to make
whole Bronikowski for any loss of earnings suffered
as a consequence of the unlawful action taken
against her, in the manner set forth in the Remedy
section of the Administrative Law Judge's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Pro-
duction Stamping, Inc., Mt. Clemens, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
as so modified:
I. Add the name "Patricia Bronikowski" to em-
ployees listed in paragraph 2(a).
2. Delete paragraph 2(b) in its entirety and reletter
the subsequent paragraphs accordingly.
3. In paragraph 2(c), which now becomes para-
graph 2(b), delete the name "Hopkins" and add the
name "Bronikowski."
4. Substitute the attached notice for that of the
Administrative Law Judge.
Bronikowski was on Respondent's payroll at the time of the heanng in
this case. As noted by the Administrative Law Judge, the circumstances
surrounding the return to Respondent's employ are unclear.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to abide by the following.
WE WIL.L NOT discharge or lay off employees,
or other persons in our employ, including super-
visors, or deprive them of other benefits, or
otherwise discriminate against them, because of
employees' membership in, support of, or activi-
ty on behalf of United Steelworkers of America,
AFL-CIO-CLC, or any other union.
WE WILL NOT do any of the following things
with relation to employees' union or concerted
activities: Interrogate employees, spy on them,
or on union meetings, or tell employees that we
intend to or have done so, threaten the loss of
benefits or threaten to move or close the plant,
deprive employees of benefits, threaten employ-
ees or others if they testify in NLRB proceed-
ings, isolate employees, cause employees to quit,
and assign employees to other or more arduous
work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees' exercise
of their rights guaranteed by the National Labor
Relations Act.
WE WILL offer to Philip Arketa, Gary Baker,
Frank Nadolski, James Miller, and Patricia
Bronikowski immediate, full, and unconditional
reinstatement to their former positions or, if
those jobs no longer exist, to substantially equiv-
alent ones, without prejudice to their seniority or
other rights and privileges.
WE WILL reimburse Arketa, Baker, Nadolski,
Miller, and Bronikowski for any loss of wages
they incurred as a result of our actions against
them, plus interest.
PRODUCTION STAMPING. INC.
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
August 22, 1977, United Steelworkers of America, AFL-
CIO-CLC, the Union, filed the instant unfair labor prac-
tice charge against Production Stamping, Inc., Respon-
dent, pursuant to the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et. seq. On October 6, 1977, the
Regional Director for Region 7 of the Board (Detroit,
Michigan), issued a complaint on the charge alleging that
Respondent had committed various unfair labor practices
in violation of Section 8(aXl) and (3) of the Act. Service
was duly made on Respondent and the Union. Respondent
filed an answer denying the allegations of the unfair labor
practices.
Pursuant to notice, a hearing was held before me at De-
troit, Michigan, on January 10 and 11, 1978. The General
Counsel, the Union, and Respondent appeared at the hear-
ing, and all parties were afforded full opportunity to be
heard, to introduce and to meet material evidence, to pre-
sent oral argument, and to file briefs.
On February 6, 1978, Respondent, and on February 7,
1978, the General Counsel, filed briefs. Upon consider-
ation of the entire record, and the briefs, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Production Stamping, Inc., is, and has been at all times
material herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of Michigan. At
all times material herein, Respondent has maintained an
office and place of business at 28175 William Rosso High-
way in the city of Mt. Clemens, Michigan, herein called the
Mt. Clemens plant. Respondent is, and has been at all
times material herein, engaged in the manufacutre, sale
and distribution of automobile parts and related products.
During the fiscal year ending August 31, 1977, which pe-
riod is representative of its operations during all times ma-
terial herein, Respondent, in the course and conduct of its
business operations, manufactured, sold and distributed at
its Mt. Clemens, Michigan, plant, products valued in exess
of SI million, of which products valued in excess of $50,000
were shipped from said plant directly to points located out-
side the State of Michigan. Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11 THE LABOR ORGANIZATION
United Steelworkers of America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
About late June or early July 1977, several individuals
employed by Respondent commenced activity on behalf of
the Union, ultimately resulting in an election on September
16, 1977, in Case 7-RC-14434, which the Union won.
Prior to the election, the organizers of the Union among
!184
PRODUCTION STAMPING, INC.
Respondent's employees, which included a foreman, were
discharged or laid off by Respondent. The complaint alleg-
es that the employee organizers were terminated because of
their union activity, and that the foreman was discharged
as part of a program of discharging union protagonists and
coercing employees. Respondent alleges that the termina-
tions were for just cause. Immediately following the elec-
tion, the employee who served as observer for the Union in
the election ceased to receive certain overtime. Those ac-
tions of Respondent are alleged to violate Section 8(a)(3)
and/or 8(aX1) of the Act.
During the same period of time, Respondent engaged in
other conduct alleged to constitute interference with, and
restraint and coercion of, employees.
The Respondent denies the commission of unfair labor
practices.
B. The Facts
i. Interference, restraint, and coercion i
Respondent employs about 30 employees. Most of Re-
spondent's production consists of automobile parts for the
use of the big three United States automobile manufactur-
ers. Union organizational efforts were commenced in late
June or early July 1977 by Gary Baker, James Miller, and
Foreman Frank Nadolski, all then employed by Respon-
dent. Nadolski was admittedly a supervisor within the
meaning of the Act. Thereafter, on July 17, 1977, a meeting
of employees was held at the home of the local president of
the Union. Designation cards were given to those present,
and on the following day distribution of the cards began
among the remainder of the employees.
Respondent received information as to the union activity
relatively early. Thus, in early July, Foreman John White,
a supervisor, told Foreman Nadolski that he had heard
that a union was coming in. Though he was one of the
union organizers, Nadolski replied that he had no idea
about it.
Interrogation by Foreman White: In June and July 1977,
Foreman White asked several employees, including Ron-
ald Erickson, whether they had heard anything about the
Union, and whether they knew that someone was trying to
organize a union. Erickson replied that he did not.
Plant Manager Simpson's interrogation of James Miller:
About July 15 or 25, 1977, Plant Manager Simpson told
employee James Miller that since Respondent was expand-
ing, he supposed that the "damn union" would be coming
in. Simpson asked Miller whether he was a member of the
Union, and whether he had a union card. Miller replied
that he had been a member of a union. Simpson further
stated that he had been a union member.
Simpson's interrogation of Gary Hopkins: Around July
18, 1977, employee Gary Hopkins signed a union card. A
day or two later, Plant Manager Simpson, in the presence
of Foreman John White, asked Hopkins if he had heard
anything about union cards. Hopkins said no. Simpson
m Unless otherwise indicated, the findings in this subsec:ion are based on
credited testimony whose correctness was either admitted or not specifically
denied.
then stated that cards were being passed around and
signed, and that he had an idea as to who did it. Simpson
went on to say that Jim Miller and Gary Baker were prob-
ably responsible, and that Frank Nadolski and Phil Arketa,
production control manager and inspector, respectively,
also had something to do with it.2
In the course of another conversation about the Union,
Simpson stated that Nadolski and Arketa were on their
way out. Simpson referred to Arketa as a "gook," and said
that Nadolski had a "bad attitude."
Simpson's interrogation of Erickson: Shortly after the
July 17 union meeting, Plant Manager Simpson asked em-
ployee Ronald Erickson whether Erickson had heard about
a union coming into the shop. Erickson responded in the
negative. Simpson then told Erickson that he thought that
Miller and Baker were the instigators.
On July 21, 1977, Foreman Nadolski and Philip Arketa
were discharged by Respondent.
White's conversation with Hopkins concerning Erick-
son: On August 1, 1977 Respondent received in the mail a
copy of the Union's petition to the Board for Certification
of Representative. Later that day, Foreman John White
asked employee Gary Hopkins if he had heard of the peti-
tion. Hopkins responded negatively. White then told Hop-
kins that he (White) had asked employee Ron Erickson
about the petition, that Erickson had replied that he knew
nothing, but, said White to Hopkins, "I think he does."
On the same day, at the end of the work day, employee
James Miller was laid off permanently under circum-
stances discussed infra.
On August 8, 1977, Gary Baker was permanently laid off
under circumstances discussed infra.
Surveillance of the union meeting of August 14, 1977:
On August 14, 1977, the Union held a meeting of employ-
ees at a hall in town. About 2 days prior to that meeting,
Plant Manager Simpson told Gary Hopkins that Simpson
and Foreman White were going to observe the meeting to
determine who attended it.
On the night of the meeting, employees observed Simp-
son and White parked across the street from the meeting
place. Simpson and White noted whose cars were parked in
the adjacent lot, and took the names of those who attend-
ed.
On the following day, Simpson and White told Gary
Hopkins that they had been at the union meeting, had driv-
en around the lot looking at the cars, and had the names of
the persons who attended. Simpson also told several other
employees, including some who had attended the meeting,
that he had been there and knew who had attended.
The August 29 meeting in the plant: On August 29, 1977,
Respondent held a meeting of employees in the plant dur-
ing working hours. Plant Manager Simpson spoke to the
employees. Foreman White was also present. Simpson
chided the employees for not bringing their wants to Re-
spondent, and asked what they were. After ascertaining the
employees' grievances, such as medical insurance, job clas-
sifications, wage increases, Simpson told the employees
2 Hopkins. who is a die setter, Foreman White. and Plant Manager Simp-
son worked together, and during workbreaks then would go to the office
and talk
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent would seek to satisfy them, if possible, "if
the Union wasn't voted in." Simpson also said that if the
Union came in, Respondent was not required to acquiesce
to the employees' demands, and further that Respondent
could "just close the doors and lock the place up."
Simpson's conversation with Bronikowski: About Sep-
tember 10, 1977, some days prior to the election, Plant
Manager Simpson told employee Patricia Bronikowski that
if the Union came in Respondent could close the shop and
move somewhere else.
Simpson terminates Hopkins' overtime: The election
was held on Friday, September 16, 1977. Employee Gary
Hopkins was the observer for the Union in the election.
Prior to the election, Hopkins came in a half-hour early
at 6:30 a.m., and usually worked late in the day, to 4 or 5
p.m., thus earning overtime at both the beginning and the
end of the shift. The election concluded on September 16
at 3 p.m., at which time Hopkins went back to work and
worked until about 3:25 p.m. At that time Plant Manager
Simpson told Hopkins to go home, adding that Hopkins
would get no more overtime. The reason for Simpson's ac-
tion, as stated in Simpson's testimony, is that he was
"probably mad the Union got in." Thereafter, Hopkins re-
ported in the morning at the regular starting time, 7 a.m.,
but continued to get overtime at the end of the shift.
Patterson's treatment of Bronikowski: At an undisclosed
time after the beginning of the union activity, Roy Patter-
son, a die setter, told Plant Manager Simpson that if the
Union came in he could not continue to work for Respon-
dent. Following the discharge of Nadolski, Patterson was
appointed foreman in his stead.
On the Monday following the election, September 19,
1977, Foreman Patterson told Patricia Bronikowski that
she had voted for the Union, that he had to look for anoth-
er job because he would not work in a union shop, and that
as long as he was there, he was going to make
Bronikowski's time "as miserable as possible." Patterson
then took Bronikowski off her regular welding, though
such work was apparently available, and put her to work
away from other employees, packing parts. Bronikowski
worked the remainder of the day, but did not return to the
plant on the following day and for some time thereafter,
because of Patterson's treatment of her and her unwilling-
ness to work under him any longer.
Shortly thereafter, Patterson left Respondent's employ
because the Union has won the election.
Simpson's statement to Hopkins regarding Baker and
those who testified: The complaint was issued on October
6, 1977, noting the hearing for January 10, 1978. After is-
suance of the complaint, Plant Manager Simpson told
Gary Hopkins that he (Simpson) would "mess up" Gary
Baker and any one who testified.
Plant Manager Simpson's testimonial explanation for his
actions during the campaign is that, "I was upset about
finding out that the union was coming in because I'm
against the union for a small shop."
How long Bronikowski remained away from work is unclear. At the
time of hearing she was again in Respondent's employ. The circumstances
of her reemployment are not explained in the record.
2. Conclusions as to interference, restraint, and coercion
Certain of the above-described conduct of Respondent's
representatives constituted interference, restraint, and
coercion of employees violative of the Act. Surveillance of
a union meeting by an employer during an organizational
campaign by a union among the employer's employees, for
the purpose of determining which employees attend, is an
interference with protected union and concerted activity,
and when observed by employees, tends to restrain them in
the free exercise of such rights. Surveillance of the August
14, 1977, union meeting by Plant Manager Simpson and
Foreman John White was consequently violative of Section
8(aXl)(1).
Certain statements of Plant Manager Simpson, Foreman
John White, and Foreman Roy Patterson, were also of an
interfering, restraitiful, and coercive nature, namely:
Simpson's statements to Hopkins around July 19 and 20,
1977, concerning the involvement of Miller, Baker, Arketa,
and Nadolski in the union activity; Simpson's statement to
Ronald Erikson shortly after the July 17, 1977, union meet-
ing to the effect that he thought that Miller and Baker were
instigators of the Union; his statement to Gary Hopkins on
August I concerning Simpson's interrogation of Erikson as
to the union petition for certification; Simpson's statement
to Hopkins about 2 days prior to the August 14 union
meeting to the effect that Simpson and White were going to
observe the August 14 meeting to determine who attended;
the statements of Simpson and White to employees after
the August 14 meeting, to the effect that they had been at
the meeting and had the names of employees who attend-
ed; Simpson's telling employees at the August 29 plant
meeting of employees that Respondent could close the
plant rather than agree to the employees' demands; his
statement to Patricia Bronikowski prior to the election to
the effect that if the Union came in Respondent could
close the plant and move elsewhere; and, his statement to
union observer Hopkins after the election that Hopkins
would get no more overtime. Since that statement was
made because the Union had won the election, it consti-
tuted a rePrisal for Hopkins' and the other employees'
union activity. Simpson's statement to Hopkins that he
would mess up Baker or anyone else who testified on the
complaint was also a threat of reprisal for engaging in ac-
tivity protected by the statute.
The necessary tendency of such remarks and conduct by
Simpson and White is to interfere with, restrain, and coerce
employees in the exercise of Section 7 rights, and they are
thus violative of Section 8(aXl) of the Act.
Foreman Patterson's statement to employee Patricia
Bronikowski to the effect that he had to look for another
job because he would not work in a union shop, and that
he was going to make her time as miserable as possible, are
attributable to his resentment at her having voted for the
Union. In these circumstances, Patterson's action in trans-
ferring Bronikowski to other work and isolating her from
other employees, when her regular welding work was ap-
parently available, is to be attributed to that resentment-
even though Bronikowski had, on prior occasions, per-
formed the wo'k to which she was transferred. Bronikow-
ski reasonably construed Patterson's threat to be reflective
1186
PRODUCTION STAMPING, INC.
of his determination to impose onerous conditions on her
future employment. Bronikowski's quitting was thus not a
voluntary severance of her employment but a constructive
discharge. Both Patterson's statement and his actions were
violative of Section 8(a)(I).
Against the above background, the actions of Plant
Manager Simpson at the August 29 meeting of employees,
in asking for a statement of their grievances, in telling them
that Respondent would seek to satisfy those grievances if
possible, provided the Union was not voted in, actions in-
stituted to combat the Union, were promises of benefit
conditioned on the rejection of the Union, and thus unfair
labor practices within the meaning of Section 8(aXl).
In such a context of unfair labor practices, the various
interrogations of employees by Plant Manager Simpson
and Foreman White as to employee knowledge of union
activities, which have been related above, acquired a coer-
cive character and were equally violative of Section 8(a)(1).
3. The terminations and the cancellation of Hopkin's
early overtime
a. Nadolski and Arketa
On July 20, 1977, because of extreme heat, the day shift
was sent home at noon at the direction of William John,
Respondent's president. John and Plant Manager Simpson
apparently then left the premises. Later in the day, the 4
p.m. shift was also sent home by Foreman Nadolski, for
the same reason. The circumstances as to how that oc-
curred are not altogether clear. The following represents
my reconstruction, based on the credited testimony, as to
what probably occurred.
It appears that, when Nadolski arrived for the afternoon
shift, there was trouble with the air conditioner, and the
office personnel advised him that the day shift had gone
home because of the heat. The welding machines do not
work properly when overheated. As, or after, the afternoon
shift employees arrived, Nadolski took a vote to determine
whether they wished to work in the heat, and the employ-
ees voted, with some dissent, not to work. Nadolski then
excused those employees who did not wish to work-ap-
parently most of the group. Arketa, an inspector on that
shift, whom President John identified in his testimony as
Respondent's quality control manager (but not a supervis-
or or managerial employee) then participated in advising
the employees of the foreman's decision that there would
be no work.4 Nadolski did not attempt to contact President
John or Plant Manager Simpson before taking this action.
Wayne Hebert, in charge of production scheduling for Re-
spondent, protested Nadolski's decision and told Nadolski
that he (Hebert) would get Nadolski and Arketa dis-
charged. When Plant Manager Simpson appeared on the
premises at or about 4 p.m. and was informed by Nadolski
and Arketa of Hebert's threat, Simpson assured them that
Hebert had no authority to fire them, and said that he
(Simpson) had Nadolski and Arketa "covered." After
4Arketa erroneously identified the foreman as Roy Patterson. who was at
that time a diesetter. and was not made a foreman until after Nadolski's
discharge.
Arketa and Nadolski had loaded a waiting truck with an
urgent shipment, Simpson excused the remaining employ-
ees on the premises, including Arketa.
On the following day, July 21, 1977, Plant Manager
Simpson, at the direction of President John, discharged
Arketa and Nadolski without explanation. President John
later told Nadolski that Nadolski "wasn't 100 percent for
the Company ... and had let the people go home." Arke-
ta never received an explanation.
b. James Miller
Miller was hired as Respondent's principal truckdriver
in March 1977, and was permanently laid off on August I,
1977. Apparently President John told Miller at the time of
hiring that it would be a long-term job. (See fn. 6 infra.)
Until late August 1977, Respondent had two trucks, a
semirig with trailer, and another truck with a stake body.
Miller mainly drove the semirig. Ronald Erickson, a press
operator and utility man, drove the stake truck at times
when Erickson was occupied with the semirig. Miller drove
the semirig about 80 percent of his time, the stake body the
remainder. When there was insufficient trucking work,
Miller drove a forklift and loaded material.
On several occasions after Miller was hired, he was told
by Plant Manager Simpson that Respondent planned on
replacing the semirig with a new heavy duty truck which
Miller would drive.5
In May 1977, Respondent conducted a survey of its
trucking costs, which indicated, as a result of a number of
concurrent factors, that Respondent could more economi-
cally contract out the major portion of its trucking needs.
The concurrent factors included Respondent's disposition,
in May and June, of an interest in a related plant and
warehouse in Algonac, Michigan, some 17 miles from Mt.
Clemens; construction of a new warehouse at Mt. Clemens
which began in February or March 1977 and was complet-
ed in August 1977; and termination of Respondent's prac-
tice of doing its own hauling of needed supplies of steel.
The Algonac plant continues to do some work for Respon-
dent as a contractor.
Either in connection with the survey, or independently
of it, Respondent decided on an undisclosed date to estab-
lish a new position, that of receiving and shipping clerk.
Advised by President John that the new position would
pay the same as his current hourly rate, $5.75, Miller asked
John whether John would consider him for the job. John
said that he would. Miller was apparently the only one of
Respondent's employees to apply for the job.
Although Miller knew that with the building of the new
warehouse Respondent would no longer store parts in the
Algonac warehouse, he was not told that Respondent
would cease to use that warehouse. Nor was he told, prior
to August 1, that his job would be affected.
sMiller's testimony to this effect is undenied. He placed the occasions as
in July. In view of the fact that I have inferred that in July Respondent
knew of Miller's union activity. I consider it unlikely that Simpson would
have made such statements in that month I do find that the statements were
made, but I conclude that Miller was mistaken as to the dates, and that the
occurrences were prior to July.
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the beginning of August 1977, Respondent began
to use the new warehouse for storage, although it was not
yet finished.
On August I, at the end of the work day, President John
called Miller to his office and told him, without prior no-
tice, that he had to let Miller go permanently because the
semirig had been sold. Miller asked about the shipping and
receiving job. John replied, without explanation, that that
was "out." Miller protested, to no avail, that this was con-
trary to assurances he had been given by John when hired
to the effect that it was a long-term job.6
The evidence does not disclose on what date or at what
time Respondent decided that it would lay off Miller at the
end of the day on August 1. August I was the first day of
a new payroll period. Respondent did not offer Miller any
other job.
Although President John told Miller at the time of his
layoff that the semirig had been sold, it in fact had not. Its
sale was actually finalized on August 31, 1977, after under-
going some repair.
After the layoff of Miller, Respondent continued for a
time to do its own hauling until (apparently) about August
31, when an independent trucking company began to do
the work formerly done by Miller.7 Respondent used the
semirig and the stake body truck during that interim pe-
riod. Ronald Erickson drove the stake body, sometimes as
much as 60 hours a week. Respondent's testimony is that
the semirig was used only once during the period, and driv-
en by Plant Manager Simpson. However, the stake body
was utilized for some over-the-road trips, work formerly
done by Miller in the semirig. Respondent continues to use
the state truck for local hauling. Since August, Erickson
averages under 20 hours a week driving the stake truck.
Sometime after Miller's layoff, Respondent hired a ship-
ping and receiving clerk who had several years of experi-
ence at the work. He is paid $4.30 an hour.
c. Gary Baker
Baker was hired as a single press operator in December
1976. Based on his performance, he was successively pro-
moted thereafter to automatic press operator, then to die-
etter, with commensurate increases in pay. In July 1977,
shortly prior to Baker's public union activity, and on the
recommendation of Plant Manager Simpson, Baker was
put in charge of a midnight shift which Respondent estab-
lished at that time. The shift consisted of Baker and two
evidently newly hired employees.
About a month of so later, on August 8, the midnight
shift was abolished. The reason for the abolition appears to
have been that production on the other shifts (which sup-
plied work for the midnight shift) did not warrant the
6 Thus. Miller testified without contradiction, that he told President John.
"This is a hell of a way to treat a person that you told was going to have a
job here for twenty years when you hired me." and that John responded that
Miller should not feel had, that others were going too.
The record does not specifically disclose on what date the contractor
began to do the trucking. The testimony of Respondent's witness Wayne
Hebert is that the transition was accomplished after the seming had been
disposed of. As noted above, the sale was finalized on August 31. The
record also does not disclose on what date Respondent decided to subcon-
tract its hauling.
latter's continuance. In any event, although Plant Manager
Simpson, alone of Respondent's witnesses, testified that
there was a problem with welds on the midnight shift, the
substantial and credible evidence is that the abolition was
not attributable to deficiencies in the performance of Baker
on that shift, and there does not appear to be any conten-
tion that it was.
Baker was notified of the layoff by President John on
August 8, when he was called to the office. In the presence
of Plant Manager Simpson, President John told Baker that
he (John) was "pissed off about this union business," Baker
responding that he knew nothing about the Union, Presi-
dent John then told Baker that he was laying off the mid-
night shift. Baker said that he would take any other job,
including press operator. John replied that no jobs were
available.
The two other employees on the midnight shift, both
press operators, were later recalled. One quit shortly there-
after. The other, after receiving training as an automatic
press operator, was given a wage increase. Baker was not
recalled.
d. Gary Hopkins
After the election in which Hopkins acted as the Union's
observer, Plant Manager Simpson terminated Hopkins'
morning overtime because the Union had won the election.
4. Conclusions as to the terminations, and as to the
discrimination against Hopkins
a. Generally
The complaint alleges that Respondent discharged Na-
dolski and Arketa, permanently laid off Miller and Baker,
and ceased to assign overtime to Hopkins, because of
union activity.
As to Nadolski, the allegation is that his discharge was a
part of a pattern of discharging union protagonists, thus
coercing employees from engaging in union activity; as to
Arketa that he was discharged because of Respondent's
belief that Arketa was involved in the activity; that Miller
and Baker were laid off and not recalled because of their
union activity; and that Respondent ceased assigning over-
time work and hours to Hopkins because Hopkins had act-
ed as the union observer and because of his protected ac-
tivities.
The Respondent contends that these various actions are
attributable solely to economic or disciplinary considera-
tions, more specifically set out infra.
It has been found that Respondent was opposed to the
Union, subjected it to surveillance, coercively interrogated
employees concerning the union activity, promised to con-
sider employees' grievances if the Union did not come in,
threatened employees with reprisals in employment if the
Union was successful, and on at least two occasions, in the
cases of Bronikowski and Hopkins, executed such reprisals.
Those actions take color from, and are given added signifi-
cance by Plant Manager Simpson's candid acknowledge-
ment that he was upset about the Union coming in because
he was against the Union for a small shop. Although there
!188
PRODUCTION STAMPING, INC.
is nothing illegal in such an attitude, its existence is an
element of bearing in appraising Respondent's conduct.
All the employees as to whom discrimination is asserted
had engaged in substantial union activity or were suspect-
ed of having done so. Three of the five, Baker, Miller, and
Nadolski, were the organizers of the union movement. It is
not denied, and because of Respondent's surveillance and
its interrogation I infer, that Respondent was aware of that
leadership at all pertinent times. Indeed, a day or so after
July 18, 1977, Plant Manager Simpson told Gary Hopkins
in the presence of Foreman White, that Miller and Baker
were probably responsible for the Union, and that Arketa
and Nadolski also had something to do with it. Within
approximately 3 weeks after the Union's organizational
meeting, the three union organizers and Arketa were termi-
nated. As soon as Hopkins' union activity was disclosed,
his early overtime was canceled because the Union had
won the election. Those five employees constituted over 16
percent of Respondent's work force. The timing and the
massive nature of the terminations may be gauged from the
fact that in the previous 2 years Respondent laid off or
discharged a total of 6 or 7 employees. In this context, the
likelihood of the 1977 occurrences being ascribable solely
to coincidence appears, statistically, to be remote-a cir-
cumstance which, though not conclusive, seems significant.
See, for example, Syracuse Tank & Manufacturing Compa-
ny, Inc., 133 NLRB 513, 525 (1961), and authorities there
cited.
The inquiry into the reasons for the terminations must
therefore begin against this background of asserted coinci-
dence and a pattern of hostility to the Union, serious un-
fair labor practices tending to discourage employee identi-
fication with the Union threats of reprisals, and a
demonstrated willingness to penalize persons who had par-
ticipated in significant union activity.
The facts recited heretofore establish that the General
Counsel has made out a prima facie case as to each of the
individuals involved. That, however, may not suffice
against contrary proof, since the burden is on the General
Counsel to establish his case by a preponderance of the
evidence. However, the facts would seem to require persua-
sive explanation to warrant a conclusion that the termina-
tions were for legitimate cause unrelated to the union activ-
ity. There is evidence upon which Respondent urges it
relied as the basis for its action in each case. If the evidence
is as asserted by Respondent, and if it constituted a sub-
stantial basis for Respondent's action against the alleged
discriminatees, it may be that Respondent's conduct was
not improper. If, on the other hand, the union activities of
employees was the dominant motive for Respondent's ac-
tions, the conduct constituted unfair labor practices. s
We not turn to the questions of the reasons for Respon-
dent's actions in each case, and whether Respondent there-
by committed unfair labor practices.
Elhas Broihers Restaurants. Inc.. 496 F.2d 1165, 1167 (6th Cir 1974):
MS.P. Industries, Inc. d6hbla the Larimer Press 568 F.2d 166 (10th Clr.
1977). Jamestown Sterling Corp.. 211 F.2d 725. 726 (2d Cir. 1954); Great
Eastern Color Lithographic Corp., 309 F.2d 352 (2d Cir. 1962). cert. denied
373 U.S. 950 (1963); fibers International Corporation, 439 F.2d 1311 ( Ist Clr.
1971,) and cases there cited.
b. Hopkins
The only specific direct evidence as to Respondent's mo-
tivation for the abolition of Hopkins' early overtime is
Plant Manager Simpson's testimony that it was because of
the union victory in the election. Simpson also testified that
because Respondent's compressors are now housed,
whereas they were formerly outside, it is not necessary to
have anyone report early. However, it is not disclosed
when that event i,ccurred---whether before or after the
election. In any event, there is no specific testimony attri-
buting the abolition of Hopkins' overtime to the housing of
the compressors. Thus, it cannot be found that the housing
of the compressors was in any way involved in Simpson's
decision. On the evidence, it must be found that since the
election Hopkins has been deprived of a half-hour over-
time each morning folely because the Union won the elec-
tion.
Respondent contends, and Hopkins' timecards for the
period July 3 to December 31, 1977, establish, that Hop-
kins' average total hours of overtime per week has not de-
creased since the election. Indeed, the cards indicate that
since the election the average has actually increased from 8
to 10.9 However, that evidence does not overcome the fact
that after the election Hopkins was deprived of a half-hour
early overtime, which has never been restored. In the ab-
sence of evidence to the contrary, it is to be presumed that
had not the early overtime been abolished, Hopkins would
have worked an equivalent amount of additional overtime
after the election.
It is foun.d that since September 16, 1977, Respondent
has ceased assigning morning overtime to Hopkins because
of union and concerted activity, thus violating Section
8(aX)(1) and (3) of the Act. However, the evidence does not
establish an allegation in the complaint to the effect that
since the election Respondent has harrassed Hopkins by
assigning him work not previously performed. It will there-
fore be recommended that that allegation be dismissed.'0
c. Arketa
Respondent's reasons for discharging Arketa were thus
summarized in the testimony of President John:
The reason, as I indicated before, was his perfor-
mance and his work, his attitude and his hostility to-
wards the management people on all the shifts, and
this action he took upon himself telling people not to
report to work that particular day [July 20].
According to the testimony of President John, Arketa's de-
ficiencies became apparent shortly after he was hired on
9 Thus, in the payroll periods July 3 to September 18. Hopkins worked 12
weeks and earned 100 hours of overtime In the payroll periods September
18 to December 31. omitting weeks in which he did not work a full 40 hours,
Hopkins worked 7 weeks and earned 76 hours of oscrtime.
The General Counsel's contention in this respect Is that since the elec-
tion Hopkins' overtime consisted of dnving a hilo, rather than die setting.
Hopkins' regular employment. However. Hopkins' testimony seems to es-
tablish that he drove a hilo pror to the election. Ihus, Hopkins testified that
when Foreman White spoke to him on August I. concerning the union
petition for an election. "I was on the hilo, and he came out of the office and
asked me if I heard about the petition. . " (Emphasis supplied )
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 25, 1975. No specific evidence was introduced
with respect to Arketa' attitude and his hostility toward
management. That contention is therefore unsubstantiated.
Evidence was introduced by Respondent, however, direct-
ed to establishing that Arketa did not properly perform his
duties as inspector of finished parts, resulting in customer
rejections totaling some $33,000 in value during the year
prior to Arketa's discharge-a situation which assertedly
no longer exists since the termination of Arketa. Testimony
also was adduced with respect to the events of July 20.
Findings as to the occurrences on that day have been made
supra. To the extent accepted, Respondent's testimony in
that respect is reflected in those findings.
We have seen that around the time Arketa was dis-
charged, Plant Manager Simpson told Gary Hopkins that
Arketa had something to do with union activity and that
Arketa was on his way out (supra). Arketa's sole connec-
tion with the dismissal of the afternoon shift on July 20 was
to advise employees of the foreman's decision to that ef-
fect. If Respondent had information to the effect that
Arketa had anything more to do with that event than to
relay the foreman's decision to employees, the evidence
does not reveal it. Significantly, Respondent gave Arketa
no reason for his discharge. So far as the record discloses,
President John made no attempt to investigate the extent
of Arketa's participation. He did not ask Arketa for his
version of the affair or for an explanation. Such a proce-
dure does not appear to me to reflect normally expectable
reaction under the circumstances.
The record discloses that a substantial number of parts
were rejected by customers during the year preceding
Arketa's discharge. Respondent's contention is that Arketa
was responsible for these rejections by lax inspections.
That Respondent may not have been fully satisfied with
Arketa's services is possible. Although hired in September
1975, he received no pay increase during his employment,
despite frequent requests. That Respondent had a quality
control problem seems apparent from the volume of rejec-
tions by customers during the year prior to Arketa's dis-
charge. However. I do not believe that the evidence war-
rants Respondent's assertion that Arketa was solely
responsible for this situation.
In the 11-month period from August 31, 1976, to the
date of Arketa's discharge, Respondent hired four inspec-
tors. During a portion of that time, from October 19, 1976
to February 22, 1977, Frank Dohmer was quality control
manager. Dohmer was discharged on February 22 because
of dissatisfaction with his performance. Arketa, an inspec-
tor under Dohmer, was retained during all this time and, at
some undisclosed date after the departure of Dohmer, was
promoted to quality control manager. In light of these
facts, little weight can be given the present assertion that
Arketa's performance was deficient from the beginning of
his employment. For if it were, Respondent was apparently
content to suffer it until he putatively sought to bring in the
Union. I think it may safely be concluded that chronically
unsatisfactory performers are not normally retained or pro-
moted; if they are, it is because their faults are not deemed
to be of major importance.
Moreover, the record will not support an imputation of
responsibility to Arketa alone for the customer rejections.
At the time of Arketa's discharge, two of the five inspectors
on the staff during the prior year were still in the employ of
Respondent-Arketa and Jerry Wofford. Arketa was the
inspector on the afternoon shift, Wofford on the morning
shift. The others had been separated. In addition to in-
specting outgoing shipments, Arketa performed supple-
mental duties, such as working on the welding machines,
loading trucks, inspecting incoming steel, driving the stake
truck, and running miscellaneous errands.
Finished parts were authorized for shipment by the at-
tachment of cards indicating that they had cleared inspec-
tion. At times there was no inspector on a shift. In such
case, inspections were made by foremen who then attached
clearance tags. At least for part of the period of time in-
volved, parts were manufactured at the Algonac plant and
shipped without submission to the inspection process at
Mt. Clemens. On cccasion, parts rejected by inspectors
were cleared for shipment on review by Plant Manager
Simpson or President John, when, in their judgment, the
deviations from specifications were insufficient to make
the part unusable. There is evidence that some of those
parts were ultimately rejected by the customer. Excpet for
one case, discussed later, there is little or no evidence as to
specific individual responsibility for failure of inspection to
disclose defective parts. However, Respondent charges
Arketa with constructive responsibility for all customer re-
jections during the year preceding his discharge, assertedly
because of his position as quality control manager. Thus,
President John testified that "generally most of those [re-
jections] are his responsibility in one fashion or another
.... " Arketa was quality control manager in, at most, 5
of 11 months in which Respondent charges him with con-
structive responsibility for all customer relations. If such
responsibility is properly imputable to the quality control
manager, it cannot be imputed to Arketa for the 6 months
when he was not the manager. There is no evidence that, in
those 6 months, any of the rejections are attributable to
Arketa rather than to the other four inspectors employed
during that period. Moreover, there is a serious question as
to how many of the rejections are attributable to faulty
inspection and how many are attributable to overruling of
the inspector by higher management.
Thus Arketa's testimony, not specifically denied, is that
he declined to approve several lots of parts on which he
was overruled by Plant Manager Simpson. Whether any of
those are included in the list of rejections, responsibility for
which Respondent attributes to Arketa, cannot be clearly
determined, mainly due to the absence of inspection re-
ports presumably in the possession of Respondent."
However, in the only instance in which the evidence per-
mits an imputation of responsibility to a specific individ-
ual, it appears to establish that, if Arketa were at fault,
Simpson and John were equally culpable. This was a job
for Davidson Rubber Co., where some 60 to 80 thousands
parts were rejected by the customer. That job involved
I Arketa testified, without denial, that he made daily reports as to his
inspections, including orders passed and disapproved, which reports became
part of Respondent's permanent records. Obviously, these reports would
disclose any inaccuracy in Arketa's testimony and his responsibility for any
such shipment later rejected by the customer
1190
PRODUCTION STAMPING, INC.
drilling a hole in a metal part. Arketa found the hole off-
center 20,000th of an inch vertically. When he called this to
the attention of Simpson and John, they approved the devi-
ation as not affecting the usability of the part. However,
the hole was also offcenter one quarter of an inch horizon-
tally; as a result the parts were rejected by the customer.
Simpson and John attributed the fault wholly to Arketa,
despite the fact that, in John's words, the job had been
improperly set up at the beginning, and in Simpson's
words, the mistake was "obvious." Clearly, if the mistake
was in the setting up, Simpson and John could not have
checked the alignment without consulting the blueprint, an
operation which, if properly performed, could not have
failed to disclose the horizontal as well as the vertical dis-
placement. In any event, if the horizontal displacement was
"obvious," Simpson and John must accept part of the re-
sponsibility for permitting continued production of an ob-
viously unacceptable part.
In these circumstances, I cannot accept Respondent's as-
sertion that Arketa was discharged because of his work
performance, his attitude, and his hostility to management.
On the record facts, I conclude and find, that these assert-
ed reasons were pretexts. The only other possible conclu-
sion on the evidence, which I draw, is that Arketa was in
fact discharged because Respondent believed him to be
actively connected with the union activity.
d. Baker
As to Baker, Respondent contends that his layoff was
for economic reasons-the result of nondiscriminatory ab-
olition of the midnight shift. Respondent further contends
that there has been no opening for a foreman on another
shift which Baker could fill. In addition, Respondent as-
serts that Baker, like Frank Nadolski, was a supervisor,
and that his concerted and union activities are therefore
not protected.
In mid-July, Plant Manager Simpson told employee
Hopkins that Baker was one of those probably responsible
for the union cards being passed out and signed, and stated
to employee Erickson that Baker was an instigator of the
Union (supra). After the issuance of the complaint, Simp-
son told Hopkins that he would mess up Baker and snyone
who testified (supra).
Baker's advancement from single press operator to auto-
matic, to diesetter, and then to being put in charge of the
midnight shift, appear to attest to Respondent's satisfac-
tion with his work. It may be that, because of his inexperi-
ence as a diesetter, he was slow in acquiring facility.12
However, whatever Baker's deficiencies in regard to his
speed, Respondent had no hesitation in putting him in
12 Thus. Foreman Nadolski, under whom Baker worked as a machine
operator and diesetter, testified that both he and Baker had difficulty when
required to set three or four dies on a shift, a fact which he apparently
reported to Plant Manager Simpson in June 1977. Since Baker was thereaf-
ter made acting foreman at the suggestion of Nadolski, and with the ap-
proval of Simpson and President John. I conclude that neither Nadolski.
Simpson. nor John considered the fact of major significance.
In light of that background, Plant Manager Simpson's testimony that he
did not offer Baker a diesetting job upon his layoff, because, based on
Nadolski's appraisal, and Baker's inexperience, Baker "couldn't handle it"
semms obviously improbable
charge of the night shift. There is no basis for inferring that
his services on the night shift were unsatisfactory. I infer
that, absent sound cause or discriminatory motivation, Re-
spondent would normally have returned Baker to other
shifts to any available job for which he was qualified, or if
none were available, would have recalled him when work
opened up. It appears that jobs were available at the time
of Baker's layoff, and/or became available thereafter. Nev-
ertheless, Baker was not recalled. July and August are
among RespondenLts busiest months, producing for the
new automobile year. At that time and for several months
thereafter, Respondent, in 1977, worked a 6-day week, on
overtime. Production was higher in the last quarter in 1977
than earlier in the year. Turnover is high on the afternoon
shift. Though President John told Baker, in laying him off,
that there were no vacancies for foremen, press operators,
or diesetter, Respon lent now seems to confine its conten-
tion in that resepct to foremen. Thus, Baker could presum-
ably have been employed as a diesetter or a press operator.
There is no showing that no such jobs were available. Both
press operators on the midnight shift with Baker-both evi-
dently newly hired employees, and one of them not an
automatic press operator at the time-were rehired. Thus,
even if it be assumed that Baker's former job as a diesetter
on the afternoon shift was no longer available, jobs as press
operator became available. Nevertheless, despite Baker's
greater experience and versatility, he was not recalled or
offered either job. Respondent advances no explanation
for preferring the other two employees over Baker. In addi-
tion, when Nadolski was discharged as foreman on July 2 1,
Roy Patterson, a diesetter, replaced him, presumably leav-
ing open another position as diesetter on that shift. There is
no explanation why that position was not available to Bak-
er, other than Simpson's unacceptable testimony referred
to in footnote 12, supra.
In these circumstances, the only reasonable conclusion
for Respondent's failure to continue Baker in its employ-
ment appears to be his prominence in the union activity. I
conclude that he was laid off and refused reinstatement for
that reason. There is no contention, and I do not find, that
the abolition of the midnight shift constituted an unfair
labor practice.
I further find that Baker was not a supervisor within the
meaning of Section 2(11) of the Act. Though designated as
acting foreman, and responsible for the work of the two
press operators on the midnight shift, Baker's principal du-
ties were to dress welding tips, set dies, keep the machines
operating, and operate the hilos. When appointing Baker,
Plant Manager Simpson merely told him that he was being
given a raise of 35 cents per hour to $4, and that he would
run the midnight shift. Baker was not told what authority
he would have. Since both of the press operators were re-
cently hired, Baker understood that he was to direct them
if necessary. However, Baker exercised no apparent super-
visory authority over them, nor was he told that he had
any. That he had been given a raise to $4 an hour reflects
no more than satisfaction with his performance. It does not
establish him as a supervisor. Nor, in the circumstances,
does Respondent's present testimony that Baker possessed
all the requisite authority. Baker's $4-an-hour pay rate may
be compared to that of Nadolski, who was paid $5.50 an
1191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour. Since the bulk of Baker's duties on the midnight shift
consisted of working himself, and there is no evidence that
he was informed that he had supervisory authority, or that
he in fact exercised any authority while on the midnight
shift other than routine direction, I find Baker not to have
been a supervisor at the time of his layoff.
However, even if Baker were found to be a supervisor, I
would nevertheless find his layoff a violation of Section
8()(1X) of the Act, for the reasons given in subsection 4,g,
infra.
e. Nadolski
President John's testimony as to the reasons for the dis-
charge of Nadolski, although not clear cut, appears to be
that it was deficiencies in Nadolski's performance as a sup-
ervisor that was the basic cause of the discharge, and that
the July 20, 1977, incident was merely a contributing fac-
tor. Thus, after testifying to those deficiencies, President
John stated that on July 20, Nadolski "overstepped his
boundaries. That was just another incident that ... con-
tributed to the overall decision."
The dissatisfaction asserted by Respondent as to the
quality of Nadolski's work, in sum, was that Nadolski was
not a good supervisor, that he was not a leader, that be did
not exert disciplinary controls over his employees, and that
his failures in these respects lead to lax safety practices by
employees, such as taping down switch buttons on ma-
chines.
Nadolski admitted that Plant Manager Simpson spoke
to him about his supervision and told Nadolski, in sum,
that he was not firm enough with employees. On the other
hand, Nadolski's undenied testimony is that Simpson told
him on a number of occasions that he was doing a good
job.
During June and July 1977, Respondent was advertising
for foremen, according to President John because of dissat-
isfaction with Nadolski, according to Simpson because
they needed help for Nadolski due to Nadolski's inexperi-
ence, and according to Nadolski's undenied testimony, be-
cause, as Simpson assertedly told him, the plant was ex-
panding. In view of the fact that in June Respondent began
production for the new auto year and went on a 6-day
week, and the fact that Simpson told Miller in July that
Respondent was expanding, Nadolski's explanation seems
at least equally as plausible as the others.
It seems clear that Nadolski's disciplinary methods as a
supervisor were questioned by Respondent, but the testi-
mony of both Plant Manager Simpson and Nadolski indi-
cates that it was to a far lesser extent than President John's
testimony seems to convey. However, even so modified,
were there no evidence of illegitimate factors in Respon-
dent's treatment of employees, an inference might be war-
ranted that Respondent was actuated by nondiscrimina-
tory motives in the termination of Nadolski. However, the
discharge of Nadolski cannot be considered in a vaccum.
Respondent terminated other union leaders because of
their union activities. President John told Nadolski that he
was discharged, not because his performance as a supervis-
or was deficient-the substantial ground now asserted-
but because he did not keep the plant working, and, more
significantly, that Nadolski was not "100 percent for the
company." I construe that statement to be a reference to
Nadolski's union activity.
It has been seen that, shortly before Nadolski's dis-
charge, Plant Manager Simpson told Gary Hopkins that
Nadolski had something to do with the Union, and was on
his way out because of his "bad attitude." I infer that the
bad attitude was Nadolski's union activity. On balance, I
consider that, against the background of Respondent's
whole course of conduct, and its discharge of the other
union organizers, that the evidence requires a conclusion
that Respondent's asserted dissatisfaction with Nadolski's
performance as a foreman, and his action in permitting the
employees to go home on July 20 because of the heat, were
not the preponderant reasons for his termination, but
merely pretexts; and that his discharge was one of the ele-
ments in Respondeit's total program designed to rid the
plant of the union organizers, and to demonstrate to em-
ployees the consequences of union activity. It is so found.
Whether the termination of Nadolski, a supervisor, con-
stituted a violation of the Act under such circumstances is
determined infra.
f. Miller
Miller was a competent truckdriver. Accepting Respon-
dent's testimony, it appears that Respondent's plan to con-
tract out its trucking operation was conceived prior to the
union activity. Economic factors made the project feasible.
Thus, the liquidation of Miller's job as driver of the semi-
rig, insofar as attributable to the economic factors, was not
an unfair labor practice. However, it does not necessarily
follow that the termination of Miller and the failure to
offer him other employment, were lawful. There is substan-
tial evidence suggesting the contrary.
Plant Manger Simpson indicated to Miller in July his
negative view of the Union; told Gary Hopkins that Miller
was probably one of those responsible for the union cards
being passed around and signed; and told Ronald Erickson
that Miller was an instigator of the Union. Around July 22,
1977, Frank Nadolski returned to the plant to talk to Simp-
son in regard to his discharge. Simpson pointed to Miller
and told Nadolski that Miller was "the next loud mouth
bastard that's going to be removed out of this paint." Since
there is neither contention nor indication that Miller con-
ducted himself improperly in the plant or in connection
with his employment, I infer that Simpson's characteriza-
tion and prophecy were prompted by Miller's union activi-
ty.
Prior to Miller's overt union activity, Plant Manager
Simpson told Miller that Respondent intended to purchase
a new truck for him to drive. When the plan to establish
the position of shipping and receiving clerk became known,
Miller applied to President John for it and was told that he
would be considered-an apparently untruthful statement,
since President John testified that Miller was not consid-
ered for the position because his application for employ-
ment showed no experience other than as a truckdriver. If,
as Respondent asserts, its motivation for the failure to con-
sider Miller for the clerk's job was his lack of experience,
1192
PRODUCTION STAMPING, INC.
no good reason appears why John should have pretended
the contrary to Miller, nor why, when Miller inquired
about the job at the time of his layoff, John should merely
have replied tersely that Miller was "out," without explana-
tion. It appears of some significance that Monday was the
beginning of a pay period and that the layoff was effective
immediately, without prior notice. There is no explanation
for the failure to give Miller such notice. There is no evi-
dence that as of that time Respondent had decided upon
using outside contractors for its hauling, or that the em-
ployees had been advised of Respondent's hauling study.
Miller had been given no indication that with the opening
of the new warehouse his job would be affected. There is
no explanation as to why the action was effective after the
beginning of the pay period rather than before or at the
end. Use of the independent trucker apparently did not
begin until the end of August. In the meantime, Respon-
dent continued to do its own hauling, with the only sub-
stantial difference being that Miller was no longer involved
in it. That there was trucking work available is evident
from the increase in Erickson's trucking hours immediately
after Miller's termination. There is no plausible nondis-
criminatory explanation given, or apparent, for the sudden
termination of Miller's employment I month before the
disposition of the semirig and the introduction of the con-
tracting arrangement. The coincident receipt of the notice
of filing of the Union's petition for certification suggests
itself as a possible cause. In any event, there is not persua-
sive legitimate explanation.
It appears to be true that driving the stake truck is not
ordinarily a full-time operation, and that Miller's wage,
$5.75, was substantially more than that which Respondent
paid to Ronald Erickson, the relief driver ($3.60). How-
ever, Miller did other work in the plant when not occupied
with driving the swemirig. He drove a forklift and loaded
and unloaded material. It seems significant that at no time,
though satisfied with Miller's work, and knowing that he
wished to continue in its employ, and although Respon-
dent was then in full production and hiring employees, it
did not offer Miller any job. That the pay rate on the other
jobs might not have been commensurate with Miller's sal-
ary does not answer the question, for Respondent, perhaps
carefully, did not ask. In these circumstances, and in light
of the apparent suddenness of the termination, considered
against the background of the other discriminations, and
what I conclude was a program of getting rid of all the
union organizers, the most persuasive conclusion is that
Respondent accelerated Miller's termination and did not
offer him other employment because it preferred not to
have him on the payroll due to his union activity. It is so
found. We have seen that Hopkins' overtime was abolished
suddenly and on the spur of the moment because of spon-
taneous reaction to the Union victory in the election. It
seems plausible that Miller's termination was a similar re-
flex to receipt of the union election petition. In any event,
whatever the immediate precipitating factor on August 1, I
find no satifactory explanation to overcome the reasonable
inference, based on the evidence, that Miller was let go
because of his participation in the organizational move-
ment.
g. Whether Nadolski's discharge was an unfair labor
practice
The discharge of a supervisor for engaging in union ac-
tivity is not ordinarily an unfair labor practice, since a sup-
ervisor is not an employee within the meaning of Section
2(3) of the Act, and therefore not entitled to the statutory
protection. However, where the supervisor's discharge in-
terferes with the rights of employees under Section 7 of the
Act, such as where it constitutes an integral part of an
employer's pattern of conduct aimed at penalizing employ-
ees for their union activities, the conduct is violative of
Section 8(aX1).'3 Here the discharge of Foreman Nadolski
was part of a program of Respondent penalizing employees
who organized the Union, or who engaged in significant or
suspected union activity. In such circumstances, the inevi-
table effect of the dischage of Nadolski, as part of the
group, was to impress upon the employees the adverse con-
sequences to their employment of engagement in union ac-
tivity. Nadolski's discharge therefore constituted a viola-
tion of Section 8(aXI) of the Act.
It is no defense that there is no testimony by any em-
ployee to the effect that he was intimidated or coreced by
the discharge of Nadolski. The test of interference, re-
straint, or coercion of employees is not the success or fail-
ure of the conduct, but whether it may reasonably be said
to tent to interfere with the exercise of rights protected by
the Act. Forest Oil Corporation, 85 NLRB 85 (1949); East-
ern Die Company, 142 NLRB 601 (1963); Southwest Region-
al Joint Boar, Amalgamated Clothing Workers of America,
AFL-CIO (Levi-Strauss i Co.) v. N.LR.B., 441 F.2d 1027,
1031 (D.C. Cir. 1970); International Ladies' Garment Work-
ers' Union, AFL-CIO (Georgetown Dress Corporation), 214
NLRB 706 (1974).
5. Dismissals
I find no evidence to sustain the following allegations of
the complaint and will therefore recommend their dis-
missal: (I) (Paragraph 8(e)) of the complaint, and (2) that
portion of (paragraph 12) of the complaint which alleges
that Respondent harassed Gary Hopkins, including by as-
signing him work not previously performed.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, it will be recommended that it cease and desist
therefrom and that it take affirmative action necessary to
effectuate the policies of the Act.
It will be recommended that Respondent offer Philip
Arketa, James Miller, Gary Baker, and Frank Nadolski
immediate and unconditional reinstatement to their former
13 See, for example, Pioneer Drilling Co., Inc.. 162 NLRB 918, 923 (1967).
Heck's Inc., 170 NLRB 178, 187. In. 8 (1968); Krebs and King Toyota, Inc.,
197 NLRB 462, n. 4(1972); Fairview Nursing Home, 202 NLRB 318 (1973).
enfd. 486 F.2d 1400 (5th Cir. 1973), rehearing denied 491 F.2d 1272. cern.
denied 419 U.S. 827 (1974); Vada of Oklahoma Inc., 216 NLRB 750. 759
(1975); Donelson Packing Co.. Inc. and Riegel Provision Company. 220 NLRB
1043 (1975); General Nutrition Center, Inc., 221 NLRB 859 (1975). Barnes
and Nobel Bookstores, Inc., 233 NLRB 1326, fn. 18 (1977).
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
positions, without prejudice to their seniority or other
rights and privileges. It will further be recommended that
Respondent restore to Gary Hopkins the early overtime of
which he was deprived on September 16, 1977, and thereaf-
ter.
Whether, and if so when, Miller's employment would
ultimately have been terminated by Respondent for non-
discriminatory reasons is an issue to be resolved in compli-
ance proceedings if the parties are unable to reach volun-
tary agreement thereon.
It will be further recommended that Respondent make
Arketa, Miller, Baker, Hopkins, and Nadolski whole, with
interest, for any loss of earnings suffered by them as a
consequence of Respondent's unlawful actions.'4
It has been seen that Patricia Bronikowski quit because
of Foreman Patterson's discriminatory treatment of her
following the election. While Patterson's actions are al-
leged as, and have been found to be, unfair labor practices,
there is no allegation in the complaint to the efffect that
Bronikowski was constructively discharged, or request in
the complaint, at the hearing, or in the General Counsel's
brief, that she be reimbursed for any losses attributable to
her discharge-the usual remedy when an employee suffers
wage losses due to discriminatory unfair labor practices.
The record reflects that at the time of hearing, Bronikowski
was on Respondent's payroll. When, and under what cir-
cumstances she was reemployed are not disclosed. I infer
that the omission of a request by the General Counsel for
reimbursement of Bronikowski is advertent, perhaps as-
cribable to events not in the record. In these circumstances,
I will not recommend a reimbursement remedy for Broni-
kowski.
On the basis of the foregoing findings and conclusions,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 5
The Respondent, Production Stamping, Inc., Mt. Cle-
mens, Michigan, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(1) Discharging employees, laying them off, depriving
them of overtime, or otherwise discriminating against
them, because they engage in union or concerted activity.
(b) Discharging or otherwise disciplining persons, in-
cluding supervisors, in its employ for the purpose, or where
the conduct has the necessary effect, of interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by the Act.
(c) Interrogating employees as to union activity; engag-
ing in surveillance of union activity; announcing to em-
4 See F. W. Woolworth Company, 90 NLRB 289 (1950); Florida Steel
Corporation, 231 NLRB 651 (1977).
In the event no exceptions are filed as provided by Sec. 102.46 fo 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 obections thereto shall be
deemed waived for all purposes.
ployees the intention to engage in surveillance of union
activities; informing employees that Respondent has en-
gaged in such surveillance; threatening to close the plant or
to move it if a union comes in; engaging in reprisals against
employees because a union has won a collective-bargaining
election; threatening reprisals against persons who testify
in Board proceedings; changing employees work, isolating
them, assigning them onerous working conditions, or caus-
ing them to quit, because employees vote for a union in a
collective-bargaining election; soliciting grievances and
promising benefits in order to defeat a union.
(d) In any other manner discouraging membership in a
labor organization or interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and unconditional reinstatement to
Philip Arketa, James Miller, Gary Baker, and Frank Na-
dolski, in the manner described in The Remedy section,
supra
(b) Restore to Gary Hopkins the early overtime of
which he was deprived on September 16, 1977, and thereaf-
ter.
(c) Make Arketa, Miller, Baker, Hopkins, and Nadolski
whole for any loss of earnings, in accordance with the pro-
visions in The Remedy section, supra
Preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll rec-
ords, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its business copies of the attached notice
marked "Appendix." 16 Copies of said notice, on forms
provided by the Regional Director for Region 7, shall be
posted by Respondent immediately upon receipt thereof,
and be maintaine by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable 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 7, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the following allegations
of the complaint be dismissed: (1) (Paragraph 8(e)) of the
complaint; (2) that portion of (pargraph 12) of the com-
plaint which alleges that Respondent harrassed Gary Hop-
kins, including by assigning him work not previously per-
formed.
s6 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."
1194