Republic Die and Tool Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 654 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Republic Die and Tool Company and Timothy B.
Meldrum and Donald R. Calvin. Cases 7-CA-
15367, 7-CA-15791(1), 7-CA-15488, and 7-
CA-15791(2)
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBIRS
JENKINS AND PENEI.I.O
On May 27, 1980, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
The General Counsel excepts to the Administra-
tive Law Judge's failure to find that the warnings
issued to Donald Calvin violated Section 8(a)(3) in
addition to violating Section 8(a)(1) of the Act. In-
asmuch as the warnings were issued because Calvin
filed a contractual grievance, we find that they dis-
couraged union activity and thus violated Section
8(a)(3).1 We shall modify the Administrative Law
Judge's Conclusions of Law accordingly. The Gen-
eral Counsel further excepts to the Administrative
Law Judge's failure to provide backpay as a
remedy for discriminatory suspensions issued to
Calvin on July 27 and August 29, 1978. We shall so
provide.
AMENDED CONCIUSIONS OF LAW
Delete the Administrative Law Judge's Conclu-
sion of Law 6 and substitute the following:
"6. By issuing written warnings to Calvin on
June 3, 12, and 14, July 27, August 29, October 27,
and November 21, 1978, and by suspending Calvin
pursuant to the July 27 and August 29 warnings,
the Respondent has engaged in unfair labor prac-
tices prohibited by Section 8(a)(3) and (1) of the
Act." 33
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' See, e.g.. Mrvs Baird\ Bakeries, Inc.. 189 NI.RH 606 (1971).
252 NLRB No. 92
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Republic Die and Tool Company, Wayne, Michi-
gan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Donald R. Calvin immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings resulting from discrimination against him
in the manner set forth in the Remedy."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No-rTicI To EMPI.OYEES
POSTED BY ORDEIR OI IHE
NATIONAl. LABOR REIATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WlI.l. NOT discharge or suspend any of
you for filing a grievance which results in an
arbitration award and your reinstatement with
backpay.
Wt. Wi l. NOT establish a diemaker's wage
rate at the contractual hourly minimum when
completing an apprenticeship, in reprisal for a
militant union attitude.
WE WIt.I. NOT issue written warnings to em-
ployees because of their filing grievances and
winning arbitration awards under the collec-
tive-bargaining agreement.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed under Section
7 of the Act.
WI Wl. revoke and remove from the per-
sonnel or other files of Donald R. Calvin all
disciplinary warning notices issued by us from
June 3 through November 1978.
WI: will.I offer Donald R. Calvin immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed.
654
REPUBLIC DIE & TO()Ol COMPANY6
Wti wit._ pay Donald R. Calvin for any loss
of earnings he suffered as a result of our dis-
crimination against him, with interest.
WE wit i. pay Timothy B. Meldrum the
merit increase he was entitled to receive at the
time of the completion of his apprenticeship,
plus interest thereon.
REPUBILIC DIE ANI) TOOt. COMPANY
DECISION
STAIEMINT 01OF IHi CASIE
THOMAS E. BRACKEN, Administrative Law Judge:
This case was heard at Detroit, Michigan, on April 9, 10,
11, and 12, 1979, pursuant to charges duly filed and
served, and the issuance of complaints as set forth
below.' The complaints present questions as to whether
Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended, in reference to
Timothy Meldrum and Donald R. Calvin. In its answers.
duly filed, Respondent conceded certain facts with re-
spect to its business operations, but denied all allegations
that it had committed any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
FINDINS Oi FACT
I. JRISDICrION
The Company, a Michigan corporation, is engaged in
the manufacture of dies and tools at its plant in Wayne,
Michigan, where during the year 1978, a representative
period, it shipped products valued in excess of $50,000
directly to points located outside the State. The Compa-
ny admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
It. THE LABOR ORGANIZATION INVOI VED
Local 157, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, herein Local 157 or the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
The charge in Case 7 CA-1537 was filed on JulN 20. 1978, by
Timothy B Meldrum, and in 7-CA-15488 on August 24. 1978, bh
Donald R Calvin. On September 14, 1978. Local 157, International
Union. United Automobile, Aerospace and Agricultural Implement
Workers of America. filed a charge culminating in Case 7-CA-15561.
These three cases were then consolidated. and a consolidated amended
complaint issued by order of the Regional Director on Octoher 27. 1978
On November 24, 1978, Meldrum filed the charge in Case 7-CA
15791(1), and Calvin filed the charge in Case 7-CA 1579l12} On January
8, 1979, the Regional Director issued an order consolidating Casre 7-
CA-15791 and 7-CA 15791(2) and another order consolidating all five
cases. On March 22. 1979. the Regional Director issued an order appros-
ing the withdrawal of the Union's charge in Case 7-CA-15561, and par-
tially dismissed the consolidated amended complaint b striking pars
14(e), 14(f. 1
7(al, 17(h). 17(c), and 20 thereof. The remaining allegations
of Cases 7-CA-15367. 7-CA 15488. 7 CA- 15791(1). and 7-CA- 15791(2)
are in issue
III. II1 Al I..E(iEl) UNI:AIR .LABOR PRACTICES
A. Background
For a number of years Respondent has operated a
large die shop, at which it constructs dies for various
customers in the automotive industry, including the big
three, GMC. Ford, and Chrysler. These dies are ma-
chined and built in accordance with blueprints which
outline their construction from the raw steel to the fin-
ished die ready to stamp out automotive parts such as
panels, fenders, and bumpers, when delivered to its cus-
tomers' plants.
Respondent employed a working force of about 200
employees, consisting chiefly of highly skilled journey-
man diemakers, machine tool operators, and apprentices,
with about 100 employees on both the dayshift and the
nightshift. In addition, it also employs about 17 supervi-
sors, of whom 12 work on the dayshift. with each super-
vising from 10 to 20 employees. The chief officials of
Respondent were John C. Lasko, president. Carl Bran-
nock, executive vice president, Pete Gochis, plant man-
ager, William Tackaberry, assistant plant manager, 2 and
Arnold Minard, shop superintendent.
Local 157 has represented the Company's shop em-
ployees since at least 1951, when the first collective-bar-
gaining agreement was entered into. Successive agree-
ments have been in effect ever since, with the most cur-
rent being for the period of August 23, 1978,3 until July
3], 1981. In these agreements it is provided that the em-
ployees would be represented by a seven person shop
committee, elected by the members, consisting of a chief
steward, a night steward, and five committeemen. Three
members of this shop committee served as the bargaining
committee, for the handling of negotiations and griev-
ances, and were entitled to be paid by the Company for
the time spent on such duties. A large number of Re-
spondent's supervisors had been members of Local 157,
and had served as committeemen for the Union, while
working as journeymen diemakers.
B. Timothy Meldrum
I. Union activities prior to July 1978
Meldrum began working for the Respondent in 1969
as a laborer, and in 1973 became an apprentice diemaker.
As an apprentice, he received training in the various
phases of the diemaker trade, and as he advanced in the
prescribed hours of training required to complete the
8,000-hour course, he received regular increases in pay,
as provided in the collective-bargaining agreement. On
June 29, 1978, Meldrum completed his apprenticeship
and became a journeyman diemaker. Upon becoming a
Journeyman, his hourly rate was increased to the mini-
mum contractual rate for journeymen diemakers, $7.26,
as set forth in the agreement. Three other apprentices of
the Respondent, C. Sanfilippo, S. Price, and M. Urban-
iack, completed their apprenticeships within 3 months of
2 Octoher 1978 Tackaberry and Gochis exchanged positions, with
Tackaberrv hecoming the plant manager
' All dates i 178 unless otherwise stated
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meldrum's completion, and received hourly rates that ex-
ceeded the contract minimum in the amounts of 94 cents,
$1.04, and $1.14 per hour. The record does not indicate
that these employees were in any way active in the
Union. 4 General Counsel contends that Meldrum was
given the contract minimum wage rate, and not some
higher rate, due to his Union activities in the months pre-
ceding his graduation.
Meldrum testified that he was appointed as an alter-
nate committeeman" in March 1977 and served until the
following May or June. Then, an election took place in
which he lost his bid for the position of a committeeman.
About I month later he was "put on" as an alternate,
and served as such until the next election, which oc-
curred in October or November 1977. At the time of this
election, Meldrum was going to run for chief steward,
but withdrew to back Robert Brunk, a close friend and a
toolcrib attendant. Brunk was defeated by Tony Klarich,
and, the next day, Meldrum was removed as an alternate
committeeman by Klarich. However, in March, he states
that he was put back as an alternate committeeman by
Chief Steward March, and remained as such until the
next election in September. Meldrum commenced cam-
paigning in June for the position of chief steward, and
defeated March in the September election. He took
office on October 15.
According to March, who testified for the Respond-
ent, Meldrum served as alternate committeeman on two
different occasions, the first at an unspecified date for a
period of 2 or 3 weeks, when he appointed Meldrum to
take Earl Cox's place while Cox was sick. The second
occasion commenced on June 5, after March issued a
written notice on June 3 to Gochis, advising him that he
was appointing Meldrum as alternate committeeman to
replace James Bare, an employee on sick leave. Brunk, a
witness for the General Counsel, testified that Meldrum
was appointed "in the summer," and upon being shown
the A.V.O., 6 admitted that Respondent's Exhibit I cor-
rectly reported what actually took place, that is, that
Meldrum was appointed as an alternate committeeman
on June 3, effective June 5. 1 credit March's testimony
over that of Meldrum, as it is supported by the A.V.O.
document, and find that the second time Meldrum served
as an alternate committeeman commenced on June 5, and
not in March.
Meldrum also testified that in October 1977 he attend-
ed a negotiations meeting along with employees March,
Bare, and Sliwa. The Company was represented by
Gochis and Brannock, and it concerned a new job classi-
fication, and the use of nonunion employees from Man-
power. Meldrum was the only union representative to
contest the Company's use of these employees, as the
other union representatives agreed to let these outside
employees stay in the plant and complete the production
4 In 1977 two apprentices, Manganello and J Sliwa, completed their
apprenticeships, and, like Meldrum, were paid the contract minimum die-
maker rate set forth in the contract.
I Although the collective-bargaining agreement only provides for com-
mitteemen, it was apparently a well-established practice for the chief ste-
ward to appoint an alternate to take the place of a sick, or otherwise un-
available committeeman.
6 T'he form on hich this notice appeared was captioned "AVO.,"
meaning Avoid Verbal Orders, Resp. Exh. I.
run. Gochis did not testify as to this incident, and Bran-
nock, while not specifically questioned about it, testified
generally that he never had any dealings with Meldrum
in any union matter until July 21.
As further proof of his activity on behalf of the Union
in his apprenticeship period, Meldrum testified that, in
January, he attended a Union meeting that had been
called to solicit members' proposals for the upcoming
contract. At this meeting, Meldrum argued that the
Union should regain the provisions of the 1971 contract,
as he contended that the 1975 contract had been a "ta-
keaway," as the result of almost a year long strike in
1974 and 1975. Thereafter, Meldrum talked to other em-
ployees as well as to his Foreman Russ Parks, Faulkner,
and Tackaberry in reference to the Union needing a lot
of relief in the new agreement. 7
Meldrum himself admitted that, prior to July, he was
not an active committeeman in the sense of filing griev-
ances or meeting regularly with the Company. However,
March, who was clearly hostile to Meldrum, admitted
that in the early months of 1978 he knew Meldrum was
interested in the committee, and that he had stated that
Meldrum at times went "overboard," in seeking to en-
force the contract against the Company.
Meldrum testified that in mid-June he learned from
Faulkner that he was going to be paid the contract mini-
mum rate when he graduated from apprenticeship status
to that of a journeyman diemaker. When he asked his
foreman why, he was told it was because he was "in-
volved in the Union" and that he was an agitator. He
further testified that Faulkner suggested to him that, if
he got off the shop committee, that would solve his
problem. Moreover, Faulkner stated that he was con-
cerned with Meldrum getting a reputation as an agitator,
which could result in his being blackballed in the indus-
try. Meldrum further testified that he had similar conver-
sations thereafter, almost on a daily basis, with Faulkner
until well after his graduation. Meldrum further testified
that he and Faulkner got along well. When asked on
cross-examination what Faulkner's demeanor was during
these conversations, Meldrum stated: "He was talking to
me as maybe a friend would. In other words, telling me
the honest reason why and hoping that I might change
or at least understand why and compensate." Meldrum
also testified that, in mid-June, March also told him that
he would receive the minimum contract rate, because of
his attitude and the fact that he was listed as an agitator
on his record.
Faulkner, who commenced being foreman for Mel-
drum in late May, was a witness for Respondent. He tes-
tified that Meldrum did ask him a few weeks before he
completed his apprenticeship what his wage rate would
be at its completion. Faulkner then secured this informa-
tion from the apprenticeship coordinator, and informed
Meldrum that he would receive the contract minimum.
Meldrum wanted to know the reason for this and stated
he was going to see Gochis and Brannock to find out
why. While Faulkner denied generally that he had had
' Parks did not testify, and Faulkner, when asked if Meldrum was
active on behalf of the Union prior to becoming a journeyman, testified
that he was not active "in the sense of causing trouble."
656
REPUBLIC DIE & TOOL COMPANY
any conversations with Meldrum, as to why he was
being paid the contract rate, he admitted that he told
Meldrum that the older diemakers considered him a trou-
blemaker and an agitator. Faulkner denied flatly that he
ever advised Meldrum to withdraw from his office in the
Union, or that he had any conversation with Meldrum
about blacklisting. He did tell Meldrum that a job shop
could not compete with the Big 3's wages and benefits,
and that, if he himself could get better benefits at another
job, he would do so. The last day worked by Faulkner
for the Respondent was July 28. He went on his vacation
thereafter, and during the August strike had secured em-
ployment as a journeyman diemaker with the Ford
Motor Company, which was still his employer at the
time of the hearing. He was also a member of the UAW
at the time of the hearing.
Brunk testified that he had several conversations with
Faulkner while Meldrum was still an apprentice, and
Faulkner had stated that Meldrum was a good, reliable
worker. He also testified that he talked to Faulkner after
Meldrum became a journeyman, and asked him why
Meldrum was being paid less than some other former ap-
prentices, and Faulkner replied that "you and I both
know why he is not getting it."
2. The Company's explanation for Meldrum's rate
of pay
Gochis testified that he and Tackaberry customarily
"looked at" apprentices a month to 6 weeks before their
graduation,8 to determine if they should be paid the jour-
neyman's rate prior to graduation, and also if they should
receive a rate higher than the rate set forth in the con-
tract. The higher rates are paid so as to encourage the
more skilled diemakers to stay in the employ of the Re-
spondent, and not to go and look for employment in an-
other die shop. In early May, Gochis and Tackaberry
discussed Meldrum's capabilities. Thereafter, they decid-
ed not to pay him the journeyman's rate prior to gradua-
tion, nor to pay him more than the contract minimum.
Gochis testified that he did not recall looking over Mel-
drum's job evaluation forms at this time, but admitted
that he would have seen them previously, as all came
across his desk for initialing.9
Tackaberry, who was the assistant plant manager at
this time, testified that he supervised Meldrum from Feb-
ruary through most of May. He stated that the quality of
Meldrum's work was average and the quantity was on
the low end of the scale. In May, he and Gochis decided
that Meldrum would receive the contract minimum rate
at the completion of his apprenticeship, as they felt that
his value to the Company was no greater than the mini-
> Virtually all witnesses used the term graduation to mean the date of
the completion of the apprenticeship. There was no graduation exercise
as is customary in the academic world
g An evaluation form is a preprinted form that contains 10 classifica-
tion headings, each of which is to be graded with marks of 0 to 10. The
classifications are attendance, dependability, altitude, initiative, interest.
cooperation, safety, adaptability, quality, and quantity The shop foreman
rates each apprentice at various intervals of hourly time periods, includ-
ing every 1000 hours. starting at 900 hours of service, to the completion
of the course After the foreman rates the apprentice with a total point
evaluation, Arnold Nlinard. the shop superintendent. Gochis. and Tacka-
berry initial and date each form to shosw they have reviewed it.
mum rate. Tackaberry did not inspect Meldrum's evalua-
tion forms at this time, although he admitted that he was
aware of them, and that they were considered in deter-
mining what rate Meldrum should receive at the comple-
tion of his apprenticeship. Tackaberry stated that marks
from 75 to 84 would be average and above that would
be good.
Numerous evaluation forms for Meldrum and five
other apprentices were received into evidence. (Jt. Exhs.
I thru 6.) The most current five reports, for the appren-
tices who completed their courses in 1978, show the fol-
lowing ratings:
Meldrum
74
79
86
7 7
l 0
78
78.8
Price
89
79
73
80
90
82.2
Sanfilippo 'rbaniak
90
80
82
76
90
83.6
94
96
85
75
81
86.2
A few rating sheets were also supplied for Manganello
and Sliwa who completed their courses in 1977. These
sheets show Manganello to have had a 56.5 average, and
Sliwa to have had a 73.67 average.
3. Union activities in July
a. Meldrum 'S July 3 conference with Brannock
Meldrum testified that around July 1, after approach-
ing Brannock in the shop about his wage rate, he was in-
vited into the vice president's office for a lengthy con-
versation. When Meldrum asked why he was paid the
contract minimum he was told it was because of his bad
attitude, that he was unhappy with the Company, and
since they did not want any employee who was un-
happy, he was paid that rate so that he would leave.
Brannock then brought up the contract, and stated that
the Company could not afford Meldrum's proposals, as
the Company was not on its feet from the previous year
long strike. At this point, Brannock called Bobbie Hous-
ton, who Meldrum characterized as the office manager,
who brought in a booklet of computer data and then left.
Brannock then pointed out from these records that the
Company was over on its estimates on jobs. Meldrum
was then told he was influential in the shop, and could
persuade a lot of shop people to be more reasonable.
Brannock then read Meldrum an 18-line poem entitled,
"The Builder," which was kept under the glass on his
desk. Meldrum described the poem as one that compares
people who build things up with people who tear things
down. Brannock then classified himself and the Compa-
"' Meldrum's evaluation report dated 10-11-77 shows a Iotal grade of
69 This is an obviious error as it shows that the foreman who made the
report did rate Meldrum in the safety and safe practices classification h,
circling "wears correct safety apparel-uses correct tools" Although this
observation carries an eight or nine point rating. he freman did not
circle either eight or nine I have added 8 points to the fiireman's total
score of 69. hlch makes Meldrum's actual aerage for this report 77
657
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
ny as builders, and Meldrum as a wrecker. He also re-
ferred to Meldrum as the bad apple in the bunch.
Brannock then went to lunch, and, upon his return to
the plant, Meldrum and Brannock renewed their confer-
ence for an hour and a half. When Brannock again said
Meldrum's rate of pay was because of his attitude, Mel-
drum testified as follows:
Well I said that my rate of pay could not be
based on the fact that myself and the Company had
different views and he said well, if we gave you the
money, would you have the Company's view, and I
said well, no, I couldn't compromise my position,
my principles, and he said well, had you
consider[ed] a foreman's job or a management posi-
tion, excuse me, and I said no, I hadn't given it
much thought, but it would have to be under the
same conditions.
On cross-examination Meldrum admitted that all Bran-
nock had said about a management position was, had he
considered a management position, and that was the sum
and substance of the entire conversation concerning a
management position with the Company. Meldrum was
also asked on cross-examination if Brannock at anytime
stated to him that he would make Meldrum's life more
miserable out in the plant floor in one way or another
because of his union activities. Meldrum replied, "Not
that I recall, no."
The parties then returned to discussing the contract,
and Brannock told Meldrum that his political views in
the shop had an effect on his rate of pay. As the conver-
sation ended, Meldrum told the vice president he was
going to take action to remedy this discrimination.
According to Brannock, when Meldrum came into his
office, he had called to Lola Ness, the accounting clerk,
to secure Meldrum's rate. I After telling Meldrum what
his rate was, Brannock told him that the record spoke
for itself, that his productivity, quality, quantity, knowl-
edge, ability to get along with others, attitude, and at-
tendance were all factors in settling the rate. Meldrum
said he was dissatisfied, and inferred he would be leaving
the Company. Meldrum then asked him if he went to an-
other employer what kind of a recommendation would
he receive, and Brannock told him that he saw no reason
why he should not receive a good recommendation.
Brannock further testified that he did not recall any dis-
cussion with Meldrum about union activities or any dis-
cussion about a possible management position for Mel-
drum. Brannock admitted that he read the poem to Mel-
drum, and told him that it spoke for itself. He also ad-
mitted that he had heard from Parks, Faulkner, Tacka-
berry, and Gochis that Meldrum was a complainig type
of person who complained about lots of things.
The General Counsel produced no evidence as to the
allegation in paragraph 4(d) of the complaint that Re-
spondent promised to promote Meldrum to a manage-
ment position, other than Meldrum's weak statement that
' Brannock testified that Barbara Houston was not present as she was
on a vacation during this week. but no company records were produced
in support of this contention Because of Brannock's familiarity with the
office personnel, I credit Brannock.
Brannock asked him if he had considered a management
position, to which he responded no. This ambiguous
statement does not rise to a violation of Section 8(a)(l)
and I shall recommend that that misallegation of the
complaint be dismissed. I shall also recommend that
paragraph 9(c) of the complaint be dismissed as the Gen-
eral Counsel produced no evidence that Brannock threat-
ened to make Meldrum's terms and conditions of em-
ployment more onerous because of his union activities.
b. The July 5 conference
On July 5, Meldrum was called into the plant office
for a conference about his pay rate, requested by him
through Chief Steward March. Present were Gochis,
Tackaberry, and March. Meldrum testified that he told
them that Brannock had informed him that it was his
union attitude that was really behind his rate of pay.
Gochis then told Meldrum that he received the minimum
because of his value to the Company, and that they paid
him that rate, because they wanted him to leave the
Company. When Tackaberry started to discuss the con-
tract, Meldrum refused, ending the meeting.
Gochis testified that he told Meldrum that the bottom
line as to granting a wage rate is productivity, and that
he had not shown the productivity, aggressiveness, and
initiative to receive a rate above the contract minimum.
Gochis denied that there was any discussion on Mel-
drum's union committeeman status, and denied that there
was any discussion concerning Meldrum leaving the
Company. March recalled that Meldrum asked if failure
to receive a raise was due to his union activities, and that
the plant managers said it was not. He also denied that
there were any statements, to his knowledge, about any
desire by the Company to have Meldrum leave its
employ.
March, an employee with 28 years of seniority with
the Company, of which 16 years were as a union official,
when asked if he could cite any instance where the Com-
pany had discriminated against a union committeemen,
replied that there were "Not very many."
c. Meldrum s grievance
On July 20, Meldrum filed a written grievance about
his pay rate. Respondent's Exhibit 3. At a subsequent
date the parties met in accordance with the third step of
the grievance procedure. Joseph Danz, the business
agent of Local 157, who had been representing Respond-
ent's employees since 1957, was present as chief union
spokesman. Danz testified that Gochis and either Tacka-
berry or Faulkner were initially present for the Compa-
ny. Gochis stated that the Company had denied the
grievance because, under the contract, all the Company
was required to do was to pay the minimum rate when
an apprentice became a journeyman diemaker. Brannock
then entered, and Danz testified as follows:
The union had been arguing that the company's
charges of attitude and non-performance were not
so. Mr. Brannock came in and said yes, it was his
attitude and he either did not understand or just
658
REfPUBLIC DIE & TOOL COMPANY
didn't care about the company's problems in a com-
petitive industry.
He finally said and capped his comments with if
he expects to get the kind of money that he is seek-
ing, he should go get himself a job elscu here. 12
This testimony was uncontradicted.
d. The July 21 bargaining session
Meldrum testified that "in early July" he attended a
negotiation meeting with the total Union bargaining
committee. 3 The Company, represented by Brannock,
Gochis and Tackaberry, presented its final proposal to
the Union committee.' 4 Five members of the committee
stated that they were in favor of recommending the pro-
posed contract, one stated he could live with it, while
Meldrum stated that he was totally opposed to it. Bran-
nock admitted that the majority of the Union committee
wanted to accept the Company's proposal, but that Mel-
drum was a negative vote and spoke against accepting
the proposal.
4. The spotting press assignment
On Tuesday, November 14, Meldrum, now the chief
steward by virtue of the September election, together
with committeemen Brunk and Ken Phillips, met with
Tackaberry and Gochis over several grievances. Also
present for the Company as admitted by Tackaberry, and
acting as its chief spokesman, was William E. Stirton'5
who had not previously met Meldrum. The final issue
discussed by the parties involved a training program that
the Company wanted to establish for a new classification
of employees, called tryout trainees. These employees
would be doing mostly grinding and barbering in the
tryout area on dies, conceded by Gochis to be the most
undesirable work of a diemaker. Meldrum opposed the
creation of this program, as he contended that the work
to be done therein was diemaker's work, and that Stirton
was taking part of the diemaker's job away.
At the end of the meeting, when Meldrum insisted
again that it was the diemaker's work, Stirton testified
that he told Tackaberry and Gochis, "I said well, fine,
assign it to him then if that's his work," and that "after
he [has] done it a couple of days, he would get more en-
thusiastic for the program because he won't like that
kind of work much." According to Tackaberry, after
Meldrum kept insisting that this was diemaker's work,
Stirton turned to him and said "if he wants that kind of
work, you should give it to him."
Meldrum had been working for Red Levangie in die
construction for several weeks prior to this meeting, and
had moved his toolbox and union files to that area,
having been told by Levangie and Minard that he would
12 The grievance was denied by the Company, and no fourth step was
sought by the Union, as the bargaining agreement specifically provides
ihai an arbitrator had no power to hear or determine any issue nsoll ng
wage rates
3 This date was established as July 21 by all other witnesses
4 Meldrum had admittedly nt been at previous negotiating sssions,.
at which Danz had been present with the bargaining cornnitee
lb Sirton was the managing director of the Detroit Tooling Asocti-
ation
be working there permanently. ; He continued to work
in die construction for the balance of that week. On
Friday, November 17, Meldrum volunteered to work on
Sunday, November 19. When he reported for work on
Sunday, he was not assigned to his regular work area,
but was assigned by Russ Parks to a spotting press in the
draw die area, and worked there all day on job 3,700. l '
On the following day, Monday, when Meldrum came
into work, he went to his toolbox in die construction,
only to be told by Minard that he would be working in
the back area for Sohoza. Meldrum then went back and
was placed in the same spotting press job. He continued
to spot on job 3,700 for the next 7 working days in No-
vember, and then spotted on December I and 2 on a dif-
ferent job. On December 3, he was transferred to other
duties.
Gochis testified that it is Company procedure on
Friday to assign the jobs for those employees who vol-
unteer to work on the following Sunday. Thus, on No-
vember 17, on finding that Meldrum had volunteered to
work on Sunday, he decided that Meldrum should work
in the draw die area on that day, and that he would do
spotting work that day. According to Gochis. it was
Sohoza on Monday, November 20, who decided that
Meldrum would continue to do spotting work.'5
Shop Superintendant Minard testified that he was
going to transfer Meldrum to the draw die area on
Monday, November 20, "to fill a void." However, when
Meldrum volunteered to work Sunday, he consulted
with Gochis:
I told him that we had a spot that we had to fill
in down in that area and that by taking Mr. Mel-
drum down there, I could spare him the best of all
in the area that he was in and since he was going to
be working down there come Monday anyway, I
would start him out on the job on Sunday.
When asked who made the decision that Meldrum
would actually do spotting work on Sunday, Minard re-
plied, "I would say the construction foreman, Mr.
Sohoza." When asked if he knew if the job Meldrum had
been working on, at the time of his transfer to spotting
work had been completed prior to that transfer, Minard
admitted that he did not know.
C. Donald Calvin
Calvin was originally employed by Respondent as a
journeyman diemaker on January 3, 1977. On the follow-
ing July 8 he was discharged, having received three
written warnings, all for absenteeism. He filed a griev-
ance over his discharge, pursuant to the terms of the col-
lective-bargaining agreement between Local 157 and Re-
spondent, and it proceeded to a formal arbitration hear-
ing. On May 10, 1978, the arbitrator issued his award, re-
:I ]hi, as uncontraidicted by Minard, and evangie did not testify
y t'arks had ot attended the November 14 meeting with Stirion. and
"as filling in ftr Ernie Shoa, Ithe regular foreman for that area Parks
had been a comnilteenian prior to becoming a foreman in 1976h He as
not called as a witness.
1 Sohoza did not testify
659
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instating Calvin with backpay.19 Shortly after the issu-
ance of the arbitration award, Brannock telephoned
Danz to discuss a possible settlement of Calvin's case.
Danz testified as to the subsequent meeting of the parties
at the Company's office, without contradiction. After the
parties were unable to agree on a settlement, John
Lasko, the president of the Company, told Danz that
what he was doing was all wrong, and then told him
"Well, I am going to tell you one thing, Mr. Calvin is
never going to work here." Calvin was, in fact, reinstat-
ed on May 22, and on the same day the Company filed
suit in the United States District Court for the Eastern
District of Michigan to have the arbitrator's decision va-
cated.'20
I. The June 3 warning
Upon Calvin's return to the plant, he was assigned to
work for Frank Houghly, who was the foreman of die
construction. Houghly had been an employee of the Re-
spondent for 23 years, 13 of which had been as a
member of Local 157. Calvin had worked for Houghly
in the first months of 1977, and Houghly had at that time
wanted to discharge him for poor work performance.
Upon Calvin's return, Houghly told Calvin that he ex-
pected Calvin to do a good job, and they would let by-
gones be bygones.
Calvin testified that on June 3, prior to lunch, he
talked to Brunk, the toolcrib attendant, about lunch.
When the 5-minute warning whistle sounded, he did not
punch out his timecard, but went to the parking lot, got
in Brunk's car, and together they drove away. Tacka-
berry had seen them leave without punching out, and, on
their return, issued identical warnings to both employees.
Tackaberry testified that the reason for this rule, on
punching out, was that, if an employee leaves the prem-
ises and is injured while still on the clock, the Company
is responsible for workmen's compensation benefits for
any such injuries. Although Brunk testified that he had
gone out "quite frequently" over the years without
punching out, and had not been written up, he admitted
that he did not file a grievance concerning his repri-
mand, because an employee is required to punch out
before leaving the plant and "I got caught."2 '
2. The June 12 warning
On June 12, Calvin was operating a saw when he saw
that it had commenced to rain. He ran out on the park-
ing lot a distance of about 100 yards, and rolled his car
windows up. He testified that he saw several others em-
ployees run out ahead of him, but he did not know their
names. Five or 10 minutes after he came back into the
plant, Houghly gave him a written warning notice for
disregarding shop rule 7, leaving the plant during work-
ing hours without permission. Houghly testified that
Tackaberry had called him, and inquired if he had given
19 Danz testified credibly that this was the only grievance he knew of
that the Union had won, which involved backpay of more than I or 2
weeks.
z0 As of the date of this hearing, no verdict had been rendered by the
Federal court
21 During the previous year, one other employee had received a warn-
ing for failure to ring out when leaving the premises at lunchtime.
Calvin permission to go outside, and when he replied
that he had not, Tackaberry told him to give him a
warning. 22
Brunk, who testified that he saw Calvin go out, stated
that he saw several other employees also go out, but he
did not know if they used the same door, nor did he
know their names. Brunk, when asked if he had gone out
and closed his car windows, replied vaguely, "Oh, once
or twice a year. I imagine if such an occasion arose, if I
needed to go out there and roll the windows up." He
also testified that he would ask a foreman for permission
if a foreman was "handy."
James Soraruf, a diemaker with 19 years of employ-
ment at Respondent's plant, was called as a witness by
both the General Counsel, and Respondent. For the
General Counsel he testified as to his practice on rolling
the windows of his vehicle up when it rains in the
summer time.2 1 Soraruf testified that in the summer time
he leaves the windows of his van down and, if he sees a
storm coming, he rushes out and rolls the van's windows
up. If his foreman is right there, he asks for permission to
leave. Soraruf estimated that he did this several times in
the summer of 1978, and he has never been warned
about doing so. He also admitted that possibly no fore-
man saw him run out, and roll his car's windows up.
Prior to the issuance of this warning to Calvin, no em-
ployee had received a written warning for leaving the
plant during working hours without permission, in the
previous year.
3. The June 14 warning
On June 14, Houghly gave Calvin a written warning
which read, "Work performance unsatisfactory, lack of
accomplishment." Calvin admitted receiving the warning
but was vague about what work it referred to. At first,
on both direct and cross, he testified that he received it
after working on a pad, the shape of a front fender, that
he was putting in a die shoe. Later, he recalled that it
involved a bumper, and that he had worked on it for 7
hours without finishing it.
Houghly testified that a bumper die had been returned
to him for changes. The rework involved four pieces of
steel, two of which were 11 inches long, and the other
two, 19 inches long. Because the two pieces already had
much welding on them, the work required to be done on
each of the four pieces was about the same. Houghly as-
signed the piece to Calvin that had been started on the
nightshift, gave the second piece to Ivan Dinsmore, who
he described as legally blind, and the third and fourth
pieces to Tony Klarich. At the end of 5 hours Klarich
had completed his two pieces, and Dinsmore had com-
pleted his one. 2 4 At the end of the day Calvin had "no
where near finished" his piece, so Houghly issued him
the warning.
2 Part of the collective-bargaining agreement is a list of violations
captioned "Shop Rules and Regulations." Rule 7 thereof reads, "Leaving
the plant during working hours without permission. (Reprimand to four
weeks)."
z2 For the Respondent he testified as to his practice, and other die-
makers' practice, in the wearing of safety glasses when grinding
24 Neither Klarich nor Dinsmore testified.
660
REPUBLIC DIE & TOOL COMPANY
4. The July 27 warning
On the morning of July 27, Houghly gave Calvin a
second warning notice which read "Work performance
unsatisfactory, lack of accomplishment, 3 days off, July
28, 29, 31." Calvin testified that on July 25 he was drill-
ing and tapping holes with one of the Company's two
portable hydraulic lamnia drills, on two cast iron objects.
Calvin testified that the reverse was not working on his
lamnia drill, and when he reported this to Houghly, he
was told to take it to the repair room. Late that after-
noon he received a lamnia drill from repair, and drilled
two holes and tapped one. The next day he worked on
the same job, drilling and tapping holes, and the drill
continued to break taps. Calvin admits that Houghly
showed him that an apprentice in a similar job had
drilled 50 holes. However, Calvin also pointed out, to his
foreman, that the apprentice had not tapped the holes. 25
Houghly admitted that, after Calvin started drilling the
holes, he had trouble with the drill, as it would not re-
verse properly, and he told Calvin to take it to mainte-
nance and get the other one, which had been in for re-
pairs. On the next day, Calvin started on the same job
and again complained that the magnet on the drill was
bad, and he continued to complain about breaking taps.
During that day Calvin drilled and tapped 19 holes. On
the following morning he had drilled and tapped seven
holes as of 11:30 a.m., when he called the foreman over
to tell him of his troubles with the drill. Houghly then
told him he had the simplest job in the shop, and showed
him a job where an apprentice had drilled 82 holes with
the same drill on the day prior to Calvin's first use of the
drill. When Houghly asked for an explanation for his
poor performance, Calvin's only explanation was that his
mind was on his debts as the Company owed him so
much money. Houghly then wrote up the warning ticket,
and Calvin proceeded to drill the remaining nine holes in
45 minutes. On the next day, Houghly assigned die
maker Lorraine to operate this drill to check on its per-
formance. Lorraine drilled 154 holes in 10 hours and re-
ported breaking two taps.
Lorraine and Walter Markowski, another diemaker,
were called by the General Counsel as to their use of the
lamnia drill. Lorraine testified that he used it for about 7
hours, and that he knew he drilled and tapped a "bunch"
of holes, while breaking five taps. Markowski testified
that he used it both before and after Calvin used it, and
he had trouble with the magnet both times. He broke
"maybe" two taps before Calvin used it, and one tap
after Calvin used it, as he would go "real slow" with it.
5. The June 5 merit wage increase
On June 5, most of the employees of the Respondent
received a merit wage increase. Calvin did not receive
an increase.
Brannock testified that the Company had a program
for merit increases for its employees excluding appren-
tices that operated on a quarterly basis. In early April, a
2s Tapping is much more difficult than drilling. The lap threads the
hole that has been drilled b the drill. Taps will break off in the hole. if
the tap goes in too deeply so as to "hotlom out" at the end of the drilled
hole. I is then very time consuming to extract the tap.
clerical employee typed up a set of employee rating
cards for all such employees from an April 5 seniority
list. The cards were then sent to the appropriate supervi-
sors for their rating of these employees. The foremen fin-
ished these evaluations in April and then returned them
to the plant superintendent. The plant manager also re-
viewed them, and they were finally in Brannock's office
in the first part of May. Brannock then reviewed all
these evaluations with the day and night superintendents,
and thereupon agreed on merit increases ranging from 0
to 50 cents per hour, with the average being a 20-cent
increase. Respondent's Exhibit 10 is a typed "Quarterly
Senior Listing," dated 5-17-78, of all Company employ-
ees, and has written in beside each employee's name, the
merit increase granted to him.
6. The August 23 wage increase
On June 21 the union bargaining committee, together
with Danz, had its first bargaining session with the Com-
pany for a new collective-bargaining agreement. 26 On
July 21 the Company submitted its formal proposal to
the Union. (G.C. Exh. 26.) It provided that all of its
skilled employees, who received a productivity increase
on June 5, would be granted a 27-cent-an-hour increase
effective July 31. Calvin and a small number of other
employees would thereby be excluded from receiving
this increase. Danz received the proposal on July 24, and
it was his understanding that Calvin and another employ-
ee, J. H. Burris, would not receive the increase. Danz
knew that the Company's Federal court case on Calvin
was pending, and Burris was involved in a -day penalty
grievance. Because of the language already contained in
the 1975 agreement as to grievances, Respondent's 1978
proposal, if accepted, would have the effect of with-
drawing both of these grievances.
On August 3 the parties met with a Federal Mediator,
and Danz stated various reasons why the July 21 propos-
al had been rejected by the Union, one of which was
that Calvin and Burris would not receive the 27-cent in-
crease. The Company then agreed that Burris would get
the increase, but advised the Union that Lasko would in
no way approve of Calvin getting the increase. The
Union struck the Respondent on August 10.
On August 17 the Company submitted a "final con-
tract," which provided that all seniority and nonseniority
skilled employees receive a 27-cent hourly increase "Ex-
cluding Calvin, involved in Federal Court." On August
21, Danz phoned the Company attorney and informed
him that, if he would include Calvin in the increase, in-
stitute a dental plan, and grant a February merit increase,
he would recommend an acceptance of the proposal. On
the following day, Respondent's counsel telephoned him
and advised that the Company could implement the
dental plan, and give some relief on the February in-
crease. However, as to Calvin, Danz was informed that
Lasko had "chewed his ass out" for even talking to him
about Calvin, and there would be no wage increase for
him. By a letter dated August 23, Company counsel in-
.6 The facts reported in this section ".ere provided by Danz and are
uncontradlcled and credited
h61
DE.CISIONS OF NATIONAL LABOR RELATIONS BOARD
formed Danz that the February merit increase was ac-
ceptable, that a dental plan would be instituted, but again
refused to agree to Calvin receiving the 27-cent increase.
stating that "The Company will abide by and implement
the ruling of the Court in the Calvin case and will not
appeal such decision further."
Shortly thereafter, the members of the Union accepted
the Employer's proposal, and the strike ended. Danz,
however, refused to sign the agreement, as Calvin had
not been included in the first hourly raise. Calvin re-
turned to work with the other employees after the strike
ended, but, unlike these employees, he was not paid the
first year increase. The Union continued to work under
the unsigned company proposal. In December the Union
voted to strike because the Company had instituted two
new job classifications, and also because there was no
signed agreement. When the Union offered to sign the
agreement if Calvin was paid the 27-cent increase, the
Company agreed. In January 1980, Calvin, having been
discharged in November, was paid the first year increase.
The Union then signed the agreement, and both parties
withdrew charges each had filed against the other at the
National Labor Relations Board.
7. The August 29 warning
On August 29 Calvin received a second written warn-
ing with 3 days off, for disregarding shop rule 7, and
leaving the plant during working hours without permis-
sion. Calvin testified that he was scheduled to work 9
hours but he left after 8, at 3:30 p.m., to go to the union
office to pick up his strike check. He admitted that he
did not tell his foreman that he was leaving, as he did
not see him before leaving the plant. When he arrived at
the union hall, he saw that at least 10 other employees of
the Respondent were also there. One of these employees,
whose name he did not know, had told him that he had
not asked for permission to go to the hall, but he had no
knowledge if the other men had requested permission.
Houghly testified that Calvin was scheduled to work
10 hours on August 27, and he went looking for him
after 3:30 p.m. and could not find him. When he ques-
tioned Calvin the next day, Calvin did not mention that
he had gone to the union hall. Calvin filed a grievance
on this warning, and on September 5, Danz attended a
grievance meeting concerning it. At the end of the meet-
ing, Danz withdrew the grievance on behalf of the
Union.
8. The October 27 warning
On October 27, Houghly issued Calvin a warning
notice which stated "Work Performance Unsatisfactory,
Lack of Accomplishment-I week off to be scheduled at
the convenience of the Company." Calvin testified that
he was given the job of fitting some small steel sections
into a bumper die. He admitted to having trouble with
one of the sections as it did not line up properly, and he
"had to regrind a couple of times." On cross-examina-
tion, Calvin admitted that he was not constructing a new
product, but was refitting something that had already
been built. He also admitted that apprentices frequently
did this type work.
According to Houghly, the pieces assigned to Calvin
had already been fitted in the die in soft state, had been
heat treated, and then were to be refitted and mounted in
the die. At the end of the day Calvin had mounted four
sections, with quite a few remaining to be fitted. Hough-
ly further testified that Calvin's performance was "very
poor," and that he told Calvin before writing him up,
"Don, you done it to me again."
9. The November 21 suspension and discharge
Calvin's version was as follows. On November 20, a
Monday, he was grinding in a cavity on a piece of Amco
bronze in a die post, and was wearing safety glasses with
side shields.27 Houghly and Meldrum walked up to him,
and the foreman told him that, first of all, he was not
going to write him up, but he wanted the steward to be
a witness to what he was telling him. Houghly then told
Calvin that he should take care of his eyes, and that
when he grinds in a cavity, and, in particular on bronze,
he should wear goggles or a face shield. Calvin then
went and got goggles and put them on. 2 8 Later that day,
Calvin was grinding steel in the open while wearing
safety glasses, when Meldrum came up to him and asked
"how come you don't have the goggles on." Meldrum
then told him not to "hit-pic," so he went and got gog-
gles and put them on.
On the next day while grinding on a post, Calvin testi-
fied that he wore goggles all day except for about a 5-
minute period, from 3 p.m. to 3:05 p.m. At the end of the
5-minute period, Houghly and Meldrum approached
Calvin who was wearing the goggles around his neck,
and when Houghly stated that Calvin was deliberately
not wearing the goggles, Calvin denied this, stating he
had just forgotten about it. When Houghly told him that
he had told Calvin a hundred times about eye protection
since he had returned to work, Calvin admitted that he
shook his head in agreement. When asked at the hearing
how many times Houghly had actually told him, he
stated, "approximately ten times." Later that afternoon,
Houghly gave Calvin a warning notice which read "In-
subordination failure to observe safety rules after repeat-
ed warnings by myself and shop steward." On the next
day he was discharged by Tackaberry. Calvin stated that
he did not know of any plant rule that required the
wearing of safety glasses, that he wore them just as a
general safety practice in the industry. He also testified
that he did not recall seeing, near the employee's en-
trance, a large yellow and black sign which read that
safety glasses must be worn beyond that point.
Houghly testified that on November 20 he saw Calvin
grinding on the die without adequate eye protection, as
he was only wearing safety glasses. After talking it over
with Tackaberry, he went and asked Meldrum to come
with him to Calvin's work place as a witness to what he
2 Safety glasses (Resp. Eh. 18), are i size and appearance similar to
regular reading glasses, but have side shields, which are small, clear plas-
tic pieces fixed to the side temples of the glasses
z2 Goggles fit snuggly to the forehead, around the eyes and o ver the
nose. as well as the cheeks (Resp Exh. 19). A face shield is similar in size
and shape to a welder's helnet, and rests on the user's head. with a plas-
tic shield Ihat completely covers the face, and extends downi below the
user's chin (Resp ltxh 20)
662
REPUBLIC DIE & TOOL COMPANY
was going to say. The foreman proceeded to "read Don
out the best I knew how" telling him that he was a
hazard to himself. Calvin said he forgot. Houghly then
told him three times that, the next time he saw Calvin
grinding without a face shield or goggles, he would be
reprimanded. Houghly claimed that in his department the
rule is that a diemaker wear a face shield or goggles
while he is grinding.
Later that day, Houghly again saw Calvin grinding
without goggles or a face shield. He then went to Mel-
drum and talked to him, and this time Meldrum went
and talked to Calvin. Calvin then wore the face shield or
goggles the rest of the day.
On the following day, Houghly watched Calvin at
various times, and he observed that Calvin was wearing
goggles while grinding. At 3 p.m. he saw Calvin start
grinding, with his goggles worn loosely around his neck
under his chin, with safety glasses over his eyes. Hough-
ly then went and got Meldrum, and they talked to
Calvin. Houghly reminded him that he had told him
three times before about using goggles. and Calvin re-
plied that he had forgotten. Houghly then went to Tack-
aberry and told him that Calvin should be discharged.
Houghly testified that he had told Calvin from 50 to 100
times to wear safety goggles or a shield while grinding.
Meldrum admitted that Houghly showed him on No-
vember 20 that Calvin was grinding in a cavity, without
wearing goggles, and that Houghly told Calvin to put
the goggles on, as he was a danger to himself. Also, that
later in the afternoon, Houghly asked him to go to
Calvin and ask him to wear goggles. Meldrum then told
Calvin that it was not a good time to stir up trouble, and
that he should wear the goggles. Calvin replied that he
was not in the habit of wearing them, and that he forgot.
Meldrum also admitted that, on the afternoon of the next
day, Houghly showed him that Calvin was grinding
without safety goggles and that Calvin agreed that he
had been told by his foreman 50 or a 100 times to wear
safety goggles. According to Meldrum, the general prac-
tice of journeymen, when grinding in a cavity, was to
wear goggles or a face shield. However, few diemakers,
if any, when grinding in the open would wear a shield or
goggles. Meldrum readily admitted that at the employee
entrance there was a large yellow and black sign which
read that safety glasses must be worn beyond that
point. 29
Two diemakers were called by the General Counsel to
testify concerning safety glasses, goggles, shields, and
grinding rules and procedures. Robert Lorraine, who
worked under Houghly, testified that, if he was doing
work with up to a quarter-inch drill, he would just wear
safety glasses, but over that, and on Amco bronze, he
would use goggles or a shield. In the 5 months he
worked under Houghly, he was told once to wear gog-
gles. In this instance, Houghly came up to Lorraine and
handed him a carbide burr, and goggles. Walter Mar-
kowski, who worked under Houghly for over months,
testified that he would wear a face shield or goggles if
he was using a three-eighth inch grinder or over, as he
9 Brunk estified that he also had seen this sign, and that II had been
there fr "quite .a l hl "
considered this to be heavy grinding. He was never told
by Houghly to wear a shield or goggles during the time
Houghly swas his foreman. Markowski readily admitted
that, when he was hired 2 years previously, he had been
given safety glasses and told to wear them. Then, after
Calvin was suspended, Markowski was transferred to
Russ Parks' department. and, at this time, he was told by
Parks to wear goggles or a face shield. Parks had a list,
apparently of all employees in his department, and
checked off each employee's name, as he instructed him
to wear the goggles or a shield. James Soraruf, a witness
who was called by both parties, and who had worked
for the Respondent for 19 years, testified that he wears a
shield over safety glasses when he grinds in die tryout
most of the time. He also testified that, most of the time,
the other diemakers in tryout wear shields, and that their
foreman had told them to wear a shield when grinding.
Tackaberry testified that Houghly consulted with him
on both November 20 and 21 about his problems with
Calvin over goggles, telling him that Calvin was being
"plain defiant." It had been Tackaberry's idea to have
Houghly take Meldrum with him to talk to Calvin. On
the morning of November 22, Tackaberry sat down with
Houghly and reviewed Calvin's whole record since his
return on May 22, "not only about the goggles, but
about poor work performances, leaving early, and leav-
ing at lunch time without permission." Tackaberry was
convinced that Calvin was defying authority, and he
then wrote out the discharge letter.
D. Credibility
As is evident from the record, the credibility issues in
this case, particularly as to the Meldrum incidents, are of
the sharpest nature, and not easily resolved. Meldrum
was an evasive, shifty witness who tried to fit dates of
events so as to help his cause, and I do not generally
credit his testimony. The record is clear that he was ap-
pointed an alternate committeeman on June 3, and not in
March as he testified, and that the first negotiation meet-
ing he attended in 1978, was on July 21, and not in early
July. Calvin was an argumentative, lethargic witness, but
his testimony, as to the incidents causing the seven writ-
ten warnings he received, is largely uncontradicted and I
credit it. The remaining witnesses presented by the Gen-
eral Counsel, with the exception of Brunk and Phillips,
impressed me as sincere, conscientious, hardworking die-
makers telling the truth as best they could recollect it.
Also, these men testified against Respondent while still in
its employ, further supporting their credibility. Brunk
was a most evasive witness, who could not remember
dates or events, and was obviously biased in his support
of Meldrum. An example is his testimony that he saw
Meldrum spotting in the rack the next morning after the
negotiations session with Stirton. Meldrum himself testi-
fied that he started spotting on a Sunday, which was the
5th day after that meeting. I do not credit Brunk's testi-
mony. Danz, the veteran union agent, was the most im-
pressive witness, testifying without hesitation or equivo-
cation, without fear or favor. and I credit him complete-
ly.
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's witnesses Brannock, Tackaberry, Gochis,
Minard, and Houghly were supervisors of the Company,
and did not impress me as witnesses in whose testimony
I could have confidence as to its accuracy and reliability.
Rather, I received the strong impression that they were
advocates, trying to furnish answers that helped their
cause, rather than trying to state the facts as they actual-
ly remembered them. Former Foreman Faulkner, and
March, impressed me, in the same manner as the die-
makers provided by the General Counsel, as men who
testified simply and directly, and I credit their testimony.
E. Analysis and Conclusions as to Meldrunm
1. The merit increase
While the complaints allege numerous violations of
Section 8(a)(1) and (3) by Respondent in its treatment of
Meldrum, the most substantive is did the Company estab-
lish Meldrum's hourly wage rate at the contractual mini-
mum when he became a journeyman, because of his mili-
tant union attitude, and activity as an alternate commit-
teeman. Relying on the record as a whole, and particu-
larly the testimony of Danz, Faulkner, March, and Bran-
nock, I find that this must be answered in the affirma-
tive, and was because of his militant union attitude.
The record is uncontradicted that, in January 1978,
Meldrum proposed to the other employees that the
Union should regain, in the coming negotiations, the
1971 favorable provisions it had given up, when it signed
the 1975 "take-away" agreement. It is a reasonable infer-
ence to draw that this antagonistic attitude reached the
ears of management, through the chain of employees and
the 17 shop supervisors. March, a far more seasoned and
experienced steward than Meldrum, and a political oppo-
nent of Meldrum, admitted that in early 1978 he stated at
times that Meldrum went "overboard" in seeking to en-
force the contract. Faulkner, who at the time of testify-
ing was a rank-and-file employee and a UAW member,
had told Meldrum that the old time diemakers consid-
ered him to be a troublemaker and an agitator. Brannock
admitted that when he had the July I conference with
Meldrum he had heard that Meldrum was a complaining
type of a person, a very negative type person, who was
"not just negative towards his work at Republic, but he
was negative on many other things." Obviously, Bran-
nock equated Meldrum's militant attitude on enforcing
the existing contract, and in seeking to recoup all bene-
fits lost in the 1975 agreement, as complaining and
against the welfare of the Company. Undoubtedly the
Company had been through a traumatic experience in
the 10- to l1-month long strike in 1975, and understand-
ably wanted to avoid it in the up coming 1978 negotia-
tions. Meldrum was, in the vice president's eyes, the
troublemaker, the agitator, who was endangering the
Company's financial stability, and certainly not one to be
rewarded by paying him a wage above the bottom line
amount required by the agreement, when he completed
his apprenticeship. Brannock clearly showed his opinion
of Meldrum when he read to him at their July confer-
ence the poem, "The Builder," and told him that it spoke
for itself. It certainly does. A fair reading of that poem
shows that Brannock equated Meldrum's union militancy
with being a wrecker who was trying to tear the Compa-
ny down.-0
Finally, there is Danz' credited and uncontradicted tes-
timony as to what Brannock said at the grievance meet-
ing concerning Meldrum's wage complaint. Here, Bran-
nock said that the reason Meldrum only received the
contract minimum was because of his "attitude," and that
Meldrum "did not understand or just didn't care about
the Company's problems in a competitive Industry." The
obvious attitude Brannock was referring to was his mili-
tant union attitude about enforcing the existing agree-
ment, and securing, in the new agreement, benefits lost in
1975, without regard to the well being of the Company.
Although Gochis and Tackaberry testified that, in
early May they decided that Meldrum would not be paid
above the contract minimum, the Company provided no
documentary evidence to support this contention. The
second sheet of Joint Exhibit 1, the printed form used by
the Company to determine the recommended wage to be
given to Meldrum, would seem to rebut this, as it is
dated 6-30-78, which is almost 2 months after early
May, as well as 3 weeks after Meldrum was appointed as
an alternate committeeman. It also contains the hand-
written entry "Oct. 8-77 June 15 missed I Sat.," which
shows it was prepared after June 15. While both the
plant manager and assistant plant manager stated that
they rated Meldrum from subjective opinion, the only
objective evidence in the record is the evaluation re-
ports. These show that Meldrum, like Price and Sanfi-
lippo, had the mark of an average diemaker, set by Tack-
aberry as 75 to 84. Yet, Price received a merit increase
of 84 cents per hour over the minimum, and Sanfilippo
an increase of 94 cents per hour. Brannock had every
right to tell Meldrum that he was a wrecker and to tell
the union bargaining committee that he was a danger to
the Company's financial condition. However, Respond-
ent had no right to penalize him for this militancy, by
not paying him a merit increase, and such denial violates
Section 8(a)(3) and (1) of the Act.
2. Solicitation and threats
While the amended complaint sets forth 10 dates on
which it is alleged that Faulkner coercively attempted to
solicit Meldrum to withdraw from his office in the
Union, and 8 dates on which Faulkner threatened to
blacklist Meldrum if he did not relinquish his office in
the Union, the evidence does not support such allega-
tions. Meldrum's testimony was vague and brief. Faulk-
ner, whose testimony I credit, flatly denied that he ever
advised Meldrum to withdraw from his office in the
Union, and also denied that he had any conversations
with Meldrum about blacklisting. I would dismiss these
allegations of the complaint.
I do not find that Stirton's statement to Tackaberry
and Gochis to assign Meldrum to spotting constituted a
:' The last two lines of the second and third stanzas contain the one
of the whole poem: "They [wreckersl can easily wreck in a day or two.
what builders have labored ears to do": "or am I a wrecker who walks
to toswn, content w ith the labor of 'learing down."'
664
REI'UF3I.IC DIE & 1-X)L COMPANY
threat. The Board and courts have long recognized that
passions run high in labor disputes and that epithets and
accusations are common place." Crown Central Petroleum
Corporation v. .L.R.B., 430 F.2d 724 (5th Cir. 1970).
Here, the long experienced management negotiator
found his, to him, reasonable proposal on trainees, turned
down by a young, inexperienced negotiator, just out of
his apprenticeship. When Meldrum kept insisting that it
was diemaker's work, Stirton engaged in the standard ne-
gotiating tactic of one-upmanship, and told Respondent
to assign Meldrum to spotting, and that after a few days
of grinding he would not like that type work. As stated
in V.L.R.B. v. Florida Medical Center, Inc., 576 F.2d 666
(5th Cir. 1978), grievance procedures to accomplish their
purposes under the Act must allow free and frank debate
between the parties. The frustrated managing director
was engaging in such debate, and I would dismiss this al-
legation of the complaint.
3. The spotting press assignment
There is no question but that spotting press work, in
which much grinding and barbering is done, is part of
the diemaker's work under the contract. As admitted by
Gochis it is also the most undesirable work of a die-
maker. Thus, when Meldrum was assigned spotting work
on Sunday, and for the next 9 working days, was he
being punished by the Company for his opposition on
Tuesday to the proposed trainee program, or was it just
fortuitous. I find, based on the lack of any documentary
evidence, the unexplained failure of Sohoza to testify,
and contradictions between the testimony of Gochis and
Minard, and the timing, that Meldrum's assignment to
spotting was to teach him a lesson, and soften up his
stand against trainees doing this type of work.
Gochis was present on November 14 when Stirton
was unable to budge Meldrum from his position, and
told the plant manager to assign Meldrum to spotting.
Gochis testified that on the following Friday, after learn-
ing Meldrum had volunteered for Sunday work, he as-
signed Meldrum not only to the draw die area, but also
assigned him to do the spotting work on Sunday. How-
ever, Minard's testimony contradicts this, as he said
Sohoza made the decision to assign Meldrum to do this
work on Sunday. Gochis did not take responsibility for
the continued assignment of Meldrum to this work, as he
stated that on Monday, Sohoza decided that Meldrum
would continue to do spotting work. Finally, Minard's
admission that he did not know if the job Meldrum had
been working on before he assigned him to spotting had
been completed, shows that Meldrum's transfer was not
a routinely planned change of duties. It is inherently im-
plausible that an experienced superintendent like Minard
would not have ascertained the status of the job Mel-
drum had been on prior to the transfer. He could have
been in the final stages of the construction of a die
wanted desperately by one of the Big Three, and yet
Minard did not think this consideration important
enough to check on. In view of the foregoing, it is found
that Meldrum's transfer to spotting was to punish him,
and was motivated by discriminatory reasons. It was
therefore unlawful, and by this action Respondent violat-
ed Section 8(a)(3) and (1).
F. lAnalysis and Conclusions as to Calvin
It is well established that an employer may terminate
an employee for any reason, good, bad, or indifferent,
without running afoul of the Act, provided the employer
is not motivated by unlawful considerations. The exist-
ence of justifiable grounds for dismissal is no defense if
the motivation for the discharge was because of the em-
ployee's participation in protected activities. With these
established principles in mind, and recognizing that the
burden of proof to show the illegality of the discharge
rests with the General Counsel, we now, analyze Calvin's
discharge and the various incidents leading up thereto.
The Board has long held that when an employee files
a grievance pursuant to a contractual grievance proce-
dure, such filing is a concerted activity which is protect-
ed under Section 7 of the Act, and, if an employer dis-
charges such employee for engaging in such activity, the
discharge is unlawful and violates Section 8(a)(l) and (3)
of the Act. Farmers Union Cooperative Varketing A4ss'n,
145 NLRB 1, 3 (1963); Price Brothers Company, 175
NLRB 277, 278 (1969). In Mrs. Baird's Bakeries, Inc., 189
NLRB 606 (1971), a similar violation was found even
though there was no showing that the employer had
union animus.
In the instant case Calvin had filed a discharge griev-
ance, which was resolved 10 months later when the arbi-
trator ordered his reinstatement, with backpay for the
full period. In 20 years prior to this award the Company
had never lost a discharge arbitration case that required
more than 2 weeks of backpay. That Calvin's reinstate-
ment was strongly resented by the president and owner
of the Company, Lasko, is shown by his angry statement
to Danz in mid-May that Calvin was never going to
work at Respondent's plant. When Calvin returned to
work on May 22, Brannock, the executive vice president,
was admittedly bothered about his reinstatement. Tacka-
berry in turn, knew that Brannock was unhappy about
the decision, and that Lasko was upset by it. Subsequent
to the award, Tackaberry talked to Houghly about it as
did Gochis.
1. The June 5 and August 23 wage increases
Respondent states in its brief that "Calvin, not an
active employee until May 22, 1978, was not rated (nor
could he have been-he was off work since the previous
July) and, consequently, was not considered for a merit
increase." Although the Respondent did not produce the
April 5 seniority list, I find merit in Respondent's argu-
ment based on Brannock's uncontradicted testimony, and
the May 15 seniority list. Calvin's name does not appear
on the May 15 list, which was received into evidence
without objection, and which shows the date of hiring of
the newest diemaker as being April 10, May I, as the
date for the newest machine operator, and April 24,
1978, as the date for the newest apprentice. No evidence
was presented to rebut the Company's reliance on the
May 15 list of employees, or to establish that, in the ordi-
nary course of office procedure, Calvin's name would
have been inserted thereon prior to June 5. 1, therefore,
do not find that Respondent violated Section 8(a)(1) by
h65
DECISIONS OF NATI()NAL L.ABOR RELATIONS BOARD
not granting Calvin a merit increase on or about June 5,
and would dismiss this allegation of the complaint.
The failure of Respondent to give Calvin the 27-cent-
per-hour increase in August is a different matter, and in
no way can be attributed to bookkeeping procedure, or
an oversight, and is strong proof of the Respondent
animus towards Calvin. The Company's proposal of July
21 artfully provided that only skilled employees who re-
ceived a productivity increase on June 5 would be grant-
ed a 27-cent-an hour increase as of July 31.
This would of course automatically exclude Calvin.
However, to show the carefulness of the drafting to pre-
vent any employee from being overlooked, it also pro-
vided that apprentices who graduated between June 5
and July 21 would receive the 27-cent-increase. On
August 3 when the parties met with a Federal Mediator,
and Danz advised the Company negotiators that one of
the reasons the Union had rejected the July 21 proposal
was that Calvin and I other employee would not receive
the 27-cent-increase, the Company adamantly refused to
budge, and risked a strike rather than include Calvin in
the companywide raise.
Then, the Company took a strike commencing on
August 10, with one of the few remaining issues, the ex-
clusion of Calvin from the raise. On August 17 the Com-
pany again showed its single-minded animus to Calvin,
by making a new proposal to the Union, which set forth
in so many words that Calvin would be excluded from
the raise. Several days later, when Danz offered to settle
the strike, the Company agreed to two of the three final
items proposed by Danz, the dental plan, and a February
increase, both items of obvious significant costs for 200
employees. Yet, it refused to budge on Danz' third item,
the relatively inexpensive inclusion of Calvin in the em-
ployee group who would receive the 27 cents. While the
employees ended the strike several days thereafter and
returned to work, the issue of Calvin's failure to receive
the increase remained an open sore between the parties.
The Union refused to sign the agreement, and in Decem-
ber the Union voted to strike again. The Company at
first stood its ground, and then finally accepted the
Union's offer to sign the agreement upon the payment of
the 27 cents to Calvin. Never before in the 20 years that
Danz had represented the employees had any employee
been excluded from a general wage increase. Yet, the
Respondent animus to Calvin was so intense that it ex-
cluded him, and suffered a strike, rather than pay him
the increase granted to the other 199 employees. I find,
therefore, that Respondent's failure to pay Calvin the 27-
cent increase in August with the other employees consti-
tutes a violation of Section 8(a)(l) and (3) of the Act.
2. The warnings
As the record shows, Calvin received seven written
warnings in the 6-month period he worked, following his
reinstatement (G.C. Exh. 3-9). These warnings started in
the second week of his return, and continued thereafter,
with Tackaberry being a participant in at least six of the
seven.
It was Tackaberry on June 3 who issued the warning
to Calvin and Brunk, for leaving the premises without
punching out at lunch time. While this was in fact a vio-
lation of a written company rule, only once in the previ-
ous year had the Company issued such a warning to any
employee. It was Tackaberry on June 12 who noticed
Calvin out in the parking lot, and asked Houghly if he
had given him permission to go out. Had the then assist-
ant plant manager not called Houghly's attention to this
incident, there is nothing in the record to indicate that
Calvin would have received a warning from his foreman.
Soraruf, the 19-year veteran diemaker, whose reputation
for fairness and impartiality was so secure that both the
General Counsel and Respondent called him as a wit-
ness, testified credibly that it was his practice to roll his
car windows down in the summer, and, if he saw a
storm coming up, to go out on the parking lot, and roll
the windows up. If he would see his foreman on the way
out, he did ask for permission to leave, but if he did not
see him, he would continue on out, without any permis-
sion, and complete his mission of rolling his car windows
up. In the summer of 1978, he had gone out several times
because of the rain, and never had been warned to cease
doing this, or that it was a violation of any rule. It is to
be noted that in the year prior to the notice to Calvin,
no other employee received a written warning for leav-
ing the plant during working hours without permission.
Calvin's visit to the union hall on August 29 followed
his working 8 hours. It is true that he did not ask his
foreman for permission to leave, and that he left before
his shift had finished, and that technically he violated a
rule. However, I credit his uncontradicted testimony that
about 10 other employees of Respondent were also at the
hall, and that one of these employees had told him that
he had not asked for permission to go to the union
office. Yet, no employee other than Calvin received a
warning for going to the union hall. This is also another
time that Houghly talked to Tackaberry before issuing
the warning.
It is to be noted that on August 24 Calvin filed his first
charge with the Board. It is also significant that on Sep-
tember 7, Respondent, by foreman Parks, issued a warn-
ing to employee B. Beyer for leaving the plant at lunch
hour without punching out, and that, on September 29, a
warning was issued to J. Doherty for leaving the plant
during working hours without permission. While I do
not challenge that these events of September 7 and 29
occurred, I regard the issuance of these warnings, in
light of the Company's former policy not to issue such
warnings, as an afterthought, a stratagem to justify the
Company's issuance of the prior similar warnings to
Calvin.
3. The work performance warnings
While the record shows that Houghly issued three
warnings to Calvin for unsatisfactory work perfor-
mances, and lack of accomplishment, all of these were
based on the subjective judgment of Houghly, and only
after talking over each incident with Tackaberry. In
none of the three incidents, were there any reasons given
of an objective nature, nor were any documentary re-
cords offered in support of the foreman's finding fault
with Calvin's work performance.
666
REPUBI.IC DIE & TOOl. COMPANY
The June 14 warning concerned a piece of steel
worked on by Calvin, which Houghly contends was sim-
ilar to work given to two other employees, who finished
their pieces prior to Calvin. The other two employees,
Dinsmore and Klarich, were not called to testify, and no
shop records were produced to show any difference in
the amount of work performed by each employee. The
July 27 incident involved Calvin's use of a lamnia drill,
which was admittedly faulty, with its magnet not func-
tioning properly. Respondent's attempt to prove that an
apprentice on the previous day had done more work
with the drill than Calvin had, would only prove that an
apprentice drilled more holes than Calvin had, but not
that the apprentice had drilled and tapped more holes
than Calvin had. The apprentice did not testify. Admit-
tedly, the tapping of the holes was more difficult than
merely drilling the holes, requiring more time and skill,
and caused the major problem in using the lamnia drill.
Houghly's claim that diemaker Lorraine on the next day
drilled 154 holes in 10 hours, while breaking 5 taps, was
not supported by Lorraine's testimony, which I credit.
Lorraine testified that he used the drill for about 7 hours,
and that he broke 5 taps while drilling and tapping a
"bunch" of holes. Markowski had substantial trouble
with the drill, both before and after Calvin's use of it.
Again, no timesheets or records of any kind were pro-
duced to show how much work was actually done by
any of the three diemakers or the apprentice. The Octo-
ber 27 warning involved work done by Calvin, in which
Houghly did not even attempt to measure Calvin's per-
formance with the amount of work done by any other
employee, and was based purely on subjective standards.
It is of particular significance that, in 18 months prior to
Calvin's discharge, there was not one warning issued by
the Company to any of its 200 employees for unsatisfac-
tory work performance.3 ' When, in a 5-month period,
one employee, Calvin, received three warnings for unsa-
tisfactory work performance.
4. Safety glasses
The record is clear that the Respondent did have a
written rule, in the form of a large sign at the employee's
entrance to the plant, that required that safety glasses
had to be worn beyond that point. The record is also
clear, and it is admitted by Respondent in its brief, that
there was no written rule that expressly required that
goggles or face shields should be worn while grinding. It
is also evident from the record that the use of goggles or
shields was a matter of independent judgment by each
diemaker in Houghly's department, as credibly testified
to by Lorraine and Markowski. Markowski was never
told by Houghly to wear goggles or a shield, and Lor-
raine was only told once in 5 months when he was as-
signed a special job, and Houghly handed him the car-
bide burr and the safety glasses, concurrently.
On November 20, Houghly had every right to tell
Calvin to use safety goggles when he was grinding on
the Amco bronze, as well as to tell him the second time
a" Warnings had been given to three different employees. The first as
for insubonrdinalion the second for too much talking and lime off the job.
and the third was for a refusal to do a Job assignment G C Exhs 20. 18,
and 19
to use goggles when he was grinding on a post in the
open. However, Houghly's conduct on the following day
does not show the actions of an evenhanded foreman.
Houghly admittedly watched Calvin throughout the day,
which began at 7 a.m. The foreman observed that, when-
ever Calvin was grinding, he wore goggles. However, at
3 p.m., when Calvin started to grind for the first time all
day without goggles, Houghly immediately pounced on
him, and gave him a warning notice for failure to ob-
serve safety rules. In the previous 18 months, Houghly
had never issued a written warning to any employee for
a failure to observe safety rules, and, in the same period.
the entire supervisory staff had only issued a warning to
one employee, for a "Repeated failure to wear safety
glasses."
I am convinced and I find on the entire record, and
for the reasons set forth above, that Respondents assert-
ed reasons for Calvin's discharge on November 22 were
advanced as pure pretext to mask an unlawful motiva-
tion, and that the inference can fairly be drawn that
Calvin was discharged because of his protected union ac-
tivities. That such an inference may be drawn is set forth
in Shattuck Denn Mining Corporation (Iron King Branch)
v. N'L.R.B., 362 F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise noperson accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required to
be any more naif than is a judge. If he finds that the
stated motive for a discharge is false, he certainly
can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at
least where, as in this case, the surrounding facts
tend to reinforce that inference.
Respondent's strong animus was shown by its persistent
refusal over a period of six tortuous months to pay
Calvin the 27-cent-increase. The record shows clearly
that from the time Calvin returned to work, he was par-
ticularly watched by company supervisors. It is also
clear that Calvin was faced with gross disparate treat-
ment, in the number and kinds of warnings given him.
Plant rules that had long been leniently observed were
enforced on Calvin's activities. The issuance of warnings
for unsatisfactory work performances was obviously ha-
rassment, as such warnings had not been given to the
other 199 employees in the past 18 months. Accordingly,
I find that Calvin was discharged because of his activity
in filing a grievance under the contract, and in winning
an arbitration case that reinstated him in the employ of
the Respondent, with 10 months backpay, and that there-
by the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
McVNally Bros., Inc., 167 NLRB 819 (1967); The John
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Klann Moving and Trucking Company, 170 NLRB 1207
(1968).
On the foregoing facts, it follows, and I find, that Re-
spondent engaged in interference, restraint, and coercion
of Calvin in violation of Section 8(a)(l) of the Act by the
following action and conduct of its supervisors: (1) the
June 3 warning issued by Tackaberry, and (2) the June
12, June 14, July 27, August 29, October 27, and Novem-
ber 21 warnings issued by Houghly.
CONCILUSIONS OF LAW
1. Republic Die and Tool Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 157, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By establishing Timothy B. Meldrum's journeyman
hourly wage rate at the contractual minimum, and by as-
signing Meldrum to work on the spotting press, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
4. By discriminatorily discharging Donald R. Calvin
because of his filing a contractual grievance over a prior
discharge which had resulted in an arbitration award
granting him reinstatement with substantial backpay, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. By refusing to grant Calvin a general wage adjust-
ment Respondent has violated Section 8(a)(3) and (1) of
the Act.
6. By issuing written warnings to Calvin on June 3, 12,
14, July 27, August 29, October 27, and November 21,
Respondent has engaged in unfair labor practices prohib-
ited by Section 8(a)(1) of the Act.
7. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
8. The General Counsel has not proved by a prepon-
derance of the evidence that Respondent interfered with,
restrained, or coerced its employees in the exercise of the
right guaranteed by the Act except by the specific acts
and conduct herein found to be violative.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent, having failed to pay Meldrum the rate to
which he was entitled on becoming a journeyman, shall
pay him an hourly amount above the contract minimum
that shall be established by using the merit increase of 84
cents given to S. Price on May 22, 1978, as the increase
due an employee with an average rating of 82.2 percent
as set forth in section 111, B,2, above. Meldrum's rating
of 78.8 percent thereby warrants an increase of 80 cents
per hour. His backpay shall be computed as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), plus in-
terest as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
Respondent having discriminatorily discharged Calvin,
I find it necessary to order Respondent to offer Calvin
immediate and full reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make him whole for
any loss of earnings and other benefits suffered because
of Respondent's discrimination against him. His loss of
earnings shall be computed as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977). It must also expunge from the personnel records
of Calvin the warnings issued to him from June through
November 1978.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3 2
The Respondent, Republic Die and Tool Company,
Wayne, Michigan, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Discharging, suspending, refusing to grant a gener-
al wage adjustment, or otherwise discriminating against
any employee in reprisal for filing a grievance and win-
ning an arbitration award under the collective-bargaining
agreement, and for engaging in other protected union or
concerted activities.
(b) Establishing a diemaker's wage rate at the contrac-
tual hourly minimum when completing his apprentice-
ship, in reprisal for such employee's militant union atti-
tude.
(c) Issuing written warnings to employees because of
their filing grievances and winning arbitration awards
under the collective-bargaining agreement.
(d) In any like or related manner violating the Section
7 rights of employees.
2 Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Donald R. Calvin immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make nim whole for the lost of earnings in the manner
set forth in the section of this Decision entitled "The
Remedy." 3 3
(b) Revoke and remove from Calvin's personnel file all
warning letters issued since June 3, 1978.
a" In the event no exceptions are filed, as provided by Sec. 102.46 of
the Rules and Regulations of the National l.abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
11 There is no need to order that Caivin be paid the general wage ad-
justment due him as of August 24, as this vwas paid to him by the Compa-
ny, as set forth in Section II1, C.6, above.
668
REPUBLIC DIE & T001. COMPANY
(c) Pay to Meldrum the merit increase to which he
was entitled from June 30, 1978, as set forth in the
Remedy.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Wayne, Michigan, copies of the
attached notice marked "Appendix. " :' 4 Copies of said
:- In the eent that this Order is enforced b a Judgmenl of the
United Sates Court of Appeals. the words in the notice reading "Polsted
by Order of the National L.abor Relation, Board" hall read "Posted P'ur-
suant to a Judgment (of the United Slates Court of Appeals I Fnforcring n
Order of the National l.abor Relations Board "
Region 7, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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 the notices are not altered, defaced, or cov-
ered 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 the Respondent has taken to comply herewith.
IT IS Al SO ORI)tRRHI) that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
669