Royal Aluminum Foundry, Inc.

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 102 (N.L.R.B. 1974)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Royal Aluminum Foundry, Inc. and International
Molders and Allied Workers Union,
AFL-CIO-CLC1
Royal Aluminum Foundry , Inc. and Local 230,
International Molders and Allied Workers Union,
AFL-CIO-CLC. Cases 38-CA-1666, 38-CA-1710,
and 38-RC-1313
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 31, 1973, Administrative Law Judge
Eugene F. Frey issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed
exceptions, a brief in support of his exceptions, and a
brief in partial support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions3 of the Administrative
Law Judge, as modified herein, and to adopt his
recommended Order.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union on the Union's presentation
of union authorization cards from a majority of the
employees while, at the same time, embarking on a
course of unlawful acts designed to destroy the
i We amend the caption of this proceeding to reflect the names of all
parties involved in the cases consolidated for hearing
2 We hereby correct apparently inadvertent errors in the Administrative
Law Judge' s Decision as to the number of employees in the bargaining unit
at the time the Union requested recognition and also as to the outcome of
the election On January 31, 1973, when Respondent received the Union's
written request for recognition, there were 14, and not 17, employees in the
unit (G C Exh 2) On that date the Union had authonzation cards from a
majority, or 12, of the employees
On April 2, 1973, when the election was conducted, the tally of ballots
showed 17 votes, including 6 challenged ballots The vote was 6 for, and 5
against , the Union. At the hearing in this proceeding the parties stipulated
that two of the challenged voters be included in, and two excluded from, the
bargaining unit The Administrative Law Judge found that the remaining
two challenged voters (the alleged discriminatees in this case ) had quit
Respondent's employment before the eligibility date. Thus the number of
eligible voters at the time of the election was 13 Because the election is
herein set aside on account of Respondent 's unlawful conduct, the Board
does not order a final tally of all votes The tally of the Regional Director
showed only that the vote was indecisive , and not lost by the Union as the
Administrative Law Judge found.
3 The General Counsel has excepted to the Administrative Law Judge's
failure to find a violation in Foreman Molloy's comment on piecework to
employee Ineichen . In view of the other 8(a)(1) violations that we do find,
Union's majority. He found unfair labor practices by
Respondent's coercive interrogation, threats of dis-
charge, threats of loss of wages, pay raises, overtime
work, insurance and other benefits, and promises of
wage increases and actual grant of wage raises. He
found that this conduct was engaged in to induce
employees to vote against the Union, that it
invalidated Respondent's claim of bona fide doubt as
to the Union's majority status, demonstrated a
refusal to bargain in good faith, and constituted a
violation of Section 8(a)(5). He therefore ordered,
under standards set out in N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, that Respondent be required
to bargain with the Union, upon request.
We adopt the Administrative Law Judge's findings
that the serious unfair labor practices-and particu-
larly the grant of a general wage increase to all
employees just before the election-were so perva-
sive and extensive that their "coercive effects cannot
be eliminated by the application of traditional
remedies, with the result that a fair and reliable
election cannot be had." Gissel, supra, 613-614. In
the circumstances of this case we consider the
employees' signed union authorizations as a more
reliable measure of the employees' representation
desires. We hold that, by refusing the Union's
bargaining request and engaging in the aforesaid
unfair labor practices, Respondent violated Section
8(a)(5) and (1) and that a bargaining order is
necessary to protect the majority selection of the
Union and otherwise to remedy the violations
committed.4
In adopting the Administrative Law Judge's
conclusions and recommended Order, however, we
do not adopt his comments respecting whether
Respondent had a "bona fide doubt" as to the
Union's majority or whether it refused to bargain "in
good faith." Such factors are not relevant to this
we hold that it is unnecessary to pass on the issue raised by the General
Counsel A further finding would be only cumulative and would not affect
our remedy
Member Kennedy would not adopt the findings of the Administrative
Law Judge that Respondent violated Sec 8(a)(I) of the Act when Foreman
Molloy reprimanded employee Ineichen for his failure to wear required
safety glasses and for his failure to follow the plant rule about notifying the
Company when absent from work. In his view , the evidence does not
establish that Respondent's enforcement of its safety and work rules was
discriminatorily motivated He notes that employee Ineichen previously had
received two other reprimands for quitting work early and for not following
instructions Finally, the employee voluntarily quit his employment on the
day after he received his last reprimand because he was late for work and
was also dissatisfied with the amount of his earnings.
Because a connection has not been shown between Foreman Molloy's
smashing of the radio, which Ineichen was playing loudly at work , and any
union activity. Member Kennedy would not find this incident to be
violative of the Act
4 Skaggs Drug Centers, Inc, 197 NLRB 1240, sec 3, enfd 84 LRRM
2384, 72 LC 9 13,951 (C.A 9), Tower Records, 182 NLRB 382, 385-387
While Chairman Miller agrees that a bargaining order is appropriate
herein, he would , for the reasons stated in his separate concurrence in
United Packing Company of Iowa, Inc., 187 NLRB 878 , 880-881 , predicate
this remedy solely on the extensive 8(a)(I) violations found herein.
208 NLRB No. 8
ROYAL ALUMINUM FOUNDRY, INC. 103
case. Rather the Board applies a standard, approved
by the United States Supreme Court in Gissel, supra,
to determine the appropriateness of a bargaining
order, which evaluates the unfair labor practices
committed. In this case we find that Respondent has
committed "serious unfair labor practices that
interfere with the election processes and tend to
preclude the holding of a fair election." Gissel, supra,
395 U.S. at 594.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent,
Royal Aluminum Foundry, Inc., Davenport, Iowa,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as herein modified:
In paragraphs 2(a) and 2(c) substitute the words
"Officer-in-Charge for Subregion 38" for the words
"Regional Director for Region 38."
IT IS FURTHER ORDERED that the petition in Case
38-RC-1313 be, and it hereby is, dismissed, and that
the election held in that case be, and it hereby is, set
aside, and all proceedings in that case be vacated.
DECISION
refused to recognize and bargain with said Union as the
statutory bargaining agent of employees in said unit, in
violation of Section 8(a)(5) of the Act.' The issues in Case
38-RC-1313 are whether or not one or more instances of
employer conduct cited above also tended to affect the
results of the election and warrant an order setting it
aside.2
The parties waived oral argument, but have filed written
briefs which have been carefully considered by me in
preparation of this Decision which was signed and released
by me on July 27, 1973, for distribution to all parties in the
usual course.3
Upon the entire record in the case, observation of
witnesses on the stand, and consideration of the briefs
filed, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS , AND STATUS OF THE
UNION
Respondent is an Iowa corporation with its office and
principal place of business located in Davenport, Iowa,
where it is in the business of making aluminum castings.
During the 12 months preceding issuance of the complaint,
Respondent in course of its business had a direct inflow
and outflow of goods, materials and finished products
valued in each case in excess of $50,000. Respondent
admits, and I find, that it is and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me, on due notice, on May 21, 22, and 23,
1973, at Rock Island, Illinois, with General Counsel and
Respondent, Royal Aluminum Foundry, Inc., participating
through counsel (the above-named Union made no
appearance) after pretrial proceedings in compliance with
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq. (herein called the Act). The issues in Cases
38-CA-1666 and 1710 are whether or not (1) Respondent
coerced employees by interrogations, threats of discharge
and other types of economic reprisal, granted a wage raise,
reprimanded some workers, gave the impression of
surveillance of employees' union or concerted activities,
and discharged two employees, all because of their
adherence to and activities on behalf of the above-named
Union, in violation of Section 8(a)(1) and (3) of the Act,
and (2) by the above and other conduct tried to undermine
and destroy the majority status achieved by the Union in
an appropriate unit of Respondent's employees, and
1 The issues arise on a consolidated complaint issued April 27, 1973, and
amended during trial, after Board investigation of charges filed by the
Union on February 9 and April 9, 1973, in the above cases, and answer of
Respondent admitting jurisdiction but denying the commission of any
unfair labor practices.
2 These issues arise on eight objections timely filed by the Union to
conduct affecting the election in the representation case. By order of May 1,
1973, the Regional Director for Region 13 ordered a formal hearing on said
objections, and on May 2, 1973, he consolidated the hearing on the
II. THE ALLEGED UNFAIR LABOR PRACTICES 4
A. The Union Campaign
Sometime in January 1973, the Union began an
organizing campaign at the plant of Respondent, in course
of which it procured signed authorization cards from 12
employees out of a workforce of about 17 by January 30.
On January 31, it filed a petition with the Board in Case
38-RC-1313 seeking an election and certification as
bargaining agent for all full-time and part-time production
and maintenance employees of Respondent excluding
managerial, supervisory, and clerical employees and
guards, as defined in the Act, which Respondent admits
and I find to be a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. The election was held on April 2, 1973. The Union
lost, 6 to 5 with 6 challenged ballots, and thereafter filed
objections to conduct affecting the results of the election
which are considered hereafter.
The record clearly shows that the 12 employees who
objections with the trial of the unfair labor practice complaints.
3 On June 22, 1973, counsel for General Counsel moved on notice to
correct the transcript in certain respects . The motion has been considered
and, there being no objection, the transcript is hereby corrected in the
particulars set forth in the motion . The motion paper is marked as G.C
Exh. 28 and will be considered as part of the file of original exhibits in the
case
4 All dates stated herein are in 1973 , unless otherwise noted.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed authorization cards on or before January 30 all read
their respective cards before they signed, so that they
understood they were thereby designating the Union as
their agent for collective bargaining. I consider these cards
reliable proof of majority status. As there were 17 eligible
voters in the unit aforesaid as of March 20, 1973, 1 find
that the Union on and after January 30 represented a
majority of employees in the unit aforesaid for purposes of
collective bargaining with Respondent and by virtue of
Section 9(a) of the Act has been and now is the exclusive
bargaining agent of all employees in said unit.
B. Respondent's Dealings with Union
On January 30, the Union sent Respondent the usual
letter claiming majority status in said unit, requesting a
meeting for purpose of negotiating a contract and also
offering to prove its majority status through a card check
by an impartial third party. When Plant Manager Sunny
Lee Fuller received the letter on January 31, she discussed
it with Respondent's president, Chester D. Knapp, and
gave it on February 5 to Richard Wells, attorney for
Respondent, together with a copy of the election petition
which she had received February 2. On February 5, Wells
replied to the Union's letter, accepting the suggestion of a
card check and asking for conference to work out details of
that procedure. He also advised that the plant had 13
workers qualified for union membership at the last pay
period before the Union's letter, and said he would send
the Union a list of them shortly. Thereafter the union agent
in charge of the campaign, Norma Redder, tried to contact
Wells by telephone, and finally wrote him a letter on
February 9, suggesting a local clergyman be chosen to
handle the card check, and advising that the Union had
asked the Board to return for this purpose all authorization
cards filed with the representation petition. She suggested a
meeting after February 14 to work out procedures.
Ridder had a phone talk with Wells on February 15, in
which she outlined the procedure for a card check,
involving examination of the signed cards by a third party
who would check names and signatures against a list
furnished by Respondent. Wells replied that Respondent
did not understand this "version" of a card check, having
assumed that it would involve only a company examina-
tion of signed cards before they were sent to the Board
before an election. Ridder replied that this would not take
place. Wells also said Respondent was irked because it had
not been advised of the union meeting at which the cards
were signed, and felt it should have had "representation" at
that meeting. Ridder said the employer had no right to
appear at the meeting, this would violate the Act.
Respondent never sent the Union the list of employees it
had promised.
C. Reaction of Respondent to the Union Campaign
The record shows, and I find that, the following officers
and agents of Respondent, all being supervisors within the
meaning of the Act, were involved in the events discussed
hereafter: Chester D. Knapp, president; Sunny Lee Fuller,
plant manager; Francis L. Molloy, foundry foreman; and
Ronald L. Shelangoski, foreman. Knapp became an owner
of Respondent about 15 years ago, and has been its sole
stockholder since about 1971 when he bought out the other
50-percent stockholder. He has also been owner and sole
proprietor for about 25 years of ABC Pattern Works, a
business which became a division of Respondent in April
1972. Years ago Knapp was a member and once president
of another labor organization, Patterns Makers League of
Amenca, which has represented employees of ABC Pattern
Works since its inception. When Knapp started that
business as a shop owner, he took a withdrawal card from
Pattern Makers League of Amenca, and has held that card
ever since , but has for about 25 years recognized and dealt
with that labor organization as the bargaining agent of
employees of ABC Pattern Works. There is no proof that
Knapp's relations with that labor organization have been
other than amicable.
It is clear, and I find, that Respondent knew of the union
campaign at least from date of receipt of the letters from
the Union and the Board noted above. The record also
shows that: President Knapp discussed the campaign with
foundry foreman Molloy on some date before February 2,
while Molloy was in a hospital recuperating from an
illness; however, Respondent did not engage in any formal
countercampaign against the Union by use of group talks
with or speeches to workers, or distribution of antiunion
literature.
1. The treatment of the Duvalls
The circumstances of the separation of employees James
and Shirley Duvall on February 2 will be considered first,
because Respondent's treatment of them on this occasion
is charged as the first and most serious indication of its
union animus and disregard of the basic purposes of the
Act, and thus it might color the attitude of Respondent in
its later conduct during the union campaign.
James Duvall worked for Respondent as a molder, on
and off, from 1963 to February 2, 1973. His last steady
employment was from October 1972 to the separation date.
His supervisor was Foundry Foreman Molloy. Shirley
Duvall was hired by Respondent February 14, 1972, on the
demand of her husband under circumstances set forth
hereafter, and worked until the separation date mainly as a
grinder under Foreman Shelangoski.
Both Duvalls were considered good workers in their
respective jobs, and each received various meat raises at
rather regular intervals during their employment. At the
separation date James Duvall was one of the highest paid
molders in the plant; from a starting rate of $2.75 an hour
he rose to $4.40 an hour at his separation.
The Duvalls were the prime movers in introducing and
soliciting for the Union in the plant. During discussions
about their wage system with an employee ofABC Pattern
Works and a member of the Union representing that craft,
the latter repeatedly advised them late in 1972 and on
January 7, 1973, that Respondent's employees needed a
union to further their interests. The Duvalls finally agreed
with him on the latter date and began soliciting the views
of Respondent's employees about a union. They personally
arranged for a meeting of the employees with an agent of
the Union "to set up this union" at a mobile home court
outside Rock Island on January 28. Ten or eleven
ROYAL ALUMINUM FOUNDRY, INC.
employees including the Duvalls attended the meeting, at
which the Union procured 11 signed authorization
cards. President Knapp admitted that by February 2 he
had learned about the meeting and that the Duvalls had
arranged it, and had discussed that fact with Molloy.
In March 1972 Shirley suffered a bum injury while at
work, which required a course of treatment by company
and other doctors. About 6 months later she experienced
another physical disability which required a long series of
examinations and treatments by insurance and other
doctors. She filed a claim on the first injury with Aetna
Casualty and Insurance Co. (herein called Aetna) the
workmen's compensation insurance carrier of Respondent,
which was paid in due course. On the second disability,
which was still bothering her at time of her separation,
Aetna refused to pay her medical bills, claiming it was an
illness, not a work-related injury. Shirley then filed a claim
for those bills with Occidental Insurance Co., the group
health and insurance carrier for Respondent. That carrier
refused the claim on the contention that her disability had
an occupational cause. The dispute between the two was
still pending when the Duvalls separated from Respondent
on February 2, 1973.
Both Duvalls had continuous discussions with company
officials as noted hereafter about the dispute between the
carriers and their failure to pay Shirley's doctor bills,
particularly those arising during her second illness, and the
apparent inability of various doctors to cure her ailment.
The last discussion was on February 1, 1973, when Shirley
came to Fuller's office, bleeding from the mouth, and
asked Fuller if she would "now believe that she was ill."
Fuller replied she had never doubted that Shirley was ill,
and that she could only advise Shirley to go back to Dr.
Sonderbrook, the company doctor who had first treated
her original injury. Fuller phoned the doctor for an
immediate appointment, and the doctor saw Shirley that
day.
About 8 a.m. on February 2, James Duvall left his work
to visit Fuller in her office, where he complained about the
lack of payment of his wife's medical bills, and the inability
of the doctors to help her. He also charged that Sonder-
brook had taken personal liberties with his wife on her last
visit to him. Fuller denied this, saying she had talked to the
doctor, and commented that if Shirley would stop going to
so many doctors, this would not occur, the insurance
company would have paid their bills. Duvall said he knew
how to "straighten it out," as he had been advised by a
friend to take the claim before the Iowa Industrial
Insurance Commission. Fuller, who had apparently been
reading what looked like a letter from the Union, replied
"If you are so damn smart, go ahead." He retorted that he
was "smart enough to get a union in here," and Fuller
commented that he was a "stupid bastard." By this time,
the discussion had become rather heated, with both raising
their voices. At this point, as Duvall started to walk out of
Fuller's office, Knapp came out his office which was about
10 feet away across the lobby and typists' area, and asked
what was going on. Duvall turned to Knapp and said "I
am done, I have had all of this I am going to take, I am not
going to try to talk to her any more, I will handle this in my
own way, I have had it with this, I quit." Knapp replied
105
"that's fine, but before you go, I would like to see you and
Shirley in my office." Duvall asked what it was about, and
Knapp replied "I do not want to talk about insurance or
anything else, but just about Jim and Shirley and Chet
Knapp."
Duvall went to the grinding room, told his wife that he
had been in the office about her insurance problem, and
that Knapp wanted to see them both. When they entered
Knapp's office, he closed the door and told them to sit
down, while he sat 'at first at his desk. He said he did not
want to talk about the insurance claim or anything else but
just "Shirley, Jim and Chet." He then reminded both that
he had always been good to them, that when Jim was in
prison he had written a letter to the prison authorities at
the request of Shirley, promising Jim a job when he was
released. He told them that the plant had lost money in
1971 and early 1972, but was just then beginning to show a
profit, and he had a big workload and he needed their help
on production in return for his past favors. He said "You
knowhowmuchbusiness wehavehere, and how busyweare;
and now I need your help you don't want to help me, you
want to quit, I don't think I deserve that kind of
treatment " Jim replied, "I don't give a damn, I am
leaving." Knapp said he thought he had the right to tell
them how he felt about that. He said he was not going to
have anyone come in and tell him what he could do in the
business. He referred to sloppy work done by the molders,
said it made him "sick to my stomach." He also said he
had a friend who had run a plant and told him he was "too
soft," that the boss had to be a "mean s-o-b" and put the
"fear of God" in his workers in order to be a good boss,
but "neither of you is going to make me into an s-o-b."
Shirley told Knapp there was nothing "personal" against
him when they brought the Union in, it was because of the
"raw deal" the workers got in the "other office," indicating
Fuller's office. Knapp commented "Maybe I got the wrong
one in that office, you two are so smart ." Shirley replied
"No, I am happy right where I am." Jim retorted "I am
smart enough to get a union in this plant." Knapp
commented "you must not be happy here, to do this
behind my back," and "I am sorry I ever laid eyes on you,"
suggesting "you better leave right now," adding that they
would be much happier if they left. Shirley repeated that
she was happy working there, and asked if she was fired.
Knapp said "No, but I want you people to leave right
now." Jim Duvall got up and, as he walked out, said he was
100 percent behind the Union, but was leaving. Shirley said
"Well, if Jim quits, I am quitting, too." Jim left to clean up.
As he walked through the foundry he threw his hat down
on the floor and said angrily "I quit" and went into the
shower room.
After Jim left the office, Shirley stayed behind and told
Knapp of workers' complaints about Fuller's management
of the plant, including elimination of the incentive system
and installation of the piecework rate, which meant less
money for the workers. Knapp indicated he was not
concerned about what Fuller did, and commented that
perhaps the Duvalls should be running that office. Shirley
said that was true, indicating she could not even get proper
medical care for her injuries. She brought up her unpaid
medical bills. Knapp said he could do nothing about them,
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he paid good premiums for insurance coverage, but he
told her to bring in the bills and he would forward them to
the insurance company to see if he could get them paid,
however he could not settle the bills for her. He reminded
her that she had said her lawyer had the bills, so he told her
to get copies to him. He also said the insurance company
had advised him the best way to get the claim settled was
to have her lawyer contact them.
When Shirley was complaining about the actions of
Fuller, both she and Knapp were talking rather angrily
with raised voices. As Shirley was complaining about the
"royal screwing" Fuller was giving the workers, the latter
burst into the office, pounded the desk, and said she was
"sick and tired of you running to all these doctors to prove
this was an industrial accident," that she wanted it stopped
that she "cannot even sleep at night." Shirley then told
Knapp that she was leaving, but was not quitting. As she
walked into the lobby with Knapp, Shirley repeatedly
asked, directly and by leading questions, if he was firing
her. He replied each time in effect "No, I did not tell you
that, if you want to work here, that is fine, I am not firing
you, you are quitting on your own, that is your own
business." Jim Duvall was already dressed and waiting for
his wife in the lobby, having just received his regular
paycheck from the company accountant, Daniel John-
ston.5 As the Duvalls walked out, Shirley or Jim repeated
that they had always been happy there working for Knapp,
that they had nothing "personal" against him, but things
had changed so much that it was impossible to work there
any longer, they "could not take it, the trouble here is in
that other office," so they were leaving. Knapp replied he
was sorry this had happened, "but it is a big world, you will
go down the road, you will get along." At the last, Shirley
told Knapp "the Union will hear about this."
Shirley walked back into the plant to get her personal
belongings. As she passed Fuller, she told her that Fuller
was the reason the workers tried to get a union, that Fuller
should not have cut out their incentive pay. Fuller
commented that Shirley "did not kill yourself" working
there. Shirley replied with a vulgar expression, called Fuller
a "big fat ass" who did not work hard, either. They had
further words in angry voices, and finally Fuller told
Shirley to get out of the plant.
In the meantime, Jim Duvall had driven his car to the
front of the plant, where Shirley met him. He went in and
asked Knapp for their final paychecks .6 Knapp replied that
the bookkeeper was not there to write them up, but they
would be mailed to the Duvalls (they actually received the
checks by mail a week later). Jim then went out to the car,
and Shirley came in to give Knapp a letter regarding her
insurance claim, and then left.
On Sunday night, February 4, Shirley telephoned
Foreman Molloy to ask if the Duvalls were supposed to
come to work Monday. Molloy, who had not yet returned
to regular work from a stay in a hospital, replied "not that I
know of, as far as I know, you quit, you will have to call
Chet." Shirley asked Molloy if he had said that he had "got
S Jim came in from the shower room to get his check , while Shirley was
still talking to Knapp in his office . When asking Johnston for his paycheck,
the latter asked if Jim wanted Shirley's check. Duvall replied , "No, let
Shirley get her own ." He then waited until his wife and Knapp came out of
rid of the two biggest bellyachers when Jim and I walked
out." He admitted that he said that, adding "that is all you
have been doing for the past 6 weeks, bitching."
Shortly after, Shirley telephoned Knapp at his home, and
asked if the Duvalls were supposed to come back to work
Monday. Knapp replied "Why, no, there would, be no
reason for you to come in Monday, you people quit."
Shirley denied this several times, and Knapp kept insisting
they had quit. Knapp added "I am much happier, and the
other office is, too, without you people" and "you will both
be happier." Shirley said she could not afford to be idle,
needed some income, and Knapp replied that if she filed a
claim for unemployment compensation, "since you quit, I
won't contest it, I will just let it go through." He also
commented that the Duvalls had "too much spunk to draw
unemployment compensation," they would both get other
jobs. Shirley asked about her insurance claim, and Knapp
told her to send in the bills to him, and he would do what
he could to get them paid.
The Duvalls sought reinstatement by anoint letter sent to
Knapp and Fuller on April 25, and received by Respon-
dent April 27. They repeated the request by similar letter
mailed May 10 and received by Respondent May 15.
Respondent has never answered the letters or offered them
reinstatement in any way.
The above facts are found from a composite of credible
testimony of both Duvalls, Knapp, Fuller, Shelangoski,
Doris Holley, and Daniel Johnston. Testimony of any of
these witnesses in conflict therewith is not credited, for
reasons noted below. The content of the conversations of
the Duvalls with Knapp on February 2 rests mainly on a
careful appraisal of sharply conflicting testimony of the
Duvalls and Knapp. Knapp's long membership (though
inactive) in another labor organization, and his long
amicable dealings as an employer with that organization,
would tend to support his flat denials of any mention of the
Union, or unions in general, in the terms stated by the
Duvalls. It is apparent from testimony of the three that
Knapp made it clear when he called in the Duvalls that he
wanted to talk only about the personal relations of the
three and nothing else. Consistent with this his first
remarks in effect reproached them for ingratitude for past
favors, since Jim was leaving him "in the lurch," so to
speak, when he needed all the good workers he could get.
These remarks, admitted in part by the Duvalls, impel the
belief that his only purpose in the final talk was to indicate
his displeasure with their ingratitude, not to talk about
their known union activity or the insurance claim. That
this was the whole tenor of his remarks is also shown by
record proof showing Knapp's long sufferance of Jim's
erratic employment history, Respondent's endurance of
Shirley's illnesses, and her continued complaints about
trouble with her insurance claims, and Knapp's generous
treatment of both notwithstanding the fact that Jim had
been convicted of two felonies during his employment, and
lost a year from the plant while serving a sentence in
prison, Knapp readily took him back after he was released,
Knapp's office.
6 Respondent's practice is to pay workers at noon on Fridays , but one
week behind.
ROYAL ALUMINUM FOUNDRY, INC. 107
preparing the way with the written promise of a job at the
request of his wife. On his first quit in November 1971,
Respondent made special efforts to get him back, offering
him a raise and no loss of seniority or other benefits, and
even agreeing to hire his wife and two other relatives.
When Jim again quit in August 1972, mainly because of his
disgust over the aggravation caused by his wife's insurance
problem, he came back at the request of Fuller after
Molloy promised him a raise, only because his wife was
still working for Respondent and he still had hopes they
could get the insurance claim straightened out.7 Through-
out this period and right up to February 1, 1973, both
Duvalls were continually complaining to Knapp and other
company officials about her illness, which came on about 6
months after the work injury, and about her inability to get
doctor bills paid. When she turned in medical bills, as
received, to Knapp or other company officials, they were
promptly forwarded to the insurance carriers. She also sent
some bills direct to the carrier or through her lawyer. She
was out a long while for the second illness late in 1972, and
intermittently up to February 2, 1973. In December 1972,
and early January 1973, she told Knapp she felt she ought
to quit because of these problems, but he tried to comfort
her and persuaded her to stay on. In some of their talks
about the doctor bills, Knapp offered to use his personal
influence to try to get them paid, but was apparently not
successful because of the dispute between the carriers, Jim
likewise threatened to quit early in January, indicating he
might move to another state. Again, Knapp talked him out
of it. Hence, when Jim vehemently indicated he was fed up
with the insurance problem, and was quitting, after his
angry February 2 argument with Fuller about it, it is a fair
inference, and not unnatural, that Knapp, also, was fed up
with trying to placate and humor the Duvalls and readily
accepted at face value Jim's announcement of quitting, as
well as Shirley's similar announcement, since he knew they
were a close husband-wife team that- usually acted
together. Although his remarks about the business and
their ingratitude also indicated he knew of their union
activity and that he would not allow anyone else
(inferentially a union) to run his business, despite their
gripes about Fuller, he emphasized that he would never let
any action of theirs or other employees turn him into an
employer "s-o-b." His final remarks that indicated disgust
with the Duvalls, suggesting they leave at once, as they
were not happy there, are also consistent with their
voluntary quit remarks and his acceptance of them.
I do not credit testimony of the Duvalls which portrays
Knapp as disparaging unions from the outset of the final
conference in a loud, coarse, and threatening manner, with
much walking about, shouting and armwaving, charging
the Duvalls with ingratitude in bringing in the Union
behind his back, and threatening to get rid of them and
4 I find the facts as to his past employment record from credited
testimony of Duvall and Knapp, plus company personnel records.
B On the stand Knapp impressed me as a man of rather mild manner and
temperate speech, who tried to recall events as best he could, and did not
hesitate to admit when he could not recall or give a specific reason for his
conduct or lack of it. In this respect, he appears in sharp contrast to
Foreman Molloy, whose manner of speech will be noted hereafter
Knapp's demeanor is also in sharp contrast with that of Shirley Duvall,
who impressed me as a palpably partisan witness, telling a carefully
rehearsed story, particularly about her last conference with Knapp, and who
another employee who brought in the Union, or all
employees who signed cards (as Shirley put it). Coming
from a husband-wife team who were the prime union
organizers, this testimony is obviously partisan and hence
suspect. I find it hard to believe that Knapp, who appeared
to be 'a soft-spoken and mild-mannered man, with a long
union background, both personally and in dealing with
another union, would start the discussion with such
virulent and blatantly discriminatory remarks, and then
calm down and listen to a long tirade from Shirley Duvall
about her complaints, after her husband had left in a huff,
indicating he was quitting. James Duvall indicated Knapp
raised his voice only a bit above normal during his
remarks, and does not support his wife on the angry
gesticulations. Her version of Knapp's conduct was
obviously highly exaggerated in an effort to make him
appear from the outset as an angry, vengeful employer,
indifferent to employee welfare, and bitterly hostile to
unions, which is at war with her later insistence that she
was happy there (despite her long-continued insurance
problem, past threats to quit, and repeated dissatisfaction
with Superintendent Fuller, another woman) and did not
want to leave but would have to be fired. Hence, I credit
Knapp's denials of any reference to the Union or their
union activity, except to the limited extent found above,
which is in itself far from substantial indication of
discriminatory motive. Shirley's credibility is also weak-
ened by her constant attempt to couch Knapp's alleged
antiunion remarks in vulgar, coarse terms accompanied
with cursing, which appears far out of character in my
appraisal of Knapp and his general demeanor .8 Finally,
considering the close husband-wife relationship of the
Duvalls and the evidence of their past unity of interest and
action in connection with their employment, I am
convinced that, when Jim quit in a huff, Shirley instinctive-
ly followed suit and did the same but then after he walked
out, immediately tried to give the appearance of cancelling
her voluntary separation by refusing to leave the office,
protesting repeatedly that she was not quitting, that she
was happy in the plant, and all their troubles stemmed
from Fuller, not Knapp, and trying to entice Knapp into
an admission that she was fired, not quitting, all of which
convinces me that she palpably was trying to build a
spurious picture of a discriminatory discharge. I also
consider Shirley's February 4 request and their two later
written requests for recall as part of the same buildup
created for presentation to the Board, particularly since
Shirley admitted that right after the February 2 conference
she quickly procured a job with another local manufactur-
er by one phone call,9 and started work there on February
5. Shirley also testified she had been rejecting repeated
overtures from Sears to work for it for some time, only
appeared as an aggressive person , quick to flare up in anger and to lapse
into coarse and vulgar speech . The last trait was well illustrated by her
quick, loud, and angry flareups during testimony, one in protest against
some claimed facial expression by Knapp while she was testifying, and
another when a question put to her described her as a union organizer,
which she clearly was. I also noted her angry charge to Knapp that Fuller
was giving the workers a "royal screwing," and her later angry argument
with Fuller in the plant , when she cursed and used vulgar expressions.
9 Sears Manufacturing Company, herein called Sears.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because she did not want to leave Respondent until
released by her doctor and her medical bills were paid.io
This clearly indicates that, but for the insurance problems
arising from her injury and later illness, she was ready to
go to Sears, which is consistent with a sudden voluntary
quit on February 2, when her husband angrily quit because
he could not get action on her claim by further complaints
to Respondent. In this connection, Caroline Crews,
personnel director of Sears, testified credibly that Shirley
had inquired in January about work at Sears, and that
when Shirley reported at Sears on February 5, she asked
Shirley what occurred at Respondent, and Shirley replied
"when we went in to pick up our checks, Chet said he was
tired of our bitching all the time, wished we would leave, so
I quit," and that she was no longer happy working for
Respondent. This not only gives the lie to her protestations
of happiness to Knapp, but also is consistent with
testimony of Molloy that he told an employee on February
2 that he had "got rid of the 2 biggest bellyachers" when
the Duvalls walked out. He also admitted this to Shirley on
February 4. I conclude from these circumstances that
Shirley had long been ready to quit Respondent for Sears,
but held off only in hopes she could persuade Respondent
to do something to have her medical bills settled, but when
they could not work that out, she quit promptly when Jim
did and went over to Sears.ii
General Counsel argues, in part on the basis of questions
asked of Knapp by the court, and his answers, that
discriminatory discharge is indicated by Knapp's failure to
keep two satisfactory and needed workers on the job,
which he could have done by accepting Shirley's offer to
stay at work on February 2, or the later request of both for
reinstatement. There is some force to this argument, for the
record shows that on February 2, Respondent was
shorthanded in both molders and grinders, and after both
Duvalls quit, it was even worse off. This shortage
continued to the trial, and Respondent hired one new
grinder in May. Knapp's only excuse for not taking back
Jim was his feeling that he had no "future" as an employee
because of his "consistency of quits," ignoring the special
efforts of management to get him back after his two prior
quits, and the facts that when both Duvalls indicated
(before the union activity began) a desire to quit, Knapp
took pains to talk them out of it; the contrasting fact is
that, when both quit in a huff after their union activity was
known, Knapp made no attempt to get them back, but
instead insisted on relying on their instant voluntary quit.
However, this circumstance, while suspicious, has little
significance on the facts here, because the Board has held
that, while an employer may desire and welcome the
10 It is not clear from her testimony what type of "release" from a doctor
she was waiting for if it meant the usual release from convalescence to go
back to work, she must have secured that from some doctor long before, for
company records show she returned to work from her last absence for
illness about September 18, 1972, and that she had been at work
intermittently since that time If she meant a release in the form of paid
medical bills, both Duvalls knew from a letter they received in January
1973, that bills would probably not be paid until the two insurance
companies settled on which should pay bills of her last illness Although
Shirley hired a lawyer to handle this about that time, there is no proof that
he took any action for her to get the dispute settled and the bills paid Her
excuse in this respect is invalid, for it is clear she could have paid the bills
herself, and then quit to go to Sears, long before February 2 1 believe she
chance to get rid of prominent union adherents, he does
not violate the Act when they give him just cause to
separate them, and he discharges them for that reason.2
The same reasoning applies all the more where the
employees separate themselves voluntarily, and the em-
ployer merely accepts and relies on their action.
The timing of the final separation conference immediate-
ly after Respondent had received the Union's demand and
notice of the filing of its petition for an election, in light of
Respondent's admitted knowledge of the prominence of
the Duvalls in the Union's campaign, and the proof of
union animus inherent in the ensuing conduct of Respon-
dent, particularly Molloy, some of which is found hereafter
to be violative of the Act, would present a strong case of
discriminatory discharge, if the Duvalls' version of
Knapp's remarks and conduct on February 2 is accepted.
As I have discredited their version, the other circumstances
of that conference in light of the Duvalls' past employment
history including their continued irritation at Shirley's
medical and insurance problems, and growing desire to
leave Respondent in order to get rid of those problems,
present countervailing facts which strongly rebut the facts
and circumstances relied on by the General Counsel. In
reaching this conclusion, I have carefully considered
various other aspects of remarks and conduct of both the
Duvalls and Knapp which are susceptible of inferences
supporting a finding of discriminatory discharge, but those
circumstances are equally susceptible of inferences indicat-
ing that the Duvalls finally quit in a huff, as a team, after
Jim's final but unproductive argument with Fuller about
the insurance claim, and that Shirley at least was prepared
to do so, because she already had an assurance of ajob at
Sears. In light of these circumstances, her flagrant attempts
to depict Knapp as a union-busting, foul-mouthed employ-
er, with some testimonial help from her husband, and to
show that she was happy under him and wanted her job
back (even though her insurance claim was stalemated
between two insurance carriers) are so at war with credible
facts found above as to make her story incredible.
In sum, the issue is close and in substantial doubt.
Hence, to doubt is to deny, and I conclude that the
pertinent facts adduced by Respondent to show that the
Duvalls voluntarily quit their jobs are adequate to rebut
the proofs to the contrary adduced by General Counsel,
and that General Counsel has not sustained the ultimate
burden of proof by substantial evidence in the record as a
whole that they were discharged because of their union
activity. I shall recommend dismissal of the consolidated
complaint insofar as it charges a discriminatory discharge
of and refusal to reinstate the Duvalls.
stayed on with Respondent, in hopes that Knapp could use influence with
the insurance carriers to settle the dispute Even after she quit, she tried to
enlist Knapp's aid, getting his promise to forward any medical bills she sent
in to the insurance companies
ii i have carefully considered other peripheral facts cited by General
Counsel to support a finding of discharge, such as the lower rate of pay
Shirley received at Sears, but find them all less persuasive of a finding of
discharge, than the facts and circumstances noted above which strongly
indicate a voluntary quit
12 PG Berland Paint City, inc, 199 NLRB 927, Klate Holt Co, 161
NLRB 1606, 1612, Republic Cotton Mills, 101 NLRB 1475, and cases cited
in fn 13
ROYAL ALUMINUM FOUNDRY, INC 109
2. Other conduct of Respondent in the union
campaign
Donald C..Wellendorf, an elderly grinding room employ-
ee who had known Knapp for about 30 years, testified that
on an unidentified date "about the first week in February"
Knapp came to him in the grinding room and said there
would be no more odd jobs on Saturdays if the Union
came into the plant; Knapp said nothing more, and
Wellendorf did not reply. No other workers heard this
remark, and there is no proof that Wellendorf passed this
remark on to other workers. Although Wellendorf worked
at times on Saturdays at his regular jobs when the whole
grinder force worked that day, he had never done any odd
jobs, which were mostly cleanup duties in various parts of
the plant and performed by one or more of four part-time
workers, plus an occasional full-time employee. Knapp
flatly denied any such remark to Wellendorf or any other
employee, and testified that after the period stated by
Wellendorf the odd-job schedule was never changed or
curtailed. It is clear from the demeanor of Wellendorf on
the stand, and uncontradicted testimony of Knapp, that
Wellendorf is quite hard of hearing, for which reason
Knapp has tried to avoid conversations with the grinder,
who usually did most of the talking when they occasionally
did talk together in the noisy grinding room. Since
Wellendorf did no odd jobs himself, and there is no proof
that he was an active solicitor for the Union like James and
Shirley Duvall, as noted hereafter, it is hard to conceive
why Knapp would make this single isolated remark to
Wellendorf or to conclude that it carried coercive connota-
tions, if in fact made. I consider it much more likely either
that it was not made or that Wellendorf distorted or
misconstrued something else Knapp may have said, due to
his poor hearing. I also consider that Knapp has long been
a union man, and hence unlikely to make a remark
indicative of union animus, even though Wellendorf tries
to place the remark shortly after Respondent received the
Union's demand. In all the circumstances, I conclude that
General Counsel has not sustained the burden of credible
proof that Knapp made the remark as charged by
Wellendorf. I will recommend dismissal of paragraph 5(b)
of the consolidated complaint insofar as it deals with this
charge.
On February 5, Foreman Molloy approached Molder
Armando Sanchez at work and asked him how he felt
about the Union. Sanchez replied that he liked it, as he had
worked under a union before. Molloy said that if the
Union came in, there would not be any more overtime, but
workers would get only 40 hours of work a week, and that
Respondent would not pay for the workers' insurance, so
that "with the Union in, you won't come out ahead." At
that time Sanchez was getting about 5-8 hours of overtime
work per week, which he was given on his application,
when such work was scheduled. On one occasion about a
month before the election (apparently early in March),
Molloy asked Sanchez at his work place how he was going
to vote in the election. Sanchez replied that he did not
know, and Molloy commented "I wish I knew." Shortly
before the election Molloy accosted Sanchez in the plant
and said he would give him a 14-cent an hour raise, which
would bring him to $3.80 per hour, "if you will forget the
Union." Sanchez said he would think about it.i3
I find that the interrogations about Sanchez' sympathies
toward the Union, the threat of depravation of overtime
work and paid insurance if the Union won, and the offer of
a raise to forget the Union, were all coercive conduct by a
supervisor, and that Respondent thereby violated Section
8(a)(1) of the Act.14
I find from credible testimony of Molder John Mickle-
wright and Molloy, that about a week before March 17,
1973, Molloy said to Micklewright at his workplace "I wish
you had the Duvalls and the Union with my foot up your
ass." Micklewright made some reply indicating Fuller was
"screwing" Molloy and Foreman Shelangoski, but "she is
not screwing me." At the time, Molloy was recently out of
the hospital, and was under pressure from management to
try to increase the production, and was working overtime
to try to achieve this. He had found Micklewright running
a lot of scrap, which affected his production, and had also
noted that Micklewright was frequently absent , at times
without reporting in upon absence. Molloy, Sanchez, and
Knapp testified that Molloy was normally a blunt, plain
spoken, excitable man, who tended to become irritable and
"fly off the handle" when he was under pressure. While the
quoted remark indicates Molloy's hostility to the Union
and resentment toward the Duvalls as former employees, I
consider it an equivocal comment as regards Micklewright
in the particular circumstances involving Micklewright and
his unsatisfactory work and attendance habits, so that it is
more likely that Molloy made it in a burst of irritability
with Micklewnght's work, in an attempt to push him to
produce more, than that it was calculated to have a
coercive effect. This remark is not specified in the
consolidated complaint. I find no violation of the Act in
Molloy's remark.
About mid-February, molder-trainee Charles Ineichen
asked Molloy in the foundry if the incentive-pay system
was still in operation. Molloy replied that it was "out, they
are working on piecework over there, and I will tell you
one thing, that piecework will be here a hell of a lot sooner
than that union of yours." About a week later, Molloy
stopped Ineichen in the plant and said "I don't know if you
are for the Union," Ineichen interrupted to say he was, and
Molloy went on "I will tell you one thing, if that union
comes in, you will not be making as much money as you
are now" He also said Chet (meaning Knapp) "once told
me he would burn this place down before he would ever
have a union come in." He also said Knapp was "not about
to pay 3/4 of your insurance." He finally told Ineichen "if
the Union gets in , do not expect any $180 advances like
you have been getting ." Ineichen had received several such
13 I find the above facts on credited testimony of Sanchez Molloy
admitted the February and March interrogations , and could not recall, but
did not deny, the remarks about deprivation of overtime and paid
insurance Hence , I do not credit his denial of the promise of the 14-cent
raise for dropping the Union.
14 Although the two interrogations by Molloy might appear to be
isolated instances , I must consider them as violative of the Act, in the
context of the other clearly coercive threats and promises, particularly since
the questions were not attended by the safeguards against coercion
promulgated by the Board in Struksnes Construction Co, 165 NLRB 1062,
1063
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advances against his salary before the union campaign
started.15 I find that the threats of loss of earnings,
insurance benefits, the right to money advances, and that
the plant would be "burned down," if the Union came in,
were coercive and that Respondent thereby violated
Section 8(a)(1) of the Act.16 This is the only persuasive
inference here, even giving full weight to the fact that
Molloy was excitable, tended to be blunt-spoken, irritable,
and "fly off the handle" in dealing with and talking to
workers, at times giving irritable orders like "punch out"
which he never carried through. Talk of this type can still
be coercive if the employees, such as Sanchez and others,
did not know when Molloy was serious in his remarks or
just "blowing off steam," so to speak.
Molder Nimroy Anderson testified that on February 7,
1973, Molloy approached him, said he did not know how
Anderson felt about the Union, but he would give him a
25-cent raise "if it did not go through." Molloy flatly
denied making the above remark, and testified that at an
unidentified date he did tell Anderson he had a 25-cent
raise coming, because he had been an apprentice molder
for about a year, so was due for a raise, but that it could
not be paid then because the Union would call it a bribe. I
am inclined to credit the affirmative testimony of both, but
to discredit Molloy's flat denial of the promise. Fuller
admitted that Molloy had authority effectively to recom-
mend raises, and company records show that Anderson
actually received a 25-cent raise in the week ending March
25, which was 15 weeks after his last prior raise. Anderson
had received six prior raises, making a total of seven in the
17 months he had worked at the plant. These were clearly
individual merit raises, since that was admittedly Respon-
dent's only raise policy. I am satisfied that Molloy must
have known the seventh raise was due shortly, so used that
knowledge as the occasion for the coercive promise of the
raise , as found above. Molloy' s statement at another time
that the raise had to be held up because of possible charges
by the Union was also coercive. I find Respondent violated
Section 8(a)(1) of the Act by both remarks.17
The Change of Discipline Policy
On an unidentified date in February , Ineichen was
running molds on a small machine . His quota was 180
molds per shift. He produced 190 molds by 3 p.m., a half
hour before his usual quitting time, so stopped his machine
and went to the shower room to wash up. Molloy followed
him in, asked why he was there, and told him to get back to
work. Ineichen asked what the standard of production was
for his job. Molloy said 180 molds. Ineichen said he had
done 190. Molloy then said "we will put the standard up to
200 then," and told him to go back to work. Ineichen
returned to his machine, but only began to clean up around
it. Molloy yelled at him "I told you to put up some molds,
if you are not going to, just get out the door." Ineichen
produced one more mold, stopped work about 3:20, waited
Is These conversations are found from credited testimony of Ineichen.
Molloy admitted portions of all of them, could no{ recall other portions, and
denied only the remarks about the advent of piecework in Ineichen's
department , and the threat to "burn the place down ." Considering Molloy's
blunt and aggressive manner of speech I consider it more likely than not
that he made all the above remarks.
until 3:30 p.m., then checked out. He was not discharged
but quit later. At this time, molders were paid by the hour.
Ineichen's standard was not increased to 200 molds before
he quit.
On March 6 Ineichen received a written reprimand from
Molloy for his failure to report in when absent on the 5th.
On March 7 Molloy gave him another written reprimand
for failure to wear required safety glasses at work that day.
He had his glasses off while changing a pattern on his
machine. When Molloy gave him the second reprimand, he
told him he should keep it, saying "you get 3 of these, and
you are fired." On March 8, Ineichen was late for work, so
quit to get another job. Before these reprimands, Ineichen
had once received a 3-day suspension for failure to report
in when absent, which violated a rule posted on the
bulletin board stating such requirement.18
General Counsel argues that issuance of two quick
reprimands under a new discipline policy, with threat of
discharge if he got a third, were a deliberate institution of
more stringent work rules and discipline policy plus threat
of discharge thereunder during the union campaign which
violated the Act and was designed to coerce employees to
refrain from supporting the Union in the election.
Respondent replies that the new reprimand system was
justified by good business reasons plus requirements of
Federal safety laws and regulations, and that it was applied
to Ineichen solely because of his poor work habits and
antagonistic attitude toward supervision.
The position of General Counsel is supported by
testimony of James Duvall and John Micklewright to the
effect that: molders usually stopped work about 3:15 p.m.,
and spent the last 15 minutes of the shift in washing up
patterns, cleaning up sand spilled around the small
machines, and then washing up personally prior to going
home, all without criticism from management. Fuller
admitted that cleanup of sand by molders at machines is
normal practice. However, Micklewright also admitted that
when he made his standard as much as 30 minutes before
end of shift, he would continue to mold or find other work
to do, as well as cleaning patterns and around his machine,
thus doing some necessary work until end of the shift. In
contrast, Ineichen's testimony indicated he did no more
work of any kind after 3 p.m., on the day on question, until
he was ordered back to work by Molloy. In addition,
Molloy testified without contradiction that he had once
previously reprimanded Ineichen orally for spending about
30 minutes to wash his patterns, a job that should take no
more than 5 minutes.
Knapp testified credibly that when Ineichen quit in
March, he told Knapp in the exit interview that his failure
to earn more money, his stated reason for quitting, was due
in part to an intentional slowdown in his work. Further,
Ineichen admits at least one argument with Molloy on an
unidentified date before he quit, about the way he molded,
with Molloy insisting that he mold the way he had trained
him to, not the way his uncle, John Micklewright, had
16 1 find no violation of the Act in Molloy' s equivocal comment that the
piecework system would be "here" sooner than the Union.
17 Great Plains Steel Corp, 183 NLRB 968.
18 These facts are found from credited testimony of Ineichen and
Molloy
ROYAL ALUMINUM FOUNDRY, INC.
shown him. The argument arose when Ineichen refused to
follow orders on this, although Molloy had previously
shown him how he wanted the molding done. In testifying
on this point, Ineichen was evasive and argumentative in
his answers, which supports Molloy's testimony that he
had trouble getting him to obey orders with arguments.
Molloy's credibility on this point is also enhanced by his
admission that Ineichen was a good worker when he
worked, but that he often did not keep busy at work during
his whole shift, which caused Molloy to crack down on him
when necessary. In this period, as found above, Molloy
was quite irritable because of the pressure from manage-
ment to get out the production. In light of these
circumstances, I am convinced that Molloy's direction to
Ineichen to "get out the door" if he could not obey orders
and keep working was prompted solely by Ineichen's
failure to keep busy until his shift ended, and not
motivated in any way by the union campaign or Ineichen's
possible adherence to the Union. In this connection, I note
that in their argument on this occasion there was no
mention of the Union in contrast to the instances of
coercion of Ineichen found above. I find no violation of
the Act in Molloy's remarks to Ineichen on this occasion.
On the change of disciplinary policy, testimony of James
Duvall, Fuller, and Molloy shows that: Prior to early
February 1973, Respondent had a practice of giving
workers 3-day suspensions without pay, for infractions of
work rules, particularly failure to wear required safety
equipment and failure to report in when absent from work.
However, the practice had not been enforced strictly, with
supervisors giving oral warnings and only rarely a 3-day
suspension. Respondent had been experiencing trouble in
keeping a full workforce for several years, and discovered
late in 1972 that workers were taking advantage of lax
enforcement of the absent reporting rule, increasing the
absentee problem and shortage of help, and that issuance
of 3-day suspensions worsened that shortage. To cut down
the absentee problem and violation of the reporting rule,
the new practice of issuance of two written reprimands for
work rule infractions, plus corrective discipline as drastic
as discharge after a third reprimand, was instituted. After it
went into effect, at least three molders, including Ineichen,
and one grinder got written warnings for violations of the
safety equipment rule; Ineichen's first reprimand was for
failure to report in when absent, as found above; one
molder, Tom Micklewright got his safety reprimand on
April 6; however, he did not get a reprimand for safety
violation on March 7, although also failing to wear his
glasses. The suspicious aspect of the new policy is that
Respondent admittedly never explained it to employees in
any meeting, nor was written notice of it posted in the
plant. Indeed, the safety equipment reprimand given to
Ineichen on March 7 had a notation on it addressed to
Molloy "This is a first notice on this rule. Please explain to
employees," which is some indication that the safety
equipment rule was not well known and should be
explained to workers. This lack of notice of change of
discipline policy affords support for the inference that the
18 There is no charge that Ineichen's voluntary quit on March 8 because
he feared a discharge on a third reprimand when he knew he would be late
for work that day, amounted to a constructive discharge.
Ill
sudden imposition of written reprimands on successive
days upon Ineichen, plus the oral warning of discharge if
he got a third (although according to Fuller discharge was
not the automatic discipline for a third) was motivated, at
least in part, by a desire to enforce work rules by more
rigid discipline in retaliation for employees' adherence to
the Union, and also to influence their vote in the coming
election. In addition, the failure to give a similar reprimand
to Tom Micklewright on March 7 is some indication that
Molloy was deliberately "bearing down" on Ineichen who
had already been subjected to various coercive threats of
reprisal after Molloy learned he was a union adherent.
Considering that Molloy was the one supervisor notably
hostile to the Union and prominently engaging in antiun-
ion and coercive conduct before the election, as found
above, I am inclined to believe, and therefore find, that his
abrupt enforcement of the new discipline policy against
Ineichen, without prior explanation of it to him or the
workforce in general , was motivated, in part at least, by
antiunion considerations and was well calculated to coerce
and restrain employees in exercise of their rights under the
Act, including the right of free choice of bargaining agent.
I find that under the above circumstances, issuance of two
reprimands in quick succession, with abrupt warning of
discharge if he got a third, was coercion in violation of
Section 8(a)(1) of the Act.19
On an unidentified date in February, Molloy found
Ineichen playing a radio loudly at his workplace. He came
over, picked it up, and smashed it on the floor without any
remarks to Ineichen. The radio had belonged to Molloy,
but Ineichen found it, abandoned and apparently inopera-
tive, in the plant before the union campaign started,
repaired it, and then played it almost daily for several
months while running his molder. Molloy claims Ineichen
was playing it loudly, and appeared to spend more time
tuning and tinkering with it than on his molder, so Molloy
got mad and smashed it. Molloy could not explain why he
just did not take it away, or tell Ineichen to stop playing
with it and run his molder. In light of Molloy's animus
toward the Union and Ineichen for his adherence to it, and
his other coercive harassment of Ineichen found above, I
can only conclude that this was another instance of
Molloy's impulsive and coercive reprisal against Ineichen
for his union adherence. I find that by this conduct
Respondent further violated Section 8(a)(1) of the Act.
When Francis H. Burton was hired as a grinder late in
February 1973, he was told by Foreman Shelangoski that
he would get raises if he did good work. After working
about 30 days, Burton asked for a raise . Shelangoski said
he was a good worker, and he would see what he could do
about the raise. A few days later he told Burton he had
requested a 10-cent raise for him. A few days after that he
told Burton he could not get the raise because the Union
would call it a bribe. Burton argued that Respondent could
not bribe him for 10 cents an hour. Shelangoski said there
was nothing he could do about it at that time . After the
Union lost the election, Burton did get a 10-cent raise.20 It
is clear that Burton would have received the raise but for
20 These facts are found from credited testimony of Burton and
Shelangoski
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the advent of the Union and Respondent's fear that grant
of it would be charged as a violation of the Act. I find that
withholding of the raise for such reason is coercive and a
violation of Section 8(a)(1) of the Act.21
The record shows that Respondent gave employees in
the appropriate unit a 10-cent an hour raise across-the-
board effective March 19, and actually paid March 30,22 3
days before the election. It is clear that this was an
unusual, one-time general raise, because the record shows
that Respondent had never given such a raise before, and
its normal policy was to give only individual merit raises.
To justify the raise, Fuller testified that it was given to help
prevent further attrition in its workforce, since the foundry
was already short three molders at the time, with only three
working, one being a trainee, and that many employees
had been asking for raises, and one had quit for failure to
get one. It was most important to cut down the attrition
rate, because Respondent had a backlog of about $100,000
in orders, and the existing workforce was hard put to it to
handle the, load. Although there is no specific proof from
Respondent as to which or how many workers had asked
for raises in the past, and it is clear from testimony of
company officials that a shortage of workers had been
plaguing it for about 2 years, Ineichen did testify that
Molloy told him in late February 1973, when he asked
questions about the incentive-pay system, that Molloy had
recommended all foundry workers for a 40-cent raise
before the Union came on the scene. Molloy testified that
Ineichen had several times asked him for a raise. In
addition, Burton asked for a raise in March, as found
above, and James Duvall testified that he asked for one in
January. It is inferable from these facts that Molloy would
not have answered Ineichen as he did if there had not been
rather general requests for raises before that. These facts
tend to support Respondent's defense. On the other hand,
the withholding of Burton's requested raise because of the
appearance of the Union, and grant thereof after it lost the
election, Molloy's coercive promise of raises to Sanchez
and Anderson if they did not support the Union, and
Molloy's explanation to Anderson that he was due for a
raise but could not get it then because it would be called a
bribe, followed by actual grant of it March 25, indicate
strongly that Respondent was using the grant or withhold-
ing of individual raises to persuade employees to vote
against the Union. In this atmosphere of financial
coercion, I must conclude that the one-time unannounced
grant of a small general raise just before the election was
an action well calculated to coerce the whole workforce on
a broad scale in the exercise of its vote in the election. I
find that this raise was coercive and violated Section
8(a)(1) of the Act.23
The Refusal To Bargain
It is clear from the sequence of events found above that
21 Great Plains Steel Corp, supra
22 Sanchez actually got an l l-cent raise, and another worker 25 cents
23 Tower Enterprises, Inc, 182 NLRB 382, 386, Colonial Knitting Corp,
187 NLRB 980, 985 In view of the variety of coercive conduct by
Respondent found above, on which remedial action is recommended as set
forth below, I deem it unnecessary to make specific findings or conclusions
on other minor but similar instances of conduct set forth in the record.
Respondent, within 2 days after receiving the Union's
claim of majority status and demand for recognition, and
notice of its request for certification after an election,
began a campaign of varied and serious coercive action
against employees which included interrogation, threats of
various types of reprisal including withdrawal of benefits,
discharge and destruction of the plant, and promises and
actual grant of benefits to dissuade employees from
adhering to or voting for the Union. This conduct was well
calculated to undermine or dissipate the majority status
already achieved by the Union. In light of these serious
unfair labor practices, I find no merit in Respondent's
claim that it is not required to recognize the Union because
that organization never proved its majority status. That
status as of January 30, 1973, clearly appears from the
union cards in evidence, and Respondent never accepted
the Union's offer to prove the status by a third-party card
check. Although Respondent's attorney may have been
unfamiliar at the outset with the exact purpose of the card
check offered by the Union, his reply to the Union
indicates the contrary, where it stated Respondent's desire
for "impartial third party" to "determine whether or not
your Union has majority status ...." However, this is no
defense, where Respondent actually participated in the
consent election procedure, but thereafter engaged in the
unfair labor practices which were well calculated to coerce
employees in their voting choice, and thus prevented the
free and untrammeled election required by the Act. Such
conduct also vitiates the claim that Respondent at any time
had a bona fide doubt of the Union's majority status. I
conclude that Respondent's unfair labor practices while
participating pro forma in the election procedure, but
making a fair election impossible, by unlawful conduct,
amounted to a refusal to bargain in good faith with the
Union as the majority representative of employees in the
appropriate unit, in violation of Section 8(a)(5) of the
Act.24
The Objections to the Election
Objections I and 6 charge Respondent with financial
inducements, including a wage raise, to induce workers to
vote against the Union. This objection is sustained, in light
of Molloy's coercive offers of a wage raise to Sanchez to
forget the Union, and to Anderson if the Union lost, and
the coercive general wage raise of March 19, 1973.
Objections 2 and 4 charge Respondent with threats of
loss of jobs and other benefits if they voted for the Union.
This objection is sustained, in light of Molloy's coercive
threats to Sanchez of loss of overtime and paid insurance
benefits, his threat to Anderson of withholding a raise
because of the Union, and his threats to Ineichen of loss of
pay, insurance benefits, and the right to advances against
pay, as well as possible destruction of the plant, if the
Union won.
24 In light of this coercive conduct, particularly the wide impact of the
one-time general wage raise just before the election, the inference is
inescapable that all employees in the unit may well have been affected, so it
is immaterial that at least five employees including the Duvalls were no
longer eligible to vote when the election date came Respondent cannot rely
on an alleged doubt of majority status clearly undermined by its own acts
ROYAL ALUMINUM FOUNDRY, INC. 113
Objection 5 charges Respondent with creation of an
atmosphere of fear and confusion among workers in the
critical penod before the election. This objection is
sustained, in light of the various types of continuous
coercive actions against Sanchez and Ineichen by Molloy
found above.
Objection 3, based on the alleged illegal discharge of
James and Shirley Duvall, is overruled, in light of my
finding that an illegal discharge of them was not proven.
As the conduct covered by Objections 1, 2, 4, 5, and 6,
resulted in substantial interference with the election I shall
recommend that the election of April 2, 1973, in Case
38-RC-1313 be set aside.25
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
N. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and also-take certain affirmative action
which is necessary to effectuate the policies of the Act. The
variety of unfair labor practices committed by Respondent
requires a broad order. However, such order shall not be
construed in any way to require Respondent to withdraw
or cancel any wage raises, individual or general, or other
benefits, which it may have granted to employees as found
above or at any time since January 28, 1973.
As Respondent has unlawfully failed and refused to
bargain with the Union as the statutory bargaining agent
of its employees in an appropriate unit, I shall recommend
that it be ordered to do so, upon request, and, if an
understanding is reached, embody such understanding in a
signed agreement.26
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization, within the meaning
of the Act.
2. By questioning employees in a coercive manner
about their union sentiments and voting desires in a Board-
conducted election; by threatening employees with dis-
25 Most of the coercive conduct found herein had its impact upon the
election in the period between the filing of the petition and that event. As it
is well settled that objectionable conduct occurring in that crucial period
need not be violative of the Act to warrant an order setting aside the
election, it follows that conduct clearly violative of the Act a fortiori tends to
affect the result of the election. Dal-Tex Optical Company, Inc, 137 NLRB
1782, 1787, Hawkins-Hawkins Co, 173 NLRB 818, 823.
26 The bargaining order is directly warranted by the finding of violation
of Sec 8(a)(5) found above , but even if a refusal to bargain were not
specifically charged, a bargaining order would be warranted here, because
the variety and serious nature of Respondent 's unfair labor practices so
permeated the atmosphere in the crucial period before the election that the
charge, loss of wages , pay raises , overtime work, insurance
and other benefits, if they voted for the Union; and by
promising and actually granting wage raises to induce
them to vote against it, Respondent has interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act, thereby
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and 2(6) and (7) of
the Act.
3. Respondent did not discharge James or Shirley
Duvall and has not violated the Act by failing or refusing
to reinstate either of them after those employees quit their
jobs.
4. All full-time and part-time production and mainte-
nance employees of Respondent excluding managerial,
supervisory, and clerical employees, and guards, as defined
in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
5. The Union was on January 30, 1973, and has been at
all times thereafter , the exclusive bargaining agent of
employees in the unit aforesaid, within the meaning of
Section 9(a) of the Act.
6. By refusing to bargain in good faith , upon request,
with the Union as such bargaining agent , Respondent has
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(5)
and 2(6) and (7) of the Act.
7. Except as found above, Respondent has not engaged
in unfair labor practices as charged in the consolidated
complaint herein.
8. By the unfair labor practices set forth in paragraphs
2 and 6 above, Respondent has engaged in conduct
affecting the results of the election of April 2, 1973.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 27
Respondent, Royal Aluminum Foundry, Inc., of Daven-
port, Iowa, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Questioning employees in a coercive manner about
their union sentiments and voting desires in a Board-
conducted election , threatening them with discharge, loss
of wages, pay raises , overtime work, insurance and other
benefits , and other reprisals, if they voted for the Union in
possibility of clearing the air of coercion and insuring a fair election by mere
posting of a notice with cease -and-desist provision is very slight In such
case, the desires of employees once expressed through authorization cards
should prevail and be protected by a bargaining order N L. R B v. Gissel
Packing Co Inc, 395 U S 575, 614-616 (1969); Cohen Bros Fruit Company,
166 NLRB 88, 90 See also Textron, Inc (Talon Division), 199 NLRB 132
27 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such election, or promising or granting them wage raises to
induce them to vote against the Union.
(b) In any other manner interfering with, restraining, and
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act, including the right of free
choice of bargaining representative.
(c) Failing and refusing to recognize and bargain, upon
request, with the above-named Union as the exclusive
bargaining representative of its employees in an appropri-
ate unit consisting of all full-time and part-time production
and maintenance employees of Respondent, excluding
managerial, supervisory, and clerical employees, and
guards, as defined in the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its Davenport, Iowa, plant, copies of the
attached notice marked "Appendix." 28 Copies of said
notice, on forms provided by the Regional Director for
Region 38, after being duly signed by Respondent's
authorized representative, shall be posted by it immediate-
ly upon, receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Upon request, recognize and bargain with the above-
named Union as the exclusive bargaining representative of
its employees in the appropriate unit described above with
respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(c) Notify the Regional Director for Region 38, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that paragraphs 5(b) and (d)
alleging threats by Chet Knapp, 5(e) charging Knapp with
creating the impression of surveillance, 5(g) charging him
with a threat to close the plant, and paragraph 6 dealing
with alleged discharge of the Duvalls, as well as related
portions of paragraphs 8(c), 9(c), 10, 11, and 12, of the
consolidated complaint, be dismissed.
IT IS FURTHER RECOMMENDED that the election of April 2,
1973, in Case 38-RC-1313 be set aside.
2s In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice, and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or
restrains or coerces employees with respect to-these
rights.
WE WILL NOT question employees in a coercive
manner about their union sentiments and voting desires
in a Board-conducted election.
WE WILL NOT threaten employees with discharge,
loss of wages, pay raises, overtime work, insurance or
other benefits, or other reprisals, if they vote for the
Union named below in a Board-conducted election.
WE WILL NOT promise or grant employees wage
raises to induce them to vote against said Union in
such an election.
WE WILL NOT in any other manner interfere with,
irestrain, or coerce employees in the exercise of the
rights guaranteed to them by the Act as set forth above.
WE WILL, upon request, recognize and bargain with
International Molders and Allied Workers Union,
AFL-CIO-CLC, as the exclusive bargaining represent-
ative of our employees in the appropriate unit de-
scribed below with respect to rates of pay, wages, hours
of employment, and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate
bargaining unit is:
All full-time and part-time production and
maintenance employees, excluding managerial,
supervisory and clerical employees and guards, as
defined in the Act.
Dated By
ROYAL ALUMINUM
FOUNDRY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Savings Center Tower, 10th
Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone 309-673-9312.