T & T Machine Co., Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1986

278 N.L.R.B. 970 (N.L.R.B. 1986)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T & T Machine Company, Inc . and United Mine
Workers of America , District 31. Cases 6-CA-
17359 and 6-CA-17662
14 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 1 November 1985 Administrative Law Judge
Robert T. Wallace issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in op-
position to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that-the Respondent , T & T Ma-
chine Company , Inc., Fairmont, West Virginia, its
officers , agents, successors , and assigns, shall take
the action set forth in the Order.
I The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge incorrectly stated the dates of the hearing as "4 through 7
March 1984." We note that the correct dates are 4 through 7 March
1985.
2 We adopt the judge 's conclusion that the Respondent violated Sec.
8(axl) of the Act by promulgating and maintaining a new no-
solicitation/no-distribution rule for union -related reasons . In so doing,
however, we find it unnecessary to pass on the judge 's reliance on his
finding of nonenforcement of a prior no -solicitation rule based on evi-
dence of solicitations during working time for charitable contributions, or
on his finding of subsequent selective enforcement of the new rule based
on an employee 's solicitation during working time of donations for flow-
ers for the funeral of the assistant plant superintendent 's father-in-law.
Michael Poprilc Esq. and Ronald J. Andrykovitch, Esq., for
the General Counsel.
Robert D. Randolph, Esq. (Buchanan Ingersoll), of Pitts-
burgh, Pennsylvania, for the Respondent Employer.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. The
complaints in these proceedings issued on 6 July and 2
November 1984, respectively, following charges filed by
the above-named Union on 17 May and 4 October 1984.
The complaints allege that Respondent, T & T Machine
Company, Inc., violated Section 8(a)(3) and (1) of the
National Labor Relations Act by discriminatorily laying
off four employees who supported the Union. In addi-
tion, numerous independent violations of Section 8(a)(1)
are alleged.
The case was tried before me at Fairmont, West Vir-
ginia, on 4 through 7 March 1984. On the entire record,
including my observation of the demeanor of the wit-
nesses, and after due consideration of briefs filed by the
General Counsel and Respondent,' I make the following
1. FINDINGS OF FACT AND DETERMINATIONS OF
CERTAIN ALLEGED 8(A)(1) AND (3) VIOLATIONS
Respondent, a West Virginia corporation, manufac-
tures and repairs water pumps for use in underground
mines at a plant located within that State at Fairmont.
During a representative 12-month period ending 31
March 1984, it purchased and received at that facility
materials valued in excess of $50,000 directly from out-
of-State locations. It admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
At all times pertinent, the following individuals were
employed by Respondent in the capacities indicated and
were supervisory personnel within the meaning of Sec-
tion 2(13) of the Act: Donnie Tucker, president; Tommy
Tucker, vice president; Jim Fleming, plant superintend-
ent; and Al Sanford, assistant plant superintendent. As of
1 June 19842 Respondent had a complement of 40 pro-
duction and maintenance employees.
On 11 April, about 18 of those employees (including
Henry Hardesty, Frank McDonald, Randall Roberts, and
James Ervin) met after work at a parking lot near the
plant and began to discuss "problems at the shop."
Shortly thereafter D. Tucker and Fleming drove up and
inquired the purpose of the gathering. On hearing several
employees express concerns regarding wages and work-
ing conditions, Tucker said he would respond the next
day. He did not do so, however, until 27 April (a
Friday) when he called a general meeting of employees
at the plant. At that time T. Tucker and bookkeeper
Betty Olivetto stated that the company could not afford
any increase in wages or benefits other than to pass on
savings related to elimination of uniforms (e.g., cleaning
costs) and raising the deductible on their medical insur-
ance from $100 to $500. No opportunity was allowed for
response; and T. Tucker told the employees that he
would get back to them one-on-one about whether they
would accept the pass-on proposal.
On the following Monday (30 April), representatives
of the Union appeared at the end of the plant access
road, and they maintained a presence there several days
each week on through late September.
' Transcript errors have been noted and corrected
8 All dates are in 1984 , unless otherwise shown.
278 NLRB No. 139
T & T MACHINE CO. 971
At the end of the workday (4 p.m.) on I May, the or-
ganizers distributed to employees leaving the plant a one-
page letter in which, among other things, they were in-
formed that a union meeting would be held on 7 May.
During the evening of I May employee John Strope re-
ceived a telephone call at his home from T. Tucker who
asked about the content of the material handed out.
Strope read the letter to him word-for-word. Later in
the evening, D. Tucker called and asked Strope if he
knew who called in the Union. When Strope responded
that he did not know, Tucker said that he was not going
to put up with anybody trying to start a union, that he
would "get rid of' anybody that was for the Union, that
he would either lay them off and not call them back or
he would wait till they "screwed up" and fire them, and
that he did not care if it took 5 years to do so. S There is
no showing that the earlier call by T. Tucker entailed
anything other than an innocuous inquiry. However, the
second call by D. Tucker patently involved an intrusive
interrogation (i.e., soliciting an employee to inform on
union supporters), as well as a threat to punish union
supporters, both in violation of Section 8(a)(1) of the
Act.
On the next day, Fleming called Hardesty into his
office where he and D. Tucker accused him of being re-
sponsible for the people "out on the road," and asked if
he was the shop steward, and inquired if he did not like
the way things were being run at the shop. They showed
him a document which indicated that a union organizing
effort had been defeated in the past, and Fleming told
him he was not going to let "people," i.e., union support-
ers, mess up the shop again . A discussion of production
followed during which Hardesty asked about his job as
"foreman." Fleming responded that he could "kiss it
goodbye," and when Hardesty requested posting of a
notice that he was no longer a foreman, Fleming told
him that a notice was not needed because it was evident
to the men that he was no longer a foreman.4 At that
point Tucker pointed a finger at Hardesty and said: "You
may be the best machinist down there but sooner or later
you will mess up and I will get you." Fleming added:
"You have three days to let us know which side you're
on."5 The several threats and the transparent hostility
8 T. Tucker denies talking to Strope on I May stating that he was in
Chicago on that date . But he recalls receiving a call from Strope at the
shop around 4:30 p.m. on 2 May. According to him , Strope merely asked
for D. Tucker , and he replied that his brother was away and would call
back later . D. Tucker states that when he returned the call on 2 May,
Strope began to read from the union handout, whereupon he told Strope
not to bother as he already had received a copy ; and he claims the con-
versation ended at that point.
4 Hardesty worked for Respondent off and on for about 4 years. He
had been named "foreman" in a Notice to Employees posted at the shop
on 9 December and effective on 12 December 1983, and from that time
until mid-January he did no production jobs . Instead, he "trouble shoot-
ed," i.e., saw to it that tools, machines , and equipment were maintained in
proper order. About 16 January, however , he began to work sporadically
on lathes pursuant to assignments from Sanford; and it is undisputed that
by 20 February he was back producing parts on a particular machine and
performed no other functions until he was laid off on 12 June. Through-
out his entire employment he punched a timeclock and was paid on an
hourly basis.
D. Tucker and Fleming both agree that Hardesty came to the office
asking for a raise , that Tucker told him the Company could not afford
one, that Hardesty responded by saying that rumors were being spread
behind the questions constitute an overt attempt to in-
timidate Hardesty in the exercise of his right to join the
Union and assist in its organizational effort. But the inci-
dent does not appear also to have created "an impression
of surveillance," as alleged in the complaint.
On the following day (3 May), Hardesty was issued a
written warning for failing that day to follow instruc-
tions of his "leadman" (Tinney) in shaping an impeller.
He concedes that he may have erred. Reworking the
piece would have taken about 45 minutes. He had made
similar mistakes occasionally in the past and this was the
first time he received a reprimand since being originally
hired in January 1977. The latter circumstance, coupled
with the coercive threats uttered on the previous day,
impel me to conclude that Hardesty's mistake would not
have elicited the warning absent his suspected involve-
ment with the Union and that its issuance conveyed an
unlawful message, i.e., Respondent could and would im-
plement its threats if he opted to "side" with the Union,
which violated Section 8(a)(3) and (1).
T. Tucker called a meeting of all employees at the end
of the workday on 4 May. Reading from a one-page
statement (R. Exh. 11), he told them he was aware that
union organizers were outside the plant and that a union
meeting was set for the following Monday . He also recit-
ed the following:
He [our labor lawyer] told me that if we give any
raises, the UMW organizer will probably go to the
Labor Board and accuse us of trying to buy your
loyalty. We do not want to have more trouble with
the Labor Board so I cannot add anything to what
I had to say last Friday.6
At the end of the session he distributed a three-page
letter (G.C. Exh. 4) in which he emphasized the legal
significance of union cards and urged them not to sign.
Contrary to the contention of the General Counsel, I
find that Tucker's statement regarding the forthcoming
union meeting did not create an impression of surveil-
lance. As noted, the date of the meeting was contained in
a flier distributed openly to all employees as they left the
plant 2 days earlier; and they had no reason to believe
that the information was confidential or that Tucker had
gone out of his way to obtain it.
On Monday, 7 May, D. Tucker stopped Strope as he
was punching out and asked if he was going to the union
meeting. When Strope said yes, he further inquired if
Strope was going to tell him who attended the meeting.
Strope said no. Tucker then warned him that if the
Union came in, wages would rise and, to compensate, he
would have to lay people off. He added that he would
lay off people who were for the Union and that Strope
would be on the list. On the same day, employee Cesare
around the plant that he had brought in the Union and was the designat-
ed shop steward , that Tucker promptly cut Hardesty off stating that he
"didn't want to talk about the Union in any way, shape or form," and
that nothing further was said.
McDonald, together with Strope and Ervin , claim they heard T.
Tucker say that he was going to give us a raise until the union thing
came up. Assessing the probabilities , I find it likely that their claim is
based on a misinterpretation of what was read.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buonamici approached T. Tucker in the plant parking lot
and volunteered that he intended to go to the union
meeting . Tucker said that would be all right but obtained
Buonamici 's promise to call when it was over and tell
him what went on . 7 I find to be unlawful interrogation
Tucker's inquiry whether Strope would attend the union
meeting, especially in light of the threats he communicat-
ed during the previously described phone conversation.
Also violative is his soliciting Strope to engage in sur-
veillance and inform on protected acts of other employ-
ees,8 as well as his threat to lay off any employee who
supported the Union .9 The conversation with Buonamici
is another instance of unlawful solicitation of surveil-
lance.
The meeting took place that evening , as scheduled
and, by letter dated the following day, the Union advised
Respondent that the following employees had agreed to
serve on an in-house organizing committee : McDonald,
Roberts, Strope, Buonamici, Hardesty , Ervin, David
Areford, Don Hough, Ralph Kapaldo, and Thomas
Moran.
At work the next day (8 May), D. Tucker asked Buon-
amici what had happened at the meeting . Not wanting to
have an extended conversation within view of other em-
ployees, Buonamici suggested they meet in town that
evening at an antique auto show.10 The Tucker brothers
arrived at the auto show in separate cars . T. Tucker and
Buonamici then got into D. Tucker's Cadillac . Buona-
mici used the occasion to inquire how much they would
pay if he was able to recapture for them a large account
("Joanne Mine") they recently had lost. The Tuckers did
not appear interested. Instead, D. Tucker engaged in an-
other unlawful interrogation about the union meeting by
asking questions such as : "Who said what?"; "Were
cards signed?"; "Who started the Union effort?" On
hearing Buonamici 's replies, D. Tucker handed him some
money for his trouble. Buonamici declined , stating that
he was only interested in getting a $1 dollar increase in
hourly pay. D . Tucker assured him that would be no
problem once the "Union stuff" was over. I'
During the next few days, Areford, who had been
working in the office programming numerical control
(N/C) machines, was reassigned to work one of those
machines . Also during that period, Buonamici , a quality
inspector , was told by Fleming to show all defective
parts either to him or Sanford and to get their approval
before sending the parts to be reworked . Previously,
7 The Tucker brothers each deny that the attributed conversations oc-
curred.
9 See NLRB Y. National Garment Co., 614 F.2d 623 (8th Cir 1980).
9 I view as multiplicious an allegation in the complaint (6-CA-17359)
that the threat also conveyed an unlawful message, i e , that support for
the Union would be futile . Accordingly, I decline to find a separate vio-
lation in that regard.
10 The show was being held under the auspices of a committee chaired
by Buonamici Earlier, he had been unsuccessful in persuading D Tucker
to enter an antique car.
11 D. Tucker stated that he went to the show only because Buonamici
had been bugging him about entering a vehicle and wanted to point out
just how and where it would be displayed and that he invited his brother
to go along . Both brothers agreed that Buonamici asked for "a cut of the
action" if he regained the Joanne Mine account and that they told him
they could not give him a reward but would appreciate any assistance he
could render in getting the account back.
there was no fuss about who messed up. Buonamici
simply told Sanford what was wrong with a part and re-
ceived instructions about the machine on which it was to
be redone.
On 10 May about 10 p.m., Strope 's phone rang at
home. The caller said: "You are going to pay." Startled,
Strope said he did not understand . The caller said again:
"You are going to pay," this time adding : "John," and
then hung up. Strope claimed that the voice belonged to
D. Tucker. 12
On arriving at work on Friday, 11 May, Ervin noticed
on the bulletin board a copy of the letter in which the
Union named the in-house committee . He went over and
underlined his own name , as well as the names of Har-
desty and Hough , who were with him at the time. Later
that morning Ervin was called to the office where Flem-
ing gave him a verbal warning for having defaced com-
pany property. Prior to that time, other incidents involv-
ing misuse of company property had occurred without
any apparent response from company officials . 113 I find
no violation . The other instances of misconduct which
are cited are not similar to the one at hand . Moreover,
concerning those instances there is no showing that per-
sons responsible went unpunished or, assuming no pun-
ishment, that Respondent knew who they were.
Ervin was involved in another incident that afternoon.
Maintenanceman Ike Gallagher was sweeping near his
machine . Ervin asked Gallagher whether he could stop
by his home over the weekend, adding : "It's the only
way things are going to get better ." Gallagher dropped
his broom and went directly to the front office. Ervin
was summoned there a few minutes later and Fleming
gave him a written warning for "harassment of fellow
workers during working hours ." Ervin asked who he
had harrassed. Fleming declined to answer. Instead, he
advised Ervin to talk to his "union buddies" and learn
that soliciting was not allowed during working hours.
The latter comment, coupled with the fact that Respond-
ent presented no evidence of any actual harassment
and-as noted below-appears not to have enforced an
existing no-solicitation rule, induce me to conclude that
the warning was issued to discourage and deter Ervin
from continuing his involvement with the Union and, so,
was in violation of Section 8(a)(3) and (1).
On hearing about the Gallagher incident, T. Tucker
posted on Monday, 14 May, a notice containing a rule
prohibiting any kind of solicitation or distribution of lit-
erature "during actual working time (excluding meal pe-
riods) or in working areas";14 and copies of the notice
12 D. Tucker denies making the call Based on the brevity of the call
and heightened likelihood of mistakes when identification is by voice
alone, I am not persuaded that Tucker was, in fact , the caller.
is For example. McDonald had written humorous messages on requisi-
tion orders that went to Fleming for approval ; machine operators often
affixed , on a red I -beam that ran through the center of the shop , blue and
white stickers containing the logo of a product.
14 The posted notice reads as follows:
Some employees have complained that certain of the in -house or-
ganizing committeemen have been applying pressure to get UMW
membership cards signed during working time As of this date, the
following rule is in effect
Continued
T & T MACHINE CO. 973
were distributed to employees as they left the shop at 4
p.m. Earlier that day he had called Ervin into the office,
gave him an advance copy and had him read it in the
presence of leadman Tinney . Prior to that time numerous
solicitations had taken place during working time (i.e.,
for contributions to the United Way, flower funds,
church benefits , etc.) without hindrance and despite an
existing workrule prohibiting solicitation during work
time without written permission. Indeed , employees
appear to have been unaware of the rule .1 5 The new rule
is not, in itself, the subject of challenge . Instead the Gen-
eral Counsel , citing Brigadier Industries Corp ., 271 NLRB
656 (1984), claims that Respondent violated Section
8(a)(1) by promulgating and maintaining it "for union-re-
lated reasons ." I agree . The new rule is shown to have
been established for the purpose of deterring or impeding
employee efforts to generate support for the Union. This
is seen from the timing of its promulgation , i.e., at the
onset of the organizing campaign and just after issuance
of the coercive warning to in-house committee member
Ervin ; from the circumstance that Ervin was the only
employee called into the office and asked to read the
rule just before it was posted ; from nonenforcement of a
prior no-solicitation work rule and selective enforcement
of the new one ; from the absence of any indication that
Ervin's limited conversation with Gallagher interferred
with production ; from Respondent 's failure to present a
business justification for the new rule; and from the nu-
merous instances of antiunion animus displayed by the
Tucker brothers and Fleming throughout the organizing
campaign.
Also on 14 May , in-house committee member Areford
received a written warning for drilling a pattern off
center, an error rectifiable by 15 minutes of reworking.
He had made similar mistakes in the past but this was the
first time he had received a warning since he was hired
in August 1980. No unlawfulness is alleged and I opt to
make no determination in that regard.
On 15 May, Fleming assigned Ervin to assist another
employee (John Baker) who was having trouble fixing a
booster pump that had been sent in for repair . As Flem-
ing stood by, they began to dissemble the pump and, in
doing so, found that a "retainer bolt" was broken. Flem-
ing became very agitated and began banging the bolt on
SOLICITATION OF ANY KIND TO ANY EMPLOYEE
DURING ACTUAL WORKING TIME (EXCLUDING MEAL
PERIODS) IS PROHIBITED. DISTRIBUTION OF LITERA-
TURE OF ANY KIND TO ANY EMPLOYEE DURING
ACTUAL WORKING TIME (EXCLUDING MEAL PERIODS)
OR IN WORKING AREAS IS PROHIBITED.
You should be aware that this rule is not limited to the solicitation of
union cards or the distribution of union literature . This rule applies
to any type of solicitation or distribution . Furthermore , anyone who
is guilty of violating this rule will be discharged.
If you have first-hand information about any solicitation or distribu-
tion of literature during working time, please contact your supervi-
sor immediately.
Is Solicitation continued even after promulgation of the new rule. In
June , McDonald overheard two employees discuss trading a motorcycle
in the plant bathroom during a nonbreak period. He promptly reported
the matter to Sanford , opining that he thought it was in violation of the
rule. Sanford smiled and said nothing . In January 1985, Kapaldo was in-
terrupted while working his machine by another employee who openly
went around the plant seeking donations to buy flowers for the funeral of
Sanford 's father-in-law.
I
a nearby skid while looking directly at Ervin and saying:
"These things just don't break . . . . This is the kind of
stuff that happened the last time they tried to bring a
union in ." Fleming then turned to committee member
McDonald who was nearby working on another pump.
He placed the bolt about 2 or 3 inches away from
McDonald 's face and shook it while asking if he knew
anything about it. When McDonald said no , Fleming re-
peated : "This is how the whole union thing got started
last time . . . [adding] you're the chairman of all these
idiots . . . tell them that they are messing with their
fucking jobs." Not cowed, McDonald snapped: "Tell the
idiots yourself." At that point Strope was passing
through the area , carrying a crankcase lid. Fleming inter-
cepted him and began waiving the bolt in his face also,
saying : "See this fucking bolt John? . . . This was sabo-
tage, it was done deliberately . . . . Everytime the union
tries to organize we have this . . . . Someone is going to
pay for it." When Strope protested that he had nothing
to do with the bolt or with the pump it came from,
Fleming accused him of being the one who helped to
bring in "the fucking Union ." Fleming then called Buon-
amici over and told him to tag the bolt "as evidence."16
In context Fleming 's remarks ("tell them that they are
messing with their jobs" and "someone is going to pay
for it") are violative in that they constitute explicit
threats of retaliation against employees who continued to
support the Union.
About 15 minutes later, Fleming returned to the area
where McDonald , Baker, and Ervin were working. He
was accompanied by T. Tucker who asked if they knew
anything about the broken bolt. They answered no,
whereupon Fleming called leadman Tinney over and
told him to "keep an eye out" on every pump built by
McDonald and Ervin because he was not going to let
"it" [i.e., "sabotage"] happen again . He made no mention
of work performed by Baker albeit the broken bolt came
from the pump on which he had been working. In the
circumstances and since Baker does not appear to have
had any involvement with the Union , I find that Re-
spondent singled out McDonald and Ervin for closer su-
pervision because of their activism on behalf of the
Union , and thereby violated Section 8(a)(1).
On 17 May, Strope received a written warning for
drilling a hole out of position in an impeller. The warn-
ing was the first he had received since being hired in
April 1982. Strope had shown the mistake to Sanford
who, as on several similar occasions in the past, simply
instructed Strope to fix the item , after telling him how.
This time , however, Fleming overheard the conversation
and ordered Strope to report to the office. He did so and
there received the warning along with an admonition
that a second would entail 3 days off without pay and a
third would result in discharge . Fleming then turned to
Sanford and said : "Every time the Union tries to orga-
nize . . . [we] get fucked -up parts." And when Strope
16 Fleming does not deny any of the statements or actions attributed to
him. He states that he lost his temper due to concern over a spate of de-
fective units being delivered to customers and a conviction that the bolt
in question , albeit a used one, had been deliberately broken by a physical
twisting unrelated to normal operation of the pump.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protested that he simply had made a mistake , Fleming
told him : "If I thought you did it on purpose I would
fire you and could have you arrested ." I find a violation
of Section 8(a)(3) and (1). Coupled with the aside to San-
ford, the warning plainly was meant to impress upon
committee member Strope the danger attendant upon
continuing his association with the Union.
Around this time, D. Tucker approached in-house
committee member Kapaldo while the latter was work-
ing and inquired how he was "pulled into " the Union.
Kapaldo replied that he liked what he heard at the union
meeting and "went with it." The conversation ended at
that point . No violation is alleged and I make no finding
in that regard.
About 23 May , Fleming told employee Glen Shaffer
to leave his machine and go to the office . There, and in
the presence of Fleming and T. Tucker, D. Tucker asked
Shaffer how he felt about unions . Shaffer, reiterating
what he had told D . Tucker during preemployment
interviews in April 1982, said that he did not like them.
D. Tucker said he thought that was the agreement. Then
either D . Tucker or Fleming cautioned him not to asso-
ciate with union supporters and one or the other told
him that he would receive training on an N/C machine
to enhance his skill level above that of Roberts who they
planned to "get rid of." Also, he was advised to bypass
Sanford when he made mistakes and report errors direct-
ly to them so that his record would be clean in compari-
son with union supporters whose mistakes would be re-
corded. D. Tucker went on to say that they would not
take it amiss if Shaffer provoked a fight in the shop and
knocked one of them down . Should that happen, he
opined , they would fire the activist for starting the fight
and would even throw floor-dry in the area to make it
look like the fall was due to grease on the floor . Shaffer
told them he did not want to do that , commenting that it
was difficult to work in a shop where there was hard
feelings between employees. D. Tucker assured him that
there was nothing to worry about "because when this is
over the guys that signed cards will be gone ."17 There-
after , Shaffer was assigned to run an N/C lathe on four
or five occasions for a couple of weeks at a time. There
is no indication of any subsequent layoff of Roberts. I
find the three-one one encounter with Shaffer to involve
unlawful interrogation , promise of benefit, and threats. In
addition , Respondent acted unlawfully in attempting to
instigate assault on employees who supported the Union.
.See Lyman Steel Co., 249 NLRB 296 (1980); Kent Bros.
Transportation Co., 188 NLRB 53 (1971). Also violative
is D. Tucker 's intimation of a continuing agreement
whereby Shaffer would refrain from any involvement
with a union during his tenure as an employee . 18 Airport
Bus Service, 273 NLRB 561 (1984).19
Also around 23 May, Buonamici had a conversation at
his work station with D . Tucker in the presence of em-
ployee Tom Satterfield. Tucker was passing by and
Buonamici told him he was seething and might start a
fight because Ervin earlier that day had called him
"Mussolini ," a name which Buonamici took to be derog-
atory and indicative of a perception that he had sided
with the company. Reaching into his pocket, Tucker
produced a wad of money and told Buonamici it was his
provided Ervin did not get off the ground after being
hit.20 Here too I find an unlawful encourgement of as-
sault on a union supporter.
On completing an assigned task about 30 May, Har-
desty noted that no further work orders were posted for
his lathe. Concerned, he went to Sanford and asked what
he could do next . Sanford told him not to worry, adding
"there was plenty of work but. it was just not being
posted ." He then orally assigned Hardesty another job
that required tooling on the lathe.21
In late May or early June, D. Tucker observed Glen
Shaffer and several other employees (including Carl Fitz-
water and Glen's brother Arnold) eating lunch together
just outside the shop. He approached and invited them to
go inside thereby to avoid contact with the "union
people" who were eating nearby . They acquiesced and
finished lunch , in the shop . While doing so, D. Tucker
told them he was going to "get rid of" those who started
the union . drive, and he specifically mentioned several
employees (including McDonald , Ervin, Strope, and
Roberts) who he considered to be the "trouble-
makers ."22 I find the threat to get 'rid of union activists
patently unlawful.
On Wednesday , 6 June , Ervin was laid off.23
On returning from lunch on the following day,
McDonald passed a table at which D. Tucker and sever-
al employees were seated and he inquired how Tucker
was doing. The latter said if he was any better he could
hardly stand it. When McDonald replied , "me too,"
Tucker rejoined: "You and Jim Ervin both." Then
McDonald expressed agreement stating that Ervin was
fine because he got a new job right away . Tucker then
told him that he would not be as fine because he would
be "in the same boat • as Jim ." Twenty minutes later
Tucker approached McDonald as he returned from the
supply department and inquired if he thought "the whole
thing was fun and games ." McDonald answered yes,
adding that he loved every minute of it because he was
tired of being harassed by him . About one-half hour
later, McDonald was moving a. pump with a crane and
accidentally bumped the pump against another causing
scratched paint . Tucker came running over, accused
McDonald of deliberate mischief, and told him that if he
did it again he would "be gone." I find Tucker 's remark
17 The Tucker brothers and Fleming deny that the conversation oc-
curred . D. Tucker also denies having mentioned unions during prehire
interviews with Shaffer.
is I make no finding whether Respondent acted unlawfully in making
the agreement a condition of employment at the time Shaffer was hired
(April 1983) because of the 6-month limitation in Sec . 10(b) of the Act.
. 19 Although the complaints contain no specific allegation based on the
Shaffer interview , Respondent had ample opportunity to cross-examine
and respond to Shaffer 's testimony , and I find the incident flagrant
enough to warrant findings.
20 Tucker denies that the conversion took place. Satterfield did not
testify. There is no indication that Buonamici took the money or-subse-
quently earned it by taking on Ervin.
S' Sanford was not called as a witness in this proceeding.
22 D. Tucker denies ever having told the lunch group that he would
get rid of the named employees.
za Ervin was not named as a discriminatee in the complaint at his own
request. He explains that he promptly obtained another job and was not
interested in backpay.
T & T MACHINE CO.
that McDonald would be "in the same boat" as Ervin to
constitute a veiled unlawful threat of layoff for union in-
volvement.
On the next day (8 June), .Strope discovered a faulty
tapping in a cylinder head and brought it to the attention
of Sanford who told him to send it to be inspected. Later
that day Fleming ordered Strope to go to the inspection
table where he accused him of "screwing up" the piece
and gave him a verbal warning with an assurance that he
would "be out" if it happened once more. Again , I find,
an unlawful threat of layoff or discharge . In addition, the
warning was issued for a discriminatory purpose in viola-
tion of Section 8(a)(3) and (1).
On Tuesday 12 June, Fleming called Hardesty into the
office and told him he was laid off because there was not
enough work . Hardesty returned to his area and was
gathering his belongings when he was recalled to the
office. There, Fleming said he had forgotten something,
and he offered him a part-time job cutting grass at $3.35
an hour without any fringe benefits . Hardesty declined.
He was then earning $7 . 50 an hour as a skilled machinist.
As of the time of hearing in this proceeding , he had not
been recalled or contacted by Respondent.
Two days later D . Tucker followed Strope into the
shop mens ' room and again inquired who called the
Union . Strope answered that he thought it was a girl.
Tucker said that "hotheads" McDonald and Ervin prob-
ably got her to do it . He then offered to meet Strope
"anywhere at any time" to receive information about the
organizational drive, adding that such information would
enable Strope to keep his job . Strope said "Okay ." I find
the encounter to involve an unlawful inquiry , an unlaw-
ful solicitation to inform on activities of union support-
ers, and an unlawful threat that Strope would lose his
job if he failed to cooperate.
That evening Strope was interviewed by a Board
agent and signed a statement . Shortly thereafter he
phoned and asked D. Tucker to meet him at a fishing
place near Strope's home . At approximately 8 p.m., D.
Tucker and his brother arrived at the spot in a pickup
truck. Strope told them he had met with the agent and
had signed an affidavit . To D. Tucker 's inquiry whether
he had "bad-mouthed" them , he answered that he had
told only the truth ; and when asked who would be "the
heavy ," he replied: "Fleming ."24 I find the questioning
unduly intrusive and therefore unlawful.
About 8 a.m. on 15 June, Fleming gave McDonald a
job of more than average complexity and told him not to
"mess it up" or else he would "be gone." The quality of
his work had never been questioned before. Indeed, he
had often received commendations from Fleming , as well
84 D. Tucker did not refer in his testimony to Strope 's account of the
conversation in the men's room . Concerning the meeting at the fishing
spot , he claims that Strope told him on the phone that he wanted Tucker
to help him with Strope's marital problems , that he told Strope he would
come with his brother because he did not want to talk to him alone, that
at the meeting Strope did not talk about marital problems but instead in-
quired whether business had picked up at the shop and when he might be
called back to work , and that when Strope mentioned something about a
girl having called the Union his brother interrupted and told Strope:
"You know we cannot discuss the Union ." T. Tucker's version of the
meeting accords with that account . Strope was not laid off at the time
the meeting took place.
975
as from Sanford and D. Tucker. A short time later D.
Tucker passed by just as he broke a plastic material he
was attempting to press into a steel ring . Tucker stopped
and told him he would "Be gone" if that happened
again . McDonald's "leadman" (Tinney) intervened and
told Tucker that because of its fragility, breakage of the
plastic piece was a common occurrence . Tucker left
without making further comment . I find the incident to
involve unlawful continuing harassment of McDonald.
On the following Monday ( 18 June), Strope was effec-
tively laid off. He had worked for the Company approxi-
mately 26 months. About 10 a.m. that day, he reported
to Fleming that he had run out of work. Fleming told
him there was none available and that he would have to
go home . Surprised , Strope pointed out that gears need-
ing drilling would be coming off the hop in a few min-
utes. Fleming replied that they were not rush items. He
told Strope to go home and phone in early next morning.
As Strope walked over to the timeclock, Fleming went
along and told him that it was apparent which side of
the fence he was on and that as long as he was on that
side , there was nothing he could" do for him. Fleming
confided that if Strope changed sides he would , as in the
past, find something for him to do. On prior occasions
when Strope ran out of work he had, been given tempo-
rary assignments (e.g., washing trucks and cutting grass)
without reduction in pay . 25 Fleming's offer to retain
Strope if he abandoned the Union is an unlawful promise
of benefit.
When Strope called on the following morning, Flem-
ing said there was still no work and told him to call back
in a couple of days. When Strope complied , Fleming
told him to apply to state authorities for unemployment
compensation . He was not offered the grass -cutting
job.28 Now was he ever recalled.
On 19 June, D. Tucker noticed that McDonald was
working on a pump while another employee (Fitzwater)
was standing nearby . He went over and asked Fitzwater
if he was being "bugged" by McDonald. When Fitz-
water said no, Tucker just stared at McDonald for 15 to
20 seconds and then told him "to shut up." Again I find
unlawful harassment because of McDonald's support of
the Union.
On 21 June, employee Rick Jones arrived at the shop
parking lot about 30 minutes before the 7:30 a.m. starting
time and was sitting in his car drinking coffee. McDon-
ald approached and began to talk to him . At that point,
Jones noticed D. Tucker and Fleming leave the office
and head towards him. Jones left the car and went to
meet them . He was told by Fleming that he was needed
immediately to work on a rush job and that they would
pay him overtime if he punched in right away. He did
so, but when he started to work Fleming told him there
was no need to hurry because "we just . . . wanted to
get you away from them guys." A few days later Jones
again arrived early and stopped to talk with union sup-
porters near the parking lot. Later in the day Fleming
26 Fleming claims that he never made remarks of the kind attributed to
him.
26 Fleming states that Strope declined his offer of a job cutting grass
when he called in on 19 June.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached him on the job and invited him outside "to
see something." When Jones went outside Fleming had
nothing to show. Instead, he said he did not want to stop
and talk to "them guys .. . at the end of the road." He
also reminded Jones that his 90-day probationary period
was not up and that he could "get rid of him with no
problem.27 I find an unlawful threat.
Also on 21 June, Fleming, accompanied by D. Tucker,
went over to where McDonald was doing some welding
and told him to stop, explaining that because of an in-
spection 9 days earlier, the company was required by the
Occupational Safety and Health Administration (OSHA)
to set up a special booth for welding; and Fleming went
on to tell McDonald that from then on he was not to
weld any more and he proceeded to utter another unlaw-
ful threat by adding that "Union activity would cost a
lot of other people work also."28 Later that day Fleming
saw McDonald waiting to obtain a part from the supply
department. He told him to hurry up and get back to
where he belonged. As McDonald departed, Fleming
told him that there would be "some big changes in the
company to benefit the company." This is another exam-
ple of continuing harassment.
During the course of a social visit at Strope's home
about 2 July his friend (Brad Fairman) mentioned having
heard D. Tucker say Strope would never be recalled
from layoff because he had "screwed-up by getting in-
volved with the Union."29 Fairman is a teenage nephew
of Tucker and held a part-time grass-cutting job with the
company that summer. Unlike rank-and-file employees,
he regularly drove a company vehicle and had free
access to restricted office areas in the shop and he often
ate lunch with D. Tucker. The statement attributed. to
Tucker was received conditionally, i.e., subject to proof
that Fairman communicated it as Tucker's agent. No
such showing was made. Being a close relative is not
enough to establish agency. Aircraft Plating Co., 213
NLRB 664 (1974); and, unlike the situation in Scotts IGA
Foodliner, 223 NLRB 394, 400-401 (1976), enfd. 549 F.2d
805 (7th Cir. 1977), Respondent here is not shown to
have augmented the relationship by conferring on Fair-
man any actual or apparent indicia of agency. In this
regard, his grass-cutting job does not appear to have en-
tailed any special leadership responsibilities. Neither is it
shown that his use of a company vehicle and his access
to restricted areas was for nonbusiness purposes. And his
having lunch with Tucker is not unique as other rank-
and-file employees did so regularly. In these circum-
stances, I reject as unreliable hearsay the alleged state-
ment of Tucker and find no violation.
27 Fleming denies having conversed with Jones on either occasion. D.
Tucker makes no reference in his testimony to the parking lot incident on
21 June. Concerning that incident, Fleming attempted to discredit Jones
by pointing out that an entry on his timecard showing he punched in at
7:09 a.m. on 21 June is not accompanied by a supervisor' s initials, an as-
serted requisite for payment of overtime. I find Jones' account credible,
notwithstanding that circumstance and even though he may not have
been paid overtime for that day.
28 At this time Respondent possessed a copy of a flier (R. Exh. 3) in
which, among other things, the Union took credit having been instrumen-
tal in causing the OSHA inspection.
29 Fairman was not called as a witness and Tucker did not deny
making the statement.
Several times during July and August, D. Tucker
came over to where Jones was working and asked if he
had signed "one of those cards" ; and each time Jones an-
swered no. On one occasion, Tucker used a different ap-
proach and in a jocular vein said to Jones : "I hear Rick
Jones signed a card." In light of Tucker's previously de-
scribed threat to Jones, the latter reasonably could view
the questions and statement of Tucker as harassment, and
I find them unlawful.
At the end of the workday on Monday 9 July,
McDonald was called into the office where Fleming told
him he was laid off due to lack of work, and then of-
fered him the grass-cutting job. He had been employed
there about 4 years . At the time McDonald was half fin-
ished with a rush job, which required approximately 3
more hours to complete . He turned down the grass-cut-
ting job stating he could not afford to drive back and
forth from his home in Morgantown (36 miles round
trip) in order to work part time for minimum wages. In
response to his inquiry when he might be recalled, Flem-
ing informed him that their policy was to lay off and call
back employees by seniority. McDonald was never re-
called.30
On 4 September, Kapaldo noticed that his toolbox and
that of another in-hoti,se committee member (Areford)
had been scratched as a result of an apparent effort to
scrape off prounion stickers. He reported the damage to
Fleming, and the incident gave rise to the filing of an-
other unfair labor practice charge (6-CA-17598) by the
Union on 7 September , with the result that an election
set for Thursday , • 13 September, was postponed. D.
Tucker commented on that circumstance in a letter to all
employees handed out to them on 12 September . Therein
he accused Kapaldo and Areford of having "cooked up"
the toolbox matter in order to delay the election.
About 11:30 a.m. on the following day, an N/C
"Burgmaster" machine regularly operated by Kapaldo
shut down due to mechanical failure . In similar situations
in the past, Kapaldo routinely was assigned to operate
other machines . This time , however, Supervisor Sanford
told him to punch out, stating the machine probably
would be out for the entire day. Kapaldo phoned in at 4
p.m. and again early in the morning of 13 September and
was told to remain away as the machine was still not
fixed. Later that day he went to the shop and joined
other employees who were collecting their weekly pay-
checks. After giving him his check, Fleming told him to
go to the office. There Fleming informed him that orders
for pumps were being cancelled and that he was being
laid off indefinitely . Kapaldo declined Fleming 's offer of
the grass-cutting job. He remained in layoff status until
13 November when he was recalled.
About 1 December, D. Tucker said to employee
Bartholow: "Well, if the Union has to come in, we can
shut the doors." Shortly after 8 a.m. on 5 March 1985,
so A second employee (John Baker) was laid off along with McDonald
on 9 July . Two others (Ron Phillips and Carol "Buck" Bartholow) were
laid off later that month and another (Pearly Lemasters) was laid off in
August . Phillips and Bartholow were recalled to work in October and
November , respectively . No new employees had been hired by Respond-
ent from early April 1984 up to the hearing.
T & T MACHINE CO.
the second day of the trial in this proceeding, D. Tucker'
came over to where Arnold Shaffer was working his ma-
chine and initiated a conversation during which he asked
if Shaffer 's brother (Glen) was going to be a witness
"against" him that day and , if so, whether he knew what
Glen would say. Shaffer replied yes to the first question
and no to the second . A few more words were spoken,
and Tucker ended the conversation saying : "Well,-these
guys who have testified , when their six month 's protec-
tion is up-then it will be my turn ."31 I find unlawful
threats involved in both conversations.
Ii. CREDIBILITY DETERMINATIONS
The findings of fact in the preceding section are based
for the most part on credited testimony of 13 individuals
who were rank -and-file employees of Respondent during
periods pertinent herein . 32 Of those, four (Hardesty,
McDonald, Strope, and Kapaldo ) are alleged in the com-
plaint to have been discriminatorily laid off. Despite
their having a financial stake in the outcome of this pro-
ceeding, I have credited them . Their detailed accounts of
incidents adverse to Respondent were delivered with ob-
vious candor , are internally and mutually consistent, and
are in accord with similar adverse testimony of several
current employees (Bartholow, Jones, and the Shaffer
brothers) who appear not to have had any involvement
with the Union: Ervin, though a member of the in-house'
organizing committee , expressly declined to contest his
layoff by not allowing himself to be named as a discri-
minatee in these proceedings , and he evinced no interest
in being reemployed by Respondent. Accordingly, he
had no expectation of financial gain; and I have consid-
ered that circumstance , among other things, in crediting
his testimony . In-house committee member Buonamici,
however, came across as highly ambivalent , and I have
credited portions of his testimony only because incidents
recounted by him correspond with a pattern of conduct
on the part of Respondent's officials that is well estab-
lished by other witnesses.
In contrast , the responsive testimony of those officials
(President D. Tucker, Vice President T. Tucker, and
Plant Superintendent Fleming) impressed me not at all.
In a number of instances they offered no comment on
adverse testimony and, when they did, they almost in-
variably issued flat denials which did not ring true and,
indeed, appeared to be uttered perfunctorily and without
conviction. A case in point is D. Tucker's hardly audible
assertion that he did not have the described conversation
with machinist A. Shaffer early in the morning of the
second day of trial in this case . Shaffer testified on the
last day as a rebuttal witness . It was apparent that he
was ill at ease and was there solely by virtue of his being
subpoeaned on the previous evening . He testified ingenu-
ously that on the evening of the day the conversation
with D. Tucker occurred, he had chided his brother for
testifying. In his own words:
977
Me and my brother were talking and he got me a
little bit mad. And I told him that, you know,
maybe he has over stepped his bounds and [was]
going to get himself in hot water and lose his job.
And that is when I told him the statement that was
made . And the next thing I knew I was called [to
testify].
At a later point and in response to a question , the import
of which was whether he was testifying because he felt
sorry for his brother and wanted to help him out, he re-
plied:
I feel sorry for anybody having problems. I feel
sorry for Donnie [Tucker] right now with all this
on his back . But I'm not going to lie, I wouldn't lie
for you if it would save your life. That is just the
way I am.
After that exchange there was a tense silence in the
courtroom as D. Tucker stared intently at the design on
his necktie . It was broken by Respondent 's counsel who
stated he had no further questions.
III. THE LAYOFFS '
As noted, four employees known by Respondent to be
members of the Union's in-house committee were sum-
marily laid off during a period when an organizing drive
was in progress . That circumstance , coupled with the
threat "to get rid of anyone who was for the Union, ut-
tered by Respondent's president at the outset of that
drive, a threat which was to be reiterated by him and
other officials of the company at least nine times during
the drive in the context of other examples of rampant an-
tiunion animus, warrants a conclusion that the layoffs
were motivated at least in part by that animus. Accord-
ingly, the General Counsel has established a prima facie
case of unlawful discrimination; and it is incumbent upon
Respondent to show that the layoffs would have oc-
curred in any event. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir.• 1981), cert. denied
455 U.S. 989 (1982).
In attempting to meet that burden, Respondent claims
that the layoffs were made necessary by a 32-percent re-
duction in sales from April 1984 to January 1985 and
consequent cutbacks in production. However, in support-
ing that claim , Respondent did not offer in evidence any
ordinary business records such as a balance sheet or
profit-and-loss statement, explaining that, for competitive
reasons, it considered such material confidential . Instead,
it relies on an exhibit (R. Exh . 14) in which sales during
each month of a 9-month period beginning on I May
1984 are expressed as a percentage of those attained
during the immediately prior month; and the percentages
so calculated are used as a key element in estimating
dollar changes in inventory and profit or loss during
each of the 9 months. The document in pertinent part
reads as follows
3 1 Tucker denies having had the described conversations.
32 Included among this number is Hardesty . Although Respondent Month
Sales
Difference
ared toCom
Inventory Profit or Loss
claims he was a supervisor , it is plain that he ceased to have any supervi-
sory authority at least on and after 20 February , and well before the sig-
nificant events occurred. 984
p
Previous
Month
Change
May - 16.26% +$19,712 -$17,314
June + 6.25% - 4.087 +4,164
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sales
Difference
Month Compared to
Previous
Month
Inventory
Change
Profit or Loss
paldo had worked for the Company for over 5 years,
and for the last 3 years had been the primary operator of
the highly sophisticated N/C Burgmaster . In his case se-
niority was not determinative . Instead , Fleming states
that he had to choose between him and another senior
machinist (Areford-also an in-house committee
member); 35 and that he chose to retain the one with
lesser seniority because he felt Areford was "more versa-
tile." No explanation is provided why Fleming did not
consider laying off one of several other machinists who
had less seniority than Kapaldo or Areford.
Having found the asserted reasons for the layoffs to be
false , I feel an inference is warranted and taken that the
actual reason was an unlawful one;36 and on this record
that reason is not hard to find: the Tucker brothers and
Fleming simply effectuated their oft-repeated threat to
"get rid of" union supporters.37
Accordingly, I find that the layoffs of Hardesty,
McDonald , Strope , and Kapaldo were accomplished in
violation of Section 8(a)(3) and (1).
July -4 . 16% - 16,154 + 4,834
August - 2.35% + 3,501 - 7,574
September - 3.52% - 26,475 + 910
October - 15.31% + 5,212 - 9,279
November + 1.81% + 311 - 3,868
December - 3.99% - 30, 154 - 30,507
January .1985 - 2.73% -$ 4,151 -$ 4,377
The problem with this approach was pinpointed on
cross-examination when it was developed that the
amount of income from sales during the month (April
1984) which Respondent chose as the basis for all com-
putations on the exhibit was the fourth highest monthly
total achieved since January 1983; and that of March
1984 ranked highest during the same 15-month period.
The base month , therefore , is not representative and this
has resulted in an exhibit which presents a distorted pic-
ture of Respondent 's financial position . In consequence,
and in the absence of other data, Respondent has not
provided information upon which an informed determi-
nation can be made whether economic conditions war-
ranted the layoffs.33
But even if an adequate showing had been made, an
economic justification for layoff is no defense if , as here,
laid-off employees are shown to have been selected for
discriminatory reasons. See NLRB v. Bedford-Nugent
Corp., 379 F.2d 528 , 529 (7th Cir. 1967); NLRB v. Denna
Products Co., 195 F.2d 330, 335 (7th Cir. 1952), cert.
denied 344 U.S. 827; Roskin Bros., 274 NLRB 413 (1985).
Plant Superintendent Fleming, supported by the
Tucker brothers , claims that he alone decided who
would be laid off.34 However , the reasons he gave for
selecting the four alleged discriminatees appear fabricat-
ed. He states that in -house committeeman Hardesty was
chosen because he "was a foreman and, at that period of
time, I didn't have enough work to keep my normal op-
erators busy and I didn't want to lay off one of my
normal operators and keep a supervisor ." As found earli-
er, Hardesty was not a supervisor at the time of his
layoff and had not worked in that capacity for at least 3-
1/2 months . Concerning in-house committeeman Strope,
I have found that at the time of his layoff, Fleming said
he would have found something for Strope to do if he
had not chosen to be on the other side of the fence. In-
house committeeman McDonald was told by Fleming
that he was being laid off because he was least senior in
the new pump department . That was true, but shortly
before his layoff an employee with more seniority than
McDonald (James Donley) was transferred into the de-
partment and another with less seniority (Rick Jones)
was transferred out; and I find the situation contrived.
At the time of his layoff, in-house committeeman Ka-
as Although Respondent's bookkeeper (Betty Olivetto) testified that
the Tucker brothers in order to alleviate a -bad cash-flow crunch" made
$95,000 (proceeds from loans on their insurance policies) available to the
company as working capital in early July 1984, that claim , too, is not
substantiated by any business record showing that the money was re-
ceived by the company . No explanation for the omission was given. In
the circumstances, I decline to credit the testimony.
39 The Tucker brothers each claim not to have had any input into
Fleming 's decisions in selecting individuals to be laid off.
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(1) and (3)
of the Act in the particulars and for the reasons stated
above, and that it is not shown to have violated the Act
in any other respect . I further find that those unfair labor
practices and each of them have affected , are affecting
and, unless permanently restrained and enjoined will con-
tinue to affect, commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices, I find it necessary to order it to cease
and desist therefrom and from further infringing on em-
ployee rights,38 and to take certain affirmative action de-
signed to effectuate the policies of the Act. Such affirma-
tive action will include an offer to reinstate Henry Har-
desty Jr., Frank McDonald , and John Strope to their
former positions (or to substantially equivalent jobs in
the event those positions no longer exist) and to make
them , as well as Ralph Kapaldo Jr. whole for any loss of
earnings or other benefits they may have suffered as a
result of the discriminations practiced against them, in
96 As found above, the day before Kapaldo was sent home for lack of
work and began his period of layoff, Respondent through D . Tucker ac-
cused both him and Areford of having "cooked up" a reason to delay the
scheduled election to accommodate the Union.
as NLRB v. Dant & Russell, 207 F .2d 165 , 167 (9th Cir . 1953); Shattuck
Denn Mining Corp. (Iron King Branch) v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
94 I find no merit in Respondent's contention that any inference of un-
lawful motivation is dispelled by its failure to lay off other employees
who openly favored the Union. As stated in Nachman Corp. Y. NLRB,
337 F.2d 421, 424 (7th Cir. 1964), "it is well established that a discrimina-
tory motive, otherwise established , is not disproved by an employer's
proof that it did not weed out all union adherents ." Similarly, the infer-
ence is not negated even if some laid off employees had no involvement
with the Union . Northwestern Publishing Co., 144 NLRB 1069 fn. 14
( 1963), enfd . 343 F. 2d 521 (7th Cir . 1965).
38 A broad remedial order is required because of the numerous and
overall egregious nature of the violations found. Regency Manor Nursing
Home, 275 NLRB 1261 (1985), Hickmott Foods, 242 NLRB 1357 ( 1979).
T & T MACHINE CO. 979
accordance with the principles set forth in F. W.' Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977 ); see generally Isis Plumbing Co.,
138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed99
ORDER
The Respondent, T & T Machine Company, Inc.,
Fairmont , West Virginia, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Terminating the employment of, or otherwise dis-
criminating against, employees because of their union
membership , affiliation , sympathy , support, activity, or
assistance , so as to discourage such or interfere with, re-
strain, or coerce them in the exercise of any right guar-
anteed by the Act.
(b) Threatening to terminate the employment, or to
otherwise retaliate against , employees for the reasons
stated in (a) above.
(c) Issuing oral or written warnings to employees to
harass, penalize , or otherwise discriminate against them
for sympathizing with or assisting any union.
(d) Promulgating , maintaining , or enforcing any no-
solicitation/distribution rule as a tactic to discourage em-
ployees from sympathizing with or assisting any union.
(e) Threatening employees with plant closure or re-
duction of jobs in the event they choose to be represent-
ed by a union.
(f) Singling out employees for close supervision and
harassment because of their sympathies or activities for
any union.
(g) Coercively interrogating employees concerning
their own or other employees' sympathies or activities
for any union.
(h) Soliciting employees to engage in surveillance of
other employees ' expressions of sympathy or activities
for any union.
(i) Attempting to instigate assaults on employees who
sympathize with or assist any union.
(j) Promising bribes and other benefits to employees in
order to induce them to refrain from supporting any
union.
(k) Requiring employees to refrain from any involve-
ment with a union as a condition of their employment.
(1) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self-
organization, to form , join, or assist any labor organiza-
tion, to bargain collectively through representatives of
their own choosing , to engage in concerted activities for
the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activi-
ties.
2.: Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer -Henry Hardesty Jr., John Strope, and Frank
McDonald immediate, full, and unconditional reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent jobs without prej-
udice to their seniority and other rights and privileges,
and make them, and Ralph Kapaldo Jr . whole with inter-
est for any loss of pay they may have suffered by reason
of their unlawful layoffs, in the manner set forth in the
remedy portion of this decision.
(b) Rescind all adverse personnel actions issued to the
above-named employees (as well as any record relating
to warnings issued to employee James Ervin about 11
May 1984) as a result of the discriminations here found
to have been practiced against them , and remove from
Respondent 's files any reference thereto and notify these
employees, in writing , that such actions have been ac-
complished and that the material will not be used against
them in any way. See Sterling Sugars, 261 NLRB 472
(1982).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant in Fairmont , West Virginia, copies
of the attached notice marked "Appendix."40 Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that allegations in the com-
plaints of violation not found herein be dismissed.
40 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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
99 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT question you, in violation of the Act,
about your or other employees ' union membership , affili-
ation , sympathies, desires, or activities.
WE WILL NOT ask you to spy and report on other em-
ployees' views or activities in regard to any union or any
effort to organize the plant.
WE WILL NOT single you out for close supervision and
harassment because you support the United Mine Work-
ers of America (UMW) or any other union.
WE WILL NOT threaten to close the plant or reduce
jobs because you may choose to be represented by the
UMW or any other union.
WE WILL NOT threaten to fire, lay you off, or other-
wise retaliate against you because you support the UMW
or any other union.
WE WILL NOT ask or in any way assist or encourage
you or anyone else to harass or assault employees who
support the UMW or any other union.
WE WILL NOT require you, as a condition of continued
employment , to agree to avoid any involvement with the
UMW or any other union.
WE WILL NOT establish or enforce any rule against so-
liciting support for the UMW or any other union or dis-
tributing union literature in order to discourage you from
siding with the UMW or any other union in any organiz-
ing drive.
WE WILL NOT layoff, fire, or otherwise discriminate
against you for siding with the UMW or any other union
in any organizing drive.
WE WILL NOT offer or give you bribes or other bene-
fits to induce you to side against the UMW or any other
union in any organizing drive.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of your rights to
self-organization , to form , join , or assist any labor organi-
zation , to bargain collectively through representatives of
your own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all of such ac-
tivities.
WE WILL offer Henry Hardesty Jr., John Strope, and
Frank McDonald immediate , full, and unconditional rein-
statement to their former jobs or, if not available, to sub-
stantially equivalent jobs without prejudice to their se-
niority and other rights and privileges; and WE WILL pay
them, and Ralph Kapaldo Jr., with interest , for all loss of
income and benefits suffered by them by reason of their
unlawful layoffs.
WE WILL eliminate from our records any indication
that Henry Hardesty Jr., John Strope, Frank McDonald
and Ralph Kapaldo Jr., were laid off for any fault on
their part, and WE WILL remove from our files any per-
sonnel action against them (as well as any record of
warnings given James Ervin on or about 11 May 1984)
found to have resulted from our discriminatory actions,
and WE WILL promptly notify them, in writing, that we
have done so and that the removed material will not be
used against them in any way.
T & T MACHINE COMPANY, INC.