Taylor-Dunn Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 799 (N.L.R.B. 1980)

TAYLOR-DUNN MFG. CO
Taylor-Dunn Manufacturing Company and Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW. Case 21-CA-17382
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLIO
On March 17, 1980, Administrative Law Judge
James T. Barker issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions 2 of the Administrative Law
Judge, except as noted below, and to adopt his rec-
ommended Order,a as modified herein.
1. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by terminating employee Smith. We agree for the
following reasons.
The General Counsel established a prima facie
case that Smith's discharge was unlawfully moti-
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bilhty unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We hase
carefully examined the record and find no basis for reversing his findings
In fn 8 of his Decision, the Administrative Law Judge inadvertently
refers to the date of employee Smith's final warning as December 7,
1978, and that of his discharge as December 8, 1978, whereas his earlier
findings and the record reveal that these events occurred on November 7
and 8, 1978, respectively
2 The Administrative Law Judge concluded that Respondent violated
Sec. 8(a)I) of the Act in misstating the law by asserting that the topic of
union dues checkoff was a mandatory, rather than voluntary, subject of
bargaining. However, it is well established that union dues checkoff is a
mandatory subject of bargaining. H. K. Porter Company, Inc., Dission Di-
vision-Danville Works, 153 NLRB 1370, 1372 (1965), enfd. 363 F2d 272
(D.C. Cir. 1966). Therefore, we do not adopt the Administrative Law
Judge's finding of a violation in this respect
The Administrative Law Judge further concluded that Respondent vio-
lated Sec. 8(aHI) of the Act in its letters of November 17 and December
15, 1978, by misstating the law by implying that employees would have
to pay union fines and assessments and accede to contractual dues-check-
off requirements in order to retain their jobs. In adopting these conclu-
sions, we emphasize that these misstatements were made in the context of
Respondent's repeated unlawful threats in its preelection letters, including
those of November 17 and December 15, that a victory for the Union
would destroy the employees' job security.
' In par (k) of his recommended Order, the Administratise Law
Judge used the broad cease-and-desist language "in any other manner."
We agree that such an order is warranted under the standards set forth in
llickmott Foods. Inc. 242 NLRB 1357 (1979)
252 NLRB No. 118
vated. Thus, prior to late September, Smith did not
support the Union. At that time, however, he
became a union activist. He attended organizational
meetings, and, at work, discussed the Union with
fellow employees on his free time, solicited signa-
tures on authorization cards, distributed leaflets,
and taped an authorization card to his locker. In
addition, it is clear that Respondent was well
aware of Smith's prounion activities. Two weeks
prior to his discharge, Smith proffered a blank au-
thorization card to Production Manager Junkins,
and, on October 23, Smith distributed leaflets
which listed him as a member of the union steering
committee. Thereafter, by letter dated October 25,
the Union sent a list of steering committee mem-
bers, which included Smith, to Respondent.
Respondent's animus toward the Union in gener-
al, and Smith's prounion activities in particular, is
amply demonstrated by the record herein. During
its vigorous antiunion preelection campaign, Re-
spondent engaged in numerous unfair labor prac-
tices, at least two of which were directed specifi-
cally at Smith. Thus, Respondent removed an au-
thorization card from Smith's locker on or about
October 6, 1978, and prevented him from distribut-
ing union leaflets on company property during
nonworktime on October 23. Finally, Respondent's
antiunion sentiments were revealed with unmistak-
able clarity in Junkins' comment, while directing
Smith's discharge, that firing Smith would "stop
some of the shit in the shop about the union .... "
Respondent, in rebuttal of the General Counsel's
prima facie case, contends that it discharged Smith
solely because of his poor absenteeism and tardi-
ness record. While Smith's attendance record was
poor throughout his 2-1/2-year tenure with Re-
spondent, we find no merit in this asserted defense.
Thus, in late July 1978, Smith had decided to
quit and seek other employment. Junkins, in an
action contrary to Respondent's established
policy, 4 convinced Smith to obtain a leave of ab-
sence rather than to quit. On Smith's last day prior
to taking the leave of absence, Junkins told Smith
that he was a "good man" and that Junkins
"hated" to lose him. Several weeks later, Smith
called Junkins about the possibility of returning to
work for Respondent. Junkins invited Smith to
return, and he began work on August 23, 1978.
Smith's absenteeism and tardiness problems contin-
ued subsequent to his return. Respondent, howev-
er, took no disciplinary action against him for more
than 2 months.
' According to a document given to new leadmen during the early
months of 1978, Respondent's leave of absence policy limited the grant-
ig of such lease to employees with good attendance records
799
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
Approximately a week prior to his termination,
on November 1, Smith again was absent from
work. On November 2, he received a warning
notice and Porras, his supervisor, told Smith that
Junkins was of the opinion that employees were to
come to work on time and be present each day,
and that he, Porras, would terminate Smith the
next time Smith was late or absent.
Smith was 10 minutes late on November 7, and
received another warning notice. The next day,
Junkins and Porras had a discussion regarding
Smith. This discussion ended with Junkins direct-
ing Smith's termination, saying that this "would
stop some of the shit in the shop about the union,
and besides he has been missing too many days
anyway." (Emphasis supplied.) Smith was dis-
charged by Porras about mid-day on November 8.
When Smith asked the reason for his termination,
Porras was noncommittal.
Thus, despite Smith's attendance history, Re-
spondent, contrary to its policy, convinced him to
take a leave of absence rather than to quit in July
1978, and rehired him several weeks later.5 Al-
though Smith's absenteeism and tardiness problems
continued subsequent to his return in late August,
Respondent did not discipline him until November
2. Significantly, Porras' warning on that date came
very soon after Respondent prevented Smith from
distributing leaflets in late October and its learning
of Smith's membership on the steering committee.
Further, Porras' noncommittal answer to Smith's
request for an explanation of his discharge, espe-
cially in light of Smith's attendance record, sug-
gests that this record was not the reason for his ter-
mination. Finally, Junkins' statement to Porras
clearly indicates that Smith's union activity moti-
vated his discharge, and that his poor attendance
was merely an afterthought or makeweight consid-
eration. Under all these circumstances, we are not
persuaded by Respondent's contention that Smith
would have been discharged on November 8 had
he not engaged in union activities. Therefore, we
find that Respondent has failed to rebut the Gener-
al Counsel's prima facie case,6 and we conclude, in
agreement with the Administrative Law Judge,
that Respondent violated Section 8(a)(3) and (1) of
the Act by terminating Smith.
2. The General Counsel excepts to the Adminis-
trative Law Judge's failure to find that Respondent
violated Section 8(a)(l) of the Act through a state-
ment made by Gaydos, the supervisor of the assem-
bly department. We find merit in this exception.
The record conains no evidence that. in rehiring Smith, Respondent
was giving him another or final opportunity t improve his attendance
; For a general discussioln of the burden of going forward once a prima
faiil case of unlawful discrimilation has been established se Wright
Line. a DLvision of Wright Line. Inc., 251 NLRB No 15( (1980).
During October and November 1978, Gaydos
engaged in break period conversations with lead-
men on the night shift. On several occasions the
group discussed the benefits then enjoyed by the
employees as compared to those contractually
available through the Union. During one such con-
versation, Leadman Diels asked Gaydos, "What
kind of bargaining do you do when a union comes
into a shop?" Gaydos responded, "You start from
ground zero." Diels asked if this meant that a com-
pany starts "at minimum wage," to which Gaydos
responded, "You bargain from minimum wage up."
Diels asked, "What about our benefits?" Gaydos
then said, "You have to bargain for them too. You
don't have them until you have a contract signed.
So actually you start with nothing until you actual-
ly had a contract that was okayed and voted in and
the whole bit." The Administrative Law Judge
found that Gaydos' remarks, while a technical vio-
lation of Section 8(a)(1) of the Act, were "so in-
nocuous and so readily comprehended and catego-
rized as such by the leadmen . . . as to warrant no
remedial action."
It is well established that "bargaining from
ground zero" or "bargaining from scratch" state-
ments by employer representatives violate Section
8(a)(l) of the Act if, in context, they reasonably
could be understood by employees as a threat of
loss of existing benefits and leave employees with
the impression that what they may ultimately re-
ceive depends upon what the union can induce the
employer to restore. On the other hand, such state-
ments are not violative of the Act when other
communications make it clear that any reduction in
wages or benefits will occur only as a result of the
normal give and take of negotiations. TRW-United
Greenfield Division, 245 NLRB No. 147 (1979);
Stumpf Motor Company, Inc., 208 NLRB 431
(1974). In our view, Gaydos' remarks clearly con-
veyed to employees a threat of loss of existing
benefits. In this regard, Gaydos' statements were
unaccompanied by any assurances that such losses,
if any, would be the result of the normal give and
take of collective bargaining and not of employer
retaliation. In addition, these comments were made
in the context of a preelection campaign replete
with numerous unfair labor practices committed by
Respondent, including its declarations of an antici-
patory refusal to bargain with the Union. See
Buckeye Tempo Gamble-Skogmo, Inc., 240 NLRB
723 (1979). Therefore, we find that Gaydos' state-
ments violated Section 8(a)(1) of the Act, and that
issuance of a remedial order for this violation is
fully warranted.
80)
TAYI.OR-DLUNN MFG CO.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Taylor-Dunn Manufacturing Company, Anaheim,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(h):
"(h) Threatening employees with the loss of ex-
isting wages and benefits during collective bargain-
ing and declaring or implying the futility of the
collective-bargaining process by expressing an an-
ticipatory refusal to sign a collective-bargaining
agreement with the chosen collective-bargaining
representative of its employees."
2. Substitute the following for paragraph 1(j):
"(j) Misstating the law pertaining to union fines
and assessments and employees' obligations under
contractual dues-checkoff provisions."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
interest in, or activity on behalf of, Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW, or any other labor organization.
WE WILL NOT grant benefits to employees.
including a benefit in the form of the elimina-
tion of minus bonus hours in the computation
of incentive bonus pay, when said benefits are
timed or effectuated for the purpose of unlaw-
fully influencing employees in the choice of a
collective-bargaining representative.
WE WILL NOT promulgate, maintain, or en-
force rules prohibiting employees from solicit-
ing for the Union, or any labor organization,
during nonworking time on company proper-
ty.
WE WILL. NOT promulgate, maintain, or en-
force rules prohibiting employees from distrib-
uting Union literature during nonworking time
in nonworking areas of company property.
WE WILL NOT enforce a rule prohibiting the
posting of any material or matter on company
bulletin boards or property in a manner which
imposes a greater restriction on the posting by
employees of union-related material or matter
than is imposed on other types of material or
matter.
WE WILL NOT impliedly threaten employees
with loss of employment if they select the
Union, or other labor organization, as their
collective-bargaining representative.
WE WILL NOT unlawfully promise benefits
in the form of wage increases as an induce-
ment to employees to vote against the Union,
or any other labor organization.
WE WIl.i NOT threaten employees with the
loss of existing wages and benefits during col-
lective bargaining, or declare or imply the fu-
tility of the collective-bargaining process by
expressing an anticipatory refusal to sign a col-
lective-bargaining agreement with the chosen
collective-bargaining representative of our em-
ployees.
WE WILL NOT inform employees that we
would not bargain collectively with the Union,
or any other labor organization, over the in-
clusion of a union-security or dues-checkoff
provision in any collective-bargaining agree-
ment with said labor organization.
WE WILL NOT misstate the law pertaining to
union fines or assessments and employees' obli-
gations under contractual dues-checkoff provi-
sions.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the National Labor Relations Act, as
amended.
WE WILL offer Dale E. Smith immediate
and full reinstatement to his former position of
employment or, if that position no longer
exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and
make him whole for any loss of wages he may
have suffered by reason of our discrimination
against him, with interest.
TAYLOR-DUNN
COMPANY
MANUFACTURING
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
case was heard before me at Santa Ana, California, on
October 30 and 31, 1979, pursuant to an amended com-
plaint and amended notice of hearing issued on July 30,
1979, by the Regional Director for Region 21 of the Na-
tional Labor Relations Board. The amended complaint
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was based upon an initial charge filed by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, herein called the
Union, on December 18, 1 9 7 8 ;t and a first amended
charge filed by the Union on March 28, 1979. The
amended complaint alleges violations of Section 8(a)(l)
and (3) of the National Labor Relations Act, as amend-
ed, hereinafter called the Act. The parties were provided
full opportunity to examine and cross-examine witnesses,
introduce relevant evidence, and file briefs with me.
Counsel timely filed briefs.
Upon the basis of the entire record, my observation of
the witnesses, and the briefs of the parties, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times materiel herein, Respondent has been a
California corporation engaged in the manufacture of
electric vehicles at a facility located in Anaheim, Califor-
nia.
In the course and conduct of its business operations at
its Anaheim plant, Respondent, during the 12-month
period ending September 30, purchased and received
goods and products valued in excess of $50,000 directly
from suppliers located outside the State of California.
It is conceded, and I find, upon the foregoing facts,
that at all times material herein Respondent has been an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes, and I find, that all times materi-
al herein the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
111. THE ALI.EGED UNFAIR LABOR PRAC'ITICES
A. The Issues
The principal issues in this proceeding are whether
Respondent (1) unlawfully terminated the employment of
Richard Diels and Dale Smith because they had engaged
in union or protected concerted activities; (2) maintained
and enforced rules prohibiting employees from engaging
in union activities and distributing literature relating to
the union activity of employees during nonworking time
and in nonworking areas of the plant facility; (3) granted
benefits, misstated applicable law, expressed an anticipa-
tory refusal to bargain over topics of vital interest to the
conditions of employment of unit employees and con-
veyed to employees the futility of selecting a union to
represent them; and (4) promised benefits and threatened
employees with a reduction in wages and loss of existing
fringe benefits, all for the purpose and object of interfer-
ing with, restraining, and coercing employees in the ex-
ercise of rights guaranteed in Section 7 of the Act.
Unless otherwise specified, all dates herein refer to the calendar year
1978.
B. Pertinent Facts
1. Background facts
At material times the following named individuals
have served in the position set forth opposite their re-
spective names and have been supervisors within the
meaning of the Act: David (Bob) Junkins, director of
production; Albert Porras, supervisor of the paint depart-
ment; Andrew Gaydos, supervisor of assembly depart-
ment; Charles Holliday, weld shop supervisor; Milan Ar-
delean, supervisory assistant, weld shop; and Norman
Hall, night production manager.
At pertinent times Respondent operated a day shift
which commenced at 6:30 a.m. and terminated at 3 p.m.
This shift was followed by the swing or night shift
which commenced at 3:30 p.m. and operated until 2 a.m.
Dale Smith worked in the employ of Respondent from
May 5, 1976, until November 8. At the time of his termi-
nation, he was employed as a chipper and grinder in the
printing department under the direct supervision of
Albert Porras. Porras is Smith's wife's sister's husband.
Richard Diels was employed by Respondent from
August 3, 1977, to December 7. Diels worked as a pro-
duction welder until February 1978 when he was pro-
moted to leadman on the swing shift. As a leadman,
Diels reported directly to Milan Ardelean and, until a
few days prior to his discharge, Diels also reported
through Ardelean to Andrew Gaydos. On or ahout De-
cember 4, Norman Hall succeeded Gaydos and played a
deciding role in the termination of Diels 3 days later.
In the summer of 1978, the Union commenced an or-
ganizing campaign among the Respondent's employees,
culminating in a Board election conducted on December
19. In the meantime in late September, Smith decided to
lend his overt support to the unionization effort, and he
manifested his support by attending organizational meet-
ings, conversing on union topics with employees on his
free time, soliciting signatures on authorization cards,
and distributing the Union's leaflets. 2 Smith taped a
union authorization card to his locker. Approximately 2
weeks prior to his termination, Smith also proffered a
blank authorization card to Production Manager Junkins.
Then, in late October Smith distributed a leaflet notify-
ing employees of a scheduled union meeting and, at ap-
proximately the same point in time, he distributed an-
other leaflet on which were listed the names of 24 em-
ployees then comprising the union steering committee.
Smith's name was among them. A letter containing an
identical list of names was dispatched by the Union to
Respondent.
Richard Diels first became aware of the effort of the
Union to organize employees in June or July. He gave
no active support to the effort until November 9 when
he attended a meeting and signed a steering committee
card identifying himself with the steering committee.
The following day he told Gaydos and Ardelean that he
had signed the card. Later he received a pledge card and
some literature from the Union. He distributed pledge
I Dale Smith testified that he opposed the Union until late September
and communicated his opposition to Porras. Porras testified to the con-
trary. It is unnecessary to resolve this conflict.
802
TAYLOR-DUNN MFG. CO
cards and solicited signatures. Moreover, on five or six
occasions, including November 22 and 23, he distributed
union literature, usually at the entry gate to the plant. In-
cluded in the literature distributed, were two separate
leaflets on which he and two night shift welders, whose
work Diels directed, were listed as members of the steer-
ing committee. In this literature, Dale Smith was also
listed as a steering committee member. Diels also distrib-
uted shirt pocket protectors bearing a U.A.W. insignia to
employees, and to Milan Ardelean, who told him it was
not a good idea to wear it in the shop.
On or about July 1, 1976, Respondent issued to its em-
ployees a document entitled, company Benefits, Policies
and Plant Rules-Hourly Employees. Included within
the section entitled, Safety and Plant Rules are the fol-
lowing provisions:
Listed below are violations of Taylor-Dunn Man-
ufacturing Plant and Safety Rules.
m. Vending, soliciting, or collecting contributions
for any purpose whatsoever on Company time on
the premises, unless authorized by Management.
n. Distributing written or printed matter of any de-
scription on Company premises unless approved by
Management.
o. Posting or removal of any matter on bulletin
boards or Company property at any time unless spe-
cifically authorized by Management.
In a document distributed to supervisory personnel
during times pertinent herein, the following provisions
appear:
LEAVE OF ABSENCE
Leave of absence should be held to a minimum but
may be granted for good cause.
A leave of absence may only be granted to an em-
ployee who has completed their [sic] probationary
period and has had a good attendance record.
2. The alleged proscribed conduct
a. The prohibition against union activities and
distribution of literature
After becoming active in support of the Union, Smith
taped a union authorization card to his locker on the
plant premises. On or about October 6, he observed that
the card had been removed and he asked Porras if he
knew who had removed it. Porras said that he had done
so at the direction of Junkins. Porras added, "there is not
supposed to be anything taped to company property."
Smith credibly testified, in substance, that early in his
employment he posted three pictures in his general work
area, and he taped a fourth picture to his locker. Three
of the four pictures remained posted throughout the
entire course of his employment.
On or about October 23, Smith stood near the door of
the guard shack inside company property and distributed
a union leaflet. The guard requested one of the leaflets
and read it. Thereupon he placed a phone call saying,
"They are down here handing out papers about the
Union." After he hung up, the guard said to Smith,
"Would you please get off the property." Smith credibly
testified that during the course of his employment he
sold candy bars, raffle tickets, and handicap buttons for
the special Olympics on company property. He testified
that Junkins purchased a button from him. He did not
caution Smith about selling them on company premises."
b. The promise of benefits
On October 20, over the signature of its treasurer Re-
spondent distributed a three-page letter addressed to all
of its employees. The letter contained the following lead
paragraphs:
For many years, Taylor-Dunn Manufacturing Com-
pany has taken great pride in being an employee
oriented company. We have attempted to build a
good working atmosphere coupled with fair and
competitive wage rates and fringe benefits. Many of
the things offered at Taylor-Dunn are a result of
employee participation in suggestions for improve-
ment.
During the past two to three months, we have been
developing a rather comprehensive program of job
descriptions and pay grades for the hourly employ-
ee. This program will be completed and announced
by January 1, 1979. Some additional decisions have
been made regarding pay policies and fringe bene-
fits as a result of suggestions and comments from
the Labor Relations Committee.
The letter then outlined improvements in sick leave, va-
cations, wages, and group hospital and medical coverage,
effective January 1, 1979. Additionally, the letter defined
a pay period change beneficial to the employees and
treated with the incentive program in the following
manner:
The direct production incentive is being reviewed
which will result in higher incentive earnings for
the direct production people which in turn will
result in higher incentive bonus for indirect produc-
tion employees.
The letter ended with the following paragraph:
We recognize that the rapid growth of the company
during the past two to three years has created the
need for changing our personnel policies and proce-
dures, as well as other internal systems. As stated
earlier, review and updating the personnel policies
has been in process for the past two to three months
and will be complete by January 1, 1979. We appre-
:' he foregoing is based upon the credited testimony of Dale Smith I
have also considered the testimony of Albert Porras and credit it only to
the extent that it is consistent ith the foregoing findings
Safeti and Plant Rules, pars m. n. and o remained in full force and
effect at all pertinent times
DFLCISIONS OF NATIONAL LABOR RELATIONS BOARD
ciate your patience and understanding, and look for-
ward to your future with the company.
Also on October 20, Respondent distributed a separate
letter to its production supervisors, leadmen, and direct
incentive employees. The letter dealt exclusively with
the incentive system and noted that in the past year dis-
content had been voiced with respect to the current in-
centive system and "its inequity." The letter noted that
management was aware of the discontent and had under-
taken a review of the system, which had included meet-
ings with top management and supervision wherein em-
ployee feelings and thoughts on the system had been
voiced. The letter then described four changes for imme-
diate implementation, as well as three other areas of po-
tential modification requiring a "vast amount of planning
and system changes."
Subsequently, on December 8, Respondent dispatched
a letter over the signature of its president and vice presi-
dent to all of the shop employees. In the letter, it was
announced that computation of incentive earnings for the
previous 3-month period had been completed and the in-
centive earnings would be distributed as normally sched-
uled on December 15. Contained in the letter were the
following observations:
We will be distributing an average bonus of $292 per
employee to 140 employees. This more than doubles
the distribution of an average bonus of $133 per em-
ployee for the quarter of June. July and August. There
are two reasons for this increase.
For one, we have reduced our employee turnover
and more of our people stayed on the job to
become eligible. With this reduction in turnover,
our productivity increased.
Secondly, there has been considerable dissatisfaction
with our treatment of "minus bonus hours" by our
employees and management as well. We told you
back last summer that we planned to revise our in-
centive system to eliminate the flaws in it. We have
not completed our study and revision because this is
very complex, but you will note in our incentive
figures to be distributed next week that we have
eliminated the penalties of minus bonus hours, such
as "down" time and "set-up" time because these in
the main were not the fault of our employees.
No reference to the "minor bonus hours" factor in com-
puting incentive earnings had been contained in either
communication distributed by Respondent on October
20.
c. The preelection communications
In the month preceding the December 19 Board elec-
tion, Respondent distributed to its shop employees four
seperate letters dated November 17, December 5, 8, and
15, respectively. Each was over the signature of Re-
spondent's president and vice president.
Topical focus was given the November 17 letter by its
opening paragraph stating:
We want to write to you about two important items
at this time. The first relates to the coming union
election. The second relates to several problem
areas in our operation which affect our shop em-
ployees.
The letter then called attention to the pendency of the
December 19 Board election and stated the intention of
management during the ensuing 4 weeks to discuss
"every important issue involved." In relevant part, the
letter then proceeded as follows:
We have over four weeks before you "vote on
whether or not you want to be represented by the
United Auto Workers Union, which has probably been
responsible for more strikes, more lost time from work
and more lost productivity in plants it represents than
any other union in the country
During these coming four weeks we will discuss
every important issue involved and we will present
all the facts so that you will be well informed. In
this letter we will touch on several overriding
issues, so that you will know where the manage-
ment of Taylor-Dunn stands and what it is deter-
mined to do. In the final analysis the choice is
yours, but we, too, have our options and our minds
are irrevocably made up. The union cards you have
signed have brought about the election. How you
vote on December 19th will be a brand new choice.
We will be urging you to vote "NO" and we'll tell
you why.
The most important question you need answered
is "what can we lose if we vote the UA W in as our
bargaining agent?" Our answer is that you have every-
thing to lose, your job security and a good place to
work. Those of you who have been with us for a
while know how Taylon-Dunn operates, and that
you now have good relations with your company,
good wages and good benefits and, most important,
total job security. We don't lay people off for lack
of work if you've been here any length of time and
we still are a growing company. We know that we
have certain problems of concern to all of us, but
we are in the process of solving them.
What can you expect if the UAW wins the elec-
tion? We know the UAW will ask for everything:
the union shop, dues check-off, super seniority for
union stewards, higher wages and benefits. We
don't believe in forcing our people to join any
union to work at Taylor-Dunn. The UAW can ask
for the union shop and check-off, but we have the
final say. We tell you now we will never compel our
employees to join any union, pay initiation fees and
union dues and subject them to union discipline, fines
and assessments in order to work here. We are and
will be at total war with the UA W. As proof of how
we feel, we have just fired one of our supervisors
who was supporting the UAW behind our backs.
He lied to us because he was part of our manage-
804
TAYLOR-DUNN MFG CO.
ment which is totally committed to keeping the
UAW out.
We are certain that the Autoworkers would destroy
your job security and your company's ability to com-
pete. We will not permit this to happen. We recom-
mend that you tell the UAW to get lost. It is just a
myth that the UAW can get our employees higher
wages and benefits without getting our employees
involved in strikes, bitterness, loss of jobs and the
destruction of good relations.
We also want to touch on several problem areas
in our operation which we, at the management
level, have been studying and trying to resolve over
the past several months.
We know that we will be accused by the United
Auto Workers of solving these problems at this time
to discourage you from supporting this union at this
time. All we can say is that we have been planning
this for the past several months and without any
union activities we would be doing exactly the same
thing. We want to stabilize employment here and
make this the best place to work possible.
The first problem of importance to you that we will
try to solve is our incentive plan. We know that many
of our shop employees have been dissatisfied with
the plan, which in recent months has produced less
earnings to you than previously.
We will be revising the administration of our in-
centive plan as rapidly as possible and we will be
having personel meetings with all of our employees
affected by the incentive plan to explain the revised
program, so you will know exactly where you
stand.
The next important problem affecting you has to do
with the administration of our wage rate structure. We
have heard very legitimate complaints that some of
our employees, especially the new ones, don't know
exactly what the wage ranges are for their specific
job classifications and they don't know how they
can move from the bottom to the top of their re-
spective ranges.
Again, we in very short order will clarify our
policy, inform each and every employee regarding
it and give every one of you a written statement of
how our wage rate administration affects you per-
sonally. Our policy will be designed to move the
employees up the ladder on a time basis and each
one of you will know exactly when you will be re-
viewed, when you can expect your increases and
how long it takes to get to the top. In the process
we will upgrade our rates based on the most recent
competitive rates in this area and take into account
the most recent increases in cost of living.
Just remember this. If the UA W is voted in byv you,
we know it will completely destroy your job ecurity
here. This we cannot and will not permit to happen.
The December 5 letter contained the following:
As we stated to you in our last letter regarding the
union election, we intend to discuss all important
issues involved, and to keep you fully informed In
this letter, we want to discuss primarily our new
wage structure which we have been in the process
of updating and revising for many months, and con-
cerning which we wrote to you in October when
we announced our comprehensive program of de-
veloping job descriptions, pay rates and wage in-
creases which would go into effect on January 1st.
The UAW further claims that you should give
yourself an early Christmas present by voting yes
on December 19th. Our only answer to that is that
if you do that, you will in fact destroy your job se-
curity, the very thing which you should treasure
most at Christmas time, as well as for a long time to
follow.
The reference in the same handout that the union
will get you whatever you deserve at the bargaining
table is pure hogwash because the union has noth-
ing whatever to give and the union has no power to
force Taylor-Dunn to agree to anything unless it
wants to. Only Taylor-Dunn is in a position to satis-
fy your needs and give you job security with good
competitive wages and benefits.
We told you recently that "we are and will be at
total war with the UAW." Apparently some of this
has been misunderstood by some of our employees.
We are not at war with our employees and never
will be, but we are at war with the United Auto
Workers which has been responsible for more strikes,
more lost time without pay from work, and more lost
productivity in plants it represents than any other
union in the country.
As an indication of how the United Auto Workers
Union operates, we call to your attention the delib-
erate slowdown in the Assembly Department which
has resulted in the lowest productivity we have
ever had there. This is no accident, and we are con-
vinced that this was engineered deliberately in that
particular department by the UAW and some mem-
bers of the union steering committee. This is just a
sample of UAW's policy of destroying productivity
in plants it represents and we are telling each and
every one of you that we cannot and will not toler-
ate this. We are not intimidated by the UAW and if
we have proof of deliberate slowdowns on the part
of any employees, we will take immediate steps to
discharge all those responsible.
This is what we meant and still mean in declaring
all out war on the UAW. because we are certain
that this union would destroy your job security and
our ability to compete. To repeat, we cannot and
will not permit this to happen, and we expect that
X(05
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the vast majority of our shop employees will agree
with us on December 19th.
We now want to bring you up to date on the real
purpose of this letter, which is to tell you how we
will meet the commitments we made to you this last
summer regarding a very comprehensive program
of job descriptions, pay rates and wage increases
which we had programmed to go into effect Janu-
ary 1, 1979. This program started long before the
UAW filed its petition for an election with the Na-
tional Labor Relations Board. Each and every one of
you will be told personally by your supervisors within
the next several days on the details of our new wage
program and particularly what each employee can
expect by way of pay increases on January 1, 1979 and
thereafter under a fully automatic progession and pay
increase policy.
When our supervisors finish talking to you, each of
you will know what your job description is, what
your rate range for your job is, the amount of in-
crease and your new rate as of January 1, 1979, and
the amounts and dates of increases thereafter. The
cornerstone on this wage policy is our review of
area rates and cost of living twice yearly, January
Ist and July Ist of each year, at which time we will
update our wages accordingly. This will be done
automatically, and this is our total commitment to
our employees.
We started the above policy last July 1, 1979 when
we discontinued our long standing merit review
program and granted a general pay increase
amounting to 12.8 percent. On January 1, 1979, the
pay rates in the plant will be increased by 8.2 per-
cent on the average. Another automatic review and
increase is programmed for July 1, 1979.
Contained in the December 8 communication, as found
above, was a discussion of the incentive program and an
announcement of a scheduled distribution on December
15 of an averege bonus twice the amount of that paid
employees the previous quarter. Moreover, as above
found, the letter also referred to the "considerable dissat-
isfaction" among employees and management with the
present treatment being accorded "minus bonus hours."
Further, following a discussion of an anticipated revision
in the incentive system and a discussion of fringe benefits
as contained in a recently redesigned and distributed em-
ployee booklet, the letter closed with the following state-
ment:
We firmly believe that the United Auto Workers
would be an absolutely destructive outside source if
this union represents our employees. Our future and
your job security is at stake. We know what we
have to do to protect the future of Taylor-Dunn
against the UAW which doesn't give a damn about
our ability to compete successfully. We are confi-
dent that you know that the only way you can pro-
tect your job security is to vote NO on December
19th.
The letter of December 15 contained the following
statements:
This will be our final letter to our employees
before the union election is conducted by the Na-
tional Labor Relations Board on Tuesday, Decem-
ber 19th in our plant. We want to cover only the
most important facts and issues here. First of all, the
ballot is secret and only you will know how you vote.
Whatever union cards our employees signed previously
are not binding and do not count.
The third and biggest lie by the UAW is that a
"signed UA W contract would guarantee answers." In
other words, the UAW is guaranteeing that it will
win the election, get a signed contract, and will
make good on all its promises. That's a guarantee
that is absolutely worthless because UA W has nothing
to give-only Taylor-Dunn is in that position.
Now we will give you an absolute guarantee and
that's one guarantee we can deliver. We cannot
guarantee that Taylor-Dunn will win the election-
only you, our employees control that, but we can
and do guarantee that UA W will never get any signed
contract from us.
If we lose, we will negotiate. What can the
UAW do for you at the bargaining table? Simply
ask for higher wages and benefits. You should know
by now that the final decision on what kind of con-
tract we will sign is up to Taylor-Dunn. We have
the absolute right under the law to refuse to grant any
union demands if we decide they are not in our com-
pany's and our employees' best interests.
We are positive that the union will demand a
union shop and deduction of monthly union dues
and initiation fees. A union shop and check off, if
we agree to it, would require that all our employees
join and be members of the UAW and have their
initiation fee and their monthly dues taken out of
their paychecks in order to work here. This would
force us to fire anyone who refuses to become a
member of the union. If we were to lose the elec-
tion, the union shop and check off would certainly
be one of the key issues for negotiation. We are tell-
ing you now that we will flatly reject this demand.
We doubt that the union has told you that labor
negotiations is a tough process, with the union
having the right to make any demand it wants and
the company assessing its position on how much it
can afford to stay competitive and profitable and
then taking a stand at that point. The same holds
true on issues such as union shop and check off.
We know that UA W will never sign a contract
based on our last offer. Our last offer will be based on
current wages and benefits, already the highest in our
industry which has no unions, and a flat rejection of a
union shop and other items which the UA W always in-
sists on, which are vital to UA W's interests but worth-
less to employees.
806
TAYLOR-DUNN MFG. CO.
You know what we have done on wages, benefits
and incentives and you know of our commitments for
semi-annual adjustments and automatic wage progres-
sion in the future. That's an absolute commitment
without any union representation, which we have nmade
to you in writing. 7This i a binding contract compared
with L.4 W's worthless campaign promises. We know
we cannot live with the UAW since its philosophy
of reducing productivity of its members would
eventually break us. We will fight this all the way
down the line.
When negotiations end, the union and the em-
ployees would either have to accept Taylor-Dunn's
last offer or strike. There are no other choices. Be-
cause we will never agree to the UAW's demands,
the union's choice will have to be to strike, and
with it bitterness, lost wages, and loss of jobs by
our employees who go on strike.
We don't want this to happen any more than you
do, but you should also know that if there is a strike
because some of you and the union so decide after
we have disagreed at the bargaining table, we will
not close our plant but will stay open. Each of you
will be welcome to work if there is a strike-we
will have jobs for you. For those who were to choose
to strike, we have the right permanently to replace any
striking employees and we will do that without fail.
d. Verbal threats to reduce wages and benefits
During break periods in the months of October and
November, Gaydos engaged in conversations with the
leadmen on the night shift, including Diels. The conver-
sations covered a wide range of topics, including the
comparable level of wages and benefits presently en-
joyed by employees as compared with those contractual-
ly available through the Union. On one occasion, Diels
asked Gaydos, "What kind of bargaining do you do
when a union comes into a shop?" Gaydos responded,
"You start from ground zero." Diels asked if this meant
that a company starts "at minimum wage," and Gaydos
responded, "You bargain from minimum wage up." Diels
then asked, "What about our benefits?" Gaydos respond-
ed, "You have to bargain for them, too. You don't have
them until you have a contract signed. So actually you
start with nothing until you actually had a contract that
was okayed and voted in and the whole bit." 4
e. The termination of Smith
(1) The setting
As found, Smith entered Respondent's employ on May
5, 1976. Smith had heard through his brother-in-law,
Albert Porras, about a job opening at the plant for which
T 'he firegoing is based upon the credited testimony (lf Richard Diels
I credit the testimony of Andrew Gasdos to the effect that a discussion
of comparable benefits transpired between him and employee o the
night shift I further credit (adoC testimorie ny the effect that there was
some exchange of iews ithl respect to the level at which the Conapanly
would commence bargaining ith the Uinion ctlccrning wages aid hene-
fits However. I am corrnlllced by my oibservation of (ialydol as lie tsli-
fied at the hearing before me concerning Ihis topic. hat he had no recall
or recollection of tlie details of the dliscussilonl aid the specifics of his
comments aitil t1%ss',er%
he considered himself qualified. He spoke with Bob Jun-
kins who inquired if Smith could be on the job "every-
day." In substance, Smith told Junkins that his son had
been born with multiple birth defects, and that, while no
extraordinary complications beyond those implicit in the
congenital condition of his son were then present, surgi-
cal procedures were contemplated with hospital and care
demands which could not be accurately predicted. Jun-
kins told Smith he would try him on the job, and Smith
was hired. 5
Smith was recognized by management throughout the
course of his employment as a good worker. However,
Smith estimated that during 1976 he was absent on 15 or
20 occasions due primarily to his child's medical condi-
tion. In 1976 and 1977 Smith's infant was hospitalized for
approximately 4 months and had 38 major operations. In
1977, Smith missed work on a substantial number of oc-
casions. On November 21 he was issued his first warning
notice for tardiness. As 1977 drew to a close, he was
absent from work on December 19, and he lost days of
work in the early part of January 1978. Thus, he was
absent 4 entire days on January 6, 10, 11, and 19. On this
latter date, he was issued a final warning notice for ex-
cessive absences. On January 30 he called in sick with
pneumonia and was absent during the following 9-day
period. Between February 27 and July 30, Smith missed
6 complete days of work and portions of 26 other days.
His absences in this latter respect ranged from a loss of a
quarter hour of time to 6-3/4 quarter hours. On March 2
he was issued a second written warning notice for tardi-
ness and again on June 20 he was issued a written warn-
ing for tardiness. This notice, like the previous notice of
March 2, was identified as a second notice. In the period
between the March 2 notice and the June 20 notice,
Smith had been absent portions of 10 working days and
had missed 4 full days of work. On June 28 Smith missed
1 hour of work, and on the following day he was absent
15 minutes during the day. Then, on July 14 he was
placed on leave-of-absence for an 8-hour period, and on
July 24 he was absent a full day. This resulted in the is-
suance of a third notice for absences. The notation on
the notice contained the following, "Didn't come to
work on Monday 7/24/78. Had personal business to take
care of."
At approximately this point in time, Smith reached a
voluntary decision to seek employment elsewhere, and
on July 31 he applied for and was granted a leave-of-ab-
sence. On his last day of work prior to his leave-of-ab-
sence, he was complimented by Junkins who called him
"a good mall" whom he hated to lose. 6
I he credited testimony of Dale Smith establhshes the foregoing. Jun-
kils was no longer in he employ of the Company a he time of the
hearing, and it is asserted that he W as ulnavailable to Respondent as a it-
ness 11n an;1)y rcl. the General Counsel does not urge adverse inferences
arising from JunkinC fat ilure to testify and none are drawn with respect to
this or an5 other facet of his case wherein his lestimony may have been
pertllcll
'i e 1`i rcgoiig i hbased upion he credncid and undisputed testllmlns)
of Dale Sililh, supp