Teksid Aluminum Foundry

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 711 (N.L.R.B. 1993)

711
311 NLRB No. 71
TEKSID ALUMINUM FOUNDRY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The judge credited Jeffery Clement’s testimony regarding a Feb-
ruary 25, 1989 meeting. At the meeting Director of Human Re-
sources Richard Figari told supervisors and coordinators (who are
employees) that although ‘‘we couldn’t come out and openly threat-
en an employee about the Union . . . [we should keep our] eyes and
ears open because Teksid would not allow a union.’’ The judge,
however, failed to consider whether this statement was unlawful in-
struction to supervisors and employees to engage in surveillance of
the employees’ union activities. We find that the Respondent thereby
violated Sec. 8(a)(1) by additionally engaging in, and creating the
impression of, surveillance.
We affirm the judge’s dismissal of the allegation that the Respond-
ent unlawfully engaged in surveillance by means of a sign-in/sign-
out procedure that required employees to state their reason for enter-
ing the premises. We find the evidence insufficient to establish an
unlawful purpose or effect. There is, for example, no evidence that
the statement, ‘‘I work here,’’ would not have been an acceptable
reason.
Member Devaney finds it unnecessary to pass on whether the Re-
spondent’s mid-March 1989 sign-in/sign-out procedure and Richard
Figari’s remarks at the February 25, 1989 meeting violated Sec.
8(a)(1) of the Act, in view of his adoption of the judge’s findings
that Figari and Timothy Burton, the production supervisor, engaged
in unlawful surveillance of employees’ union activities on March 4
and 17, 1989, respectively. Any additional violations would essen-
tially be cumulative and would not materially affect the Order.
The judge found that by posting on August 22, 1989, a notice enti-
tled ‘‘THE TRUTH ABOUT NEGOTIATIONS’’ the Respondent
unlawfully threatened wage losses if the Union won the election and,
further, that its attempted clarifications on August 29 and 30 (the
judge inadvertently wrote September) were ineffective. We agree.
The August 22 notice was ambiguous. For the Respondent’s subse-
quent attempts at clarification to have been effective, they would
have had to be timely, unambiguous, specific in nature, adequately
published, accompanied by assurances against future interference
with its employees’ Section 7 rights, and free from other contem-
poraneous illegal conduct. Passavant Memorial Hospital, 237 NLRB
138 (1978). The August 29 and 30 notices were ambiguous and were
posted at least 5 days after the original coercive notice and no more
than 2 days before the election, in an atmosphere of pervasive unfair
labor practices, and without the requisite assurances against future
unlawful conduct by the Respondent. Accordingly, we adopt the
judge’s finding that the Respondent’s attempts to negate its threats
were ineffective.
With respect to the violation based on the August 22 notice post-
ing, Chairman Stephens agrees that the reference to ‘‘frozen’’ bene-
fits is an unlawful threat. He finds this case distinguishable from
Mantrose-Haueser Co., 306 NLRB 377 (1992), in which he filed a
concurring opinion. In that case, unlike here, the statement was fol-
lowed in the same document by other statements indicating that ben-
efits could go both up and down in the negotiating process; and
there, unlike here, the statement was an isolated remark in an other-
wise totally lawful campaign.
In adopting the judge’s decision that the suspension and discharge
of employee Gary Johnson was unlawful, we note particularly that
the Respondent did not except to the judge’s finding that the Re-
spondent unlawfully discriminated against Johnson by issuing him an
unsatisfactory performance evaluation, placing him on probation, and
withholding his scheduled pay increases.
Member Devaney does not adopt the judge’s finding that the May
4 memorandum issued to Steve Forcum was not unlawful. Rather,
Member Devaney finds that the memorandum was part and parcel
of the Respondent’s pattern of harassment against the principal em-
ployee organizer for the Union and violated Sec. 8(a)(3) and (1) of
the Act.
Teksid Aluminum Foundry, Inc. and Aluminum,
Brick and Glass Workers International Union,
AFL–CIO, CLC. Cases 26–CA–13070, 26–CA–
13134, 26–CA–13322, 26–CA–13411, 26–CA–
13473, 26–CA–13522, and 26–RC–7180
May 28, 1993
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 19, 1991, Administrative Law Judge
Robert T. Wallace issued the attached decision. The
Respondent and the General Counsel filed exceptions,
briefs, and answering briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and to adopt the recommended Order as modified.
During a series of employee meetings two days be-
fore the election, President Tarantini expressed his
opinion about the Union and asked employees not to
‘‘make me negotiate against you.’’ The judge found
that Tarantini’s statement constituted an unlawful
threat to adopt a regressive bargaining posture. We dis-
agree. We think that the statement is ambiguous and,
at most, reflects the reality of the collective-bargaining
process. Fern Terrace Lodge, 297 NLRB 8 (1989).
Accordingly, we find that the statement did not violate
Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Teksid Aluminum Found-
ry, Inc., Dickson, Tennessee, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order, as modified.
1. Substitute the following for paragraph 1(g).
‘‘(g) Threatening to discharge, freeze wages and
benefits, or otherwise punish employees for supporting
the ABGWIU or any other union.’’
2. Substitute the following for paragraph 3.
‘‘IT IS FURTHER ORDERED that the election, held on
September 1, 1989, is set aside and that Case 26–RC–
7180 is severed from Cases 26–CA–13070, 26–CA–
13134, 26–CA–13322, 26–CA–13411, 26–CA–13473,
and 26–CA–13522, and remanded to the Regional Di-
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise indicated.
2 General Counsel’s request to withdraw allegations in pars. 40 and
41 of the complaint relating to employee Charles Smith was granted
at the trial.
rector for Region 26 for the purpose of conducting a
new election.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
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 pro-
tected concerted activities.
WE WILL NOT discharge, suspend, issue warnings,
withhold earned wage increases, impose more onerous
working conditions, give low evaluations or otherwise
discriminate against you for supporting Aluminum,
Brick and Glass Workers International Union, AFL-
CIO, CLC or any other union.
WE WILL NOT coercively interrogate you about
union support or union activities.
WE WILL NOT announce and enforce overly broad
no solicitation/talking rules and unduly limited access-
to-company-property rules so as to inhibit, deter, or
prevent union organizational efforts.
WE WILL NOT engage in surveillance or create an
impression of surveillance so as to inhibit, deter, or
prevent union organizational efforts.
WE WILL NOT coercively interrogate you about your
union activities, including wearing union insignia, or
sympathies.
WE WILL NOT solicit or promise to remedy your
grievances in order to undermine union organizational
efforts.
WE WILL NOT threaten to discharge you, freeze your
wages and benefits, or otherwise punish you for sup-
porting the ABGWIU or any other union.
WE WILL NOT threaten blacklisting or other reprisal
to inhibit, deter, or prevent your having recourse to the
Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer immediate, full, and unconditional
reinstatement to Randy Crowell, Bobby Dickens, Ste-
ven Forcum, and Gary Johnson to (except for Crowell)
positions held on the day of their unlawful discharges
but as to Crowell, WE WILL offer him immediate, full,
and unconditional reinstatement to the position he held
prior to his unlawful transfer on March 1, 1989 (and
if those positions no longer exist—to substantially
equivalent jobs) without prejudice to their seniority
and other rights and privileges, and make them, and
Wade Ross, whole with interest for any loss of pay
they may have suffered by reason of their unlawful
discharges and/or suspensions.
WE WILL rescind all adverse personnel actions
issued to the above-named employees, and to Bobby
Felts, John McElhiney, and Kelly Burgess as a result
of the discriminations here found to have been prac-
ticed against them, and expunge from our files any ref-
erence thereto and notify these employees, in writing,
that such actions have been accomplished and that the
expunged material will not be used as a basis for any
future personnel actions against them or made ref-
erence to in any response to any inquiry from any em-
ployer, prospective employer, employment agency, un-
employment insurance office, or reference-seeker.
TEKSID ALUMINUM FOUNDRY, INC.
Jane Vandevanter, Esq., for the General Counsel.
William A. Blue, Richard O. Brown, Scott Watson, and Bruce
P. Crary, Esqs. (Constangy, Brooks & Smith), of Nash-
ville, Tennessee, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Nashville, Tennessee, over 11 days during
the period January 30 through April 11, 1990. The charges
were filed by the above-named Union between March 7 and
December 14, 1989,1 and complaints were issued between
April 17 and December 8 culminating, on the latter date,
with a consolidating order and sixth amended consolidated
complaint.2 Pursuant to an election petition in Case 26–RC–
7180 filed on June 26, an election was held on September
1. The Union lost by a vote of 97 to 60, with 3 challenged
ballots. Objections to the election parallel allegations in the
consolidated complaint and, on October 12, they were re-
ferred for hearing and decision with that complaint.
The complaint alleges numerous violations of Section
8(a)(1) of the National Labor Relations Act, including two
methods of unlawfully restricting employee access to Re-
spondent’s facilities, three instances of surveillance of union
activities, five instances of prohibiting protected activities,
multiple coercive interrogations and threats of discharge, re-
713TEKSID ALUMINUM FOUNDRY
3 Respondent subsequently filed a motion to amend its brief in sev-
eral respects. Since only editorial changes are involved, the unop-
posed motion is granted.
4 Respondent is affiliated with a firm headquartered in Italy. It has
other ‘‘competing’’ affiliated companies in Mexico and Brazil. A
number of its supervisory personnel are Italian nationals.
5 In the RC case, coordinators (team leaders) were deemed em-
ployees entitled to vote in the election.
6 At the time he testified Clements was no longer employed by Re-
spondent, having voluntarily quit in early March. His account is not
disputed and I credit it.
7 Williams denies that he accused Felts of holding a union meet-
ing, stating that ‘‘someone told him at a later date that it [the meet-
ing] concerned union activities.’’ He admits, however, that the infor-
mation which prompted him to speak to Felts was given to him by
Branch and Kilgore. Since those individuals described the incident,
including their conversation with Santos, in a memo to Williams
written on February 23, I find it highly unlikely that in initially re-
porting the matter they did not tell him about a ‘‘union meeting.’’
Accordingly, I credit Felts’ account in this matter.
prisal, and wage freeze, as well as soliciting grievances,
impliedly promising to remedy them and refusing to bargain
if the employees chose the Union as their collective-bar-
gaining representative. In addition, it is alleged that Respond-
ent violated Section 8(a)(3) by discriminatory warnings (6),
suspensions (4), discharges (4), withholding of earned wage
increases (3), and by imposing more onerous working condi-
tions.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent,3 I make
the following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
Respondent, a corporation, produces aluminum cylinder
heads for automobile engines at a plant in Dickson, Ten-
nessee, from where it annually ships to points outside Ten-
nessee goods and materials valued in excess of $50,000.4 It
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 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.
II. ALLEGED INDEPENDENT VIOLATIONS OF
SECTION 8(A)(1)
Background. The plant at Dickson began operations in
early 1987 and rumors of union activity surfaced shortly
thereafter. Richard Figari, Respondent’s director of human
resources, states that in the summer of 1988 he received ‘‘a
lot of information’’ that union authorization cards were being
signed by employees; and he promptly held a series of meet-
ings with employees to counter the campaign. In early Feb-
ruary, he ‘‘began to get reports from supervisors and other
personnel that there was an active campaign going on at the
plant.’’ During that period, Supervisor Mike Bullington in-
formed group leader trainee Jeffery Clements that ‘‘we’re
going to have to do something about that guy [mechanic
Bobby Felts], because he’s pushing real hard for the union
. . . we need to get him wrote up or get rid of him.’’ There-
after, in Clements’ words:
[I]t seemed like every day [Bullington] would ask me
. . . what have heard in the breakroom, who’s talking
about the union, has anyone signed cards. On one occa-
sion he asked me about Tony Horner [another em-
ployee] . . . and I stated that I knew nothing about
Tony. And he said well . . . his Dad was a big union
guy at [another company] . . . see what you can do
about finding out about Tony because we need to keep
our eye on him.
Clements also states that during the course of a safety
meeting held on February 25 for supervisors and coordina-
tors,5 Figari told them that although ‘‘we couldn’t come out
and openly threaten an employee about the Union . . . [we
should keep our] eyes and ears open because Teksid would
not allow a union.6
The Union formally opened its organizing drive on Feb-
ruary 27 when eight or nine employees arrived at work wear-
ing its buttons and other insignia. On observing that develop-
ment, Richard Figari, in the presence of personnel assistant
(Tanya Rochelle), referred to employees who supported the
drive as ‘‘union slime.’’ Figari did not disavow the com-
ment.
Solicitation/No-Talking Rules. During the first half of Feb-
ruary, Felts announced to Supervisor Randy Lankford and
coordinator Mike Branch that he supported the Union. On
February 23, Maintenance Supervisor Joe Williams ap-
proached Felts, accused him of having held a union meeting
in the electrical room several hours earlier that day, and said
‘‘I got to tell you [that] you can’t hold meetings on company
property.’’ Shortly before, he had been told by coordinators
Mike Branch and Glen Kilgore that they had seen Felts seat-
ed in the middle of a group of five employees and that one
of the employees (Kelly Santos) told them they had been
talking about the Union. Prior to that time no written or oral
policy had been announced concerning talking during work-
ing hours, and according to uncontradicted testimony of Felts
‘‘it was a usual thing for us [maintenance employees await-
ing assignment] to sit in that room and just shoot the crap
. . . talking] about work or whatever we wanted to, football,
basketball, horses, you name it.’’7 Indeed, there was a con-
sensus among employee witnesses that Respondent’s
plantwide practice concerning talking with other employees
during worktime was that employees were free to talk to one
another at any time and place as long as it didn’t interfere
with their work.
An employer may lawfully forbid employees to talk about
a union during periods when they are supposed to be work-
ing, if that prohibition also extends to all other subjects not
associated or connected with their work tasks. Orval Kent
Food Co., 278 NLRB 402, 405, 407 (1986), citing Olympic
Medical Corp., 236 NLRB 1117, 1122 (1978), enfd. 608
F.2d 762 (9th Cir. 1979); Laird Printing, 264 NLRB 369,
374, 376 (1982). Here, however, the employer through Wil-
liams announced a no-talking rule specifically to prevent per-
ceived discussion of unionization and there is no indication
that it was concerned about, or thereafter applied the rule to
bar, discussion of other nontask-related subjects during work-
ing time. I find the rule was discriminatorily promulgated
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 A carousel is a large circular platform containing five molds into
which molten aluminum is poured. This is accomplished by use of
a robotic ladle and there is a 10 to 15 second wait between pourings
as each mold is placed in position beneath the ladle.
9 Current employee Jeff Hogue credibly testified that employees
exchanged small talk every once in a while as the carousels changed
position, and Burton, the only supervisor who testified on this mat-
ter, conceded that circumstance.
10 On brief, the General Counsel cites par. 10 as covering
Pagliuzzi’s direction to Burgess in June. That paragraph, however,
refers to an incident occurring on March 29 and involving Super-
visor Dario Pazzola. Since there was no objection to the variant evi-
dence, the paragraph is deemed amended to conform to the proof.
United Packinghouse Workers, 416 F.2d 1126 fn. 12 (D.C. Cir.
1969); Frito Co., 330 F.2d 458 (9th Cir. 1964)
11 Burgess, John Mark Covington, Mark Wannamaker, and Reuben
Smith.
12 Par. 7(a) alleges that Figari on the day in question promulgated
the unlawful rule on two more occasions and also threatened plant
closure. The only other evidence concerning solicitation on that day
is testimony of an employee (Tony Horner) who participated in an-
other group meeting. He ‘‘believes’’ Figari said there was to be no
discussion of the Union during ‘‘working hours,’’ but adds: ‘‘I can’t
recall him saying it exactly.’’ Since alleged discriminatee Gary John-
son attended the same meeting and could not recall anything being
said about the matter, I view Horner’s testimony as insubstantial.
There is no evidence of any threatened plant closure. These addi-
tional allegations are dismissed.
and applied in violation of Section 8(a)(1), as alleged in
paragraph 12 of the complaint.
Steve Forcum, a trainee chemical technician, told his su-
pervisors that he supported the Union on February 24 and
thereafter became the most vocal activist for the Union. On
or about March 23, he was in the breakroom at the same
time as production supervisor, Timothy Burton, and he asked
him if employees could talk about the Union inside the plant.
Burton responded ‘‘No . . . [as] long as you’re on company
time, Teksid can tell you what to do.’’ A few days later
Forcum was testing mold temperatures on a carousel8 and,
according to custom, he spoke to other employees between
rotations.9 Burton approached Forcum and told him to stop
talking about the Union. Burton did not deny making that di-
rective. And in June, an employee in the tooling maintenance
section (William ‘‘Kelly’’ Burgess), who wore a union but-
ton, was told by Supervisor Enzo Pagliuzzi that he and other
‘‘tooling’’ mechanics were no longer allowed to talk to em-
ployees in the mechanical maintenance section. No reason
was given, and Pagliuzzi was not called to testify. The ra-
tionale applied above to the Felts incident, is applicable here.
Accordingly, I find violations in all three instances, as al-
leged in paragraphs 9(c) and (d) and 10 of the complaint.10
On February 28, one day after employees began wearing
union buttons, Figari addressed all employees (approximately
150) at a series of small group meetings during which he ex-
pressed the company’s firm opposition to unionization and
his concern that ‘‘the hostility or the level of antagonism that
was being created . . . at the plant was really not conducive
to a good relationship with employees . . . [needed] to ac-
complish our goals.’’ And during the course of at least one
of those meetings, he told a group of five or six employees
that they were not permitted to hold union meetings or solicit
union members ‘‘on company property.’’ The testimony of
the four employees11 who appeared in this regard was con-
sistent and apparently free of animus. On the other hand,
Figari’s implicit denial is not persuasive. He could not recall
whether he made any distinction between ‘‘working’’ and
‘‘break’’ time stating ‘‘I don’t recall exactly what I told them
. . . [about] that, but I may have. I don’t know.’’ In this cir-
cumstance, and in the absence of any written solicitation or
distribution rule, I conclude that the employees either heard
or were justified in believing they heard him ban union solic-
itation on company property at any time. That prohibition is
overly broad and therefore unlawful, as alleged in paragraph
7(a) of the complaint.12 Stoddard-Quirk Mfg. Co., 138
NLRB 615 (1962). See also Our Way, Inc., 268 NLRB 394
(1983).
Limited Access Rule. On March 9, Figari posted a memo-
randum reminding employees that pursuant to a policy post-
ed in June 1988 they were allowed to be on company prem-
ises only 30 minutes before and after their scheduled work
times; and in the same memorandum he advised them that
‘‘corrective discipline’’ would be taken against violators.
Under Tri-County Medical Center, 222 NLRB 1089 (1976),
an employer may limit off-duty employees access to its out-
side nonworking areas only where there are specific business
justifications. Respondent offered no reason for maintaining
this extremely limited access rule or for its republication at
the very outset of the union drive. Accordingly, I find that
the rule unduly limits the exercise of protected organizational
rights as alleged in paragraph 16 of the complaint.
On May 16, employees Forcum and Burgess were distrib-
uting prounion literature at the plant gate. They had parked
their cars in the company parking lot approximately 30 min-
utes before their scheduled 8 a.m. starting time and walked
out to where they usually conducted handbilling, on a 20-
foot grass strip between the plant gate and the public road-
way. The guard was standing in the middle of the road 30
feet from the guard station. Forcum observed that when vehi-
cles stopped by the guard, the guard sometimes made notes.
Forcum testified that ‘‘we were concerned about what he was
writing down so we asked the guard . . . can we come over
there beside you and handbill. And he said no you can’t. I
believe he [also] said . . . we could go on . . . to the park-
ing lot and handbill.’’ I find no denial of access to the park-
ing lot area as alleged in paragraph 15 of the complaint. Em-
ployee access privileges do not include the right to stand in
prying distance of plant guards.
Surveillance. On March 4, employees Gary Johnson and
Covington had finished their shift and were approaching the
locker room. Both were wearing union insignia. As they
passed Manager Figari in the hallway, Johnson, a principal
union activist, called out to him ‘‘What’s up?’’ and then pro-
ceeded with Covington into the locker room. Figari followed
directly behind and then stood at the end of a row of lockers
where he had visual contact with the two employees. He re-
mained there for about 5 to 10 minutes while they changed
their clothes and when they left to go home he followed
them out of the locker room. About 10 or 12 other employ-
ees were in the room during the incident. Figari had been si-
lent during his visit except towards the end when he asked
employee Jerry Booker whether his foot had healed. Figari
recalled speaking to Booker for about 2 or 3 minutes and
states that his visit to the locker room was just part of his
715TEKSID ALUMINUM FOUNDRY
13 The fact that a guard on one occasion may have said ‘‘shame
on you’’ after observing an employee accept a handbill appears to
have been nothing more than an isolated incident reflecting only the
guard’s personal views.
14 One of these buttons bore the legend ‘‘Union Free And Proud
To Be’’ and another showed the word ‘‘Union’’ with a slash through
it.
15 The incident involving Lallemand is cited in the General Coun-
sel’s brief as justification for a finding of unlawful interrogation
under par. 7(e) of the complaint. The latter paragraph will be dis-
missed as multiplicitous.
16 Stewart claims that Crowell asked for a nonunion button and
that he gave one to him. I have credited Crowell’s account, finding
it consistent with a pattern of unlawful conduct by Respondent’s su-
pervisory personnel.
daily plant walk through. He claims he was not engaged in
surveillance, adding its ‘‘very counter-productive.’’
On March 17 Supervisor Burton took breaks coextensive
with those of Johnson. Johnson’s pertinent testimony reads as
follows:
I came in on my morning break . . . and had no
sooner sat down than Tim Burton came in . . . and sat
down and didn’t get a Coke, didn’t get anything to
munch on . . . from the snack machine or anything. He
just came in and sat down at a table. I didn’t think
much about it. And I got up when my ten minutes were
up . . . when I was walking off, I looked over my left
shoulder to see if Burton was coming out, and he came
right out behind me. Well, he did the same thing when
I went in for lunch. He came right in behind me and
when I left, he left right behind me. The same thing
with the evening break. When I came in, he came in
right behind me, and when I left, he left behind me.
Johnson also testified about an incident occurring later in the
day, as follows
That evening when I left work, I went in and clocked
out and changed clothes and came out into the parking
lot, and [employee] John McElhiney’s truck had some
type of fluid leaking out from underneath it. John was
there [with two other employees]. I walked over to ask
him what was up, if he needed me to take him some-
where to get parts. And Bobby Felts came up a few
minutes after . . . and we was talking about what
[McElhiney] was going to do. And Tim Burton come
walking out there and he still had his steel-toed . . .
shoes on and his safety glasses. . . . He come out and
stood right in the middle of us and had his hands in
his pockets and said nothing. He just stood there . . .
for about four or five minutes before I [and the others]
left.
Burton did not advert to this testimony when called as a
witness by Respondent. I find the incidents occurred as de-
scribed by Johnson.
The silent interludes in the locker room, breakroom, and
the parking lot constitute attempts by management, through
overt surveillance, to prevent known union supporters from
engaging in organizational activities at times and places
when and where they were lawfully entitled to do so. Con-
solidated Edison Co. v. NLRB, 305 U.S. 197 (1938). Accord-
ingly, Respondent violated protected rights of employees as
alleged in paragraphs 7(c) and 9(a) of the complaint.
Unlawful surveillance also is alleged to have commenced
in mid-March when Respondent for the first time posted se-
curity guards at its plant entrance and established a procedure
whereby persons seeking entrance had to identify themselves
to the guards, state why they sought entry, and sign in and
out. Figari claims the system was instituted in reaction to a
theft of $5000 worth of copper tubing about a month earlier.
Although the proffered reason is not free of doubt because
Figari offered no explanation as to why the matter was not
reported to the police or why it took a month to respond, the
evidence does not show that the new procedure was estab-
lished for any purpose other than security.13 Knogo Corp.,
265 NLRB 935, 945 (1982). Employers have a right to re-
spond to an organizational campaign by establishing proce-
dures for denying unauthorized persons access to their facili-
ties, and any incidental observation of public union activity
by security guards is not unlawful. Hoschton Garment Co.,
279 NLRB 565, 567 (1986). The allegation in paragraph 13
of the complaint will be dismissed.
Interrogations. In early March two employees (Johnson
and Reggie Spurgeon) observed Figary pass out antiunion
buttons14 to workers on the finishing file in early March and
another (Bobby Felts) saw Figari distribute them in the
breakroom. However, they did not hear what Figari and the
employees accepting buttons said to each other, and they did
not know whether those employees had previously asked for
the buttons. During the same period, another employee (Neal
Lallemand) was working at his machine when Figari, without
saying anything, tendered him an antiunion button.
Lallemand took it, placed it on his machine, and went back
to work. He had not previously asked for the button nor had
he told any supervisor whether he was for or against union-
ization. A number of employees in the finishing department,
as well as Bubby Felts, testified that they had obtained
antiunion buttons by asking Figari or other supervisors for
them.
Distribution of antiunion material by an employer is not
unlawful absent some form of coercion or pressure on an
employee to receive the material. McDonald’s, 214 NLRB
879, 881–883 (1974). With the exception of the incident in-
volving Lallemand, there is no showing that employees ac-
cepting buttons from Figari had not voluntarily asked for
them. Lallemand, however, had neither asked for a button
nor given Figari any indication of where he stood relative to
the campaign; and I find that the act of tendering the button
was coercive since he was being asked to declare himself to
a high level supervisor whose antiunion views were well
known to employees. In that one instance, therefore, I find
unlawful interrogation as alleged in paragraph 7(b) of the
complaint.15
On March 1, employee Randy Crowell asked Supervisor
Stanley Stewart why he was wearing a nonunion button.
Stewart replied by asking Crowell if he wanted one. Crowell
demurred stating that he wasn’t campaigning either way.
Stewart then told Crowell that ‘‘employees knew what they
were getting into when they started this Union stuff.’’16
About 20 minutes later, Stewart relieved Crowell from is as-
signment on the carousel and told him to get a broom and
sweep the basement. He worked there amid clouds of dust
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The testimony about the incident given by the three employees
was replete with truth-enhancing details and consistent; and I have
credited it. Figari, while admitting that he became very angry, denies
having made any rejoinder to Forcum. Instead, he claims that just
before he left the room he turned to another employee (Richard
Stewart) who had spoken against the Union and said to him: ‘‘The
day that’’ I hate my employer so much when I come to work, that’s
the day that I’m not going to come across those gates.’’ I find that
indirect and mild response inconsistent with Figari’s temperament
and improbable. Moreover, it remains uncorroborated. Stewart did
not testify; and the only other employee who testified concerning the
incident (Respondent witness David Cochran) had but vague recol-
lection of it and states only that Figari, on his way out, kept repeat-
ing that ‘‘they’’ could leave if ‘‘they’’ didn’t like it here. Cochran
was not asked whether Figari made the rejoinder attributed to him.
and when he emerged grime-covered 4 hours later, Crowell
encountered Supervisor Burton who asked ‘‘Where’s your
Union button?,’’ laughed, and walked off.
Burton did not interrogate or even question Crowell. He
simply made a snide observation. Accordingly, paragraph
7(e) of the complaint will be dismissed.
The situation involving Stewart, however, is different. He
did not answer Crowell’s question. Instead, his counter-
question was intended to elicit Crowell’s stance vis-a-vis the
Union; and when he ascertained that Crowell did not side
with the company, he immediately demonstrated the con-
sequences of that dereliction by assigning Crowell to more
onerous duties (see the 8(a)(3) discussion infra)—a coercive
circumstance which removes any doubt that his riposte was
in fact unlawful interrogation, as alleged in paragraph 1 of
the complaint. Rossmore House, 269 NLRB 1176 (1984),
enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
Interrogation/Solicitation of Grievances/Promised Rem-
edies. John Harrell, a current employee, actively supported
the Union since early June by wearing insignia and distrib-
uting literature at the main gate. In mid-August, about 2
weeks before the scheduled election, he was told to leave his
work station and report to the office of the company presi-
dent, Riccardo Tarantini. There, with the door clogged and
only Harrell present, Tarantini asked why he was wearing
union hats and buttons. Harrell just smiled and said nothing.
After a long pause during which he seemed in deep thought,
Tarantini changed the subject by telling Harrell he was de-
lighted to learn that his supervisors viewed him as a ‘‘picture
perfect’’ employee, able to perform tasks with minimal su-
pervision while getting along with everybody. Tarantini went
on to state that he knew there were ‘‘problems’’ in the plant,
and he asked Harrell if he had any ideas on how to improve
working conditions. Harrell replied that it was very hot in his
department and asked for additional fans. At Tarantini’s
prompting, Harrell went on to mention a number of other im-
provements which could be made, and throughout this recita-
tion Tarantini made notes. When Harrell stopped, Tarantini
encouraged him to go on and asked for ideas in other areas,
including plant operations. When Harrell seemed to have
nothing more to say, Tarantini assured him that management
would try to implement his suggestions. After another pause,
Tarantini said he very much wanted Harrell to be part of
‘‘the team’’ and advance in the company. After another
pause, Tarantini asked ‘‘How do you stand?’’ In Harrell’s
words: ‘‘I . . . didn’t reply again. I just kind of smiled and
. . . left it at that.’’
The meeting ended at that point, having lasted about 2
hours. Before that time, Harrell had never been in Tarantini’s
office nor had a private meeting with him. Harrell’s account
of the meeting is uncontroverted since Tarantini did not tes-
tify, and I find it credible.
An employer has a right to communicate with employees
as a group or individually concerning an ongoing union orga-
nizing campaign, but the session must not involve coercion.
Flex Products, 280 NLRB 1117 (1986), citing NVF Co., 210
NLRB 663 (1974); Rossmore House, above.
Here, the circumstances surrounding the meeting are
fraught with coercive overtones. Tarantini was Respondent’s
chief officer and there is no indication that he ever called rel-
atively low level employees such as Harrell to his office or,
indeed that he ever had one-on-one meetings with them. So
Harrell had every reason to believe he was being singled out
and for being apprehensive when he was directed to go to
Tarantini’s office. And Tarantini’s remarks could only serve
to heighten his apprehension. The meeting was held in close
proximity to the scheduled election and Tarantini was in ef-
fect telling him that the company could and impliedly would
remedy whatever conditions had caused him to support the
Union and that he had a bright future there if only he would
forsake the Union and become a team player. Although
couched in gentility, his remarks had a coarse undertone (or
suggestion of a ‘‘fist in an iron glove’’) that dire con-
sequences would ensue if he persisted in aligning himself
against the company. NLRB v. Parts Co., 375 U.S. 405
(1964).
I find the incident to involve unlawful interrogation, solici-
tation of grievances, and implied promise of benefits as al-
leged in paragraphs 17(b) and (c) of the complaint.
Threats. On March 16, just prior to start of the 7:30 a.m.
shift, Personnel Director Figari entered the breakroom. He
viewed a normal shift chance scene with at least 40 employ-
ees ‘‘screaming’’ from one end of the room to the other.
After obtaining coffee from a machine, he turned around and
immediately sensed he made a mistake in entering because
the din diminished and the three leading union activists
(Forcum, Felts, and Johnson), brandishing note pads, began
to ask him questions concerning solicitation/distribution pol-
icy. After replying to some questions and perceiving that the
session was becoming heated, he told them they were trying
to start a fight. Forcum retorted: ‘‘We don’t want fights, just
better benefits’’; and when Figari started to leave Forcum
taunted him by loudly asking: ‘‘Richard, about this hundreds
of thousands of dollars that you’re investing in a law firm
to come in here and bust up this Union campaign, why
couldn’t the company . . . turn it into benefits for the em-
ployees?’’ Angered, Figari turned, looked at Forcum, and
said: ‘‘Steve, you won’t be around here to enjoy any of the
benefits anyway17
The latter remark patently was an unlawful threat to dis-
charge Forcum because of his union activism, as alleged in
paragraph 7(d) of the complaint. Midland-Ross Corp., 239
NLRB 323, 331 (1978). And the threat was particularly egre-
gious because it was directed at a leading union supporter in
the presence of 40 or more hourly employees.
About 2 weeks after the March 16 incident, Respondent’s
production manager, John Barbaro, sought Forcum out and
asked for an opportunity to see him privately. At Forcum’s
insistence they met and talked for about 20 minutes in an
717TEKSID ALUMINUM FOUNDRY
18 See Daily News of Los Angeles, 304 NLRB 511 (1991).
19 Santos testified only that he was promised retroactivity, while
Irving claimed that her raise had not been made retroactive as of
April 10, 1990, when she testified.
open area in sight of employees working on the finishing
line. Barbaro spoke mainly of his perception that production
was down because of ‘‘high tension’’ resulting from the
union campaign. At one point, he told Forcum, ‘‘I respect
your rights [to do] what you’re doing. We have unions in
Italy.’’ He asked, ‘‘Can you help me get production up?’’
Forcum replied, ‘‘John, what can I do?’’ Barbaro did not
reply, and apparently sensing that the meeting was going no-
where, he asked Forcum not to tell what they had talked
about. Forcum initially agreed but later reneged telling him
that his coworkers had seen them talking and had a right to
know what was said. At that, Barbaro lashed out angrily tell-
ing Forcum ‘‘I could lose my job’’ and ‘‘if I go, you go with
me!’’
Barbaro did not testify; and I find credible and accept
Forcum’s account.
In effect, Barbaro was asking a known leader of the orga-
nizational drive to back off from such ‘‘tension’’ creating ac-
tivity and become a player on the company team, and his
outburst ‘‘if I go, you go with me’’ when Forcum declined
the invitation and refused to remain silent about the encoun-
ter, constitutes a threat of reprisal should he choose vigor-
ously to pursue organizational activity. Compare Honeycomb
Plastics Corp., 288 NLRB 413, 419 (1988); Eagle Headers,
273 NLRB 1486, 1488–1490); Frito-Lay, Inc., 323 NLRB
753 (1977), enfd. 585 F.2d 62 (3d Cir. 1978). I find a viola-
tion, as alleged in paragraph 8 of the complaint.
Respondent maintains a bulletin board directly outside its
personnel office, access to which is controlled by Director
Figari. According to uncontradicted testimony of employee
Felts, an item was posted there for at least one day in June—
a payday during which all employees had to come to the per-
sonnel office pick up their checks—reading as follows:
REMEMBER THIS
IF YOU WORK FOR A MAN, in Heaven’s name, WORK
for him. If he pays you wages which supply you bread
and butter, work for him; speak well of him; stand by
him and stand by the institution he represents. If put to
a pinch, an ounce of loyalty is worth a pound of clever-
ness. If you must vilify, condemn and eternally dispar-
age—resign your position, and when you are outside,
damn to your heart’s content, but as long as you are
part of the institution do not condemn it. If you do that,
you are loosening the tendrils that are holding you to
the institution, and at the first high wind that comes
along, you will he uprooted and blown away, and prob-
ably will never know the reason why.
ELBERT HUBBARD
In Tower of the Americas Restaurant, 221 NLRB 1260,
1263 (1975), the same quotation was held not violative, but
in circumstances clearly distinguishable from those in this
case. There, the employer recited the quoted language to but-
tress his statement that union supporters were being disloyal,
and there was no prior 8(a)(1) conduct. Here, the posting was
preceded by a slew of unlawful activity, including separate
threats from two top officials to discharge the leading union
supporter. In this atmosphere of hostility, the quotation takes
on a menacing coloration; and Respondent’s employees
could reasonably view it as a threat to ‘‘blow away [dis-
charge]’’ those who ‘‘loosen . . . tendrils [put themselves at
risk]’’ by continuing to criticize working conditions.
Southwire Co. v. NLRB, 820 F.2d 453, 458 (D.C. Cir. 1987).
Accordingly, I find an unlawful threat as alleged in para-
graph 14 of the complaint.
On August 22, Respondent posted a notice to employees
entitled ‘‘THE TRUTH ABOUT NEGOTIATIONS’’ in
which, among other things, it stated ‘‘If the Union should
win the election, all policies and procedures, including wages
and benefits, will be frozen until there is an agreement
reached. . . .’’ A prior paragraph contained an observation
that ‘‘negotiations often last many, many months [and] in
some cases, years.’’ Respondent argues that the quoted lan-
guage simply paraphrases well-established Board law that an
employer is required to maintain the status quo until such
time as a collective-bargaining agreement is reached or an
impasse occurs;18 and it goes on to explain that the word
‘‘frozen,’’ in context, meant that its practice of granting
hourly employees preset ‘‘step’’ increases promptly upon
completion of scheduled semiannual evaluations was frozen
so that employees would continue to receive those increases
pending agreement or impasse. While that is a permissible
reading, it represents an attempt to clarify ambiguity. The
workers to whom the notice was addressed reasonably could
infer from the language used that step increases were frozen
indefinitely in the event they chose to be represented by the
Union. Accordingly, and especially since the notice was
posted in close proximity to the representation election set
for September 1, I find it an unlawful threat of resulting
wage losses, as alleged in paragraph 18 of the complaint. In
that respect, Respondent’s attempt to negate the inference by
posting clarifications on September 29 and 30 came too late.
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
The August 22 notice posting occurred during a month in
which 12 of the 13 scheduled evaluations (and consequent
step raises) had been deferred for periods ranging from a few
days to 10 days for employee Eddie Kittrell, 13 for Karen
Irving, and 18 for Kelly Santos—a circumstance which gives
rise to an inference that the delays served to enhance em-
ployee apprehension of a wage freeze. Respondent did not
attempt to rebut that inference with records showing that
delays were normal and when, if at all, raises were made ret-
roactive to the scheduled evaluation dates.19 I conclude that
the delays were intimidating in violation of Section 8(a)(1);
and, to the extent that raises were withheld, discriminatory
in violation of Section 8(a)(3), as alleged in paragraph 19 of
the complaint. Arkansas Lighthouse for the Blind, 284 NLRB
1214, 1219–1220 (1987).
Two days before the election President Tarantini spoke to
all the employees during the course of a series of small
group meetings each of which lasted no more than 4 min-
utes. According to credited testimony of management trainee
David Baxter, he did not depart from a prepared text which
reads as follows:
You will vote on Friday. By now you should all un-
derstand that I am totally against the . . . [U]nion.
Even so, you will be the ones to decide. You have a
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The text is consistent with testimony of employees Brian
Young, Mark French, and Johnny Tummins, as well as with that of
Kathy Bright. The latter, present at the same time as French, at first
stated that Tarantini said he would not negotiate with the Union but
later recalled him saying ‘‘I don’t want to negotiate against you.’’
21 There is no allegation that McElhiney’s termination was unlaw-
ful.
22 Indeed, Maintenance Supervisor Joe Williams testified that the
rule relative to the duration of breaks was ‘‘normally laxly en-
forced.’’
23 At the time of the incident Burgess had been employed by Re-
spondent for less than 6 months and was unaware of ever being clas-
sified as a specialist.
24 Through cross-examination Respondent attempted to show that
subsequent to the incident in question Burgess displayed a pattern
of carelessness on the job. The effort is unpersuasive. Indeed, it has
no relevance to the instant situation involving required use of incom-
patible parts on cutting machinery.
choice. You can vote for this . . . [U]nion and make
me negotiate against you, or you can vote against this
. . . [U]nion and help me shape Teksid into a team.
Don’t make me negotiate against you. I want to work
with you. Don’t let this . . . [U]nion build a wall be-
tween us. Thank you.20
When read in conjunction with the pattern of unlawful sur-
veillance, interrogations, and threats which went before and
the notice posted just a week earlier, this statement conveys
much more than an prediction of hard bargaining ahead. In
the earlier notice, Tarantini told the employees that wages
and benefits would be frozen until ‘‘contract negotiations
[which] often last many, many months . . . and in some
cases . . . years.’’ were completed. And now in his cryptic
election eve message there is no hint that collective-bar-
gaining is a give-and-take good-faith process. Rather, he
twice stated that he would bargain against them, thereby inti-
mating he would bring about long delay by adopting a re-
gressive bargaining posture. I find an unlawful threat of re-
taliation in the event employees opted for the Union, as al-
leged in paragraph 17(a) of the complaint. Madison Kipp
Co., 240 NLRB 879 (1979).
On September 8, Director Figari called McElhiney, a
known union supporter, into his office and informed him that
a blood test showing him positive for marijuana had been
confirmed by a second test and, in accordance with company
policy in such cases, he gave him a choice of resigning with
a week’s pay and a written recommendation or being fired.
After denying he was a user, McElhiney told Figari: ‘‘I ain’t
going to take this . . . I’m going to the doctor.’’ At that, ac-
cording to McElhiney, Figari became ‘‘unglued,’’ rose from
his chair, and said: ‘‘Look, take my advice. Stay away from
the doctor, and stay away from . . . [the Union] and the
Board . . . [because] if you go to them . . . I’m not kidding
you . . . I’ll smear your name so far in the papers that you’ll
never get another job.’’ For his part, Figari denies making
the quoted statement.21
I credit McElhiney’s account as more probably true, hav-
ing in mind Figari’s hot temper and his awareness of a pat-
tern whereby the Union filed additional charges with the
Board promptly on hearing new allegations of further wrong-
doing. And I find his threat of reprisal—blacklisting through
publication of claimed drug use—unlawful under the Act be-
cause of its coercive effect upon exercise of an employee’s
right of free access, directly or through a union or other rep-
resentative, to the Board. Molders Local 453, 209 NLRB
869, 872 (1974), citing Operating Engineers Local 138, 148
NLRB 679 (1964).
III. ALLEGED VIOLATIONS OF SECTION 8(A)(3)
William ‘‘Kelly’’ Burgess. Shortly after reporting to work
on February 27 wearing a union button, Burgess, a techni-
cian in the tooling maintenance section, was told by his su-
pervisor (J.B. Millard) that the length of his breaks and lunch
period would be measured from the time he left and returned
to his work area. Prior to that time, Burgess had reckoned
the time from when he entered and left the cafeteria. When
he protested, Millard replied that the ‘‘ruling’’ came not
from him but from his superiors. These findings are based
on Burgess’ uncontradicted22 and credited testimony. I find
a violation in that the rule was being more strictly enforced
against Burgess because of his prounion stance, as alleged in
paragraph 32 of the complaint.
On March 1, Burgess was using a milling machine to
smoothen out a metal insert for a core box. The cutting ele-
ment of the machine was held in place by a ‘‘collett’’ or col-
lar. The collett began to slip and he immediately shut off the
machine but not before the loosened cutter inflicted a small
gouge on the insert. He presented the damaged part to Mil-
lard, explaining that the slippage occurred because the only
available colletts were on a metric scale whereas the cutter
was standard gauge. Millard appeared unconcerned stating
that he had experience the same slippage, and he told Bur-
gess to take the damaged part to the welding shop for repair.
Burgess did so and while he was waiting for the weld, Pro-
duction Supervisor Peppe Garabello came by and asked why
he was there. When Burgess explained the situation,
Garabello proceeded to the milling machine and examined
the collett. There, he asked Millard why a standard gauge
collett was not on the machine. Millard replied that none
were available. Garabello then turned to Burgess, stared
fixedly at his union button, told him that as a ‘‘specialist’’23
he should not have let the accident happen, and gave him a
‘‘verbal warning.’’
Neither Millard nor Garabello testified at the trial, and I
accept Burgess’ account of the incident. I also credit his
uncontradicted testimony (corroborated by current employees
Mark Wannamaker and Reuben Smith) that mishaps of this
kind were common and never before resulted in disciplinary
action.
I find that the warning would not have been issued absent
Burgess’ aligning himself with the Union during the organi-
zational drive and was meant to deter him and others from
doing so. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Accordingly, the warning was unlawful, as alleged in para-
graph 31 of the complaint.24
Bobby Felts. Union activist Felts received a verbal warn-
ing from Supervisor Williams on February 23 for holding a
union meeting in the electrical room. The incident giving rise
to the warning was found earlier in this report to involve an
unlawfully imposed ‘‘no talking’’ rule; and based on the
719TEKSID ALUMINUM FOUNDRY
25 At the trial and on brief Respondent challenged Felts’ credibility
by showing that he uttered racially derogatory and bigoted remarks
about supervisors on several occasions. Aware of that circumstance,
I have credited his testimony only when corroborated by other wit-
nesses and/or documents.
26 Johnson’s claim that a new posting of the rule was made in
early March is not supported by other testimony or documents.
27 Hearth temperature is about 750 degrees Celsius and during the
skimming process dross often splatters. Because of the inherent dan-
ger, employees are required to wear safety glasses, gloves, and shoes
while working near furnaces.
28 Burton testified generally that ‘‘during the hot months’’ there
were times when he told McElhiney to put his glasses on, that
McElhiney would say, ‘‘Well, I’m just wiping the sweat out of my
eyes,’’ and that he’d respond, ‘‘That’s fine. Wipe the sweat out, but
be sure and put them back on when you get through.’’ On those oc-
casions, according to Burton, after wiping his face McElhiney would
‘‘just lean up against the rail with them in his hand.’’
facts there stated, I find that the warning was discriminatorily
issued as alleged in paragraph 28 of the complaint.25
On or about Thursday, March 2, Production Supervisor
Garabello told Manager Figari that he saw Felts obtain his
paycheck 5 minutes before quitting time. Figari promptly re-
minded personnel assistant Roehelle of the company policy
that employees were to pick up their checks only during non-
work time. There is no credible evidence that Figari thereby
changed a plant rule;26 and absent any indication that super-
visors knew about and acquiesced in past violations, there is
no basis for determining that Figari more vigorously en-
forced the rule after the union campaign began. The pertinent
portion of paragraph 32 will be dismissed.
Prior to March 20, employees in the maintenance depart-
ment often went on breaks in pairs or in groups, and they
could go at times of their own choosing provided urgent
tasks were not left undone and at least one maintenance man
remained on the working floor. On that day, however, union
activists Felts and Johnson were told by their coordinator
(Branch) and supervisor (Williams) that henceforth all main-
tenance employees were to take breaks at prescheduled times
and that Felts and Johnson were to take their breaks 30 min-
utes apart from each other. When asked by Felts why the
policy had changed, Branch told them that he knew nothing,
that ‘‘they’’ had passed the change down to him. Branch did
not deny making that comment; and Williams offered no ex-
planation for the timing of the change. I find that the rule
was promulgated to impede employees in exercising their
right to engage in prounion propaganda during free time; and
that by singling out Felts and Johnson and barring them from
taking breaks together Respondent unlawfully imposed more
onerous working condition on them because of their activ-
ism—as alleged in paragraph 33 of the complaint. St. Agnes
Medical Center, 287 NLRB 242, 254 (1987).
John McElhiney. McElhiney was another of the employees
who wore union buttons to work for the first time on Feb-
ruary 27. He punched in at midnight and proceeded to work
the ‘‘graveyard’’ shift. Toward the end of the shift he was
assigned to clean a dry hearth furnace with a skimmer.27 On
one occasion, around 3 a.m., when the heat became unbear-
able he backed off, turned away from the furnace, removed
his glasses, and proceeded to wipe sweat from his eyes. At
that point, Supervisor Burton passed by and told McElhiney
to put on his glasses. McElhiney replied: ‘‘Well, wait until
I get my eyes wiped out and I’ll put them back on.’’ Nothing
further was said and, after toweling, McElhiney placed the
glasses over his eyes and resumed the skimming operation.
Just before the shift ended Burton told McElhiney to re-
port to the office. There, with Burton present, Figari handed
McElhiney a written warning in which he was cited for vio-
lating safety rules. The operative portion reads as follows:
Several times during the night of 2/27/89 John
McElhiney was told to wear his safety glasses. At 3
am. his supervisor saw him without his safety glasses.
McElhiney told Figari that his glasses had been mentioned
only once during the shift, and he declined to sign the docu-
ment unless it was corrected. Figari rose from his chair and
told him: ‘‘You’ll either sign it or you’ll hit the gate.’’
McElhiney then acknowledged receipt of the warning by
signing.
I have credited McElhiney’s account of this incident.
Figari did not refer to the matter in his testimony. For his
part, Burton provided no details concerning times that day
other than 3 a.m. when allegedly he told McElhiney to wear
his safety glasses; and as to that time he gave no indication
that McElhiney did not promptly comply.28 In these cir-
cumstances, I conclude that Burton’s report to Figari and the
written warning constituted unlawful harassment of
McElhiney because he supported the Union, as alleged in
paragraph 29 of the complaint. This finding is buttressed by
the fact that while Burton claims he warned McElhiney about
not wearing glasses on numerous occasions prior to February
27, he chose to report the matter to Figari only on that day
and after McElhiney appeared wearing a union button.
Wade Ross. Forklift operator Ross also wore a union but-
ton to work on February 27. Two days later he was warned
and suspended. The incidents giving rise to those actions are
described below.
During the evening of March 1, Ross was operating his lift
vehicle in an area just outside the plant. As he turned and
went forward, Supervisor Enzo Pagliuzzi opened a door and
walked head down directly in front of the moving lift. Ross
reacted quickly and stopped about 3 or 4 feet from Pagliuzzi.
Startled, Pagliuzzi accused Ross of trying to run over him.
A short time later Pagliuzzi returned with Figari. Ross denied
any intent to harm Pagliuzzi, explaining that he appeared
suddenly, that the horn wasn’t working, and that all the other
lifts were inoperable. Figari asked if he had filed a written
report on the defective horn. Ross replied that he told
Pagliuzzi about the detective horn earlier in the shift, and
that Pagliuzzi said he’d provide the necessary form but
hadn’t done so. At Figari’s direction, Ross went to the office
and obtained the form, returned to the vehicle, made the
proper entries, and returned to work.
At the end of the shift, Ross went to the locker room and
removed his safety boots and glasses. Pagliuzzi, accompanied
by Supervisor Bullington, came in and Pagliuzzi asked Ross
for the completed form. Ross replied that he’d left it in the
vehicle and he got up as if to leave saying ‘‘I don’t mind
. . . I’ll run out and get it. ‘‘Pagliuzzi told him not to leave
until he put on his safety glasses. Ross said ‘‘Alright,’’
grabbed his glasses, and moved toward the door. Again
Pagliuzzi stopped him saying ‘‘You got to put your boots
back on. ‘‘Irritated, Ross protested that he’d often seen su-
pervisors enter and leave the room without wearing glasses
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Ross states that Figari told him the written warning ‘‘was for
trying to run over a supervisor . . . not going by the safety rules,
cussing out a supervisor,’’ and for a fourth reason he was unable
to recall.
30 There is no indication that the pejorative expression was any-
thing other than a meaningless commonplace in the environment of
the foundry.
and boots. When Pagliuzzi insisted, another employee, at
Ross’ request, went and retrieved the form and brought it
back to the locker room.
By that time Pagliuzzi and Bullington had left the room
and were standing in an aisle about 10 feet from the door.
Behind them, about 5 feet away, was a carousel. Again Ross
asked the help of another employee who took the paper out
to the supervisors only to come back and tell Ross that
‘‘they’’ wanted him to bring it out to them. When Ross
opened the door and was about to start out, Pagliuzzi told
him to go back and put on his boots and glasses. Ross called
the request ‘‘bullshit,’’ told Pagliuzzi that he was a ‘‘stupid
motherfucker,’’ placed the form on the floor by the door, and
turned back into the locker room.
After thinking about the matter for a few minutes and
sensing that he might be in trouble, Ross donned his safety
gear and went out to pick up the paper. Pagliuzzi had already
done so, and when Ross found him a conversation ensued as
follows:
Pagliuzzi asked me why I threw the paper down on
the floor, and I said because you’re harassing me. I said
why are you messing with me, why are you giving me
a hard time, and all he could say was I don’t like you
throwing paper on the floor . . . [then] he just said
well, we’ll talk about it tomorrow.
When Ross arrived for work on March 2, he had to report
to Figari’s office. There he received a written warning and
a 5-day suspension for matters occurring on the previous
day. The precise reason(s) for the disciplinary action are not
of record since Bullington and Pagliuzzi did not testify, and
Figari did not address the incident in his testimony.29
Ross is not shown to have intentionally endangered
Pagliuzzi or to have operated the forklift in a reckless or
even careless manner. Neither is he shown to have violated
any safety rule. His operation of the vehicle knowing it had
a defective horn appears not to have concerned Pagliuzzi or
Figari. They just asked him to list the defect on a form,
which he did; and they allowed him to continue to operate.
Also, he obeyed their injunctions not to go out on the plant
floor without wearing required safety gear.
The sole remaining aspect of the incident concerns
Pagliuzzi’s rejecting a messenger and insisting that Ross put
on his boots and glasses in order personally to deliver the
safety form to him 10 feet outside the locker room door and
Ross’ declining to do so while placing the form on the floor
by the door and calling Pagliuzzi a ‘‘stupid motherfucker’’
for insisting on personal delivery.
I find a classic case of provocation in order to induce a
punishable response from a known union supporter. By mak-
ing an unjustified demand, Pagliuzzi was baiting Ross and
inviting the result that obtained. Any doubt in this matter is
dissipated by the circumstance that standing by him all the
while was Supervisor Bullington whose stated objective in
February (see p. 2) was to get rid of union supporters by
writing them up. Assuming that Ross’ response was insubor-
dinate,30 it provides no lawful basis for discipline because it
was provoked. NLRB v. Mueller Brass Co., 501 F.2d 680,
685–686 (5th Cir. 1974); NLRB v. Southwestern Bell Tele-
phone Co., 694 F.2d 974 (5th Cir. 1982). I conclude that
Ross was punished because he opted to side with the Union
and with a view to deterring him and others from pursuing
that course, as alleged in paragraph 30 of the complaint.
Randy Crowell. As found above (pp. 7–8), on March 1
shortly after refusing Supervisor Stewart’s proffer of a
procompany button, Crowell was told to leave his assigned
job on a carousel, get a broom, and sweep a large empty
basement area. And when he emerged covered with dirt 4
hours later, he was met by Supervisor Burton who laughed
and asked ‘‘Where is your Union button?’’ Thereafter
Crowell spent nearly all of his time performing janitorial du-
ties throughout the plant.
Stewart claims that he regularly assigned employees to
clean the basement at least once a month and that he usually
chose those who were not working on the carousel. Although
he further claims that Crowell was not ‘‘running production’’
at the time in question, Crowell states, and I believe him,
that he was working on a carousel when given the basement
cleanup job. However, this may be, I conclude that he was
given the admittedly more onerous basement job and imme-
diately thereafter a janitor’s job solely because of his refusal
20 minutes earlier to side with the Company in its efforts to
defeat the Union’s organizational drive. In this respect, I note
that Stewart did not deny following up Crowell’s refusal to
take a company button by telling him that ‘‘employees knew
what they were getting into when they started this union
stuff,’’ and I regard Burton’s denial that he ever inquired of
Crowell ‘‘Where’s your Union button?’’ as being as incred-
ible as his claim that in his presupervisory days he was given
the ‘‘opportunity’’ to clean the basement at least once every
week. (Tr. 1611.)
I find that the reassignment constitutes more onerous work
imposed to punish and deter Crowell from exercising his
right to remain neutral during the Union’s organizational
drive, as alleged in paragraph 34 of the complaint.
Apparently as a result of his treatment on March l,
Crowell decided not to remain neutral because on March 2
he reported for work wearing a union button and hat. He
continued to do so until March 30 when he was discharged
ostensibly for frequent unexcused absences.
Respondent’s attendance policy involves a point assess-
ment system for unexcused absences and late arrivals or
early departures. Employees receiving two points are subject
to verbal warning, three points warrant a first written warn-
ing, four a second, five a final warning and suspension, and
six points can lead to termination.
As of March l, Crowell had accumulated 1-1/2 points. On
that day he received an additional one-half point for arriving
an hour late due to a flat tire. The following day he got an-
other one-half point for leaving 1-1/2 hours early to see an
attorney about family problems. On March 14 he left his
worn safety shoes at home expecting to buy a new pair at
work. But the dealer did not have his size so he lost an hour
going home to retrieve the worn shoes. Although Supervisor
721TEKSID ALUMINUM FOUNDRY
31 Figari did not claim that his prior approval was a prerequisite
for an excused absence. This is understandable in view of undisputed
earlier testimony of personnel assistant, Tanya Rochelle, that on
March 29 he added the words ‘‘in advance’’ at the end of existing
policy which stated that personal leaves ‘‘must be of an emergency
nature and approved by the Director of Human Resources.’’ She also
testified, credibly, that Figari then told her and secretary Janet Gates
to shred all copies of the prior policy.
32 Although Lankford testified, he did not dispute Dickens’ ac-
count of the incident.
Franco Valenza verified the inventory problem, Crowell was
assessed one-half point for a then total of three points; and
on March 17 he was presented with a first written warning.
Crowell, a single parent, was absent during the entire
workweek beginning Monday, March 20 in order to care for
his 2-year old son who was hospitalized early Monday morn-
ing for a chronic and severe asthmatic condition. Scheduled
to begin work at 8 a.m., he called in that morning at 2:30
and left a message for Supervisor Burton in which he ex-
plained the emergency and left the hospital phone and room
number in case Burton had any questions. Crowell was
granted excused leave for the week except on Monday, and
he was assessed 1-1/2 points for that day. When he returned
on Monday, March 27 he was given a second written warn-
ing for having accumulated 4-1/2 points. An unsigned absen-
tee report referring to Crowell and dated March 20 contains
a handwritten notation as follows: ‘‘No Show—No Call—
mother called at 3:21p said son had a relapse.’’ In his testi-
mony, Figari did not refer to the Burton message or the nota-
tion, and he provided no explanation as to why points were
assessed for Monday but not for the remainder of the week.
In the past Crowell had always been granted excused ab-
sences to care for his son.
On March 30, Crowell was scheduled to work the mid-
night shift. However, on the previous day he had a recur-
rence of wrist tendonitis. During the evening of March 29 he
called the company using the breakroom telephone number
as the office was closed. When another employee (Eddie
Loftus) answered and told him no supervisor was available,
Crowell asked him to relay a message that he’d be absent
because of his wrist condition. After going to a doctor on the
morning of March 30, Crowell went to Figari’s office and
handed him the doctor’s note recommending 2 weeks’ light
duty. It was the first time Figari had seen him wearing a
union hat. Angry, Figari threw the note aside, told Crowell
there was no light duty, and directed that he see him on the
following day; and he assessed Crowell one point. In an un-
signed absentee report dated March 30 which noted
Crowell’s call to Loftus, Crowell was faulted for ‘‘Not fol-
lowing directions by calling ahead of time and speaking to
[a] coordinator.’’ There is no evidence of any requirement
that employees calling in regarding absences speak only to
a coordinator or supervisor; and on at least one prior occa-
sion Crowell had received an excused absence after relaying
a message through Loftus. And in testifying Figari advanced
no reason for deviating from Respondent’s past practice of
excusing absences on receipt of a doctor’s note.31
When Crowell reported to Figari on March 31, he was
given a final written warning and a 3-day suspension for
having amassed 5-l/2 points, and he was advised that he
would be considered a voluntary quit if he failed to report
on April 5.
Crowell did not report on April 5. He was in jail allegedly
for failure to respond to a family court subpoena. He states,
without contradiction, that his mother called and advised the
company of his predicament. When he reported in on the fol-
lowing day, Figari told him he was terminated.
Having in mind Respondent’s past approvals of absences
in similar circumstances and its demonstrated antiunion ani-
mus, I find that Crowell’s support for the Union was a moti-
vating factor behind the 2-1/2 points assessed against him for
absences on March 20 and 30. And since Respondent has
provided no rationale for the assessments, it has failed to
meet its Wright Line burden of showing that they would have
been made apart from that support. Accordingly, Crowell had
not accumulated the necessary five points to sustain his sus-
pension on March 31; and, even assuming an additional un-
excused 1-1/2 point absence on April 5, suspension (much
less termination) would not have been justified at that time
either.
But I need not make such an assumption. Figari had no
basis for determining Crowell’s failure to appear at work on
April 5 was tantamount to a quit because his mother had in-
formed the company of his unavoidable detention; and other
employees (Loftis and Mike Valerio) are shown to have re-
ceived excused absences for periods of incarceration. No rea-
son for disparate treatment appears, and I conclude that here
too the l point assessment was antiunion motivated.
I find that the second and final warnings issued to
Crowell, as well as his suspension and discharge, were dis-
criminatory and unlawful as alleged in paragraphs 37, 38,
and 39 of the complaint. The earlier verbal and first written
warnings are not shown to have been unwarranted and, ac-
cordingly, the allegations in paragraphs 35 and 36 will be
dismissed.
Bobby Dickens. Dickens operated a machine for making
cores composed of sand and resins for use in cylinder head
molds since June 1988. He began to wear a union button and
hat on the job but only in late March and well after others
had done so.
When Dickens reported to work for the 4 p.m. to midnight
shift on June 21, his machine was out of service; and Super-
visor Lankford gave him the job of gluing water jackets on
cores. In doing so, Lankford pointed to the union button on
Dicken’s shirt and commented: ‘‘It looks like somebody shot
off all over your shirt.’’32
Dickens worked on cores for most of the evening. Prior
to gluing, he removed burrs or rough spots by light applica-
tion of an ordinary (1 inch x 1 foot) inexpensive file. To-
wards the end of the shift he was reassigned to a clean up
job; and, expecting to return to gluing cores, he placed the
file in his back pocket. However, the shift ended without his
being reassigned and he proceeded towards the breakroom to
punch out with the file still in his pocket. En route, he
stopped briefly to chat with supervisors Perzolla and
Bullington and then walked towards the breakroom door.
At that point, another employee (Eddie Loftus, whom Su-
pervisor Burton describes as an antiunion activist) called the
situation to Burton’s attention saying: ‘‘Did you notice that
file in that boy’s pocket?’’ Burton looked, and as Dickens
went through the breakroom door he saw at least 6 inches
of the file protruding from Dickens’ back pocket.
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 According to Dickens’ undisputed testimony he inadvertently
took a drill chuck key from the premises about 4 months earlier. On
returning it on the following day, he told Lankford what happened
and no discipline ensued.
34 In an apparent effort to impugn Dinkins’ credibility and inferen-
tially to establish an intent to steal, Respondent introduced evidence
that cores were so delicate that use of a file to remove burrs would
result in damage. Crediting Dinkins, I find that he in fact used a file
in working on the cores.
35 Under Respondent’s rating system 30 is a passing grade and 60
is the maximum. In testimony, Panzica described a score of 40 as
‘‘about average’’ among employees in the chemical laboratory,
Allievi characterized it as ‘‘very good’’ and to employee John Cov-
ington it was the highest grade ever awarded.
On entering the breakroom, Dickens punched out, walked
to the adjoining locker room, placed his safety glasses and
gloves in his locker, washed his hands, and left for the park-
ing lot. He became aware of the tile when he sat down in
the cab of his pickup truck. Intending to return it the next
day,33 he placed it on the seat and proceeded to the gate.
There, Burton was waiting next to the guard, having walked
over 200 yards from the plant specifically to inquire about
the file. On asking Dickens if he still had it, Dickens ex-
plained that he was going to return it on the next day. After
Burton replied that he didn’t think that was a good idea,
Dickens offered him the file. Burton took it and reported the
incident to personnel manager, Figari.
Twenty minutes after he reported to work on the following
day, Dickens was told to report to Figari’s office where, in
the presence of Figari, Burton, and Lankford, he recounted
the circumstances leading to his possession of the file at the
gate. Figari then asked him if he had anything else to say.
Dickens said no, adding that he ‘‘wasn’t trying to steal it.’’
With that, Figari jumped halfway out of his seat, and said
loudly: ‘‘Steal it? I didn’t say you were trying to steal that
file . . . . Stealing is a very serious accusation . . . . You
don’t know what I’m thinking.’’ Figari ended the session by
telling Dickens to return to work.
On Monday, June 26, Dickens was on the day shift. Late
in the shift he attended a group meeting in which President
Tarantini announced, among other things, that the Union had
just filed a petition for a representation election. After the
meeting was over, Lankford asked Dickens to work overtime
filling in for other employees who were attending similar
meetings. After working an hour overtime, Dickens was told
to report to Figari’s office. According to Dickens, Figari
said: ‘‘Bobby, we have looked it over and it is not a matter
to take lightly . . . [company policy is] very clear . . . I’m
afraid I am going to have to dismiss you.’’ Prior to that time
Dickens had received no unfavorable actions under the Com-
pany’s progressive discipline system. In testifying, Figari
made no reference to Dickens’ discharge or the events lead-
ing thereto. For his part, Burton testified that other employ-
ees had misplaced or kept tools from one shift to the next
without any disciplinary action being taken against them.
Having in mind Lankford’s open antiunion animus as
manifested by his comment to Dickens on the very day the
incident with the file occurred as well as Burton’s previously
discussed manifestations of such animus and the special exer-
tion he made to recover the file from a known union sup-
porter, I have no doubt that Dinkins’ ‘‘apprehension’’ and
subsequent termination were motivated solely by a desire to
eliminate a likely vote for the Union and deter others from
choosing to support the Union.34 This conclusion is bolstered
by the fact that similar inadvertent incidents of other employ-
ees went unpunished in the past and by Dinkins’ lack of any
prior disciplinary history. Further, the officer responsible for
all hiring and firing of Respondent’s employees gave no rea-
son for why he terminated Dinkins.
Accordingly, I conclude that Dinkins was discriminatorily
discharged, as alleged in paragraph 42 of the complaint.
Steve Forcum. As noted earlier, Forcum was the principal
union organizer at Respondent’s plant. He was hired in July
1988 as a level I chemical laboratory technician trainee, and
his duties included frequently checking the temperature and
the chemical composition of molten aluminum, the composi-
tion of the resins and granularity of sand used in cores—all
to the end of ensuring consistent quality within specific toler-
ances and to minimize need for discarding castings. Some of
the tests required use of instruments such as a spectrometer.
He had no prior experience; and after 4 days of instruction
he began to function on his own without close supervision.
From time to time he would ask for and receive advice from
coordinators and from his immediate supervisor, Lorenzo
Panzica, and quality control director, Giuseppe (Beppe)
Allievi.
On January 10, Forcum received a written evaluation of
his performance during his first 6 months on the job. On a
scale of l to 4, he received 4 for appearance/personal habits,
3 for items such as knowledge of his job, judgment, innova-
tive suggestions, orderliness and reliability; a rating of 2 (or
average) for output, mistakes, resolving problems and attend-
ance; and a 1 for courtesy indicating that he was ‘‘occasion-
ally impolite to coworkers and others.’’ He received an over-
all rating of 40,35 a promotion to trainee level II, and an—
assurance by Allievi that he was doing a ‘‘real good job.’’
Notwithstanding this accomplishment, and indicative of an
outspoken (feisty) disposition, he wrote the following com-
ment on the evaluation form:
I believe the numerical rating I received was fair.
However, when I was given the job . . . I was prom-
ised an opportunity to bypass the‘‘Level II’’ position
and to try for the ‘‘technician’’ position in January. In
October of ’88, I was informed for the first time that
this would not be possible. This incident will always be
in the back of my mind.
Forcum supplemented his comment with a request for an
interview with President Tarantini about the matter and he
began to take a more active role in promoting unionization.
This entailed urging the signing of authorization cards by fel-
low employees some of whom (including Eddie Loftus) later
declared against the Union; and in early February Manager
Figari ‘‘began to get reports from supervisors and other per-
sonnel that there was an active campaign going on in the
plant.’’ And in mid-February when Forcum went to
Tarantini’s office to pursue (unsuccessfully) his appeal,
Tarantini greeted him saying: ‘‘Son, there’s two things we’ve
got to get straight. One is them is . . . that you have said
this is a bad place to work, and [the other is that you said]
things need to be changed.’’
During the same period in February and continuing until
his termination on September 13, Forcum experienced a dis-
723TEKSID ALUMINUM FOUNDRY
36 For example, Forcum for a brief period wore and distributed a
button bearing the name LORENZO with a slash through it. The ref-
erence was to Frank Lorenzo who was then having a dispute with
Eastern Airline pilots, but it took Lorenzo Panzica (the only
‘‘Lorenzo’’ in the plant) a while to understand the reference. An-
other time, in leaving the plant after what he felt was a particularly
harassing day, he told Panzica in passing that ‘‘I go home every
night and thank God I wasn’t born Italian.’’ And on at least on two
occasions he used the laboratory log to comment on language defi-
ciencies in instructions left by coordinator Bobby Baggett.
37 Although Panzica testified that Luffman received a written
‘‘verbal’’ warning, Respondent did not produce that document; and
Allievi made no mention of any discipline being accorded Luffman.
For his part, Forcum testified, credibly in my opinion, that on his
return from being suspended Luffman told him he had received no
discipline other than the initial admonition not to repeat the mistake.
38 Concerning this exchange, Forcum testified: ‘‘What else could
I say. It is their word against mine.’’
tinct change in the attitude of his supervisors and coordina-
tors. Before, they were friendly, answered his questions, gave
him pointers on how to do a better job, and simply cautioned
him when he made mistakes to be more careful. Now, most
were hostile, told him to use his own judgment in resolving
problems, and were quick to criticize both the quantity and
quality of his work on a daily basis. For his part, Forcum
occasionally responded in a manner which he describes as
‘‘tacky.’’36
On February 17, Forcum received a first written warning
for failing on the day before to graph the results of an alu-
minum analysis, to verify an irregular temperature measure-
ment in a ‘‘Wabash pot’’ of molten aluminum, to perform
a regular mold temperature check, and to do a hardness
check on finished castings. According to his undisputed testi-
mony, the work was unfinished because he had left work
early with the permission of two supervisors (Burton and
Pagliuzzi) due to illness. He explained that circumstance to
Figari to no avail. He also told him that he had not been
given a verbal warning, the first step in Respondent’s pro-
gressive disciplinary system. Figari simply stated that he had
been given such warning but refused to tell him when and
why the warning was given. Figari did not refer to the inci-
dent in his testimony.
I find the warning was improperly issued under Respond-
ent’s own rules since it was not preceded by a verbal warn-
ing. I further find that Respondent knew of Forcum’s activity
on behalf of the Union and that the warning would not have
been issued but for that activity, as alleged in paragraph 20
of the complaint.
About 1 hour before the end of his shift on Tuesday, Feb-
ruary 21, Forcum misread a mold temperature as 100 degrees
centigrade lower than its actual heat, and another trainee
(Mark Luffman) made the same error when he began work
on the following shift. As a result, a total of 50 to 60 cyl-
inder heads had to be scrapped, of which Forcum was re-
sponsible for about 12. The next morning Panzica told
Forcum and Luffman about their mistake and cautioned them
not to let it happen again. When Panzica left, coordinator
Hubert Corlew advised Forcum to do his work carefully no
matter how much Panzica pushes you, adding ‘‘Its a lot bet-
ter to go slow and get your butt chewed out [for that] than
to make a mistake like this.’’
On reporting to work on the morning of Friday, February
24, Forcum made his union affiliation explicit by announcing
it to Panzica in the presence of other lab workers. At the end
of his shift he was called into the office where Figari, in the
presence of Panzica and Allievi, gave him a ‘‘final’’ written
warning for the earlier mold temperature incident. He was
suspended without pay for 1 week and advised that his next
infraction could result in termination. When he asked for a
copy of the warning, Figari refused. snatched the document
from his hand, and told a waiting guard to ‘‘Escort this man
out of here!’’
While a warning may have been appropriate since
Forcum’s admittedly was derelict in performing a routine test
and significant consequences ensued, nevertheless find it was
unlawfully issued because of disparate treatment. Another
trainee, one without union affiliation, committed the same
error on the same day and received no formal discipline.37
In this matter, I view as inconsequential Respondent’s expla-
nation that Forcum had been employed for 7 months whereas
Luffman had been on board for only 6 weeks, especially
since the test was routine and frequently performed on many
molds during each shift. Further, Forcum’s error at most
would have warranted a verbal warning under Respondent’s
progressive punishment system since, as found above, prior
formal discipline was unlawfully imposed.
Accordingly, I conclude that this warning also would not
have been given absent Forcum’s activism on behalf of the
Union, as alleged in paragraph 21 of the complaint.
At the end Forcum’s shift on May 4, Panzica handed him
a one-page typewritten memorandum pointing out ‘‘discrep-
ancies’’ in Forcum’s timesheet entries for that day. Listed,
among other things, were a misfiling of a report, failure to
leave a blank space between certain entries, taking 15 min-
utes instead of 5 minutes to check the standardization of a
spectrometer, and doing four rather than two metal analyses,
thereby making himself unavailable for other assertedly more
useful work. The memorandum is not a disciplinary action.
It simply calls to Forcum’s attention perceived deficiencies
of a type which Panzica orally called to Forcum’s attention
daily. At best, it is indicative of a pattern of harassment; and
it was probably intended as documentation for future adverse
action. The allegation of unlawfulness in paragraph 22 of the
complaint will be dismissed.
On July 17, Forcum was called into Figari’s office for his
second evaluation. The form had been completed, and Figari
handed it to Panzica and Allievi telling Forcum that he’d
have an opportunity to read it after they had signed. When
Forcum jokingly urged them to read it before signing, Figari
rose cut short any levity by rejoining: ‘‘I give the orders
around here!’’ On being given the document, Forcum’s jaw
dropped when he saw that he’d received a total of only 22
points, 8 less than a satisfactory 30. When Figari inquired
whether he had any questions, Forcum said no, adding he’d
tried as hard as he could.38 Neither Forcum nor the super-
visors offered any explanation of the lower grading, and the
meeting ended with Figari telling Forcum that he was on 60-
day probation and that if he didn’t bring his score up to 30
within that time he’d be terminated. He was denied an auto-
matic pay increase because of the low rating.
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 After the election on September 1, Figari and Tarantini went out
to the gate to thank several antiunion employees who were waiting
there. While they were doing so, Forcum broke away from a group
of union supporters and ran toward them. Fearful, they closed the
gate. Forcum leaped on it and screamed: ‘‘I’ll see you in court,
buddy!’’ He was not written up for the incident because, according
to Figari, he was ‘‘probably exercising First Amendment rights.’’
40 Although two employees (Baxter and Denker) called by Re-
spondent testified that Forcum disrupted two antiunion meetings held
by the Company in August, neither Allievi nor Panzica mentioned
that matter as having any bearing on the September evaluation.
Three other Respondent witnesses (employees Carr, Irving, and
Courtney) voiced personal complaints with Forcum, but no evidence
was presented showing that Allievi and Panzica knew of those com-
plaints much less factored them into their ratings.
41 Even if the low ratings had been justified, Respondent in the
past had retained employees at the end of unsatisfactory probation
periods. For example, it accorded Eddie Loftus and Robert Anderson
an additional 60-day probation to bring their problems under control
and Jimmy Chandler, a former chemical lab trainee, was given a
transfer to a job in the production area when he did not complete
his probationary period satisfactorily, and I conclude that Forcum
likewise would have been retained but for his union activities.
42 Indicative of Johnson’s propensity to anger is a comment in the
evaluation that he should work on controlling his emotions at work.
43 The incident elicited a first written warning to Johnson on the
following day. Earlier, on March 15, he received a verbal warning
from Williams for failing to complete an assignment (installing over-
head air lines to a shaker machine) by the end of his shift. The
warnings as well as the evaluation of April 18 are not alleged to be
unlawful in the complaint.
44 On May 30 Johnson was given a verbal warning for failing to
report to work at 4 p.m. on the Memorial Day holiday. Williams ex-
plains: ‘‘We felt at that time that the problem wasn’t serious enough
to issue a written warning, but it did warrant some discussion and
there was a need to document the discussion.’’
45 Neither Branch nor Figari mentioned the incident in testimony.
Williams, however, verified that Branch told him on October 14 that
Johnson had left without giving any reason. I credit Johnson and
conclude that Branch’s statement to Williams (and later to Figari)
was false.
On September 14, 2 weeks after the Union lost the rep-
resentative election,39 Forcum was again called into the of-
fice. With Allievi present, Figari gave him another completed
evaluation form. This time his score was 25, having had his
ratings raised one point each in the categories of quantity,
accuracy, and attendance. No explanation was given for the
continued low score, and Figari announced that he was ter-
minated.
Allievi attempted to justify the precipitous drop in ratings.
He states that five of the points deducted in the categories
of knowledge, judgment, and alertness were due to Forcum’s
failure to decide job priorities on his own. Yet in the in-
stance when Forcum, following Respondent’s guidelines, re-
jected as too hot a ‘‘Wabash pot’’ of molten aluminum,
Allievi deducted two points under reliability because Forcum
failed to recalibrate the spectrometer which produced the
high reading. Indeed, on one occasion he had been faulted
for excessive time spent doing such recalibration. And al-
though both Allievi and Panzica cited numerous instances
when Forcum was guilty of discourtesies, his low rating of
one in that category was the same in all his evaluations, in-
cluding his initial one in January.40
In these circumstances, and giving due consideration to the
fact that he was being rated under a higher standard as a
level II trainee, I am persuaded that Forcum would have re-
ceived at least a passing grade on his July and September
evaluations had he not been active in support of unioniza-
tion;41 and I find that his termination was meant to deter him
and others from doing so again in any subsequent campaign,
as alleged in paragraphs 23 through 27 of the complaint.
Gary Johnson. Prior to being hired by Respondent as a
maintenance mechanic trainee in April 1988, Johnson had
served 4 years in the military as a mechanic. In October,
after only 6 months on the job, he was promoted to techni-
cian, earning a score of 38 on his evaluation.42 Thereafter,
at least through January he enjoyed a good working relation-
ship with his immediate supervisor, Joe Williams. They often
discussed the possibility of establishing a preventive mainte-
nance program and, drawing on his military experience,
Johnson offered to make a chart for that purpose.
As noted earlier, Johnson began actively and openly to
support the Union in late February and, together with Felts
and Forcum, was a recognized leader in the organization
drive. Among other things he talked up the Union with other
employees, frequently handbilled at the plant gate, and he
wore a union—YES button and a union hat at work. Until
at least 2 weeks after his union activities began, Johnson’s
personnel file contained no disciplinary warnings or negative
file notes of any kind.
On April 18, Johnson received his second evaluation. He
was told by Williams that he received a lower score (33) be-
cause he was being evaluated as a technician, rather than as
a trainee. When Johnson questioned the decrease by one
point in the category of innovation, and reminded Williams
of his suggestions concerning the preventative maintenance
program, Williams agreed that the point should not have
been taken away. In addition, Johnson was reduced one point
in the category of courtesy because of an incident on March
23 when, in response to production coordinator Dutch
Denker’s accusation that he bluffed doing a repair job, he
told Denker: ‘‘Man, if you don’t know what you’re talking
about, keep your fucking mouth shut.’’43
Six months passed without any significant incident or ad-
verse personnel action.44
On October 14, a Saturday, Johnson was scheduled to
work an overtime day. Although he felt sick, he opted to re-
port knowing ‘‘there was quite a bit of work to be done.’’
After working about 4 hours, and having been forced to stop
several times to throw up, he decided to quit early. While
he was filling out a timesheet, coordinator Mike Branch
came by and Johnson told him he was going ‘‘to the house.’’
Branch queried, ‘‘the house?’’ Johnson said, ‘‘Yes, I’m
sick.’’ Branch stood by as Johnson completed the sheet and
received it from Johnson as he left the plant. Branch then
told Williams that Johnson had left without giving any rea-
son for his early quit. On the following Monday, Johnson
was called to the office with Williams and Branch and asked
by Figari to account for leaving early on Saturday. When he
said he was sick and had so informed Branch, Branch
claimed he hadn’t heard Johnson mention the fact. The inci-
dent did not result in any discipline.45 It is significant, how-
ever, because of ensuing events.
On October 19, less than a week later, Johnson was again
called to the office at the beginning of his 4 p.m. to midnight
shift. There, in the presence of Williams, Figari gave him a
725TEKSID ALUMINUM FOUNDRY
46 The third union activist, Bobby Felts, was terminated 1 day ear-
lier on October 18 for reasons not of record here. The discharge is
not alleged as unlawful in the complaint.
47 Immediately after giving this quotation Branch hesitated, cor-
rected himself, and revised the quote to read: ‘‘You’re dead when
you get outside the gate.’’
48 About a month before Johnson was fired, employee Kelly
Santos learned that Branch was degrading his work habits to Wil-
liams, and he told Williams the charge was false, adding: ‘‘if you
don’t do nothing about it, I will.’’ And on June 30, 1988, employee
Continued
completed evaluation covering the prior 6 months containing
an overall rating of 26, 4 points below passing, and asked
if he had any questions. Stunned, Johnson said no and told
them he felt he was being punished for his support of the
Union. Figari and Williams gave him no explanation for rat-
ings in six categories which were lower than those in his
April evaluation. The meeting ended with Johnson being ad-
vised that he would not get a wage increase because he had
not attained a passing grade and that he was on 60-day pro-
bation.
Johnson testified, credibly, that his work performance dur-
ing the April–October period had been the same as before
that period, that he had received several compliments (‘‘atta
babies’’) from Williams on his fabrication work, and that he
had been assigned an increased amount of such work in the
last 3 or 4 months. Also, he ascribed the decrease in attend-
ance from a rating of 4 to 2 as due to an abrupt change in
Figari’s treatment of his requests for leave. In particular, he
testified without contradiction that while he had been granted
excused absences to take his mother to the hospital and to
attend family events (his brother’s wedding) before his union
activity began, on July 29 he was given a demerit for taking
her to the hospital and in late May he was given another for
taking a day off to attend a family reunion for which he had
given notice well in advance. Similarly, he was charged for
going home sick on October 14—an absence of a type which
had been routinely excused in the past. For its part, Respond-
ent provided no explanation as to how his absentee score was
calculated.
Concerning job performance, Williams testified that John-
son refused to cooperate and was unwilling to do his job, but
the only specific deficiencies cited by him were matters men-
tioned in footnote 43 and an incident involving a ‘‘Friggi’’
vertical handsaw, all of which occurred during the period
covered by the earlier April evaluation. Similarly devoid of
pertinent specific detail is testimony of Branch and mainte-
nance technician David Cochran that Johnson was ‘‘slow’’ in
performing his duties. Moreover, there is no indication that
they communicated that perception to William. Indeed, Wil-
liams did not claim to have deducted points for slowness
during the period covered by the October evaluation.
Here too, I am persuaded that the unsatisfactory evaluation
would not have issued absent the recipient’s prounion activi-
ties. Johnson was the last of the three leading union sup-
porters;46 and, as with Forcum, I conclude that he was being
set up for discharge in order to inhibit any future organiza-
tional efforts. Accordingly, I find the evaluation, together
with its consequent probation and loss of income, unlawful
as alleged in paragraphs 43 through 45 of the complaint.
The final denouement began to play out later in the day
on October 19. A short time after Johnson’s evaluation and
probation, he was assigned by coordinator Branch to install
a gear box on a lift vehicle. Branch told Johnson to be sure
to put lacing wire through the bolts to keep them from back-
ing out. After breaktime (around 9 p.m.), they had an en-
counter on the plant floor over whether Branch had under-
taken to bring the wire to Johnson, with Johnson claiming
he did and Branch saying he didn’t. According to Johnson,
he kept his temper and simply told Branch ‘‘it seems you
don’t remember at lot of things lately.’’ Branch, however,
testified that Johnson became very angry and told him:
‘‘You’re mine when I get outside the gate.’’47 Two other
employees were nearby. One, David Cochran, testified there
was a ‘‘heated discussion’’ and that he overheard Johnson
tell Branch they could ‘‘settle this . . . outside or . . . right
here.’’ He also states that right after the incident Branch told
him Johnson ‘‘almost got me mad enough [to] swing at
him.’’ The other, Maurice Estes, saw Branch and Johnson ar-
guing but didn’t hear what was said between them, but as
Johnson passed him going to the lift vehicle, he heard him
mutter through his teeth: ‘‘He’s mine as soon as he gets out
the gate.’’
The encounter ended with Johnson finishing the job and
with Branch reporting by telephone to both Williams and
Figari at their homes, the former at 10:15 p.m. and the latter
at 11:50 p.m. Williams returned to the plant and, assertedly,
found Branch ‘‘visibly shaken’’ and writing out a report of
the incident with a ‘‘shaking’’ hand. He claims Branch
quoted Johnson as telling him: ‘‘When you leave the plant,
you’re fucking dead.’’
The following day, Johnson was called into Figari’s office.
There, in the presence of Williams, Figari asked him what
occurred on the previous night. When Johnson gave his
version, Figari was quiet for a while and then looked up and
said: ‘‘Well, we’re placing you on a one-day suspension . . .
come back on Monday at 4:00 p.m. . . . there’s been a lot
more said and done than you’re claiming,’’ and he declined
to answer Johnson’s request for details. Johnson returned at
the scheduled time. With Williams present, Figari told him
that a ‘‘through investigation’’ revealed that ‘‘there was a lot
more said and done . . . [and] we’ve decided to let you go
at this time.’’ With that, he handed Johnson a termination
slip which indicated he was being fired ‘‘for violation of
company rules [and] for threatening and intimidating com-
pany employees.’’ And in reply to Johnson’s inquiry as to
who he had threatened and how, Figari repeated: ‘‘We had
a through investigation . . . and we’ve decided to let you go
at this time.’’ Then, at Figari’s request, Williams escorted
Johnson through and out of the plant.
Crediting the accounts of employees Cochran and Estes, I
find that there was no death threat and that, at most, Johnson
challenged Branch to a fight off the premises. It does not ap-
pear that Figari’s (or Williams’) ‘‘through investigation’’ in-
cluded contemporaneous interviews with the two employees.
Had that cautionary action been taken, they may well have
agreed with me, especially since they opted not to credit
Branch in the earlier (October 14) incident; and, in con-
sequence, they might have tempered their response to John-
son’s outburst by imposing punishment short of termi-
nation—particularly because no physical encounter actually
occurred and in the past Respondent had been lenient in
similar situations.48
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Larry Gilbert received a ‘‘final warning’’ but no suspension for
making physical threats to a coordinator.
49 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).
50 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
I conclude that Respondent’s failure adequately to inves-
tigate the incident resulted from rampant antiunion animus
found throughout this case and led to overly harsh punish-
ment of Johnson. Accordingly, I find his termination unlaw-
ful as alleged in paragraph 47 of the complaint. The 1-day
suspension, however, does not appear inappropriate and,
therefore, the allegation in paragraph 46 will be dismissed.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) and (3) of the Act in
the particulars and for the reasons stated above, and it is not
shown to have violated the Act in any other respect. Those
unfair labor practices and each of them have affected, are af-
fecting, and unless permanently restrained and enjoined will
continue to affect, commerce within the meaning of Section
2(6) and (7) of the Act.
The Union’s objections in Case 26–RC–7180, to the extent
they parallel allegations in the complaint found proven, are
sustained; and the Respondent thereby interfered with the
Board election held on September 1, 1989.
Except to the extent found, Respondent is not shown to
have violated the Act in any other way.
REMEDY
Having found that Respondent engaged in unfair labor
practices, I find it necessary to order it to cease and desist
therefrom and from further infringing upon employee
rights,49 and to take certain affirmative action designed to ef-
fectuate the policies of the Act. Such affirmative action will
include an offer to unconditionally reinstate (1) Bobby Dick-
ens, Steve Forcum, and Gary Johnson to the positions they
held on the date of their discriminatory discharges and (2)
Randy Crowell to the position he held prior to his discrimi-
natory transfer on March 1, 1989 (or to substantially equiva-
lent positions in the event those jobs no longer exist) and to
make them and other employees whole for any loss of earn-
ings or other benefits they may have suffered as a result of
the discriminations found to have been practiced against
them, computed on a quarterly basis from date of discharge
to date of a proper offer of reinstatement, less any net in-
terim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended50
ORDER
The Respondent, Teksid Aluminum Foundry, Inc., of
Dickson, Tennessee, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Discharging, suspending, warning, withholding earned
wage increases, imposing more onerous working conditions,
giving low evaluations, or otherwise discriminating against
any employee for supporting Aluminum, Brick and Glass
Workers International Union, AFL–CIO, CJC or any other
union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Announcing and enforcing overly broad no
solicitation/talking rules and unduly limited access-to-com-
pany-property rules so as to inhibit, deter, or prevent union
organizational efforts.
(d) Engaging in surveillance or creating an impression of
surveillance so as to inhibit, deter, or prevent union organiza-
tional efforts.
(e) Coercively interrogating employees about their union
activities, including wearing union insignia, or sympathies.
(f) Soliciting and promising to remedy employee griev-
ances in order to undermine union organizational efforts.
(g) Threatening to discharge, freeze wages and benefits,
adopt a regressive bargaining stance, or otherwise punish em-
ployees for supporting the ABGWIU or any other union.
(h) Threatening blacklisting or other reprisal to inhibit,
deter, or prevent employee recourse to the Board.
(i) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of t.he rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate, full, and unconditional reinstatement
to Bobby Dickens, Steve Forcum, and Gary Johnson to posi-
tions held on the day of their unlawful discharges and Randy
Crowell to the position he held prior to his unlawful transfer
on March 1, 1989, or, if those positions no longer exist, to
substantially equivalent jobs, without prejudice to their se-
niority and other rights and privileges, and make them, and
Wade Ross, whole with interest for any loss of pay they may
have suffered by reason of their unlawful discharges and/or
suspensions, in the manner set forth in the remedy portion
of this decision.
(b) Rescind all adverse personnel actions issued to the
above-named employees, and to Bobby Felts, John
McElhiney, and Kelly Burgess as a result of the discrimina-
tions here found to have been practiced against them, and ex-
punge from Respondent’s files any reference thereto and no-
tify these employees, in writing, that such actions have been
accomplished and that the expunged material will not be
used as a basis for any future personnel actions against them
or made reference to in any response to any inquiry from any
employer, prospective employer, employment agency, unem-
ployment insurance office, or reference-seeker. (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 payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
727TEKSID ALUMINUM FOUNDRY
51 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Post at its plant in Dickson, Tennessee, copies of the
attached notice marked ‘‘Appendix.’’51 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
3. The election previously conducted on September l,
1989, is hereby set aside, and a new election shall be di-
rected at such time as the Regional Director for Region 26
deems appropropriate.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.