Thurner Heat Treating Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1972

199 N.L.R.B. 883 (N.L.R.B. 1972)

THURNER HEAT TREATING CORP. 883
Thurner Heat Treating Corp . and Thomas J. Lumley.
Case 30-CA-1666
Lumley. Respondent's answer denies the commission of the
alleged unfair labor practices. The case was tried in Milwau-
kee, Wisconsin, on March 30, 1972.
October 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 12, 1972, Administrative Law Judge I
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Thurner Heat Treating
Corp., Wauwatosa, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C A 3). We have carefully examined the record and find
no basis for reversing his findings
3 The Respondent's request for oral argument is hereby denied as the
record, including the exceptions and brief, adequately presents the issues and
positions of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RAMEY DONOVAN, Trial Examiner: A charge and an
amended charge were filed on July 28, 1971, and February
22, 1972, respectively, by Thomas J. Lumley, an individual,
against Thurner Heat Treating Corp., Respondent herein.
The complaint issued on February 24, 1972, and alleged
violations of Section 8(a)(1) and (3) of the Act by mterroga-
tions and threats and by the discriminatory discharge of
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent is a Wisconsin corporation engaged in the
heat treating of metals at its plant in Wauwatosa, Wiscon-
sin.
During a representative fiscal year, Respondent, in the
course and conduct of its business operations, performed
services valued in excess of $50,000 for firms located in
Wisconsin, each of which in turn sold and shipped goods
and materials valued in excess of $50,000 in interstate com-
merce to points located outside Wisconsin.
Respondent is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers, and Helpers, AFL-CIO,
herein the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In a case as here presented, where there has been a
prior complaint against Respondent and an ensuing settle-
ment agreement between the General Counsel and Respon-
dent, the Board has held that "Respondent's pre-settlement
conduct can be used as background evidence in assessing
the motive or object of Respondent's post- settlement con-
duct ...."I
Norman Walters had been hired by Respondent as a
laborer in March 1965. Two or three years later he was
made a shift foreman. Walters was terminated by Respon-
dent on July 16, 1971.
Walters testified that in 1969, when the Union had
commenced its organizing activities among Respondent's
employees, Respondent President Robert Thurner asked
Walters what he thought could be done, "legal or illegal, as
long as we didn't get caught," to break up the Union.2
Walters suggested that he, Walters, could accomplish what
Thurner had in mind by working through a key employee
named Bacon. Walters further told Thurner that he felt that
Bacon could be trusted not to reveal the matter to the Board
"or get Mr. Thurner in trouble." Thurner told Walters "to
go ahead." Thereafter Walters approached Bacon privately.
Bacon was apparently receptive and expressed the view that
he and the other employees would not need the Union "as
long as they got the benefits they felt they should have"
from the Company. Some days or more after this, Thurner,
in a conversation with Walters, said that he thought "if we
let Carroll Bacon go ... that the Union would just fall apart
i Moulton Shirt Corporation, 173 NLRB 882, Mohasco Industries, Inc, 172
NLRB No 237, N L R B v Northern California District Council of Hod
Carriers and Common Laborers Union, AFL-CIO (Joseph's Landscaping
Service), 389 F.2d 721 (C.A. 9).
2 Thurner has been Respondent 's chief officer for 35 years
199 NLRB No. 150
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that would be the end of their problem."3 The foregoing
evidence is of a relatively brief and limited nature . It does,
however, show a strong desire or commitment on Thumer's
part to thwart and to break up the Union by "legal or
illegal" means.
In May 1969, the Union received certification from the
Board as the exclusive bargaining representative of Respon-
dent's production and maintenance employees and truck-
drivers.
The General Counsel issued a complaint against Re-
spondent in April 1970.4 About this time, according to Wal-
ters, Robert Thurner met with his supervisors, including
Tom Thurner, his son, and Walters. When Robert Thurner
asked Walters whether the charge or complaint allegations
regarding Walter's antiunion activities were true, Walters
said "damn right they were true" and that Thurner knew
they were true, since he had been aware of what was to
occur. Thumer then said that the Company would admit the
allegations "and they'll slap my wrists, and that'll be the end
of it." During this same period in April. 1970, Walters testi-
fied to a conversation he had with Tom Thurner regarding
the origins of the union activity. Thurner expressed his be-
lief that the men on the third shift had instigated the Union
"and if he had his way he would have fired the whole third
shift and start all new, and any other union agitators he
would fire along with them."5
On June 15, 1970, the Respondent, counsel for the
General Counsel, and the Union entered into and executed
a formal settlement stipulation regarding the complaint in
Case 30-CA-1185. The aforesaid stipulation stated, inter
alia, that Respondent withdraws its answer to the com-
plaint.6 The stipulation provided for the entry of a Board
order against Respondent forthwith. The order, consistent
with the complaint allegations to which Respondent had
withdrawn its answer , provided, inter alia, that Respondent
would cease and desist from:?
Depraving certain employees of overtime because of
union activities. Interfering with employees' possession
of union literature or distributing same during non-
working hours in nonwork areas . Interrogating em-
ployees about their or others' union activities.
Threatening employees by stating that the Union
would have to be abandoned before a work agreement
could be achieved; that Respondent would not "give
an inch" in negotiating with the Union; that the plant
would be closed to keep from giving a contract to the
Union. Bargaining directly with employees by offering
them a working agreement with improved wages and
3 Bacon left Respondent 's employ soon after this for a job with another
em4ployer.
Case 30-CA-1185.
S As indicated , Tom Thurner is a son of President Thurner He is a supervi-
sor and stockholder and exercises supervisory authority over employees. By
profession he is a metallurgist . Another son of the president also is employed
by Respondent and shares an office with Tom Thurner. As Respondent's
counsel stated , "It's a family business."
6 Sec. 102 .20 of the Board 's Rules and Regulations , Series 8, as amended,
provides:
... All allegations of the complaint, if no answer is filed , or any allega-
tion in the complaint not specifically denied or explained in an answer
filed . shall be deemed to be admitted to be true and shall be so found
by the Board .
7 We are not setting forth the order verbatim.
other benefits providing they abandoned the Union.
Threatening employees with discharge because of their
union activities. Discriminating against Johnson and
Sadowski and causing them to terminate their employ-
ment. Refusing to bargain in good faith with the Union
and granting wage increases during negotiations with-
out notice to the Union, the exclusive bargaining agent.
The affirmative portion of the order provided for offers of
reinstatement and backpay to Johnson and Sadowski; bar-
gaining in good faith with the Union upon request; and
posting a notice in the plant.
The stipulations of settlement also provided for the
entry of a decree by the United States Court of Appeals
enforcing the Board's order. The Board's Decision and Or-
der is dated July 7, 1970. The Court of Appeals for the
Seventh Circuit entered its judgment and decree enforcing
the Board's order on July 29, 1970.
B. The Discharge of Thomas Lumley
Lumley had been hired by Respondent in March 1967
as a production worker. At the time he was 26 years old and,
as far as appears, he had no particular craft type skills .8 His
rate was $2.65 per hour. He continued to work on produc-
tion for about 4 months when the first-shift foreman asked
him to take a job in maintenance as maintenance helper.
Lumley worked in the latter job from June or July 1967 until
July 19, 1971, when he was discharged. During these 4 years
in maintenance Lumley worked from 8 a .m. to 4:30 p.m.
and also worked some overtime after 4:30 p.m. or on week-
ends. In general , Lumley's maintenance work involved re-
placing tubes in furnaces, replacing gaskets , fixing pumps,
and general maintenance work in the building. He had re-
ceived four raises in pay in the course of his 4 years in
maintenance and was earning $3.20 per hour at the time of
his discharge. Van Oyke, an engineer , who was an officer of
the Company and a brother-in-law of President Thurner,
testified that Gosse was the maintenance foreman . Accord-
ing to Van Dyke, maintenance and engineering overlap and
Gosse "reports to me on any particular problems and I can
advise him." Lumley testified that during his 4 years in
maintenance he considered Van Dyke to be his supervisor.
Although the Union had commenced organizing
Respondent's employees in the forepart of 1969 and had
been certified in May 1969, the record indicates that it was
experiencing difficulty in dealing effectively with Respon-
dent. Some contract negotiations were commenced in 1969
after the Union was certified. However, two employees,
Johnson and Bacon, who served as employee representa-
tives on the union negotiating team with the nonemployee
union representatives or officials, became lost to the Union.
Bacon left Respondent's employ for another job. We have
described earlier in our Decision how Foreman Walters,
with President Thurner's approval, had sought to enlist Ba-
con as a tool in Respondent's effort to thwart the Union.
Johnson, an electrician in Respondent's maintenance de-
partment, who was the other employee union negotiator,
also ceased to be an employee of Respondent. The 1970
Board Decision and Order and the court decree, earlier
described, ordered Respondent to cease discriminating
8 Such as a welder, plumber, electrician , and so forth.
THURNER HEAT TREATING CORP.
against Johnson and to offer him reinstatement and back-
pay. Apparently Johnson did not accept the subsequently
offered reinstatement since the record indicates that he was
not in Respondent's employ in the 1971-72 period when the
event of the Lumley union activity and discharge occurred,
and Johnson never resumed as a union contract negotiator.
The Board Decision and Order and the court decree,
in addition to Johnson's and another employee's termina-
tion, dealt with other conduct of Respondent vis-a-vis the
Union, and Respondent was ordered to cease in various
ways from refusing to bargain in good faith with the Union.
Despite these orders, issued in July 1970, more than a year
had in fact elapsed since the Union's certification and little,
if anything, had been accomplished from the standpoint of
the Union and the employees whose bargaining agent it
was.
As far as appears from the record, it was not until about
February 1971 that a renewed effort was made or was able
to be made to seek to negotiate a collective-bargaining
agreement with Respondent. The Union, the certified Inter-
national Boilermakers Union, had selected a new local un-
ion to represent the employees in Respondent's plant .9 The
employees then met in employee Smithson's home to select
employees to serve as a negotiating committee together with
the union representatives. The latter, with the members of
the employee negotiating committee, would then meet with
the Employer's representatives to begin contract negotia-
tions.
At this February 1971 meeting in Smithson's home, an
employee negotiating team was selected. The negotiators
chosen were employees Smithson and Axelman; and em-
ployees Lumley and Miller as alternates. The following
month, March, a meeting of the entire union negotiating
team was scheduled at the home of Uhle, president of the
local union. Uhle was not an employee at Respondent's
plant. He and the vice president of the local (also a nonem-
ployee) were present as well as Sentowski, a representative
of the International Union. Of the employee negotiators,
who had been selected a few weeks before at Smithson's
home, only Lumley remained and participated in this
March meeting at Uhle's home. Smithson had resigned as
a negotiator and refused to participate further.10 Axelman
appeared at the March meeting but by that time he was
no longer an employee of Respondent, having been dis-
charged.I I Miller did not appear at this meeting and he, too,
apparently was out of the picture as an employee negotiator.
Probably because he was the one remaining employee nego-
tiator still extant , Uhle asked Lumley to serve as the chief
employee negotiator, together with Sentowski and Uhle.
9 Although not explicated in this record , we take note that , commonly,
when an International Union is certified as the bargaining agent for the
employees of a relatively small plant such as Respondent 's, it does not set
up a new local union . Generally, such a new unit will be made part of an
established local union in the area that is affiliated with the International
Union . In the instant case apparently Respondent 's employees were assigned
to a local union in 1969 . After the lapse of time and including the intervening
alleged unfair labor practices of Respondent that resulted in a Board order
and court decree in 1970 , the International Union , in early 1971, had as-
signed another local union to the employees at Respondent 's plant
10 Smithson remained in Respondent 's employ . The reason for his resigna-
tion as a negotiator does not appear in the record.
11 The reason or circumstances of Axelman 's discharge does not appear in
the record.
885
The group then discussed what contract proposals should be
made to Respondent. For the same purpose the same group
met again early in April.
Some time around March 1971, when the Union, as
above described , was again showing signs of revival in the
months following the Board order and court decree, the
then foreman, Walters, had a conversation with Tom Thur-
ner. Walters, whom we credit, states that he was discussing
some work matter with Thurner. The latter then made ref-
erence to the Union, saying, "If I had my way, every union
man that I know in here, I'd throw in the oil tank, and if
you think I'm kidding, why, I'm not."
Walters testified that in the period, through the grape-
vine or possibly from another foreman , he and others in the
plant became aware that Lumley had been appointed to
some position in the Union. In addition to the foregoing
common knowledge in which Walters and others shared,
Walters testified that Tom Thurner said to him, "Well, you
know who's union steward now?" Walters said, no. Thurner
said, "Tom Lumley and if they can't find anythirg better
than that, they sure don't have much of a union. ' f,
Lumley testified that in April 1971, before he and the
other members of the union negotiating team appeared for
a meeting with Respondent on April 20, Van Dyke ap-
proached him in the plant. Van Dyke asked him if he was
involved "in any of this new activity going around in the
Union." Lumley said yes he was. Lumley continued, saying,
"I refused to be a steward because of my job position, it
would interfere with my job ... but I would be a negotiator,
and am presently a negotiator." Van Dyke then said, "for
your own good," he advised Lumley to turn over the job of
negotiator to someone else because "I recently lost one man
for union negotiations."
Van Dyke, called as a witness by Respondent, had his
attention called to the complaint allegation to the effect that
Van Dyke had interrogated an employee concerning his
union membership and activity. Van Dyke testified that he
had never interrogated any employee regarding union or
personal activities. The witness further said that he did not
"recall any such conversation" with Lumley in which he
asked Lumley "about union activities." The direct examina-
tion of Van Dyke on this subject was then concluded with
the following question and answer:
Q. The complainant further states you threatened
him with loss of his employment; did you threaten him
with loss of employment?
A. I didn't threaten him with loss of employment.
I've never threatened anyone with loss of employment
in my life and I've never discharged anyone in my life.
It is possible that Van Dyke did not "recall," as he
states, the conversation testified to by Lumley; or that Van
Dyke did not consider that he had interrogated and ques-
tioned the employee about union activity; or that Van Dyke
believed that by advising Lumley to give up the position of
negotiator because of negotiating activity, he, Van Dyke,
was not conveying a direct or implied threat of loss of
employment (by Respondent if not by Van Dyke personal-
ly) if Lumley did not relinquish the position of a union
12 Lumley had been offered the job of steward but had declined on the
ground that it would interfere with his work . He did , however, as we have
seen , accept the post of employee member of the Union negotiating team.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiator. However, after considering Lumley's testimony
and the nature of Van Dyke's testimony, the Trial Examiner
credits Lumley, who impressed us as credible.
A meeting between the union negotiating team and
Respondent had been scheduled for April 1971 in the office
of Respondent's attorney. This meeting was canceled.13 A
meeting at the same place was then set for April 20, 1971.
The union team appeared at the attorney's office at the
appointed time . There was the union international repre-
sentative; the president and vice president of the local un-
ion; former employee Axelman; and Lumley. The latter was
the only employee representative on the negotiating team.
As credibly testified to by Lumley, all the aforementioned
persons were asked and gave to Respondent's attorney their
names and titles or positions. The attorney then explained
that President Thurner, who was Respondent's principal
negotiator, could not be present since the plane he was
flying had experienced mechanical difficulty.14 The meeting
was thereupon canceled.
There is no evidence that any future meeting was
scheduled. Lumley testified that as far as he knew there
were no negotiating meetings between April20 and the time
of his discharge in July. The General Counsel stipulated
with Respondent that Lumley did not participate in nego-
tiations after the scheduled April 20 meeting. No evidence
appears in the record that there were any negotiations be-
tween April 20 and the date of Lumley's discharge. In oral
argument at the close of the instant hearing, Respondent's
counsel state, inter aha, "There was no union activity at the
time he [Lumley]was let go. There just wasn't any, and no
one has produced any testimony to the contrary. I know for
a fact there was none. There wasn't even negotiations going
on.,,
In this connection, it is appropriate to recapitulate,
briefly, the picture of a union and the employees who sup-
ported it to certification in May 1969, trying to weather a
period between May 1969 and July 1970, marked by a
Board Decision and Order and court decree directed
against far-reaching unfair labor practices of Respondent.
Employees were no doubt discouraged by the lapse of time
during which no headway was made in achieving a bene-
ficial contract with the Respondent. Moreover, despite the
intervention of the Board and the court to enjoin
Respondent's illegal antiunion acts, there is little doubt that
employees long remembered Respondent's hostility toward
the Union and toward individual union activists. Following
the Board order and court decree in July 1970, it was not
until February 1971 that the Union undertook to, or possi-
bly was able to, muster a new employee negotiating commit-
tee. The two former employee negotiators, Johnson and
Bacon, were no longer in Respondent's employ, as previous-
ly described. In early 1971, the newly selected group of four
employees negotiators quickly dissipated until only Lumley
remained. Whether or not he was the ablest employee in the
plant for such a job, he at least was the only one who had
the courage or the conviction to remain as the employee
member of the union negotiating team and to appear in that
13 Other than the fact of cancellation , the record reveals nothing about the
circumstances of the cancellation
14 Thurner , who flies his own plane , testified at the hearing regarding the
trouble that he had encountered with the plane on April 20
capacity at the scheduled April meeting with Respondent.
Lumley did not relinquish his job as the employee member
of the union negotiating team despite an admonition from
Van Dyke that he should do so or risk the fate of a former
negotiator."
Following the abortive April 20, 1971 scheduled meet-
ing between Respondent and the union negotiating team,
Lumley continued in his job as a maintenance man or main-
tenance helper until he was discharged on July 19, 1971. The
circumstances and facts of the discharge are now described.
On the afternoon of Friday, July 16, 1971, Lumley had
completed such maintenance tasks as were on hand. Van
Dyke was not around the plant that day or at least that
afternoon and Maintenance Foreman Gosse was occupied
at some task in the plant and had no particular assignment
for Lumley at the time. "Later on in the afternoon,"1 "Wal-
ly," an assistant or helper of the shipping manager, came to
Lumley in the plant and told him an air-conditioner had
come in. Neither Wally nor the shipping manager testified
and no witness of Respondent has offered any comment of
the uncontroverted fact that the shipping department,
through Wally, notified Lumley of the arrival of the air-
conditioner at the plant. Presumably, therefore, the ship-
ping department was acting normally in notifying mainte-
nance man Lumley that an air-conditioner had arrived. The
air-conditioner's destiny was quite apparently not to remain
in the shipping department. It is clear that the shipping
department did not go to Van Dyke or to Foreman Gosse
to tell them of the arrival of the air-conditioner and to ask
that they assign a maintenance man to install it. For whatev-
er reason, Lumley was the employee notified. It is undisput-
ed that the air-conditioner was a replacement for an 110 volt
air-conditioner in Respondent's office and that its installa-
tion was a maintenance function.
Upon being thus notified of the arrival of the air-condi-
tioner, Lumley, since he had nothing else to do at the time,
decided to install the air-conditioner.l" He went to where
the air-conditioner was and with the help of another em-
ployee, unidentified, they installed it in its proper place in
the office, leveled it, and otherwise placed it in operational
status from the standpoint of setting it up physically. Lum-
ley next was in the course of plugging in the air-
conditioner's wired plug into the electrical receptacle in the
room. 18 He then discovered that the air-conditioner plug did
not fit the room receptacle. He also observed that the air-
15 When Van Dyke told Lumley that he should relinquish the role of
negotiator because Van Dyke had already lost one man due to negotiations,
he may have been referring to Johnson Johnson had been a maintenance
electrician and as such would have been under Van Dyke's general supervi-
sion The 1970 Board order and court decree ordered Respondent to cease
from its conduct of having discriminatorily terminated Johnson In 1971
neither Johnson nor any other former employee union negotiator was still in
Respondent's employ
1 Since Lumley worked from 8 a in to 4 30 p in, the time was probably
an hour or so before 4 30
17
There is no evidence that Respondent or its maintenance department
had any rule that no maintenance employee was to perform any maintenance
tasks unless specifically so assigned by a supervisor Nor had any supervisor
ever told Lumley that he was to perform no maintenance work unless specifl-
callt assigned thereto and instructed thereon
1 The air-conditioner was evidently a room-type air-conditioner that was
wired by the manufacturer and had wires with a male plug at the end that
was to be inserted in a wall receptacle or other electrical receptacle in the
room The latter receptacle would have holes or slots into which the air-
conditioner's plug was to be inserted
THURNER HEAT TREATING CORP. 887
conditioner had a tag on it which said 220-160 volts. Lum-
ley testified, in effect, that although he knew that 220 volts
were not the same as 110 volts and that the two were not
compatible if the power line was one of these voltages and
the appliance was another, he believed at the time that 160
and 110 volts were substantially the same. 19 He was not an
electrician and from the inception of his 4 years in mainte-
nance with Respondent he did not purport to be an electri-
cian and Respondent was fully aware of his limitations.
In any event, despite his erroneous judgment about the
two voltages, Lumley did not do anything to implement his
own judgment about the situation. He did not seek to force
the air-conditioner plug into the room receptacle nor did he
undertake to change the air-conditioner plug or the room
receptacle so that one would receive the other. Instead, he
went to find Gosse, the maintenance foreman. He told
Gosse of the situation and asked what he should do about
it. Gosse asked Lumley if he had checked the wiring. The
latter said yes, there were three wires coming out of the
air-conditioner, two power lines and one ground. Gosse
then said, "Well, just take the plug off [the air-conditioner
wires] and put a plug on it that will fit the receptacle."20
Lumley then returned to the air-conditioner, removed the
plug from its wires as directed by Gosse, and attached an-
other plug in its place. The new plug fitted the electrical
receptacle in the room. Lumley then plugged the air-condi-
tioner cord, with the new plug, into the receptacle. The
air-conditioner ran but, as Lumley states, "it wasn't running
too well." He then, after 5 minutes, unplugged the air-condi-
tioner from the receptacle. There had been no smoke, explo-
sion, fire, or any other damage to the air-conditioner or to
the wiring and electric receptacle in the room. At the time
Lumley unplugged the air-conditioner after it ran for 5 min-
utes, Mangen, the plant manager, who was in the office,
then told him to leave the air-conditioner alone. This was
evidently because the air-conditioner in the brief 5 minutes
of running, was quite apparently not operating as it
should 2' Lumley did leave it alone and did nothing more
regarding the air-conditioner. This all occurred at the end
of the day, Friday, which was of course, the end of the
workweek .22
On the following Monday, July 19, 1971, Lumley came
to work at his regular time, 8 a.m. He worked throughout
the day without incident until an hour or so before the end
of his shift when he was called to Tom Thurner's office.
There, Thurner told Lumley that he was discharging him.
Lumley asked him why. Thurner then gave three reasons.
19 The room receptacle was on a 110 volt power line The prior air-condi-
tioner was wired for 110 volts and had been used in that room Lumley
probably assumed that the replacement air-conditioner was similarly wired
since it was to be used in the same location and that 160 volts was a minor
variation of 110 volts.
20 Lumley's testimony is uncontroverted since Respondent did not call
Gosse as a witness . The Trial Examiner credits Lumley
21 Mangan did not testify.
22 As previously stated , the office electrical outlet or receptacle was wired
to a 110 volt power line. Such a line is commonly used in private dwellings,
and older offices since it is adequate for normal requirements such as lights
and low voltage appliances The previous air-conditioner was 110 volts and
had been plugged into the office receptacle The new air-conditioner of 220
volts would not function effectively and as it should when plugged into a 110
volt receptacle . In the following week , Respondent 's electrician installed a
220 volt line in the office and changed the plug The air conditioner then
operated as it should
He first mentioned something about a fuse box. Lumley
asked what he meant. Thurner said that he would not go
into the details. Then, according to Lumley, Thurner re-
ferred to the Lumley motor matter.23 The third cause of the
discharge mentioned by Thurner was the installation of the
air-conditioner the previous day. Thurner then said that it
would do Lumley no good to see Van Dyke, the plant engi-
neer, "it wasn't his decision [to discharge Lumley] at all, it
wasn't his idea and he didn't agree with it."24
On the air-conditioner matter, it is clear and undisput-
ed that from Friday to the end of the day on Monday, when
Lumley was discharged, no foreman, supervisor, or member
of the Thurner family had said a word to Lumley about the
installation of the air-conditioner or asked him for his ver-
sion or explanation.
Tom Thurner testified that he came to work on Mon-
day, July 19, at 8 a.m. His brother, Tim, had come to work
about the same time or a little earlier. About 10 a.m. Tim
Thurner came to Tom Thurner and told him that Lumley
"had put the air conditioner in place 25 ... [and] that Mr.
Lumley had been told not to hook it up electrically."26
According to Tom Thurner, his brother, also mentioned
that tags on the air-conditioner described its voltage and
Tim Thumer said that on the 110 volt line the performance
of the air conditioner "was very poor." Tim Thurner also
said that Mangen "had seen this" and asked that Tom Thur-
ner "look into the matter." Tom Thurner testified that it
then took him, Tom, "about four hours" to find out "what
had happened and for my father to come to a decision to
discharge the man."27
After receiving the aforementioned information from
his brother about the air-conditioner, Tom Thurner then
spoke to Plant Manager Mangen. He thus describes that
conversation:
Q. What did you discuss?
A. The air conditioner. He had little comment on
it. Something to the effect it hadn't worked.
Q. Was that it?
A. Yes.
Thurner next spoke to Gosse. According to Thurner, Gosse
said that Lumley had put the air-conditioner in place "on
his own decision." Lumley then "had come back to him
[Gosse] when the plug wouldn't fit in the socket and he
[Gorse] had told him to leave it alone and he [Gosse] would
take a look at it." that was the end of the discussion with
Gosse.
Having completed the investigation without even ap-
proaching Lumley, the subject of the investigation and the
principal actor in the air-conditioner affair, Tom Thurner
23 We will describe the fuse box matter and the Lumley motor at a later
point
24 Neither Van Dyke nor Thurner testified on this aspect of Lumley's
testimony
25 There is no claim that the air-conditioner had been put in place improp-
erly
e Since Tim Thurner did not testify we do not know the source of his
information
27 This purported long investigation and decisional process is not easy to
understand since the only persons who were questioned about Lumley and
the air conditioner and the action to be taken were foreman Gosse and plant
manager Mangen and there was allegedly no conflict but a consensus of
opinion Gosse and Mangen were obviously readily available to the Thurners
for any questions they might have had and Van Dyke and Lumley were not
questioned during this 4 hour investigation and decision
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to his father, President Robert Thurner, early in the
afternoon of July 19. Thurner states that he mentioned to
his father "a number of things that Mr. Lumley had done
wrong." At the instant hearing, Thurner was then asked,
"Like what?" He replied that he did not "remember them
specifically" but he then referred to the following incidents
as having been mentioned to his father on that occasion.
These incidents have been described by Tom Thurner at
various points in his testimony. Thus,
(a) A propeller and shaft was used in a cauldron
containing a salt bath that was maintained at about a
400 degree temperature. The propeller had become
bent and Lumley was assigned the task of straightening
it. To do this it was necessary to loosen the shaft that
was sticking into the salt bath. The shaft and the pro-
peller were attached and the whole assembly had to be
removed as a unit. In loosening the shaft, Lumley had
not held on to it or, in any event, the shaft and all
dropped to the bottom of the salt bath. Although no
damage to the equipment resulted, it took about 1-1/2
hours to fish the shaft assembly out of the hot salt bath.
Respondent's counsel on direct examination asked Thurner
re the above:
Q. Did you warn him at that time?
A. What do you mean, "warn him."Threaten his
job?
Q. Well, yes.
A. No, I did not.
Q. But you told him this wasn't proper procedure?
A. Yes.
The foregoing indicates that there is little doubt that neither
Lumley nor the Respondent wanted or expected that the
assembly would fall into the salt bath. Although there is no
claim that Lumley had performed this task before, we can
conclude that he should have held onto the shaft assembly
and not allowed it to drop into the salt bath. The extent of
Thurner's reaction to the incident at the time was to tell
Lumley that allowing the assembly to fall into the salt was
not proper precedure.
(b) The motor incident involving Lumley that had
occurred about a year prior to his discharge. At that
time Lumley had read a magazine article which de-
scribed an outboard motor; this motor, after it was
started by a battery was supposed to run thereafter
without any power source, or at least this was the way
Lumley had interpreted the article. Lumley had men-
tioned this motor to some of his fellow employees at the
plant. They and other employees kidded Lumley about
this alleged self generating motor and the matter was
referred to as the Lumley motor among the plant per-
sonnel . This is the extent of the incident.
Respondent's invocation of the foregoing as a factor in
Lumley's discharge is made on the ground that it showed
Lumley's incompetence. However, the motor incident oc-
curred about a year prior to Lumley's discharge and Re-
spondent had neither said nor done anything to Lumley
regarding the fact that he had told some fellow employees
about a new type of outboard motor that he had read about.
Lumley had, in 1967, applied for a production job with
Respondent and been hired as a production worker. After
several months Respondent asked him to be a maintenance
helper. Respondent was well aware at that time and for 4
years thereafter that Lumley was not a mechanic and had
no electrical background. However, Lumley had received
four raises in pay because, presumably, as president Thur-
ner testified, Lumley "is a fine fellow . . . a very good
workman... .
(c) Sometime in June, 1971, Tom Thurner was
watching Lumley in the plant trying to cut a piece of
stainless steel with an oxygen-acetylene cutting torch.
Thurner, a metallurgist, was aware that stainless steel
could not be cut with such a tool. He then imparted this
information to Lumley and told him that he would
have to use an electric arc to cut that particular metal.
This was the extent of the incident and the "repri-
mand."
Thurner states that this incident shows Lumley's "lack of
knowledge." This is probably true if Lumley had been hired
as a welder or steamfitter or as a man with a broad mechani-
cal background. Oxygen-acetylene equipment such as used
by a welder is commonly used with various attachments as
a cutting torch. It will cut iron and steel and most common
metals. Apparently it will not cut some more sophisticated
alloys and in the matter in question an electric arc had to
be used. While Lumley had probably done some metal cut-
ting in the plant before this incident, it does not appear that
he had previously cut stainless steel.
In sum, Tom Thurner testified that on July 19, when
he went to his father about Lumley, he mentioned the air-
conditioner installation; dropping of the shaft assembly into
the salt bath; the Lumley,motor incident; the attempted
cutting of a piece of stainless steel; and "numerous incidents
... I can't recall."28 Tom Thurner states that he told his
father that he thought Lumley "was a danger around the
plant and that he was going off on his own doing things for
which he was not qualified. I recommended discharging
him."
President Robert Thurner testified that on July 19, his
son Tom reported to him that Lumley had gone ahead on
his own in installing an air-conditioner and had plugged the
220 volt air-conditioner into a 110 volt line. According to
Robert Thurner, his son also told him on July 19 that Lum-
ley had done work on his own for which he was not compe-
tent on many other occasions. At another point Robert
Thurner testified that, within the 60 days of Lumley's dis-
charge, Tom Thurner and Plant Manager Mangen had, on
several occasions previously, told Robert Thurner about
Lumley doing things in his own and that he was "danger-
ous" because he was not qualified for such tasks. As far as
appears, neither Robert Thurner, nor Tom Thurner, nor
Mangen nor anyone else had talked to or had admonished
Lumley about his allegedly numerous dangerous actions in
25 At another point, Thurner was asked about the fuse box incident which
Lumley states was mentioned when Thurner discharged him. Lumley testi-
fied that when he asked Thurner what he meant, Thurner said he could not
go into any explanation In his testimony , Thurner states that, with a fuse
tester, Lumley was supposed to test an electric circuit . Thurner's testimony
on this matter is brief and not too revealing
Q What did he [Lumley] do wrong with the test mstrument9
A You have two poles, and he had gone from one fuse hole to
another fuse hole and if the two are in phase you'll come up with an
indication both circuits are dead , they're not functional
Q What happens if he gets a charge through it?
A. It lights a light in the fuse tester
Q Is there any personal danger in doing it improperly?
A No.
THURNER HEAT TREATING CORP. 889
the past. No supervisor had said, for instance, "Lumley, you
are not to perform any electrical or other maintenance pro-
ject unless a supervisor assigns you to the task and tells you
what to do." Neither this simple instruction nor any warn-
ing or genuine reprimand had been given to Lumley by
anyone, past or present. Robert Thurner gave no specifics
as to Lumley's asserted numerous derelictions. The only
specifics were testified to by Tom Thurner and we have
previously described each cited incident, such as the Lum-
ley motor and so forth.
Robert Thurner states that after his son reported to him
about Lumley, he, Robert Thurner, then talked to Mangen
and Gosse. They each reportedly agreed that Lumley had
been doing things on his own and that he was a "dangerous"
person to have around because of his lack of competence.
Robert Thurner states that he then told Tom Thurner to
discharge Lumley because he was too dangerous to have
around.
In discharging Lumley, Tom Thurner testified that "I
mentioned many incidents during which he had made errors
in his work." There is no claim that on this occasion or on
any other occasion anything was said to Lumley about
Lumley doing work on his own initiative and without super-
visory direction, although both Thurners testified that this
was what made Lumley too dangerous to .retain as an em-
ployee. In a sense , at the time Tom Thurner discharged
Lumley, there was probably not much point to discussing
anything. Tom Thurner, upon hearing about the air-condi-
tioner on July 19, had "investigated" that matter without
talking to Lumley. Thurner then recommended discharge to
Robert Thurner. The latter then made an "investigation"
without talking to Lumley and ordered Lumley's discharge.
When Tom Thurner informed Lumley of his discharge he
was therefore siipply announcing a fait accomph.29
Conclusions
We have set forth the facts in this case in some detail.
Where testimony or other evidence has been in conflict we
have considered the conflicting elements. It is our opinion
that Lumley was, on the whole, a reliable witness. He came
to work in Respondent's maintenance department at
Respondent's request. As far as appears, he had no
particular technical or craft background. He had no elec-
trical experience and was not a general all-round skilled
mechanic. In 4 years in the maintenance department his
shortcomings, in our opinion, were known to Respondent.
This is a relatively small plant with about 50-60 employees
and 3 in maintenance. Since there were 3 shifts, there would
therefore be 20-30 employees on hand at any given time and
subject to close scrutiny of a family type management-3
actively engaged; Thurners, a plant manager, various shift
foremen, a plant engineer, and a maintenance foreman. But
although Lumley was no mechanical engineer or master
mechanic or even an electrician or journeyman craftsman,
he performed adequately in the job for which he was hired,
a maintenance helper. He received four raises in pay and
29 On this occasion , according to Thurner, he, Thumer, did mention the
air-conditioner but it was apparently limited to discussing "the electricity
systems in the shop " Thumer states that on this Lumley showed a "very deep
lack of knowledge on the subject." This is not surprising since Lumley had
no electrical background, a fact known to Respondent for 4 years
had never been disciplined or warned about his work. Al-
though he had made mistakes and had been corrected, he
was certainly never warned that his work or his work habits
were such that they could not be tolerated or that his job
tenure was in jeopardy absent change or improvement.
The specific incidents that Respondent has cited as
reasons for Lumley's discharge were not, in our opinion,
treated as serious derelictions at the time they had occurred.
The Lumley motor affair took place about a year before the
discharge. That incident, at most, indicated that Lumley
may not have been a very sophisticated individual. The
other cited incidents, like the cutting of stainless steel and
the fuse box testing, indicated limited electrical and me-
chanical or metallurgical knowledge. However limited such
knowledge on Lumley's part, it is not apparent that such
lack of knowledge was greater in his fourth year of employ-
ment than it had been in the mitial years and throughout his
employment in maintenance. The salt bath incident, in our
opinion, involved an error by Lumley; or, as Tom Thurner
testified, he told Lumley, after the occurrence, that it was
not proper procedure to allow the assembly to fall into the
salt bath. Obviously it was not proper procedure and it
probably is not proper procedure for an employee to let a
battery slip from his hand and fall to the floor or to let a
tool with which he is working slip and fall or for any em-
ployee to make any mistake. Mistakes and errors occur,
however, and, in our opinion, in the circumstances of this
case , the salt bath incident was not a genuine cause of
Lumley's discharge.
Respondent asserts that Lumley was an employee who
did things on his own and that this was dangerous because
of his lack of competence. But specifics on such claimed
conduct are limited in one incident, the air-conditioner. It
does not appear that any of the other cited causes of dis-
charge involved Lumley going off on his own. Tom Thurner
was standing on the scene on the respective occasions
watching Lumley trying to cut a piece of stainless steel;
loosening the shaft assembly over the salt bath; and testing
a fuse box. He did not testify that Lumley had not been
assigned to each of these tasks and was doing all these things
on his own. Rather, the whole expressed import of these
cited instances was that Lumley, in performing his work,
made mistakes or showed a lack of electrical or mechanical
skill.
Regarding the air-conditioner, Lumley did take the ini-
tiative in putting it in place. Rather than standing in the
shop with nothing to do on Friday afternoon, he put the
air-conditioner in its proper place, leveled it, and made the
installation without error. He did this after the shipping
department had notified him that the air-conditioner had
arrived in that department. Emplacing the air-conditioner
was something Lumley did on his own but it was something
he proved competent to do. As Robert Thurner testified,
"There's no company prohibition of anything he could do
if he had the knowledge and was able to do it ....
But when it came to hooking up the air-conditioner
electrically, Lumley did not act on his own. He saw that the
air-conditioner plug did not fit the room receptacle and he
went to his foreman, Gosse, to tell him of the situation and
to ask what should be done. Tom Thurner's testimony cor-
roborates Lumley on this aspect since he states that Gosse
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Thurner that Lumley had come to Gosse about what
should be done regarding the air-conditioner. This undis-
puted fact that Lumley had asked his foreman what should
be done about connecting the air-conditioner is scarcely
consistent with the alleged picture of an employee doing
things on his own. If Lumley had wanted to hook up the
air-conditioner on his own, he would not have asked Gosse
for guidance or direction. He knew how to change an elec-
trical plug and if he had wanted to act on his own he could
have changed the plug so that it would fit the receptacle.
Since Gosse did not testify, Lumley's testimony is un-
controverted that, when he consulted Gosse and described
the situation to him, Gosse told him to proceed by changing
the plug. This is what Lumley did. We perceive no reason-
able explanation of why Lumley would have thus proceeded
unless so directed by Gosse. As indicated, if he had wanted
to act on his own on the electrical aspect he would not have
consulted Gosse before acting. If Gosse had told him to
leave the matter alone and leave the air-conditioner uncon-
nected, there is no convincing reason why Lumley would
have defied such a direct order and would have proceeded
to do precisely what he had been told not to do. If Lumley
had proceeded on his own, in direct disobedience of his
foreman, he would have been rightly subject to censure and
discipline even if he had connected the air-conditioner suc-
cessfully. Why, therefore, would he have completely diso-
beyed his foreman. He would not have received a cent less
in pay if he had followed the purported order of the foreman
to do nothing; and doing nothing, on order, as compared to
working, is a choice that would present little difficulty to
almost any employee. Moreover, in Lumley's entire 4 years
in maintenance, Respondent neither cites nor claims any
incident or any occasion when Lumley refused to obey an
order of his superiors or took some action when he was told
by a superior not to so act. Under all these circumstances,
therefore, we are not prepared to credit the Thurners that
Gosse had told Lumley not to connect the air-conditioner
or that Gosse told this to management . We are satisfied that
Lumley testified credibly as to what Gosse had told him
and, since Gosse had been in Respondent's employ for 25
years, we are not prepared to believe that he would have
failed to confirm truthfully to his superiors that he had told
Lumley to change the plug on the air-conditioner. In view
of Respondent's failure to call Gosse as a witness we find
additional confirmation for the foregoing conclusion.
A consideration of the entire record and background in
this case persuades the Trial Examiner that the reasons
advanced by Respondent for Lumley's discharge were of a
pretextual nature and Respondent, without even question-
mg Lumley about the air-conditioner incident, used that
matter as a convenient proximate cause to rid itself of this
employee. In our opinion, Lumley was discharged because
of Respondent's hostility toward the Union and to an em-
ployee who actively identified himself as prominent in un-
ion activities. Despite a warning as to the fate of a past
employee member of the union negotiating team, Lumley
remained the sole employee member of the union negotiat-
ing group. The revival or continuation of any further efforts
on the part of the Union to negotiate a contract with Re-
spondent was made predictably difficult by Respondent's
termination of Lumley, the sole remaining employee nego-
tiator.30
It is found that the termination of Lumley on July 19,
1971, was in violation of Section 8(a)(1) and (3) of the Act.
It is further found that in April 1971 Supervisor Van Dyke
questioned Lumley regarding his union activities and role
and advised and warned Lumley of possible loss of employ-
ment because of his union activities. This conduct is found
to be in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
For the reasons set forth hereinabove in this Decision,
Respondent has violated Section 8(a)(1) and (3) of the Act
by discharging Thomas Lumley on July 19, 1971. Respon-
dent has also violated Section 8(a)(1) of the Act by question-
ing Lumley about his union activities, and, upon thereby
learning that Lumley had taken the post of employee con-
tract negotiator, warning Lumley of the terminal fate of a
former employee negotiator.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , it will be recommended that it cease
and desist therefrom and take certain remedial action.
It will be recommended that Respondent offer Lumley
reinstatement to his former or substantially equivalent job
with his seniority and other rights and privileges and pay
him any wages he may have lost from the date of his dis-
charge on July 19 , 1971, to the date of the offer of rein-
statement , less any intermediate earnings of Lumley. The
computation is to be made on a quarterly basis and any sum
that may be due is to include interest at 6 percent.3
RECOMMENDED ORDER 32
Thurner Heat Treating Corp ., its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
30 Contracts are not infrequently negotiated by international representa-
tives of the Union or other paid nonemployee representatives However, in
the negotiations , particularly during the negotiation of the first contract,
there is frequently an employee committee that participates with the union
representative in negotiations as part of the union team. The employee nego-
tiators are familiar with the problems and aspirations of employees in the
plant and they afford their fellow employees a sense of participation in the
negotiations and this strengthens the union position in the plant . Also, when
it is necessary for the union representatives to secure ratification of a pro-
posed contract by the employees, the task is greatly facilitated if there have
been employee negotiators who participated in negotiating the proposed
contract With the termination of Lumley, there then remained no employee
negotiator on the union team and nowhere in Respondent 's employ did there
now remain any of the employees who had been at any time, past or present,
members of the union negotiating team At least one employee who had been
selected as a negotiator in 1971 but who had speedily resigned from such a
union position , did continue in Respondent's employ, but , as stated, he had
completely abandoned the post of union negotiator.
31 F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co.,
138 NLRB 716
32 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
THURNER HEAT TREATING CORP.
(a) Illegally interrogating or threatening employees
with regard to union or concerted activities.
(b) Discouraging union activities of any of its employ-
ees by discriminatorily terminating Thomas Lumley or any
other employee because of union activities or because an
employee has assumed an active role in union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Thomas Lumley immediate reinstatement
to his former or substantially equivalent job, without preju-
dice to his seniority and other rights and privileges, and
make him whole for any loss of pay he may have suffered,
as more fully described in this Decision under the section
entitled "The Remedy."
(b) Post at its Wauwatosa, Wisconsin, plant copies of
the attached notice marked "Appendix."33 Copies of said
notices, on forms provided by the Regional Director for
Region 30, after being signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that such
notices are not altered, defaced, or covered by other mate-
rial.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all rec-
ords necessary to analyze the amount of backpay that may
be due to Thomas Lumley, including payroll records, time-
cards, social security payment records, and other personnel
or financial records.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from receipt of this Decision, what steps have
been taken to comply herewith 34
33 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
34 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read "Notify
the Regional Director for Region 30, in writing , within 20 days, from the date
of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
891
After a trial in which all parties participated and were repre-
sented by attorneys, it has been found that we have violated
the National Labor Relations Act in certain respects. To
remedy these violations, we advise you that:
WE WILL NOT discriminate against Thomas Lumley
or any other employee because of his union activity or
because of his position as a negotiator in the Union.
WE WILL offer Thomas Lumley reinstatement to his
former job or to a substantially equivalent job with his
seniority and other rights and privileges.
WE WILL pay Thomas Lumley any wages he may
have lost from the date of his discharge on July 19,
1971, to the date of the offer of reinstatement, with
interest at 6 percent, and less any interim earnings he
may have had.
WE WILL NOT unlawfully interrogate or threaten
Thomas Lumley or any other employee with regard to
union activities.
WE WILL NOT in any like or related manner interfere
with employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
THURNER HEAT TREATING CORP
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 414-224-3861.