Vemco, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 911 (N.L.R.B. 1991)

911
304 NLRB No. 118
VEMCO, INC.
1 The Respondent’s request for oral argument is denied, as the brief and ex-
ceptions adequately set forth the issues in this case. We also deny the Re-
spondent’s request for full Board consideration of this case.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 363 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. We also find
no merit in the Respondent’s allegations of bias and prejudice on the part of
the judge. Thus, we perceive no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Respondent in his
analysis or discussion of the evidence. Similarly, there is no basis for finding
that bias and prejudice exist merely because the judge resolved important fac-
tual conflicts in favor of the General Counsel’s witnesses. NLRB v. Pittsburgh
Steamship Co., 337 U.S. 656, 659 (1949).
In adopting the judge’s findings we correct the following inadvertent errors:
(1) the judge incorrectly referred to the Wednesday and Thursday prior to the
March 17, 1989 layoffs as March 14 and 15—the correct dates are March 15
and 16, respectively; and (2) the judge erroneously stated that there were 292
unit employees on March 17, 1989. Including the employees laid off on that
date, there was a total of 344 employees in the unit on April 29, 1989, of
whom 187, a majority, had signed union authorization cards.
3 We find it unnecessary to pass on the judge’s finding that Supervisor Bard
Scott’s statement to an employee that ‘‘its not a union shop and it never will
be’’ constituted an unlawful statement that union activity would be futile, the
finding that team leader Joyce Skaggs’ statements to employees during a team
meeting unlawfully created the impression that union organization was futile
or threatened an employee with job loss, or the finding that the Respondent’s
September 1989 ‘‘Questions and Answers’’ sheet distributed to employees
constituted a grant of new benefits with regard to seniority and job posting
rights. These findings are cumulative of other violations in this case and would
not affect the remedy. However, for the reasons stated by the judge, the Ques-
tions and Answers sheet granted employees recall rights and advance notice
for weekend overtime—benefits which they had not previously enjoyed—and
hence constituted an unlawful grant of new benefits.
4 Unless otherwise noted, all dates hereafter are in 1989.
5 The judge found that Supervisor Merandi unlawfully threatened and inter-
rogated employee Rodney Burnham in November 1988 by asking him if he
knew about union activity in the shop and telling him the shop would shut
down if the Union came in; that Supervisor Bard Scott, also in November
1988, told employees James Brenner and Lee Dickerson that they would be
fired if management heard them talking about the Union; and that Supervisor
Continued
Vemco, Inc. and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (AW). Cases 7–CA–29122,
7–CA–29516, 7–CA–29674, 7–CA–29763, and 7–
RC–19035
August 27, 1991
DECISION, ORDER, AND DIRECTION
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 11, 1990, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.1
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified,3 and to adopt the recommended
Order as modified.
1. The Respondent has excepted, inter alia, to the
judge’s finding that its decision to permanently lay off
60 employees on March 17, 1989, violated Section
8(a)(3) and (1) of the Act. For the following reasons,
we find no merit to the Respondent’s exceptions in this
regard.
The Respondent began operations at its Grand
Blanc, Michigan facility in August 1988. The Re-
spondent admits that it knew of union organizing activ-
ity at its plant, first by the Teamsters and subsequently
by the United Auto Workers (the Union), since at least
October 1988.
Because of production problems, the Respondent’s
operations required significantly greater manpower
than it had originally forecast. As the Respondent re-
solved those problems, the number of hours worked by
its employees began to decrease.
On March 8, 1989,4 the Respondent’s management
met to discuss a reduction in force. Vice President of
Manufacturing A. James Schutz directed the Respond-
ent’s management to determine how many employees
should be laid off in each department of the plant. Ac-
cording to Human Resources Manager Paula McIntyre,
however, this number was not established until March
17, the date the layoffs were implemented.
In the interim, the Respondent had learned on March
13 that the Union was preparing a letter formally ad-
vising the Respondent of its organizing campaign. The
next day, McIntyre directed her assistant to prepare a
plantwide attendance report for use in the forthcoming
layoffs, and expressed the hope that some of the em-
ployees with bad attendance were ‘‘Union people.’’
Later that same day, McIntyre met with Supervisors
Marilyn Merandi, Ed Pomazanke, and Patricia Hatch
to select specific employees for layoff, and directed
them to think of anyone who was prounion or who had
talked union outside of the plant.
The selection process continued through March 17.
Employees Doug Hewitt, Ewell Hall, and Mike Harp-
er, designated for layoff at 4:15 p.m. on March 17,
were the last selected. On March 16, McIntyre told her
assistant that 65 people would be laid off the next day
and again expressed the hope that ‘‘we’ll get some of
the union people.’’ On March 17, after reviewing the
final list, McIntyre told her assistant that it looked like
they had done a good job, ‘‘that we got most of the
bad ones.’’ Letters were sent to all 60 employees by
certified mail on March 17, advising them that they
had been permanently laid off due to lack of work and
should not report to work the following Monday. Sev-
enteen of these employees were identified as union
supporters in the Union’s letter, which was hand-deliv-
ered to the Respondent on March 17.
We find that the statements made by McIntyre, to-
gether with the unfair labor practices committed by the
Respondent prior to March 17,5 establish antiunion
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hatch unlawfully interrogated an employee about her union activity on March
14 and, on March 15, unlawfully prohibited employees she supervised from
discussing the Union while at the plant.
6 In finding antiunion animus, we do not rely on the Respondent’s commu-
nication to its employees of its generalized ‘‘non-union’’ philosophy contained
in its handbook.
7 The Respondent contends that the judge violated its due-process rights by
finding that it failed to pursue new business for the purpose of discouraging
union activity. We find no merit to this contention. Rather, the judge found
pretextual the Respondent’s reliance on this claim as an affirmative defense
to the allegation that the layoffs were unlawfully motivated. We agree with
the judge.
8 We note that the Respondent also contends it was experiencing substantial
difficulties with its production process at this time and required significant
amounts of overtime to meet its existing contracts with General Motors. This
contention would appear to be inconsistent with its claim that it sought the
new business from Ford in order to avert the need for layoffs.
animus on the part of the Respondent.6 Taking into ac-
count this evidence, the timing of the layoff relative to
the progress of union activity at the plant, the haste
with which the layoff was implemented, and the ab-
sence of evidence showing that the selections were
based on a review of each employee’s relative quali-
fications and performance, we find that the General
Counsel has established a strong prima facie case that
union activity was a motivating factor in the Respond-
ent’s decision to lay off the 60 employees. See Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Once the General Counsel establishes
a prima facie case, the burden shifts to the Respondent
to show that it would have taken the same action even
in the absence of union considerations. In light of the
General Counsel’s strong prima facie showing of dis-
crimination, the Respondent’s burden here is substan-
tial. Eddyleon Chocolate Co., 301 NLRB 887 (1991).
For the reasons that follow, we agree with the judge
that the Respondent has not met its burden.
In agreement with the judge, we find pretextual the
Respondent’s assertion that the March 17 layoffs were
based on lack of work rather than union activity, con-
sistent with a corporate goal established in mid-Janu-
ary of reducing staffing levels. In addition to the rea-
sons cited by the judge, we note that, although the Re-
spondent showed that production efficiencies had sig-
nificantly reduced the man-hours required to maintain
production levels, those efficiencies were largely in
place by mid-January—i.e., 2 months before the lay-
offs were implemented. Moreover, between January
and March, the Respondent added 12 new employees
to its work force to replace employees who had termi-
nated their employment. See Alliance Rubber Co., 286
NLRB 645, 647 (1987) (respondent hired two new em-
ployees during the month preceding unlawful layoff).
Under these circumstances, we are not persuaded that
the Respondent’s layoff decision was based on lack of
work.
We also agree with the judge that the Respondent
has not shown that it retained surplus employees for 2
months because it hoped to obtain new business, and
laid them off when its potential customer took its busi-
ness elsewhere.7 According to the Respondent, it
began seeking contracts from two separate divisions of
the Ford Motor Company—Tempo/Topaz and Thun-
derbird—in November 1988.8 Ford representatives re-
sponsible for these contracts testified that no decision
had been made either way with regard to awarding the
work to the Respondent. According to Ford parts buyer
Baker, the Respondent submitted a preliminary bid for
the Tempo/Topaz work in early December 1988, and
its sales representative submitted additional informa-
tion on March 27, 1989—10 days after the layoffs
were implemented. Baker also testified that Ford was
still looking for vendors for this work in March 1989.
This evidence belies the Respondent’s contention that
it learned, prior to March 18, that it was ‘‘no longer
in the running’’ for the Tempo/Topaz contract.
Likewise, in November 1988, the Respondent and
Ford initiated separate negotiations over possibly
awarding certain Thunderbird part work to the Re-
spondent. Ford representative Berggren testified that he
received a preliminary cost estimate in November
1988, but that the Respondent did not reply to his Jan-
uary 1989 request for a firm cost estimate. Ford Paint
Engineering Manager Teller testified that the Respond-
ent submitted samples of its work on various occasions
between October 1988 and February 1989. On Feb-
ruary 13, Teller reviewed the Respondent’s latest sam-
ples, found them acceptable from a quality standpoint,
informed the Respondent of his conclusions, and sug-
gested that they contact Berggren to discuss pricing.
Notwithstanding the foregoing, the Respondent did
not contact Ford to continue the negotiations. To the
contrary, its representatives did not respond to Teller’s
April inquiry concerning the Respondent’s inaction
and, in response to Teller’s subsequent inquiry, ad-
vised him that the matter was ‘‘water under the
bridge.’’ Although Ford did require the Respondent to
return parts which it used in the trial runs, and de-
clined to authorize a trial production run until a price
had been agreed on, the record clearly shows that it re-
mained interested in doing business with the Respond-
ent on the Thunderbird contract.
Under these circumstances, we find that the Re-
spondent has not shown that it would have perma-
nently laid off the employees, even in the absence of
union activity, because its efforts to obtain new busi-
ness had been rejected. As previously stated, the Re-
spondent’s burden here is particularly heavy in light of
the strong prima facie case established by the General
Counsel. In light of the Respondent’s surprisingly lack-
luster efforts in pursuing new business after February
1989, and the conflicts between its contentions and the
Ford representatives’ credited testimony, we find this
explanation for its actions pretextual.
913VEMCO, INC.
9 Although we agree with the judge that the Respondent’s layoffs violated
the Act, we will not include in our Order the provisions recommended by the
judge requiring the Respondent to provide the Union with 60 days’ advance
notice of any further layoffs and an opportunity to bargain over the decision
and its effects, as these provisions would not effectuate the purposes of the
Act.
10 We also note that the judge erroneously stated at one point in his decision
that the Respondent had engaged in surveillance of employees.
The Respondent also contends that a finding that the
permanent layoffs were unlawful is fatally flawed in
the absence of evidence that each laid-off employee
was a union activist and that the Respondent had
knowledge of this activity. We find no merit to this
contention. As the Board has held, the fact that em-
ployees who did not support the union were laid off
along with those who did does not detract from the
General Counsel’s strong prima facie showing of dis-
crimination. Eddyleon Chocolate, above; Alliance Rub-
ber Co., above; Link Mfg. Co., 281 NLRB 294, 299
fn. 8 (1986). In addition, we are not persuaded by the
Respondent’s claim that its selections were entirely
based on neutral criteria. Thus, the Respondent has not
shown that it considered equally the qualifications of
all of its employees before the final selections were
made. To the contrary, the record discloses that evalua-
tions were filled out only for the 60 permanently laid-
off employees—purporting to justify their selection for
layoff. Moreover, the record shows that two of the
three supervisors involved in the selection process,
Marilyn Merandi and Patricia Hatch, were personally
involved in the commission of other unfair labor prac-
tices by the Respondent.
Thus, in light of the strong evidence of antiunion
animus and the pretextual nature of the Respondent’s
explanations for its decision to implement the layoffs,
we find that its actions were a display of its economic
power over its employees’ jobs in response to the
union activity at its plant. Accordingly, we find that
the layoffs violated Section 8(a)(3) and (1) of the Act,
as alleged. See Eddyleon Chocolate Co., above; Link
Mfg. Co., above.9
2. We reverse the judge’s finding that the Respond-
ent violated Section 8(a)(1) of the Act by giving em-
ployees chits on August 3 that were redeemable for
jackets bearing the Respondent’s corporate logo. Con-
trary to the judge, we do not find that the timing of
the chits’ distribution evidences an intent to influence
employees in the subsequent election. Thus, the Re-
spondent announced its plan to give employees jackets
in late 1988 and, on August 3, 2 days before an ‘‘open
house,’’ gave employees chits which were redeemable
for a jacket. These events occurred over 6 weeks be-
fore the election held on September 22.
We also find that the Respondent has adequately ex-
plained the delay from late 1988 until the chits were
actually distributed in August 1989. The Respondent’s
testimonial and documentary evidence demonstrating
the problems with its suppliers are not contradicted and
were credited by the judge. Thus, the record shows
that the Respondent distributed the chits as soon as its
vendor difficulties had been straightened out and it was
feasible to begin the distribution process. Even viewed
in light of the Respondent’s many other unfair labor
practices, we find that under all the circumstances the
distribution of the chits was not calculated to influence
employees in their choice of a bargaining representa-
tive.
3. The Respondent also excepts to the finding that
Vice President of Manufacturing Schutz’ statement to
employees on March 21 that he had heard from some
employees that UAW supporters had intimidated em-
ployees into signing authorization cards unlawfully
created an impression of surveillance.10 We find merit
to this exception, as such generalized statements,
which are not directed at any particular employee’s or-
ganizing activities, are insufficient to create the im-
pression of surveillance, where, as here, there is no in-
dication that the information about union activity was
obtained in an unlawful manner. La Reina, Inc., 279
NLRB 791, 800 (1986). See also Lab Glass Corp., 296
NLRB 348, 354 (1989); Rood Industries, 278 NLRB
160, 164 (1986).
4. Finally, we reverse the judge’s finding that an
offer by two supervisors to trade their antiunion but-
tons for prounion buttons worn by employees violated
the Act. The judge found that these actions constituted
an unlawful interrogation of the employees concerning
their union sentiments, citing Houston Coca-Cola Bot-
tling Co., 256 NLRB 520 (1981). In that case, how-
ever, the employer offered antiunion buttons to em-
ployees whose sentiments were unknown. In contrast,
the employees in the instant case wore prounion but-
tons proclaiming their views at the time they were ap-
proached by the supervisors. We further note that the
employees involved testified that the offers were not
accompanied by any threats or coercion. Under these
circumstances, we see no basis for finding that the Re-
spondent’s actions constituted an unlawful interroga-
tion.
5. We adopt the remaining 8(a)(1) violations found
by the judge, for the reasons stated in his decision.
AMENDED REMEDY
For the reasons stated by the judge, we agree that
a broad cease-and-desist order and a bargaining order
are appropriate. Further, in the event a bargaining
order takes effect without a certification of representa-
tive, for reasons set forth in the judge’s decision we
shall order that the election held in Case 7–RC–19035
be set aside, and that the petition in that matter be dis-
missed.
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
Nothing in our Order shall authorize or require the
Respondent to rescind any benefits that have been con-
ferred.
ORDER
The National Labor Relations Board orders that the
Respondent, Vemco, Inc., Grand Blanc, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union sympathies and activities or those of other
employees.
(b) Imposing an overly broad no-solicitation rule.
(c) Confiscating union literature.
(d) Threatening employees with plant closure, addi-
tional layoffs, discharge, reprimand, and the imposition
of more onerous working conditions.
(e) Implying that efforts to join a Union would be
futile.
(f) Soliciting grievances and promising or granting
benefits in order to discourage union activities.
(g) Issuing warnings or suspensions, or otherwise
discriminating against employees because of their ac-
tivities in support of union affiliation for purposes of
collective-bargaining representation or other protected
concerted activities.
(h) Terminating or permanently laying off any em-
ployees or otherwise discriminating against them in re-
taliation for union activities or other protected con-
certed activities.
(i) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the persons named below immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any losses of earnings and benefits they may have
suffered because of the discrimination against them, in
accordance with the method set forth in the remedy
section of the judge’s decision:
Maxine Adams Diane Johnston
John Beckman Robert Jones
Virginia Black Patricia LaFlame
Jeffrey Boyer Randy Lefferts
Todd Chartrand Marcia Mackey
Linda Neises Arthur Lee Dickerson
Beatrice Ellis Mary Parker
Shelly Glied Sandra St. John
Todd Gualdoni Evelyn Vaughn
Mike Harper Jerry Wilder
Joy Johnson Lois Badour
Kathy Jones Joel Black
Bennett Lacey Douglas Bohl
Terry Lawrence Rodney Burnham
Joan McKenzie Debbie DeSmet
Sallie Maness James Dvorak
Karen Pack Joseph Furden
Kelly Sheahan Mary Greig
Gladennie Thomas Theresa Hall
Dorrene White Angela Hoskey
Thomas Alexander Melanie Johnston
David Berta Erika Kelsey
Julie Blackmer Susan Larson
Sherry Browne Ann Lockard
Victoria Coon Kenneth Major
Timothy Donaldson Gregory Nordberg
Steven Freel Harold Patty
Vonda Goulette Pam Stuhrberg
Ewell Hall Karen Walker
Douglas Hewitt Elizabeth Work
(b) Remove from its files any reference to the un-
lawful permanent layoffs and notify the employees in
writing that this has been done and that the layoffs will
not be used against them in any way.
(c) Make employee Greg Hall whole for any loss of
earnings suffered as a result of his unlawful suspension
and warning, in the manner set forth above, remove
from its files any reference to the unlawful suspension
and warning and notify him in writing that this has
been done and that the suspension and warning will
not be used against him in any way.
(d) On request, bargain with the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time employees em-
ployed by Respondent at its facility located at
10230 N. Holly Road, Grand Blanc, Michigan;
but excluding office clerical employees, profes-
sional employees, confidential employees, sales
employees, draftsmen, guards and supervisors as
defined in the Act.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Grand Blanc, Michigan facility copies
of the attached notice marked ‘‘Appendix.’’11 Copies
915VEMCO, INC.
12 The judge inadvertently failed to rule on the challenges to the ballots cast
by these individuals.
of the notice, on forms provided by the Regional Di-
rector for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
IT IS FURTHER ORDERED that the challenges to the
ballots of the following employees be overruled:
Maxine Adams Joy Johnson
John Beckman Robert Jones
Julie Blackmer Patricia LaFlame
Victoria Coon Ann Lockard
Timothy Donaldson Kenneth Major
Steven Freel Gregory Nordberg
Vonda Goulette Kelly Sheahan
Ewell Hall Gladennie Thomas
Angela Hoskey Dorrene White
Kathy Jones Lois Badour
Bennett Lacey Virginia Black
Terry Lawrence Sherry Browne
Marcia Mackey Arthur Lee Dickerson
Linda Neises Beatrice Ellis
Mary Parker Shelly Glied
Pam Stuhrberg Todd Gualdoni
Karen Walker Douglas Hewitt
Elizabeth Work Diane Johnston
Thomas Alexander Erika Kelsey
Joel Black Susan Larson
Douglas Bohl Joan McKenzie
Debbie DeSmet Sallie Maness
James Dvorak Karen Pack
Joseph Furden Sandra St. John
Mary Greig Evelyn Vaughn
Mike Harper Jerry Wilder
IT IS FURTHER ORDERED that Case 7–RC–19035 is
severed from Cases 7–CA–29122, 7–CA–29516, 7–
CA–29674, and 7–CA–29763, and that it is remanded
to the Regional Director for Region 7 for action con-
sistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 7 shall, within 14 days from the date of this deci-
sion, open and count the ballots of the employees list-
ed above, and that he prepare and serve on the parties
a revised tally.
If, after the preparation and service of the revised
tally, the challenged ballots of the following additional
employees prove determinative, the Regional Director
shall designate a hearing officer to adduce additional
evidence as to whether they were eligible voters: Lor-
raine Winget and Anthony Cicalo.12 In the event of a
hearing, the Regional Director shall subsequently pre-
pare and serve on the parties a second revised tally.
If the final revised tally in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of representative. If, however, the revised tally
shows that the Petitioner has not received a majority
of the valid ballots cast, the Regional Director shall set
aside the election, dismiss the petition, and vacate the
proceedings in Case 7–RC–19035.
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 coercively interrogate employees con-
cerning their union sympathies and activities or those
of other employees.
WE WILL NOT impose an overly broad no-solicita-
tion rule.
WE WILL NOT confiscate union literature.
WE WILL NOT threaten employees with plant closure,
additional layoffs, discharge, reprimand, and the impo-
sition of more onerous working conditions.
WE WILL NOT imply that efforts to join a union
would be futile.
WE WILL NOT solicit grievances and WE WILL NOT
promise or grant benefits in order to discourage union
activities.
WE WILL NOT issue warnings or suspensions, or oth-
erwise discriminate against employees because of their
activities in support of union affiliation for purposes of
collective-bargaining representation or otherwise en-
gaging in protected concerted activities.
WE WILL NOT terminate or permanently lay off any
employees or otherwise discriminate against them in
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
retaliation for union activities or other protected con-
certed activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer the persons named below immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE WILL
make them whole for any losses they may have suf-
fered as a result of our discrimination against them:
Maxine Adams Joy Johnson
John Beckman Robert Jones
Julie Blackmer Patricia LaFlame
Victoria Coon Ann Lockard
Timothy Donaldson Kenneth Major
Steven Freel Gregory Nordberg
Vonda Goulette Kelly Sheahan
Ewell Hall Gladennie Thomas
Angela Hoskey Dorrene White
Kathy Jones Lois Badour
Bennett Lacey Virginia Black
Terry Lawrence Sherry Browne
Marcia Mackey Arthur Lee Dickerson
Linda Neises Beatrice Ellis
Mary Parker Shelly Glied
Pam Stuhrberg Todd Gualdoni
Karen Walker Douglas Hewitt
Elizabeth Work Diane Johnston
Thomas Alexander Erika Kelsey
Joel Black Susan Larson
Douglas Bohl Joan McKenzie
Debbie DeSmet Sallie Maness
James Dvorak Karen Pack
Joseph Furden Sandra St. John
Mary Greig Evelyn Vaughn
Mike Harper Jerry Wilder
WE WILL remove from our files any reference to the
permanent layoffs of the employees named above and
notify them in writing that this has been done and that
evidence of the unlawful layoffs will not be used
against them in the future.
WE WILL make Greg Hall whole for the losses he
incurred as a result of our discrimination against him.
WE WILL remove from our files any reference to the
warning and suspension given to Greg Hall and notify
him in writing that this has been done and that evi-
dence of the unlawful warning and suspension will not
be used against him in the future.
WE WILL recognize and, on request, bargain collec-
tively with the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Work-
ers of America (UAW), as the exclusive collective-bar-
gaining representative of our employees in the follow-
ing appropriate unit:
All full-time and regular part-time employees em-
ployed by Respondent at its facility located at
10230 N. Holly Road, Grand Blanc, Michigan;
but excluding office clerical employees, profes-
sional employees, confidential employees, sales
employees, draftsmen, guards and supervisors as
defined in the Act.
VEMCO, INC.
P. Pennie Millender, Esq., Charles F. Morris, Esq., Theo-
dore C. Niforos, Esq., Gary Saltzgiver, Esq., and James
Walter, Esq., for the General Counsel.
Sheryl Langhren, Esq. and Francis Newton, Esq., of Detroit,
Michigan, for the Respondent.
Betsey A. Engel, of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter initially was heard in Burton and Flint, Michigan, on
July 17–21 and August 15–16, 1989. Subsequently, addi-
tional related matters arose and new complaints were issued
and consolidated for further hearing. A further hearing was
held in Burton and Lapeer, Michigan, on February 13–16
and March 26–29, 1990. Subsequent to several requests for
an extension of the filing date, brief were filed by all parties.
The title proceeding is based on charges filed by the Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement workers of America. The Regional Direc-
tor’s complaint dated May 17, 1989, alleges that the Re-
spondent, Vemco, Inc., of Grand Blanc, Michigan, violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by interrogating employees regarding union activities; threat-
ening plant closure and discharge if employees elected to be
represented by a labor organization; orally promulgating an
overly broad no-solicitation rule and threatening employees
with written reprimand based on the overly broad solicitation
rule; creating the impression that employees’ union activities
were under surveillance; and terminating employees by
means of a permanent layoff in retaliation for its employees
activities in support of the Union. On August 15, 1989, at
the close of the initial hearing, the complaint was amended
to include two additional allegations of 8(a)(1) violation in-
volving statements threatening employees with additional
layoffs made by Respondent and its counsel.
On December 1, 1989, the Regional Director issued a re-
port on challenged ballots and objections, an order consoli-
dating unfair labor practice and representation case for hear-
ing, and a notice of consolidated hearing in Cases 7–CA–
29674, 7–CA–29763, and 7–RC–19035. The added com-
plaints allege that Respondent again engaged in conduct vio-
lating Section 8(a)(1) and (3) of the Act by orally promulgat-
ing an overly broad no-solicitation rule prohibiting employ-
ees from speaking about the Union at anytime on the Re-
spondent’s premises; promising to give and distributing to
employees jackets to dissuade them from supporting the
Union; promising employees a system of job posting and so-
liciting grievances with a promise of benefits to dissuade em-
917VEMCO, INC.
ployees from supporting the Union; threatening employees
that Respondent would discharge employees who engage in
activity in support of the Union; and issuing employee Greg
Hall a 3-day suspension and a written warning in retaliation
for his support of the Union.
On January 5, 1990, I issued an order granting motions to
reopen record and to consolidate cases and scheduling con-
tinued hearings in Cases 7–CA–29122, 7–CA–29516, 7–CA–
29674, 7–CA–29763, and 7–RC–19035 and the hearing was
continued until its conclusion on March 29, 1990.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, sale, and dis-
tribution of automotive parts at its Grand Blanc facility and
it annually purchases and receives goods and materials val-
ued in excess of $50,000 directly from points outside Michi-
gan. It admits that at all times material it has been an em-
ployer in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act. It also admits that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Vemco is an acronym which stands for ‘‘Venture Exterior
Molding Company.’’ It was incorporated in April 1987 and
began construction of a 290,000 square foot manufacturing
facility fitted with state-of-the-art equipment and systems
specifically designed to produce large exterior injection
moulded plastic car parts which require sophisticated paint-
ing and assembly operations.
Vemco is owned by Venture Holdings which also owns
the stock of several related corporations, including Venture
Mold and Engineering, and Venture Industries (Venture). All
the related companies are involved in production and sales
to the automotive industry and Venture and Vemco are con-
trolled by a common president, Larry Winget, have a com-
mon vice president of finance and administration, Michael
Torakis, and vice president of manufacturing, A. James
Schutz. Schutz is the principal day-to-day manager of the
Vemco facility. They have common policies set by Winget,
Torakis, and Schutz which include nearly identical employee
handbooks.
Vemco began hiring production employees in April 1988,
and its first products were shipped August 22, 1988, to the
BOC (Buick Oldsmobile Cadillac) Division of General Mo-
tors. The latter company is its only customer; however, it has
sought other business, including that of Ford Motor Com-
pany. As is common in the automotive industry, production
of component parts is tied into a highly coordinated schedule
of manufacture and shipment attuned to directly supply Gen-
eral Motor’s assembly lines within closely timed require-
ments. In planning its personnel requirement, Vemco esti-
mated that it would employ approximately 180 direct labor
personnel and 90 support personnel for a total of 270 em-
ployees. This estimate proved to be inaccurate and, in order
to meet production demands, extensive overtime was re-
quired of employees and employment levels were increased
and reached 332 as of November 2, 1988. These added posi-
tions including an additional 40 laborers in the paint depart-
ment (and 23 indirect or support personnel) and the total
number of employees rose to 350 prior to March 1989. Re-
spondent attributes the higher staffer level to major systems
defects and startup problems which resulted in production
delays and defects and the necessary labor intensive rework-
ing of parts.
Respondent so-called ‘‘molding plant’’ (department) is an
area within the overall structure which produces fascia
(wraparound front and rear bumpers) and cladding (the deco-
rative 13-inch side strips below the body paneling). Products
move from this initial production area to the ‘‘paint plant’’
and then to the ‘‘assembly plant’’ where minor components
are attached and the product is inspected, prepared for ship-
ment, and warehoused or held in short-term inventory for se-
quences shipment to the customer. During the fall of 1988
employees regularly worked 10-to-12 hour days and 6-to-7
day weeks, a practice which generated increasing complaints
about the excessive hours. The cladding line ran two shifts
from August 1988 through May 1989, and in mid-December
a second shift was added to the fascia line. Hiring for the
second shift began before the second shift was put into effect
and the additional people were added to the first shift as an
overload, initially, to train the new hires. This situation never
developed into two complete separate shifts and the two
shifts always overlapped 3 or 4 hours, depending on produc-
tion needs.
Betty Harrison is an international representative for the
Union with duties which include assisting workers who are
interested in union representation. In late September 1988,
she received several calls from Respondent’s employees (in-
cluding John Beckman and Janet Gerow). A meeting was
held on October 3 at a restaurant in Grand Blanc with ap-
proximately 50 Vemco employees. A second meeting was
held 2 weeks later and further organizational activities were
planned. Organizational activity picked up in January 1989
and weekly meetings with employees were held through
March, generally, at the Union’s regional office. These initial
activities culminated in Harrison’s preparation of a letter of
written notice of the campaign. This letter identified 50 em-
ployees and was hand delivered to Respondent’s receptionist
by Harrison at 2:30 p.m. on Friday, March 17.
Harrison initially had intended to notify the Respondent of
the union committee on Monday, March 20, after a union-
employee meeting that was scheduled for March 19, how-
ever, she delivered the letter on Friday after being informed
the previous day that an employee had information that the
Company was aware of the planned union letter and was
going to take some action Friday to beat her to the punch.
Debbie Reed is a human resource department assistant and
works under the direct supervision of Department Manager
Paula McIntyre. When Reed reported to work at 8 a.m. on
March 17, she observed McIntyre meeting with Line Super-
visors Ed Pomazanke, Pat Hatch, Gine Watson, and Marilyn
Merandi and discussing employees that were to be laid off.
On the afternoon of March 16 McIntyre had returned from
a meeting and told Reed that the layoffs would occur the
next day. Reed asked if it was because the union letter was
coming and McIntyre said, ‘‘No, that originally it was
planned for the next week but they were just moving the date
up.’’
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At 1:15 p.m., McIntyre asked Reed to move into employee
Crystal Portu-Villireal’s cubicle where others could not see
what they were doing and they begin typing layoff notices
and envelopes from a layoff manpower report and filling out
certified mail receipts. At 4:15 p.m. McIntyre added the
names of Doug Hewitt, Ewell Hall, and Mike Harper (all
from the molding plant). The layoff was completed at 4:30
p.m., and as Reed prepared to go to the post office McIntyre
told them ‘‘she thought we had done a good job, that we got
most of the bad ones.’’
On Monday, March 20, Reed was in McIntyre’s office
when McIntyre showed her the Union’s letter. As McIntyre
reviewed it, she mentioned some names on the list, specifi-
cally that of Vicki Coon, one of the persons laid off.
The termination letter gave no advance notice but said
‘‘that as of the end of your shift on Friday, March 17, 1989,
your employment with Vemco, Inc. will be terminated, as a
result of a permanent layoff.’’ It was sent to 60 employees,
all but 12 of whom had more than 90 days of employment.
Respondent’s total work force on that date was approxi-
mately 350 employees. This mass termination took place
against a background of a lengthy and clear awareness by all
levels of Respondent’s management that a union organizing
campaign was underway at its facility. For example, Vice
President of Finance and Administration Torakis acknowl-
edged that he was informed of the campaign by the person-
nel director and other plant managers as far back as October
1988.
Respondent’s philosophy regarding unions is openly ac-
knowledged and is specifically addressed in the company
handbook in a section entitled ‘‘Non-union philosophy.’’
This handbook is distributed to every Vemco employee with
a specific explanation of the nonunion philosophy during
each new employee’s orientation.
In addition to this direct communication to employees of
its philosophy, the Respondent also engaged in a number of
actions during the initial union campaign between October
1988 and the mass termination on March 17, that are shown
to have been violations of Section 8(a)(1) of the Act.
During the course of the initial hearing in July 1989, the
Respondent issued a press release, made statements at a news
conference, and thereafter distributed a letter to employees in
which it reiterated the same essential message set forth in the
letter from Executive Vice President Schutz, which states:
If the Union gets its way and Vemco is required to hire
back 60 of those people, the answer seems to be one
of two alternatives. Since we do not have enough work
for an additional 60 people on a full-time basis either
(1) we could try to keep everyone employed—working
3 or maybe 4 days per week, or (2) another layoff
would be made out of our present work force. And
even though this presents problems, since many of our
people have common dates of hire, the Union would
want us to do this by seniority and that is probably
what we would have to do.
This letter was sent on July 27, shortly after the Union
filed a representation petition on July 13. In response to the
petition, the Board scheduled and held an election on Sep-
tember 22. Prior to and on the day of the election, the Re-
spondent continued to engage in numerous acts, discussed
below, which also demonstrate unfair labor practices that il-
legally interfered with the election process and employee
rights under Section 7 of the Act.
The election resulted in a vote of 141 ballots against the
Union, 1 void ballot, 127 in favor of the Union, and 54 chal-
lenged ballots, 52 of which were cast by employees termi-
nated by Respondent’s March 17 letter.
Shortly after the election, employee Greg Hall, a vocal
union supporter, was written up and suspended for 3 days for
falsifying his timesheet on September 17, an action which
followed statements by Supervisor Randy Porter that ‘‘they
would make an example’’ of Hall after the union bid was
over.
The parties stipulated that the appropriate bargaining unit
is set forth in the complaint. Otherwise, a review of Re-
spondent’s list of names of the employees and other docu-
mentation shows that out of 292 employees, as of April 29,
1989, 187 previously had signed union authorization cards.
III. DISCUSSION
The primary event effecting these proceedings was the
sudden termination of 60 employees. This occurred during an
ongoing union organizational campaign, it was accompanied
by a number of acts of company interference with the Sec-
tion 7 rights of employees and it essentially resulted in a fail-
ure of the Union to receive a majority of the votes cast by
the remaining employees.
A. Credibility
The Respondent’s witnesses, with occasional incon-
sistences, generally testified that various managerial or eco-
nomic reasons dictated their actions during the several
months prior to the layoff and they assert an absence of
antiunion motivation. This testimony, however, must be eval-
uated against what I find to be a prima facie showing of
antiunion motivation, against specific, contradictory testi-
mony by several of the General Counsel’s witnesses, and
against a pattern of disregard for employee’s rights.
The testimony by Human Resources Assistant Debbie
Reed is keystone to the General Counsel’s presentation.
Reed, as assistant to and a social friend of Manager McIn-
tyre, was in a unique position to hear and observe ongoing
events. Moreover, she was a close social friend of union ac-
tivist Greg Hall and she played an apparent unwitting role
in the disclosure of some information between both the Com-
pany and the Union. At the time of Reed’s testimony, her
close relationship with Hall had ended and she remained as
an office employee, unconnected with bargaining unit em-
ployees. Otherwise, I find that Reed testified with a highly
believable demeanor and was especially candid and forth-
right.
Reed testified that McIntyre called her at home shortly be-
fore the start of the hearing on July 17, after Reed had been
interviewed by General Counsel Walter. McIntyre apologized
for some abruptness to Reed at the office concerning her
interview with Walter and said that ‘‘she knew that I had to
tell the truth and tell—and do the right thing that was in my
heart’’ and ‘‘that I had to understand that she knew I had
to do what I had to do, but she had to do what she had to
do, too, which, if it meant if it—meant lying for the com-
919VEMCO, INC.
pany she would have to do that.’’ McIntyre then added that
‘‘she was going to have to lie her tits off.’’
McIntyre testified that:
I had called her to tell her that, basically, it’s unfor-
tunate that both of us are in this situation; that all this
has taken place over the last three months; that she
should not worry; that basically it might seem like I’m
going to be up on this stand lying my tits off.
McIntyre further explained her remarks by saying
‘‘[b]asically, I left that conversation trying to make light of
the situation, trying to tell Debbie not to worry about it, and
told her that when all this is over, we’ll go out and have a
couple beers and we’ll relax.’’ She then was asked by Re-
spondent’s counsel: ‘‘Did you, at any time, tell Debbie Reed
that you were going to lie when you took the stand?’’ to
which she replied, ‘‘No, I did not.’’
Here, I evaluate McIntyre’s testimony as being generally
candid, however, I also find that she has chosen to selec-
tively qualify or slant her testimony to enhance deniability of
facts indicative of antiunion motivation by Respondent or its
supervisors. I also note that McIntyre’s statement to Reed
might reasonably be seen as an effort to persuade Reed that
the ‘‘right thing’’ might be to get the situation over in such
a way that Reed would be more supportive of the Company’s
position and McIntyre’s view of events. Here, I am per-
suaded that Reed’s testimony is the most believable. I do not
credit McIntyre’s testimony that she qualified her remark to
Reed by saying ‘‘it might seem’’ like she was lying. I there-
fore credit Reed’s testimony that McIntyre candidly stated
that she ‘‘would’’ and ‘‘was going’’ to ‘‘lie’’ for the Com-
pany.
Under these circumstances, I fully credit Reed’s overall
description of the events she observed in connection with the
layoffs of March 13 and I discredit any testimony to the con-
trary by McIntyre or other company officials.
I also specifically credit the testimony of several witness-
employees of Ford Motor Company who independently and
objectively described their participation in events pertaining
to the possibility of Ford’s bringing added production re-
quirements to Respondent in the period prior to the layoffs.
Accordingly, as further discussed below, I reject the testi-
mony or implications of Respondent’s managers that con-
flicts with that of the Ford witnesses.
Otherwise, the following recitation of affirmative statement
of facts are my factual conclusions based on the demeanor
of the various witnesses and my evaluation of the most credi-
ble testimony. Accordingly, in instances where testimony to
the contrary has been placed in the record but not set forth
in detail, I have reviewed such testimony but found it to be
implausible or incredible and, unless such testimony is other-
wise further discussed in order to aid in the reading of the
decision, it will not be repeated.
B. Terminations of March 17
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ees’ union or other protected concerted activities were a mo-
tivating factor in the employer’s decision to terminate the
employee. Here, the record shows that Respondent’s manage-
ment was well aware of union activity at the plant dating
back to October 1988, as shown by the acknowledgment by
Vice President Torakis that he had been so informed by var-
ious managers and the personnel director. It also is well es-
tablished that the Respondent makes a specific point of in-
forming all employees of its handbook documented, non-
union philosophy. This and the Company’s willingness to en-
gage in unfair labor practices as demonstrated elsewhere in
this decision are sufficient to warrant a finding that antiunion
animus has been established.
Vice President Torakis testified that Vice President Schutz
called him on Friday, March 17, around 5 p.m., and told him
that Betty Harrison from the Union had delivered a letter to
the receptionist that had been passed on to him.
Debbie Reed learned about the union drive in February
1989 from employee Greg Hall. (Reed and Hall were going
with one another at that time but had ceased doing so at the
time of the hearing in July and August.) On one occasion
Reed was present when Supervisor Mike Grady spoke to
Human Resource Manager McIntyre at her desk about an
employee that was denied admittance to a union meeting.
Later, McIntyre spoke to that person and then told Reed that
he was upset because the Union considered him to be a man-
ager. Shortly thereafter, Supervisor Marilyn Merandi brought
employee Maureen Owen to McIntyre’s office. Owen was
asked if she would be willing to go to a Union meeting.
Owen replied she did not care, she could go, however, later
that afternoon McIntyre called Owen back and told her she
was just kidding and that Owen did not have to go to the
meeting. Later, on March 12 Reed was told by Hall at her
home that the Union was going to give a letter to the Com-
pany about the union campaign, and on Monday, March 13,
she told McIntyre about it. McIntyre asked her if she knew
when and she replied, ‘‘no.’’ She then asked Hall and was
told it would be Friday or Monday and she told McIntyre
Tuesday morning. When McIntyre asked if she knew the
names on the letter she replied, ‘‘no.’’ On Wednesday,
March 14, McIntyre returned from a meeting and told Reed
to run an attendance report on the people in the plant, ex-
plaining that there was going to be a layoff and she wanted
to highlight people with bad attendance. As Reed prepared
the review, she told McIntyre there were a lot of people with
bad attendance and McIntyre said she ‘‘hoped some of them
were Union people.’’ Later that afternoon McIntyre and Reed
met with Supervisors Marilyn Merandi, Ed Pomazanke, and
Patricia Hatch of assembly, paint, and the masking room, re-
spectively, and told them of the layoff, that Reed was getting
the attendance records, that they would get together to dis-
cuss what people to layoff, and that she wanted them to
think of anybody who was prounion or who had talked union
outside of the plant.
On Thursday, March 16, McIntyre returned from a meet-
ing and told Reed they had a big job ahead, that 65 people
were going to be laid off the next day and ‘‘hopefully we’ll
get some of the union people,’’ when Reed asked if it was
because of the letter expected on Friday, McIntyre re-
plied,‘‘No, that originally it was planned for the next week
but they were just moving the date up.’’ Thereafter, McIntyre
told Reed they had to tell payroll clerk Joan Wilson and re-
ceptionist Bobbie Clifton that they were not to pick up any
certified mail from the post office or sign for anything that
came to the window.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When she arrived on Friday, March 16, Reed observed Su-
pervisors Merandi, Pomazanke, Hatch, and Gine Watson with
McIntyre discussing persons to be laid off. At 1:15 p.m.,
Reed and another employee began covertly typing layoff no-
tices and envelopes from a layoff manpower report and fill-
ing out certified mail receipts. At 4:15 p.m., McIntyre added
the names of Dough Hewitt, Ewell Hall, and Mike Harper
(all from the molding plant). The layoffs were completed at
4:30 p.m., and as Reed was preparing to go to the post of-
fice, McIntyre told them ‘‘she thought we had done a good
job, that we got most of the bad ones.’’
Under these circumstances, I find that the General Counsel
has met his initial burden by presenting a prima facie show-
ing, sufficient to support an inference that union activities
were a motivating factor in Respondent’s decision to termi-
nate 60 employees on March 17. Accordingly, the testimony
will be discussed and the record evaluated in keeping with
the criteria set forth in right Wright Line, 251 NLRB 1083
(1980); see NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), to consider Respondent’s defense and, in
the light thereof, whether the General Counsel has carried his
overall burden.
Respondent’s defense is based on a contention that it be-
came overstaffed because of major startup problems and that
when these were resolved and additional work for another
customer was not obtained it had a 17-percent labor surplus
and that it then eliminated the excessive staff for these eco-
nomic reasons only.
My review of the record leads to the conclusion that Re-
spondent’s reasons are pretextual in the context of how and
when its reduction in staff occurred. Moreover, I also find
that some of the persons chosen for termination were se-
lected because of their support for the Union.
The crucial facts show that the Respondent did not plan
to implement any layoff to be effective on or before March
17. It was only after learning of the Union’s plan to send it
a letter (which would identify union supporters and tend to
offer them some degree of legal protection against retalia-
tion), that it decided to hasten its consideration of an ongoing
business review of staffing levels and to move up the date
of its action in an attempt to ‘‘out maneuver’’ the Union in
its bid to secure the support of a majority of the Company’s
employees. The ultimate and crucial conclusion here is that
the layoff of 60 employees would not have occurred on
March 17 were it not for Respondent’s antiunion animus and
its motivation to preempt the possible effect of the Union’s
notification letter to the Company. Clearly, Human Re-
sources manager McIntyre went to several meetings with
company officials and was privy to at least some of the deci-
sions that were effected during the days preceding the lay-
offs. She testified that layoffs were not discussed ‘‘offi-
cially’’ with her until a March 8 meeting with Schutz. There-
after, she had expected the layoff not to occur until at least
the week after March 17. At the March 8 meeting Schutz
said they were ‘‘considering a layoff’’ and the manager
should review their levels and come up with numbers in re-
gards to cutting the work force.
Respondent argues that the layoffs were necessitated be-
cause of insufficient work, overstaffing, and loss of an ex-
pected contract with Ford Motor Company for additional
work. It was stipulated that the employees were working
long hours prior to the hiring of new employees to imple-
ment a second facia line shift on December 10, 1988, how-
ever, long hours continued and additional new employees
were hired. In fact, 12 employees were hired after mid-Janu-
ary, Respondent asserts that quality improvements and pro-
ductively gains started to appear in January and February and
that a 4-day workweek was implemented on both facia line
shifts.
One particular element of the Respondent’s defense is that
it maintained staffing levels at a unnecessarily high level
after the start of the year because it anticipated receiving
added work from Ford and that the layoffs occurred only
after it failed to receive this work (which involved painting
of facia to be supplied by Ford for a car then under produc-
tion).
Schutz asserted that the second shift was added in Decem-
ber as a culmination of ongoing discussions with Ford, that
Respondent had been running trial product for Ford and that
the work force was expanded in December based on a 30-
day production estimate given to Ford in late November. He
disavowed that Vemco had any indication that it would not
be granted the contract and asserted that award of the con-
tract was a ‘‘real’’ or ‘‘good possibility,’’ Schutz indicated
that it was not until the end of February 1989, that he be-
came aware that Vemco would not be awarded the Ford
work. Vice President Torakis indicated that the Ford contract
remained an opportunity until the first week of March and
that this additional work would have supported approxi-
mately 50–55 employees.
Ford Representative Charles Baker testified that he first
met with Schutz and Hunter McDonald, a Vemco sales rep-
resentative, on November 2, 1988, regarding a possible con-
tract for assembly and painting of facia for Ford vehicles.
Several facia were shipped to Vemco in November for a trial
run, a timetable of production was discussed, and he was in-
formed that additional personnel would have to be hired to
establish an afternoon shift. In December, Vemco submitted
cost estimates which were referred to and reviewed by the
purchasing and controller’s offices at Ford.
During this time, the quality of Vemco’s trial product runs
was being monitored by Spence Teller, the engineering man-
ager at Ford Utica trim plant. By February 13, 1989, Teller
determined that Vemco was fully capable of supplying parts
meeting Ford’s standard of quality and it was simply a mat-
ter of working out the economics. As trial product runs were
no longer necessary, he requested that Vemco return the fix-
tures and parts that had been loaned to Vemco for the trial
run; Teller asserted that no representations were made to
Vemco that this act in any way indicated that it would not
be granted the work.
During January 1989, however, Manager of Industrial En-
gineering Richard Berggren at Ford’s Utica plant, contacted
Vemco for an updated cost estimate. He spoke to McDonald,
who assured him that Vemco would submit an updated quote
‘‘as soon as possible,’’ however, no updated quote was ever
received (Berggren indicated that any such information
would have passed through his hands), and he received no
further communication from Vemco after January 1989.
Baker corroborated that following the initial estimate sub-
mitted by Vemco in early December 1988, no other bid or
economic negotiations were pursued by Vemco until ‘‘the
last week of March 1989,’’ just after the layoffs.
921VEMCO, INC.
Under these circumstances, I conclude that Respondent
made a decision in early 1989 not to pursue the Ford busi-
ness for otherwise unexplained reasons. I further conclude
that its assertion that it learned that it would not receive the
Ford business in late February or early March, because of a
decision by Ford, is false. Accordingly, Respondent’s asser-
tion that the loss of the Ford business precipitated the eco-
nomic necessity of the layoff is also false.
The Respondent advances economic related information
and explanations regarding production, quality, staffing lev-
els, etc., to rationalize why some 17 percent of its work force
needed to be immediately terminated; these explanations,
however, do nothing to overcome the otherwise clearly per-
suasive showing by the General Counsel that Respondent and
its managers intended to and did falsely represent its actions
regarding the factors discussed immediately above, factors
that are considered to be determinative of the conclusion to
be reached on this layoff allegation.
Accordingly, I specifically find that Respondent’s false
and pretextual explanation regarding the potential Ford busi-
ness supports an inference that the real reason for the mass
layoff and termination on March 17 (as well as the reason
for not pursuing the contract) was the growth of union activ-
ity and a desire to preempt and interfere with the Union’s
legitimate organizational action of presenting notification to
the Company.
This conclusion is supported and reinforced by a number
of other factors, most significantly the timing of the action.
Not only was the layoff decision and its execution directly
related to information the Respondent received about the
Union’s letter, it was rushed to fruition in a failed attempt
to act before the union letter was received, with absolutely
no prior notice whatsoever to employees (certified mail sent
after 5 p.m. on Friday informed employees that the termi-
nation had occurred and that they should not come back on
Monday). Inasmuch as Vemco was a new company, it had
no history of prior layoffs. It is shown, however, that in one
meeting Vice President Schutz’ suggestion that there be stag-
gered or phased layoffs, however, he was overruled by
Owner Wingate and Vice President Torakis. It also is noted
that Respondent choice to describe the layoff as ‘‘perma-
nent’’ and to notify the employees that they were terminated,
actions that appears to be inconsistent with its assertion that
it was trying to gain new business. It also is inconsistent
with the fact that no employees, especially those hired in and
after December 1988, to supplement the initial hires, were
ever told that their jobs were temporary.
As noted, 17 of the 60 terminated employees (61 were ter-
minated but one person learned of his fate and, with the
intervention of a manager was reinstated) were named on the
Union’s list. Significantly, Ewell Hall and Mike Harper were
on the list and were 2 of the 3 names added to the termi-
nation list at 4:15 p.m. on March 17.
Although the Respondent asserts that it established an ob-
jective criteria for selection of persons for termination, it ap-
pears that attendance was made a singularly significant cri-
teria, even to the extreme of selecting persons with absences
because of serious medical problems and operations.
Initiative, job knowledge and work quality were other cri-
teria, yet Respondent had made no evaluations of these fac-
tors prior to March 15, except in the masking department,
where Manager Hatch had personally prepared written per-
formance evaluations. In a conversation between Reed and
McIntyre a few days after the layoff. McIntyre said, ‘‘The
only thing that could hurt us is Pat Hatch’s evaluations.’’
Reed said ‘‘why’’ and McIntyre responded, ‘‘because she did
good evaluations on all her people.’’ Shortly after the lay-
offs, employee Vicki Coon’s asked for a copy but it was not
in her file and when McIntyre was asked for it she said that
they were all ‘‘stolen’’ from Hatch’s office.
Here, I also conclude that the criteria, ‘‘cooperation,’’ may
be inferred to be a euphemism for determining whether an
employee had a procompany or prounion attitude. It was ob-
jective only to the extent that persons with prounion sym-
pathies could be identified to satisfy Manager McIntyre spe-
cifically expressed hope that some of those with bad attend-
ance were Union people, inasmuch as McIntyre specifically
told Managers Merandi, Pomazanke, and Hatch to prepare
for discussing persons to lay off by thinking of ‘‘anybody
who was prounion or who had talked union outside of the
plant and after the layoff letters were sent she expressed her
pleasure that ‘‘we got most of the bad ones.’’
Several of the Respondent’s supervisors did testify regard-
ing their asserted reasons for selecting a few of the individ-
uals, generally giving criticism of employee attitude and ab-
senteeism problems. However, no comprehensive review of
the majority of laid-off employees was made and no docu-
mentation of the reasons was placed into evidence. More-
over, no individual’s letter of termination made reference to
any deficient behavior.
In any event, the record here presents a situation in which
the unfair labor practice is based on the mass layoff and not
individual actions. Accordingly, there is no obligation for the
General Counsel to show that each singular laid-off em-
ployee was involved in union activity and that each singular
laid-off employee had a blameless employment record. Here,
the criticized discriminatees were not disciplined previously
because of any problem behavior and I find that none of
these employees would have been permanently laid off on
March 17 were it not for Respondent’s illegally motivated
decision to immediately implement a reduction of staffing
levels.
In this connection, it is noted that the Respondent other-
wise makes much of its program of shift representatives as
a ‘‘bridge’’ between management and employees. However,
it did not utilize the shift representative process for commu-
nication or exchange of information or plans for the need for
layoffs or for other adjustment in the workweek, or the meth-
od by which employees would be selected for layoff. Al-
though Respondent was under no obligation to bargain with
the shift representatives about the layoffs, its failure to utilize
a process apparently designed for such a purpose further sup-
ports the inference that the layoffs were for discriminatory
reasons.
Finally, this sudden, mass layoff occurred in the context
of several demonstrated violations of the Act, discussed
below, which unlawfully interfered with employees’ Section
7 rights. The layoffs also were bluntly communicated in
terms of ‘‘terminated as a result of a permanent layoff,’’
rather than a mere layoff, where employees could expect the
possibility of recall, especially since the termination letter
also referred to ‘‘forecast additional sales that would provide
work to support the current work force had not occurred and
were now unlikely.’’ And, inconsistent with this prediction,
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent again began pursuing Ford work at the end of
March. If the permanent layoffs were otherwise legitimate,
those who were terminated would not have the right to vote
in any forthcoming representation election and, in view of
the antiunion animus otherwise shown, I infer that the layoffs
were made permanent rather than temporary for discriminat-
ing reasons, a finding which further refutes Respondent’s as-
serted nondiscriminatory rational for its action.
Under all these circumstances, I find that Respondent
would not have permanently laid off 60 employees on March
17 were it not for the union organizational drive and activi-
ties related thereto and I find that Respondent has failed to
meet its burden of showing that the layoff was not motivated
by the illegal and discriminatory reasons demonstrated by the
General Counsel, as discussed above. I therefore conclude
that the General Counsel has met his overall burden and
shown that Respondent violated Section 8(a)(3) of the Act as
alleged in the complaint.
C. Alleged Prelayoff Violation of Section 8(a)(1)
1. Employee shift representative committee
In October 1988, subsequent to the employees first meet-
ing with Union Business Representative Harrison on October
3, Vemco established an employee shift representative com-
mittee of employees elected by their fellow workers.
Schutz called the first committee meeting in late October,
in which he explained to the representatives that it was their
purpose to act as liaisons between management and the em-
ployees and expressed a desire to work together with the em-
ployees in order to solve any problems. (Subsequently, meet-
ings were chaired by either Schutz or McIntyre.)
He initiated a discussion about the Respondent’s antiunion
philosophy and stated that he did not want a union because
the employees did not need a third party to intervene in
problems at Vemco and problems could be worked out inter-
nally.
Schutz testified that he implemented shift representative
committees 7 years previously at other Venture Industries fa-
cilities and it was described in those employees handbooks
as well as Vemco’s. He also assert that it was not imple-
mented after the June start of limited production because of
start up problems and high overtime demands on employees.
Schutz’ remarks about the Union at the first meeting allow
an inference that he was aware of some organizational ru-
mors. However, I am persuaded that he had already planned
to implement the shift representative policy, consistent with
past practices, and I conclude that the General Counsel has
failed to show that the implementation of the committee was
itself a violation of Section 8(a)(1) of the Act as alleged.
2. Alleged interrogation and plant closure threats
Fork truckdriver Rod Burnham worked under Supervisor
Merandi in facia assembly and during November 1988 was
questioned briefly at work by her about whether he knew
anything about union activity in the shop. After he replied
‘‘no,’’ she stated that if a union came in the shop would shut
down. On another occasion in February 1989, Shipping Su-
pervisor Scott and Burnham argued over a problem that
Burnham felt was being caused by the way management
wanted inventory stocked. When Burnham commented that if
it were a union shop they would not have the problem, Scott
stated, ‘‘Well its not a union shop and it never will be.’’
Burnham was shown to have received reprimands on sev-
eral occasions for argumentative type behavior but was not
terminated then or on March 17 for this reason. He testified
openly about the circumstances behind the reprimands and,
contrary to Respondent’s assertions, I observed that his de-
meanor on the stand was highly credible, whereas, I find that
Merandi’s demeanor and testimony demonstrates only a con-
sistent effort to discount and minimize anything indicative of
antiunion behavior and to justify the Company’s actions de-
spite an otherwise clear showing that she fully endorsed ap-
plication of the Company’s antiunion philosophy. I therefore
credit Burnham.
On March 14, 1989, Masking Supervisor Patricia Hatch
had dinner with employees Holly Wise and Laura
Coppenhaver before going bowling. Coppenhaver initiated
part of a conversation by asking Hatch if she were aware of
union meetings. Hatch said she was and that she had sus-
pected that meetings were being held for quite a while.
Hatch then asked where the meetings were held. When
Coppenhaver said she did not know, Hatch said both their
fathers did not think unions did any good, that she did not
think a union would do the employees any good, that she
had talked to Schutz about the Union, and said she wanted
to be transferred out if the Union came in. Hatch then asked
Coppenhaver if she had attended any union meetings.
Respondent argues that none of these statements constitute
illegal interrogation or threats, asserting specifically that
Hatch was merely expressing a personal opinion. Here, Su-
pervisor Merandi not only abruptly questioned Burnham
about union activity but followed the inquiry with a clearly
illegal threat that the plant would close if the union came in,
thereby creating a total climate that would reasonably tend
to restrain, coerce, or interfere with employees’ rights, con-
sistent with the decision in Rossmore House, 269 NLRB
1176 (1984). Moreover, the questions about union meetings
made by Supervisor Hatch, although arising in a social con-
text, were accompanied by remarks that disparaged unions
and indicated that she had suspected union activities and had
talked to the plant vice president about it. Moreover, the re-
marks were made in front of Wise, one of the employees
identified 3 days later with the delivery of the Union’s letter
naming the organizing committee. Finally, the questions oc-
curred only 3 days before the mass layoff and on the same
day that McIntyre had earlier informed Hatch that there were
going to be layoffs and had told Hatch that she should think
of prounion people for their discussion of who they wanted
to select for layoff. Here, the questions so closely proceeded
the layoff as to be fresh in Wise’ mind, it was coercive in
the context of the Respondent’s subsequent layoff action, and
I therefore find that the interrogations and threats are shown
to be violative of Section 8(a)(1) of the Act, as alleged.
3. Alleged threats of discharge
In November 1988, employee James Brenner asked Super-
visor Bard Scott for 3 days off for deer hunting. Even though
employee Lee Dickerson offered to cover Brenner’s shifts,
Scott denied his request. When Brenner said ‘‘if there were
a union, things like this would not take place,’’ Scott warned
both men that they had better not let another member of
923VEMCO, INC.
management hear them speaking about a union because they
could lose their jobs.
Dickerson and Brenner had another conversation with
Scott, in which Scott asked Dickerson why he was always
complaining. When Dickerson said he realized that Scott
made the decisions but that things would be different if
Vemco had a union, Scott again stated that Dickerson had
better not let another member of management hear him speak
or talk about a union because he could lose his job.
During the first week of March, Supervisor Randy Porter
approached employee Michael Harper in the molding depart-
ment and told him that during his 5 years with the Company
he had seen people lose jobs as a result of union activity and
suggested that Harper keep his nose clean because he would
hate to see him lose his job. Porter denied making this state-
ment and went to great length to otherwise paint a critical
picture of problems with Harper, including a 3-day discipli-
nary layoff for tardiness in November 1988. This occurred
after Harper had called in on 3 consecutive days to explain
that he would report late as he was with his 2 year old child
who was hospitalized in an oxygen tent. He appealed the de-
cision to then Plant Manager Joe Winget (the owner’s son).
The penalty of 3 days off were upheld, but changed to reflect
a nondiscipline reason. I find that Porter’s criticism of Harp-
er tends to be pretextual and inasmuch as Porter otherwise
appears to have given other testimony designed principally to
support Respondent’s position, testimony that I otherwise
find not to be credible I credit Harper’s testimony over Por-
ter’s bare denial. The testimony by Brenner and Dickerson
is not rebutted (Scott is no longer employed by the Respond-
ent) and I conclude that in each instances Respondent’s su-
pervisors are shown to have made statements that infringed
on employees’ rights to freely engage in union activities by
implicitly threatening them with the loss of their jobs and I
find that the Respondent is shown to have violated Section
8(a)(1) of the Act in these respects, as alleged.
4. Alleged dissuasion of employees from seeking
union representation
On February 23, 1989, Supervisor Scott responded to a
statement by employee Burnham with a comment that,
‘‘Well, its not a union shop and it never will be.’’ This state-
ment reasonably implies that any employee effort to join a
union would be futile and also interferes with employee’s
rights in violation of Section 8(a)(1) of the Act, as alleged.
Also, on March 6, Team Leader Joyce Skaggs conducted
a meeting of facia assembly employees in which an em-
ployee followed a discussion with a question to Skaggs about
who he could contact in order to join the union organizing
committee. Skaggs reacted sharply and said that the employ-
ees did not need a union, that there would never be a union
at the Company, and that the Union was a bunch of drunk,
lazy, drug users. The employee protested that he had worked
for union companies and it was nothing like that, and Skaggs
replied that if he did not like it the door was right there. Su-
pervisor Merandi was present during this exchange and did
nothing to disavow Skaggs’ statements.
Skaggs’ remarks are unrefuted and clearly would be of
such a nature as to be a violation of the Act if they were
spoken by a supervisor. Here, Respondent claims that Skaggs
was an employee with First Amendment right of free speech
which the Employer was bound not to interfere with and that
accordingly, Merandi’s nonresponse was consistent with an
obligation of noninterference.
Here, although Skaggs was not a supervisor she was a
team leader engaged in following the directives of manage-
ment to conduct a team meeting and she did so in the pres-
ence of Supervisor Merandi. Skaggs acted as Respondent’s
agent and made representations that employees could reason-
ably believe were on behalf of the Respondent and reflected
its nonunion policy. Skaggs’ role as Respondent agent under
Section 2(13) of the Act was not disavowed by the super-
visor in attendance and Respondent is chargeable with the
statements which reflect a violation of Section 8(a)(1) of the
Act, as alleged. See Futuramik Industries, 279 NLRB 185
(1986).
5. No-solicitation rule and alleged threat of repimand
for any violations
On March 15, 1989, Supervisor Hatch met with 30 to 50
masking department employees. Virginia Black said she
asked why her name had come up in a conversation about
union talk away from work (the restaurant meeting noted
above on March 14). Vicki Gullett and Sherry Brown recall
that Hatch had asked about the rumor about layoffs and
about her trying to obtain a list of employees involved in
union organizing. Gullett asked Hatch why she did not ques-
tion Coppenhaver, who was setting right next to her. Hatch
responded that Gullett should mind her own business because
she had no idea what was going on and then stated that the
business with the Union was ‘‘old shit’’ and that any more
rumors of that kind would result in employees being written
up.
Hatch testified that she was tired of all the rumors and
wanted them to stop and get back to normal work. She de-
nied mentioning the Union, and some others in attendance
did not recall ‘‘unions’’ being mentioned. However, Black
testified that Hatch responded to her question by denying
that her name had come up, and saying that she had heard
rumors about a union and did not want to hear any more
about it as it was old news. Hatch admits that she said ‘‘if
these rumors don’t stop,’’ that verbal warnings would be
issued, an admission that is plural in nature and I credit the
testimony that indicates that Hatch spoke about ‘‘union’’ ru-
mors as well as layoff rumors when she instigated her rule
and threatened to issue warnings. This rule was not limited
to worktime or in any other way. It is so broad as to forbid
any discussion about the union among employees, unrelated
to any enforcement of Respondent’s no-solicitation rule,
under pain of discipline, and I conclude that Hatch’s state-
ment interferes with employee’s rights and is a violation of
Section 8(a)(1) of the Act, as alleged.
D. Alleged Preelection Violation of Section 8(a)(1)
1. Promise and distribution of jackets
Respondent planned to give jackets to employees for an
open house in late 1988 or early 1989 and employees were
aware of the plan at the time. However, the jackets were not
provided until approximately a month before the election.
Here, the timing of distribution of chits for the jacket on the
payday preceding the open house held August 5, only a few
weeks prior to the election, clearly lends itself to the appear-
ance that it was illegally calculated to influence the employ-
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees in their choice of a bargaining representative. See Arrow
Elastic Corp., 230 NLRB 110 (1977). The General Counsel’s
allegations clearly are not ‘‘patently frivolous’’ nor indicative
that the Regional Director was not acting in good faith, a
charge made by Respondent of volume II at 70 of its brief,
and I conclude that a presumptive or prima facie showing
has been made tending to show that Respondent’s action was
unlawful.
Accordingly, the burden rests on Respondent to rebut the
presumption (or the General Counsel’s prima facie showing)
consistent with the criteria of Arrow Elastic, supra at 112.
The Respondent has shown that its gift of jackets (valued at
between $22 and $30 each), was tied into its originally
planned plant dedication and open house, which was delayed
and rescheduled in the ‘‘Spring 1989’’ because of its prob-
lems in keeping the plant running. The record otherwise
shows that the open house finally was held on August 5 and
that a so-called ‘‘chit’’ were given to the employees 2 days
earlier. Various documents relative to the actual order from
the supplier, however, are dated October 25, and November
1 and 3, 1989. Thus, it appears that the jackets were in fact
not distributed to employees until after the election and well
after the open house. Accordingly, it appears that a special
effort was made just before the election to promise future
jackets.
Here, although Respondent has shown a prior plan to pro-
vide employees with jackets, I am not persuaded that it has
presented any credible testimony or evidence that would rea-
sonably show that the ultimate implementation of the jacket
benefit was timed to occur shortly before the representation
election because of some actual and legitimate business rea-
son rather than its desire to influence and thereby illegally
interfere with the union campaign. Personnel Manager
McIntyre’s testimony provides no credible reason for Re-
spondent’s choice of August 5 for the open house and the
plan to contemporaneously issue promissory ‘‘chits’’ to em-
ployees. Accordingly, I conclude that the promised gift of
employee’s jackets was implemented with the paychecks of
August 3 because of the union activity and therefore unlaw-
fully interfered with the election held September 23, in viola-
tion of Section 8(a)(1) of the Act, as alleged.
In connection with the latter discussion and with the fol-
lowing evaluation of the allegation of the complaint, it is ob-
served that Respondent’s arguments often emphasizes a
claim asserting the minor or frivolous nature of the various
alleged allegations. It is not necessary, however, that a re-
spondent’s independent preelection actions be flagrant exam-
ples of coercive interference in order to find a violation of
the Act. Here, in view of Respondent’s demonstrated willing-
ness to proffer false testimony regarding its actions and rea-
sons surrounding the mass layoff of March 17, and in the
context of Respondent’s overall pattern of improper conduct,
I find that Respondent has revealed its willingness to repeat-
edly test the limits of permissible conduct regarding inter-
ference with the rights of its employees. In the instance dis-
cussed above, the Respondent has crossed the line of permis-
sible conduct and it does not matter that in any particular in-
stance it may have done so by a lesser rather than a greater
amount. Here, the cumulative effect of Respondent’s appar-
ent refusal to acknowledge the legitimacy of its employees’
Section 7 rights under the Act demonstrates a pattern of con-
sistent action whereby its overall conduct in furtherance of
its antiunion philosophy has repeatedly crossed the line and
illegally interfered with a union organizational campaign.
2. Alleged threat of plant closure and impression
of surveillance
On March 21, after the layoff, management conducted a
meeting with approximately 25 employees in the training
center. Employee Betty Battle testified that Schutz read aloud
from a memorandum distributed to the employees and spoke
about the startup of Vemco’s operations and about the Union
as a third party that wanted to make money for itself and
was not concerned with the employees and, in doing so, he
said that, ‘‘if anything they would cause the company to
close down.’’
Company Attorney Robert Morgan was present during the
meeting and testified that Battle asked Schutz a number of
questions regarding benefits and plant closure and that
Schutz responded by saying, ‘‘We have no present plans to
shut down whether the union gets in or doesn’t get in.’’ Sev-
eral other witnesses said no statements were made regarding
plant closure if the Union got in and several others denied
hearing a statement phrased in the manner Battle recalled.
Battle was an open union supporter and I conclude that
she ‘‘understood’’ Schutz’ remarks to be a plant closure
threat and testified as to her ‘‘understanding’’ rather than a
recall of the actual words used. Her testimony is
uncorroborated and I therefore credit the contradictory testi-
mony of those witnesses that stated Schutz’ remarks were not
phrased as stated by Battle. Accordingly, although Schutz
made remarks that were susceptible of misinterpretation, es-
pecially in the context of the mass firing a few days earlier,
I am not persuaded that he used the specific language attrib-
uted to him by Battle or language that would unequivocally
show a threat of plant closure tied to the union campaign and
I conclude that the General Counsel has failed to show that
the Respondent violated Section 8(a)(1) of the Act in this re-
spect, as alleged.
At this same meeting on March 21, Schutz stated that he
had heard from some employees that the UAW supporters
had been intimidating employees into signing ‘‘green cards.’’
He stated that such acts are illegal and offered to contact the
Company’s attorney in order to stop the union’s activities.
The General Counsel cites the decision in American Na-
tional Stores, 195 NLRB 127 (1972), which states:
We are not here concerned with whether this state-
ment was true, or whether it proved actual surveillance.
The significant fact . . . is whether [the supervisor’s]
statement had a reasonable tendency to discourage the
employees in exercising their statutory rights by creat-
ing the impression that he had sources of information
about their union activity.
The General Counsel argues that Schutz’ statements suggest
that he had sources of information regarding union activities.
Here, I am persuaded that Schutz’ remark that ‘‘he had heard
from some employees’’ reasonably could suggest to all em-
ployees that he had sources that would report to him about
any union supporting employees who were observed seeking
union authorization signatures. Accordingly, the pronounce-
ment of this statement to a large group of employees reason-
ably tends to interfere with the rights of employees to seek
925VEMCO, INC.
union support as well as the rights of employees to freely
sign authorization cards, and I find that it is a violation of
Section 8(a)(3) of the Act, as alleged.
3. Alleged threat of additional layoffs
On July 21 (during the first week of the hearing), Re-
spondent issued a press release during the course of a news
conference which involved both print and television media.
This press release states:
The layoffs we made were permanent. If we had to
bring back the people we permanently laid off, as the
Union wants, the answer seems to be that since we can-
not afford 60 extra people, another layoff would be
made out of our present work force. And even though
this presents problems since many of our people have
common dates of hire, the Union would want us to do
this by seniority and that is probably what we would
do.
This part of the press release was quoted in its entirety in
a newspaper article in the Flint Journal, on Saturday, July 22.
During the media conference, Respondent’s attorney,
Sheryl Laughren, made a similar oral statements to a tele-
vision reporter in which Laughren said that if the National
Labor Relations Board ordered the return of the laid-off em-
ployees, the Respondent would have no alternative but to
turn around and lay off 60 additional employees which were
presently working at the plant and that the layoff would be
by seniority because ‘‘this is the way the union would want
them to do it.’’
It is undisputed that Laughren was pictured on the local
news and was broadcasted stating:
It has been established that we had a legitimate busi-
ness reason for making the layoffs that we did, regard-
less of any kind of unionization efforts that may have
been going on, one way or another. [Exh. 115.]
It does not appear that any additional statements were
broadcasted on the local news or heard by any Vemco em-
ployees.
On July 27 Schutz, as Respondent’s executive vice presi-
dent distributed a letter to its employees, which stated:
If the Union gets its way and Vemco is required to
hire back 60 of those people, the answer seems to be
one of two alternatives. Since we do not have enough
work for an additional 60 people on a fill-time basis ei-
ther (1) we could try to keep everyone employed—
working 3 or maybe 4 days per week, or (2) another
lay-off would be made out of our present work force.
And even though this presents problems, since many of
our people have common dates of hire, the Union
would want us to do this by seniority and that is prob-
ably what we would have to do.
Respondent argues that because only the union representative
and no employees heard Laughren’s full statement no alleged
threat was made. It would appear, however, that the tele-
vision crew heard the statement and that the context of the
press release was broadcasted (and published in the news-
paper), regardless of whether Laughren’s taped remarks were
broadcast in full and Laughren clearly endorses, and does not
disavow, the release. Accordingly, Respondent’s alleged
threat was communicated to the public and Respondent’s em-
ployees through the media coverage of the press release and
through Schutz’ letter to employees.
Despite Schutz’ claim that his letter was an attempt to an-
swer employee’s questions about additional layoffs, the state-
ments must be evaluated in the context of the Respondent’s
actions in precipitously and illegally making the March 17
layoff, as well as the continuing organizational campaign and
the Union’s July 13 petition for an election. The implicit
message conveyed by the remarks is that another 60 persons
from the present work force would be laid off if the Union
had any say in the matter. This in effect is a threat that if
employees vote for the Union and thereby give them some
say in the matter, 60 additional people probably will be laid
off. This conduct clearly interferes with, restrains, and co-
erces employees in the employees’ exercise of their rights to
support or not to support a union and I find that it violates
Section 8(a)(1) of the Act, as alleged.
In mid-September Respondent distributed a question and
answer sheet to employees which purports to be answers to
questions by employees. Answers 44 and 99 were as follows:
A44. The union will not force the company to do
anything it doesn’t want to do or cannot afford to do.
If 60 employees were brought back 60 other employees
would likely end up on the street. That does not appear
to be the kind of job security our current work force
deserves.
A99. We cannot say what would happen, but to an-
swer your question the seniority date is November 8,
1988. We will supply several copies of the seniority list
for employees to review.
Schutz testified that the questions were received from em-
ployees anonymously who put them in question boxes in em-
ployees breakrooms. Respondent asserts that its answers are
permissible predictions of probable consequences predicated
on reasonable interpretations of facts. Here, however, it ap-
pears that it may reasonably be interpreted that shortly before
the election, Respondent seized on the vehicle of anonymous
questions to provide answers that emphasis and reiterate the
same message and same threat regarding added layoffs that
was contained in his earlier letter and ‘‘news’’ publicized
after the Company’s press release.
Three other questions and answers collectively presented
the following alleged threat:
Q66. I was once a part of organizing a union, lost
my job, my house and my car and the company close
its door for a month open up with new employees and
got away with it. Could this happen here?
A66. Yes it could. A good example is Kessels.
Q87. In reference to your answer on question 66—
Why are you trying to scare your employees?
A87. It is not a scare tactic. It is the law.
Q95. It’s not a fair comparison to compare a grocery
store (Kessels) with an automotive supplier (who is ob-
ligated to fulfill contracts with GM). It’s like comparing
apples to oranges, don’t you think? Kessels is not obli-
gated (by contract) to provide services to anyone.
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Specific questions and answers pertaining to these allegations are set forth
below.
Q6. I’ve been wondering since we worked so hard to get the Target
of Excellence award if and when there is a lay-off if the people that
worked so hard will be called back?
A6. We do not intend to have layoffs; in fact we are looking at adding
employees to fill in those areas where we are short. Today’s permanent
workforce would have recall rights if a layoff did occur.
Q26. Regarding the letter stating you hired temporary people. Are these
people former laid off employees or are they from a temporary service?
Could you please clarify temporary people?
A26. The temporary people you refer to are from an outside agency.
We needed to fill positions quickly to insure more production in molding
and to relieve some of the pressure in paint and assembly. When we de-
termine the number of permanent positions to be filled, we will post the
positions and give our permanent employees the opportunity to bid on the
positions.
Q32. Why is the Company now going to post openings when they just
told us a few months back that there would be no more posting of jobs?
Last time they posted a job they hired from the outside.
A32. New work has created job openings. These openings will be post-
ed to allow our current employees the opportunity to bid on these jobs.
Q38. Will seniority count in the persons department or overall Com-
pany seniority?
A38. In some cases department seniority would apply, for example:
changing shifts or vacation scheduling. In other cases overall Company
seniority would count.
Q52. How come overtime is never posted on the employee board in
the Assembly Department? Or how come you never know ahead of time
if we have to work over and post it before payday like most shops do?
Because a lot of people make plans ahead of time for weekends.
A52. We agree, weekend overtime will be posted before 12:00 noon
every Thursday.
Q41. (Omitted)
A41. A union will not solve this problem, it is the nature of our busi-
ness. In order to help reduce employee frustration we will begin to notify
employees of weekend overtime on Thursday mornings.
Q71. Why wasn’t the job in Quality Posted?
A71. It was awarded from a posting. The runner up to the Quality job
posted less than 1 month ago was awarded the job you are referring to.
Q74. Will seniority count in the persons department or overall com-
pany seniority and can people from other areas move into other areas?
A74. If you are referring to the posted jobs, seniority within a depart-
ment will count along with ability, qualifications and others as outlined
in the employee handbook.
A95. The question referred to a Company’s legal
right to close its doors and another Company open up
with new employees with a different name. The law al-
lows companies to do that no matter if its in the gro-
cery industry or the automotive industry.
The clear import of Respondent’s answers is that it can le-
gally get away with closing its plant in the face of an union
organizational drive and thereafter reopen with new employ-
ees, a response that goes well beyond a reasonable interpreta-
tion of law and facts, ignores well-established decisions
where illegally motivated plant closures have been found to
be unlawful (for example, see Mid-South Bottling Co., 287
NLRB 1333 (1988).) Respondent unequivocally asserts that
it could legally close and then be reestablished. This is be-
yond the permissible prediction concept of NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), relied on by Respondent,
and I find that in each instance set forth above Respondent
is shown to have illegally threatened employees with layoffs
or plant closure and has violated Section 8(a)(1) of the Act,
as alleged. See Mark I Tune-Up Centers, 256 NLRB 898,
906 (1981).
On the day of the election, Schutz had a conversation with
some employees in or near the breakroom. Two employees
who were not part of the conversation testified that they
heard some of what was said and that Schutz said something
about shutting the plant if the Union got in. Schutz testified
about the subjects he discussed and denied any plant closure
related remark. Inasmuch as it is not clear that those who
heard the alleged remarks were in a position to accurately
hear what was said and no employee participants in the con-
versation otherwise corroborated their testimony, I am not
persuaded that on this occasion Schutz made any specific ad-
ditional plant closure threats and I find that the General
Counsel has failed to show that Respondent violated the Act
in this respect, as alleged.
4. Alleged threat of harsher personnel decisions
Hatch testified that during a weekly team meeting with her
employees in late August or early September, she discussed
unionization with her employees, explained that she was con-
cerned with the union literature in the plant and told them
that: ‘‘Everything that is offered to all of our employees at
the plant could be subject to negotiations such as wages,
benefits, everything that is offered to them right now pres-
ently.’’
Employee Kimberly Hardin credibly testified that Hatch
said if the Union comes in, that ‘‘we risk losing our benefits
that we now have,’’ and she interrupted her and said ‘‘that
is not true. We do not risk losing our benefits that we have,
that we start from this point on,’’ and Hatch responded that
it was her understanding ‘‘that everything is put on the bar-
gaining table, and in order to gain something they have to
take something from us in exchange.’’ Respondent argues
that Hatch merely described the negotiation process, but her
remarks were interpreted by employee Linda Brown to imply
that if the Union came in they would no longer have bene-
fits.
Both Brown and Hardin also recalled that Hatch then said
if the Union came in the employees would just be numbers
to her and she would not be able to deal with them on a per-
sonal level as individuals and take into consideration prob-
lems, for example, like seeing your children off to school.
Here, the latter statement takes Hatch’s discussion with her
employees beyond the stage of permissible discussion and
clearly threatens a retaliatory loss of benefits, specifically su-
pervisory discretion and consideration in dealing with child
care problems if the Union comes in. This threat implies
harsher personal decisions and is an unlawful interference
with employee’s rights in violation of Section 8(a)(1) of the
Act, as alleged. See Brunswick Corp., 282 NLRB 794
(1987).
5. Alleged promise of benefits
As noted above, in early September Respondent made use
of employee question boxes and a question-answer format1
to disseminate information about election related matters to
employees.
The General Counsel argues that these answers promise
benefits that were not previously granted, specifically recall
rights, a system of job postings, weekend overtime notice,
and use of seniority. Respondent contends that its 1988 hand-
book describes a job posting procedure and explains that it
was not initially implemented because employees were un-
trained and had not learned their functions. It also asserts
that the procedure was activated in July and communicated
927VEMCO, INC.
to employees in shift representative meetings and by the
posting of minutes of the meeting.
Here, I find that the timing of the implementation of the
job posting practice, well after the asserted normalization of
production in March 1989, and shortly before the scheduled
election, supports an inference that the action was illegally
motivated and designed to interfere with employees free
choice to select or not select the Union as their bargaining
representative. This conclusion is reinforced by the apparent
failure of its alleged July communication of its new policy
to generally reach employees as evidenced by the several
questions from persons unaware of it, and by the lack of any
reference in its answer to the handbook policy (with the
qualification that answer 71 on seniority does refer to the
handbook).
Respondent also assert that seniority has always been a
factor and is mentioned in the handbook. These past ref-
erences to seniority, however, were qualified as follows:
Seniority does count in our corporation, however,
Vemco is a very young company and therefore other
criteria are more strongly weighted regarding layoff de-
cisions.
It is the length and quality of previous experience
with the company. [Emphasis added.]
Clearly, seniority was not a criteria of the March 17 per-
manent layoff or was it in effect prior to the start of union
activity; however, Respondent’s answers just before the elec-
tion tend to imply that seniority will be afforded more con-
sideration than before and it therefore constitutes the promise
of an added benefit.
With regard to notice of weekend overtime, it appear that
although the Company had a handbook policy that it would
‘‘attempt to give you advance notice,’’ its past practices (due
at least in part to production problems), generally precluded
a specific policy. In September, a change was promised and
implemented to commit the Company to give notice by
Thursday morning as well as to post the schedule.
Finally, recall rights were promised to ‘‘todays permanent
workforce’’ if layoff occurred, a policy that Respondent has
specifically denied those permanent workers who were laid
off on March 17, and therefore it is a promise of a new ben-
efit that draws a distinction between current employees and
those laid off under circumstances tied into allegation of
antiunion motivation. Accordingly, it and the other answers
discussed above, as well as Schutz’ letter to employees on
September 7, which also promises a system if job postings,
are shown to be intrusive promises that interfere with and
dissuade employees from unionizing in violation of Section
8(a)(1) of the Act, as alleged.
On the day of the election, at lunchtime after the first shift
employees voted, Schutz had a casual discussion with some
employees in the breakroom. Employee Battle’s recalled that:
One of the employees asked Mr. Schutz about their
work schedule, which he told them they weren’t satisfy-
ing the customers because they’re supposed to produce
parts and have them out within a five day period. So
he said he had accomplished giving them Sundays off,
and he would try to work on letting them have the en-
tire weekends off.
Schutz testified that:
I said it certainly was not the intent of the company
to want to have to work people long hours, six, seven
days a week. That it was better for all of us if we could
be working a five day week and sometimes a sixth. But
due to our type of industry, we have to meet our cus-
tomer’s demands.
When asked by Respondent’s counsel his specific answer to
the employee’s question, Schutz began a nonresponsive an-
swer about what he ‘‘tried’’ to do. I conclude that he did tell
the employees that he would attempt to reduce the work
schedule to a regular 5-day week. Although such a promise,
standing alone, might appear to be an innocuous comment,
as suggested by Respondent, it was made on election day
and in the context of an extensive antiunion campaign ac-
companied by other unfair labor practices and, accordingly,
I find that the circumstances warrant a finding that it also
was a promise of a benefit which violates Section 8(a)(1) of
the Act, as alleged.
6. Alleged withholding of pay increase
An employee was told that he had not previously received
a raise (based at least in part on a change in classification)
‘‘because a merit raise would have looked like they were try-
ing to bribe him against the Union.’’ No testimony was ad-
duced to indicate that it was because of the employee’s union
support as stated in the complaint and, accordingly, I find
that the General Counsel has failed, in this instance, to show
a violation of Section 8(a)(1) of the Act, as alleged.
7. Alleged confiscation of union literature
Employee Suzanne Stevens placed union literature in the
paint department breakroom on several occasions during the
union campaign and did so specifically on September 14,
shortly after 7 p.m. Thereafter, Stevens passed the breakroom
and observed George Diamond, a hired consultant (and Re-
spondent’s agent), throw materials similar in appearance and
quantity to what she earlier had placed there, in the trash bin.
On her next break she found antiunion material still on the
table and her union literature in the trash. Here, the cir-
cumstances described clearly are adequate to reasonably
show that it is highly probable that Diamond was throwing
her union literature in the trash when he was observed and
I find that it was not incumbent on employee Stevens to con-
front Respondent’s consultant in order to positively prove
what occurred.
Diamond was not called as a witness but otherwise Re-
spondent asserts that because Steven replaced the literature a
few hours later and because the plant was ‘‘brimming’’ with
union literature, the absence of that literature at a time when
no breaks were scheduled was de minimis and had no impact
on the election, Stevens’ unrefuted observations clearly are
sufficient to support a conclusion that Respondent’s agent il-
legally took and threw away union literature, an action that
violates Section 8(a)(1) of the Act as alleged, and an action
which adds to the cumulative weight of Respondent’s varied
and numerous violations and takes it beyond a possible de-
scription as de minimis misconduct.
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. Alleged solicitation of grievances
‘‘Joe’’ Winget (son of Owner Larry Winget) returned to
his position as Respondent’s molding plant manager in Sep-
tember 1989 after several month at another facility in order
to deal with ‘‘technical’’ problems that had developed. On
September 18 employee Terry Dungey, a union supporter
who was listed on the original organizing committee letter,
was approached by Joe Winget while in the breakroom on
her break. Winget asked how she was doing and then asked
‘‘is there anything I can do to change your mind.’’ When she
said no he asked if she would like to go to his office and
talk about it and she again said no. Two days later when she
passed his office Winget again asked if there was anything
he could do to change her mind. Dungey was wearing a
union shirt and hat and was aware that Winget had been talk-
ing to other employees about next week’s election and she
therefore believed that Winget was talking about her union
position and the union election, Winget admitted that he
asked ‘‘several of the hourly employees what their problems
were, what could Vemco do to correct these issues and make
life easier for them.’’ He also recalled a breakroom conversa-
tion with Dungey where he light heartily offered to wear her
union button if she wore his union-free button but did not
recall anything more of the conversation.
I credit Dungey’s testimony and I further find that it is not
speculative under the circumstances to conclude that
Winget’s statements referred to the Union election and that
such statements reasonably may be considered to be a solici-
tation of employee grievances with the implication that
something would be done to remedy the grievance. The
statements occurred just prior to the election and therefore
are shown to interfere with employee’s rights in violation of
Section 8(a)(1) of the Act, as alleged.
9. Alleged illegal interrogation
In addition to the above-noted exchange between Winget
and Dungey, employee Angela Hoskey (laid off on March 17
but reemployed on August 22) had a similar exchange with
Winget regarding the wearing of her union hat if she wore
his ‘‘union-no’’ button. Employee Kendra Wilcox had a
similar exchange with Supervisor Brad Mann and Mann as-
serts that the interchange was done in a friendly manner. In
Houston Coca Cola Bottling Co., 256 NLRB 520 (1981), the
Board found that by ‘‘offering the Vote NO buttons and ob-
serving who accepted or rejected them,’’ Respondent ‘‘in ef-
fect polled the employees about their sentiments regarding
the Union.’’ Here, Respondent has made known its antiunion
sentiments and previously had engaged in retaliatory and co-
ercive conduct, especially when it suddenly made the mass
layoff on March 17.
In this context, the masking of the interrogation in the
form of a ‘‘word game’’ fails to dispel the message received
by the employee, a message that Respondent’s conduct in
this respect was not a joke but a veiled interference with the
Union’s election in furtherance of Respondent’s antiunion
sentiments and it therefore is shown to violate Section
8(a)(1) of the Act, as alleged. A separate interrogation allega-
tion is centered on the observed conduct of Supervisor Paul
Jackson, however, the record only shows that he placed some
‘‘Union free’’ hats on the employees’ table at lunchtime. He
then left without comment and I find that his actions fail to
demonstrate a violation of the Act in any respect.
E. Alleged Violations Involving Employee Hall
Greg Hall was an active union supporter, a member of the
union organizing committee from its inception, and the close
friend of Human Resources Assistant Debbie Reed prior to
the March 17, 1989 permanent layoff. Hall credibly testified
that in late June Matt Winget, another son of Owner Larry
Winget, called Hall to his office and engaged in a discussion
about unions. Winget said that Supervisors Greg Blasen and
Gary Miron had complained to him about his talking about
the Union. Winget said he wanted it stopped, asked him not
to talk about the Union in the breakroom and Hall re-
sponded, ‘‘okay.’’ In response to questions on cross-exam-
ination, Hall said that after about 2 weeks he continued to
write prounion letter as to talk about the Union in the plant,
explaining that management had just asked him to stop in the
breakroom.
Respondent argues that the effect of Hall’s proscription
was nil and de minimis; however, Winget’s request to Hall
constitutes an overly broad no-solicitation rule and is shown
to be a violation of Section 8(a)(1) of the Act, as alleged.
It also is another cumulative violation that goes beyond de
minimis conduct.
Employee Barbara (Coons) Tincher credibly testified that
in late August she came within 6 to 10 feet of Supervisor
Randy Porter just as he made a statement to Third-Shift
Foreman Greg Asbury that if ‘‘this union shit don’t get
through, I’m gong to get rid of Greg Hall and all the other
Greg Halls.’’
In September, Charles Stearns was an employee working
under Greg Asbury. Subsequently, he was made a second
shift supervisor. On or about September 11, he was in Por-
ter’s office when Hall and Porter exchanged some comments
about union activity and Porter told Hall to leave the office.
A half hour later Stearns was near Porter when Hall came
into view and Porter stated to Stearns that ‘‘if the vote didn’t
go through then he would—he was going to see to it that
Greg Hall and everybody that was like him was terminated
from their job.’’ In late September, Joe Winget questioned
Stearns in front of Porter and asked if it was true that Porter
has said that if the Union did not go through he would see
that Hall was terminated and Stearns reaffirm that it was
‘‘exactly’’ what Porter said. Porter unpersuasively denied
making the threats directed at Hall and testified that when
Stearns was confronted by Winget he questioned Stearns fur-
ther and Stearns said ‘‘well you might not have used those
words or exactly said it that way.’’ Respondent seizes on that
testimony and argues that it shows a recantation by Stearns,
however, I find that if anything, it shows that after stating
his recollection he politely qualified his statement with the
words ‘‘might not’’ and ‘‘exactly’’ in order to avoid further
antagonizing a supervisor. The testimony by Tincher and
Stearns, although directed at separate incidents, is corrobora-
tive in nature as it shown Porter’s propensity for making
threats against Hall, threats that are shown to be a violation
of Section 8(a)(1) of the Act, as alleged.
The election was held on September 22, during the week
of Hall’s vacation. Two days after his return to work Super-
visor Randy Porter called Hall into Matt Winget’s office and,
in the presence of Greg Asbury and Charles Stearns (who
929VEMCO, INC.
was present at Hall’s request), handed Hall a 3-day suspen-
sion signed by Asbury and Matt Winget. Porter then called
security to have Hall escorted out of the plant. The suspen-
sion was allegedly given to Hall for falsifying his timesheet
on September 17, 1989. Hall asked to speak to Molding Su-
pervisor Matt Winget and with permission granted by As-
bury, Hall called Winget at home. Winget told Hall that he
was unaware of the suspension until 7 p.m. that day and to
come back the next day and talk to him. Hall was then lead
out of the plant by plant security.
Hall returned the next day and discussed the details of his
work hours on the day in question with Matt Winget. An ap-
pointment was arranged for Hall to meet the next day with
Plant Manager Joe Winget.
At the meeting with Joe Winget, Hall explained that there
was no way he was 45 minutes late on September 17 and
could prove that he had worked a full 8-hour shift. He ar-
gued that he would not steal any time and had often worked
more hours than he wrote down. Winget said ‘‘it didn’t mat-
ter, the write-up was going to stick, because of Hall’s atti-
tude, more than anything else.’’ When Hall asked ‘‘why
don’t you write me up for my attitude?’’ Winget said ‘‘it
was too much of a gray area’’ and that ‘‘if I improve my
attitude, I will never hear from him again.’’
After serving his 3-day suspension, Hall returned to work.
On the second day after his return to work, Hall purposely
arriving late and noted it on his timecard. His reason for the
late arrival was to prove to Respondent that he would not
steal from the Company. Subsequently, Hall was given a
written warning for being late.
Respondent contends that it received a complaint from an
employee on another shift about having to cover for Hall at
the time of the shift change. Respondent asserts that Joe
Winget investigated the complaints by speaking with three
employees and the supervisors in the molding area and was
convinced that Hall had been repeatedly reporting to work
significantly tardy and had been falsifying his timesheets.
As otherwise discussed above, the record in this case
clearly has demonstrated union animus and the record further
shows that Hall was identified as a prominent union sup-
porter and was closely connected with the events leading to
Respondent’s premature and illegal mass layoff of employees
on March 17. He also is shown to have been the subject of
specific threats of reprisal by Supervisor Porter and I find
that the General Counsel has made a prima facie showing
that Hall’s union activities were a motivating reason for its
decision to suspend him and to give him a warning for tardi-
ness. Respondent’s defense, under its Wright Line, burden,
supra, is based on claims that Hall was continually tardy and
never marked his timesheet and that he was properly dis-
ciplined under company’s handbook rule 6—‘‘Falsification
of any Company records, including employment application,
time cards, insurance applications, etc.’’
Here, I conclude that Respondent’s asserted reasons are
pretextual and essentially demonstrate an after the fact ration-
alization to justify Porter’s premeditated retaliation against
Hall, in fulfillment of his boast to do so if the Union did not
get selected, just days after the apparent vote went against
the Union.
The testimony established that the employees are on what
was referred to during the trial, as a honor system. The em-
ployees were not required to punch a timeclock or mark on
the timesheet their starting or quitting times. The procedure
required employees to indicate on the timesheet the total
hours worked on any given day. It also appears that company
practice was that ‘‘if you come in late and you worked over,
as long as you did your shift, you were all right,’’ the rule
was treated with a great deal of flexibility (established when
employees were working long overtime hours) and employ-
ees were not usually disciplined except under extreme cir-
cumstances.
The discipline also was issued by and originated with Por-
ter, who was not Hall’s shift supervisor, while the suspension
was signed by Supervisor Asbury and Molding Supervisor
Matt Winget, who admittedly did not investigate Hall’s pos-
sible explanation prior to the suspension, specifically Hall’s
description of a period of confusion when the shift change
time varied in the molding department which affected Hall’s
relief of the second shift employee he replaced, the employ-
ees who initially complained. And, when Hall finally ex-
plained his side of the story, Joe Winget told him it did not
matter, that he really was being disciplined for his attitude.
On brief, Respondent argues that its discipline of Hall was
a proper business action that was required to send a message
about tardiness to all employees. Respondent, however, did
not choose to discipline Hall for tardiness but instead chose
the strained concept of ‘‘falsification of Company Records,’’
and no apparent effort was made send its asserted message
through the medium of its regular shift representative meet-
ings or through the initial issuance of a warning, the form
of discipline selected for Hall’s discipline after the initial
suspension.
Under the circumstances, it is clear that the message sent
by Respondent was not about tardiness but about union ac-
tivism and I am not persuaded that Respondent was moti-
vated by a valid, nondiscriminatory reason for its suspension
and subsequent warning to Hall and I conclude that the Gen-
eral Counsel has shown that Respondent violated Section
8(a)(1) and (3) of the Act in this respect, as alleged.
F. Election Objections and Request for a
Bargaining Order
In consideration of the nature and extent of Respondent’s
unfair labor practices discussed above, it is concluded that
the General Counsel has shown that Respondent’s threats,
surveillance, interrogations, etc., and the illegal termination
of 60 employees including 17 union activists (as well as oth-
ers who signed authorization cards) were effective in dis-
sipating the Union’s majority support and in affecting the
outcome of the election subsequently held on September 22,
1989.
The record shows that 187 of 292 employees in the appro-
priate bargaining unit as of April 29 had signed union au-
thorization cards. The Employer challenged 52 ballots cast
by employees who were among those permanently, but ille-
gally, laid off on March 17. The Union otherwise received
127 votes, with 141 cast against the Union; thus, the count-
ing of the 52 challenged ballots could affect the result of the
election.
Although it is possible that Respondent would have had
some reduction in staffing levels at some date after March
17, it would be nothing more than conjecture to speculate re-
garding who or when. Moreover, there is evidence of record
indicating that Respondent failed to pursue Ford’s business
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Otherwise, the record does reflect some ambiguous conduct on behalf of
the Respondent in which it solicited and effectuated the so-called ‘‘rehiring’’
of several of the allegedly permanently laid-off employees.
at this same time, and that it falsely blamed the loss of
Ford’s business for the necessity of layoffs. The Respondent
should not be placed in a position where it benefits from the
consequences of its illegal conduct. Moreover, there is no
question here of a reasonable expectation of recall,2 and
there is no showing that some determinate number or some
determinate individuals would not have been on the April 29
list of bargaining unit employees, in the absence of Respond-
ent’s illegal conduct in effectuating the mass permanent lay-
offs on March 17.
Here, I conclude that the ballots of the 52 employees ille-
gally terminated on March 17 should be counted and that the
challenge to these ballots should be overruled.
Under the holding of the Court in Gissel Packing, supra.
a bargaining order is an appropriate remedy for violations of
Section 8(a)(1) and (3), where it is shown that a union ob-
tained signed authorization cards from a majority of the em-
ployees in an appropriate unit and after the union had at-
tained majority status the employer embarked on a campaign
of illegal conduct which undermined the union majority sta-
tus and made a fair election impossible. Here, a clear major-
ity of employees signed cards as of April 29 and the Union
filed a representation petition on July 13. During this period
of time, and continuing up to the day of the election, the Re-
spondent followed the mass permanent layoffs and a series
of earlier antiunion actions with numerous violations of Sec-
tion 8(a)(1) of the Act, including surveillance, interrogation,
threat of additional layoffs, threat of plant closure, and prom-
ise of benefits.
The impact of these unfair labor practices was heightened
by that fact that the persons involved in the conduct often
had special stature through their position as plant manager,
company attorney, or sons of the company owner.
I conclude that these factors were sufficient to undermine
the Union’s majority status. A bargaining order is an espe-
cially necessary remedy where terminations such as those in-
volved here constitute an unmistakable message to the re-
maining employees about the probable results of open sup-
port for a union. I further find that Respondent’s action
clearly undermined the Union’s majority status and, espe-
cially in view of the Respondent’s postelection retaliatory
disciplinary against union activist Hall, that no mitigating cir-
cumstances are shown that would indicate that a fair second
election is possible and, accordingly, a bargaining order is
shown to be justified.
Based on the ruling pertaining to challenged ballots it is
now possible that the Union may receive a majority of the
votes. Regardless of this outcome, however, it is necessary
and appropriate to grant a bargaining order inasmuch as ap-
pellate procedures could result in delays or another conclu-
sion and because, given the gravity of Respondent’s mis-
conduct, the Union’s card majority provides the more reliable
test of employees’ desires than a contested election.
Otherwise, I also conclude that it is shown that objection-
able conduct by Respondent occurred between the filing of
the representation petition and the date of the election and
the Board had found that violations of Section 8(a)(1) that
occurred during such period are sufficient to warrant over-
turning an election. See McLean Roofing Co., 276 NLRB
830 (1985), enfd. 794 F.2d 679(T) (8th Cir. 1986), and cases
cited therein.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit appropriate for collective bargaining is:
All full-time and regular part-time employees em-
ployed by Respondent at its facility located at 10230 N.
Holly Road, Grand Blanc, Michigan; but excluding of-
fice clerical employees, professional employees, con-
fidential employees, sales employees, draftsmen, guards
and supervisors as defined in the Act.
4. By interrogating employees concerning their union sym-
pathies and activities or those of other employees; by creat-
ing the impression of surveillance of employees’ union ac-
tivities; by imposing an overly broad no-solicitation rule; by
confiscating union literature; by threatening employees with
plant closure, additional layoffs, discharge, reprimand, and
the imposition of more onerous working conditions; by im-
plying that efforts to join a Union would be futile; by solicit-
ing grievances; and by promising benefits, including the dis-
tributing jackets Respondent has interfered with, restrained,
and coerced employees in the exercise of their rights guaran-
teed them by Section 7 of the Act, and thereby has engaged
in unfair labor practices in violation of Section 8(a)(1) of the
Act.
5. By terminating 60 bargaining unit employees on March
17 because of their union activities (including specifically,
the delivery of a letter identifying the members of the union
organizing committee) in pursuing union affiliation for pur-
poses of collective-bargaining representation, Respondent
violated Section 8(a)(3) and (1) of the Act.
6. By issuing warnings to and suspending employee Greg
Hall and more strictly enforcing timekeeping rules because
of or in retaliation for the employee’s activities in pursuant
of union affiliation, Respondent has violated Section 8(a)(1)
and (3) of the Act.
7. The employees named in the attachment to the appendix
who otherwise were not rehired were eligible voters as a re-
sult of their unlawful termination and the challenged ballots
of those who voted in the election on September 22, 1989,
should be counted, resulting in the issuance of a new certifi-
cation in Case 7–RC–1935.
8. The unfair labor practices found above were independ-
ently, substantially, and pervasively disruptive of the election
process, preclude a fair election, and warrant an order to bar-
gain.
9. Except as found here, Respondent is not shown to have
engaged in any other unfair labor practices as alleged in the
complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
931VEMCO, INC.
3 Under New Horizons, interest is computed at the Short-term Federal rate
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest accrued before January 1, 1987 (the effective date of the
amendment), shall be computed as in Florida Steel Corp., 231 NLRB 651
(1977).
Inasmuch as I have found that Respondent violated the Act
by terminating 60 bargaining unit employees through its per-
manent layoff, I find it necessary to order that Respondent
be required to reinstate these employees in order to restore
the status quo ante existing prior to its commission of this
unfair labor practice. The Board has long held that restora-
tion as nearly as possible of the situation that would have
prevailed, but for the unfair labor practice, is prima facie ap-
propriate and that the burden rests with a respondent to dem-
onstrate that it is not appropriate. See R & H Masonry Sup-
ply, 238 NLRB 1044 (1978); and Rebel Coal Co., 259
NLRB 258 (1981).
Respondent makes some attempt to show that events such
as productivity improvements and reductions in orders re-
sulted in subsequent reduced manpower needs, such that fu-
ture, justifiable layoffs would have occurred in any event.
This position, however, flys in the face of evidence of record
which shows that Respondent took contemporaneous, unilat-
eral, and apparently precipitous action in discontinuing at-
tempts to obtain potential Ford Motor Company’s business,
that it subsequent engaged in expansion of its facilities, that
it hired or rehired some additional regular full-time employ-
ees, and that it began a program whereby it made extensive
use of full-time temporary employees to fill additional man-
power needs in bargaining unit positions.
Respondent has not shown specifically that the economic
consequences of an order requiring reinstatement and back-
pay would be unduly burdensome, and, under the cir-
cumstances of this case, Respondent must accept the respon-
sibility for its precipitous and illegally motivated decision to
effectuate a massive termination by its so-called permanent
layoffs.
The consequences of Respondent’s disregard of its statu-
tory obligations, namely the restoration of the status quo
when the Respondent took unlawful action to the detriment
of its employees, must be born by the wrongdoer and, ac-
cordingly, reinstatement and full backpay running until such
time as an offer of reinstatement is tolled is appropriate and
should be required See Lapeer Foundry & Machine, 289
NLRB 952 (1988).
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate all em-
ployees terminated on March 17 to their former jobs or, sub-
stantially equivalent positions (dismissing, if necessary any
so-called temporary employees or employees hired subse-
quent to March 17, 1989), without prejudice to their seniority
or other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to them a sum of money equal to that which they nor-
mally would have earned from the date of the discrimination
to the date of reinstatement, in accordance with the method
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987),3 and that Respondent expunge from
its files any reference to their termination and notify them in
writing that this has been done and that evidence of the un-
lawful termination will not be used as a basis for future per-
sonnel action against them.
It also is recommended that Respondent be ordered to
make Greg Hall whole for any loss of earnings he may have
suffered because of the discrimination practiced against him
by payment to him a sum of money equal to that which he
normally would have earned on the days he was suspended
in accordance with the method set forth above and that Re-
spondent expunge from its files any reference to Hall unlaw-
ful warning and suspension and notify him in writing that
this a has been done and that evidence of this unlawful dis-
cipline will not be retained in its files or disseminated in any
manner.
Because of the serious nature of the violations and because
Respondent’s egregious misconduct demonstrates a general
disregard for the employees’ fundamental rights, I find it
necessary to issue a broad order requiring the Respondent to
cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act,
Hichmott Foods, 242 NLRB 1357 (1979), and to bargain
with the Union.
Inasmuch as Respondent engaged in misconduct that re-
sulted in the challenge of 52 ballots, which challenge is not
sustained here, it also is necessary that these ballots be
counted and that there be a new certification in Case 7–RC–
19035.
It is also recommended that the Respondent be required to
recognize and bargain with the Union and, if agreement is
reached, to reduce the agreement to a written contract. Fur-
thermore, Respondent shall not subsequently lay off any rein-
stated employee for any valid, nondiscriminatory business
reason without providing such employee 60 days’ notice (a
period consistent with the provision of Public Law 100–379,
the Worker Adjustment & Retraining Notification Act, 102
Stat. 890), and inasmuch as a bargaining order is found to
be required here, the Respondent otherwise shall not unilater-
ally layoff employees without providing the Union with no-
tice and opportunity to bargain about the decision to lay off
employees and the effects of that decision.
[Recommended Order omitted from publication.]