Vermeer Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 18, 1971

187 N.L.R.B. 888 (N.L.R.B. 1971)

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vermeer Manufacturing Company and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW). Case
18-CA-2754
January 18, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
in Knoxville , Iowa, on May 26 and 27, 1970, upon the
General Counsel 's complaint ,' dated April 20, 1970, and
respondent's answer . The sole issue raised by the pleadings
and litigated at the trial was whether respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended (herein called the Act), by disciplining and
ultimately discharging an employee , Ronald Van Roekel.
Upon the entire record ,2 upon my observation of the
witnesses and their demeanor while testifying , and upon
careful consideration of the arguments made and the briefs
submitted by the parties ,3 I make the following:
On September 9, 1970, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, and the Order of the Regional Director for
Region 18 setting aside a settlement agreement
entered into by the Respondent and the Charging
Party be vacated, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Charging Party
filed exceptions and a supporting brief and the
Respondent filed cross-exceptions and a supporting
brief to the Trial Examiner's Decision, and an
answering brief to the Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety, and the order of the Regional Director
dated March 13, 1970, setting aside the settlement
agreement be, and it hereby is, vacated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner : The trial in this
proceeding, with all parties represented , was held before me
FINDINGS OF FACTO
1. JURISDICTION
Respondent, an Iowa corporation, is engaged at Pella,
Iowa, in the manufacture, sale, and distribution of farm
and industrial equipment. During the year ending on April
20, 1970, a representative period, respondent made, sold,
and shipped to customers located outside the State of Iowa
goods valued at more than $50,000. Accordingly, I find that
respondent is engaged in commerce within the meaning of
the Act and that the assertion of jurisdiction over this
matter by the National Labor Relations Board (herein
called the Board) is warranted. Siemons Mailing Service,
122 NLRB 81, 85.
II THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW)
(herein called the Union) is a labor organization within the
meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case is principally concerned with the
disciplinary measures taken by respondent against Ronald
Van Roekel, an employee who was the Union's prime
mover in respondent's plant, after an organizing campaign
mounted by the Union had run its course without apparent
success. These included, as the complaint alleges, Van
Roekel's transfer from one job to another carrying a lower
wage rate, the issuance of warning notices to him, his
suspension, and his ultimate discharge.
' The complaint was issued on a charge filed on March 25, 1969, by
international Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW)
2 Issued simultaneously is a separate order correcting obvious
inadvertent errors in the stenographic transcript of this proceeding
3 Although all the arguments of the parties in support of their respective
positions, whether appearing in their briefs or made orally during the trial,
may not be discussed in this Decision, each has been carfully weighed and
studied
' Respondent's motions made at the close of the trial to dismiss the
complaint and to vacate the order, dated March 13, 1970, setting aside the
settlement agreement entered into by the parties to this proceeding, upon
both of which decision was reserved, are disposed of in accordance with
the findings and conclusions set forth in this Decision
187 NLRB No. 128
VERMEER MANUFACTURING CO. 889
The General Counsel and the Union contend 5 that Van
Roekel's transfer, warnings, suspension, and discharge were
motivated by his activity in support of the Union and,
therefore, violative of Section 8(a)(1) and (3) of the Act.6 In
exculpation respondent argues that Van Roekel was
disciplined, as set forth in the complaint, because of his
excessive tardiness and low production and not, as the
General Counsel asserts, for his union activism
B Preliminary Findings?
1. Respondent's operations
As already noted, respondent manufactures agricultural
and industrial equipment. At all material times respondent
has had two plants Among the several departments in
respondent's Plant 1, in which Van Roekel worked, are a
machine shop and a welding shop. In the former there are
lathes of various types and in the latter there are buffing
machines.
Items, known as pockets, which originate elsewhere in
respondent's premises are sent to the welding shop for the
removal of imperfections. This operation is performed on
buffing machines, whose operators are commonly called
buffers
Respondent has established production standards for
buffers. Each buffer, except the one who is a leadman, is
expected to turn out an average of 60 pockets an hour. A
buffer who meets this standard is considered to be working
at an efficiency rate of 100 percent.
2. The classification of respondent's employees
In May 1969 there was a general reclassification of all
jobs in respondent's plant. Depending on the kind of work
they did, employees were placed in one of three classes;
skilled, regular, or unskilled. Within each class there was a
further breakdown into A, B, and C ratings, A being the
highest and C the lowest.
At the time of the reclassification Van Roekel, who was
then employed as a lathe operator in the machine shop, was
given an A skilled rating. As were all other lathe operators
who were placed in this group, Van Roekel's wage rate was
increased from $2.95 an hour to $3.10 an hour.
In November 1969 Van Roekel was transferred to the
welding shop,8 where he worked as a buffer. On this job
Van Roekel received a C rating and was paid $2.75 an hour.
3. Working hours in respondent's plant
Respondent operates two shifts The hours of the first
5 As the contentions of the General Counsel and the Union are similar
they will be referred to hereinafter as the General Counsel's contentions
unless otherwise indicated
6 In pertinent part these sections provide
Sec 8(a) It shall be an unfair labor practice for an
employer-
(I) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of
employment to encourage or discourage membership in
any labor organization
Section 7, insofar as relevant, states
Sec 7 Employees shall have the right to self-organiza-
tion, to form, loin, or assist labor organizations, to bargain
shift, on which Van Roekel worked, are from 7 a.m. until 5
p.m. Employees on this shift take three breaks during the
course of their working day. A 10-minute rest break is taken
at 9 a.m. and 3 p.m. A 60-minute lunch break is taken at
11:30 a.m.
Employees are expected to have already punched their
timecards and to be at their stations ready to start work at 7
a.m. and 12:30 p.m. Accordingly, employees whose cards
show that they were punched at, or after, 7 a.m.; or at, or
after, 12:30 p.m. are considered to be late.
4. Respondent's disciplinary practices
Before November 1, 1969,9 respondent had no formal
system for disciplining employees. Penalties for infractions
of such plant rules as respondent had appear to have been
imposed on an ad hoc basis. Among these were oral
warnings and a 3-day pass, which consisted of suspension
from work for 3 days, coupled, sometimes , with a reduction
in pay of 5 or 10 cents an hour for 2 months.
On November 1 respondent adopted formal plant rules
and regulations to be administered by its foremen. These
provided, among other things, for the issuance of written
warning notices to employees in the case of certain
specified violations and for the imposition of a weightier
penalty for succeeding offenses of the same nature.
Illustrative of this is Rule 6 in respondent's catalogue of
plant rules,iO which bears upon respondent's asserted
reason for terminating Van Roekel's employment. This rule
deals with "Deliberty [sic I restricting output." It provides
that for a first offense of this nature an employee is to
receive a warning. The stated penalty for a second offense is
a 3-day pass and for a third, discharge.
Although the adoption of respondent's new plant rules
was announced at a meeting of foremen early in November,
they did not become effective until about November 15 or
20. The lag was caused by a delay in the printing of warning
notice forms, which had never before been used by
respondent. i i Until respondent's receipt of the warning
notice forms and their distribution to foremen, respondent
continued to operate under its old informal disciplinary
system.
5. The Union's organizing campaign
On March 20, 1969, Van Roekel discussed the organiza-
tion of respondent's employees with a representative of the
Union. At this time Van Roekel was given union
authorization cards and instructed as to their execution.
Van Roekel spoke to his fellow employees and persuaded
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
7 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent 's alleged unfair labor
practices and the conclusions to which they may give rise To the extent
that the contentions of the parties relate specifically to the findings made
here they will be treated here, although they may again be considered in
other contexts
" This transfer, which is alleged in the complaint as having been
violative of the Act, will be discussed in detail below
All dates hereinafter mentioned without stating a year fall within 1969
10 Respondent's Exhibit (Resp Exh ) 6
11 As noted, before this, warnings for rule violations were oral
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
56 to sign cards. At Van Roekel's solicitation 40 cards were
signed by April 1, and the balance by May 1.12
After May 1, 1969, the Union's organizing campaign
among respondent's employees fell to a low ebb. Some
meetings were held during the summer of 1969, all of which
were poorly attended. After the summer the only remaining
trace of union activity consisted of talk among employees.
However, the evidence does not show how extensive this
was,13 or whether respondent was aware of it or of the
meetings held during the summer.
6. Van Roekel's first suspension and the
settlement agreement
Van Roekel began to solicit employees to sign union
authorization cards as soon as he received them from the
Union's representative . For doing so during the morning
rest break on March 21, 1969, respondent suspended Van
Roekel from employment for 3 days, reduced his wages,
and placed him on probation.
On March 25 the Union filed a charge alleging that Van
Roekel's suspension and the other penalties imposed upon
him for soliciting card signatures during the March 21 rest
break were violative of Section 8(a)(1) and (3) of the Act.14
Thereafter the Union and respondent entered into a
settlement agreement 15 pursuant to which respondent
undertook, among other things, to make Van Roekel whole
for the loss of wages he suffered by reason of his
suspension . In addition respondent agreed to refrain from
enforcing, and to rescind, a rule, then outstanding in its
plant, providing that "No soliciting of any kind will be
permitted in the factory. Printed matter or the circulation of
petitions is also forbidden." Notwithstanding this under-
taking, it was expressly stipulated in this settlement
agreement that its execution did "not constitute either an
admission or denial of any unfair labor practices" on
respondent's part.
The settlement agreement was approved by the Regional
Director of the Board's Region 18 (herein called the
Regional Director) on June 13, 1969 On March 13, 1970,
the Regional Director signed an order 16 setting aside the
settlement agreement and reopening this case "for further
proceedings." This was followed by the issuance of the
instant complaint.
12 My findings as to the periods of time during which the cards were
signed are based on an analysis of Van Roekel's testimony He was certain
that the first 40 cards were executed before April 1, 1969 With equal
certainty he first testified that he "collected" signatures on the remainder
"between April I and May I " In almost his very next breath, however,
Van Roekel stated that these were signed "from then [April I, 19691 on
until [he] was discharged [on January 20, 1970]." When questioned further
as to this, Van Roekel professed ignorance as to the number of signatures
he obtained "between April I and May I between May I and June 1
between June I and July 1 [and] between July I and August I " At the
time of the trial the cards in question were undoubtedly in the possession
of either the General Counsel or the Union Neither, however, offered the
cards in evidence to bolster Van Roekel's story that they were signed
between April 1, 1969, and January 20, 1970 The conclusion is therefore
warranted that the cards would support his earlier testimony on this critical
issue, i e, that they were signed "between April I and May I " Interstate
Circuit, Inc, el at v United States, 306 U S 208, 226 Taking this into
account , and contrasting Van Roekel's inability to state how many cards
C. Facts Concerning Respondent's Alleged
Violations of Section 8(a)(1) and (3) of the Act
In 1966 Ronald Van Roekel was hired by respondent as a
lathe operator in its machine shop. On November 11, 1969,
Van Roekel was transferred to the welding shop where he
worked as a buffer. On January 20, 1970, he was
discharged.
Between January 1 and October 25, 1969, Van Roekel
was late in reporting for work 132 times. During the week of
October 27 he was late 3 times. On November 3 Robert
Lanser, Van Roekel's foreman, called his attention to his
latenesses the previous week. In the ensuing discussion,
which wasjoined by Arlie Vander Hoek, respondent's plant
superintendent, Vander Hoek informed Van Roekel, as
Van Roekel testified, that if his tardiness continued, Vander
Hoek "was going to take [him] off the lathe."
Van Roekel returned late from lunch on November 6 and
on November 11. On the former occasion, as Vander Hoek
stated, he told Van Roekel "one more time and that's it."
Having returned late from lunch again on November 11
and being able to offer no excuse, Van Roekel was, on that
day, transferred to the welding shop and assigned to work
as a buffing machine operator.
During Van Roekel's tenure as a lathe operator he was
not only habitually tardy, but he also had other faults as an
employee. These included sleeping while his machine was
in operation, mishandling his machine, and talking
excessively to other employees.17
Before November 1969 Vander Hoek had several
discussions concerning Van Roekel with Harry Vermeer,
respondent's secretary-treasurer, and recommended that
Van Roekel be disciplined in some manner. On each such
occasion Vermeer counseled Vander Hoek to "talk to [Van
Roekel], see if you can't straighten him out and see if we
can't get it corrected." As Vermeer put it, in this regard, had
any other employee been the subject of Vander Hoek's
recommendation "he would have been fired long before,
but we walked the second mile for a long time with Ron
Van Roekel."
Vermeer made clear that respondent's reason for taking
this position was that it was bent on complying with the
settlement agreement it had signed. Ultimately, however,
Vermeer agreed to Van Roekel's transfer to the welding
shop.
Following his transfer on November 11, 1969, Van
were signed in any particular month after March 1969, with the
positiveness of his first statement that 16 cards were signed "between April
I and May I," I have based my findings on his earlier testimony
13 Van Roekel testified that there was "substantial talk about" the
Union by him "and other individuals" through January 1970 However, no
evidence was offered to show the extent of the "talk," how frequently it
occurred, or how many employees participated In the absence of such
proof, I can give no probative weight to Van Roekel's conclusion that "talk
about" the Union was "substantial "
14 The complaint in this proceeding is grounded upon this charge
15 General Counsel's Exhibit (G C Exh) 1(c)
16 G C Exh 1(d)
17 My findings here are based on testimony given by Vander Hoek,
Robert Lanser, respondent's machine shop foreman, and two employees,
John Van Hemert and Daniel Jenkins, all of whom appeared to be credible
witnesses To the extent that Van Roekel denied their testimony his denials
are not credited
VERMEER MANUFACTURING CO 891
Roekel worked as a buffer until his discharge on January
20, 1970. At no time during this period did he meet the
production standard set by respondent for buffers. Van
Roekel's efficiency rate as a buffer was never greater than
50 percent.18
Because of Van Roekel's low production a warning
notice 19 was given to him on January 6, 1970, which recited
that he had violated "Rule 6" 20 At the time of the issuance
of this warning notice to Van Roekel, Vander Hoek,
respondent's plant superintendent, suggested to him, as
Vander Hoek testified, that it "would help his production [if
he was] on time in the morning21 and wouldn't spend so
much time in the rest room."
Van Roekel's production continued to be low. Accord-
ingly, on January 13, 1970, he received a second warning
notice for violating Rule 6. In addition, he was suspended
for 3 days.22
Upon Van Roekel's return to work following his
suspension, Vander Hoek expressed the hope, as Van
Roekel testified, that Van Roekel "was ready to do a day's
work and that the next time it would be it." Van Roekel's
output not having improved, on January 20, 1970, he was
given a third warning notice for violating Rule 6 and was
discharged.
Findings concerning Van Roekel's activities in support of
the Union have already been made. In this connection, at
no time after Van Roekel's suspension on March 21, 1969,
for soliciting employees to sign union authorization cards
has respondent been shown to have displayed any animus
toward the Union or to have engaged in any conduct
independently violative of Section 8(a)(1) of the Act.
D. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1)
and (3) of the Act
Although guiding principles are not in doubt, "Section
8(a)(3) cases are difficult cases,"23 and the instant one is no
exception to this rule. Almost always present in such cases,
and present here also, are vexatious problems of motive and
pretext.
Absent an unlawful motive an employer's judgment in
discharging an employee, regardless of whether the
employee's conduct warranted discharge, cannot be
18 As will be recalled, buffers are expected to turn out an average of 60
pockets an hour Those meeting this standard are considered to be working
at an efficiency rate of 100 percent
19 G C Exh 5
20 Although this rule and the stated penalties for its violation appear
earlier in this Decision , they will again be set forth here for ready reference
The rule is entitled "Deliberty [sic] restricting output" The penalties for
violating this rule consist of a warning notice for the first offense , a 3-day
pass for the second violation , and discharge if it is again violated
21 Van Roekel's tardiness did not abate upon his transfer to the welding
shop Between November 12, 1969, and January 6, 1970, he was late eight
times
22 Van Roekel's poor production is, perhaps , explained by a passage
appearing in an affidavit (G C Exh 9) made by Vander Hoek during the
General Counsel 's pretrial investigation Vander Hoek there deposed that
his records showed that on January 13, 1970, Van Roekel actually started
to work at 7 22 a in instead of 7 a in , that he was in the restroom from
8 07 a in until 8 12 a in and again from 10 10 a m , until 10 23 a in , that
he looked at the clock from 1110 a in until I 1 15 a in , that he stopped
work at 11 23 a in instead of at 11 30 a in , that he started to work after
lunch at 12 40 p.m instead of at 12 30 p in and that he spent from 12 55
questioned. "Management can discharge for good cause, or
bad cause, or no cause at all. It has, as the master of its own
business affairs, complete freedom with but one specific,
definite qualification: it may not discharge when the real
motivating purpose is to do that which Section 8(a)(3)
forbids." N L.R.B. v. McGahey, et al., etc., 233 F.2d 406, 413
(C.A. 5).
Seemingly, respondent was given cause for the discipli-
nary action it took against Van Roekel. Between January 1
and October 29, 1969, he was late 135 times. On November
3, he was warned that he would be taken off the lathe if his
lateness continued. Not heeding this warning, Van Roekel
was late on November 6 and again on November 11. On the
latter date he was transferred from the lathe to the buffing
machine.
As a buffer Van Roekel never met respondent's
production standard, his efficiency rate being less than 50
percent. He received warning notices for violating Rule 6 of
respondent's plant rules on January 6 and 13, 1970, and
was, on the last mentioned date, also suspended for 3 days.
Van Rocket's production did not improve upon his return
to work and he was discharged on January 20, 1970. I find,
therefore, that respondent's asserted reasons for discharg-
ing Van Roekel, as well as for its mesne disciplinary
measures starting with his transfer to the welding shop,
unlike the explanation for a discharge asserted by an
employer in another case,24 do not "[fail] to stand under
scrutiny." 25
However, the existence of these factual bases for Van
Roekel's transfer, warning notices, suspension, and ulti-
mate discharge do not end the inquiry. What must further
be determined is whether these factual bases were seized
upon by respondent to discipline and finally rid itself of an
employee because he was a protagonist of the Union, as the
General Counsel contends. If this is the situation, it goes
without saying that respondent violated Section 8(a)(3) of
the Act. See e.g. N.L.R.B. v. Solo Cup Company, 237 F.2d
521, 525 (C.A. 8); and Memcor, Inc., etc., 162 NLRB 930,
931, 940.
Two factors, each playing an important role, are
generally taken into account in ascertaining the motive of
an employer in disciplining a union adherent in his employ.
p in until I p in "getting dunk and apron "
23 N L R B v Atlanta Coca-Cola Bottling Company, Inc, etc, 293 F 2d
300, 308 (C A 5)
24 N L R B v Dant et al, etc, 207 F.2d 165, 167 (C A 9)
25 The General Counsel argues , on brief, that respondent has not shown
that Van Roekel's low output was deliberate , as recited in Rule 6, and that
therefore, the "proffered reasons for [his ] discharge are unconvincing."
However, whether Van Roekel deliberately restricted his production within
the meaning of the rule need not be determined Given Van Roekel's
undenied low production, it did furnish respondent with a cause for
discharging him. That respondent might not have complied with its own
rules in dismissing Van Roekel on this ground, even if this were truly the
situation, does not provide a basis for labeling as "unconvincing" the
reason asserted by respondent for terminating his employment An
employer is not generally bound to comply with rules he lays down for the
conduct of his employees. Cf. N L R B v United Steelworkers of America,
CIO, et al, 357 U S 357 362-363 Furthermore, to say that an employer is
bound to retain in his service an employee whose productivity is below
standard merely because there is no outstanding rule promulgated by the
employer which authorizes the employee's discharge is to state a
proposition which, it seems to me, carries with it its own refutation
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These are the presence or absence of union animus on the
part of the employer 26 and the timing of the conduct,
alleged to be unlawful , in relation to the employee 's union
activity.27
To be relevant and probative an employer's animosity
toward a union must be shown to have existed at the time of
the commission of the acts concerning which complaint is
made ; 28 here, the events starting with Van Roekel's
transfer on November 11, 1969, and continuing until his
discharge on January 20, 1970. But no such evidence was
adduced.
It may be assumed that respondent acted out of animus
toward the Union when it suspended Van Roekel in March
1969 for soliciting signatures to union authorization cards.
This, however, was some 8 months before he was taken off
the lathe and nothing further was shown to establish that
respondent continued to harbor such animus at that, or any
subsequent, time . This being so, it cannot be concluded on
this score that Van Roekel's transfer on November 11,
1969, his later discharge on January 20, 1970, and the
intervening disciplinary action taken against him was
unlawfully motivated.
Nor is there a relationship in time between the November
11, 1969-January 20, 1970, period and Van Roekel's union
activity. As I have found, no cards were signed after May 1,
1969. No union meetings were held after the summer of
1969, and those that were held during the summer were
sparsely attended and not shown to have come to
respondent's attention. The only vestige of union activity
which remained after the summer was talk among
employees, characterized by Van Roekel, without probative
force, as being "substantial,"29 which, like the earlier union
meetings , was not shown to have been within respondent's
knowledge. Accordingly, Van Roekel's most active support
of the Union having ceased on May 1, 1969, when
respondent's employees stopped signing cards, and union
activity in respondent's plant having dwindled almost to a
halt during the summer of 1969, I cannot conclude that the
events which began with Van Roekel's transfer on
November 11, 1969, and which ended with his discharge on
January 20, 1970, were motivated by his union activism. Cf
National Cash Register Company, 169 NLRB No. 91.
Moreover, insofar as the termination of Van Roekel's
employment is concerned, had respondent been looking for
a pretext to mask his discharge because he supported the
Union it would not have had to wait until January 20, 1970.
If an excuse were in fact being sought by respondent to
remove Van Roekel from its plant because he was an
adherent of the Union it could have been found, as the
record shows, long before then.30
Instead of being transferred on November 11, 1969, for
habitually being late Van Roekel could have been
discharged. He also could have been discharged even
26 Maphis Chapman Corporation v N L R B, 368 F 2d 298, 304 (C A 4),
Hoerner-Waldorf Paper Products Co, 173 NLRB No. 168, affd sub nom
Mohland v NLRB, 422 F 2d 1258 (C A 9)
27 Fire Alert Co, 182 NLRB No 133, Farmers Insurance Group, 174
NLRB No 137
28 Thompson Industries , Inc, et at, 161 NLRB 1548, 1549, General
Electric Company, etc, 155 NLRB 1365, 1368
29 See footnote 13, above
30 It has been held in cases where an asserted ground for a discharge is
before that date for lateness; for sleeping at, or mishan-
dling, his machine; or for talking excessively to other
employees. Rather than discharging Van Roekel on any of
these grounds, respondent was determined to walk "the
second mile . . . with Ron Van Roekel." In view of the
evidence, respondent should not be faulted for being
unwilling to walk the third mile.
"An unlawful purpose is not lightly to be inferred. In the
choice between lawful and unlawful motives, the record
taken as a whole must present a substantial basis of
believable evidence pointing toward the unlawful one." 31
Upon careful analysis, I do not find such a substantial basis
to be present here.
Accordingly I conclude, upon consideration of the entire
record, that the General Counsel has not proven by a
preponderence of the evidence that respondent violated
Section 8(a)(1) and (3) of the Act by its treatment of Van
Roekel after June 13, 1969, the date on which respondent
signed the settlement agreement . This being so, a finding on
the question of whether respondent's presettlement suspen-
sion of Van Roekel on March 21, 1969, constituted an
unfair labor practice is not warranted. Larrance Tank
Corporation, 94 NLRB 352, 353, 354. I shall, therefore,
recommend that the complaint be dismissed and that the
Regional Director's order setting aside the settlement
agreement be vacated.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(1) or (3) of the Act by
transferring Ronald Van Roekel on November 11, 1969,
from the position of lathe operator to the position of
buffing machine operator, by issuing warning notices to
Ronald Van Roekel on January 6 and 13, 1970, by
suspending Ronald Van Roekel on January 13, 1970, or by
discharging Ronald Van Roekel on January 20, 1970.
4. The order dated March 13, 1970, setting aside the
settlement agreement theretofore entered into by respon-
dent and the Union was improvidently issued.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case, and pursuant to
Section 10(c) of the Act, I recommend that the Board issue
the following:
claimed to be pretextuous and availed of by an employer to conceal the
motive proscribed by Section 8(a)(3) of the Act that the employer's failure
to take advantage of an earlier opportunity to attain the same result
"weaken[s I the `basis for attributing an antiunion motive to the
discharge. [N.L.R B v Newman-Green, Inc, 401 F.2d 1, 4 (CA 7))'
Farmers Insurance Group, 174 NLRB No 137
31 N L R B v McGahey et at, etc , 233 F 2d 406,413 (C A 5). See also,
to the same effect, N L R B v Agawam Food Mart, Inc, 424 F 2d 1045,
1047 (CA 1)
VERMEER MANUFACTURING CO. 893
ORDER32
It is ordered that the complaint be, and the same hereby
is, dismissed; and
IT IS FURTHER ORDERED that the order issued on March
13, 1970, setting aside the settlement agreement theretofore
entered into by Vermeer Manufacturing Company and
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) and
approved by the Regional Director for Region 18 of the
National Labor Relations Board be, and the same hereby
is, vacated.
32 In the event no exceptions are filed as provided by Section 102 46 of shall , as provided in Section 102 48 of the Rules and Regulations, be
the Rules and Regulations of the National Labor Relations Board, the adopted by the Board and become its findings , conclusions , and order, and
findings, conclusions, recommendations, and Recommended Order herein all objections thereto shall be deemed waived for all purposes.