Vilter Mfg. Corp.

National Labor Relations Board - Board Decisions

Sep 9, 1984

271 N.L.R.B. 1544 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vilter Manufacturing Corporation and United Steel-
workers of America, Local Union No. 1018,
AFL-CIO. Case 30-CA-7277
9 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14 February 1984 Administrative Law Judge
William A. Pope II issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that the Respondent's re-
fusal to reinstate Jon Weber, as directed by an ear-
lier arbitration award in Weber's favor, violated
Section 8(a)(1) and (3) of the Act. He also found
that the Respondent threatened the Union in viola-
tion of those sections of the Act. The Respondent
contends that it demonstrated it would have re-
fused Weber reinstatement regardless of any union
or protected concerted activities because he fraud-
ulently claimed unemployment compensation. The
Respondent further contends that it made no un-
lawful threat to the Union, but merely indicated
there would be hard bargaining at the expiration of
the contract. We find merit in these contentions.
On 31 August 1981 the Respondent discharged
Jon Weber for failure to comply with a work di-
rective. The Union subsequently filed a grievance
concerning Weber's discharge. Pursuant to the par-
ties' collective-bargaining agreement, the grievance
was referred to arbitration, and a hearing was con-
ducted on 8 February 1982. Sometime after the
hearing, but before the issuance of a decision, the
Respondent's manager of human resources, Rich-
ard K. Jones, who was in charge of labor relations,
told Local Union 1018's recording secretary, Greg-
ory G. Kozerski, that even if the arbitrator ruled in
favor of the Union and Weber, the latter "would
be terminated for something else, for falsifying
company documents." On another occasion, Jones
told Kozerski: "[W]hat difference does it make
which way the arbitrator rules, the guy's not going
back to work anyways." On 9 April 1982 the arbi-
trator issued his decision directing that Weber's dis-
charge be set aside and that he be reinstated with-
271 NLRB No. 229
out loss of seniority, but without backpay. The ar-
bitrator concluded that the Respondent had im-
properly calculated Weber's accumulated penalty
point total and therefore in discharging him had
misapplied its progressive discipline/penalty point
system. On 15 April 1982 the Respondent notified
Weber that he would not be reinstated, asserting
that he had fraudulently obtained unemployment
compensation.
Weber had filed for unemployment compensation
benefits on 2 September 1981, shortly after his dis-
charge. Initially, payment of benefits was withheld
pending resolution of a challenge which the Re-
spondent made to Weber's eligibility. While the
question of his entitlement was being determined,
however, Weber continued to file weekly unem-
ployment benefits claim forms. It is undisputed that
the claim forms which Weber completed, signed,
and submitted to the Job Service Division of the
State of Wisconsin's Department of Industry,
Labor and Human Relations for the 4-week period
from 13 September 1981 through 10 October 1981
were, in whole or in part, false. In particular, on
the claim forms in question Weber either falsely re-
ported that he was unemployed or, in the case of
one form, misrepresented the amount he was being
paid.
Sometime in late November 1981, shortly after
the Job Service Division determined that Weber
was entitled to receive benefits, the Division ques-
tioned the validity of Weber's claim for benefits for
the 4-week period. In early December 1981, a
"hold," suspending payment of benefits, was placed
on his account. On 16 February 1982 the Job Serv-
ice Division mailed Weber a copy of its form UC-
26, entitled "Initial Determination of Benefit Eligi-
bility." The form stated that because Weber had in
fact received gross wages equaling or exceeding
the weekly benefit rate during the weeks of 19 Sep-
tember 1981, 26 September 1981, 3 October 1981,
and 10 October 1981, he had been overpaid $572 in
benefits. On 19 February 1982, by its form UC-
315, the Division notified Weber that it was with-
holding benefits for the 4-week period from 5 De-
cember 1981 through 26 December 1981 to satisfy
the requirement that he compensate the Division
for the earlier overpayment.
On 17 February 1982 the Respondent received a
copy of the Division's form UC-26 and thus
became aware of the overpayment to Weber. By
letters of 1 March 1982 and 3 March 1982, Manag-
er of Human Resources Jones gave Weber until 5
March 1982 to prove that he had repaid the over-
payment and, as demanded by the second letter, to
inform the Respondent of the name of his employer
during the 4-week period in September and Octo-
1544
VILTER MFG. CORP.
ber 1981. Weber apparently did nothing to comply
with the Respondent's 5 March deadline. It is ap-
parent, however, that by at least 12 March 1982
the Respondent had obtained a copy of Job Service
Division form UC-315, and thus knew that the
$572 overpayment to Weber had been repaid.
On 15 April 1982, after the arbitrator had or-
dered Weber's reinstatement, Jones sent another
letter to Weber informing him that he would not
be reinstated. Jones stated that Weber's false state-
ments to the Job Service Division were "not only
fraud on that agency, but upon Vilter Manufactur-
ing Corporation whose account may be penalized
based upon an adverse impact upon its experience
rating." The letter further informed Weber that the
Respondent considered his conduct "a violation of
the Company's Type D Rules, specifically those
dealing with falsification of employment records as
well as theft or fraud relating to the Company."
Three days after the arbitrator's decision issued,
the Respondent was ordered to pay 15-percent in-
creased workmen's compensation in connection
with an on-the-job injury suffered by Weber on 11
July 1979. Weber secured the ruling for increased
compensation through an attorney to whom he was
referred by the Union.
Several months after the arbitrator's decision, the
Respondent sought midterm contract concessions
for economic reasons. The Union refused to agree
to midterm changes. Shortly thereafter, Jones made
a remark to the effect that if the Union wanted a
war it would get it.
The judge found that Weber knowingly and
willfully falsified four unemployment compensation
claims. He nevertheless concluded that the Re-
spondent's refusal to reinstate Weber was a viola-
tion of Section 8(a)(3) and (1) of the Act. He con-
cluded that the General Counsel established a
prima facie case of improper motivation through
circumstantial evidence which demonstrated a con-
nection between the Respondent's refusal to rein-
state Weber and Weber's protected activities, in-
cluding his use of the grievance and arbitration
procedures.' In particular, the judge relied on the
comments made by Manager of Human Resources
Jones, that the Respondent would not reinstate
Weber, and that he would be terminated for some-
thing else, as evidence that the Respondent did not
act in good faith with respect to the arbitration
I Although the judge refers to Weber's filing of a workmen's compen-
sation claim and his filing, with union assistance, for increased compensa-
tion, as protected activity under Sec. 7 of the Act, he principally relies
on Weber's use of the grievance and arbitration procedure as the protect-
ed activity which motivated the Respondent to refuse to reinstate Weber.
In these circumstances we find it unnecessary to assess the impact of
Meyers Industries, 268 NLRB 493 (1984), on the finding that Weber's
filing of a workman's compensation claim and a claim for increased com-
pensation awas protected by the Act
process and had, in fact, rejected the process in ad-
vance of the arbitrator's decision. The judge also
found that a remark made by Jones several months
after the arbitrator's award and after learning of
the employees' rejection of midterm contract con-
cessions which the Respondent had proposed, to
the effect that if the Union wanted war, it would
get it, was clear evidence of union animus. The
judge reasoned that whatever circumstances
prompted the Respondent to seek concessions in
August 1982 existed in April 1982, when it refused
to reinstate Weber, and that refusing to reinstate
Weber would weaken the Union's influence over
the employees and thus strengthen the Respond-
ent's position in its August 1982 negotiations with
the Union. He further stated that Jones' "war"
remark characterized the Respondent's view of its
relations with the Union during the period relevant
to the Respondent's refusal to reinstate Weber.
Having found that the General Counsel estab-
lished a prima facie case, the judge addressed the
Respondent's defense that it refused to reinstate
Weber because he falsely claimed unemployment
compensation benefits to which he was not enti-
tled. The judge concluded that the Respondent had
failed to demonstrate that it would have refused to
reinstate Weber even absent his protected activities.
In reaching this conclusion the judge relied on four
factors.
First, in his 15 April 1982 letter to Weber, Jones
asserted that as a result of Weber's overpayment
the Respondent's account with the Job Service Di-
vision "may be penalized based upon an adverse
impact upon its experience rating." Jones knew,
however, that the Respondent's unemployment ac-
count had been made whole in February 1982 and
understood that the Respondent would not be pe-
nalized financially. Second, Jones' letter noted that
Weber had not provided the name of his employer
during the period he claimed he was unemployed,
despite the Respondent's demand for that informa-
tion in its 3 March 1982 letter. Noting that Jones
had made no mention of any such requirement in
his I March 1982 letter or in telephone conversa-
tions with Weber and that once the overpayment
had been repaid there was nothing left for the Re-
spondent to do in establishing the overpayment or
the reasons for it, the judge characterized the re-
quested information as irrelevant and neither
wanted nor needed by the Respondent. Third, the
judge asserted that the Respondent's charge that
Weber had violated a "D" type rule by falsifying
employment records was no more than a red her-
ring because Weber was not an employee at the
time he submitted the claim forms and did not falsi-
fy any records belonging to or submitted to the
1545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent. Finally, the judge concluded that the
penalty imposed on Weber was disproportionate to
that which the Respondent had imposed on other
employees for similar alleged misconduct.
We disagree with the judge's finding of a viola-
tion in this case. Initially, we do not agree that the
remarks made by Manager of Human Resources
Jones evidence a lack of good faith on the part of
the Respondent with respect to the arbitration
process. The Respondent was aware of the over-
payment to Weber on 17 February 1982, only 9
days after the arbitration hearing. The record does
not show the exact date of Jones' comments to
Union Recording Secretary Kozerski that Weber
would not be reinstated even if the arbitrator ruled
in his favor. Given the Respondent's knowledge of
Weber's false unemployment claim within a few
days of the arbitration, however, it is as probable
that Jones' remarks showed a concern for the un-
employment fraud, as that they showed a disregard
for the arbitration process. In these circumstances,
we cannot find Jones' comments constitute suffi-
cient evidence of unlawful conduct. Further, ac-
cording to the testimony of Union President Zie-
gler, the third Jones remark on which the judge
relied, his statement that Weber was "just bad
news," was made after the arbitrator issued his de-
cision, not prior to that award as the judge found,
and thus does not support the judge's conclusion
that the Respondent had rejected the arbitration
process in advance.
Nor do we agree with the judge's conclusion
that Jones' comment to the effect that if the Union
wanted war, it would get it, made during August
1982, is evidence of an antiunion motive for refus-
ing to reinstate Weber some 4 months earlier.
There is simply no evidence in the record to sup-
port the judge's assertion that whatever circum-
stances prompted the Respondent to seek wage
concessions in August 1982 existed at the time of
the refusal to reinstate Weber. The judge's conclu-
sions that the Respondent refused to reinstate
Weber in order to weaken the Union's influence
and strengthen its own position in negotiations on a
concessions proposal it had not yet even made is
too speculative to support a finding of improper
motivation.
With respect to the Respondent's defense, con-
trary to the judge, we do not find that the Re-
spondent's 15 April letter to Weber is an "artfully"
drafted coverup of the Respondent's motive. The
judge noted that, although the 15 April letter,
which informed Weber that he would not be rein-
stated, charged that his conduct violated the Re-
spondent's D type rule dealing with falsification of
records, Weber was not an employee at the time he
submitted his claims to the Job Service Division
and did not falsify any record which belonged to
or was submitted to the Respondent. The judge
found the reference to the D type rule was a red
herring used to divert attention from the Respond-
ent's true motive. However, the record indicates
that on at least one previous occasion, in the case
of employee Marvel Tyler, which was described as
identical to that of Weber, the Respondent inter-
preted its D type rule consistent with the interpre-
tation reflected in the 15 April letter to Weber and
disciplined an employee who submitted false infor-
mation to the Job Service Division during a period
in which he was not employed by the Respondent.
Moreover, the letter states that the Respondent
considered Weber's conduct a violation of the D
type rule dealing with "theft or fraud relating to
the Company." There is, therefore, nothing deliber-
ately confusing or diversionary about the Respond-
ent's reference to the rule in its letter to Weber.
Finally, we do not agree with the judge's con-
clusion that the Respondent's treatment of Weber
was disproportionate to its treatment of others who
obtained unemployment benefits by fraud. It is true
that the Respondent had not previously discharged
an employee solely because the employee engaged
in conduct similar to that of Weber. The Respond-
ent, however, has a progressive discipline/penalty
point system which, as interpreted by the arbitra-
tor's 9 April award, provides that an employee
who has accumulated 14 penalty points over a
period of 12 consecutive months will normally be
discharged. While there is no indication that any of
the other employees who engaged in conduct simi-
lar to Weber's had previously accumulated penalty
points, it is clear from the arbitrator's 9 April deci-
sion that Weber had 12 accumulated penalty points
at the time he submitted false information to the
Job Service Division. 2 The record demonstrates
that the Respondent had imposed eight penalty
points (the minimum assessed for a D type rule vio-
lation) and a 1-week layoff on employee Marvel
Tyler under circumstances which, as noted above,
were described as identical to those in the case of
Weber. The Respondent's refusal to reinstate
Weber, who had an accumulated penalty point
total only two points shy of that normally resulting
in dismissal at the time he engaged in conduct iden-
tical to that which had previously resulted in the
2 It was the accumulation of these points which led the arbitrator to
deny backpay: "The arbitrator, however, is persuaded not to award the
grievant backpay primarily for the reason that grievant has demonstrated
and accumulated a regular and consistent series of rule violations
throughout his total employment period and further because the grievant
clearly could have been terminated at an even earlier date had the Com-
pany not chosen to exercise leniency in several cases where the grievant
had violated rules."
1546
VILTER MFG. CORP.
assessment of eight penalty points, was thus not
disproportionate to its treatment of others who
fraudulently had obtained unemployment benefits.
Contrary to the judge's assertion, the record does
not, therefore, support a finding of disparate treat-
ment.
Our evaluation of the evidence leaves intact only
two factors relied on by the judge: that the Re-
spondent's 15 April letter to Weber mentioned a
possible penalty against the Respondent at a time
when the Respondent knew it would not be penal-
ized and that the 15 April letter chastized Weber
for not providing the name of his employer during
the period he claimed unemployment even though
the Respondent had no need for the information
once the overpayment had been repaid. The Re-
spondent asserts that by its reference to a possible
penalty it simply intended to stress the magnitude
of Weber's misconduct. The statement concerning
Weber's failure to supply the name of his employer
might well be interpreted in the same way. Certain-
ly these two factors, standing alone, are not suffi-
cient to sustain the finding of a violation, particu-
larly when considered against Weber's past record,
the degree of fraud he attempted to commit, and
the absence of evidence that he received disparate
treatment from the Respondent. Accordingly, we
find that the Respondent has established that it
would have refused reinstatement to Weber even in
the absence of his protected activities. We shall
therefore dismiss that allegation of the complaint.
We shall also reverse the judge's finding that
Jones' comment after learning of the employees' re-
jection of a midcontract wage concession proposal,
to the effect that if the Union wanted war, it
would get it, amounted to a threat to retaliate
against the Union because it had filed an unfair
labor practice charge. We agree with the Respond-
ent that Jones' remark is more properly character-
ized as a claim that the Union could anticipate hard
bargaining once the collective-bargaining agree-
ment expired. In the absence of any other unfair
labor practices or any evidence of animus toward
the Union, we find that Jones' remark did not
amount to a threat in violation of Section 8(a)(l)
and (3). Accordingly, we shall dismiss the com-
plaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
WII lIAM A. POPE II, Administrative Law Judge. In a
complaint issued on September 30, 1982, and amended
on January 19, 1983, the Regional Director for Region
30, National Labor Relations Board, Milwaukee, Wiscon-
sin, alleged that Respondent, Vilter Manufacturing Cor-
poration, engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act by refusing to reinstate an employee pur-
suant to an arbitration award and threatening to retaliate
against the Union because the Union had filed an unfair
labor practice charge. The charge in this case was filed
on August 10, 1982, by Local 1018 of the United Steel-
workers of America. Trial was held on February 3 and
4, 1983, in Milwaukee, Wisconsin, before Administrative
Law Judge William A. Pope II.
FINDINGS OF FACT
I. BACKGROUND
The Respondent, Vilter Manufacturing Corporation, is
a Wisconsin corporation engaged in the manufacture of
commercial refrigeration and air-conditioning equipment
at plants located in Milwaukee, Wisconsin. Local Union
1018, United Steelworkers of America (the Union), has
been the exclusive representative of the Respondent's
production and maintenance employees since before
1940. At the time of hearing, the Respondent employed
approximately 321 persons, of whom 80 to 90 were mem-
bers of the bargaining unit.
On August 31, 1981, the Respondent terminated one of
its employees, Jon Weber, allegedly because he failed to
comply with a work directive. A grievance filed by the
Union over Weber's discharge was denied by the Re-
spondent, and then referred to arbitration, on February
8, 1982, pursuant to a collective-bargaining agreement
between the Union and the Respondent. On April 9,
1982, the arbitrator issued his decision directing that
Weber's termination be set aside, and that he be reinstat-
ed within 10 days, without loss of seniority, but without
backpay. However, by letter, dated April 15, 1982, Rich-
ard K. Jones, Respondent's manager of human resources,
notified Weber that he would not be reinstated, because
allegedly he had fraudulently obtained unemployment
compensation. On April 21, 1982, the Union filed a
grievance over the Respondent's refusal to reinstate
Weber. The grievance was denied by the Respondent.
The Union did not seek arbitration, but, instead, subse-
quently filed the unfair labor practice charge in this case.
After being discharged, Weber first filed for unem-
ployment compensation benefits on September 2, 1981.
The Respondent, however, challenged Weber's entitle-
ment to benefits, and, on October 5, 1981, the Job Serv-
ice Division of the State of Wisconsin's Department of
Industry, Labor and Human Relations made an initial de-
termination that Weber had been discharged for miscon-
duct connected with his employment, and denied him
unemployment benefits. That initial determination was
subsequently reversed by the Job Service Division's
Appeal Tribunal, which, after a hearing on November
10, 1981, issued a decision on November 12, 1981, find-
ing that Weber was eligible to receive benefits if other-
wise qualified. Although there is a provision for appeal
of decisions by the Appeal Tribunal, the pertinent Wis-
consin statute specifically provides that benefits will not
1547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be withheld pending expiration of the appeal period or if
an appeal is filed. In any event, there is nothing in this
record indicating that an appeal was filed to the decision
of the Appeal Tribunal in Weber's case.
While the question of his eligibility was being deter-
mined, Weber continued to file weekly unemployment
benefits claim forms with the Job Service Division, but
payment of benefits was withheld pending resolution of
the challenge to his eligibility. Among the questions
asked on the UC-17E claim forms filed with the Job
Service Division by Weber, at least during the period
relevant in this case, were whether the applicant did any
work during the week, whether he was then working,
either full or part-time, and if he had worked or was
working, his wages before deductions, and his employ-
er's name and address. Above the space on the form for
the applicant's signature is a written certification attest-
ing that all questions have been answered correctly and
that the applicant knows that the law provides penalties
for false statements to obtain benefits.
It is uncontroverted that Weber was, in fact, employed
during the 4-week period from September 13, 1981,
through October 10, 1981, and the UC-17E claim forms
for that period which he filled out, signed, and submitted
to the Job Service Division were false, in whole or in
part, with respect to his employment or wages. During
the 4-week period, Weber was employed as a handyman
by Archie Meinez, owner of Echo Lake farms, at a
weekly wage of $280, payable, according to Weber, re-
gardless of how many hours he actually worked.'
On the UC-17E form covering the week of September
13, 1981,2 Weber disclosed his employment by Meinez,
but listed wages of only $47.66. On the first of two UC-
17E forms which he filed for the week of September 20,
1981, Weber listed Meinez as his employer, but entered a
question mark in the space for wages. According to
Weber, when that form was returned to him by Job
Service Division with the question mark circled in red,
he filled out and submitted another UC-17E form for the
same week upon which he answered that he was not
then employed and had not worked during the week. He
left the spaces for wages, employer's name, and employ-
er's address blank. 3 The UC-17E forms which Weber
filed out, signed, and filed for the next 2 weeks, the
weeks of September 27, 1981, and October 4, 1981, state
that he was not then working and had not worked
during either week and contain no entry in the spaces for
wages, employer's name, and employer's address.
It appears that the Job Service Division first ques-
tioned the validity of Weber's claim for employment
benefits for the 4-week period sometime in late Novem-
Weber's wages were not paid on a timely basis though, and on Octo-
ber 26, 1981. the Equal Rights Division of the State of Wisconsin's De-
partment of Industry, Labor, and Human Relations, sent a "Notice of
Wage Claimed Filed" to Echo Lake Farms, stating that Weber claimed
unpaid wages in September 1981 for 2 weeks at $280 per week. It appears
that eventually Weber was successful in obtaining payment of the wages
owed to him by Echo Lake Farms.
2 The calendar week of September 13, 1981, through September 19,
1981, was designated as week "38" by the Job Service Division.
3 At the time of trial, the UC-17E form which Weber filed for that
week, designated as week "39" by Job Service Division, was missing
from Job Service Division's files.
ber 1981, and at some point in early December 1981 a
"hold," suspending payment of benefits, was placed on
his account. Although there is no direct evidence as to
when the "hold" was placed, a representative of Job
Service Division testified that Weber's last benefit claim
payment in 1981 was on December 4, 1981. Copies of
the UC-17E forms submitted by Weber for weeks 38, 40,
and 414 were obtained by the Job Service Division unit
responsible for adjudicating questioned claims on De-
cember 11, 1981. On January 18, 1982, Weber appeared
at the offices of the Job Service Division, where he gave
a written statement, explaining his reasons for the
manner in which he had filled out the three forms.
'Veber apparently did not contest Job Service Division's
finding, reflected on Job Service Division form UC-26,
mailed to Weber about February 16. 1982, that he was
not entitled to unemployment benefits for the 4-week
period and that he had been overpaid $572, which he
had to repay. By form UC-315, mailed on February 19,
1982, Job Service Division notified Weber that it was
withholding unemployment benefits for the 4-week
period from December 5, 1981, through December 26,
1981, to satisfy the requirement that he forfeit unemploy-
ment benefits to compensate for the earlier overpayment
of $572.
The Respondent became aware on February 17, 1982,
of the overpayment of unemployment benefits to Weber
when it received a copy of Job Service Division form
UC-26, entitled "Initial Determination of Benefit Eligi-
bility," 5 stating that Weber had been overpaid $572, be-
cause he had gross wages equaling or exceeding the
weekly benefit rate during the weeks of September 19,
1981; September 26, 1981; October 3, 1981; and October
10, 1981. By letters of March 1, 1982, and March 3, 1982,
addressed to Weber, Richard K. Jones, the Respondent's
manager of human resources, gave Weber until March 5,
1982, to prove that he paid back the overpayment to Job
Service Division, and, as demanded in the second letter,
to disclose who his employer had been during the 4-
week period in September and October 1981. Although,
it appears, Weber did nothing to comply with the March
5, 1982 deadline imposed by Jones, the matter of the
overpayment was raised during the March 8, 1982 hear-
ing on Weber's claim for 15 percent increased work-
man's compensation, in which the Respondent participat-
ed, and, by letter of March 12, 1982, the Respondent's
attorney in that proceeding, Nonald J. Lewis, transmit-
ted to the hearing examiner a copy of Job Service Divi-
sion form "UC-315," showing that the $572 unemploy-
ment benefit overpayment to Weber had been repaid. 6
4 Numbers assigned by Job Service Division to the weeks of Septem-
ber 13. 1981; September 21, 1981; and, October 4, 1981. Apparently the
UC-17E form for the week of September 20, 1981 (week "39") was miss-
ing front Job Service Division's files at that time.
' Richard K. Jones, the Respondent's manager of human relations,
spoke to Weber by telephone on February 17, 1982. concerning the UC-
26 form and asked Weber' intentions with regard to repaying the $572
overpasment At that time, however, Weber had not yet received his
copy of the UC 26 form.
6 According to Attorney Lewis, the form "clearly and unequivocally
demonstrates the truth of Vilter's position, that Mr. Weber did in fact
owe $572, as a result of an attempt to take benefits from the Vilter ac-
count when he wsas not entitled thereto."
1548
VILTER MFG. CORP.
By at least March 12, 1982, therefore, the Respondent
knew that Weber's overpayment had been repaid.
Subsequently, on April 15, 1982, after the arbitrator
had ordered Weber's reinstatement, Jones sent another
letter to Weber stating that Weber would not be reinstat-
ed to his employment because he had committed fraud
upon the Job Service Division and "upon Vilter Manu-
facturing Corporation whose account may be penalized
based upon an adverse impact upon its experience
rating."7 As already noted, a grievance was filed by the
Union on Weber's behalf on April 21, 1982. It quickly
moved to the fifth step of the grievance procedure and
was taken up on April 28, 1982, at a meeting attended by
Weber, and various union and company representatives,
including Jones. At the fifth step grievance meeting, the
Union presented a copy of the UC-315 form showing
that the overpayment to Weber had been repaid. It is not
disputed that at the fifth step grievance meeting, the Re-
spondent's attorney asked the Union to obtain copies of
the claim forms for the 4 weeks in question, which, he
said, the Company would take into consideration. Be-
cause of difficulties in obtaining copies of the forms from
the Job Service Division, which initially refused to re-
lease them (copies of the claim forms were available for
only 3 of the 4 weeks, the claim form submitted by
Weber for the week of September 20, 1981, being miss-
ing from Job Service Division's files), copies of the
forms had not been provided to the Company by May 6,
1982,8 when the Company prepared a letter to the
Union, stating that it had denied Weber's grievance. It
was not until June 3, 1982, that Job Service Division no-
tified the Respondent's attorney, Barton M. Peck, that
the forms for weeks 38, 40, and 41 would be mailed di-
rectly to Weber.
Also having a bearing on this case is a sequence of
events following an on-the-job injury to his right hand
suffered by Weber on July 11, 1979. While recovering
from the injury, Weber remained off work unti Septem-
ber 22, 1980, during which period of time he intermit-
tently drew temporary total disability benefits. On
August 6, 1981, Weber, through his attorney, to whom
he was referred by the Union, filed for 15 percent in-
creased compensation under Wisconsin law, based on an
alleged failure of the Respondent to furnish a safe place
of employment. A hearing on this matter was held in
Milwaukee, Wisconsin, on March 8, 1982. By interlocu-
tory order, dated April 12, 1982, the hearing examiner
ordered the Respondent to pay 15-percent increased
compensation to Weber and to pay his attorney's fee.
I Respondent's UC Reserve Account, to which Jones referred, actually
was restored upon Job Service Division's determination in February 1982
that Weber had been overpaid. Hence, there was no possibility that
Vilter's account would be penalized.
B The Respondent's attorney sent a letter to Job Service Division on
April 29, 1982, stating that Weber was legally entitled to obtain copies of
the forms. The letter also stated that "Mr. Weber denies any wrongdoing
and relies on representations he claims he had made on the above docu-
ments (UC-17E claim forms). The Company has agreed to consider the
contents of these claim forms as a basis for reevaluating its action, pro-
vided that the Company is satisfied that he did not engage in the claimed
misconduct."
II1. ISSUES
There are two broad issues in this case: 9 (1) Did the
Respondent violate Section 8(a)(1) and (3) of the Act by
discriminatorily refusing to reinstate Weber pursuant to
the arbitrator's award, in retaliation for Weber's success-
ful prosecution, with union assistance, of his grievance
over his discharge, and his filing a claim for 15-percent
increased workman's compensation as the result of a
hand injury which he sustained while working for the
Respondent; and (2) did the Respondent violate Section
8(a)(1) and (3) of the Act by threatening to retaliate
against the Union because it filed the unfair labor prac-
tice charge in this case or because the Union refused to
grant to the Respondent midterm contract concessions.
Counsel for the General Counsel argues that the Re-
spondent was motivated by antiunion animus when it re-
fused to reinstate Weber pursuant to the arbitrator's
award, and that its claim that it refused reinstatement be-
cause Weber had committed fraud against the Company
and the State of Wisconsin by fraudulently claiming and
receiving unemployment compensation benefits, was, in
fact, a mere pretext. According to the General Counsel,
Weber lacked the specific intent to commit fraud; he
filed false unemployment compensation claims for a 4-
week period only for the purpose of keeping his claim
open, and not for the purpose of obtaining money to
which he was not entitled. The Respondent's true mo-
tives are revealed, according to the General Counsel, by
its refusal to listen to or accept Weber's explanation for
his actions, and by the disproportionate punishment im-
posed upon Weber in comparison to that imposed upon
other employees who obtained unemployment compensa-
tion benefits to which they were not entitled. Finally, as-
serts the General Counsel, the Respondent admits that
Richard K. Jones, its human resources manager, threat-
ened to wage war on the Union, as alleged in the com-
plaint. The only questions remaining, argues the General
Counsel, are the date of the threat and the context in
which it was made. It makes no difference, says the Gen-
eral Counsel, whether the threat was made against the
Union because of the grievance filed on behalf of Weber,
or because the Union refused to agree to midterm con-
tract concessions requested by the Respondent. In either
event, concludes the General Counsel, the threat consti-
tuted a violation of Section 8(a)(1) of the Act.
The Respondent, for its part, argues that it did not
violate the Act by refusing to reinstate Weber, because
Weber knowingly falsely claimed unemployment com-
pensation benefits to which he was not entitled, and,
therefore, engaged in a scheme to defraud both the Re-
spondent and the State of Wisconsin. It is well estab-
lished, contends the Respondent, that an employee who
engages in a scheme to defraud his employer of unem-
ployment compensation benefits should not be reinstated.
9 The issue of deferral to arbitration does not arise with regard to the
unfair labor practice charge that the Respondent failed to comply with
the arbitrator's award ordering reinstatement. The question here is
whether by its conduct the Respondent. in effect, rejected the principles
of collective bargaining when it refused to honor the arbitration award.
The Board has indicated that deferral to arbitration is not appropriate in
such cases. United Technologies Corp., 268 NLRB 557 (1984).
1549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent argues that there is simply no evidence
to support the General Counsel's claim that it refused to
reinstate Weber because he had engaged in activities pro-
tected under the Act. The Respondent contends that it
has historically challenged this very form of misconduct
by invoking appropriate discipline. The Respondent as-
serts that Weber did not act out of impulse, but on four
different occasions certified that information which he
submitted in order to obtain unemployment benefits was
truthful, when in fact it was false. The Respondent notes
that even the arbitrator found that it had been tolerant in
the past by not discharging Weber earlier upon his
record of persistent errant behavior. The only feasible
action to be invoked, says the Respondent, upon disclo-
sure of Weber's unemployment compensation fraud, was
his termination. Relying upon what it considers to be the
law of the case, the Respondent concludes that where, as
here, an employer demonstrates a good ground for dis-
charge of an employee apart from union animus or union
activity, the Board must find an affirmative and persua-
sive reason why the employer rejected the good cause
and chose a bad one. In this case there has been no such
showing.
III. FINDINGS AND CONCLUSIONS
There is no dispute that the unemployment benefits
claim forms which Weber filled out and filed with the
State of Wisconsin for the 4-week period beginning
about September 13, 1981, contained material falsehoods.
On the claim form for the first of the 4 weeks, Weber
substantially understated his earnings from other employ-
ment. On the claim forms for each of the following 3
weeks, he falsely stated that he was unemployed and had
no earnings, when, in fact, the opposite was true. But,
while admitting the fact that the claim forms which he
filled out, signed, and submitted to the State of Wiscon-
sin were false, at least with regard to his employment
and earnings, Weber contends that he had no intent to
defraud or to obtain money under false pretenses. In-
stead, he asserts, he was afraid that if he disclosed his in-
terim employment and earnings, his claim for unemploy-
ment benefits based on being wrongfully fired by the Re-
spondent would have been closed, and, to avoid that, he
concluded it would be better not to disclose the true
facts concerning his interim employment and earnings,
and "to let everything run its course and that it would be
straightened out in due time." I find this explanation to
be unbelievable.
At trial, Weber sought to portray himself as a person
of limited education and understanding, who acted out of
ignorance rather than bad intent. Among other things,
Weber testified, no one had explained to him that the
filing of claim forms would result in payment of benefits,
and, in fact, he did not receive any benefits until early
1982. Further, he did not understand some of the words
on the claim forms (such as the meaning of the words or
phrases "calendar week," "certification," "penalties," and
"Federal Subsistence Allowance for vocational rehabili-
tation"). In any event, he said, he merely copied from an
old form when filling out some of the false claim forms,
without actually reading either form. Thus, contends
Weber, he may have been mistaken in what he did, but
his intention was only to keep his claim alive until he
could clear his discharge record.
I find, however, that Weber's attempt at self-denigra-
tion is not only unsupported by, but is contrary to, the
record. In fact, I find that he is an alert individual, who
is aware of his surroundings, and quite capable of func-
tioning adequately in the conduct of his day-to-day af-
fairs. He is a high school graduate and has completed
several courses at the college level. While that, alone, of
course, does not guarantee literacy, it makes implausible
his claim that he could not read or understand writing
well enough to realize that by filing a paper entitled
"Claim For Wisconsin Unemployment Benefits" he was
applying for payment of money. Indeed, if not to obtain
money, one wonders just why he submitted any of the
forms, which covered a much longer period than the 4
weeks in question here. Weber's contention that he did
not read some of the forms as he filled them out, by
copying from other forms which he had filled out earli-
er, appears to be an attempt to excuse his actions by rais-
ing the additional defense that the falsification of some of
the forms was inadvertent. Not only is such a defense fa-
tally inconsistent with his basic defense that he supplied
false information only to keep his claim alive, it also is
implausible, as well. The questions to which he supplied
false answers or failed to provide answers (for example,
"Did you work in that week?") were simple and direct,
permitting no reasonable doubt concerning the informa-
tion requested, and they were short in length, making it
unbelievable that he would forget from one week to the
next what information was being requested, or, even,
that he could copy answers to the questions without, at
the same time, reading the questions he was answering.
Viewed from a different perspective, Weber's actions
in relation to his employer, the Respondent, over a
period of several years consistently reflected his desire to
vindicate himself and a perceptive awareness on his part
of his options in securing for himself every available ad-
vantage. Beginning with the injury to his hand, Weber
availed himself of his right to workmen's compensation,
and, subsequently, was successful in obtaining 15-percent
increased compensation as a penalty for the Respondent's
violation of Wisconsin law by failing to maintain a safe
workplace, a procedure which not only involved filing
an application, but an adversary hearing, as well. Then,
on being discharged from his job by the Respondent,
Weber exercised his grievance rights, applied for, and
obtained, over the Respondent's objections, unemploy-
ment benefits, participated in an arbitration proceeding
which involved a hearing at which he testified, and par-
ticipated in another grievance proceeding after being re-
fused reinstatement by the Respondent.
Considering all of these facts, I find that Jon Weber
fully understood and appreciated the nature and conse-
quences of his actions, and that his filing of the false un-
employment benefits application forms was a deliberate
and conscious act intended to withhold pertinent infor-
mation from the State of Wisconsin, which he felt might
adversely affect his entitlement to unemployment bene-
fits, in order to win a favorable ruling on the question of
his eligibility to win benefits. While it may be that
1550
VILTER MFG. CORP.
Weber's primary motive for falsifying the four applica-
tion forms in question was to make sure that earnings
from interim employment would not prevent him from
receiving a hearing on his entitlement to unemployment
benefits based on being fired by the Respondent, I do not
believe his claim that he always intended at some later
time to disclose the true facts concerning his interim em-
ployment. More accurately, I find that he intended to
disclose the true facts only if his claim for benefits for
the 4-week period was ever questioned.
Although Weber professes that his main objective was
to get a hearing on the initial denial of unemployment
benefits, when he actually received that hearing in No-
vember 1981, he made no disclosure of his falsification of
four false unemployment benefits claim forms which he
had filed. Indeed, he said nothing on the subject until the
Wisconsin Job Service Division discovered irregularities
in the claim forms, put a hold on further payment of ben-
efits in December 1981, and called Weber in for an inter-
view. It was only upon being confronted that Weber dis-
closed that he had falsified the 4 weekly claim forms.
Further, although Weber testified that he never received
any payment of benefits for the 4 weeks in question, I
find that he did. A representative of the Wisconsin Job
Service Division testified that all back checks, including
those, for the 4 weeks in question, were released when
the Appeal Tribunal decided on November 12, 1981, that
Weber was eligible to receive unemployment benefits. A
further hold was not placed on Weber's account by Job
Service Division until sometime in December 1981, and,
when restitution was subsequently made by Weber for
the overpayment for the 4 weeks of ineligibility, it was
by forfeiture of 4 weekly benefit checks for the month of
December 1981, which had been withheld by Job Serv-
ice Division.
Based on all of the foregoing, I conclude that Weber
knowingly and willfully falsified the four claim forms in
question, that he knew that if his eligibility was upheld
he would receive payment of benefits for those 4 weeks,
that he was paid unemployment benefits for those 4
weeks, and that he had no intention of disclosing the fal-
sification of information or of declining to accept or
return any benefit payments which he might receive for
the 4-week period, unless the falsification of the claim
was discovered.
Under appropriate circumstances, an employee's will-
ful failure to report his earnings for the purpose of ob-
taining unemployment benefits to which he was not enti-
tled might, as argued by the Respondent, constitute
grounds for the employer to terminate the employee's
employment, or, as in this case, not to reinstate his em-
ployment, as ordered by an arbitrator. See NLRB v.
Mutual Maintenance Service Co., 632 F.2d 1380 (8th Cir.
1980). Counsel for the General Counsel, however, argues
that the Respondent, in refusing to reinstate Weber, was
actually motivated by union animus and a desire to rid
itself of Weber because of his union and protected activi-
ties. Thus, concludes counsel for the General Counsel,
the cases cited by the Respondent in an effort to justify
its refusal to reinstate Weber are inapposite. I agree.
The procedure for deciding so-called mixed motive
cases was set forth by the Board in Wright Line, 251
NLRB 1083 (1980), and approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). Under this procedure, the General Counsel
has the burden of proving that the employee's protected
conduct was a motivating factor in his discharge, or, its
equivalent in this case, the employer's refusal to reinstate
a discharged employee as ordered by an arbitrator to
whom the issue of discharge was referred for binding ar-
bitration under a collective-bargaining agreement. If the
General Counsel meets this burden, the employer can
avoid being held guilty of an unfair labor practice by
proving by a preponderance of the evidence that there
was a business justification for the firing, or refusing of
reinstatement, and the employee would have been dis-
charged or refused reinstatement in any event.
In this case, I find that counsel for the General Coun-
sel has met her burden of proving that union animus and
Weber's protected conduct were motivating factors in
the Respondent's refusal to reinstate his employment, and
that the Respondent has failed to prove by a preponder-
ance of the evidence that there was either a business jus-
tification for its decision or that Weber would have been
discharged (or refused reinstatement) in any event. Ac-
cordingly, I find that the Respondent's refusal to rein-
state Weber's employment, as ordered by the arbitrator,
was an unfair labor practice, in violation of Section
8(a)(l) and (3) of the Act.
There is no doubt that Weber's utilization of the griev-
ance and arbitration procedures contained in the collec-
tive-bargaining agreement, and his reliance on the
Union's assistance were protected activities under Sec-
tion 7 of the Act. Similarly protected were his actions in
filing a workmen's compensation claim following the on-
the-job injury to his hand, and, subsequently, with some
union assistance, in filing for 15-percent increased com-
pensation because of an alleged violation by the Re-
spondent of a Wisconsin statute requiring it to maintain a
safe workplace. The only remaining question of any sub-
stance here is whether Weber's protected activities had
anything to do with the Respondent's refusal to comply
with the arbitration award. I find that there is evidence
of such a connection.
As pointed out by the United States Court of Appeals
for the Seventh Circuit in Midwest Stock Exchange v.
NLRB, 635 F.2d 1255 (7th Cir. 1980), motive is a mental
attitude which may be proved by circumstantial as well
as direct evidence. One item of circumstantial evidence
which the court regarded as particularly important, espe-
cially since it was missing in that case, was a showing of
disproportionate treatment of employees.
As might be expected, there is little direct evidence of
the Respondent's motives for refusing to reinstate Weber.
There is, however, a chain of circumstantial evidence
which quite clearly satisfies the General Counsel's
burden of proving that union animus and Weber's pro-
tected activities were motivating factors in the Respond-
ent's refusal to reinstate him to his former position, as or-
dered by the arbitrator.
Strongly suggestive of improper motivation is the fact
that the Respondent did not act in good faith with re-
spect to the arbitration process. Indeed, the Respondent
1551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly had no intention of reinstating Weber, regardless
of the outcome of the arbitration proceeding, as demon-
strated by a series of remarks made after the arbitration
hearing, but before the arbitrator's decision, by Richard
K. Jones, the Respondent's manager of human resources,
who was in charge of labor relations for the Company.
As testified by Robert Ziegler, Local Union 1018's presi-
dent, he was told by Jones that "[t]here is no way we're
going to reinstate him [Weber]. He's just bad news and
we don't want him around here." On another occasion,
as related by Gregory G. Kozerski, Local Union 1018's
recording secretary, Jones said that even if the arbitrator
ruled in favor of the Union and Weber, the latter "would
be terminated for something else, for falsifying company
documents." On another occasion, Jones told Kozerski
that "what difference does it make which way the arbi-
trator rules, the guy's not going to be back to work any-
ways."
In the context in which it occurred, I find that the Re-
spondent's rejection in advance of the arbitration process
is evidence that it was motivated by a desire to punish
Weber and the Union for taking the case to arbitration,
and to reduce the influence and position of the Union by
showing that it was powerless to intercede effectively on
behalf of the employees. The remarks by Jones indicate
that he was looking for a pretext for rejecting the arbi-
tration process, and found one in the unemployment
compensation overpayment incident. This conclusion is
embodied in his remark that "[h]e's just bad news and
we don't want him around here," the plain implication of
which is that Weber was an irritant and troublemaker.
The conclusion is further supported by the fact that at
the same time the Respondent, through Jones, was tell-
ing union officials that Weber would not be reinstated
under any circumstances, Jones was asking Weber to
provide proof of repayment of the overpayment of un-
employment compensation (which had, in fact, been
made by February 19, 1982) and creating the impression
repayment would end the matter, as, indeed, it had in
similar cases.
The Respondent's antiunion motive for refusing to re-
instate Weber is corroborated by a remark made by
Richard K. Jones several months after the arbitrator's
decision, to the effect that if the Union wanted a war, it
would get it. There is no dispute that Jones made such a
remark, in substance; the only dispute is whether he
made it with reference to the Weber case, as claimed by
the union witnesses, or with respect to the refusal of the
Union and bargaining unit members in August 1982, to
grant midterm contract concessions requested by the Re-
spondent, as claimed by Jones. I find the distinction to be
one without difference since, in either context, the
remark amounted to an explicit illegal threat to retaliate
against the Union because it had engaged in lawful ac-
tions which displeased the Respondent. One of the pri-
mary purposes of the National Labor Relations Act as
stated in Section l(b), is "to provide peaceful and order-
ly procedures for preventing the interference by either
[employees and employers] with the legitimate rights of
the other." For the employer in this case to threaten the
Union with warfare, with all that implies, is obviously
alien to the purposes of the Act and amounts to an unfair
labor practice, in and of itself. But, equally significantly,
it sums up the Respondent's attitude toward the Union
during 1982. For economic reasons, which the Respond-
ent apparently considered compelling, and which must
have existed long before the actual request for conces-
sions was made, it wanted midterm contract concessions
and it was determined to get them whether the Union
agreed or not. The "war" remarks quite clearly show
that the Respondent thought the Union was blocking the
way. There could hardly be clearer evidence of union
animus.
Whatever circumstances prompted the Respondent to
seek the midterm contract concessions in August 1982
doubtless existed in April 1982, when it refused reinstate-
ment to Weber. The Company wanted concessions, and
to get them it was obviously to the Company's advan-
tage that the Union's influence over the employees be
weakened. To accept reinstatement of Weber would
have strengthened the Union's position, a contrary result.
The "war" remarks sums up the Company's view of its
relations with the Union, and can be fairly said to cover
the entire period involved here as far or further back
than February 1982.
The Respondent's refusal to reinstate Weber, as or-
dered by the arbitrator, viewed in the context of his
having sought assistance and his vigorous exercise of his
protected concerted rights, coupled with the "war"
remark by the Respondent's agent Richard K. Jones is
sufficient circumstantial evidence to meet the General
Counsel's burden of proving by a preponderance of the
evidence that the Respondent was motivated by union
animus and a desire to punish Weber for the exercise of
his protected concerted rights. The Respondent was de-
termined to get the upper hand over the Union and it did
not intend to let the Union score a victory by securing
Weber's reinstatement.
Under the Wright Line doctrine, to avoid being fully
guilty of an unfair labor practice at this stage, the Re-
spondent must show by a preponderance of the evidence
that there was business justification for refusing to rein-
state Weber and that he would have been refused rein-
statement in any event. I find that it has failed to meet
this burden.
The Respondent claims that its motives were proper.
Without making any attempt to deny the remarks attrib-
uted to Jones, the Respondent argues that the reason for
refusing to reinstate Weber was the latter's "theft or
fraud relating to the Company." Denial of reinstatement,
says the Respondent, was necessary to deter Weber and
other employees from committing similar frauds in the
future, and was not a punishment disproportionate to
that imposed upon other employees who, in the past, had
fraudulently obtained unemployment compensation bene-
fits. Finally, to buttress its defense, the Respondent notes
that it has no previous record of committing unfair labor
practices.
As proof that its refusal to reinstate Weber was based
on his having fraudulently obtained unemployment com-
pensation benefits, the Respondent points to the letter de-
nying Weber reinstatement, written by Richard K. Jones
to Weber on April 15, 1982, in which Jones said that
1552
VILTER MFG. CORP.
Weber had committed a fraud upon the unemployment
compensation office and upon Vilter, "whose account
may be penalized based on an adverse impact upon its
experience rating." Jones went on to characterize
Weber's conduct as a violation of the Company's rules
dealing with falsification of employment records and
theft or fraud relating to the Company. Jones noted that
he had no alternative but to consider Weber's "actions as
falsification of employment record," because Weber had
failed to disclose by March 5, 1982, who had employed
him during the periods when he claimed to be unem-
ployed.
I find, however, that the letter is no more than an art-
fully drafted coverup of the Respondent's actual motives.
The purported conclusion to be drawn from it, that there
was business justification for the Respondent refusing to
reinstate Weber, is faulty, because it is based on represen-
tations in the letter which are at best half-truths, if not
deliberate misstatements.
The first inaccurate statement made by Jones in his
letter is his assertion that Vilter's "account may be penal-
ized based upon an adverse impact upon its experience
rating." That statement, while it could have been true
before it was determined by the State of Wisconsin that
Weber had received unemployment benefits to which he
was not entitled, was untrue at the time it was made, and
Jones knew it was untrue.
The parties stipulated at trial that:
An employer's account is automatically made whole
for benefits charged against it, which the UC
Agency determines the employee was not eligible to
receive. This payment is made to the employer's ac-
count from the general fund as soon as such deter-
mination has been made by the Unemployment
Compensation Department.
After the stipulation was admitted into evidence, Jones
acknowledged in his testimony that he was aware of the
procedure described in the stipulation prior to the time
Weber was fired in August 1981.
The determination that Weber had received benefits to
which he was not entitled was made by Job Service Di-
vision on or before February 16, 1982, the mailing date
of the UC-16 form recording the determination, a copy
of which was received by Jones. The effect of the deter-
mination by Job Service Division was to automatically
make Vilter's unemployment account whole. The resto-
ration of Vilter's account was not contingent upon col-
lection of the overpayment from Weber; indeed, an em-
ployer is not a party to Job Service Division's collection
procedures. Thus, when Jones wrote his letter of April
15, 1982, to Weber, he knew that Vilter's unemployment
account had been made whole in February 1982, and he
deliberately misrepresented that Vilter might be penal-
ized financially, when he knew that was not the case.
In addition to misrepresenting the possibility of an ad-
verse financial impact upon Vilter as a result of Weber's
actions, Jones exaggerated the significance of Weber's al-
leged failure to provide the name of his employer at the
time he said he was unemployed. While it appears to be
true that Weber did not furnish that particular informa-
tion by March 5, 1982, as demanded by Jones in a letter
dated March 3, 1982,10 the information was irrelevant
and neither wanted nor needed by Vilter. In fact, Vilter's
main concern, as evidenced by Jones in telephone con-
versations with Weber in February 1982, and a letter
dated March 1, 1982, addressed to Weber, was in obtain-
ing confirmation that Weber had repaid the overpayment
of $572 in unemployment benefits which he had re-
ceived. No mention was made in the letter of March 1,
1982, of any requirement that Weber provide the name
of the interim employer, and, so far as this record re-
flects, Jones did not ask for this information in any of the
telephone conversations which he had with Weber in
February. The demand first appears in the letter of
March 3, 1982, which otherwise is merely a recapitula-
tion of the March I letter, and seems to serve no new
purpose.
Not only did Jones not appear to be particularly inter-
ested in the identity of the employer, as the request for it
was obviously no more than an afterthought included in
an otherwise superfluous letter, the information was of
no use to Jones or Vilter. The determination that Weber
had been overpaid unemployment benefits had been
made by the Job Service Division before Vilter was noti-
fied of the determination in February. There was nothing
left for Vilter to do in establishing the overpayment or
the reasons for it. As testified by a representative of Job
Service Division, the employer (in this case, Vilter) is
not considered a party of interest in an overpayment
issue. Neither was the information needed by Vilter to
protect its financial interests. Its account was made
whole as soon as the overpayment determination was
made.
In short, the failure of Weber to disclose the name of
his employer in September 1981, related to no issue of
material concern to Vilter, even assuming that Jones
made a timely request for it and was unable to obtain the
name through any other source (neither of which are es-
tablished in this record). Since Vilter had no need of the
information, the request for it was no more than a ruse
intended to give the appearance of enhancing Vilter's
case for refusing reinstatement.
The charge by Jones contained in his letter of April
15, 1982, that Weber violated the Company's "D" type
rules dealing with falsification of employment records is
nothing more than a red herring introduced to further
confuse the issues and divert attention from Vilter's real
motives. The particular "D" rule to which Jones re-
ferred states, in pertinent part, that "[a]n employee shall
not falsify employment records, job time tickets or pro-
duction records." Weber's actions may have violated an-
other "D" rule (theft or fraud . . . relating to the Com-
pany), as also charged by Jones, but they did not amount
to a falsification of employment records. Jones was not
an employee of Vilter at the time he submitted false in-
formation concerning current employment to Job Serv-
ice Division, and he did not falsify any employment
10 It is doubtful that the letter was even delivered to Weber by March
5, 1982, but, even if it were. Weber was not given a reasonable time in
which to reply.
1553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records which belonged to or were submitted to Vilter,
in which Vilter could have had any proprietary interest.
Finally, and perhaps most damaging to the Respond-
ent's defense that it did not act for any reason inconsist-
ent with the Act, there is a complete' failure of proof that
Weber would have been refused reinstatement in any
event, the other half of Respondent's burden of proof
under Wright Line. In fact, the General Counsel has
proven by a preponderance of the evidence that Vilter's
treatment of Weber was disproportionate to its treatment
of others who obtained unemployment benefits by fraud.
The principal reference in the record to a similar case
is to the case of Joseph Bray. Bray, it appears, was im-
properly paid unemployment benefits for a week in Feb-
ruary 1981, when he actually had been recalled from
layoff. Over the next 9 months, Vilter officials, including
Jones, made repeated unsuccessful demands that Bray
repay the overpayment. Finally, by letter of December
23, 1981, Cyrilla C. Haler, Vilter's personnel manager,
sent Bray a letter stating that unless he brought in a re-
ceipt showing repayment by January 4, 1982, "discipli-
nary action will be forthcoming." When Bray failed to
comply with the ultimatum, his employment was termi-
nated effective January 12, 1982; but, even then, termina-
tion need not have been final, since after a grievance was
filed, Vilter agreed to reinstate Bray if proof of payment
was delivered by the Union by February 5, 1982 (Rich-
ard K. Jones acted for Vilter in the grievance proceed-
ing). According to Jones' letter to the Union's president,
dated February 10, 1982, the grievance was denied ulti-
mately because proof of payment was still not provided.
Thus, in Bray's case, final job termination was imposed
only after a period of 10 months during which Bray was
repeatedly offered but refused the opportunity to avoid
termination by repaying the overpayment.
Further mention is made in the record of the fate of
several other employees who also received unemploy-
ment benefits to which they were not entitled, but few
details are provided. According to the testimony of
Robert Ziegler, the Union's president, in July 1982 he
asked Jones why several foundry employees were not
terminated for claiming unemployment benefits while
they were working. Jones replied, "Those guys are
stupid." Jones, for his part, denied calling anyone stupid,
but acknowledged an employee named Marvel Tyler,
and another employee, apparently named Skale (phonet-
ic), were not terminated. Jones said that in the case of
Marvel Tyler, which he characterized as identical to
Weber's case, Tyler was given eight disciplinary points
and a 1-week layoff. In the other case, that of the em-
ployee named "Skale," who had received I week's em-
ployment compensation to which he was not entitled,
Jones said he told the employee to "take that immediate-
ly back to the Unemployment Compensation Office and
we'll forget it."
The difference in treatment is obvious. The penalty
imposed upon Weber, refusal of reinstatement, which is
the equivalent of termination, was disproportionate to
that imposed by the Respondent on other employees for
similar alleged misconduct. In the Bray case, the employ-
ee was terminated only after he refused to comply with
repeated demands made over a 10-month period to repay
the overpayment of unemployment compensation bene-
fits which he had received. Not only was Bray not ter-
minated until he failed to meet repeated demands for re-
payment, he was offered reinstatement after being termi-
nated if he would make the repayment, and it was only
after he still refused to furnish proof of repayment, that
his termination became final. Termination, it seems, was
never even considered, and certainly not imposed, in the
other two cases, one of which was described by Richard
K. Jones, the Respondent's manager of human resources,
as identical to Weber's case. Jones, himself, admitted that
he told one employee that he would "forget it" if the
employees returned an improperly drawn unemployment
compensation check.
By comparison, Weber was refused reinstatement even
though he had repaid his overpayment of unemployment
benefits by February 19, 1982 (as reflected on the UC-
315 form, bearing that mailing date), almost 2 months
prior to Jones' letter refusing him reinstatement. If there
is one thread of consistency in the examples cited by the
Respondent, it is that the Respondent's primary concern
in cases of this type was making certain that any over-
payment of unemployment benefits was repaid, and
where there was repayment, except in Weber's case, the
Respondent did not choose to impose termination. 1
And, in Weber's case, too, Jones' concern in February
and March 1982, was primarily in obtaining proof of re-
payment. Yet, for reasons which cannot be explained by
the Respondent's treatment of employees in similar or
even identical cases, in April 1982, Jones refused Weber
reinstatement despite repayment.' 2
I reject as superficial and unconvincing the Respond-
ent's contention that Weber's case is distinguishable be-
cause he did not act out of impulse (he repeated his
action on four separate occasions), while Bray, who sub-
mitted only a single false claim, presumably did.13 While
the difference in the number of weeks involved may be
true, it is inconsequential. The burden of proof in show-
ing that Weber would have been terminated in any event
is upon the Respondent. The mere fact that Weber re-
ceived 4 weeks of unemployment compensation to which
he was not entitled, while Bray received only one, stand-
ing alone, proves nothing. There is no rational basis in
this record for differentiating on the basis of I and 4
weeks in deciding whose misconduct was worse. The
fact that Bray may have received unemployment com-
" It is worth noting that the Respondent's plant rules give it the
option of imposing for type "D" rules violations either disciplinary layoff
or discharge. Imposition of the latter punishment is not required.
12 The Respondent makes no claim in its brief that it did not know as
of April 15, 1982, that repayment had been made. Indeed, the record
clearly shows that the Respondent, through its attorney, had possession
not later than March 12, 1982, of a copy of the UC-315 form, bearing the
mailing date February 19, 1982, showing repayment had been made. In
any event, Jones' April 15, 1982 letter adroitly makes no mention of fail-
ure to provide proof of repayment as grounds for refusing reinstatement.
Instead, refusal of reinstatement is predicated upon the alleged failure by
Weber to provide the name of his interim employer, a bit of information,
as previously discussed, which was irrelevant to any concern of the Re-
spondent.
Is The Respondent makes this distinction in both its brief and in a
statement of position. dated September 10, 1982, submitted to Region 30
of the National Labor Relations Board.
1554
VILTER MFG. CORP.
pensation for I week is not evidence that he acted out of
impulse, whereas Weber did not, and, therefore, he is
less guilty than Weber. In fact, no evidence was present-
ed by the Respondent from which it can be concluded
that Bray, or either of the other two employees who
claimed unemployment benefits to which they were not
entitled, acted by mistake, accident, oversight, or out of
impulse, or as a result of any other circumstance which
might mitigate their misconduct. Considering the Re-
spondent's failure to meet its burden of proof by showing
that the misconduct of other employees who were not
discharged, or were offered the opportunity to avoid dis-
charge, was less serious than that of Weber, I find no ne-
cessity to speculate as to factors which might also miti-
gate Weber's misconduct. The point is, the Respondent
has failed to meet its burden of proving that there was
justifiable reason for the disproportionately severe penal-
ty which it imposed upon Weber, compared to the lesser
penalties which it imposed upon other employees who
committed identical or similar misconduct.
In summary, the Respondent has failed to prove by a
preponderance of the evidence that it had business justifi-
cation for refusing to reinstate Weber and that, he would
have been refused reinstatement for the same misconduct
in any event. The Respondent suffered no financial loss
attributable directly or indirectly to Weber's misconduct.
The penalty which it imposed upon Weber was dispro-
portionately severe compared to the penalities imposed
upon other employees for similar or identical miscon-
duct, and the Respondent was unable to make any be-
lievable showing justifying the disparity. Therefore, the
Respondent has failed to show that Weber would have
been terminated (or refused reinstatement) in any event.
Since it kept in its employ other employees whose mis-
conduct was similar or identical, and not demonstrably
less serious, the Respondent's claim that it refused to re-
instate Weber to deter him and others from committing
similar frauds in the future is patently lacking in sub-
stance and merit. And, finally, in light of all this, the
fact, if true, that it may have no previous record of com-
mitting unfair labor practices is simply insufficient to
carry the Respondent's burden of proof under Wright
Line, or to discredit the proof produced by the General
Counsel.
CONCLUSIONS OF LAW
1. Vilter Manufacturing Corporation, the Respondent,
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. At all times material, United Steelworkers of Amer-
ica, Local Union No. 1018, AFL-CIO was a labor orga-
nization within the meaning of Section 2(5) of the Act,
and was the exclusive bargaining representative for pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act of all of the Respondent's production
and maintenance employees, except those employees spe-
cifically excluded from the bargaining unit.
3. The Respondent and the Union were bound by the
terms and conditions of a collective-bargaining agree-
ment covering the period ending August 31, 1981, which
provided, in part, that if a grievance is not settled in con-
formity with the grievance procedure set out in the
agreement, it shall be referred to arbitration before an
impartial arbitrator whose decision shall be final and
binding upon the parties.
4. About August 31, 1982, Jon Weber, a member of
the bargaining unit, was discharged by the Respondent.
A grievance filed by the Union on behalf of Weber over
the discharge was not settled and was referred to binding
arbitration, in accordance with the collective-bargaining
agreement. A hearing on the matter was held before the
arbitrator on February 8, 1982. In an award, dated April
9, 1982, the arbitrator ordered that Weber's termination
be set aside and that he be reinstated to his former em-
ployment within 10 days, without loss of seniority, but
without backpay.
5. On April 15, 1982, the Respondent refused, and has
continued to refuse at all times since then, to reinstate
Weber to his former employment in accordance with the
arbitrator's award, which is binding upon the Respond-
ent.
6. The Respondent refused to reinstate Weber, as
stated above, because Weber joined, supported, or assist-
ed the Union, and engaged in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection, and in order to discourage employees from
engaging in such activities or other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection.
7. By its refusal to reinstate Weber, for the reason
stated, the Respondent committed unfair labor practices
in violation of Section 8(a)(l) and (3) of the Act.
8. About August 20, 1982, or shortly thereafter, the
Respondent, by its agent, Richard Jones, manager of
human resources, committed an unfair labor practice by
expressing the threat to union members that if the Union
wanted a war it would get it, or words to that effect, be-
cause the Union had engaged in lawful actions which
displeased the Respondent, in violation of Section 8(a)(l)
and (3) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in unfair
labor practices, I find it appropriate to order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
The Respondent, having committed an unfair labor
practice by refusing to reinstate the employment of its
former employee, Jon Weber, in accordance with an ar-
bitrator's award dated April 9, 1982, which was binding
upon the Respondent, shall offer Jon Weber full and im-
mediate reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any rights or
privileges, and shall make him whole for any loss of
earnings which he may have sustained as a result of the
Respondent's failure to reinstate him to his former posi-
tion in accordance with the arbitrator's award. Backpay
shall be computed from April 19, 1982, in accordance
1555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651 (1977);
see generally Isis Plumbing Co., 138 NLRB 716, 717-721
(1962).
[Recommended Order omitted from publication.]
1556