Woj-Ski, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1974

214 N.L.R.B. 1025 (N.L.R.B. 1974)

WOJ-SKI, INC.
Woj-Ski, Inc. and International Union , United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 7-CA-10929
November 19, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 12, 1974, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Wok-Ski, Inc., Mt. Clemens, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
proceeding, heard at Detroit, Michigan, on May 28 and 29,
1974, pursuant to a charge filed on February 19, 1974, and
a complaint issued on April 15, 1974, presents the question
of whether Respondent Woj-Ski, Inc., (A) in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended ("the Act"), threatened and coercively interrogat-
ed employees, created or attempted to create the impres-
sion of surveillance, and announced and granted wage in-
creases for the purpose of inducing its employees to reject
unionization; and (B) in violation of Section 8(a)(3) and (1)
1025
of the Act, discharged employees Robert Pelka, Wesley
Narita, and Beverly Deering because of their activities on
behalf of International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW) ("the Union").
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed by
Respondent, I make the following:
FINDINGS OF FACT
1. THE NATURE OF RESPONDENT 'S BUSINESS ; THE UNION'S STATUS
AS A LABOR ORGANIZATION
Respondent, a Michigan corporation with its principal
office and place of business in Mt. Clemens, Michigan,
manufactures, sells, and distributes steel tubing and related
products. During calendar year 1973, a representative peri-
od, both its purchases from and its sales to points outside
Michigan exceeded $50,000. I find that, as Respondent
conceded at the hearing, Respondent is engaged in com-
merce within the meaning of the Act, and that assertion of
jurisdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events; the Alleged
Violations of Section 8(a)(1)
On various occasions during late 1973 and early 1974, a
number of Respondent's employees, including the alleged
discriminatees, complained about their wages, individually
and in groups, to various members of management. Prior
to February 18, 1974, management's most encouraging re-
sponse shown by the credited testimony was Plant Manag-
er Anthony Wojciechowski's remarks to two or three em-
ployees that "it is in the making," that Company President
Henry WoJciechowski, Anthony's brother, was "working
on it." ' On February 10, 1974, employees Pelka and Nari-
ta, who are cousins, initiated arrangements for a February
12 conference with Union Representative Perry Johnson
about organizing a Union to improve their wages. The par-
' Plant Foreman Janet Cebulski testified that at an employee meeting on
February 8, 1974, she stated that she had talked to plant manager Anthony
Wojciechowski and that "there was a raise coming through, the CPA was
going over the books and when he was finished, then they would be notified
when they would get the raise " She further testified that at the meeting she
ascribed the delay about the raise to cost uncertainties which, for example,
had held up Respondent 's signing a contract with Chevrolet Cebulski testi-
fied that the "whole tube bending department" was present, and specifically
named, inter aha, Monica Yezbick Respondent called both Yezbick and
tube bender Gary Nokken as witnesses, but did not ask either of them about
this meeting Further, Respondent called Anthony Wojciechowski as a wit-
ness , but did not ask him whether he had conveyed such a message to
Cebulski In view of the foregoing considerations and the demeanor of the
witnesses , I discredit Cebulski's testimony in this respect, and credit the
testimony of employee Narita, the only other witness who testified about the
meeting , that there was no discussion with respect to awaiting the certified
public accountant's report to determine whether a raise could be given, or
renewal of the Chevrolet contract
214 NLRB No. 18
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipants in this conference , which was held after work,
agreed to hold a meeting after work on the following day,
and Johnson told Pelka and Narita to bring with them all
the employees who were interested in joining a Union. Pel-
ka asked what time of the day they should talk to the em-
ployees about signing authorization cards and attending
the meeting . Johnson replied, before or after work or dur-
ing breaks but not during working hours. During this dis-
cussion , both Pelka and Narita signed union authorization
cards.
During breaks and lunchtime the following day, Febru-
ary 13, Narita talked about the Union to all the other em-
ployees in the "front crew ." 2 Also during breaks and
lunch, employee Pelka told about 8 employees that if they
were interested in a Union , they should come to a union
meeting at 4 p.m. that afternoon. In addition , Pelka and
Narita described the planned meeting to employee Deer-
ing, who worked in the "back area." She agreed to come
and to tell the others in her work area about the meeting.
Although the regular work shift at Respondent's plant
ended at 3:30 p.m., from time to time employees were
asked to work later than that, sometimes on 10 minutes'
notice . On the afternoon of February 13, several employees
asked Plant Foreman Janet Cebulski for permission to
leave at 3:30. Thus, Foreman Cebulski credibly testified
that five or six employees asked permission to leave early
on the stated ground that the driver of their car pool, re-
ferred to in this Decision as employee John Doe (see infra,
fn. 7), had a doctor's appointment. About 3:20 p.m., Ce-
bulski remarked, "I might as well let everybody go at three
thirty so they can go to a union meeting ." 3 Thereafter Ce-
bulski asked six or seven employees , including Pelka, to
stay for a few minutes after 3:30 to take a wooden table
apart. Pelka had asked to be excused at 3:30, alleging a
formal droner engagement , but he and the others nonethe-
less complied with her request .4 At about 3:40 p.m., Cebul-
ski approached Narita, who was still working, and in the
presence of employee Denise Newlin asked what time the
union meeting was. Narita falsely disclaimed knowledge,
whereupon Cebulski said, "what do you mean you don't
know, you are the one who set it up." 5
2 Respondent's tube bending department , which employed 15 to 18 per-
sons, was located in the front area of the plant The press department, which
employed 8 to 9 persons , was at the back Owing to the noise of the presses,
the employees in the front shop did not converse with those in the rear
shop, and their work called for the employees to remain in their respective
areas
3 My finding that Cebulski made this remark is based on employee
Pelka's credible testimony On the basis of the witnesses ' demeanor , I do not
credit Cebulski's denial
My finding that he complied is based on Pelka's testimony On the basis
of the witnesses ' demeanor and because Respondent failed to produce
Pelka's timecard for that day , I do not believe Cebulski's testimony that
Pelka refused to work overtime
5 My findings in the last two sentences are based on Narita's testimony
Cebulski denied interrogating any employees on February 13, and testified
that Narita left at the normal time On the basis of the witnesses ' demeanor,
Respondent 's failure to ask its witness Newlin about the incident, and its
failure to produce Nartta's timecard for that day , I credit Narita See Golden
State Bottling Co, Inc, d/b/a Pepsi -Cola Bottling Company of Sacramento v
NLRB, 414 U S 168, 173-174 (1973), N L R B v Ohio Calcium Co, 137
F 2d 721, 727 (C A 6), International Union , United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW) [Gyrodyne Co of
America] v N L R B, 459 F 2d 1329, 1335-39 (C A D C, 1972)
The February 13 union meeting was attended by 10 em-
ployees, including Deering (the only "back shop" employ-
ee present), Narita , Pelka, and Nokken . All those present
signed an attendance list, and all but Narita and Pelka
(both of whom had already signed cards ) signed union au-
thorization cards passed out by Johnson . Nokken gave
Deering about 5 blank cards to distribute to others in the
"back area" 6 Narita and Pelka also took a number of
blank cards on which to obtain employee signatures. John-
son told the employees to return the signed cards to Deer-
ing, Narita, or Pelka, and gave a time and place on which
he himself would be available on the following day to re-
ceive them . During the meeting , employee John Doe had
an epileptic seizure , and others present, including the three
discriminatees , did what they could for him.'
At about 6:45 a.m. the following morning, Cebulski and
employees Narita and Nokken gathered in Cebulski's of-
fice to chat before the beginning of the shift. Cebulski said
that if Respondent signed a contract with "Chevy," a ma-
jor customer , Respondent would not be able to raise prices
and might go out of business , but that if Respondent did
not sign a contract Chevy would probably give its business
to another firm and Respondent could still go out of busi-
ness. After Cebulski made this remark, but still before the
beginning of the shift , Pelka walked in . Cebulski then
asked how many people had attended the union meeting.
Nokken or (perhaps) Pelka replied 10, and Nokken added
that employee John Doe had had an epileptic seizure. Nar-
ita credibly testified that Nokken also named some of the
employees who had helped Doe, but Narita could not spe-
cifically recall whether Nokken named any of the alleged
discriminatees . Pelka and Narita then left the office, leav-
ing Cebulski and Nokken behind them.8
6This finding is based on Deermg's testimony On the basis of the wit-
nesses' demeanor, I do not believe Nokken's denial that she obtained these
cards from him
7 Because of the unjustified social and economic penalties which some
misguided people may inflict on those so unfortunate as to have epilepsy,
this employee may have legitimate personal reasons for not having his name
memorialized in a decision For this reason , this decision seeks to protect his
identity The name of employee John Doe, who did not testify , is given in
the transcript
8 My findings in the foregoing paragraph are based primarily on Narita's
and Pelka's testimony and on Narita 's notes about the incident, which he
prepared that evening and were admitted into evidence without objection or
limitation While Nanka 's notes did not refer to any question asked by
Cebulski , all of the witnesses agreed that she tendered one Both Cebulski
and Nokken testified that the three employees were all in the office when
she entered it, that she came in and , without any preliminaries , asked how
many attended the meeting, without specifying what kind of meeting, that
Pelka replied 10, and that she thereupon left Cebulski further testified that
before tendering this question , all she heard the three employees discussing
was "something about a meeting ," and that it was certain subsequent re-
marks by Nokken which led her to conclude that the subject was a union
meeting Because Nokken ' s and Cebulski's version of the prelude to her
question seems improbable , and in view of the witnesses ' demeanor, I dis-
credit Nokken's and Cebulski's account of this incident to the extent their
version differs from Pelka's and Narita's
Pelka corroborated Narita's testimony ( in effect , denied by Cebulski and
Nokken ) that Nokken told Cebulski about Doe 's epileptic seizure , but Pelka
did not testify that Nokken went on to name employees present who helped
Doe On the basis of the witnesses' demeanor , I credit Narita 's amplification
of Nokken 's remarks However, I am inclined to accept Pelka's testimony
summarized in the last sentence of the text , rather than Narita 's recollection
that Nokken did not remain behind when Pelka and Narita left Further, in
view of Pelka 's testimony that the other three were already present in the
WOJ-SKI, INC.
Later that morning, Nokken asked Cebulski if the em-
ployees would have to pay for their own Blue Cross if the
Union came in;9 she replied that they would.10 Thereafter,
they remained talking at his machine for 20 minutes. That
afternoon, Cebulski told employees Yezbick, Patrick
O'Grady, and Robert LaParl that if a union was organized,
they would all be fired because union shops do not have
part-time employees. She also said that the employees
would have to pay their own Blue Cross; and that Wayne
Gasket, a company down the street, had got the same
UAW representative as Respondent's employees and after
paying their union dues and Blue Cross, only got a 6-cent
an hour raise. 1I
About 3:40 p.m. on February 14, after Narita had fin-
ished work for the day but before he had punched out,
Narita gave a union card to employee Ted Nieman, who
had put on his coat to leave. While Nieman was signing the
card, Cebulski approached them and told Nieman that he
was not supposed to sign it during working hours. Narita
put the card into his pocket, whereupon Cebulski told Nar-
ita to make sure he brought up Nieman's signing the card
at the next union meeting, because he was not supposed to
sign it during working hours. Narita then punched out and
asked Nieman to come with him to see Johnson. The two
employees reported the incident to Johnson, who said that
because Cebulski said the card had been signed during
working hours, Narita should tear it up. He did so, and
Nieman signed another card.l2
office when he entered, I conclude that Narita was mistaken in his testimo-
ny and notes that Pelka was present during Cebulski ' s discussion of the
Chevy contract On the basis of the witnesses' demeanor, I discredit
Nokken's denial that this discussion occurred
9 Respondent had initiated employer-paid Blue Cross and Blue Shield
coverage as of January 2, 1974
10 My findings in this sentence are based on the mutually corroborative
testimony of Pelka and Narita and on Narita's notes made that evening,
which were admitted into evidence without objection or limitation. On the
basis of the witnesses' demeanor, I do not believe Nokken's or Cebulski's
denials.
11 My findings in the last two sentences are based on Pelka's testimony
Patrick O'Grady and LaParl did not testify (Respondent's brief appears to
confuse Patrick O'Grady with employee Ruth O'Grady, who testified that
she was out sick on February 14) Yezbick testified that she was in fact a
part-time employee She further testified that on the afternoon of February
14 she asked Cebulski about the Union, that Cebulski said she was not
allowed to talk about it, and that Yezbick had no other discussion with
management about the Union Cebulski denied that she threatened any
employee on February 14, but did not testify about whether she told any
employee that Cebulski was not allowed to talk about the Union, and was
not asked about the alleged conversation described by Yezbick On the
basis of the witnesses ' demeanor , I credit Pelka's version of this incident
12 My findings in this paragraph are based on Narita 's testimony Nieman
did not testify Cebulski testified that this incident occurred prior to the 3.30
end of the shift On direct examination , she testified that she thought these
employees had "gambling cards" in their possession , and Narita 's terminal
"warning" slip, drawn up by Cebulski , asserts, inter aba, that Narita was
"soliciting gambling cards during working hours ." On cross-examination,
she testified that "they" were "signing" or "writing on some paper, card
playing cards, whatever you want to call it," and that the employees put
away whatever they were writing on so quickly that she did not know the
color-which is a rather strong shade of green . In view of the vacillations
and improbabilities in Cebulski's testimony about this incident on cross-
examination, the considerations summarized infra in connection with
Respondent's explanations for Nanta's discharge, the February 14 date on
Nieman's authorization card , and the witnesses ' demeanor, I credit Narita's
testimony over Cebulski's notwithstanding the failure of counsel for the
General Counsel to ask Johnson about his related conversation with the
1027
Both Wojciechowskis had been absent from the plant on
February 14. On February 15, Plant Manager Anthony
Wojciechowski came into the plant by 7:30 a.m., and at
least an hour earlier than usual." Contrary to Cebulski's
usual custom during working hours, that day she was in the
management front office "quite a bit." As set forth in detail
infra, at the close of business on that day Respondent dis-
charged Pelka, Narita, and Deering. Counsel for the Gen-
eral Counsel alleges, but Respondent denies, that their dis-
charge was motivated by their union activity.
On Monday, February 18, Cebulski called first the tube
benders and then the press operators together. Anthony
Wojciechowski announced to both groups that the employ-
ees were to receive an immediate 10-cent hourly increase,
and another nickel each of the following 3 months.14 This
was the first occasion in at least 3-1/2 years that Respon-
dent had called a meeting to announce a raise. The first of
these promised raises became effective at the beginning of
the next 2-week pay period, which ended March 9, 1974,
and the others were granted on the announced schedule.15
On the day after the raises were announced, Respondent
received the Union's bargaining demand, dated February
15, and asserting that the Union represented a majority of
the production and maintenance employees at
Respondent's Mt. Clemens plant.16 Respondent never re-
plied to this letter. The Wojciechowskis testified that the
decision to grant the raise was made on February 14.
When asked what factors were taken into consideration in
determining the raise, Henry Wojciechowski testified:
The factors that we had to take into consideration
in considering raises is that we work on a percentage
rate when we quote to the big three and if the people
asked us for a raise we just can't grant it to them. We
have got to go to either Chevrolet or Chrysler, the
Chrysler people and when they grant us the increase,
which 1-if I may inject , the people were told this last
year when we get an increase from Chrysler Motor
employees Respondent does not claim that it had a no-solicitation rule
1 This finding is based on Deering 's testimony that employee Denise
Newlin told her at 7 30 a.m that he was already in Because Deering's
testimony was received without objection and Respondent did not ask its
witness Newlin about this incident, I accord full weight to Deering 's hearsay
testimony notwithstanding the possibility that Newlin may have based her
statement on the presence of his car in the parking lot, where it had been left
overnight. Accordingly , I reject his testimony , which attached successively
later times to his arrival and was uncorroborated by either Cebulski or
Henry Wojciechowski , that he arrived "about eight fifteen or-no, that
morning I came in- it was about nine o'clock , nine or nine fifteen."
14 My findings as to the substance of this announcement are based on
Anthony Wojciechowski 's credible testimony He had a clearer recollection
of the meetings than either press operator Burnette or tube bender Bartholo-
mew, and I credit these employees ' testimony about it only to the extent
consistent with Anthony Wojciechowski's
15 Bartholomew's testimony is consistent with the finding in the text ac-
cepting, as I do, his February 13 union authorization card's statement that
his wage rate was $240 Bartholomew had a poor memory, and I think he
was mistaken in testifying that his February 15 rate was $2.45 and not $2 40
16 As of February 15, Respondent had about 24 production employees A
total of 19 union authorization cards were received into evidence, all of
them dated before February 15 (the date on the face of the demand letter)
and received by the Regional Office on February 19 Respondent appears to
concede the authenticity of all these cards , but to dispute the operative
effect of at least some of them This last issue was not litigated at the
hearing , because counsel for the General Counsel does not seek a bargain-
ing order
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Car Company, we will give them the raise and when
we got it they got their raise.
No member of management testified about when, if ever,
Chevrolet or Chrysler gave Respondent an "increase." As
previously found, before the beginning of the February 14
shift Cebulski remarked to several employees that "if we
didn't sign a contract that Chevy would probably give it to
another company and we could still go out of business."
B. The Allegedly Discriminatory Discharges
1. The General Counsel's evidence
a. Pelka and Narita
Narita was hired by Respondent in September 1971 as a
tube bender at $2 an hour. He received about four raises as
a tube bender, and at the time of his separation on Febru-
ary 15, 1974, he was receiving $2.40 an hour. Except for the
incidents described supra, fn. 12, infra, fn. 23, and attached
text, it is undenied that while working for Respondent he
was never reprimanded, disciplined, called into the office,
or told that his work was unsatisfactory.17 It is also unde-
nied that he had no unexcused absences and was tardy
about three times, all his tardinesses having been excused.
Pelka was hired by Respondent in October 1972 at $2.10
an hour. He received about three raises, and at the time of
his separation on February 15, 1974, was receiving $2.40 an
hour. Foreman Bartley, who was Pelka's immediate superi-
or until January 1974, frequently complimented Pelka's
work. It is undenied that Pelka was never disciplined about
his work, and never received any written reprimands or
warning notices. Further, he credibly testified that he had
never received any reprimands about his work (infra, fn.
37). While working for Respondent, he missed 7 days and
was tardy three times, in each case a better-than-average
record.
Plant Manager Anthony Wojciechowski conceded that
both Pelka and Narita are "good tube benders." As previ-
ously found, Narita and Pelka were the two employees who
initiated the union organizational drive and induced eight
other employees to attend the February 13 union meeting.
At that meeting, both of them took blank cards on which
to obtain the signatures of other employees, and were
named by Johnson as employees to receive cards solicited
by others.18 As previously found, on February 13 Plant
Foreman Cebulski, who was both employees' immediate
superior, correctly told Narita that he was the one who set
up that meeting; and on February 14, reproved Narita for
obtaining employee Nieman's signature on a union card.
Further, Cebulski's testimony attributed to Pelka the an-
swer to her February 14 question about how many employ-
ees attended the February 13 union meeting.
Pelka's duties included packing shipments, and Narita's
duties included helping Pelka as required. At the end of the
17 Cebulski credibly testified that on February 13 or 14, 1974, she asked
Narita why he was walking around, and he replied that he was looking for
something to do She made no claim that his reply was untrue
is However, Pelka testified that he did not solicit any cards during breaks
shift on Friday, February 15, Narita, apparently in accor-
dance with his usual custom, went into Cebulski's office to
ask Pelka whether he had any extra packing which re-
quired Narita's help. Cebulski came up and asked Pelka
how many more truckloads of material had to be shipped
out, and he replied two. Cebulski then told them to put on
their coats and come with her to the timeclock. When they
reached the timeclock, she told them to punch out. Narita
asked why. She replied that she had to fire them for "solici-
tating [sic] and turning the employees against the owner of
the company." 19
Both Narika's and Pelka's personnel files contain an
"Employee Warning Notice" made out and signed by
Foreman Cebulski on February 15, 1974. Although Re-
spondent ordinarily gives the employee a copy of his warn-
ing notice, neither Pelka nor Narika was even shown his
warning notice. Neither file contains any other warning
notices, and neither employee received a written termina-
tion notice. Narika's notice checks "Conduct" under "Na-
ture of Violation," and stated under "Remarks," "Disturb-
ing other employees, and also soliciting gambling cards
during working hours. App. 3:10 P.M." Pelka's notice
checks "Conduct" and "Carelessness" under "Nature of
Violation," and under "Remarks" states "Feb. 7th Bob
Pelka informed me he was quitting on March 8th, 74. He
also had been getting very careless with shipments."
b. Deering
Deering first went to work for Respondent in January
1969 as a press operator at $1.85 an hour. At the time of
her termination on February 15, 1974, she was employed as
a press operator at $2.65 an hour.20 Plant Manager Antho-
ny Wojciechowski believed her to be a "good employee
a good press operator," and Henry Wojciechowski
likewise described her as a "good employee." It is undenied
that she never received either a reprimand or a written
warning notice about anything during her employment
with Respondent (see infra, II,B,2b).
As previously found, Deering was the only employee
from the "back of the shop" who attended the February 13
union meeting . She obtained blank authorization cards
from employee Nokken, who later described to Foreman
Cebulski the incident at the meeting where Deering
(among others) attempted to help employee John Doe dur-
19 Cebulski was not asked about the conversation described in this para-
graph My findings in this paragraph, except for the last sentence , are based
on Pelka's and Narika's mutually corroborative testimony My findings in
the last sentence are based on Pelka's testimony Narita's testimony , and the
notes which he made that evening about the interview and which were
admitted into evidence without objection or limitation , aver that Cebulski
said she had to fire them for "soliciting with the workers," and make no
reference to turning the employees against Respondent 's owner However,
Nanta's notes are demonstrably incomplete in other respects (see supra, fn
8), and Pelka impressed me as having a better memory than Nanka
20 Deering was absent on maternity leave between November 1971 and
April 1972 She incurred an injury on November 18, 1972, while shopping,
and was under medical attention until May 29, 1973, when she brought
Respondent a written release from her doctor Although an April 1973 letter
to Deering from Plant Manager Anthony Wojciechowski shows that he
knew why she had not worked since December 1, 1972, he was unwilling to
take her back She was returned to her old job (without making out a new
application, and without loss of seniority or benefits) by the decision of
President Henry Wojctechowski
WOJ-SKI, INC.
ing his epileptic seizure. (There is, however, no evidence
that Nokken identified Deering by name .) On February 14,
Deering induced press operators Denise Newlin, Bonnie
Burnette, and Dorothy LaRowe to sign union cards. Deer-
ing also asked employee Eleanor Currie and press operator
"Catherine" to sign; but there is no evidence that Currie
signed, and "Catherine" refused on the ground that she
needed her job. In addition, during breaks that day, Deer-
ing talked to all these employees (possibly excepting Cur-
ie) and to employee David Kling about the Union. There
is no evidence that Kling signed a union card.
Late in the afternoon on February 15, press operator
Newlin, who had signed a card at Deering's behest, told
Deering that she had "got the word from the office, from
her sister" Debbie Currie (Henry Wojciechowski's secre-
tary), that "if we got the Union in, the word was out, that
we would have to pay our own Blue Cross and Blue
Shield." 21
On February 15, Deering punched out and left the plant
for the day at 3:15 p.m., as had been her practice for about
6 months (see infra, II,B,2b). At 4:55 p.m., about a half-
hour after she reached home, she received a telephoned
discharge telegram, a copy of which was later mailed to her
at her request. The telegram read:
DUE TO YOUR INDECISION OF EXPRESSING YOUR SELF AS TO
STAYING WITH THE COMPANY YOU ARE FIRED.
WOJ SKI INC.
After being discharged, Deering applied to the Michigan
Employment Security Commission for unemployment
compensation. On March 15, 1974, the Commission issued
the following disqualification ruling, which was apparently
pending appeal at the time of the May 1974 hearing before
me:
Claimant was discharged for failure to punch out at
the end of her shift. Claimant received several warn-
ings prior to her discharge.
It is determined that claimant's discharge was for
reasons constituting misconduct in connection with
the work within the meaning of the Michigan Employ-
ment Security Act.
Therefore, the claimant is disqualified. .
Deering credibly testified without contradiction that Re-
21
This findings is based upon Deering's credited testimony, admitted
without objection from Respondent 's counsel Respondent called Newlin as
a witness , but did not ask her about either this conversation with Deering or
Newlin's conversations with Debby Currie Debby Currie, who testified for
Respondent , denied having any discussions about the Union with either
Newlin , Cebulski, or the Wojciechowskis "up to" February 15, the day after
Newlin signed her union card, but was not asked about such conversations
on February 15, although Deering testified that her conversation with New-
lin occurred late that day
Nevertheless, and notwithstanding Cebulski's February 14 threats of loss
of benefits if the Union came in and the Wojciechowskis' dissembling in
denying February 15 knowledge of the union movement (infra, 11,C,1), I
find Deering 's testimony without probative weight in establishing state-
ments attributable to Respondent
1029
spondent never told her that she was fired for failing or
refusing to punch out, or warned her that she would be
fired for this reason. She further credibly testified without
contradiction that she forgot to punch out two or three
times, the most recent no later than May 1973; that others
also sometimes forgot to punch out; that when this hap-
pened the employee took his card to Cebulski, who would
mark the time and initial it; and that Deenng had never
heard Cebulski reprimand or discipline anyone for not
punching out. Company President Henry Wojciechowski
testified that he knew of no occasion when Deering "re-
fused" to punch out, and cited no occasion when she had
failed to do so.
2. Evidence bearing on Respondent's explanations for the
discharges
a. Pelka and Narita
Respondent's counsel stated at the outset of the hearing
that Pelka and Narita had "during the previous week or
two prior to the discharge . . . been going around annoy-
ing workers at their jobs, had been paying no regard to
their employment, their job and the nature of their job, the
duties they were responsible for and they had been
warned." Cebulski testified that on two occasions in Feb-
ruary 1974, she reported to Plant Manager Anthony
Wojciechowski that Narita was "doing an awful lot of
walking around disturbing the workers." She did not testify
that she made any similar reports about Pelka. Anthony
Wojciechowski did not corroborate her testimony that she
made such a report about Narita, and did not testify that
she made such a report about Pelka. Anthony Wojciechow-
ski testified that it was he who decided to discharge Narita
and Pelka, but he did not testify on direct examination that
he discharged either of them for annoying other workers at
their jobs. On cross-examination, he admitted that he had
told a Board agent that Pelka was discharged partly for
soliciting on the job, and further testified that he decided
on February 15 to discharge them because he had seen
them together huddling and they broke up when he
came-an incident to which he referred on direct examina-
tion, but without then stating in terms that it affected his
discharge decision.
Anthony Wojciechowski testified on direct examination
that he decided on February 15 to discharge Pelka and
Narita because of an "accumulation" of their offenses,
which at this point in his testimony he specified as an al-
leged "power struggle" between them over the then vacant
leader's job and their alleged mispacking "for months." His
testimony on direct examination did not refer to the quit
notice described in Pelka's terminal "warning" notice; on
cross-examination, Wojciechowski testified that he re-
ceived such a quit notice through Cebulski;22 that this was
22 Pelka testified that about February 7 he told Cebulski, "I may be leav-
ing March the 18th" because his wages were too low . Cebulski testified that
Pelka told her that he "was leaving on March the 8th," the date specified on
his terminal "warning notice", the record fails to show the date on which
she reported this to Anthony Wojciechowski Because March 8 fell on a
Friday and March 18 on a Monday, I credit Cebulski as to the date given
Continued
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"one of the reasons why I fired" Pelka; and then that
"That wasn't-no reason at all." Still on cross-examina-
tion, he testified that the "main reason" he discharged Nar-
ita was Narita's alleged statement that he had applied else-
where for a job and expected a call in a couple of months.
Although Anthony Wojciechowski had told a Board agent
that Narita was discharged at least partly for this reason, it
was not set forth in his terminal "warning notice"; nor did
Anthony Wojciechowski allude thereto on direct examina-
tion. He testified that Cebulski told him that Pelka and
Narita were engaging in a personal "power struggle or
fight" for the leader's job, which was vacated about Janu-
ary 30, 1974; but Cebulski did not corroborate his testimo-
ny in this respect, or even testify that the matter was ever
referred to between them; Narita credibly testified on
cross-examination that he did not want the leader's job; at
the hearing, Respondent's counsel tacitly conceded that
whether Pelka wanted the job was immaterial; there is no
evidence that the matter was mentioned to either of the
dischargees; and their terminal "warning notices" do not
allude thereto-although Wojciechowski testified at one
point in his cross-examination that this was the "principal
reason" for discharging them. Wojciechowski testified that
"for months" he had seen, and/or received reports from
Cebulski, that Pelka and Narita were mispacking and mis-
labelling shipments, and that he had told Cebulski on three
or four occasions (whose dates he was not asked) to repri-
mand them. He elsewhere testified that prior to January 30,
2 weeks before the discharges, leader Bartley (who quit on
that date), and not Pelka and Narita, was responsible for
the shipments. Anthony Wojciechowski testified that he
never directly reprimanded these employees, but that when
he asked Cebulski whether she had warned them, she said
she did. Cebulski did not corroborate his testimony that he
told her to warn them about this matter, or that she told
him she had. Cebulski testified that in early February she
had reproved Pelka for permitting the other employees to
load shipments carelessly, and had reported to Anthony
Wojciechowski (who did not corroborate her testimony
that she so reported) that Pelka was "getting careless in his
job the last few weeks." She did not testify that she had
named Narita in these reports, although as previously not-
ed, she did testify that she had made adverse reports about
him in another respect (i.e., wandering around disturbing
the workers). Both Pelka and Narita testified that they
were never reprimanded about their work.
Cebulski and Anthony Wojciechowski testified that on
Friday, February 15, 1974, she showed him that shipments
had been improperly packed in the truck for delivery to
customers, and that the packing was Pelka's responsibility.
Cebulski testified that she noticed on Friday morning that
the truck was in a "mess," but Anthony Wojciechowski
testified that she did not complain to him about it until
that afternoon. Cebulski testified, but Pelka denied, that
she reprimanded him about the matter; Anthony Wojcie-
chowski testified that he did not discuss the matter with
Pelka and did not discuss it further with Cebulski. When
However, on the basis of the witnesses' demeanor, I accept his testimony
over hers as to the rest of the conversation.
asked whether, after inspecting the load, he conferred with
anyone else regarding Pelka and Narita, Anthony Wojcie-
chowski testified, "Just to know what Henry-1 had men-
tioned it to Henry that I was going to let these people go
because of this." Henry Wojciechowski testified that he
had no discussions regarding Narita's and Pelka's dis-
charge.
On direct examination by Respondent's counsel, upon
being asked for the "entire discussion" when Anthony
Wojciechowski instructed Cebulski to fire Narita and Pel-
ka, she testified:
Well, due to the mess that was on our truck that day
and because I had told them before about it 23 and it
looked like he was getting careless and he also had
reported that he was leaving on March the 8th and
because [Narita] was bothering the people and there
was a time that I caught him over in the lunch area
during working hours and to me I thought it was gam-
bling cards and I asked him to go back to work be-
cause he was still on company time.
On further examination by me, Cebulski testified that An-
thony Wojciechowski told her to tell Pelka that he was
being discharged "because of his carelessness and his atti-
tude," and Narita "for his soliciting." On further examina-
tion by me, Cebulski testified that Anthony Wojciechowski
had told her that in ordering the discharges, he was relying
on her reports regarding the "carelessness," the mess the
truck was in, and the alleged gambling incident involving
Narita. She then said, referring at least to the alleged gam-
bling incident, "I don't know if [Wojciechowski] said all of
this on Friday or not." Immediately thereafter, on cross-
examination, Cebulski testified that Anthony Wojciechow-
ski stated that Cebulski had reported to him that Narita
was "soliciting" and told her to tell Narita that he was
being discharged because of "soliciting" and his "attitude."
Anthony Wojciechowski testified on cross-examination
that the "gambling" reference in Narita's warning slip was
"her doing" and that he himself "wouldn't believe it
though . . . I didn't see it." When counsel for the General
Counsel asked, "And Narita you had Miss Cebulski put in
the file, Narita about gambling with cards and soliciting,"
Anthony Wojciechowski interrupted and said, "No, no."
b. Deering
Respondent's counsel stated at the outset of the hearing,
"Beverly Deering had been warned repeatedly about her
leaving the employment or leaving her place of work early.
She had refused to listen to that. She had been warned. I
believe warnings have been placed in her personnel file and
she was discharged by the owner and president of the com-
pany, Mr. Henry Wojciechowski." Deering's personnel file
contained no warnings. After her discharge telegram had
been received into evidence, I asked Respondent's counsel
whether Respondent was contending instead that she was
discharged for the reason given in the telegram, namely,
23 This is the only evidence that Narita was ever warned about mispack-
ing In view of its lack of specificity and the witnesses' demeanor , I credit
Narita's denial
WOJ-SKI, INC.
alleged indecision about telling Respondent whether she
would remain in its employ. Counsel replied, "No, I think
the telegram was improperly worded," and disavowed any
contention that she was discharged for threatening to take
her vacation and then quit. Respondent's posthearing brief
states:
Beverly Deering was fired for constantly leaving
work at least 15 minutes early for four months preced-
ing her discharge. Her attitude towards the job was
also a factor in the decision to discharge her since she
was dissatisfied with the job benefits she had and was
about to quit her job voluntarily and move to Florida
in the near future 24 Ms. Deering was discharged for
violating company rules and neglecting her duties by
leaving work early.
Henry Wojciechowski testified that on February 15 he
noticed Deering leaving at 3:15, 15 minutes before the end
of the shift; that he asked Anthony Wojciechowski why she
was leaving; and that "he said that she had been warned
on several occasions which Janet [Cebulski] verified on
several occasions to work until three thirty and I says isn't
she abiding by the rules and they said no and I says well let
her go." He testified that he did not confer with anyone
before making the discharge decision. He further testified
that at about 4 p.m. on February 15 he personally prepared
and dictated Deering's discharge telegram When asked
why the telegram did not state that she was being dis-
charged for leaving early, he stated, "Because I can pick on
any three or four reasons and give them to her and I think
every reason I have got is a valid reason ... there was at
least three or four reasons I could put down and every
one's applicable to her discharge . . the reason I gave in
the telegram is good enough." When asked why he had not
given the telegram's discharge reason to the Michigan un-
employment compensation authorities, who were told she
was fired for failing to punch out notwithstanding repeated
warnings, Henry Wojciechowski replied, "Just like I told
you earlier, there is several reasons why I let her go and
that is one of them and the other is why I let her go." At
another point in his testimony, Henry Wojciechowski stat-
ed, in effect, that he discharged Deering for the additional
reason that she was dissatisfied with her wages and bene-
fits. On cross-examination, he testified that if Deering
"would change her mind and come back the way she was a
year ago I would still put her on . . . if she would change
back her opinion, the way she was, a good employee like
she was, I would put her back."
Henry Wojciechowski testified that his decision to dis-
charge Deering was made on Friday, February 15, the day
she was discharged, and Anthony Wojciechowski's pre-
hearing affidavit attaches the same date to the discharge
decision. However, Henry Wojciechowski testified that his
discharge decision was triggered by her leaving at 3:15 on
February 15, while his brother testified at one point that
Henry Wojciechowski told him about the discharge deci-
24 At the time of the hearing, Deenng was living at the same Mt Clemens,
Michigan, address she had had when Respondent hired her 5 years earlier
There is no evidence that she ever moved to Flonda
1031
sion at 2 or 3 o'clock on February 15 (before she left the
plant for the day) and at another point that Henry Wojcie-
chowski told him about it on "a Monday or a Tues-
day"-that is, on February 11 or 12. Henry Wojciechowski
testified that about 4 p.m. on Friday, February 15, he told
his secretary, Debby Currie, to make out Deering's final
paycheck; but Anthony Wojciechowski testified that
Deering's check was made out before 3:30 on Friday and
she did not receive it or an oral discharge notice before
leaving that day because she left at 3:15 and was not sup-
posed to leave until 3:30-a practice which allegedly moti-
vated her discharge. 5 Further, although Henry Wojcie-
chowski testified and Anthony Wojciechowski initially and
intermittently testified that the discharge decision was
made by Henry and was due to her leaving early,
Anthony's prehearing affidavit states that he himself made
the decision as a matter of "general housecleaning," and
Anthony later testified that he himself decided to discharge
Deering "due to the accumulation of warnings that were
handed to the employees verbally by me through [Cebul-
ski] and some [Cebulski] herself personally. . . . A week or
so would go by, I would go out there and I would see this
... it would improve for awhile and go back the way it
was." (Deering credibly testified without contradiction that
she received no reprimands.) Anthony Wojciechowski then
went on to testify that although he had known for at least
3 months about Deenng's practice of leaving early, he him-
self decided to get rid of Deering because his brother had
drawn his attention to her practice in this respect (after
Anthony had repeatedly testified that his brother had in-
structed him to discharge her for this reason) and for the
"secondary reason" that "it came back to me that Beverly
Deering was [thinking] of resigning her job after she took
her vacation in April and if she came back, she was going
to resign." He testified that Cebulski had told him approxi-
mately a month earlier about Deering's alleged resignation
plans. Cebulski testified that Deering had been telling her
at least once a month for the last year or two that Deering
was going to quit; that in January 1974 Deering told her
that she was planning on leaving and "meant it"; and that
on this occasion Cebulski believed she was serious. Cebul-
ski further testified that she did not report "each" quit
threat to Henry Wojciechowski "because each time she
told me it wasn't serious" and immediately thereafter testi-
fied that "the last time she told me that she meant it . .
she didn't always say that she meant it." Laying the fore-
going to one side, Cebuiski's testimony contains no sugges-
tion that she reported Deering's alleged January 1974 quit
threat to Anthony Wojciechowski, as he testified she did.
Deering denied indicating in January 1974 that she was
going to go to Florida and terminate her employment; and
also denied that she had ever told management she was
leaving on a particular date. She testified that she and
other employees "always talked [to management represen-
tatives] that we were going to quit because we didn't have
enough money and it was a daily conversation." She also
testified to a November 1973 conversation when she and
Newlin said they were both going to quit after vacation,
25 Respondent called Debby Currie as a witness but did not ask her about
this matter
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cebulski replied that they "always" said that, and "We just
laughed and forgot about it." 26 Although Henry Wojcie-
chowski testified that it was he who dictated Deering's dis-
charge telegram, and the telegram is signed "WOJ SKI
INC.," Anthony Wojciechowski testified that he himself
dictated the telegram and that he signed his brother's name
"Because mainly it's his decision." 27
Anthony Wojciechowski testified that when Deering was
discharged he had known for at least 3 months that she had
been leaving early. On direct examination, he testified that
on two or three occasions, the most recent around early
January 1974, he asked Cebulski whether Deering was still
clocking out at 3:15 and, upon learning that she was, told
Cebulski to tell her that if she did not start clocking out at
3:30, she was subject to being fired .28 Cebulski was not
asked about this matter. Moreover, on cross-examination
Anthony Wojciechowski initially testified that Deering was
not told that she was going to be fired for clocking out
early, and then that he had never warned her or told any-
body to warn her that she would be fired if she continued
this practice. When asked why Respondent had advised the
Michigan unemployment compensation authorities that
Deering was fired for not punching out at the end of her
shift, he testified, "Well, that was a mistake, that's all it is."
Following Respondent's June 1973 abandonment of an
experimental 3:15 quitting time for the whole shop, both
Deering and employee Kyle advised Cebulski that they
would continue to leave at 3:15 because of traffic consider-
ations. It is undenied that Cebulski replied that this was
"all right with Tony" Wojciechowski. Kyle continued this
practice until her January 1974 discharge, which by her
uncontradicted testimony was not for leaving early, and
Deering until her February 1974 discharge. Deering was
not paid for the 3:15-3:30 period during which she did not
work but others did. Kyle and Deering both testified that
no member of management ever directed either of them to
stop this practice. In view of Anthony Wojciechowski's ad-
mission on cross-examination about the absence of warn-
ings directed to Deering, Respondent's failure to ask Ce-
bulski about this matter, and the witnesses' demeanor, I
credit Deering's and Kyle's testimony in this respect.
C. Analysis and Conclusions
1. The alleged independent violations of Section 8(a)(1)
On the basis of the credited testimony, I conclude that
Respondent violated Section 8(a)(1) of the Act when Ce-
bulski (1) threatened that if the Union came in , the em-
ployees would have to pay for their own Blue Cross and
part-time employees would be fired;29(2) told the employ-
26 Repondent called Newlin as a witness, but did not ask her about this
conversation
27 Henry Wojciechowski testified that he dictated the telegram at about 4
p in to Debby Currie, whom Respondent called as a witness but did not ask
about this matter
2a His testimony in this respect also referred to employee Donnisle Kyle,
discussed infra
29 " an employer is free to communicate to his employees any of his
general views about unionism or any of his specific views about a particular
union , so long as the communications do not contain a 'threat of reprisal or
ees on February 14 that they had the same UAW represen-
tative as Wayne Gasket (whose employees, she claimed,
had netted only a 6-cent raise), thereby indicating that she
knew the identity of the UAW representative who had con-
ducted the union meeting the night before and, therefore,
creating the impression that Respondent had engaged in
surveillance over that meeting;30 and (3) interrogated em-
ployees about the time of the union meeting , and how
many attended 31 In connection with my finding of unlaw-
ful interrogation, I note that Narita evinced its coercive
impact by untruthfully disclaiming knowledge of when the
meeting was to be held, that Respondent later discrimina-
tonly discharged three employees who attended the meet-
ing (including Narita, whom Cebulski interrogated about
it), and that Cebulski threatened employees with reprisals
for union activity.
I also conclude that Respondent announced and granted
wage increases for the purpose of inducing its employees to
reject the Union, and thereby violated Section 8(a)(1) of
the Act. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405
(1964). Respondent's opposition to the Union is shown by
Cebulski's threats of reprisal if the Union organized the
plant and by Respondent's discriminatory discharge of
three active union adherents (see infra ). Because the cred-
ited testimony shows Cebulski' s awareness of the union
movement before the February 13 union meeting, because
of Cebulski's admission that she concluded during the Feb-
ruary 14 shift that the employees were holding union meet-
ings, because of Cebulski's private conferences with An-
thony Wojciechowski and the Wojciechowskis' private
conferences with each other on February 13 through 15,
and because of the demeanor of Cebulski and the Wojcie-
chowskis in denying any reference to the union movement
among each other prior to February 19, I infer that no later
than February 15 the Wojciechowskis acquired through
Cebulski her knowledge about the union activity; and I do
not believe the Wojciechowskis' testimony that they first
learned of the union movement when they received the
Union's bargaining demand on February 19.32 Further,
particularly in view of the testimony by witnesses for both
parties about the employees' prior expressions to manage-
ment about dissatisfaction with their wages, I infer that the
force or promise of benefit' He may even make a prediction as to the
precise effect he believes unionization will have on his company In such a
case, however, the prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to demonstrably probable
consequences beyond his control If there is any implication that an
employer may or may not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him, the statement is
no longer a reasonable prediciton based on available fact but a threat of
retaliation based on misrepresentation and coercion, and as such without
the protection of the First Amendment an employer is free only to tell
`what he reasonably believes will be the likely economic consequences of
unionization that are outside his control ,' and not 'threats of economic re-
prisal to be taken solely on his own volition.' N L R B v River Togs, Inc,
382 F 2d 198, 202 (C A 2d Cir 1967) "NLRB v Gissel Packing Co, 395
U S 575, 618-619 (1969)
30 There is no evidence that at this time UAW Representative Johnson
had had any contact with Respondent
31 Capital Broadcasting Corporation, 197 NLRB 1108, enfd 479 F 2d 329
(C A 6, 1973), Armstrong Circuit, Inc, 189 NLRB 93, 100-101 (1971), enfd
462 F 2d 355 (C A 6, 1972).
32 See N L R B v Walton Manufacturing Company & Loganville Pants Co,
369 U S 404, 408 (1962)
WOJ-SKI, INC.
Wojciechowskis believed (correctly) that this dissatisfac-
tion was a principal reason why the employees were seek-
ing union representation. Accordingly, I conclude that the
Wojciechowskis decided to combat the union movement
by removing, through a series of general wage increases, a
principal employee motivation behind it. While Henry
Wojciechowski's testimony, if liberally construed, indicates
that the wage increases were decided upon because of a
price increase granted Respondent by its customers, I can-
not accept this explanation. On the morning of the same
day (February 14) that the increase was allegedly decided
on, Cebulski stated that no new price had yet been agreed
on; and Respondent produced no evidence either that Ce-
bulski was mistaken, or that its customers increased prices
between February 14 and 18.33 Indeed, Henry Wojcie-
chowski testified (although without corroboration from his
brother) that his brother had said a month prior to Febru-
ary 18 that a raise "had to be given to the employees."
2. The allegedly discriminatory discharges
Pelka and Narita were the two employees who arranged
for the February 13 union meeting, which was attended by
more than a third of Respondent's work force, and where
authorization cards were signed by all those present who
had not already done so. Among the employees whom Pel-
ka and Narita induced to attend the meeting was employee
Deering, who at their urging told the other "back shop"
employees about it. Deering was the only "back shop" em-
ployee who attended; but, on February 14, she induced
three other "back shop" employees to sign union cards,
and unsuccessfully solicitied others to sign. By the end of
the day on February 14, 19 of Respondent's 24 employees
had signed union cards, whose collection Union Represen-
tative Johnson had assigned to Pelka, Narita, and Deering.
Also on February 14, Cebulski threatened the employees
with loss of jobs and of benefits if the Union organized the
plant, reproved Narita for soliciting another employee's
signature on a union card, ascertained details of the union
meeting partly by interrogating employees, and evinced
knowledge of the union representative's identity. On Feb-
ruary 15, when the Wojciechowskis returned to the plant
following a 1-day absence, Cebulski (contrary to her usual
practice) spent a period of time in the office while the shop
was operating. At the close of business on that day, Re-
spondent discharged Pelka, Narita, and Deering, none of
whom had previously been warned of possible discharge.
On the next working day, Respondent announced wage
increases to the employees, who had been complaining to
management about their wages before they sought union
33 Cebulski testified that at the February 8 meeting she told the tube
benders that "we had received a contract from Chevrolet wanting us to sign
it that there would not be an increase in price for that year and . . we
couldn't sign that immediately because we didn't know what kind of in-
crease would come through like from Bundy Tubing," a major supplier The
record fails to show when, if ever, Bundy increased prices after a 5-percent
increase in the latter part of 1973, about which Henry Wojciechowski testi-
fied While for reasons previously indicated I do not believe Cebulski's
testimony that she made this statement at the February 8 meeting, such
testimony does indicate that as of February 8 she knew of no price increase
from Respondent 's customers
1033
representation, in order to induce them to abandon the
Union. This sequence of events strongly suggests, to say
the least, that Respondent discharged Pelka, Narita, and
Deering because of their leadership in the union move-
ment.
Such a conclusion gains support from Respondent's ef-
forts to conceal its real reasons for the discharges. Shattuck
Denn Mining Corporation [Iron King Branch] v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9, 1966). Thus, Respondent vacil-
lated about its reasons for discharging these employees.
For example, Respondent advised the Michigan unem-
ployment compensation authorities that Deering was dis-
charged for failing to punch out at the end of her shift, an
explanation which led to their refusal to give her unem-
ployment compensation; but Respondent at no point ten-
dered any such explanation during the hearing before me,
and Anthony Wojciechowski testified that this representa-
tion to the Michigan authorities "was a mistake, that's all it
is." Likewise, although Respondent has from time to time
contended that all three were discharged because they indi-
cated they were going to quit, this explanation as to Narita
was advanced solely during Anthony Wojciechowski's tes-
timony on cross-examination (although he then said it was
the "main reason" for Narita's discharge); was not ten-
dered as to Deering either to her, or to the State unemploy-
ment authorities, or in counsel's opening statement;3 and
as to Pelka was never tendered to him and was not men-
tioned by Respondent's counsel in his opening statement
or (during direct examination) by Anthony Wojciechowski,
who, however, on cross-examination first advanced and
then disclaimed this as a reason. Moreover, although An-
thony Wojciechowski testified at one point that his "princi-
pal reason" for discharging Pelka and Narita was an al-
leged "power struggle" between them for the leader's job,
this reason was not mentioned in counsel's opening state-
ment, or to the employees, or in the terminal "warning
notices." Additionally, in connection with Respondent's
defense, Anthony Wojciechowski testified to certain re-
ports from Cebulski about which she did not testify,33 and
Cebulski to certain reports to him about which he did not
testify 36 Also, in testifying that Pelka and (from time to
time) Narita were discharged for mispacking, Anthony
34 In view of these considerations, the vagueness in Cebulski's testimony
about whether she reported to Anthony Wojciechowski that Deering had
said she was going to quit, Respondent's failure to ask its witness Newlin
about the November 1973 "quit" conversation alluded to in Deering's testi-
mony, and the witnesses ' demeanor, I credit Deering's testimony that she
had never threatened to quit under circumstances which might lead Cebu]-
ski to believe Deering was serious, discredit Cebulski s testimony (which
partially corroborates Deering's) in this connection to the extent they are
inconsistent , and discredit Anthony Wojciechowski's testimony that Cebul-
ski reported to him that Deering planned to resign
35 Namely, the alleged "power struggle" between Narita and Pelka In
view of Cebulski's failure to corroborate Anthony Wojciechowski's testimo-
ny that she made these reports, his vacillation about the part (if any) such
reports played in his discharge decision, and his demeanor , I discredit his
testimony that these reports were made Nor did she clearly testify that she
told him about Pelka's "quit notice " See also infra, In 37
36 Namely, on two occasions in February that Narita was disturbing the
workers, and on one or two occasions in early February that Pelka "was
getting careless in his job the last few weeks ." In view of Anthony
Wojciechowski's failure to corroborate her testimony that she made these
reports, the considerations about Pelka set forth infra, fn 37, and the wit-
nesses' demeanor, I do not credit Cebulski's testimony that she made these
reports about Narita and Pelka
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wojciechowski initially relied on such alleged conduct "for
months" and then admitted that they were not responsible
for the packing until 2 weeks before their discharge. Fur-
ther, the admitted interval between Cebulski's alleged Feb-
ruary 15 discovery of a mispacked truck and her alleged
action in calling it to Anthony Wojciechowski's attention
indicates, at the very least, that their testimony exaggerated
any defects in the packing.37 Furthermore, Respondent's
witnesses gave mutually and even internally inconsistent
testimony about who decided on Deering's discharge, the
date and time of day the decision was reached, who sent
the discharge telegram, whether Anthony Wojciechowski
notified his brother in advance about Pelka's and Nanta's
discharge, and who was responsible for the reference to
"gambling" in Narita's warning slip 38 Further, although
both Wojciechowskis testified that Deering was discharged
for following the practice of punching out 15 minutes be-
fore the end of her shift, Anthony Wojciechowski admitted
that he had known about this practice for at least 3 months
before her discharge, it is undenied that 6 months earlier
Cebulski told her and Kyle that he had given them permis-
sion to follow it, neither employee was ever warned about
it, and Kyle was not discharged therefor. Also, although
Respondent's counsel stated that he "believe[d]" warnings
had in fact been placed in Deering's personnel folder, her
folder contained no such warnings.
Indeed, some of the explanations advanced by Respon-
dent for the discharges smack in themselves of union activ-
ity. Thus, Cebulski told Pelka and Narita that they were
being discharged for soliciting and turning the employees
against the owner of this company," and Anthony Wojcie-
chowski told a Board agent that Pelka was discharged part-
ly for soliciting on the job. However, there is no evidence
that Pelka had solicited other employees for any purpose
other than to obtain their support for the Union; there is
no credible evidence of any other soliciting activity by
Narita; and an antiunion employer might well equate pro-
union activity with turning the employees against him.
Similarly, Anthony Wojciechowski's testimony that he de-
cided to discharge Pelka and Narita when he saw their
heads together "huddling" suggests that this decision was
related to their point activity in initiating the union move-
ment. Further, as found supra, management knew that the
"gambling" incident referred to in Narita's terminal
37 In view of this exaggeration, Narita's testimony that he was never repri-
manded about his work, Cebulski's failure to corroborate Anthony
Wojciechowski's testimony that he told her on three or four occasions to
warn Pelka and Narita about mispacking, and the fact that neither of these
employees received predischarge warning notices, I discredit Anthony
Wojciechowski's testimony about such instructions to Cebulski and
Cebulski's testimony that she reprimanded Pelka about the February 15
incident and about two or three prior instances of alleged mispacking, and
credit Pelka's testimony that he was never reprimanded about his work
38 On the basis of the witnesses' demeanor and the probabilities of the
situation, I find that Anthony Wojciechowski decided on February 15 to
discharge Deering, that he cleared the Deering decision with his brother
and either cleared the Narita and Pelka decisions with his brother or ad-
vised him about them in advance, that Anthony Wojciechowski dictated
Deering 's discharge telegram , and that Cebulski was responsible for the
"gambling" entry on Narita's warning slip However, the critical aspect of
the evidence respecting these matters is not the identity of the management
representatives who took such actions , but the substantial inconsistencies in
the testimony of Respondent's witnesses about them
"warning notice" was in fact an incident where Narita was
soliciting a union authorization card. Likewise sugges-
tive of a union-related discharge motive is Henry
Wojciechowski's testimony that he discharged Deering
partly because she was dissatisfied with her wages and ben-
efits and that he would put her back "if she would change
back her opinion, the way she was, a good employee like
she was" a year ago, which was before the union move-
ment began.
Finally, I conclude that when discharging these three
employees on February 15, 1974, Respondent was well
aware of their leadership in the union movement. The cred-
ible evidence shows that Plant Foreman Cebulski, who was
the immediate superior of all three dischargees, correctly
told Narita on February 13 that he was the one who set up
the union meeting to be held that evening, and on Febru-
ary 14 saw him obtain employee Nieman's signature on a
union card. Further, Cebulski attributed to Pelka the Feb-
ruary 14 response to her question about how many em-
ployees had attended what she admittedly inferred was a
union meeting. For reasons indicated in connection with
Respondent's announcement of a wage increase, I infer
that Cebulski transmitted this knowledge to the Wojcie-
chowskis, and discredit the contrary testimony of
Respondent's witnesses. While there is no direct evidence
that Respondent was likewise aware of Deering's union
activity, I infer such knowledge from the record as a whole
The reasons tendered by Respondent for discharging her
either were manifestly not the real reasons, or in them-
selves suggest that she was discharged for union activity.
At Narita's and Pelka's request, while in the shop on Feb-
ruary 13 Deering told other employees about the union
meeting to be held that evening. She was the only "back
shop" employee who attended the meeting, about whose
details Cebulski sought or otherwise obtained considerable
information, including advance knowledge of its nature
and time, the number of and the identity of at least some
employees present, the identity of an employee and of the
union representative who arranged it, and the identity of at
least some of the employees who, with Deering, tried to
help employee John Doe when he had an epileptic seizure
at the meeting. At that meeting, Deering was named by
Union Representative Johnson as an employee to receive
Union cards, and received blank authorization cards to
distribute among the other "back shop" employees (only
seven in number) from employee Nokken, who later re-
vealed various details about the meeting to Foreman Ce-
bulski. While in the shop, Deering solicited most of the
other "back shop" employees to sign, and obtained a signa-
ture from (inter aha) employee LaRowe, who with Deering
had lunch with Cebulski in her private office on February
14. Moreover, Respondent had only 24 production em-
ployees in all, and Cebulski constantly circulates through-
out the shop when it is in operation, talking every day with
everyone in the plant. Further, the record shows that the
morning of the day after Deering's solicitation of her co-
workers' signatures on union cards, Cebulski (contrary to
her usual custom) spent time during the work shift in
Respondent's office, to which the Wojciechowskis had re-
turned following a 1-day absence from the plant. Taken as
a whole, such evidence leads me to conclude that when
WOJ-SKI, INC.
discharging Deering, Respondent knew of her union activi-
ty. See N.L.R.B. v. Long Island Airport Limousine Service
Corp., 468 F.2d 292, 295-296 (C.A. 2, 1972); Federal Pre-
scription Service Inc., and Drivex Co. v. N.L.R.B., 496 F.2d
813 (C.A. 8, 1974).
For the foregoing reasons , I conclude that Respondent
discharged Pelka, Narita, and Deering because of their
union activity, in violation of Section 8(a)(3) and (1) of the
Act. "Even if there might be a justifiable reason for the
discharge of an employee, if the real motive for the firing is
discrimination because of his union activities or affiliation,
there is a violation of the Act. Wonder State Manufacturing
Company v. N.L.R.B., 331 F.2d 737 (C.A. 6). The true rea-
son for the discharge is the controlling and ultimate fact."
N.L.R.B. v. Challenge-Cook Brothers of Ohio, 374 F.2d 147,
152 (C.A. 6, 1967).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(6) and (7) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
threatening employees with reprisals if the Union came in,
creating the impression of surveillance over a union meet-
ing, interrogating employees about the union activity, and
announcing and granting wage increases for the purpose of
inducing its employees to reject the Union.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging employees Robert Pelka, Wesley Nan-
ta, and Beverly Deenng because of their union activity.
5. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because
Respondent's unfair labor practices included three discrim-
inatory discharges-conduct which "goes to the very heart
of the Act" (N.L.R.B. v. United Mineral & Chemical Corpo-
ration, 391 F.2d 829, 837-838 (C.A. 2, 1968) )-and threats
to engage in unfair labor practices in the future (N.L.R.B
v. East Texas Pulp & Paper Company, 346 F 2d 686, 689-
690 (C.A. 5, 1965) ), Respondent's unlawful conduct leads
me to anticipate that unless restrained, it will engage in
"continuing and varying efforts to attain the same end in
the future" (N.L.R.B. v. Express Publishing Co., 312 U.S.
426, 437-439). Accordingly, I shall recommend that Re-
spondent be required to cease and desist from infringing
on employee rights in any other manner. N.L.R B. v.
Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8,
1965).
I shall also recommend that Respondent offer reinstate-
ment to the three discriminatees, and make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them, by payment to them of a
sum of money equal to that which they normally would
have earned from the date of discharge to the date of a
1035
valid offer of reinstatement less their net earnings during
this period, to be computed in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). In addi-
tion, I shall recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended
Order:
ORDER39
Respondent Wok-Ski, Inc., Mt. Clemens, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals if operations
are organized by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Ameri-
ca (UAW), hereinafter called the Union, or any other labor
organization; creating the impression of surveillance over
meetings of such Union or any other labor organization;
announcing and granting wage increases for the purpose of
inducing its employees to reject the Union or any other
labor organization; and interrogating its employees about
the activities of the Union or any other labor organization
in a manner constituting interference, restraint, and coer-
cion.
(b) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment, or any
term or condition of employment, to encourage or discour-
age membership in the Union or any other labor organiza-
tion, except to the extent such conduct may be permitted
by an agreement in accordance with the proviso to Section
8(a)(3) of the National Labor Relations Act, herein called
the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer reinstatement to employees Robert Pelka,
Wesley Narita, and Beverly Deering, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner
set forth in the section of this Decision entitled "The Rem-
edy„
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to an analysis of the amount of backpay due
under the terms of this Order.
39 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Mt. Clemens, Michigan, copies of
the attached notice marked "Appendix." 40 Copies of said
notice, on forms to be provided by the Regional Director
for Region 7, after being duly signed by an authorized rep-
resentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
40 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT threaten employees with loss of jobs,
loss of benefits, or other punishment if a union orga-
nizes the shop.
WE WILL NOT announce and grant wage increases for
the purpose of inducing employees to reject a union.
WE WILL NOT create the impression of surveillance
over a union meeting.
WE WILL NOT ask our employees about union activity
in a manner constituting interference , restraint, and
coercion.
WE WILL NOT discharge or otherwise discriminate
against any employee in order to discourage member-
ship in International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) or any other union.
WE WILL offer to reinstate the following employees,
and make them whole , with interest, for loss of pay
resulting from their discharge : ROBERT PELKA,
WESLEY NARITA, and BEVERLY DEERING.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
-To refrain from any such activities.
Our employees are free to exercise any or all of these
rights, including the right to join or assist the above-named
Union or any other union. Our employees are also free to
refrain from any or all of such activities except to the ex-
tent that their rights may be affected by an agreement re-
quiring membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of the Na-
tional Labor Relations Act.
WE WILL NOT in any manner interfere with , restrain,
or coerce employees in the exercise of these rights.
WOJ-SKI, INC