Yukon Mfg. Co.

National Labor Relations Board - Board Decisions

Feb 4, 1993

310 N.L.R.B. 324 (N.L.R.B. 1993)

324
310 NLRB No. 42
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There are no exceptions to, inter alia, the judge’s finding, near
the end of sec. II,B,1 of his decision, that the no-solicitation rule
quoted in complaint par. 17(b) (and set out earlier in the judge’s de-
cision) violates Sec. 8(a)(1) because it is not limited to working
areas.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In adopting the judge’s findings in his discussion of the Employ-
er’s Objections 1–4 that the remarks of employees William Allen
and Tom Hunnaman to employee Betty Turner and of then-unit em-
ployee Jim Wilkinson to employee Wesley Pauley did not constitute
objectionable conduct, we do not rely on the judge’s conclusion that
these remarks concerned events that were too remote in time and
possibility from the holding of the election to constitute objection-
able conduct. Nevertheless, we find that the statements made by
these three employees did not create an atmosphere of fear and coer-
cion sufficient to warrant setting aside the election.
Further, even considering the totality of the credited evidence that
the Respondent presented to support its election objections, we do
not find that this conduct rises to the level that is sufficient to war-
rant setting aside the election.
We affirm the judge’s conclusion that employee Robert Belknap
did not engage in objectionable conduct when, according to the testi-
mony of the Respondent’s corporate secretary, Judy Bowerman, he
walked along a line of employees waiting to vote and ‘‘talked to ev-
erybody.’’ In reaching this result, we do not rely on the judge’s find-
ing that ‘‘Bowerman’s testimony only that Belknap walked down the
voting line is no evidence of electioneering at all.’’ As seen,
Bowerman testified, without contradiction, and consistent with
Belknap’s own testimony, that Belknap not only walked down the
line of voters, but that he also spoke to them. Rather, in affirming
the judge’s recommended overruling of this objection, we rely on (1)
the absence of evidence sufficient to establish that Belknap was act-
ing as an agent of the Union and, in any event, (2) the judge’s find-
ing, based on Belknap’s credited testimony, that he said nothing
more than ‘‘hi’’ or ‘‘good luck’’ to the employees waiting in line
to vote.
4 Contrary to the judge, we shall not require the Respondent to
mail a signed copy of the notice to all employees, past and present,
whom it employed during the relevant period here. See Batavia
Nursing Inn, 275 NLRB 886, 892 (1985).
1 All dates are between January 27, 1989, and January 26, 1990,
unless otherwise indicated.
Yukon Manufacturing Company and Teresa
Stockford and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW. Cases 7–CA–
29346, 7–CA–29455, 7–CA–29498, 7–CA–29677,
7–CA–30024, 7–CA–30146, and 7–RC–19061
February 4, 1993
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 19, 1991, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party Union filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions,3 to modify his remedy,4 and to adopt the
recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent,
Yukon Manufacturing Company, Litchfield, Michigan,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
Delete paragraph 2(k) from the recommended Order,
and renumber paragraph 2(l) as 2(k).
CERTIFICATION OF REPRESENTATIVE
It is ordered that a majority of the valid ballots have
been cast for International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, and that it is the exclusive collective-
bargaining representative of the employees in the unit
found appropriate.
Charles F. Morris, Esq., for the General Counsel.
Shelly K. Coe, Esq., of Walled Lake, Michigan, for the Re-
spondent.
Ellen F. Moss, Esq., of Southfield, Michigan, for the Charg-
ing Parties.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act) was tried
before me on eight dates between April 30 and May 16,
1990, at Coldwater, Michigan. The case originated with un-
fair labor practice charges that were filed by Teresa
Stockford, an individual, and by International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW (the Union), against Yukon Manufactur-
ing Company (the Respondent or the Employer). Stockford
filed the charge in Case 7–CA–29346 on June 8, 1989.1 The
Union filed all the other charges on the following dates: Case
7–CA–29455, July 11; Case 7–CA–29498, July 24; Case 7–
CA–29677, September 12; Case 7–CA–30024, December 15;
and Case 7–CA–30146, January 24. Pursuant to a petition for
election that was filed by the Union on August 11, in Case
7–RC–19061 (the representation case), an election among the
Employer’s approximately 127 production and maintenance
employees was conducted by the Board on October 20. The
Union received a majority of the valid ballots cast, but the
Employer timely filed objections to conduct affecting the re-
325YUKON MFG. CO.
2 I have, sua sponte, corrected many errors in the record.
sults of the election. On February 13, 1990, the General
Counsel issued an order consolidating the representation case
with all the charges and all the complaints which had issued
on those charges (the complaint). Respondent filed answers
admitting jurisdiction before the Board, but denying the com-
mission of any unfair labor practices.
On the entire record,2 and my observation of the demeanor
of the witnesses, and on consideration of the briefs which
have been filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
As Respondent admits and I find and conclude that Re-
spondent is a corporation with office and facilities located in
Litchfield, Michigan, and is engaged in the manufacture and
nonretail sale and distribution of automotive parts and related
products during the calendar year preceding issuance of the
complaint Respondent, in the course and conduct of the busi-
ness operations, caused to be manufactured, sold, and distrib-
uted from its Litchfield facilities products valued in excess
of $50,000 to Chrysler Corporation which annually ships
from its Michigan facilities goods valued in excess of
$50,000 directly to purchasers located at points outside
Michigan. Therefore, Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES AND
UNDERLYING REPRESENTATION CASE
Respondent’s principal products are racks that are used by
automobile manufacturers to support automobile chassis dur-
ing assembly. Individuals who were supervisors or agents
within Section 2(11) or (13) at various relevant times dis-
cussed infra are:
Edward Bowerman President
Judy Bowerman Corporate Secretary
Ernie Harman Plant Manager
Richard Barnett General Foreman—Welding
Richard Paille Controller and Office Manager
Robin Boudrie Second Shift Foreman
Scott Bowerman Engineer/Foreman—Tool and
Die
Tom Veatch Foreman—Welding (Line 2)
Joe Edwards Foreman—Welding (Line 2)
Bob Bailey Foreman—Welding (Line 1)
Ron Truitt Foreman—Welding (Back
Line)
Frank Estel Foreman—Pressman
Craig Dirling Foreman—Assembly
Jim Wilkinson Foreman—Inventory
Fred Walls Foreman—Maintenance
Judy Bowerman is Edward Bowerman’s wife; Scott
Bowerman is his son.
The issue in the representation case is whether the conduct
of certain employees destroyed the laboratory conditions that
are required by the Board before results, or a representative,
will be certified. The issues in the unfair labor practice case
are whether Respondent, by certain of its abovenamed
supervisors/agents: (1) violated Section 8(a)(1) of the Act by
conduct such as interrogating and threatening employees,
promising or granting benefits, giving employees the impres-
sion of surveillance, conducting surveillance, establishing and
enforcing overly broad no-solicitation and nondistribution
rules, and laying off employees because another employee
had filed charges under the Act; (2) violated Section 8(a)(2)
by dominating and interfering with the formation or adminis-
tration of a labor organization (the Employee Committee)
and contributing financial or other support to it; (3) violated
Section 8(a)(3) by laying off employees (on June 8, Decem-
ber 12 and 22, and January 12), by failing to recall employ-
ees from the layoffs of June 8, December 12 and 22, and
January 12, by imposing and enforcing more onerous work
rules, by eliminating a perfect attendance bonus program,
and by discharging employee Thomas McClughen; and (4)
violated Section 8(a)(5) by certain unilateral conduct after
the October 20 election including effectuating of the above-
mentioned layoffs, implementing a disciplinary ‘‘point sys-
tem’’ of absence control and disciplining employees under
that system, and implementing a disciplinary drug-testing
program.
Because the 8(a)(5) allegations are necessarily dependent
on the representation case, that matter will be considered
first.
A. The Representation Case
As reflected by the official tally of ballots, the vote at the
October 20 election was 59 for the Union and 49 against,
with 11 challenged ballots. On December 20, by order of that
date, the Board sustained the challenges to two of the ballots,
making the other nine nondeterminative. Therefore, unless
the Employer’s objections to conduct affecting the results of
the election are sustained, the Board, under Section 9(a) of
the Act, will certify the Union as the collective-bargaining
representative of the Employer’s production and maintenance
employees. (The complete unit description is set forth below
in the Conclusions of Law section.)
The Employer’s objections are based on employee con-
duct; to wit:
1. Threatening and coercing employees with reprisals
if they did not vote for the Petitioner at the scheduled
election, including threats of bodily harm and property
damage.
2. Threatening and coercing employees with unequal,
different, unfair and discriminatory representation if
they did not vote for the Petitioner at the scheduled
election.
3. Threatening and coercing employees with unusual,
different, unfair and discriminatory representation on
the basis of unlawful criteria.
4. Harassing, interfering, restraining and coercing
employees in the performance of their duties because
said employees stated [that] they did not want Peti-
tioner as their collective-bargaining representative. Re-
gardless of whether the foregoing conduct is legally at-
tributable to an officer, agent, representative or lesser
functionary of the Petitioner, it created a general atmos-
phere among the eligible employers of confusion and
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Numbering, and sometimes verb tenses, supplied.
4 In this decision, the Union’s in-plant organizing committee will
be referred to as ‘‘the organizing committee.’’ This reference is to
be distinguished from ‘‘The Employee Committee’’ which, as I find
here, is a labor organization (otherwise nameless) that was estab-
lished by the Respondent in violation of Sec. 8(a)(2) of the Act.
5 To hold such in this case would mean that approximately 35 per-
cent of the employees in the bargaining unit were agents of the
Union.
6 Punctuation of this and most other long quotes is supplied.
7 Cf. Steak House Meat Co., 206 NLRB 28 (1973), in which the
Board recognized that threats of bodily harm, even when made by
nonparties and directed at only one voter, may create a ‘‘general at-
mosphere of fear and coercion’’ which will invalidate an election.
fear of reprisal for failing to vote for or to support the
Petitioner.
5. Offer[ing] promises and granting waiver[s] of,
and/or reduction in, initiation fees to [the] eligible em-
ployees contingent upon joining the Petitioner prior to
the election.
6. Engaging in electioneering and prolonged con-
versation with voters waiting in line to cast ballots in
the polling place.3
Much of the alleged conduct that is the subject of the ob-
jections was done by employees who were designated by the
Union as members of its in-plant organizing committee.4
There is no contention, or evidence, that the Union in any
manner fostered, encouraged, or condoned any of the conduct
alleged to have constituted interference with the election. The
Employer contends that the organizing committee members,
solely because they were organizing committee members,
were statutory agents of the Union. Alternatively, the Em-
ployer contends that even if the organizing committee mem-
bers were not agents of the Union their conduct and the con-
duct of two employees who were not members of the orga-
nizing committee (Tom Hunnaman and Jim Wilkinson) cre-
ated an atmosphere which made a fair election impossible.
The Union first assigned International Representative Don
Spillman to the organizational attempt. Spillman conducted
election campaign meeting of employees at various public
places in the Litchfield area on May 19 and 31 and June 6.
International Representative Betty Harrison took over the as-
signment about July l; Harrison conducted employee meet-
ings on July 5, 17, 13, and 25; August 1, 7, 17, 22, and 31;
September 7 and 19; and October 17.
At each of the meetings, the Union made available sheets
of paper that employees could sign to be designated as mem-
bers of its organizing committee. Following the meetings, the
Union, by letter or by telephone, or by both, notified the Em-
ployer which employees, then to date, were members of the
organizing committee. Ultimately, 43 employees were made
members of the organizing committee. Some of the orga-
nizing committee members distributed union authorization
cards, some distributed literature, and some talked to other
employees about joining or supporting the Union; some did
all of those things, some did some of those things, and others
did none of those things.
The Employer argues that each act of campaigning by
members of the organizing committee were actions by agents
on behalf of a principal, the Union.
There is no evidence that any designation of an employee
as an organizing committee member was effective for any
purpose beyond a predicate for charging the Employer with
knowledge of the employee’s union activities. Moreover,
there is no authority for the proposition that members of in-
plant organizing committees are per se agents of the Union
that appoints them,5 and I would not attempt to create such
authority here. However, I need not decide the issue because
of my finding here, as I do, that the employees did not en-
gage in the conduct attributed to them which, if somehow at-
tributable to the Union, would require the setting aside of the
October 20 election.
Undisputed facts relevant to these objections, and testi-
mony of the Employer and union witnesses, and the nec-
essary credibility resolutions, are as follows:
1. Objections 1 through 4
Rick Miller, a supervisor at time of trial but a forklift driv-
er in 1989, testified that on the day before the election em-
ployees Thomas McClughen and Gary Dubois approached
him and asked how he intended to vote. When Miller replied
that it was none of their business, they asked Miller where
he lived. Miller told them that that was none of their busi-
ness either. Then, according to Miller, McClughen ‘‘said not
to worry; the Union’s got your address.’’ Miller testified that
he responded by saying ‘‘that if there was any trouble, I’d
handle it myself, to leave my family alone.’’ Miller further
testified that about an hour later he met employee Kurt
Loomis in a welding area:
And he asked me how I was going to vote and [Il
told him it was none of his business and he wanted to
know where I lived and I said, don’t worry; I’m mov-
ing. And he wanted to know where and I just said out
there and then I went to my supervisor and told him
about it, which is Ron Truitt.6
Miller testified that he believed that there were other employ-
ees in the area when he was approached by McClughen and
Dubois; he first testified that he did not know if they heard
anything that McClughen and Dubois said, then Miller ) stat-
ed that he was ‘‘pretty sure’’ other employees did hear
McClughen and Dubois because McClughen raised his voice
when he stated that the Union had his address. Miller did not
testify that any other employees were present, or could have
heard, when Loomis questioned him. Miller testified that he
discussed the statements by McClughen and Loomis with no
other employees.
Dubois and McClughen denied saying anything to Miller
before the election, and they specifically denied the questions
and remarks attributed to them by Miller. Loomis was not
called to testify.
I believe Miller’s testimony, and credit it accordingly.
However, the testimony falls far short of the kind of serious
threats of harm to body or property which have been found
to constitute objectionable conduct in other cases.7 Indeed,
Dubois and McClughen threatened to do nothing. Moreover,
there was no dissemination of the purported threat; Miller ad-
mitted that he told no other employees about the incidents,
and his testimony that he was ‘‘pretty sure’’ that other em-
327YUKON MFG. CO.
8 At trial Hasbrouck made it clear that he had contemplated with
relish a physical confrontation with the individual who had threat-
ened him. Any dissemination of the threat assuredly would have in-
cluded that attitude.
9 Some employees testified that the movie showed the actual ex-
plosion of a truck; others testified that an actor only reported an ex-
plosion.
10 At the October 20 election, Dooley was challenged by the
Union as a supervisor. His ballot was ultimately ruled nondetermina-
tive, and I need not determine just when he was, and was not, a su-
pervisor here in view of other findings.
ployees would have heard McClughen is not probative evi-
dence of any degree of dissemination. Therefore, this
‘‘threat’’ (standing alone or in conjunction with anything else
found to have occurred here) cannot reasonably be said to
have created any element of a general atmosphere of coer-
cion that would affect the fairness of the election.
Employee Eugene Hasbrouck testified that during the
week before the election, at a time when he was wearing a
‘‘Vote No’’ button, he was approached by a male employee
whom Hasbrouck could not identify. According to
Hasbrouck, the other employee remarked, ‘‘Oh, I see you
want your legs broke too.’’ Hasbrouck replied, ‘‘If you think
you can do it, try it.’’ Hasbrouck testified that no one else
was within earshot of this exchange, but he did tell one other
employee about it.
There is nothing in Hasbrouck’s testimony to indicate that
the threat of leg-breaking had anything to do with the ‘‘Vote
No’’ button that he was wearing at the time and, without
more, I decline to draw the inference. However, assuming
that there was a threat that was premised on Hasbrouck’s
nonunion sympathies, there is no evidence of involvement by
the Union, or even any involvement by any member of the
organizing committee, and, even if there were such evidence,
Hasbrouck’s telling only one employee of the threat is not
probative evidence of dissemination,8 and there could have
been no substantial impact on the election because of the
threat.
During the several weeks before the election, Michael
Grubbs worked as a welder on line 3. Grubbs testified that
on October 18 the Employer showed a movie which at-
tempted to persuade the employees to vote against the Union.
In the movie, further according to Grubbs, there was depic-
tion of a truck being blown up. Grubbs testified that imme-
diately after the movie, at a time when Grubbs was wearing
a ’’Vote No’’ button, from a distance of about 20 feet, ‘‘em-
ployee Craig Hays said he was going to blow my truck up
just like the one in the movie.’’ Grubbs then owned a new
pickup truck. When asked if he told anyone about the threat,
Grubbs testified that he told then Foreman Ed Dooley about
it. On cross-examination, Grubbs was asked if Hays had not
immediately apologized; Grubbs responded that Hays did
apologize, but not until after the election.
The Union called Ronald Truitt who is no longer em-
ployed by the Employer. Truitt testified that before the elec-
tion Grubbs and Hayes worked under his supervision on
welding line 3. Truitt testified that it was ‘‘quite a while be-
fore the election’’ that the movie in question was shown to
the employees. Truitt testified that immediately after the
movie Grubbs reported the Hays incident to him. Truitt took
Grubbs out on to the welding floor and spoke to Hays about
what Grubbs had reported. According to Truitt, Hays apolo-
gized and ‘‘said he was sorry; he was just joking,’’ and the
men shook hands.
Hays, who was still employed by the Employer at the time
of trial, testified that it was 2 weeks before the election that
the Employer showed the employees a movie that depicted
bad things that could happen if a union was voted into a
plant. At one point in the movie, an actor came rushing onto
the scenes and reported to others that a truck had been blown
up in the parking lot.9
Hays testified that the employees in the welding shop had
been brought in in groups of 10 to the movie by Truitt. After
his group saw the movie and had returned to the shop:
[W]e was all joking around in the back and Mike
Grubbs had these ‘‘No’’ buttons on [him] and I said,
‘‘we might blow up your truck, Mike.’’ and we was
chuckling and laughing. I mostly said it—it was being
sarcastic because I was making fun of the movie.
Hays testified that after lunch that day another employee told
him that Grubbs was upset because he thought Hays had
been serious. Hays then went to Grubbs and ‘‘I told him that
I didn’t want him to feel like I was going to be any kind
of a threat to him or that I was going to hurt him or harm
him in any way.’’ Grubbs responded, ‘‘Okay, I knew you
was just joking.’’ Hays further testified that it was after this
that he was approached by Truitt and told he should apolo-
gize to Grubbs. Hays testified that he apologized again.
A second alleged threat by Hays was testified to by Ed-
ward Dolgley, who described himself as a ‘‘substitute fore-
man’’ and class A welder.10 Dooley testified that it was dur-
ing the week of the election that the movie was shown and
that, afterward, on welding line 3, Hays ‘‘was running off at
the mouth threatening to blow up my truck.’’ Dooley was
asked to be more specific:
Q. Do you remember any more specifically than
what you’ve already said what Mr. Hays actually said
to you?
A. All he just said—there’s another, excuse me, but,
goddamn ‘‘no’’ voter. He keeps it up and I’ll blow up
his truck too.
Q. Did you make any reply to Mr. Hays?
A. Oh, yes, I just kind of chuckled and said, ‘‘Yes,
go ahead and blow my truck up; you won’t find it. I
don’t drive a truck.’’
Dooley, in fact, did not drive a truck.
Hays was asked what he told Dooley, and he testified:
I said ‘‘Yeah, you drive a truck too,’’ because he
knew this is after I apologized to Mike Grubbs, and I
said, ‘‘Yeah, you drive a truck too. And I’ll blow your
truck up too.’’ And I laughed and he said, ‘‘Well, I’ll
slit your tires on your car,’’ and just back and forth. It
was just, we was all making fun of the movie because
we was, as far as I’m concerned, we were treated like
elementary kids.
Dooley was not recalled and asked if Hays was laughing
when he made his comment; nor was he recalled to deny that
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I credit former employee/supervisor Truitt and Hays over
Grubbs, who was ready to leave the stand without mentioning any
apology at all.
12 Tr. 173, L. 22 is corrected to change ‘‘truck’’ to ‘‘strike.’’
13 A threat that a violent strike would ensue if a union wins a
Board election would hardly encourage a ‘‘yes’’ vote.
14 This applies to all other incidents of petty bickering and name-
calling described by Turner but not discussed here.
he responded that he would slit Hays’ tires; and I credit
Hays’ testimony to that effect.
The Employer’s objection to the ‘‘threats’’ by Hays is pre-
mised on conduct that it had fomented. It was the Employer,
not the Union or any employee acting on the Union’s behalf,
that had introduced the prospect of violence. It did so by pre-
senting a movie which showed, or described, a truck being
blown up. All the employees knew this, and the Employer’s
presentation must have appeared as an absurdity to them.
Sarcasm would naturally have been induced. For this reason,
I fully believe that Hays was being sarcastic toward Grubbs
and Dooley, and any reasonable employee would have
known it.
Even if Grubbs did not recognize Hays’ sarcasm, and even
if Grubbs did not have reason to believe that Hays was being
sarcastic, Hays apologized, on the same day,11 twice, and
told Grubbs that he had nothing to fear. Therefore, to the ex-
tent there could have been a threat, there was a clear and un-
equivocal immediate retraction.
In the case of the Hays-Dooley exchange, the sarcasm was
necessarily obvious to Dooley. As he testified, he ‘‘chuck-
led’’ as he replied that he would respond with violence of
his own. In these circumstances, there cannot be said to have
been a threat (or an exchange of threats).
Accordingly, I find and conclude that there occurred no
objectionable conduct in Hays’ alleged threats.
Paint line employee Betty Turner testified to several inci-
dents which the Employer alleges as objectionable conduct.
Turner testified that about 1 month before the election em-
ployee Glidden Wallen attempted to get her to sign a card
and, in doing so, stated that those who did not ‘‘was not
going to be working there.’’ Wallen testified, but not on this
point; therefore, I accept Turner’s testimony as true. How-
ever, there is no element of a threat in Wallen’s solicitation,
and no basis for an objection to the election.
Turner testified that early in the week of October 20, as
she walked through a work area, Craig Hays yelled ‘‘traitor’’
at her. Then, according to Turner, ‘‘he picked up his leg to
kick me, and I moved out of the way, and I said, ‘How can
I be a traitor when I was never for the Union?’’’
Hays testified that he once did ask Turner if she was a
traitor; he testified that he did so because during the week
before Turner had worn a UAW T-shirt. Hays denied that he
attempted to kick Turner.
I credit Hays’ denial that he attempted to kick Turner as
she walked through the work area. Moreover, I find Turner’s
testimony that Hays ‘‘ picked up his leg to kick me’’ insuffi-
cient, in any event, to prove that Hays’ action would have
put any reasonable employee in fear of assault. Hays’ con-
duct of telling Turner that she was a traitor, or asking her
if she was a traitor, cannot be considered objectionable con-
duct on any account.
Turner testified that during the week before the election,
the Employer showed a movie in which an actor had stated
that his truck had been blown up. After the movie, the Em-
ployer entertained questions. Ed Bowerman Jr. was there
and, according to Turner:
[It] was a movie about a strike, and I asked him if peo-
ple that wanted to work, if there was a strike,[12] if
they could come in and go to work, and he said,
‘‘Yes.’’ And I said, ‘‘Will you protect us?’’ and he
said, ‘‘Yes.’’ And [employee Tom] Hunnaman sat there
and he said, ‘‘you could just get that nice looking Mus-
tang you got blowed up.’’
I asked Tom, I said, ‘‘are you threatening to blow
up my Mustang,’’ and he just grinned.
Turner’s husband did own a Mustang automobile at the time.
Hunnaman, who was not a member of the organizing
committele,13 did not testify; and, while I am suspicious
about Turner’s testimony, I must credit it as undenied. How-
ever, predictions of what could happen in the case of an
event remote in time and possibility, such as a future strike,
cannot be held to constitute conduct likely to affect the re-
sults of a Board election. Great Atlantic & Pacific Tea Co.,
177 NLRB 942 (1969).
Turner also testified that during the week of the election
when some employees were eating lunch they discussed the
possibility of a strike. According to Turner, she told the
group that she was hired to work and would continue to
work in the event of a strike. According to Turner, employee
William Allen then ‘‘informed me that I could end up sick
on my way to work.’’
Under the circumstances, it is equally inferable that Allen
was suggesting that Turner could report sick, rather than re-
port for work as she had been hired to do, in the event of
a strike. However, I need not decide. Assuming that Allen
was referring to circumstances that could befall an employee
who worked in defiance of a union-called strike, the
‘‘threat,’’ if any, was too remote and vague in reference to
have an impact on the election processes. See Great Atlantic
& Pacific Tea Co., supra.
Finally, Turner testified that, on the day of the election,
she approached Dubois and McClughen and asked them why
they were spreading rumors that she was making more
money than any other employee. Turner became quite agi-
tated as she testified on this point, and her testimony is not
clear as to what Dubois and McClughen are supposed to
have said in reply, except that Turner was clear that
McClughen said that Turner had no friends among the em-
ployees .
It is to be noted that antiunion employee Turner ap-
proached prounion employees Dubois and McClughen, and
that she started the argument; it was not the other way
around. Moreover, whatever else McClughen and Dubois are
supposed to have said to Turner, it was in the context of the
three employees’ having ‘‘kept arguing,’’ according to Turn-
er. Free argument, even if it becomes mean-spirited, is not
objectionable conduct.14
Employee Wesley Pauley testified that during the week
before the election he engaged in a conversation with em-
ployees Mike Byrd and Mike Fields in the maintenance shop.
Jim Wilkinson, who was a supervisor at the time of trial, but
a laborer at the time in question, was present and could have
329YUKON MFG. CO.
15 Great Atlantic & Pacific Tea Co., supra.
16 283 NLRB 803 (1987).
17 In K.D.I., Inc. v. NLRB, 829 F.2d 5 (6th Cir. 1987), cited by
the Employer, the court found an ambiguous, subsequent statement
ineffective to cure a Savair objection. Here, there was a clear, simul-
taneous statement on the cards, themselves, as well as on other cir-
culated matter.
18 Tr. 71, L. 11 is corrected to change ‘‘chicken fixture’’ to ‘‘jig
and fixture.’’
heard the conversation. According to Pauley, he, Byrd, and
Fields discussed ‘‘if there was a strike had occurred, if we
would or would not cross the picket line.’’ Pauley did not
testify about that any of the three employees had said among
themselves whether they would cross such a picket line.
Pauley did testify that as he was leaving the shop, Wilkinson
said to him that ‘‘he’d blow my f—king tires off period,
quote, unquote.’’ according to Pauley, he snickered at
Wilkinson’s remark and Byrd and Fields ‘‘thought it was
rather funny also.’’
Wilkinson was called in Respondent’s case and questioned
on direct examination about other matters, but he was not
asked about this incident. On cross-examination, he stated
that he was ’’for’’ the Union at the time of the election, but
he did not sign a union authorization card, or wear a union
button, or attend union meetings, and he was not a member
of the organizing committee.
There is no evidence as to what Pauley, Fields, or Byrd
stated about crossing a picket line, and there is no evidence
that Wilkinson heard whatever was said, although Pauley tes-
tified that Wilkinson could have heard whatever was said. In
these circumstances, there is no basis for holding that a
threat was premised on any statement by Pauley that he
would cross a picket line in the event of a strike. Even if
such a threat was made, it was too remote to be said to have
an effect on the election and, further, there is no basis for
holding the Union responsible for the alleged threat.15 Fi-
nally, Pauley testified that everyone concerned thought the
whole thing was ‘‘rather funny.’’ Therefore, no objectionable
conduct occurred by Wilkinson’s alleged threat.
Accordingly, I recommend that Objections 1 through 4 be
overruled.
2. Objection 5
Offers by unions to waive initiation fees for employees
who sign authorization cards before Board elections have
been held are unlawful inducements, and therefore objection-
able conduct, by the Supreme Court. NLRB v. Savair Mfg.
Co., 414 U.S. 270 (1973). In Davlan Engineering,16 the
Board held that employees who have been supplied author-
ization cards by a union, or otherwise are authorized to so-
licit authorization card signatures for a union, act as agents
for that union when conducting such solicitations, and such
a union will be held responsible for improper fee waiver rep-
resentations under Savair. However, Davlan also clearly
states:
A union may avoid responsibility for the improper
fee-waiver statements of its solicitors, however, by
clearly publicizing a lawful fee-waiver policy in a man-
ner reasonably calculated to reach unit employees be-
fore they sign cards. Such publicity may take any num-
ber of forms including, for example, an explanation of
the fee-waiver policy printed on the authorization card
itself. A union that fails to take adequate steps to pro-
vide the employees with an explanation of its policy
acts at its peril. [Footnote omitted.]
The authorization cards utilized by the Union in the subject
campaign state, on the backs of each, in large type:
It is the policy of the UAW to waive initiation fees
for ALL employees who join the union before thirty
(30) days after the signing of an initial collective bar-
gaining agreement. [Capitalization in original.]
During the campaign, the Union also circulated four hand-
bills that said the same thing, or plain words to the same ef-
fect.
In support of its objection, the Employer produced two
witnesses who testified that they were told that an initiation
fee would be waived if they signed an authorization card be-
fore an election. Employee Joe Post testified that employee
Jean Martinez spoke to him about signing a union authoriza-
tion card. Post first floundered and went to other topics when
asked what Martinez had told him. I interrupted him and
asked:
Q. That’s all right; you’ve already explained that.
Let me ask you this, sir, do you remember anything
Ms. Martinez told you about the cards?
A. Okay. Towards the time I—I’m not exactly sure
if it was before I signed it or right after I signed it, but
was brought up that if, and anybody that had signed a
union card, their initiation fee would be waived and at
the time that it was brought up there was a hundred
dollar initiation fee mentioned.
Q. All right. Who told you that?
A. Jean Martinez did.
Q. Do you know when?
A. It would be, not, you know, I can’t say exactly
for sure, but I would say somewhere around the middle
to the end of August.
Post signed his union authorization card on August 3, after
having received it from employee Bill Allen, not Martinez.
Post denied reading the above-quoted statement on the back
of his card, and denied reading about the Union’s policy in
any of its handbills.
That Post claims that he did not read the language of the
card is not a proper predicate for nullifying the Board’ state-
ment in Davlan that such language would effectively answer
a Savair objection.17 Moreover, Martinez denied mentioning
anything about initiation fees to Post, and the testimony of
Martinez was clear and convincing, as opposed to the fuzzy
ramblings of Post. However, assuming the truth of Post’s tes-
timony, the alleged objectionable statement by Martinez was
made after the card was signed, and not in the course of a
solicitation. Even if it had been made in the course of a so-
licitation, there is nothing in Post’s testimony to indicate that
Martinez told him that, despite the plain language of the
card, he must sign a union authorization card before the elec-
tion to avoid paying an initiation fee.
To the same effect is the testimony of employee David
Chaney who testified that, about a week before the election,
in a work area of the plant,18 employee Boyd Hickerson told
him that an initiation fee would be waived if a union author-
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ization card was signed before the election. Hickerson
credibly denied the remark; however, again, the Union’s pol-
icy was plainly stated on its many handbills, as well as on
the cards themselves, and this effort by the Union to comply
with Davlan cannot be thwarted by an employee’s testifying
that he did not read such handbills, as did Chaney.
Accordingly, I shall recommend that Employer’s Objection
5 be overruled.
3. Objection 6
Corporate secretary Judy Bowerman testified that while
the election was being conducted she went to a vending area
in the plant to purchase a soda. She testified that when she
did so she saw employee Robert Belknap walking away from
the polling area, along a line of employees waiting to vote,
and he ‘‘talked to everybody.’’ Bowerman testified that she
watched this for ‘‘4 or 5 minutes just to see what was hap-
pening ‘‘and then went back into the office area. Bowerman
acknowledged that she could not hear what Belknap was say-
ing to any of the employees.
Substitute Supervisor Dooley testified that he saw Belknap
standing in line at a coffee machine, which was within a few
feet of a line of employees waiting to get into the polling
area. According to Dooley, ‘‘and he was telling some people
in the line that the UAW is going to guarantee them $3 or
$4 more an hour and guarantee their jobs and just that they
ought to vote ‘yes’; it’s the best thing for them.’’
Belknap testified that after he voted he did walk back up
the line of those waiting to get into the polling area, but he
denied saying any more that ‘‘Hi’’ or ‘‘Good luck.’’
Bowerman’s testimony only that Belknap walked down the
voting line is no evidence of electioneering at all. Dooley’s
account of Belknap’s flagrant electioneering was less cred-
ible than Belknap’s denial; Belknap had a more credible de-
meanor, and Dooley’s testimony was a repetition of, and
sounded like a repetition of, a well-worn line that employers
often attribute to unions.
Accordingly, I shall recommend that the Employer’s Ob-
jection 6, as well as all other objections to conduct affecting
the results of the election of October 20, be overruled and
that the Union be certified as the collective-bargaining rep-
resentative of the Employer’s production and maintenance
employees .
B. Complaint Allegations
1. Alleged violations of Section 8(a)(1)
The complaint, at paragraphs 16 and 17, alleges a variety
of 8(a)(1) violations.
16 (a). In or about April 1989, Respondent, by its
agent Bob Bailey, threatened an employee that if a
union came in the owner would shut the plant down.
On April 21, Charging Party Stockford injured her hand
and had to go on extensive leave. Stockford testified that be-
fore her accident she asked Welding Supervisor Bob Bailey
for a seniority list and she told Bailey that the purpose of
the list was for use in starting a union organizational attempt.
Bailey got the list for Stockford and gave it to her. Stockford
testified that when Bailey gave her the list, Bailey told her
not to tell anyone because it would get him in trouble and
that ‘‘Ed Bowerman would shut the plant down if they had
a union started.’’
Bailey was called by Respondent, but on this issue he was
interrogated solely by blatantly leading questions. That is, the
lawyer was testifying, and Bailey was repeating ‘‘No’’ on
cue. Bailey’s responses to these leading questions were not
credible ‘‘testimony’’ in any sense. Because, in part, of this
leading, Stockford was the more credible witness, and I find
and conclude that this allegation of the complaint has been
proved.
16(b). In or about April 1989, Respondent, by its
agent Tom Veatch, threatened an employee that Re-
spondent would shut the doors if the employees tried to
get a union in.
On nice days, the unit employees sometimes eat their
lunches in an outdoor area. While she was on medical leave,
Stockford sometimes returned to the plant to visit with the
employees who ate their lunches outside (including former
employee Donald Denmore, Stockford’s then-fiancee, and
later husband).
Stockford testified that at lunch one day in May she dis-
tributed union literature to some employees outside the
plant’s building. She also placed union fliers under some em-
ployees’ automobiles’ windshields. Stockford testified that as
she did so she was approached by Veatch. Veatch asked
Stockfort what was going on, and she replied that the em-
ployees were talking about a union and offered him some of
the literature. Veatch took a handbill and stated that he
would stay ‘‘neutral,’’ but, according to Stockford, Veatch
also told her that ‘‘the office would shut the doors down if
the Union come in.’’ Veatch further told Stockford that the
employees ‘‘was going to be sorry.’’
Veatch did not testify; Stockford apparent credible in this
testimony; and I find that the allegation has been proved.
16(c). On or about May 1, 1989, Respondent granted
a benefit of a $25.00 perfect attendance bonus to under-
mine employee support for the Union.
Previous to the organizational effort, the Respondent had
an attendance bonus program of granting a coffee cup, a cap,
and a jacket after 30, 60, and 180 days, respectively, of per-
fect attendance. As admitted, in May the Respondent
changed its perfect attendance program to a grant of a $25
bonus for a month’s perfect attendance. The only testimony
of how the change was announced was by alleged
discriminatee Robert Belknap who testified, in conclusionary
terms, that Pressroom Foreman Estel announced it to the
pressroom employees. Belknap did not testify that Estel, in
any way, related the change to the Union’s organizational at-
tempt.
The granting of a benefit during an organizational effort,
or even during the pending of a petition, is not a per se vio-
lation of Section 8(a)(1) of the Act. As stated in Tonkawa
Refining Co., 175 NLRB 619 (1969):
We find that the proper test under Section 8(a)(1), as
expressed in NLRB v. Exchange Parts Co., [375 U.S.
405], requires a finding that the employer’s conferral of
employee benefits while a representation election was
pending was for the purpose of inducing employees to
331YUKON MFG. CO.
19 To be distinguished is the one case cited by the Charging Party.
In Spring City Knitting Co., 285 NLRB 426 (1987), the grant of a
benefit (early payment of vacation pay) occurred immediately prior
to a Board election, a factor relied on by the Board. Here, there is
no such element of timing; the petition had not been filed, and there
is no other salient event to which the grant can be related.
20 In this passage of the transcript, as in many others, Paille is
misidentified as ‘‘Bailey.’’ Specific corrections of the transcript are
unnecessary as the true identity of Paille is always shown by ref-
erence to his position (comptroller), or use of his first name (Rich-
ard), or otherwise by the context.
vote against the union. [Footnotes omitted; emphasis in
original.]
Although the record is replete with evidence of other viola-
tions by the Respondent, there is no evidence that the $25
attendance bonus was instituted for any reason other than im-
proving attendance; specifically, there is no evidence that the
purpose of the change was to induce employees to vote
against the Union or otherwise abandon their support for it.
Accordingly, under Tonkawa Refining,19 I shall recommend
that this allegation of the complaint be dismissed.
16(d). On or about May 19, 1989, Respondent, by its
agent Tom Veatch, coercively interrogated an employee
as to what had happened at a union meeting.
Alleged discriminatee McClughen testified that in June,
shortly after he attended a union meeting, Veatch approached
him at the plant and asked McClughen what had gone on at
the meeting. McClughen replied, ‘‘[N]othing important.’’
Veatch told McClughen ‘‘you’d better start covering yourself
. . . you’d better watch that union stuff; its going to get you
into a little problem.’’
Because Veatch did not testify, and because I found
McClughen credible, I find that this allegation has been
proved.
16(e). On or about June 2 and 3, 1989, Respondent,
by its agent Richard Paille, created an impression
among its employees that their union and concerted ac-
tivities were under surveillance by Respondent and
would continue to be under surveillance by Respondent.
According to Stockford, on or about June 2, Union Orga-
nizer Don Spillman called Paille20 on the telephone. As
Spillman told Paille, Stockford was on the line listening.
(And after Spillman finished speaking to Paille, Stockford
got on the line and talked to Paille.) Spillman read to Paille
a list of names of employees who had joined the Union’s in-
plant organizing committee. During the conversation,
Spillman told Paille that the Union had conducted two orga-
nizational meetings. Stockford testified that Paille said ‘‘that
he knew everything [that] was said at that Union meeting;
he knew everything that was going on.’’ Spillman asked
Paille how he knew such and Paille replied, ‘‘I have my
ways of finding out.’’
Because Paille did not testify, Stockford’s testimony is
undenied, and I find it credible. Because Paille was aware
that Stockford was on the line when he stated that he knew
what was going on at the union meetings, I conclude that
Respondent, by Paille, made a statement to employees con-
veying the impression of surveillance, as alleged.
16(f). In or about early June 1989, Respondent, by
its agent Richard Paille, implied to employees [a] futil-
ity [in] seeking representation by the Union.
Former employee Densmore, who is an alleged
discriminatee here, testified that during the last week in May,
on the day before a scheduled union meeting, Paille ad-
dressed the welders on line 2. According to Densmore,
Paille, inter alia, ‘‘said he worked with the UAW for 25
years; he said it wouldn’t do any good for you, and he said
he’d do anything he can legally to keep it from coming in,
even if he had to send spies to the meetings.’’
As Paille did not testify, this testimony by Densmore is
undenied, and I find that it proven the allegation of the com-
plaint. (The threat to send spies to the union meetings was
not separately alleged as a violation, but it should be remem-
bered in considering subsequently discussed allegations.)
16(g). On or about June 3, 1989, Respondent, by its
agent Richard Paille, coercively interrogated employees
concerning a recent union meeting.
Press operator Boyd Cox testified that in early June, Paille
approached him at his work station:
[A]nd he asked how the Union meeting went; I says
‘‘better than I expected because it was real nasty weath-
er . . . .’’ He asked what the discussion was about,
and I said, ‘‘ our insurance, more money and Ernie
Harman.’’ And he asked me, he says, ‘‘what [do] you
think that it would take, you know, to get things with-
out a union?’’ I said, ‘‘ insurance, more money and
Ernie Harman.’’
Plant Manager Harman was not a popular supervisor, at least
with some employees.
As Paille did not testify, this testimony by Cox is
undenied, and I find that it proves the allegation of the com-
plaint.
16(h). On or about June 6, 1989, Respondent, by its
agents Fred Walls, Richard Barnett, Bob Bailey and
other supervisors and agents at the Litchfield Youth
Center, engaged in surveillance of a meeting of em-
ployees engaged in protected concerted activities.
Union Organizer Spillman conducted the June 6 meeting
of employees at the Litchfield Youth Center. The Center has
a very small parking lot, but a city park across the street has
a larger one.
Although the meeting was not officially scheduled to
begin until 7 p.m. that day, the employees began gathering
about 4 p.m., shortly after the day shift concluded. Employee
Boyd Hickerson testified that when he got to the center,
Maintenance Supervisor Fred Walls was inside saying that he
was going to attend the meeting. Hickerson told Walls that
Walls should not be there because he was a supervisor, but
Walls replied that he was not a supervisor. Hickerson pointed
Walls out to Spillman who asked Walls to leave, which
Walls then did. Walls went to the parking lot across the
street where Hickerson observed him joining Assembly Su-
pervisor Craig Dirling and General Foreman Dick Barnett.
Hickerson (and other employees) in the Youth Center could
see that parking lot. Hickerson and other employees testified
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 It is disputed that Wilkinson was a supervisor at this time. It
makes no difference as Estel, an admitted supervisor, made the sub-
ject presentation with Wilkinson, indisputably on Respondent’s be-
half, and Wilkinson was therefore acting as an agent of Respondent
within Sec. 2(13) of the Act.
22 Tr. 932, L. 24 is corrected to change ‘‘MS. COE’’ to ‘‘MR.
MORRIS.’’
23 There was a par. 16(1), but there was no evidence introduced
in support thereof.
that before and during the meeting they observed the super-
visors drinking beer in the park. Hickerson testified that he
knew that it was unusual to see supervisors drinking beer in
the park because that is where he regularly drinks beer after
work while waiting for another employee who rides home
with him each day.
Hickerson further testified that he walked across the street
and partook of the supervisor’s beer himself. While doing so,
he told Walls that the supervisors really should not be there.
Walls replied, ‘‘Well, we’re here.’’ Hickerson testified that
as he was in the parking lot with the supervisors several em-
ployees drove by and appeared to be turning into the lot. Ac-
cording to Hickerson, Dirling would point to such employ-
ees, and some ‘‘would just keep on going down the road.’’
Hickerson further testified that while all of this was going on
Plant Manager Harman was driving an automobile that was
going up and down the street between the center and the
park.
None of this testimony is denied, and it is corroborated by
credible accounts of employees Boyd Cox, McClughen, and
Stockford. Dirling was presented by Respondent to assert
that Hickerson had invited him to come to the park and wait
outside while the meeting was going on. Hickerson, however,
credibly testified in rebuttal that during the day before the
meeting Dirling had announced that he was going to go to
be around the meeting and drink a few beers, and Dirling
asked if Hickerson minded. Hickerson replied to Dirling that
he did not.
I do not believe Hickerson invited Dirling to the meeting,
or to hang around outside. But, even if that part was true,
that would not excuse the conduct of Walls, Dirling, and
Harman which clearly constitutes acts of surveillance, as pre-
viously threatened by Paille to Densmore, on the part of Re-
spondent. Accordingly, I find and conclude that this surveil-
lance allegation of the complaint has been proved.
16(i). On or about June 6, 1989, Respondent, by its
agents Frank Estel and Jim Wilkinson, in order to un-
dermine its employees’ support for the Union, promised
future insurance and pay improvements.
. . . .
16(m). In or about late June 1989, Respondent, by
its agent Jim Wilkinson, threatened employees that they
would not get a union in the plant because the [Re-
spondent] would first shut the doors.
As discussed infra, in early 1989 Respondent, in violation
of Section 8(a)(2) of the Act, established a labor organization
which was called simply, ‘‘the Employee Committee.’’ Al-
leged discriminatee Boyd Cox testified that at several meet-
ings of the Employee Committee that were conducted by the
Employer, the employees complained about three things:
their insurance coverage, their pay, and the supervision of
Plant Manager Harman.
Cox testified that shortly after the June 6 meeting at the
Litchfield Youth Center, Estel and Wilkinson, at a time when
Wilkinson was a supervisor,21 conducted a campaign meeting
of 15 to 20 of the pressroom employees. Estel read a paper
and then the employees asked questions about money, insur-
ance, and Harman. In response to one or more questions,
Estel and Wilkinson told the employees ‘‘they were going to
work on all three,’’ according to Cox.
Cox further testified that at the same meeting, ‘‘Jim
Wilkinson said something about Ed Bowerman would not
stand for a union; he’ll close the plant up, lose your jobs
. . . there’s going to be scabs come on and get our jobs, and
they will be nigger scabs at that.’’
Cox further testified that at a later June campaign meeting
of the pressroom employees conducted by Wilkinson and
Estel, Wilkinson told the group that management was work-
ing on the three problems which the employees had brought
up: money, insurance, and Harman. Wilkinson further told
the group: ‘‘Ed Bowenman would shut the doors down be-
fore he would ever allow the Union to come on in here. I’m
telling you that from point blank fact.’’
On direct examination, in response to blatantly leading and
conclusionary questions, Estel and Wilkinson denied telling
the employees in the June meetings that insurance or other
benefits would be improved if the Union were selected. On
cross-examination,22 Wilkinson acknowledged that at one of
the June campaign meetings he told employees that in the
event of a strike ‘‘they could bring scab labor which con-
sisted of Mexicans, and Negroes and niggers.’’ Wilkinson
further testified that an employee stated that Respondent
could close the plant, and he merely agreed.
To the extent they differ, I found Cox more credible than
Wilkinson and Estel, and I conclude that these allegations of
the complaint have been proved. Specifically in regard to the
promises of more pay, better insurance, and better super-
vision, these were grievances that the employees had ex-
pressed in the meetings of the Employee Committee that Re-
spondent had established, as discussed infra, and the coercive
impact is more than clear.
16(j) and (k) [Here combined.] On or about June 8,
1989, Respondent, by its agent Richard Paille, in order
to undermine its employees’ support for the Union,
promised employees a benefit of providing free welding
gloves [and] promised employees that attendance bo-
nuses would be paid monthly rather than quarterly.23
In early June, Paille conducted a meeting of the Employee
Committee. The employee-representatives, who had been se-
lected in elections ordered by Respondent, were encouraged
by Paille to voice problems of the employees. According to
the credible testimony of alleged discriminatee McClughen,
and a copy of Paille’s notes of the committee’s June 13
meeting, Paille announced that welders would be given one
free welding glove per week. Previously welders paid for
both their gloves; if they were right-handed, the left one
wore out quickly because rods and objects being welded
would normally be held in the left hand. Further at the June
13 meeting the Employee Committee, all employees were
promised that the $25 awards for 30 days’ perfect attendance
333YUKON MFG. CO.
24 Switchcraft, Inc., 241 NLRB 985 (1979).
were to be paid monthly, rather than quarterly as had been
the case.
As these promises were made in order to persuade em-
ployees to forgo their Section 7 right to become represented
by the Union, and as the promises were the product of Re-
spondent’s unlawfully establishing the Employee Committee,
I find and conclude that the allegations of paragraphs 16(j)
and 16(k) have been proved.
16(n). In late June 1989 or July 1989 . . . Respond-
ent, by its agent Craig Dirling, created the impression
that it was engaging in surveillance of [an] employee’s
activities on behalf of the Charging Union by informing
an employee it knew the employee had singed a union
card.
16(o). In or about July 1989 . . . Respondent, by its
agent Craig Dirling, coercively interrogated an em-
ployee as to what had happened at a union meeting.
Former employee Doris Milleman testified that in early
July, at lunch, she signed a union authorization card. The
next day, in the working area, she was approached by Dirling
and
[Dirling] said that he had heard that I signed a green
card, and I told him ‘‘yes.’’ And then Craig said that
well, he didn’t care anyway and that was that.
Milleman further testified that twice in the following weeks,
Dirling approached her in the working area and asked her if
she had attended recent union meetings. Milleman had not,
and she told Dirling so. Dirling replied; that he ‘‘wanted to
know what was going on.’’
Dirling admitted that he knew that the Union was using
green cards to solicit support and membership. Dirling admit-
ted questioning a group of employees about who had gone
to the union meetings, but he denied questioning any em-
ployee, specifically Milleman, individually. Milleman was
not employed by Respondent at the time of the hearing; she
had no apparent reason to lie, and I do not believe that she
did. I credit Milleman.
Respondent suggests no possible legitimate purpose in
Dirling’s telling Milleman that he knew that she had signed
a union authorization card. In the context of Respondent’s
many other unfair labor practices, the sounding out of
Milleman to confirm Dirling’s actual (or fictitious) sources
of information necessarily takes on a coercive element.
Moreover, Dirling’s asking Milleman if she had attended
union meetings, and telling her that he wanted information
on the meetings’ content, were violative interrogations. Ac-
cordingly, I conclude that the General Counsel has proved
the allegations of paragraphs 16(n) and 16(o).
16(p). On or about July 24, 1989, Respondent, by its
agent Frank Estel, threatened an employee with dis-
cipline for distributing a union button during lunch
time.
Lunchtime for the day shift was from 12 to 12:30 p.m. On
July 24, when it was almost 12:30 p.m., several employees
were in the area adjacent to the office of Pressroom Super-
visor Estel. According to alleged discriminatee Larry Cornell,
another employee asked him for a union button. Cornell kept
his supply of buttons in Estel’s office. Cornell reached for
a button and handed it to the other employee. Estel saw that
and told Cornell he could fire Cornell for what he was doing.
Cornell asked why, and Estel told him ‘‘passing out Union
stuff on Company time.’’ Cornell testified that he told Estel
that it was not past lunchtime, then he looked at his watch
and ‘‘it was one minute past the time, but there was no buzz-
er to let me know what time it was.’’ Cornell testified that
nothing more was said between himself and Estel. Cornell
was asked on direct examination if he was on break at the
time he gave the union button to the other employee. Cornell
replied, ’’I thought I was, yes.’’
The General Counsel called Robert Belknap to corroborate
Cornell. According to Belknap, when Frank Estel told Cor-
nell that he could be fired for what he was doing
[Cornell] said, Frank, I’m still on my time; the buzzer
hasn’t rang yet. Frank looked at his watch and said,
‘‘well, it’s time to get back to work, so quit your mon-
keying around and get back to your presses.’’
Estel gave an account which varied mainly by his conclu-
sion that, at the time he spoke to Cornell, 12:30 p.m. had
passed.
It is impossible to tell with absolute certainty if 12:30 p.m.
what actually come to pass when Cornell handed a union
button to the other employee. It is clear enough from the tes-
timony of Belknap and Cornell that there was at least a ques-
tion about it. However, whether the lunchbreak was over, in
this case, is not determinative.
If it was still nonworking time when Estel threatened Cor-
nell with discharge, clearly there was a violation, as Re-
spondent appears to concede. However, even if it was work-
ing time, in absence of a valid no-distribution rule, actual in-
terference with production must be proved by the employer
before the activity can be interdicted.24 As discussed infra,
the only no-solicitation or no-distribution rules in effect at
the time were facially invalid. Therefore, Estel’s threat to
discharge Cornell violated Section 8(a)(1) of the Act, as I
find and conclude.
16(q). In or about October 1989, Respondent, by its
agent Frank Estel, threatened temporary employees with
1088 of employment if the Charging Union was voted
in.
As discussed more fully, infra, Respondent employs tem-
porary employees from an agency personnel pool. Many per-
manent production and maintenance employees started out as
personnel pool temporary employees; then, when they proved
satisfactory, they were hired by Respondent. Employee Jerry
Harris testified that about 2 weeks before the October 20
election, there were two personnel pool temporary employees
on the second shift. Harris testified that during that period
of time, Estel conducted a meeting of second-shift employees
in which the election was discussed. Estel showed the em-
ployees a sample ballot and gave a speech about how they
should vote. During his talk, Estel ‘‘said if the Union are in,
Personnel Pool would be out the door,’’ according to Harris.
Estel testified that either at a June or August employer
campaign meeting, the subject of eligibility of personnel pool
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 There was a par. 17(d), but no evidence in support thereof was
introduced by the General Counsel, and I shall accordingly rec-
ommend its dismissal.
employees came up. Estel told the employees who asked
about it, including Harris, that he did not know and would
get back to them on the question. Estel later, at some unspec-
ified time, found out that there was an eligibility date, and
he so informed the second-shift employees. On direct exam-
ination, Estel was asked generally if he had told employees
that temporary employees would lose their jobs if the Union
won the election; Estel denied that he had done so. Estel was
not asked if he told the employees in October, as alleged in
the complaint and as described by Harris, that temporary em-
ployees would be ‘‘out the door’’ if the Union won the elec-
tion. In fact, on direct examination Estel was not asked any-
thing about the October meeting described by Harris.
I cannot credit Estel’s answer to the single leading,
conclusionary question; moreover, I found Harris fully cred-
ible. Accordingly, I find and conclude that this allegation of
the complaint has been proved.
16(r). On or about December 29, 1989, Respondent,
by its agent Frank Estel, threatened that employees
would not be recalled from layoff because they sup-
ported the Union.
As detailed infra, Respondent laid off most of the unit em-
ployees on December 22; most employees were recalled on
January 2, but many were not, and they are alleged
discriminatees here.
Sometime after January 2, production employee Kurt
Henning was discharged by Respondent for violating its (un-
lawfully unilaterally imposed) ‘‘point system’’ of absence
control. Henning testified that, in mid-January, before his
discharge, he was working in the vending area when he over-
heard Estel taking to Foreman Joe Edwards and Quality Con-
trol Inspector Frank Tabalski. According to Henning, he
heard Estel tell Tabalski and Edwards that Robert Belknap
was not going to be recalled from the December 22 layoff
because Belknap ‘‘supported the Union and he had his mind
on the . . . Union instead of the f—king job he was sup-
posed to do.’’
Estel did testify that about mid-January recall decisions
were being made. Estel denied discussing the recall of Rob-
ert Belknap with Tabalski or Edwards, and he specifically
denied the quote attributed to him by Henning. Edwards was
called by Respondent, and he also specifically denied ever
hearing the quote that Henning attributed to Estel. Tabalski
was not called to testify.
While, in this instance, the supervisors answered more
than leading and conclusionary questions, I nevertheless
found the employee more credible. Henning’s testimony did
not help, and could not have helped, the presentation of the
allegations made on his behalf, and Respondent suggests no
reason that Henning would perjure himself for the benefit of
Belknap. On the other hand, at several other points in their
testimonies, Estel and Edwards seemed more than willing to
do whatever they felt was necessary to advance Respondent’s
case. I therefore credit Henning, and find and conclude that
this allegation of the complaint is proved as well.
17(a). On or about June 3, Respondent, by its agent
Judy Bowerman, promulgated the following overly
broad rule by posting a notice stating: ‘‘It is against
company policy to distribute literature of any kind on
company property. Violators will be given disciplinary
action.’’
17(b). On or about June 5, Respondent, by its agent
Judy Bowerman, promulgated and since said date has
maintained the following rule:
NOTICE TO YUKON MANUFACTURING EM-
PLOYEES:
No solicitation/No Distribution Rule
Employees Shall not:
1. Solicit other employees during working time.
2. Distribute literature to other employees in working
areas at any time.
3. Distribute literature to other employees in non-
working areas during working time.
Non-employees or outsiders are not permitted to so-
licit or distribute literature on Company property at any
time. In addition, in order to ensure the safety of em-
ployees entering and leaving work, and to avoid inter-
ruption to production, employees are not to enter the
plant or remain on the premises unless he/she is on
duty or scheduled for work.
17(c). Respondent promulgated the rules described
above in paragraphs 17(a) and (b) in order to discour-
age its employees from joining, supporting or assisting
the Union and from engaging in concerted activities for
the purposes of collective bargaining or other mutual
aid or protection.25
. . . .
17(e). On or about June 2, 1989, Respondent, by its
agent Judy Bowerman, discriminatorily prevented em-
ployees from distributing literature concerning the pro-
tected concerted activities of Respondent’s employees.
17(f). On or about December 5, 1989, Respondent,
by its agent Ed Bowerman, orally promulgated an over-
ly-broad no-solicitation rule by advising employees not
to engage in discussion about the Union.
On June 2, while she was still on medical leave, Charging
Party Stockford again went to the plant to distribute union
literature to employees who were outside eating their
lunches. Stockford credibly testified, and Judy Bowerman did
not deny, that while Stockford was engaged in such distribu-
tion, Bowerman watched Stockford from an office window.
After a while, Stockford and the employees around her were
approached by Bowerman. Bowerman told Stockford to ‘‘get
off the f—king premises and don’t ever come back.’’
Stockford left. That action is the subject of paragraph 17(e)
of the complaint. The next day, Respondent posted the rule
that is alleged as violative in paragraph 17(a). On June 5,
Respondent posted the rules alleged that are as violative in
paragraph 17(b).
As succinctly stated in Tri-County Medical Center, 222
NLRB 1089 (1976):
Finally, except where justified by business reasons,
a rule which denies off-duty employees entry to parking
335YUKON MFG. CO.
26 See Pizza Crust Co., 286 NLRB 490 (1987), in which the em-
ployee concerned was also on medical leave.
27 See Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
28 Other than the evidence of Paille’s 8(a)(1) promises to Cox,
noted above, there is no evidence in support of this allegation, and
I shall recommend its dismissal.
29 As testified by admitted Supervisor Estel, ‘‘So, I went around
to everybody in the press room; told them they have to elect them
a person to represent the press room.’’
lots, gates, and other outside nonworking areas will be
found invalid.
This is exactly the import of the last paragraph of the June
5 rule and, no business reason having been shown for the
prohibition, that portion of the rule violates the Act, as al-
leged in paragraph 17(b). Moreover, Judy Bowerman’s order-
ing an off-duty employee, such as Stockford, to leave the
premises while the employee is engaged in otherwise pro-
tected concerted activities in nonworking outside areas, as
was Stockford, further violated Section 8(a)(1) of the Act as
alleged in paragraph 17(e).26
The blanket proscription against all distributions of lit-
erature on the property, as alleged in paragraph 17(a), was
a violation of Section 8(a)(1) of the Act. The no-solicitation
rule quoted in 17(b) is not limited to working areas, and
therefore is violative of Section 8(a)(1) as well.27
In support of paragraph 17(f), the General Counsel offered
the testimony of former employee Jerry Harris. Harris testi-
fied that in late November 1989, he was discussing with an-
other employee threats which had been made in a strike else-
where. Afterward, Harris was called to the office of Edward
Bowerman. There, three employees stated that they had over-
heard the conversation between Harris and the other employ-
ees, and that they considered themselves threatened by Har-
ris’ comments in the conversation. Harris and the employees
then argued about what had been said in the working area.
Bowerman, according to Harris, terminated the argument
saying to the three other employees that ‘‘if they heard me
talking about anything else—any union anywhere, came tell
him and he’ll kick me out the door.’’
Bowerman testified, but not on this point, and I found
Harris credible. Bowerman’s broad proscription against Har-
ris’ discussing any union anywhere violated Section 8(a)(1)
of the Act, as I find and conclude. Atlas Metal Parts Co. v.
NLRB, 660 F.2d 304 (7th Cir. 1981).
2. Alleged violations of Section 8(a)(2)
The complaint alleges that the Employee Committee is a
labor organization within Section 2(5) of the Act and that by
certain conduct in relation to the Employee Committee, and
that, in violation of Section 8(a)(2) of the Act, Respondent
dominated and assisted the labor organization by the fol-
lowing acts and conduct: (a) Paille suggested that the em-
ployees form a labor organization in February; (b) Paille sug-
gested that the labor organization be reconstituted in June
(after it had been inactive for a few months); (c) Walls and
Veatch conducted a meeting on June 6 in which they super-
vised the selection of representatives of the Employee Com-
mittee; (d) on June 8, Paille made various promises to the
Employee Committee;28 (e) in June, Estel selected a rep-
resentative to be on the Employee Committee; and (f) begin-
ning in February and continuing thereafter, Respondent, by
Paille and other supervisors, extended recognition to, and
bargained with, the Employee Committee.
Several employees testified about such conduct by Paille,
but Paille was not called on behalf of Respondent. Therefore,
the following facts are established by unrebutted employee
testimony which I found credible.
Paille became comptroller in January and then began over-
seeing several aspects of the plant’s general operations. On
January 27, Paille began conducting biweekly meetings of
representatives of each department. The representatives had
been chosen at the direction of the departmental supervisors
including Estel, Veatch, and Walls,29 or the supervisor sim-
ply appointed the representative. At the January 27 meeting
of the Employee Committee, Paille introduced himself, and
since thusly elected/appointed employee departmental rep-
resentatives, in turn, did the same. At Paille’s direction, the
representatives stated certain problems in their respective de-
partments and they stated other problems that affected all
employees. These matters included wages, insurance, the
(disliked) supervision by Plant Manager Harman, inadequacy
of performance by a forklift driver, suspected to toxicities of
paint fumes, and other such terms and conditions of employ-
ment.
Paille attended all meetings of the Employee Committee
and kept minutes. Paille’s minutes of eight meetings of the
Employee Committee that were conducted between January
and July were received in evidence. Almost every aspect of
the employment relationship was discussed. Several early
spring meeting were not conducted, but the meeting were re-
instituted in late spring, when the Union began organizing.
Again, supervisors instructed line representatives to attend; if
the representatives were no longer employed, the supervisors
picked a replacement or instructed the remaining employees
in the department to do so.
At the reinstituted meetings grievances also were heard,
and many were satisfied. Paille’s notes of the June 13 meet-
ing recite:
As a result of discussions in this meeting a few pol-
icy changes have been made:
1. Welders will receive a free left-hand glove once
a week in exchange for a soiled glove. Tool crib per-
sonnel will keep track of this.
2. The $25.00 Attendance Incentive Program will be
administered monthly instead of quarterly. May and
June awards will be paid in July, then monthly after
that.
Section 2(5) provides:
The term ‘‘labor organization’’ means any organiza-
tion of any kind, or any agency or employee representa-
tion committee or plan, in which employees participate
and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.
Because the Employee Committee addressed virtually every
aspect of what the Act defines as a labor organization, I find
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Fremont Mfg. Co., 224 NLRB 597 (1976), and cases cited there.
31 Respondent objected to Stockford’s being led to some of the
many names that were mentioned in the two Spillman-Paille tele-
phone calls. I have considered this leading, but find that it is insuffi-
cient grounds to discredit Stockford. Stockford had a credible de-
meanor throughout her testimony, and the failure to remember each
of 20 names mentioned in two telephone calls is understandable;
moreover, unlike the leading of Respondent’s witnesses here, this
testimony by the General Counsel’s witness was not contradicted.
and conclude that the Employee Committee is a labor organi-
zation within the meaning of Section 2(5) of the Act.
I further find and conclude that by establishing the Em-
ployee Committee, selection or directing the selection of its
officers, and thereafter bargaining with the Employee Com-
mittee, Respondent dominated the Employee Committee, as
labor organization, in violation of Section 8(a)(2) of the Act,
as alleged.30
McClughen testified that in a June campaign meeting con-
ducted by Walls and Veatch, Walls told employees that they
did not need a union because they had the Employee Com-
mittee. Some employees told Walls that the department did
not have a representative because the last one had been fired
and not replaced. Walls told the employees they should pick
a new representative. Then Walls asked McClughen if he
would be interested. McClughen said that he would. Walls
asked the other employees if they would object to
McClughen being their representative. They replied that they
had no objection, and McClughen became the departmental
representative to the Employee Committee.
Walls was not presented to deny this testimony by
McClughen; I found McClughen credible and that his testi-
mony represents facts.
Cox testified that in June Estel asked him to be on the
Employee Committee. Estel denied it, although he did admit
telling the employees that they ‘‘have’’ to pick a representa-
tive themselves. I found Cox’s testimony more credible than
Estel’s denial.
This credited testimony by Cox and McClughen, and Re-
spondent’s bargaining with the Employee Committee, prove
the allegations of unlawful assistance in violation of Section
8(a)(2), as I find and conclude.
3. Alleged violations of Section 8(a)(3)
a. The June 8 layoff
According to the undisputed testimony of Densmore, the
then-fiancee of Charging Party Stockford, at the beginning of
the week of June 8, the approximately 15 employees on
welding line 2 were told they were scheduled to work 10
hours, until 5:30 p.m., each day of that week, and they were
told that the overtime was mandatory.
The parties stipulated that on June 8, a Thursday, the fol-
lowing employees were laid off: Michael Pillbury, Donald
Densmore, Gary Dubois, Ronald Cable, Thomas McClughen,
Lyle Shaffer, and Roger Sizemore.
June 8, as noted, was the day that Stockford filed the
charge in Case 7–CA–29346 over her June 2 ejection from
the property by Judy Bowerman, as discussed above.
Stockford personally served a copy of this charge on Judy
Bowerman around 3 p.m. on June 8.
Further, according to undisputed testimony by Densmore,
between 3 and 3:30 p.m., on June 8, as he and other employ-
ees were working, Supervisor Veatch came down the weld-
ing line and told the above-named seven employees that they
were immediately laid off and that they should not report to
work the next day. No explanation was given by Veatch, or
any other supervisor, to the employees. Four employees on
welding line 2 were not laid off that day: Edward Dooley,
Charles Lewis, Scott Miller, and Eugene Hill. The laid-off
employees reported to work as usual on Monday, June 12.
The seven employees who were told to leave in midafter-
noon of June 8, and told not to report the next day, were
members of the Union’s organizing committee at the time,
and Respondent knew it. Stockford testified, without con-
tradiction, that she was on the line on June 2 and 7 when
Union Organizer Spillman called Paille to notify him of the
most recent appointments to the Union’s in-plant organizing
committee. Spillman told Paille that the seven alleged
discriminatees, as well as several other employees, had be-
come members of the union organizing committee.31
Of the four employees on welding line 2 who were not
laid off on June 8, only Lewis was a member of the Union’s
organizational committee. No other employees in the plant
were laid off on that date, according to this record.
The General Counsel has presented a prima facie case of
discrimination in violation of Section 8(a)(3) and (1) of the
act principally because of timing. The timing element is re-
vealing in several respects: (1) the layoffs were announced
and implemented within minutes of Stockford’s serving on
the Bowermans a copy of the first charge filed here; (2) the
layoff was effectuated before the end of the workweek, a
Thursday; (3) it was effectuated at a time when the employ-
ees were working; and (4) the employees had been told that
they would be required to work overtime through the end of
the week. In addition to doing, a prima facie case is estab-
lished by the copious evidence of Respondent’s animus, Re-
spondent’s knowledge of the alleged discriminatees’ union
activity, the statistical unlikelihood of only union organizing
committee members being selected for the layoff, and, with
the single exception of Lewis, only nonorganizing committee
members on welding line 2 being spared from layoff on June
8.
The immediacy of the layoff after the service of
Stockford’s charge is such a strong factor that I further find
that the General Counsel has presented a prima facie case of
discrimination independently violative of Section 8(a)(1).
Even if the laid-off employees had not been union members,
the General Counsel’s presentation raises the inference that
the layoff was effectuated as an act of retaliation against
other employees, those working on the same welding line as
Stockford’s fiancee, Densmore, because Stockford had just
served first charge here. That is, the time of the layoff, alone,
raises the inference that when the Bowermans received
Stockford’s charge they took it out on her fiancee and many
of the employees working with him, an act of retribution that
could only restrain Stockford, and other employees, in any
subsequent exercise of the Section 7 right to file charges
under the Act.
The General Counsel having presented a prima facie case
of unlawful discrimination under Section 8(a)(1) and (3) of
the Act, Respondent must come forward with evidence that
the June 8 layoff would have been effectuated even absent
337YUKON MFG. CO.
32 A new work rule regarding permission to go to the bathroom
was not alleged; but the parties treated it as if it was, and the com-
plaint is accordingly treated as amended.
33 Tr. 712, L. 12 is corrected to place a period after ‘‘buzzer’’ in
place of the comma, and start another question by counsel for the
General Counsel.
34 Dubois could not find a date; but there was no objection to this
line of testimony, and the only ‘‘rules’’ allegation of the complaint
is stated as August 24.
35 Tr. 531, L. 13 is corrected to change ‘‘working’’ to ‘‘eating.’’
the employees’ statutorily protected activities. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Although Ed Bowenman generally testified that lack of
materials or lack of work could cause a layoff, he suggested
no such thing as a cause for the June 8 layoff. No other su-
pervisor did either.
Respondent therefore having offered no defense for its ac-
tion of June 8 in laying off seven employees on June 8, I
find and conclude that the allegations of unlawful discrimina-
tion in violation of Section 8(a)(1), as well as Section
8(a)(3), of the Act have been proved.
b. The imposition of new work rules
The complaint alleges that on August 24 Respondent
discriminatorily promulgated and thereafter enforced work
rules that prohibited food and drink at work stations, work
rules that required the employees to be at their work stations
‘‘when the first buzzer sounded,’’ and work rules that re-
quired employees to be at their work stations ‘‘until the
break or quitting buzzer sounded and thereby eliminating
clean up time.’’
On August 24, after a meeting with Bowerman and Har-
man, the departmental supervisors addressed their subordi-
nates. Belknap testified that:
Pressroom Foreman Estel called us all together in
front of the press room office and stated that this
wasn’t his idea. That this comes straight from the man-
agement’s office. That there would be no more pops, no
more coffee, no more eating in the area, and if you
want to go to the bathroom, you get permission.32
Belknap testified that previously there were no restrictions on
pressroom employees’ having foot or canned soda at ma-
chines. Belknap further testified that there were two morning
buzzers, one at 6:55 and one at 7 o’clock. The first was a
warning buzzer to those scheduled to be at work at 7 a.m.
Belknap further testified that Estel told the employees that
they had to be in front of his office when the first morning
buzzer went off.33 Belknap further testified that before Au-
gust 24 the employees would stay in their working area until
10 minutes before quitting time and then ’’go clean up’’ (an
apparent reference to time for what is called ‘‘personal clean
up’’ as opposed to ‘‘area cleanup’’). Belknap testified that on
August 24 Estel told the pressroom employees that in the
afternoons employees must continue working (and, appar-
ently doing area cleanup) until 5 minutes before quitting
time; then, apparently, they were to do their personal clean
up. Belknap further testified that Estel further told the em-
ployees that they could be ‘‘written up’’ for any violations
of the rules he had mentioned, except, as Belknap further re-
lated, Estel stated that he would not enforce the rule about
going to the bathroom unless his sufferance was being
abused.
Estel testified that he had been a supervisor since Feb-
ruary. Estel did not contradict any of Belknap’s testimony
about new rules for reporting in the morning and reporting
back from breaks. Estel did testify that when he started
working for Respondent early in 1989, the area cleanup time
was 10 minutes, but, at some unspecified time, he increased
it to 15 minutes because the employees were not getting the
area sufficiently clean. Estel testified twice that his current
policy in the pressroom was to allow 15 minutes to clean the
area; then he testified that 2 months before the hearing (or
early 1990) he had changed it back to 10 minutes. Estel was
asked on direct examination if he had, in August, eliminated
‘‘clean up time,’’ and he denied it.
Estel’s testimony did not mention any allowance for per-
sonal cleanup, and Belknap’s testimony did not include any
allowance for area cleanup. To be fair to both, one must say
that Estel presumably included some personal cleanup time,
and Belknap considered area cleanup as part of his job to be
done before personal cleanup time began.
Edward Bowerman testified that the employees had always
been given 5 minutes of personal cleanup time, and there
were no changes in August.
Estel’s account of a 15-minute cleanup time being cut
back to 10 minutes is completely uncorroborated, and I do
not credit it. Even if credited, it is not a denial of Belknap’s
testimony of an August reduction in personal cleanup time
for the pressroom employees and I believe that is what hap-
pened. I find that Bowerman was speaking of what he had
thought was a companywide rule of 5 minutes of personal
cleanup time, but Estel had been allowing 10 minutes for
personal cleanup. Estel’s announcement of August 24 was,
therefore, an announcement that the pressroom employees
were going back to 5 minutes of personal cleanup time.
Gary Dubois testified that about this time34 Front-Shop
Welding Line Foremen Dick Barnett and Tom Veatch told
the welders that they no longer could have snacks or drinks
on the line; they had to tell a foreman before they could to
go to the bathroom during worktime; and they had to stay
at their work stations until a lunch or break buzzer went off;
and they had to be back when the break-ending buzzer went
off. Before, the employees were allowed drinks and snacks,
and they were allowed ‘‘a minute’’ after a return-to-work
buzzer sounded. Neither Veatch nor Barnett testified, and I
credit Dubois.
Employee Joe Palmer testified that on August 24, Super-
visor Ron Truitt told the 20 to 25 backshop employees that
the supervisors had had a meeting with Edward Bowerman
and ‘‘there would be no more eating35 or drinks on the
[welding machines] and you had to have permission to go to
the bathroom or leave the back shop.’’ Palmer testified that,
theretofore, the backshop employees had been allowed to
have soda at their work stations, and they could go to the
bathroom if they told their other crewmembers where they
were going; Truitt was there about half the time. On cross-
examination, Palmer acknowledged that Truitt also told the
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Testimony of Scott Bowerman at Tr. 830.
backshop employees that the Company had lost $400,000 the
month before because of ‘‘everyone standing around and
smoking and drinking.’’ Truitt testified, but not on this point,
and I credit Palmer.
Employee Doris Martinez testified that in August Assem-
bly Foreman Dirling told the employees that he had been
told to tell the employees that there would be no more eating
or drinking on the line.
Dirling testified that the rules against having food or drink
at the assembly work stations had been in effect since, at
least, early 1989 when he began working there. He testified
that sometimes the rules are not strictly enforced, but during
the summer Edward Bowerman told all supervisors ‘‘that the
paper and cups and everything; it was on the floor; that we’d
better start enforcing this rule a little bit tougher so that we
can keep our areas clean.’’ Afterward, he told the assembly
employees that Bowerman had told the supervisors to ‘‘start
enforcing that rule a little bit more so that we can keep our
areas clean.’’ He further testified that the rules are still in ef-
fect and ‘‘we’ve tried to enforce it.’’
Joe Edwards, supervisor of welders in subassembly, testi-
fied that he told his subordinates that higher management
wanted the rules against eating and drinking enforced, but he
would not enforce the rules against having canned sodas at
their work stations as long as they kept the area clean.
Edward Bowerman was asked on direct examination and
testified:
Q. Do you have any rules on whether employees can
have food or drink at their work stations?
A. We try to keep that at a minimum.
Q. Let me stop you right there. Can you answer that
yes or no; first of all, before you describe it?
A. Yes.
Q. Have those rules ever changed while you’ve been
in business?
A. Only to the point of at times the supervisors get-
ting lax and in enforcing the rules.
Q. Okay. Would that be a change in the rule or. . . .
A. No, just the supervisors getting lax.
Q. Okay. What are your rules on food and drink at
the work stations?
A. None.
Q. Can you explain that a little bit more. What do
you mean by ‘‘none.’’
A. They have no food and they have no drink; and
‘‘drink’’ is coffee, pop.
Bowerman testified that the reason for this rule was fire safe-
ty. When asked to state the bathroom-break policy,
Bowerman replied, ‘‘We like to hold it to every 2 hours.’’
When asked if that rule had ever changed, Bowerman re-
plied, ‘‘As far as I know, I’ve never had anybody on the
floor have a mishap.’’ When asked for explanation of Re-
spondent’s policy on break buzzers, Bowerman testified that
employees get 10-minute breaks which starts at one buzzer
and ends with another; then the employees are expected to
return to their workstations and begin working. When asked
if the break buzzer policy had ever changed, Bowerman re-
plied, ‘‘Not as far as I know.’’
There is much disagreement about what rules may have
existed before August 24; apparently things worked dif-
ferently in different departments. However, it is clear from
Respondent’s own witnesses, and the undisputed testimony
of the General Counsel’s witnesses, that on August 24
changes in rules regarding drinks and snacks at the working
area, reporting and cleanup times, and bathroom privileges
were being announced, and all changes were for the more
onerous. Either new rules were being created or old ones,
previously unenforced, were thereafter to be enforced. The
best example is the drinks situation; even Bowerman per-
sisted in admitting, until his lawyer guided him away from
it, that, while a prohibition had previously existed, enforce-
ment had been ‘‘lax.’’
Respondent adduced no evidence that employees were cre-
ating a fire hazard, or even unsightliness, or were being late
in reporting to their work stations, or were leaving their work
stations early, or were abusing bathroom privileges before
August 24. Certainly, Respondent adduced no evidence that
it had sought, and failed, to achieve discipline through invo-
cation of previously existing rules. That is, Respondent ad-
duced evidence of no legitimate purpose for the August 24
announcements.
Absent any explanation for the announcement, and in the
context of Respondent’s virulent animus toward the protected
organizational effort then being conducted by its employees,
an inference of unlawful motivation in the effectuation of the
onerous new work rules is warranted. Weathershield of Con-
necticut, 300 NLRB 93 (1990).
As in Weathershield, the only defense offered an the un-
substantiated conclusion of the official who was responsible
for effectuating the rule changes; Edward Bowerman testified
that there were no changes that he knew of. In this cir-
cumstance, Respondent has not met its burden under Wright
Line, and I therefore find and conclude that the General
Counsel has proved the allegation that Respondent imple-
mented more onerous work rules on August 24, in violation
of Section 8(a)(3) of the Act.
c. The elimination of the perfect attendance bonuses
As noted above, in May, Respondent instituted a bonus of
$25 for 1 month’s perfect attendance. It is undisputed that
in October Respondent did not pay the bonus for September,
and that it has not paid the bonus since October 1. The com-
plaint alleges the elimination of the bonus to be a violation
of Section 8(a)(3) of the Act.
As in the case of the imposition of new, onerous work
rules, Respondent offers no explanation for the change.
For the reasons cited above in the case of the imposition
of the work rules, under Weathershield and Wright Line, I
find and conclude that this allegation of the complaint has
also been proved.
d. The discharge of Thomas McClughen
The complaint alleges that Respondent discharged Thomas
McClughen because of McClughen’s union activities and
thereby violated Section 8(a)(3) of the Act.
McClughen began working as a welder on June 27, 1988,
and was fired on December 5, 1989. Respondent has a pro-
gressive disciplinary procedure that provides for verbal
warnings, written warnings, and suspensions before dis-
charges.36 Before his discharge, McClughen had received no
disciplinary action. There is no evidence that he was consid-
339YUKON MFG. CO.
ered anything but a good worker, as noted above, Veatch ap-
pointed him to be the welding department’s representative on
the Employee Committee, the labor organization (unlawfully)
established by Respondent.
McClughen was an early activist on behalf of the Union,
and knowledge of his sympathies is not denied. McClughen
attended all union meetings and solicited employees to join
the Union. He received union literature in the mail from the
Union’s headquarters in Detroit, and he distributed that lit-
erature among the employees. At work, McClughen wore
union buttons and had a union sticker on his welding helmet.
He also had a union sticker on his pickup truck which he
drove to work. McClughen was in attendance at the June 6
union meeting which was surveilled by various of Respond-
ent’s supervisors, as discussed supra.
As noted above, in June, as well as interrogating
McClughen in violation of Section 8(a)(1) of the Act, Super-
visor Veatch told McClughen, ‘‘you’d better start covering
yourself . . . you’d better watch that union stuff; its going
to get you into a little problem.’’
Before he was discharged, McClughen had a job-related
back injury. Both before and after his discharge, McClughen
was treated at Chiropractic Professional Offices in
Coldwater. The secretary-receptionist at that clinic is Lois
Voelzke who testified in this matter on May 2. Voelzke testi-
fied that on April 23 (or 12 days before she appeared) she
called Respondent to inquire about payment on its account
for McClughen. Voelzke was referred to Judy Bowerman.
Voelzke testified that during the course of her conversation,
Judy Bowerman stated, ‘‘you know, he’s the one that’s been
causing all this trouble with the Union . . . so they had to
let him go.’’ Voelzke also made a file note of her conversa-
tion that was received in evidence:
4/23/90—Called Yukon about patient’s bill. Judy told
me that Tom had gone to workers comp. I ask for that
date but she said she didn’t have his file in her office.
She stated that he was the one that started all the trou-
ble about the union and that’s why ‘‘ they’’ left [sic]
him go.
Judy Bowerman admitted talking to Voelzke, but denied
the remark attributed to her. Voelzke is an individual of un-
assuming visage and speech, and she has been shown by Re-
spondent to have no interest in the outcome of this case. In-
deed, her testimony could conceivably affect her adversely,
as her employer could well suffer a business loss because of
her appearance and testimony against Respondent. Moreover,
Voelzke was testifying about an event that happened only 3
weeks before she testified, and it is exceedingly unlikely that
there was any mistake caused by the passage of time. I credit
Voelzke.
On such evidence, I conclude that the General Counsel has
presented a prima facie case that McClughen was discharged
in violation of Section 8(a)(3) of the Act.
Respondent contends that McClughen was discharged on
December 5 because of certain of his conduct that date while
he was welding racks that were to be used by Ford Motor
Company for shipping automobile transmissions.
The rack in question here is 54 inches wide, 88 inches
long, and 25 inches deep. It holds eight transmissions at a
time. The racks are produced on an assembly line along
which welders are stationed at various points. The last three
stations are called ‘‘tail welding’’ stations, and the fourth-to-
last station is called ‘‘subassembly A.’’ The welders on sub-
assembly A work in pairs. On December 5, McClughen and
Dubois were the subassembly A welders. Joe Edwards was
the line foreman (having succeeded Veatch who left about
September l); and Scott Bowerman, son of owner Edward
Bowerman, was the manufacturing engineer.
According to Scott Bowerman, after he had twice in-
structed McClughen and Dubois to do their welds more accu-
rately, he stepped back to watch them work and
Tom’s side was off a little bit. I said, ‘‘hey, Tom,
that’s off a little bit.’’ He ripped the [measuring] jig out
of the rack, and he said, ‘‘if you want it done different,
you do it yourself,’’ and he took the jig and threw it
to the other end of the rack.
Scott Bowerman further testified that he said nothing to
McClughen at the time. He stood there and watched
McClughen and Dubois as they continued working.
Bowerman checked the nest rack that they welded and found
it satisfactory; then he went back to his office where he went
back to work. Further, according to Scott Bowerman, Edward
Bowerman stopped by the office later and asked how things
were going. Scott Bowerman said there had been problems
on the line. Edward Bowerman asked what the problems
were. Scott Bowerman told him that McClughen and Dubois
were not taking enough time to place their welds, and he fur-
ther told him of McClughen’s alleged conduct. At that point
Edward Bowerman decided to fire McClughen.
Edward Bowerman testified that he decided to discharge
McClughen for insubordination. When asked to elaborate,
Bowerman went into a tirade which included ‘‘attitude prob-
lems,’’ slowdowns that were always in McClughen’s area,
inferior workmanship and ‘‘he was handling this checking
fixture [the jig] like a piece of tube and throwing it up
against the wall or throwing it on the floor.’’ At that point
his lawyer interrupted him. When he got back on track
Bowerman continued:
He told our engineer [Scott Bowerman] that, you
know, if he wanted it that way, he could do it himself.
[If it] wasn’t good enough, do it yourself, and I guess
it was daylight under my feet, and I said, you know,
‘‘this guy’s gone, I’ve had it. Everybody’s got to work
together to get their job done.’’
After Edward Bowerman left Scott Bowerman’s office,
Scott Bowerman had Edwards bring McClughen to his of-
fice. When Edwards finished escorting McClughen to the of-
fice, Edwards went on to lunch and did not hear what hap-
pened between Scott Bowerman and McClughen.
Scott Bowerman fired McClughen. Bowerman testified
that he told McClughen that McClughen was being dis-
charged for faulty workmanship. Bowerman did not testify
that he mentioned ‘‘insubordination’’ as well, but
McClughen’s testimony about the discharge interview makes
it clear that Bowerman did so.
Edwards testified that he was present on the welding line
when McClughen told Scott Bowerman ‘‘if he could do it
better himself, he’d best go ahead and do it.’’ Edwards fur-
ther testified that, about 20 minutes later, after everybody
had gone back to work, he was called to Scott Bowerman’s
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 Further evidence that Scott Bowerman did not consider the jig-
throwing incident to be significant is the fact that, as related by
McClughen’s unrebutted testimony, the jig was not mentioned in the
discharge interview.
38 See Electri-Flex Co., 238 NLRB 713, 725 (1978).
39 As noted above, McClughen was previously considered a good
employee; Respondent even appointed him to be a welding depart-
ment representative to the Employee Committee. Moreover, at one
point Edwards admitted that he had previously given McClughen
and Dubois a ‘‘tail welding’’ job ‘‘more or less to feel around—try
to get the two best guys on that job to push the line.’’
office where he found Scott Bowerman in an upset state. Ed-
wards testified that he and Bowerman decided to write
McClughen up for poor workmanship and ‘‘[w]e, in turn, we
made up termination papers because Tom McClughen had
refused work by telling Scott that [if] he could do it better
to go ahead and do it himself.’’ Then, according to Edwards,
he went to McClughen and escorted him back to the office;
then he went to lunch.
McClughen testified that his back had been hurting that
day and, after the third instruction by Scott Bowerman, he
told Bowerman ‘‘get somebody else to do this job; my back
is hurting me; get somebody else to do it.’’ Edwards told
McClughen that he was going to get McClughen a replace-
ment and for McClughen to keep working, which
McClughen did. Then, as lunchtime approached, Edwards ap-
peared and took him to the main office. Once there, Scott
Bowerman told Edwards that he was tired of him telling him
to do the work himself. McClughen denied to Bowerman that
he had said such. Bowerman replied, ‘‘[w]ell, it doesn’t
make any difference if you own up to it or not, you’re doing
sloppy work.’’
Dubois supported McClughen in his denial that he told
Scott Bowerman to do the work himself. I believe
McClughen and Dubois. If McClughen had said that, or any-
thing like it, Bowerman would have done something, any-
thing, on the spot and not waited until Edward Bowerman
heard about it later.
Particularly incredible was Edwards who testified that it
was he and Scott Bowerman who decided to discharge
McClughen. This testimony made no sense, especially as
both Bowermans testified that Edward Bowerman made the
decision when the Bowerman, were in Scott Bowerman’s of-
fice; they made no mention of Edwards’ presence or Ed-
wards’ having anything to do with the decisional process.
Edward, was obviously trying to advance any story line that
he thought might help Respondent, and I believe his men-
dacity spilled over into his account of what McClughen had
said to Scott Bowerman. Moreover, Edwards did not deny
that he told McClughen that he would get someone to re-
place McClughen. Edwards’ telling McClughen that he
would find a replacement for McClughen is altogether con-
sistent with McClughen’s testimony that he told Scott
Bowerman to find another employee to do the work at sub-
assembly A.
I do find that, at some point in the morning, McClughen
did throw the jig to the end of the 88-inch rack (but not on
the wall or the floor, as Edward Bowerman’s embellished
version would have it). Scott Bowerman was credible on this
point. Also, McClughen was not called in rebuttal to deny
throwing the jig, although I stated on the record that I was
going to be required to find if McClughen threw the jig and
to find if that action was all, or part, of the reason for dis-
charge.
However, I further find that although McClughen did
throw the jig it had nothing to do with his discharge, except
to serve as part of a pretext for discharging him.
Edward Bowerman, who made the decision to fire
McClughen, found out about the incident only because he
happened to drop by Scott Bowerman’s office that morning
and asked if there had been any problems that day. That is,
until that point, Scott Bowerman had treated the morning’s
events at subassembly A as no more than routine production
problems and an employee’s momentary fit of pique, not
worthy of discipline or even comment. Certainly, Scott
Bowerman had not sought out Edward Bowerman to seek
permission to discharge McClughen, or otherwise discipline
him, assuming that Scott Bowerman did not possess the au-
thority to do something himself.37 Although Scott Bowerman
was willing to let the events of the morning go, Edward
Bowerman viewed them as much more; ‘‘a light under my
feet’’ as Edward Bowerman phrased it.
Edwards’ testimony that he found Scott Bowerman upset
when he reached Bowerman’s office was probably true.
However, in view of the fact that Scott Bowerman had done
nothing immediately on suffering the alleged insubordination
by McClughen, logic leaves only the conclusion that the
onset of Scott Bowerman’s upset came after he had left the
production floor—probably when his father visited his office
and made the decision to fire McClughen for matters which
Scott Bowerman had let pass.
The Bowermans testified that McClughen was discharged
for insubordination and poor workmanship. Scott Bowerman
was insistent that the ‘‘insubordination’’ consisted of
McClughen’s refusal to do the job. But McClughen had not
refused to do the job; he continued working, and Scott
Bowerman stood back and watched. Bowerman even checked
McClughen’s work and found it satisfactory. Respondent’s
reliance on a palpably false assertion that McClughen had re-
fused to work demonstrates the pretextual nature of Respond-
ent’s entire line of defense. Moreover, assuming that
McClughen’s ‘‘insubordination’’ consisted of an insolent re-
mark and/or the throwing of the jig, and further assuming
that McClughen was guilty of inferior workmanship on that
day and/or on other days, there is still no accounting for the
acquiescence and inaction by Scott Bowerman until Edward
Bowerman saw ‘‘the light under [his] feet.’’
Further, there is the element of Respondent’s refusal to af-
ford McClughen the benefits of its progressive disciplinary
system. Edward Bowerman testified that McClughen was not
given a warning or suspension because McClughen’s telling
Scott Bowerman to do the work himself equated with being
caught stealing or smoking marijuana. The aggrandizement
of the offense is, itself, indicative of pretext.38 Moreover, my
credibility resolutions here are that McClughen did not tell
Bowerman to do the work himself; it did not happen.
Assuming that on December 5 McClughen was guilty of
some degree of faulty workmanship,39 there still remains no
reason for Respondent’s failure to afford McClughen the pro-
tection of its progressive disciplinary system. Scott
Bowerman had done nothing about the conduct of
McClughen, until Edward Bowerman saw the ‘‘light’’ under
his feet, but Scott Bowerman testified that McClughen was
341YUKON MFG. CO.
40 The jig is frequently used to measure for points at which welds
are made.
41 Transportation Enterprises, 240 NLRB 551, 560 (1979)
42 Some of the employees involved in the second December layoff
were actually laid off a day or two before December 22. Any rem-
edy will date from the exact date of the individual cases; however,
for purposes of convenience, I shall refer to all of these cases as
‘‘the December 22 layoff.’’
43 To be distinguished is Knoxville Distribution Co., 298 NLRB
688 (1990), cited by the Charging Party, where an employer’s call-
ing previously discharged and reinstated employees ‘‘troublemakers’’
before their layoff was held to constitute evidence of animus that
would support the conclusion their subsequent layoffs were violative.
not afforded the protection of the progressive disciplinary
system because:
Any time you take a piece of tool that’s worth as
much as that jig, that located as much as sub assembly
A located,40 from one end to another, there’s no need
for a written warning. That’s immediate termination.
Scott Bowerman did not think it was grounds for ‘‘imme-
diate termination’’ when it happened; therefore, this testi-
mony is a post hoc rationalization for denying McClughen
the benefit of the progressive disciplinary system, if, indeed,
any discipline had been called for at all. This failure to af-
ford McClughen the protection and benefits of Respondent’s
progressive disciplinary system raises a ‘‘strong inference’’
that the termination was imposed because of his protected ac-
tivities.41
In these circumstances, it must be concluded that Respond-
ent has failed to prove that McClughen would have been dis-
charged for any of his conduct of December 5, absent his
union activities.
In summary, the General Counsel has established a prima
facie case that McClughen was discharged because of his
known union activities, and, the reasons asserted for the dis-
charge of McClughen being pretextual, I find and conclude
that Respondent discharged McClughen because of those
union activities, and that by this discharge Respondent vio-
lated Section 8(a)(3) of the Act, as alleged.
4. Alleged violations of Section 8(a)(3) and (5)
a. The layoffs of December 12 and 22
On December 12, Respondent laid off all but two of the
approximately 15 pressroom employees. On December 22,
Respondent laid off all 90 of the bargaining unit employees
except 2 pressroom setup men and 3 maintenance employ-
ees.42 Some of the employees involved in the December 12
layoff were recalled the next day, but others were not re-
called for several days. One employee, Robert Binion, was
not recalled from the December 12 layoff at all. For most
of the employees laid off on December 22, the layoff lasted
only until January 2, l990, but for several pressroom employ-
ees the December 22 layoff became permanent.
The complaint alleges that both December layoffs con-
stituted unilateral actions in violation of Section 8(a)(5) of
the Act, as well as discrimination in violation of Section
8(a)(3).
Respondent admits that it did not bargain about the De-
cember layoffs; it denies a violation of Section 8(a)(5) oc-
curred, arguing that the Union was not lawfully selected as
the collective-bargaining representative of the employees at
the time.
An employer acts at its peril by committing unilateral ac-
tions while its objections to a Board election are pending; if
the objections are overruled, the unilateral actions will be
held to be violative under Section 8(a)(5) of the Act. Be-
cause I have found that Respondent’s objections to the Octo-
ber 20 election must be overruled, it follows that Respondent
violated Section 8(a)(5) of the Act by failing to notify the
Union of its decision that both of the December layoffs were
necessary and by failing to give the Union the opportunity
to bargain over the layoffs and the recalls from the layoffs,
as I find and conclude. Clements Wire & Mfg. Co., 257
NLRB 1058 (1981); United Gilsonite Laboratories, 291
NLRB 924 (1988).
As noted, the complaint also alleges that by implementa-
tion of both December layoffs Respondent violated Section
8(a)(3). The complaint further alleges that Respondent vio-
lated Section 8(a)(3) by its refusal to recall certain employ-
ees from the December 22 layoff. (There is no allegation that
the delays in recalling employees from the December 12 lay-
off violated Section 8(a)(3) of the Act; however, see the dis-
cussion of the issue under Section 8(a)(5), infra.)
Layoffs are common in this industry, and there was much
discussion about prior layoffs by Respondent; specifically,
there is evidence that Respondent had a plantwide Christmas-
time closure the year before. There is also no evidence that
would constitute some logical nexus between the December
layoffs and any activity of the Union or the employees.
(Contrast the immediacy of the service of the charge filed by
Stockford and the June 8 layoff of employees on the produc-
tion line on which her fiancee, Densmore, worked.) Specifi-
cally, there is no evidence that by either December layoff
Respondent intended to punish the unit employees because of
the organizational effort that had culminated in the October
20 election. There is evidence, as I discuss infra, that the re-
fusals to recall certain employees from the December 22 lay-
off were unlawfully motivated; however, that evidence will
not suffice retrospectively to impute animus for what had
gone on before. See Marlan Lewis, Inc., 270 NLRB 432
(1984), in which the Board held that evidence that would
support a conclusion that an employer unlawfully discrimi-
nated in recalling employees from layoff would not, without
more, support an allegation that the layoff had theretofore
been unlawfully extended for all employees.43 Therefore, be-
cause the General Counsel has failed to present a prima facie
case to support the allegations that by the layoffs of Decem-
ber 12 and 22 Respondent violated Section 8(a)(3) of the
Act, as well as Section 8(a)(5), I shall accordingly rec-
ommend dismissal of those allegations.
Although there is no allegation that Binion was
discriminatorily denied recall from the December 12 layoff,
the matter was fully litigated. Binion was named in the
Union’s letters to Respondent as one of the organizing com-
mittee members, but Binion denied that he was, in fact, a
member of that committee, and there is no evidence to indi-
cate that Binion was singled out for a discriminatory denial
of recall from the December 12 layoff. However, assuming
that a prima facie case has been stated on his behalf, I find
that Respondent has established a defense, under Section
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 Clements Wire & Mfg. Co., supra.
45 Wallen was one of the most active union adherents; indeed, the
Union notified Respondent that Wallen had been removed from the
organizing committee, apparently for overzealousness.
8(a)(3), but not Section 8(a)(5), for its failure to recall
Binion.
Estel testified that Binion was never recalled because be-
fore the layoff of December 12 Binion had asked Estel to lay
him off ‘‘because he wanted to move back down South.’’
Binion was called in rebuttal by the General Counsel and de-
nied that he had volunteered for the December 12 layoff or
that he told Estel that he was moving out of the area. (Binion
further testified that he had not moved out of the area; he
had moved to another address in the nearby Hillsdale area,
but not until February.) Binion further testified that when he
left Respondent’s employment, he left with someone at Re-
spondent’s office his aunt’s telephone number because he did
not have a working telephone himself. His aunt’s telephone
number has not changed. On direct examination, Binion was
asked if he had contacted ‘‘the plant’’ about going back to
work. Binion testified that he had done so 3 weeks before
he testified (or 1 week before the hearing began).
Estel was credible in his testimony that Binion had told
him that he planned to move from the area. Moreover, had
Binion not actually planned to move away, or otherwise in-
tended to abandon his employment, he presumably would
have contacted Respondent, or the Union, about recall possi-
bilities at some point before late March l990, or 1 week be-
fore the hearing. Binion testified that Respondent had a tele-
phone number through which he could have been reached;
however, he had told Estel that he was moving away, and
Respondent’s agents had every reason to believe that Binion
had done so. While Respondent’s agents were under that im-
pression, Respondent had no duty to seek Binion out for pur-
poses of recall.
In view of these findings, I conclude that Respondent has
successfully rebutted any prima facie case that the failure to
recall Binion was based on discriminatory motivation, and I
shall recommend dismissal of the complaint to the extent that
it alleges a violation of Section 8(a)(3) by Respondent’s fail-
ure to recall Binion from the December 12 layoff.
However, there is still the 8(a)(5) allegation regarding Re-
spondent’s failure to recall Binion. Respondent’s period of
ignorance of Binion’s desire to stay in the area ended shortly
after Binion filed an unemployment claim on January 25. Re-
spondent received notice of that filing, presumably in due
course of the mails after that date, and its duty to conduct
recalls pursuant to bargaining with the Union was ongoing
as of the date of that service.44 Respondent failed to bargain
about Binion’s recall, as it failed to bargain about all other
recalls from the December layoffs, and its failure violated
Section 8(a)(5) of the Act, as I find and conclude.
There is evidence that Respondent did deny some employ-
ees recall from the December 22 layoff in violation of Sec-
tion 8(a)(3).
Six pressroom employees were never recalled from the
December 22 layoff: Boyd Cox, Robert Belknap, Larry Cor-
nell, Clifford Johnson, Glidden Wallen, and Alex Ronzak.
All were employed on the day shift under Estel except John-
son who was employed on the night shift under Bailey. Ex-
cept for Ronzak, all six were members of the Union’s in-
plant organizing committee and otherwise active on behalf of
the Union.
Boyd Cox, a press operator, testified that he went to the
plant in mid-January to ask his supervisors why he had not
been called back. Cox approached Scott Bowerman and
spoke to him in the presence of employee Robin Boudrie,
Estel, and one ‘‘Gene.’’ According to Cox:
I says, ‘‘Scott,’’ and I said, hey Scott, how come I’m
not back to work? And I was talking, you know, in a
voice just like I am now, and he raised his voice; he
says, ‘‘We don’t have to call back complainers, trouble-
makers . . . and the people that don’t kick out produc-
tion . . .’’ and [he] said, ‘‘just—damn Union just about
got us broke, and there’s going to be changes.’’
Boudrie testified that he witnessed part of this exchange.
Boudrie testified that he heard Bowerman respond to Cox
that ‘‘the company would call back who they wanted, when
they wanted and did not have to call back anybody they
deemed troublemakers or boisterous people.’’ At that point,
Boudrie testified, he went back to his work station.
Bowerman and Estel denied this testimony; however, I
found Cox and Boudrie credible.
Robert Belknap was one of the more active union adher-
ents, and Respondent was fully aware of it. Indeed,
Belknap’s alleged conduct on behalf of the Union was made
the subject of two of the Employer’s objections to the Octo-
ber 20 election discussed above: electioneering at the polls
and ‘‘harassing’’ of Betty Turner, an outspoken employee
opponent of the Union. Employee Kurt Henning testified that
in late January, when other employees had been recalled, but
Belknap had not, he witnessed Estel speaking to Edwards
and Quality Control Technician Frank Tabalski. According to
Henning:
I heard Frank Estel say that Bob Belknap would not
be called back because of he supported the Union and
that he had his mind on the, excuse me on the French,
on the Union instead of the f—king job he was sup-
posed to do.
Tabalski did not testify; Estel and Edwards denied that any
such incident occurred, but I found Henning credible, as
noted in my findings above.
Henning further testified that on the Friday before the De-
cember 22 layoff he heard Estel and Belknap talking and that
Estel told Belknap that if ‘‘they,’’ apparently the office, did
not call back Belknap ‘‘by a certain date, that Mr. Estel him-
self would call him back.’’ Although a suspicion about this
testimony is created because Belknap did not mention any
such remark in his testimony, Estel did not deny the remark,
and Henning otherwise appeared credible. Therefore, I find
that Estel assured Belknap that he would be recalled after the
December 22 layoff.
Although there is no like evidence of specific animus to-
ward the union membership or activities of the three other
union organizing committee members who were not recalled
from the December 22 layoff (Wallen,45 Johnson, and Cor-
nell), I find that the General Counsel has made out a prima
facie case as to all five members of the union organizing
343YUKON MFG. CO.
46 Tr. 998, LL. 23 and 25 are corrected to change ‘‘deburg’’ and
‘‘deburged’’ to ‘‘debur’’ and ‘‘deburret.’’
47 On direct examination, Estel testified that Belknap’s physical re-
striction limited his ability to use 5 of the 10 presses in the shop.
On cross-examination, after long pauses, Estel could name only two
such presses, thus proving himself incredible on this point, as well
as many others.
committee for the following reasons: (1) Before the layoff,
Estel had stated that he would recall Belknap personally if
the office did not. Then, after the other employees had been
recalled, Estel told Edwards and Tabalski that Belknap would
not be recalled because he had his mind on the Union more
than his job. It is safe to conclude from this inconsistency
that during the layoff a decision had been made to use the
recall procedures as a vehicle for ridding Respondent of ac-
tive union adherents. (2) Scott Bowerman told Cox that the
reason he was not being recalled was because he was a
‘‘troublemaker,’’ a term of antipathy that is commonly used
by antiunion employers, such as Respondent, for prounion
employees, such as Cox and the other members of the
Union’s in-plant organizing committee. At the same time,
Bowerman blamed the Union for the Respondent’s financial
troubles. There is no reason to believe that the antipathy for
Cox’s activities did not radiate to other employees who were
similarly situated; i.e., those who had joined the union orga-
nizing committee or otherwise supported its effort at orga-
nizing, and who thereby had caused Respondent the financial
trouble to which Scott Bowerman had alluded.
Therefore, I find that the General Counsel has established
a prima facie case that five of the six alleged discriminatees
were denied recall from the December 22 layoff in violation
of Section 8(a)(3).
Conversely, no prima facie violation of Section 8(a)(3) has
been established in the case of Respondent’s refusal to recall
Konzak from the December 22 layoff. Konzak was not a
member of the union organizing committee and was not oth-
erwise active on behalf of the Union. Also, there is no con-
tention, or evidence, that Konzak was denied recall in order
to give an aura of legitimacy to the denials of recalls to the
five union organizing committee members who also were
laid off on December 22. Accordingly, I shall recommend
dismissal of the allegation that Ronzak was denied recall in
violation of Section 8(a)(3) of the Act. (However, as noted,
the failure to recall Ronzak from the December 22 layoff, as
well as the layoff itself, violated Section 8(a)(5) of the Act.)
The prima facie violations of Section 8(a)(3) having been
established for the denials of recall to Johnson, Wallen, Cox,
Belknap, and Cornell, Respondent is required to go forward
with evidence that the employees would have been denied re-
call absent their union activities. Wright Line, supra.
Respondent’s defense for not recalling Johnson is that
there was no work for him on the second shift under Bailey.
The remaining four, Respondent contends, were not recalled
because of alleged inferior work performances before the
strike layoff of December 22.
According to Estel: Cox started off as a good worker, but
then took to wandering around and bickering with other em-
ployees, and his production dropped. Wallen once was a
good worker, producing 200 to 300 parts per day, but then
his production dropped when he started drinking too much;
also Wallen ‘‘just roamed around to a lot of different depart-
ments.’’ Estel showed Wallen the production records which
reflected his serious drop in productivity, and Wallen prom-
ised to do better, but he did not. Belknap wandered around
and he had a medical restriction, which limited his useful-
ness; his production had once been good, but during the last
month and a half before the layoff ‘‘his even dropped.’’ Cor-
nell had been caught sleeping, and was given a written warn-
ing notice for it, on July 25; also, shortly after that, Cornell
did a bad deburring46 job; also, Cornell’s production had de-
clined continually.
Thus, Respondent’s defenses for failing to recall Cornell,
Belknap, Wallen, and Cox are twofold: poor production
and/or misconduct that preceded the layoff. I find that neither
defense has been proved.
In support of its defense that these four were poor pro-
ducers, Respondent offered only Estel’s conclusionary testi-
mony that the production of each employee had dropped at
some unspecified time before the December 22 layoff. On
cross-examination, Estel acknowledged that Respondent
keeps records of pressroom employees’ job numbers, number
of pieces produced on each job, and start and stop times. By
relying on such conclusionary testimony, rather than pro-
ducing extant records which would conclusively prove any
such defense, a prima facie case of unlawful discrimination
is not rebutted. Industrial Supply Co., 289 NLRB 639
(1988); Textron, Inc., 199 NLRB 131, 134 (1972). In
Belknap’s case, such records would have been particularly
decisive if there had been any truth at all to Estel’s testimony
that Belknap’s disability manifested itself at a particular
point after Belknap came back from a medical leave on July
17.47
Moreover, the General Counsel established that, although
Cornell had gotten a warning for sleeping on July 25,
Wallen, Belknap, and Cox had never received any written
warnings pursuant to Respondent’s progressive disciplinary
system, and pursuant to that system, Cornell had never been
suspended. On direct examination, without being asked, Estel
volunteered the explanation that he hat given no warnings
because: ‘‘I think they’re men, you know, and, at least
they’re supposed to be, so I tried to treat them that way the
best I could.’’ t another point Estel testified that he never
warned any of his subordinates about their conduct because
‘‘it didn’t do any good; they just tell me, ‘well, them write
ups don’t mean nothing.’ This was the response you’d get.’’
Estel did not testify that any of these four alleged
discriminatees ever gave such a response.
Estel testified that he verbally warned the employees about
their conduct. That was credibly denied by each of these four
alleged discriminatees; moreover, this testimony by Estel
does not answer the question of why they were not also
given the benefit of Respondent’s progressive disciplinary
system and further warned in writing and/or suspended be-
fore they were, in effect, discharged. The failure to afford
Wallen, Cox, Belknap, and Cornell the benefits of Respond-
ent’s progressive disciplinary system raises a ‘‘strong infer-
ence’’ that their terminations were imposed because of their
protected activities. Transportation Enterprises, supra. At
minimum, Respondent’s failure to warn these four employees
of their alleged misconduct compels the conclusion that the
misconduct did not occur. In Cornell’s case, there is no evi-
dence that he engaged in similar misconduct between the
July 25 warning notice for sleeping and the December 22
layoff.
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 I reject Bailey’s testimony that at Respondent’s plant, as op-
posed to other such plants, setup employees are not more skilled em-
ployees. Setup employees determine the end result of production;
such responsibility would not be entrusted to less than the best em-
ployees.
49 The 8(a)(3) case of Wilkes is to be distinguished from the
8(a)(3) case of Johnson. Wilkes was asking (the wrong persons) for
a complete change of classification. Johnson was (implicitly) asking
only for recall to the pressroom, the department in which he was
working at the time he was laid off. Moreover, Johnson was re-
placed by new and inexperienced workers; Wilkes was not replaced
at all.
Therefore, I find and conclude that Respondent has failed
to prove that Wallen, Cox, Belknap, and Cornell would have
been denied recall from the December 22 layoff because of
the poor production and/or misconduct attributed to them,
even in absence of their protected activities. Accordingly, I
find and conclude that, by its refusals to recall Wallen, Cox,
and Cornell, Respondent violated Section 8(a)(3) of the Act,
as well as Section 8(a)(5).
Equally pretextual, I find, is Respondent’s stated defense
for not recalling Johnson. Johnson had to have been a supe-
rior worker, or he never would have been made a setup
man.48 Johnson was originally a day-shift employee; but
rather than transfer him back to the first shift when produc-
tion resumed on January 2, Respondent made the decision to
deny him reinstatement permanently. After the six day-shift
pressroom employees were not recalled, there assuredly was
a ‘‘slot’’ for Johnson on the day shift. Even without the lacu-
nae created by the other six terminations, if any credence at
all is to be given to Estel’s testimony, better workers were
badly needed on the first shift. Respondent replaced Johnson,
and the others who were not recalled from the December 22
layoff, with new and inexperienced workers from personnel
pool, and elsewhere. No reason for not offering Johnson a
place on the day shift, rather than hiring new and inexperi-
enced employees, was offered.
I find that Respondent has therefore failed to rebut the
prima facie case that Johnson was not recalled because of his
union activities, and I accordingly conclude that by refusing
to recall Johnson Respondent has violated Section 8(a)(3) of
the Act, as well as Section 8(a)(5).
b. The layoff of Steven Wilkes
Steven Wilkes was hired on May 3, and was permanently
laid off on January 12, 1990; no other employee was laid off
on that date. At all times during his employment, Wilkes was
classified as a maintenance employee, but, during the first 3
months he ‘‘did welding,’’ as he testified, under Truitt. After
that he worked in the maintenance department under Walls.
Wilkes was one of four maintenance employees; he was un-
skilled, and the only nonroutine jobs he described were those
in which he helped others.
Wilkes became a member of the Union’s organizing com-
mittee shortly after the drive began in June. He wore a union
hat about half the time, and he often wore union buttons
while working. There is no evidence that any supervisor
spoke to Wilkes about his union membership or sympathies.
Wilkes was laid off by Walls who told Wilkes that the Re-
spondent was cutting back on maintenance expenses. Wilkes
asked Walls if he could go back to welding; Walls told him
to see Plant Manager Harman. Wilkes attempted to find Har-
man, but could not. He did find Judy Bowerman and he
asked her if he could be transferred to welding rather than
being laid off. Wilkes testified Judy Bowerman referred him
to Edward Bowerman; Edward Bowerman was out, so
Wilkes left the plant. A few days later, Wilkes returned to
the plant to get his tools. He went to see Walls and again
asked to be transferred to welding; Walls again sent him to
see Harman. Again, Harman was not there; again Wilkes
found Judy Bowerman and, again, she referred him to Ed-
ward Bowerman; again, Edward Bowerman was not there,
and, again, Wilkes left. Wilkes made no other attempts to se-
cure a transfer to welding.
After Wilkes’ layoff, Respondent advertised several times
for welders. On brief, the General Counsel and Charging
Party make no argument that Wilkes was discriminatorily se-
lected for layoff. However, to the extent that the complaint
could be interpreted to allege that there should have been no
layoffs in the maintenance department, or that Wilkes was
unlawfully selected for layoff, I reject it. The General Coun-
sel’s witnesses Hickerson and Boudrie (the latter being a
maintenance electrician) testified that after Wilkes’ layoff no
new maintenance helpers were hired; the retained employees
have continued to do all maintenance work. That is, no em-
ployee (with possibly less prounion sentiments) replaced
Wilkes, a further element that detracts from any inference of
discrimination.
The General Counsel and Charging Party argue that Re-
spondent should have allowed Wilkes to transfer back to
welding, as he requested of Walls and Judy Bowerman, and
that Respondent’s failure to do so constitutes a violation of
Section 8(a)(3). Both Walls and Judy Bowerman told Wilkes
to see someone else about his request to transfer from main-
tenance to welding, in so doing, they were denying that they
had the authority to grant such a request, and there is no evi-
dence that their disclaimers of such authority were false.
When Wilkes could not find Harman or Edward
Bowerman, Wilkes gave up. He did not ask Walls or Judy
Bowerman to convey his request to Harman or Edward
Bowerman; and he did not visit or telephone Harman or Ed-
ward Bowerman at a later date. Finally, when Respondent
later advertised for welders, Wilkes, according to this record,
did not apply.
Therefore, I find that the General Counsel has failed to
state a prima facie case that Wilkes was unlawfully denied
a transfer to welding because there is no evidence that any
responsible official of Respondent knew, or should have
known, that Wilkes desired a transfer from maintenance to
welding. Accordingly, I shall recommend that this 8(a)(3) al-
legation of the complaint be dismissed.49
However, the complaint also alleges that the layoff of
Wilkes violated Section 8(a)(5) of the Act and, as noted, Re-
spondent admits that it has never bargained with the Union.
Again, because I have found that at all times following the
October 20 election, the Union has been the collective-bar-
gaining representative of the production and maintenance
employees, Respondent at all times thereafter has had a duty
to bargain with the Union over such issues as layoffs and re-
calls, and its failure to do so in the case of Wilkes’ layoff
constituted another violation of Section 8(a)(5) of the Act, as
I find and conclude.
345YUKON MFG. CO.
50 Van Dorn Plastic Machinery Co., 265 NLRB 864 (1982).
51 Johnson-Bateman Co., 295 NLRB 180 (1989); Storer Commu-
nications, 297 NLRB 296 (1989).
52 Ibid.
5. Other alleged violations of Section 8(a)(5)
a. The disciplinary ‘‘point system’’ of attendance
control
The complaint alleges, and the answer admits, that:
29. On or about November 6, 1989, Respondent im-
plemented a new ‘‘point system’’ for employee absen-
teeism and late reporting.
30. Since implementation of the point system re-
ferred to above in paragraph 29, Respondent has taken
disciplinary action against employees pursuant to said
system, by, [inter alia,] on or about January 16, 1990,
suspending its employee, Kirk Henning.
Henning testified, without objection or contradiction, that
in January he was suspended for 3 days pursuant this ‘‘point
system’’ of disciplinary absence control, and that, in Feb-
ruary, he and employee Kurt Loomis were discharged pursu-
ant to the system. Also, the parties stipulated that Michael
Wilkes was discharged on March 2, 1990, pursuant to the
disciplinary ‘‘point system’’ of attendance control.
Respondent had a duty to bargain with the Union before
it implemented or enforced such a disciplinary system;50
therefore, its unilateral establishment of the disciplinary
‘‘point system’’ of attendance control on November 6, and
its subsequent discipline of employees pursuant to the sys-
tem, violated Section 8(a)(5) of the Act, as I find and con-
clude.
b. The drug abuse program
At one point in his direct examination, Edward Bowerman
volunteered that employees were subject to drug testing. On
cross-examination, Bowerman testified that Respondent had
established its disciplinary drug-testing policy in early 1990.
The General Counsel then moved to amend the complaint to
allege that such action constituted a violation of Section
8(a)(5). After the amendment was granted, Judy Bowerman
was called by Respondent to testify that the drug-testing pol-
icy had existed since before the October 20 election. Judy
Bowerman’s testimony was wholly unsupported and unbe-
lievable. Presumably, if such a program had previously ex-
isted, it would have come to the attention of Edward
Bowerman. (Edward Bowerman concerned himself with mat-
ters such as whether the employees drank soda at machines
or left trash on the floor; presumably, he concerned himself
with the more vital issue of possible employee drug use as
well.)
As in the case of the disciplinary absence control program
Respondent had a duty to bargain with the Union before im-
plementing such;51 therefore, its unilateral establishment of
the drug abuse progress, and any discipline that may have re-
sulted from it, violated Section 8(a)(5) of the Act.52
CONCLUSIONS OF LAW
1. Respondent Yukon Manufacturing Company is an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. International Union, United Automobile Aerospace and
Agricultural Implement Workers of America, UAW (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed by
Section 7 of the Act by the following acts and conduct,
thereby violating Section 8(a)(1) of the Act:
(a) On April 21, by Bailey, Respondent threatened em-
ployee Stockford with plant closure if the employees orga-
nized and attempted to bargain collectively.
(b) In May, by Veatch, Respondent threatened employee
Stockford with plant closure if the employees organized and
attempted to bargain collectively.
(c) During the last week in May, by Paille, Respondent
told employee Densmore that it would be futile for the em-
ployees to seek representation by the Union.
(d) On June 2, by Paille, by Respondent, conveyed the im-
pression to employee Stockford that Respondent had con-
ducted surveillance of the employees’ union activities.
(e) On June 2, by Judy Bowerman, Respondent unlawfully
prohibited employee Stockford from distributing union lit-
erature to other employees in a nonworking area during the
employees’ nonworking time.
(f) On June 3, Respondent promulgated an unlawfully
broad written rule prohibiting employee distribution of union
literature in all areas of the plant property.
(g) On June 5, Respondent promulgated an unlawfully
broad written rule denying to off-duty employees entry to
parking lots, gates, and other outside nonworking areas.
(h) On June 6, by Walls, Dirling, Barnett, Bailey, and Har-
man, Respondent conducted surveillance of an employee
union meeting at the Litchfield Youth Center.
(i) In June, by Veatch, Respondent interrogated employee
McClughen about what had happened at a union meting.
(j) In early June, by Paille, Respondent interrogated Cox
about what had happened at a union meeting.
(k) In June, by Estel and Wilkinson, Respondent promised
Cox and other employees better supervision and future pay
and insurance improvements if they refrained from becoming
or remaining members of the Union or refrained from giving
any support to it.
(1) In June, by Estel and Wilkinson, Respondent threat-
ened employees that Respondent would close the plant if the
employees selected the Union as their collective-bargaining
representative.
(m) In June, by Paille, Respondent, in meetings of its un-
lawfully established employee committee, promised employ-
ees welding gloves and other benefits in order to undermine
employee support for the Union.
(n) On June 8, Respondent laid off employees Michael
Allsbury, Donald Densmore, Gary Dubois, Ronald Cable,
Thomas McClughen, Lyle Shaffer, and Roger Sizemore be-
cause employee Teresa Stockford had filed charges under the
Act.
(o) In early July, by Dirling, Respondent created the im-
pression of surveillance by informing employee Milleman
that he had heard that she had signed a union authorization
card.
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(p) In mid-July, by Dirling, Respondent interrogated em-
ployee Milleman about her union activities, membership, or
desires and the union activities, memberships, and desires of
other employees.
(q) On July 24, by Estel, Respondent threatened employee
Larry Cornell with discharge for engaging in distribution of
union literature at a time when Respondent did not have a
valid no-distribution rule in effect.
(r) In early October, by Estel, Respondent threatened all
temporary employees with discharge if the Union was se-
lected as the permanent employees’ collective-bargaining
representative.
(s) In late November, by Edward Bowerman, Respondent
threatened employee Harris with discharge if other employ-
ees reported that Harris had been discussing the Union.
(t) In mid-January 1990, by Estel, Respondent told em-
ployees Henning and Tabalski that the employee Cox would
not be recalled from layoff because of his union activities.
4. Respondent violated Section 8(a)(2) and (1) of the Act
by the following acts and conduct:
(a) In late January, by Paille and other of Respondent’s su-
pervisors, Respondent suggested to employees that they form
the Employee Committee to deal with Respondent con-
cerning wages, hours, and other terms and conditions of em-
ployment, thereby dominating and interfering with the forma-
tion and administration of a labor organization, and contrib-
uting financial or other support to it.
(b) Commencing on January 27, and continuing thereafter,
by various supervisors and agents, Respondent has recog-
nized and bargained with the Employee Committee as the
collective-bargaining representative of its employees, thereby
dominating and interfering with the formation and adminis-
tration of a labor organization, and contributing financial or
other support to it.
(c) On or about June 2, by Paille and other of Respond-
ent’s supervisors, Respondent suggested to employees that
they reconstitute the Employee Committee by choosing new
representatives to deal with Respondent concerning wages,
hours, and other terms and conditions of employment, there-
by dominating and interfering with the formation and admin-
istration of a labor organization, and contributing financial or
other support to it.
(d) On June 6, by Walls and Veatch, Respondent super-
vised a meeting of employees during which representatives
for the Employee Committee were selected, thereby donating
and interfering with the formation and administration of a
labor organization, and contributing financial or other support
to it.
(e) In June, by Estel, Respondent selected employee Cox
to be on the Employee Committee, thereby dominating and
interfering with the formation and administration of a labor
organization, and contributing financial or other support to it.
5. Respondent has discriminated in regard to hire or tenure
of employment, or terms or conditions of employment, to
discourage membership in the Union, in violation of Section
8(a)(3) and (1) of the Act, by the following acts and conduct:
(a) On June 8, Respondent laid off employees Michael
Allsbury, Donald Densmore, Gary Dubois, Ronald Cable,
Thomas McClughen, Lyle Shaffer, and Roger Sizemore.
(b) On August 24, Respondent imposed more onerous
work rules on its production and maintenance employees.
(c) In October, Respondent eliminated its program of giv-
ing perfect attendance awards.
(d) On December 5, Respondent discharged employee
Thomas McClughen.
(e) Since on or about January 2, Respondent has refused
to recall from layoff employees Robert Belknap, Boyd Cox,
Glidden Wallen, Clifford Johnson, and Lawrence Cornell.
6. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All full-time and regular part-time production and
maintenance employees employed by Respondent at
900 Anderson Road, Litchfield, Michigan, including
general laborers, assemblers, welders, painters, tool and
die employees, jig and fixture employees, shipping and
receiving employees, cold storage employees, fork truck
drivers, truck drivers, janitors, quality control employ-
ees, electricians, machine operators, and machine set-up
employees, but excluding office clerical employees,
sales persons, draftspersons, professional employees and
guards and supervisors as defined in the Act.
7. At all times since October 20, 1989, the Union has
been, and is, the certified exclusive representative of the em-
ployees in the aforementioned unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
8. Respondent has refused to bargain with the representa-
tive of its employees in the aforementioned unit, in violation
of Section 8(a)(5) and (1) of the Act, by the following unilat-
eral actions, or acts that were taken without prior notice to
and bargaining with the Union.
(a) On November 6, Respondent implemented a discipli-
nary ‘‘point system’’ of attendance control.
(b) Since on or about November 6, Respondent has
warned, suspended, and/or discharged employees pursuant to
its aforementioned disciplinary attendance control system.
The employees include, but are not limited to: Kirk Henning,
Kurt Loomis, and Michael Wilkes.
(c) On December 12, Respondent laid off approximately
12 of the unit employees, and thereafter delayed recall of, or
denied recall to, these employees.
(d) On December 22, Respondent laid off approximately
90 of the unit employees, and thereafter delayed recall of, or
denied recall to, these employees.
(e) In early 1990, Respondent established a disciplinary
drug abuse program for the unit employees.
9. The General Counsel has failed to establish that Re-
spondent has otherwise violated the Act.
THE REMEDY
In addition to the usual cease-and-desist orders, and the
order to post appropriate notices to employees at its plant,
certain other affirmative actions are required of Respondent
to remedy the violations found here.
The Respondent, having discriminatorily laid off Michael
Allsbury, Donald Densmore, Gary Dubois, Ronald Cable,
Thomas McClughen, Lyle Shaffer, and Roger Sizemore on
June 8, 1989, and having discriminatorily discharged Thomas
McClughen on December 5, 1989, and having dis-
criminatorily denied recall to Robert Belknap, Boyd Cox,
347YUKON MFG. CO.
53 Estel singled out the temporary employees for one of Respond-
ent’s most serious threats, as detailed supra.
Glidden Wallen, Clifford Johnson, and Lawrence Cornell on
and after January 2, 1990, shall be ordered to reinstate
Thomas McClughen and recall the remaining employees, if
it has not already done so. Respondent shall be ordered to
make whole, with interest, all of these discriminatees for any
loss of earnings and other benefits that were suffered by
them as a result of the discrimination found. Such losses
shall be computed on a quarterly basis from the date of the
discriminatory conduct affecting each discriminatee to the
date of proper offer of reinstatement or recall, less any net
interim earnings as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950). Respondent shall further be required to
remove from the files of Allsbury, Densmore, Dubois, Cable,
McClughen, Shaffer, Belknap, Cox, Wallen, Johnson, and
Cornell any reference to the actions found unlawful, and Re-
spondent shall be required to notify each of there
discriminatees, in writing, that this has been done and that
evidence of the actions will not be used as a basis for further
personnel actions against them.
Respondent having withdrawn its attendance bonus system
in violation of Section 8(a)(3) of the Act, it shall be required
to reinstate the program and pay to all unit employees who
would have earned awards under that system all such awards,
with interest.
Respondent having on or about August 24 imposed more
onerous work rules on its employees in violation of Section
8(a)(3) of the Act, it shall be ordered to rescind the rules and
restore the status quo ante.
The law is that employees who are laid off in violation of
Section 8(a)(5) of the Act are entitled to backpay which is
to be ordered from the dates of the layoffs. See Lapeer
Foundry & Machine, 289 NLRB 952 (1988). Moreover,
under United Gilsonite Laboratories, 291 NLRB 924 (1988),
the backpay of Respondent’s employees who were laid off
in violation of Section 8(a)(5) of the Act continues until the
employees are recalled or the earliest date on which one of
the following conditions is met: (1) mutual agreement with
the Union is reached; (2) good-faith bargaining results in a
bona fide impasse; (3) the Union fails to commence negotia-
tions within 5 days of receiving Respondent’s notice of de-
sire to bargain; or (4) the Union subsequently fails to bargain
in good faith. Of course, the occurrence of one of these last
four conditions (the United Gilsonite conditions) would not
affect Respondent’s backpay liability to Robert Belknap,
Boyd Cox, Glidden Wallen, Clifford Johnson, and Lawrence
Cornell who were denied recall in violation of Section
8(a)(3) after they were laid off in violation of Section
8(a)(5). Those five individuals shall continue to be entitled
to the usual remedies for 8(a)(3) violations, as specified
above, even if one of the United Gilsonite conditions were
met; that is, only by a proper offer of reinstatement may Re-
spondent toll its recall and backpay liability to those five
discriminatees.
Except for Binion, the employees who were unilaterally
laid off on December 12 have been recalled, and under Sec-
tion 8(a)(5) backpay shall be ordered from the dates of their
layoffs until the dates of their recalls. As noted, while Re-
spondent’s initial failure to recall Binion has been held not
to be a violation of Section 8(a)(3) of the Act, once Re-
spondent had notice that Binion was still in the area, it had
an obligation under Section 8(a)(5) of the Act to seek him
out and to offer recall to him. Therefore, Binion is entitled
to the backpay remedy from the date of Respondent’s receipt
of notice of his January 25 claim for unemployment com-
pensation until he is recalled, or until one of the United Gil-
sonite conditions are met.
Konzak and any other employees who were unilaterally
laid off on December 22 (even though they are not men-
tioned by name here) and Wilkes, who was unilaterally laid
off on January 12, are entitled to the 8(a)(5) backpay remedy
from the dates of their layoffs until they are recalled or one
of the United Gilsonite conditions are met.
Respondent shall further be ordered to reinstate and make
whole, with interest, the employees whom it has warned, sus-
pended, and/or discharged pursuant to its unilaterally estab-
lished disciplinary ‘‘point system’’ of attendance control or
its unilaterally established drug abuse program; Respondent
shall be required to remove from the files of such employees
any reference to their warnings, suspensions, or discharges;
and Respondent shall be required to notify all such employ-
ees, in writing, that this has been done and that evidence of
their unlawful warnings, suspensions, or discharges pursuant
to those unlawfully established programs will not be used as
a basis for further personnel actions against them. These em-
ployees include, but are not limited to: Kirk Henning, Kurt
Loomis, and Michael Wilkes.
Having found that Respondent has dominated, as well as
assisted, the Employee Committee, I shall also recommend
that Respondent completely disestablish the labor organiza-
tion.
All interest ordered shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
In this case, the Respondent has violated every subsection
of Section 8(a) of the Act except (a)(4). Even the principles
of Section 8(a)(4) have not gone unassaulted; when em-
ployee Stockford filed charges under the Act on June 8, Re-
spondent immediately laid off seven other employees in re-
taliation, offering no excuse for its actions then or at the
hearing. That June 8 layoff was short, but it was long enough
to make the point Respondent has no regard for the prin-
ciples of Act.
Therefore, it is not because of the volume of violations
alone that I recommend the broad order against Respondent,
an order that it cease and desist in any other manner from
violating the National Labor Relations Act.
Finally, because of the massiveness of the violations com-
mitted by Respondent, the notice to employees goes into its
fourth page, and some parts of it are complex. A routine
order of posting would necessarily assume that the employ-
ees, on their limited breaktimes, are supposed to crowd
around one copy, or only a few copies, of this extraordinarily
long and somewhat complex notice and attempt to digest it
in full view of the Respondent’s agents (who are not loathe
to conduct surveillance). This is not an effective way to in-
form these employees of their rights and protections under
the Act. Accordingly, I conclude that the appropriate remedy
in this case includes an order that Respondent mail a signed
copy of the notice to each of its employees (past and current,
temporary53 and permanent) who were on its payrolls be-
tween the approximate date that it embarked on its course of
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
unlawful conduct, February 1, 1989, when it established the
Employee Committee, and the date it begins posting of the
notice at its plant.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended54
ORDER
The Respondent, Yukon Manufacturing Company,
Litchfield, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with plant closure if the em-
ployees join, or otherwise support, International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW (the Union), and attempt to bar-
gain collectively.
(b) Telling employees that it would be futile for them to
seek representation by the Union.
(c) Conveying to its employees the impression that Re-
spondent has conducted surveillance of the employees’ union
activities.
(d) Prohibiting employees from distributing union lit-
erature to other employees in nonworking areas during the
employees’ nonworking time
(e) Promulgating any rule that prohibits employee distribu-
tion of union literature in all areas of its plant property.
(f) Promulgating any rule that denies to off-duty employ-
ees entry to parking lots, gates, and other outside nonworking
areas.
(g) Conducting surveillance of any union meeting that is
attended by its employees.
(h) Interrogating its employees about their union activities,
memberships, or desires or about the union activities, mem-
berships, or desires of other employees.
(i) Promising employees better supervision, or future pay
or insurance improvements, if they refrain from becoming or
remaining members of the Union or refrain from giving sup-
port to it.
(j) Threatening employees with discharge or other dis-
cipline because they are engaging protected concerted activi-
ties or union activities.
(k) Threatening temporary employees, or any other em-
ployees, with discharge if the Union is selected as its perma-
nent employees’ collective-bargaining representative.
(l) Threatening employees with discharge if Respondent
receives reports that they have been discussing the Union.
(m) Telling employees that other employees will not be re-
called from layoff because of their union activities.
(n) Laying off any employee, or taking any other adverse
action against any employee, because any other employee
has filed charges under the Act.
(o) Dominating or interfering with the formation or admin-
istration of the Employee Committee or any other labor orga-
nization or contributing financial or other support to the labor
organization, or any other labor organization, or by giving ef-
fect to any agreements reached with the organization; pro-
vided however, that nothing in this Order shall require or au-
thorize Respondent to vary or abandon any wage, hour, se-
niority, or other substantive benefit that it has established for
its employees because of any such agreements, or by the as-
sertion by its employees of any rights they have derived as
a result of the agreements, without prior notice to and bar-
gaining with the Union.
(p) Recognizing the Employee Committee, or any suc-
cessor thereto, as the representative of its employees con-
cerning wages, hours of employment, or any other term or
condition of employment.
(q) Discharging, laying off, or refusing to recall from lay-
off employees, or in any other way discriminating against
employees in regard to their terms or conditions of employ-
ment in order to discourage membership in the Union.
(r) Terminating its attendance bonus program, or any other
program of employee benefits, in order to discourage mem-
bership in, or activities on behalf of, the Union.
(s) Imposing more onerous work rules on employees in
order to discourage membership in, or activities on behalf of,
the Union.
(t) Laying off employees without prior notice to and bar-
gaining with the Union.
(u) Establishing and enforcing disciplinary attendance con-
trol procedures, drug-testing procedures, or any other proce-
dures which affect the terms and conditions of employment
of the employees in the unit found appropriate, without prior
notice to and bargaining with the Union.
(v) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Thomas McClughen, Robert Belknap, Boyd
Cox, Glidden Wallen, Clifford Johnson, and Lawrence Cor-
nell immediate and full reinstatement or recall to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make them
whole, with interest, for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them in
the manner set forth in the remedy section of this decision.
Respondent shall also remove from the files of all of those
employees any reference to the discharges and the denials of
recalls that have been found to be unlawful and notify all of
those employees that this has been done and that evidence
of the actions will not be used as a basis for future personnel
actions against them.
(b) To the extent it has not already done so, recall those
employees whom it laid off on June 8, December 12 and 22,
1989, and January 12, 1990, and make those employees
whole for any loss of pay suffered as a result of its unlawful
conduct in the manner set forth in the remedy section of this
decision.
(c) Offer to Kirk Henning, Kurt Loomis, and Michael
Wilkes, and any other employees who have been discharged
pursuant to Respondent’s unilaterally established disciplinary
procedures, as described here, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, and make whole such employees, and make whole any
349YUKON MFG. CO.
55 If this 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.’’
other employees who have been suspended, or who have oth-
erwise suffered a loss of earnings as a result of Respondent’s
enforcing its unilaterally imposed disciplinary procedures as
described here. Respondent shall also remove from the files
of all of those employees any reference to their discharges,
suspensions, or other adverse action that it has taken against
them pursuant to its ‘‘point system’’ of disciplinary absence
control, or its drug abuse control program, and notify all
such employees that this has been done and that evidence of
such discharges, suspensions, or other adverse actions will
not be used as a basis for future personnel actions against
them.
(d) Reinstate its attendance award program that it unlaw-
fully discontinued on or about October 1, 1989, and make
whole, with interest, any of its employees who would have
earned monetary awards pursuant to that program.
e) Withdraw and revoke the work rules that it unlawfully
established on or about August 24, 1989.
(f) Notify and give the Union an opportunity to bargain
about any changes in the unit employees’ terms and condi-
tions of employment, including layoffs and recalls and dis-
ciplinary attendance and drug abuse procedures.
(g) Rescind its ‘‘point system’’ of disciplinary attendance
control and its drug abuse policies found here to have been
unlawfully imposed on the employees in the unit found ap-
propriate here.
(h) Withdraw and withhold recognition from and com-
pletely disestablish the Employee Committee or any suc-
cessor as a representative of its employees for the purpose
of collective bargaining.
(i) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay tue under the terms of this Order.
(j) Post at its plant in Litchfield, Michigan, copies of the
attached notice marked ‘‘Appendix.’’55 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Responded to ensure that the notices are not altered, defaced,
or covered by any other material.
(k) Mail to each employee, temporary and permanent, past
and current, who were on Respondent’s payrolls at any time
between February 1, 1989, and the date the notice specified
here is posted at Respondent’s plant, a copy of the notice on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative.
(l) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Rations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten our employees with plant closure
if they join, or otherwise support, International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW and attempt to bargain collectively.
WE WILL NOT tell our employees that it would be futile
for them to seek representation by the Union as their collec-
tive-bargaining representative.
WE WILL NOT convey to our employees the impression
that we have conducted surveillance of the their union activi-
ties.
WE WILL NOT prohibit our employees from distributing
union literature to other employees in nonworking areas dur-
ing the employees’ nonworking time.
WE WILL NOT promulgate any rule that prohibits employee
distribution of union literature in all areas of our plant prop-
erty.
WE WILL NOT promulgate any rule that denies to our off-
duty employees entry to our parking lots, gates, and other
outside nonworking areas. WE WILL NOT conduct surveil-
lance of any union meeting that is attended by our employ-
ees.
WE WILL NOT interrogate any of our employees about their
union activities, memberships, or desires or about the union
memberships, activities, or desires of other employees
WE WILL NOT promise employees better supervision or fu-
ture pay or insurance improvements, if they refrain from be-
coming or remaining members of the Union or refrain from
giving support to it
WE WILL NOT threaten our employees with discharge or
other discipline because they are engaging protected con-
certed activities or union activities.
WE WILL NOT threaten temporary employees, or any other
employees, with discharge if the Union is selected as our
permanent employees’ collective-bargaining representative.
WE WILL NOT threaten our employees with discharge if we
receive reports that they have been discussing the Union.
WE WILL NOT tell any of our employees that other em-
ployees will not be recalled from layoff because of their
union activities.
WE WILL NOT lay off any employee, or take any other ad-
verse action against any employee, because another employee
has filed charges under the Act.
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT dominate or interfere with the formation or
administration of the Employee Committee or any other
labor organization or contribute financial or order support to
such labor organization, or any other labor organization, or
give effect to any agreements reached with the organization;
provided however, that WE WILL NOT vary or abandon any
wage, hour, seniority, or other substantive benefit that we
have established for our employees because of any such
agreements or by the assertion by our employees of any
rights they have derived as a result of the agreements, with-
out prior notice to and bargaining with the Union.
WE WILL NOT recognize the Employee Committee, or any
successor, as the representative of our employees concerning
wages, hours of employment, or any other term or condition
of employment.
WE WILL NOT discharge, lay off, or refuse to recall from
layoff any of our employees, or in any other by discriminate
against our employees in their terms or conditions of em-
ployment, in order to discourage membership in the Union.
WE WILL NOT impose more onerous work rules on our
employees in order to discourage membership in, or activities
on behalf of, the Union.
WE WILL NOT terminate our attendance bonus program, or
any other program of employee benefits, in order to discour-
age membership in, or activities on behalf of, the Union.
WE WILL NOT, without prior notice to and bargaining with
the Union, lay off or delay or deny recall to employees in
the following bargaining unit:
All full-time and regular part-time production and
maintenance employees employed by us at 900 Ander-
son Road, Litchfield, Michigan, including general labor-
ers, assemblers, welders, painters, tool and die employ-
ees, jig and fixture employees, shipping and receiving
employees, cold storage employees, fork truck drivers,
truck drivers, janitors, quality control employees, elec-
tricians, machine operators, and machine set-up em-
ployees, but excluding office clerical employees, sales
persons, draftspersons, professional employees and
guards and supervisors as defined in the Act.
WE WILL NOT establish and enforce disciplinary attendance
control procedures, drug-testing procedures, or any other pro-
cedures which affect the terms and conditions of employment
of our employees in the above bargaining unit without prior
notice to and bargaining with the Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL offer to Thomas McClughen, Robert Belknap,
Boyd Cox, Glidden Wallen, Clifford Johnson, and Lawrence
Cornell immediate and full reinstatement or recall to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them whole, with interest, for any lot of earnings and other
benefits suffered as a result of the discrimination against
them, and WE WILL remove from the files of Thomas
McClughen any reference to his discharge; WE WILL remove
from the files of Robert Belknap, Boyd Cox, Glidden
Wallen, Clifford Johnson, and Lawrence Cornell any ref-
erence to our denials of their recalls; and WE WILL notify all
of those employees that these action have been taken and
that evidence of the actions will not be used a basis for fu-
ture personnel actions against them.
WE WILL, to the extent we have not already done so, recall
those employees who were laid off on June 8, December 12
and 22, 1989, and January 12, 1990, and WE WILL make
those employees whole, with interest, for any loss of pay and
other benefits suffered by them as a result of those layoffs,
WE WILL offer to Kirk Henning, Kurt Loomis, and Michael
Wilkes, and any other employees who have been discharged
pursuant to our disciplinary ‘‘point system’’ of attendance
control, or our drug abuse program, that we established with-
out notice to, or consolation with, the Union, immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make whole, with interest, such em-
ployees; and WE WILL make whole, with interest, Kirk
Henning, Kurt Loomis, and Michael Wilkes, or any other
employees who have been suspended, or who have otherwise
suffered a loss of earnings as a result of our enforcing our
unilaterally imposed disciplinary procedures; WE WILL also
remove from the files of all of those employees any ref-
erence to their discharges, suspensions, or other adverse ac-
tion that we have taken against them pursuant to our unilater-
ally imposed disciplinary procedures, and WE WILL notify all
such employees that this has been done and that evidence of
the discharges, suspensions, or other adverse actions will not
be used as a basis for future personnel actions against them.
WE WILL notify the Union, and give it an opportunity to
bargain, before we make any changes in any terms or condi-
tions of employment of our employees in the above-de-
scribed bargaining unit, including conditions such as proce-
dures for layoffs and recalls and programs for disciplinary at-
tendance control and drug abuse.
WE WILL rescind our unlawfully upset disciplinary ‘‘point
system’’ of attendance control and our drug abuse proce-
dures.
WE WILL withdraw and revoke the work rules that we un-
lawfully established on or about August 24, 1989.
WE WILL withdraw and withhold recognition from the Em-
ployee Committee, and WE WILL completely disestablish the
Employee Committee, or any successor thereto, as a rep-
resentative of our employees for matters concerning wages,
hours of employment, or any other term or condition of em-
ployment.
WE WILL reinstate our attendance award program that we
unlawfully discontinued on or about October 1, 1989, and
WE WILL make whole, with interest, any of our employees
who would have earned a monetary award pursuant to that
program
YUKON MANUFACTURING COMPANY