D & E Tool Co.

National Labor Relations Board - Board Decisions

Dec 29, 1976

227 N.L.R.B. 636 (N.L.R.B. 1976)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D & E Tool Co. and United Steelworkers of America,
AFL-CIO. Case 9-CA-10002
December 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 16, 1976, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and
Respondent filed cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, D & E Tool Co., Lesage, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
Add the following after paragraph 2:
"IT IS FURTHER ORDERED that, as to all alleged
unfair labor practices not found herein, the complaint
be, and it hereby is, dismissed."
I The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge' s resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect Standard
Dry Wall Products, Inc, 91 NLRB 544'(1950), enfd. 188 F.2d 362 (C.A 3,
1951) We have carefully examined the record and find no basis for reversing
his findings
DECISION
STATEMENT OF THE CASE
BERNARD RIES , Administrative Law Judge: This case was
heard in Huntington, West Virginia, on June 16, 1976,
pursuant to a charge filed on February 2, 1976, and a
complaint issued on March 31, 1976. The complaint alleges
that at various times between November 1975 and January
1976, Respondent violated Section 8(a)(1) of the Act by
threatening employees , coercively interrogating them, and
engaging in surveillance of their union activities. The
complaint further alleges that the discharge of James Larry
Mayes on January 21, 1976, was caused by Mayes'
activities on behalf of the Charging Party, in violation of
Section 8(a)(3). Briefs were received from the parties on or
about July 23, 1976.
Upon the entire record,' and my observation of the
witnesses , I make the following:
FINDINGS
1. JURISDICTION
Respondent is a West Virginia corporation engaged in
the manufacturing of mining drills and equipment at its
Lesage, West Virginia, location. During the 12 months prior
to the issuance of the complaint, a representative period,
Respondent had a direct outflow of products valued in
excess of $50,000 which it sold and caused to be shipped
directly to customers located outside the State of West
Virginia from its plant in West Virginia. The answer admits,
and I find, that Respondent is, and has been at all material
times, an employer engaged in commerce within the
meaning of Section 2(2) and (6) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find, that
United Steelworkers of America, AFL-CIO , is, and has
been at all material times , a labor organization within the
meaning of Section 2(5) of the Act.
IIL THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The record shows that a union organizational campaign
began, at the initiative of some employees, at Respondent's
plant in November 1975. The Union eventually won a
representation election held on January 16, 1976, and was
certified on January 26, 1976. The complaint alleges that
subsequent to the advent of the Union in November, and
prior to the election, Respondent engaged in conduct
violative of Section 8(a)(1). The complaint further alleges
that on January 21, 5 days after the Union won the election,
Respondent discharged James Larry Mayes for his part in
having brought the Union into the plant.
B. The Facts
As indicated above, Respondent manufactures drills and
equipment. It has a complement of about 40 employees.
Ronald Morrison, an employee, testified that in Novem-
ber 1974, Respondent initiated an employee representation
committee. Morrison said that Jack Klim, Respondent's
general manager, told the employees that "he was going to
Certain errors in the transcript have been noted and corrected.
227 NLRB No. 103
D & E TOOL CO.
get something like a little union of our own started, so that
we wouldn't have to pay union dues, and have another man
to come in and tell us how to run our shop. So if we had any
gripes or anything we could tell our representative, and he
would tell Jack Klim, and then he would bring the answer
back to us." The committee elected employee Joe Smith as
its leader , but the employees were not pleased with his
performance, and in June 1975, they ousted Smith and
replaced him with Larry Mayes, the alleged discnminatee
in this case . Mayes testified that the employees met in
committee once a month, that he circulated among them to
hear their complaints, and that he talked to Plant Manager
Klim at least once or twice a week to discuss those
complaints with Khm. Khm appeared to Mayes not to be
very pleased with Mayes' persistence.2
According to Mayes, around November 1, 1975, he told
the employees that he had been unable to make any
progress with Klim about securing an insurance plan and a
written retirement program. They decided to contact the
Union. The record is somewhat hazy about who participat-
ed in the union activity and to what extent. Mayes
attempted to portray himself as the primary union instiga-
tor. Internal contradictions in his testimony leave some
doubt whether he was in fact the principal organizer, 3 but
it would appear that he was at least one of the five chief
organizers.
Mayes testified that, after contact was made with the
Union, he talked to "probably 15 or 20" employees, mostly
those on the first shift with him, and that, at some point, he
distributed "about five" authorization cards during the
lunch period. Other employees who passed out cards,
according to Mayes, were Morrison, Holland, Purdue, and
John Mount. After the cards were signed, sometime in
November, the Union sent a letter to Respondent demand-
ing recognition. Respondent was thus on notice, as of
November, that the Union was on the scene.
John Mount testified that, about mid-November 1975,
Foreman Donald R. McDowell, conceded to be a supervi-
sor, asked Garry Holland "how Larry Mayes and Harold
Purdue was [sic] getting along with the union." Holland
answered that as far as he knew, Larry and Harold "was
[sic] going all the way with it." McDowell replied that "he
didn't figure they'd be there long enough to see it through."
Holland substantiated Mount's testimony.4 McDowell
denied the foregoing testimony, stating that he did not even
know about the union organizational effort until mid-
December. Mount and Holland appeared to be trustworthy
witnesses ; I cannot say the same for McDowell, whose
testimony seemed unlikely. I credit Mount and Holland
and find that Respondent thus engaged in coercive interro-
gation , gave employees an impression of surveillance of
their union activities , and indicated to employees that
union activities could result in termination, conduct clearly
violative of Section 8(a)(1).
Employee Ronny Hoover testified that around the latter
part of December, Foreman Frank Stewart, an admitted
2 The foregoing is not alleged to constitute a violation of the Act , but was
admitted as possibly relevant background material. Khm did not testify as to
the genesis or the operation of the committee , and I credit the testimony of
Morrison and Mayes on this point.
3 For example , his testimony that he "was the first to know" of the date of
the election was followed, on cross-examination , by the statement , "I'd say I
637
supervisor, asked him how he was going to vote. Hoover
said that he would vote for the Union. Stewart said he "was
making the wrong move."
Jerry Mount, brother of John Mount, testified to three
alleged unlawful acts by Foreman Stewart. Mount said
that, in the first part of January 1976, Stewart asked him
"how I felt about the union, and how I was going to vote."
Mount replied that he "felt that the union should come in,
and I was going to vote for it."
A week before the election, Mount testified, Stewart said
"he seen [sic ] my car parked down by Purdue's house, and
he asked me what part I had to play in the union." Support
for this testimony was given by Ronny Hoover, who said
that he overheard a conversation between Jerry Mount and
Stewart in which Stewart "asked Jerry what he was doing
up at Purdue's house, was he planning the union."
Finally, Mount testified that, on the day of the election,
while he and Stewart were talking, Stewart "told us there
was going to be 14 of us fired over this." Mount responded
that his brother, Ivan Mount, another employee, had been
talking to General Manager Klim, who had said that no one
would be fired because of the union activity. Stewart
replied that Klim was "the biggest liar in the state of West
Virginia." Mount asked Stewart for a list of the 14
employees; Stewart named "Larry Mayes, Johnny Mount,
Ivan Mount, Ronald Morrison, and Harold Purdue."
Stewart told Mount that he would bring the list to Mount's
house.
Employee Gregory Shepard testified in support of
Mount's testimony in this latter respect. He says he heard
part of the conversation between Stewart and Mount in
which Stewart said "there was supposed to be a list of
people that we're trying to get rid of." On cross-examina-
tion, Shepard said that what Stewart said was "that they
had so many people that, you know, they thought was
involved in the union that they thought they'd try to get rid
of before the election." The reference to getting rid of
people "before the election" seems peculiar, since the
incident was supposed to have taken place on the day of the
election. However, Shepard was some 6 to 8 feet away from
the primary conversants , a machine was running, and he
may not have understood the statement correctly.
Stewart generally denied the foregoing testimony. Al-
though he appeared only briefly on the witness stand, I was
unfavorably impressed with Stewart. While the testimony
of the employees recited above contains some minor
discrepancies, I thought that their demeanor showed them
to be credible witnesses . I credit the employee witnesses
and find that Respondent, by its Supervisor Stewart,
violated Section 8(a)(1) by threatening an employee, by
telling employees that the employment of other employees
was in jeopardy because of their union activities, and by
was one of the first to know," even though his account on direct of how he
acquired the information would seem to leave no question that he was "the
first" to know.
4 Although Holland appeared to be nervous at the beginning of his
testimony, and at first omitted the final alleged threat by McDowell, he
added it almost immediately thereafter.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercively interrogating them, in November and December
1975 and January 1976. 5
Certain of the 8(a)(1) violations discussed above are
directly relevant to the discharge of Larry Mayes on
January 21, 1976. I discuss the other testimony relating to
the Mayes' case hereafter.
Larry Mayes was employed by Respondent on April 4,
1974. The record is unclear as to what position he was hired
into, or what he did for the first year of his employment. It
shows only that on May 27, 1975, he became what is
referred to as a class I welder, the sole employee working
full-time in that classification as of that date and thereafter.
As set out above, Mayes became the head of the employee
committee in June 1975 and, according to his uncontradict-
ed testimony, actively pursued the duties of that position.
According to the testimony of General Manager Klim,
Respondent moved into a new building in January 1975. In
April 1975, and prior to the appearance of the Union,
Respondent purchased some meters designed to measure
the usage of welding machines. 6 According to Klim, the
purchase of these meters was part of a management control
program designed to ascertain flaws and bottlenecks in the
production process. Khm testified that Respondent was
using other kinds of counters in connection with other types
of machines in the plant for the same purpose; although he
did not specifically so state, I would assume that these
devices were purchased along with the meters in the spring
of 1975. 7
According to Klim, the meters were put on the welding
guns, at least tentatively, in June 1975 and some sort of
effort was made to keep production records. Apparently
this did not work out. A more formal program was initiated,
he testified, on October 27, 1975, at which time two welding
machines had meters on them. 8 Thereafter, according to
Morrison, one of the employees who operated welding
machines to which the meters were attached, the foreman
on each shift kept a record on the amount of use of the
machine by the welders on a "pretty regular" basis. 9
Beginning in May 1975, Mayes, as discussed, became the
class I welder in the plant and was primarily responsible for
the welding of augers. Morrison, as previously indicated,
had been the class I welder from April 1974 until July 1975,
and then became a forging machine operator; however, he
did some welding on the night shift. A part-time class I
welder named Guy Martin was also working; there is no
S The fact that Jerry Mount believed that General Manager Klim had
said that no employees would be discharged because of their support of the
Union does not remove the sting from Stewart's remarks to him on January
16, especially since Stewart called Khm a liar.
a While Respondent did not introduce into evidence the purchase order
for this equipment , Klim testified that he had shown it to the Board agent
General Counsel did not attempt to rebut Klim 's testimony as to when the
meters were purchased, and I do not think that he would lie about the date of
their purchase, a matter easily ascertainable.
7 It also appears that records were not just kept on the two welding
machines . Asked if records were "maintained on all the welders ," Production
Manager Gerald Urffer testified, "Certainly . All the welders, every job "
8 Ronald Momson testified that a meter was installed on his welding
machine "about November" 1975. Momson testified that he had been the
class I welder until July 1975, when he became a forging machine operator
Thereafter, according to Urffer, the production manager, Momson "some-
times would work the welding job in the evening " To what extent he did so
during the summer of 1975 is undisclosed . The memory of most of the
indication as to how much welding work he did. An
employee named Barton was being trained to weld.
Mayes' job was to weld "flight" on the augers. "Flight" is
a material which is wrapped, apparently in a circular
fashion, around an auger, which is a rod of varying lengths.
Mayes' job entailed not only the actual operation of a
welding gun, but also a number of other manual functions.
The augers produced by Mayes accounted for about 10
percent of Respondent's annual volume.
According to Production Manager Urffeer, while an
accurate assessment of employee performance on other
types of welding could be made by counting the number of
pieces produced by the employee because each piece
required the same amount of weld, on Mayes' job, where
"you're welding scroll on augers. . . depending on the pitch
of the scroll, the actual amount of weld metal laid down
would be difficult to tabulate, just from the number of
pieces, so the best way to get an indication of what was
happening at that job was with the meter."
Apparently, there were no formal complaints about
Mayes' performance from the time a meter was installed on
his welding machine in October until sometime in Decem-
ber. However, Mayes indicated that there had been
complaints on the work floor by testifying, in answer to the
question whether he had ever been counseled pnor to his
first session with Urffer, to be discussed below, "No-not
in the office I wasn't." Later, he testified that, pnor to being
called in the office the first time, "I was criticized on
different dates." Prior to his first counseling by Urffer,
Mayes testified, in. a discussion with Klim around Decem-
ber 2 in which Mayes was acting as the representative of the
employee committee, Klim said that the employees had
"tried to get a union in 7 1, and he said he was going to do
his best to prevent it." Klim also said "the union's on the
bad side of me yet." Klim testified but did not deny this
conversation.
Sometime in December, Mayes was called in by Urffer
for a counseling session . The date of this incident is in
question, as is the date of a second counseling session
between Mayes and Urffer. Mayes testified that the first
session occurred on December 11, and the second on
December 19. Urffer testified that the first occasion was
December 19 and the second occasion was January 9.
I am inclined to accept the dates given by Urffer. Aside
from the fact that Mayes was not a very convincing witness,
particularly in discussing these two sessions , it would
employee witnesses as to dates was not impressive , and I tend to accept
Klim's testimony that the meters were used, at least to some extent , prior to
November 1975, and that the present system of recording the measurements
was introduced on October 27, 1975, prior to the advent of the Union.
9 Although Momson was a partisan witness , he gave testimony damaging
to Mayes, and I would think that his testimony in general was trustworthy
However , I am not so sure about this with respect to his testimony regarding
the use of the meters . Momson said that the himself. 13 each shift recorded
the usage of the welding machine as shown by the meter beginning in
November 1975 but that this was not "done every day," "that I could see "
He went on to say that after Mayes was fired, "I never seen [sic ] anyone read
them." He then testified, however, that his foreman, McDowell , stopped
taking readings "shortly after" Mayes was fired and, asked whether pnor
thereto readings were taken "on a daily basis," Morrison answered, "Yes,
sir." In any event , since Morrison was on a different shift from that of the
full-time class I welder , he was in no position to testify whether the readings
continued to be taken on that shift after Mayes was discharged
D&ETOOL CO.
appear that he based his recollection of the dates of the two
sessions on notes he kept in a diary. The diary was offered
into evidence by General Counsel without any attempt to
explain the mysterious notes contained therein. The proffer
was rejected, with an indication to counsel for the General
Counsel of a more appropriate method for putting the diary
into evidence. The invitation was never followed up.
However, Respondent put into evidence two pages of the
diary. The diary was represented by Mayes and counsel for
General Counsel to be just what the name imphes-a
chronological listing of daily events.10 The pages entered
into evidence by Respondent contain the following consec-
utive entries:
Arrowood - went home earley [sic] Friday - 12-
12-75. Carl - went home early Friday 12-19-75- I
was call in office about my work - 12-11-75. Call
again [sic] on - 12-19-75. He Jerry said I was getting
better.
The above sequence, which has an entry referring to
December 11 subsequent to entries of December 12 and 19,
indicates that the two notations made by Mayes regarding
when he was called into the office were entered together
and probably at some time after both instances occurred,
rather than as they occurred.
Mayes testified that, when he was called into the first
counseling session with Urffer, the latter told him that he
was not putting in enough time welding, as disclosed by the
records being kept on the meter readings. Mayes' testimony
is very unclear as to whether Urffer referred to a single
day's work or a week's work, but he finally agreed that the
records shown to him by Urffer were "an indication of your
production for a period prior to December 11." According
to Mayes, Urffer also "brought up about the Union,"
saying "he wasn't afraid of the Umon. He said he wasn't
worried about the Umon. He said they had records to show
up in court, that proved that he was right." Urffer testified
that at the first session he told Mayes that "he was not
performing up to an acceptable level," and showed him the
records on his performance. He also said that he told
Mayes that he expected him to spend somewhere between
3-4 hours of a 7-1/2 hour day in actual welding. He further
testified that Mayes "immediately blew up, accused us of
trying to get him, and it was very hard to talk to him."
Mayes conceded that, at the first counseling session, he
told Urffer that he "could produce more work but that [he]
dust [wasn't] obliged to do so." 11 When asked why he had
stated that he did not feel that he was "obliged" to do more
work, Mayes gave unsatisfactory testimony. First, he
referred to the fact that he could not get a new cable and
10 There is some conflict in the record as to when Mayes began keeping
the diary. General Counsel, in attempting to explain what the diary consisted
of, said that it was "a daily diary compiled by Mr Mayes from prior to this
meeting of December II, and the diary becomes more detailed after
December 11th" Shortly thereafter, however, Mayes, when asked if he
recalled keeping "a record of your daily activities at the plant," said that he
did and that he "started right after I was called in the office for the first
time "
639
therefore spent a lot of time working on his welder when he
could have been welding. When it was pointed out to him
that the foregoing problem had no relationship to his
expressed feeling that he was not "obliged" to produce
more , Mayes said he did not feel obliged to do more "at the
time, when they describe me the way they were doing me."
He went on to say that what they were "doing me" at the
time was to require him to use a very thin wire to do the
welding while the part- time welder was allowed to use a
heavier wire, giving him less trouble. Urffer testified, on the
other hand, that when Mayes said that he did not feel
obliged to perform more work than he was getting out, he
explained by saying that Morrison, who was doing some
welding, was receiving the bonus that all forging machine
operators received, and that Mayes thought that he also
should receive such a bonus. Urffer presented a very
favorable appearance; his testimony makes sense to me,
especially in view of the alternative explanations given by
Mayes, neither of which satisfactorily explains his state-
ment that he could, in fact, have produced more, but did
not feel obliged to; and I credit Urffer on this point.
I further believe that Urffer did not, as Mayes testified,
bring up the subject of the Union. The context does not
logically support that claim. I think it more likely, given
Mayes' apparent temperament , that, as Urffer testified,
Mayes "accused us of trying to get him" because of the
union effort, and that some discussion of that assertion
followed.
The next counseling session , according to Urffer, oc-
curred on January 9. Urffer testified that he showed Mayes
his production records from December 19 to January 8 and
"showed him that his average had not improved, but that
there were several days in there that he had made over 3
hours, he was working over 3 hours, his welder was running,
and to me that indicated that he could do it, and I told him
if he would just change his attitude and do what he was
capable of, everything would be all right." Mayes merely
said "OK," and left. According to Mayes, the second
session occurred on December 19, when Urffer called him
in, said, "I was getting better," and nothing more. Mayes
thanked him and left.
Mayes' version of this second session is difficult for me to
reconcile with the real world. At a small manufacturing
plant, I do not believe that production managers call
employees in 1 week after they have been chastised for poor
production simply in order to inform them that they are
doing better.
Furthermore, Respondent's compilation of Mayes' per-
formance between December 12, 1975, and January 16,
1976, would not objectively support such a conclusion. 12
On the 4 days between December 12 and 18 during which
II Mayes seemed somewhat taken off guard when asked about this on
cross-examination
12 This summary was admitted into evidence without objection from
General Counsel General Counsel had prior access to Respondent 's basic
records The transcript strongly suggests that the figures shown on the
compilation do not differ materially from the figures which Mayes himself
had been keeping in his diary
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records were kept on Mayes, he used the welder 36.6
percent of the time. On the 12 days between December 19
and January 9 during which records were kept, he used the
gun 37.3 percent of the time. Thus, regardless of the dates of
the two sessions , Mayes' performance would not likely
satisfy an employer who had set a standard of 50-60
percent as the proper amount of time to be spent operating
the welding machines.
Only one reason comes to mind which might explain
Urffer telling Mayes nothing more than that he was doing
better. That would be that Urffer was deliberately trying to
lull Mayes into a false sense of security. Having observed
Urffer and Klim, I reject the suggestion that they conceived
such a diabolical ploy. Even if this counseling session were
part of an overall plan to set Mayes up for a fall, it seems
much more consistent with human nature to have spoken to
Mayes on the basis of what the record showed-that his
performance had not materially improved and that he had
better watch himself.13 I think it more probable that, as
Urffer testified, Mayes was not called in again until
January 9, after Respondent had compiled 12 more
workdays of experience on Mayes, and at that time was told
what Respondent's compilation shows: that Mayes was
continuing to operate his machine at an average below 50-
60 percent.14
On January 12, when the buzzer rang for the start of
Mayes' shift, he was in the bathroom. When he came out,
he was dressed down by Foreman Adams for having failed
to be at his station before the buzzer rang. Mayes and
employee Holland testified that this was an unannounced
change in policy; they said that prior to this date it had
been Respondent's policy that employees awaiting a shift
change would not report to their stations until the buzzer
rang. When Adams reproved Mayes, an argument ensued.
At the hearing, Mayes testified that he became "hot" during
this argument and admitted, "I got madder than he did."
Adams reported the incident to Klim, who came out to see
Mayes. Klim, saying, according to Mayes, "Ralph didn't
get as mad as you did, and you go home," suspended Mayes
for I day. Neither the criticism nor the suspension is alleged
as a violation of the Act, and I take it that the basis for this
suspension was, as Mayes conceded, that he "got madder
than [Adams] did." 15
The election, won by the Union, was held on January 16.
On January 21, according to Urffer, Klim approached him
and said, "It's about time we checked. It's been a couple of
weeks since the last time. It's about time we checked out
Larry's progress." Urffer and Klim looked over the figures
derived from the meter, discussed the fact that Mayes'
performance had not improved, adverted to his "flareup"
with Adams and his earlier statement that he could perform
13 Mayes, in fact , testified that subsequent to December 19 Foreman
Adams "complained about my welding on different occasions ." Thereafter,
however , he testified that after December 19 "nobody said anything
about my work . until the day I was fired."
14 During that period, Mayes did not on any day operate the welding
machine for more than 48.5 percent of the time.
15 Mayes insinuated at the hearing that there had been some skulduggery
afoot in the matter of the starting position . He said that, prior to the Union's
demand letter , employees on his shift would go to their positions before the
more but did not feel obliged to, and decided that they
should terminate Mayes . One other management represen-
tative was present at the meeting . His name is Riley
Brothers . At the time in question , Brothers was the
purchasing agent . Urffer referred to him as one of the three
top management personnel , the other being Urffer and
Klim. 16
At quitting time that day, according to Mayes, Brothers
called Mayes in, told him that he had been called into the
office twice , that he was not improving in his work , and that
he therefore had to be discharged . According to Mayes,
Brothers told him to leave the plant . When Mayes told
Brothers that he had to wait for employee Holland, who
rode with him, Brothers "told me to go right on out of the
plant, and if I didn't he was going to call the law on me."
Brothers did not testify at the hearing, and no reason was
given for his failure to testify.
On April 1, 1976, apparently after some bargaining had
taken place , the employees went on strike. The complaint
does not allege that the strike was an unfair labor practice
strike.
The question of what really motivated the Respondent to
discharge Mayes is not easily answered . After careful
deliberation, I have concluded that, despite the fact that
there is ground for suspicion , this is one of those cases in
which I cannot second -guess the Respondent's claimed
reasons for its conduct.
Respondent's knowledge of Mayes ' union activity is, I
think, likely . The plant is a small one . I have credited the
testimony of John Mount and Gary Holland that, in mid-
November 1975, Foreman McDowell asked how "Mayes
and Purdue" were getting along with the Union . I have also
credited the testimony of Jerry Mount that Foreman
Stewart, on January 16, named Mayes as one of the "14"
employees who would be fired because of the union
activity. Although I am not certain from this record that
Mayes was , as he claimed , the principal instigator of the
Union, it is apparent that he was one of them . I think the
testimony of McDowell, admitting that probably sometime
in December, another supervisor told him that "there was a
meeting at Purdue 's house and they signed cards ," suffi-
ciently indicates that Respondent was aware of what was
going on and who was involved.
Motive , however, is considerably more of a problem. As
an original matter , I had difficulty understanding why it
was necessary to measure Mayes ' performance by the use of
a meter; it would seem that his production could have been
adequately evaluated merely by keeping an account of the
number of various sized augers produced by him each day.
The General Counsel 's brief, however, makes no attack on
that score; he argues , rather, that the production standard
buzzer rang, but once the letter was received, "they stopped me from going
back-nobody was allowed to go back to work until after the buzzer rang."
The implication is that Respondent intended to prevent Mayes from visiting
the employees on the preceding shift If this were so, it seems unlikely that the
policy would have been changed back just 4 days before the election, thus
allowing Mayes to contact the other employees at a critical time
16 At the time of the hearing , Brothers had become the production
manager
D&ETOOLCO. 641
of 50-60 percent is suspect. This sparse record simply gives
me no basis for concluding that use of a meter to assess
Mayes' performance was not appropriate. Indeed, the fact
that such devices are manufactured suggests that there is a
valid use for them.
Klim's testimony that the meters were purchased in April
1975 refutes any claim that the whole measuring system was
installed simply as a reaction to the organizational effort,
since the latter did not begin until November 1975. I also
accept Klim's testimony that some preliminary efforts
toward measuring performance were made in the summer
of 1975 and that the system which eventually led to Mayes'
termination was instituted on October 27, 1975.17 This date
is of significance, since the organizational effort did not
begin until the first part of November 1975.
The 50-60 percent standard adopted by Respondent for
Mayes' performance was determined, according to Urffer,
"from past experience, and from a few instances where we
had checked before on other welders," including Mayes.
Klim, who had been present during Urffer's testimony,
added that the figure had been reached after some
discussion with Foreman Adams, who had worked as a
welder in the shop. The most important testimony on this
issue, from Respondent's point of view, came from employ-
ee Morrison, who acknowleged that he was "one of the
Union's leaders" and a member of the two-employee
bargaining committee. Morrison, who was the class I
welder from April 1974-May 1975, testified that his
experience had been that an average of 50-0 percent of his
time spent in actual welding would be a "reasonable"
requirement and that he had "probably" worked at that
average in the time that he worked as the class I welder.
Moreover, Morrison conceded that he had sometimes
complained to Foreman McDowell about the fact that
Mayes was not performing adequately.18 Mayes testified
that Morrison was a "capable" welder who knew "how
much work a person ought to put out in a day." It seems to
me that I must regard Morrison's testimony as important
substantiation both of the propriety of the standard applied
by Respondent and of its claim that Mayes was not
performing adequately.
The case for finding discriminatory treatment is also
considerably weakened by Mayes' admission that, at the
iT Khm testified , "Through the questioning of Mr . Crane [the Board
agent ], we found out that the format we had at the date that we presented in
those exhibits , were instituted on October 27, 1975 " This sounds reliable
October 27 was a Monday
Urffer testified that the system started "in rough form, in November " He
then went on to say that the 50-60 percent standard was based on past
experience and "from a few instances where we had checked before on other
welders, and actually Larry's time was before." This seems to support Klim's
testimony that there had been some preliminary attempt to use the system
prior to November . I note that General Counsel apparently subpenaed the
relevant records and did not offer to prove to the contrary
18 The transcnpt shows that the following exchange took place on cross-
examination•
Q. (By Mr. Schaub ) Mr. Morrison, did you ever complain to Mr
McDowell about the fact that Mr. Mayes wasn't getting out much
production , wasn't welding very many augers?
A. Some days , if I'd have to go in, I'd have to go in-
While Momson 's response , in cold punt, is cryptic , it was very clear at the
hearing that he intended to answer the question in the affirmative My own
first counseling session, he told Urffer that he could
perform more productively, but did not feel obliged to do
so. As stated above, I found Mayes ' explanations of why he
made such a statement to be unacceptable , and I have
credited Urffer's testimony that Mayes explained that he
was failing to perform at maximum efficiency because he
thought he was entitled to a bonus which was being
received by Morrison. By making such a statement, Mayes
displayed an attitude which Respondent might, most
properly, hold against him. The record of Mayes' perfor-
mance between the first counseling session and the second
one does not show any meaningful improvement in Mayes'
performance, and a reasonable employer might well have
assumed that Mayes was continuing to cling to his belief
that he was not "obliged" to perform at the higher standard
of which, he agreed, he was capable.
On January 12, Mayes had an argument with Foreman
Adams. He conceded , as discussed above, that he "got
madder than Adams." He was suspended by Klim for 1
day. 19
Although I feel somewhat uneasy about Klim's approach
to Urffer on January 21 to check into Mayes' performance
as recorded since the last counseling session , it cannot be
considered an unreasonable thing for him to have done,
especially in the light of Mayes' demonstrated attitude to-
ward Adams on January 12, shortly after Urffer had last spo-
ken to Mayes (Urffer had reported the session to Klim). 20
On the 5 days shown in the record in which Mayes had
welded between January 8 and 21, his average was 34.65
percent, which does not approach the 50-60 percent
standard deemed acceptable. It was therefore not without
some reasonable warrant that Khm decided that Mayes
could not be brought to a satisfactory level of production
and concluded that he should be terminated.
One might wish that the record had been more fully
developed along certain lines . It would be up to General
Counsel to establish that Mayes had been disparately
treated; by the end of General Counsel's case, it was
suggested , but not established, that Mayes was the only one
singled out for recording and counseling.
However, Klim then testified, without rebuttal, that there
were counters on other machines besides the welding
notes on his reply read , verbatim, as follows - "Morrison some times
complained about Mayes' production " Subsequently, in the cross-examina-
tion of Mayes, the following question and answer occurred without
objection-
Q. Did you hear Mr Momson say earlier that he complained some
times because he didn 't think you were putting out enough work?
A. Yes
19 This was Mayes' second recent argument with Adams. The prior one
had occurred on the morning of his first counseling session His affidavit
states that he had lifted his mask "for a few moments" when Adams told him
to stop standing around Although Mayes testified that he told Adams that
he, Mayes, "wasn 't womed about it, because I was doing my work," his
affidavit states, "I told Ralph that if I was him, I wouldn 't worry about it "
20 Klim also testified that Urffer had spoken to him before Urffer talked
to Mayes on December 19, Urffer saying that Adams "was complaining he
was having trouble with him " In addition , he testified that Mayes, to his
knowledge , had acted rudely during the December 19 interview with Urffer
"[on] December 19th, the secretary asked me to go in Mr Urffer's office,
because of the shouts and screaming coming out of there "
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines, and Klim also indicated that other employees
have been discharged in the same manner as Mayes.2i
Thus, there is no basis in the record for a conclusion that
Mayes received special treatment. Mayes himself indicated
at the hearing that Respondent had, in the past, not been
reluctant to discharge employees. He testified that one of
the reasons he told employees a union was needed was "the
way they went about firing several people." He also
mentioned "the incident when Joe Smith got fired and the
men wanted to find out about it, and Jack Khm told me he
had his reasons, he had good reasons for firing him." I
deduce from this that Respondent had, prior to the advent
of the Union, a history of discharging employees in
circumstances where an outsider might disagree with
Respondent's reasons for doing so.
Of considerable significance is the fact that Mayes was
not discharged until 5 days after the Union had won the
representation election. Thus, although in November,
McDowell had opined that "he didn't figure [Mayes and
Purdue would] be there long enough to see it through," the
fact is that Mayes was not discharged until the Union had
won the election (and Purdue was never discharged). It
seems to me that for any substantial value to be realized
from, as General Counsel alleges, constructing a plan for
the eventual termination of Mayes-the creation of a
spurious production standard, two counseling sessions, etc.
- it would be necessary to discharge Mayes before the
election. This rather elaborate scheme would not yield
much fruit if the Union had already won the election. And
yet Mayes was not discharged until after the election. It is
true that I have found that, on the day of the election,
Foreman Stewart stated to Jerry Mount that 14 employees,
including Mayes, would be fired "over this thing." Stewart
had been a foreman for 3 years at the time of the hearing
and, in my judgment, probably was not very close to the
seat of power.22 Furthermore, as Jerry Mount testified, he
told Stewart his brother Ivan had talked to Jack Klim and
that Klim had told Ivan that "there was not going to be no
one fired over this." This latter statement reported by Jerry
Mount was not developed; Ivan Mount did not testify. The
indication from Jerry Mount's testimony (sponsored by the
General Counsel) is, however, that Klim was making
something of an effort to assure the employees that there
would be no reprisals taken for their union activity; he was,
i.e., not merely maintaining a studied silence, but w;;
making an active effort to assure employees-at least,
employee Ivan Mount-that no serious consequences
would flow from instigation or selection of the Union.
There are matters which give me pause. For example,
Mayes, as indicated, testified, without contradiction, that in
December Klim told him he was going to "do his best" to
prevent the Union from coming in. While this indicates a
determined opposition, the fact is that Mayes could have
been discharged before the Union was elected, thus putting
to best advantage the record of his counseling sessions with
Urffer and his confrontation with Foreman Adams; Mayes,
however, was not discharged until after the election. There
is, as well, the uncontradicted testimony of Mayes about
the hostile manner in which Riley Brothers treated him on
the day of his termination. There is the testimony-uncer-
tain , to be sure-of Morrison that Respondent stopped
recording his welding performance when Mayes was fired,
or shortly thereafter; Respondent did not bother to answer
this assertion . There are other items, previously discussed,
such as my own doubts about the utility of the meter system
in checking on Mayes' performance.
But when these bits and pieces of adverse material are set
against the admissions made by General Counsel's witness-
es and are viewed in the light of my preference, from a
demeanor standpoint, for Urffer and Klim over Mayes, I
am constrained to conclude that the evidence favoring
General Counsel, at the very best, is not enough. The Board
has recently repeated that the Act "does not require that an
employer act wisely, or even reasonably; only, whether
reasonable or unreasonable, that it not act discriminaton-
ly." Paramount Metal & Finishing Co., Inc, 225 NLRB 464
(1976). Since the General Counsel has the burden of
proving his case by a preponderance of the evidence, I must
accordingly recommend dismissal of the 8(a)(3) and (1)
allegation relating to the discharge, on January 21, 1976, of
James Larry Mayes. Indeed, taking into account the
concessions made by General Counsel's witness Morrison
and by Mayes himself, and given the timing of the
discharge, I do not see how I could convincingly rationalize
a conclusion to the contrary.
CONCLUSIONS OF LAW
1. D & E Tool Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By engaging in coercive interrogation of employees,
by threatening an employee, by indicating that participa-
tion in union activities could result in termination, and by
giving employees the impression that their union activities
were under surveillance, in November and December 1975
and January 1976, Respondent violated Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Other than the foregoing, Respondent has not
violated the Act as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respondent
be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of the
Act.
11 "When they weren 't up to an acceptable level, we brought them in and can say, at least to my knowledge, everyone that had been counseled, we
always counseled them twice before they were discharged for not working at were never met with an aggressive response until December 19." _
an acceptable level. Often times we found there was other problems where a zz In December 1975, he supervised only five employees on the night
fellow had health problems or home problems or other things And I think I shift.
D & E TOOL CO. 643
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, I hereby
issue the following recommended:
ORDER23
u In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted By
Order Of The National Labor Relations Board" shall read "Posted Pursuant
To a Judgment of The United States Court of Appeals Enforcing an Order of
The National Labor Relations Board."
The Respondent, D & E Tool Company, Lesage, West
Virginia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening and coercively interrogating employees
with regard to their union activity, sympathies, or member-
ship, and giving employees the impression that their union
activities are under surveillance.
(b) In any like manner, -interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its place of business in Lesage, West Virginia,
copies of the attached notice marked "Appendix." 24 Copies
of said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent, shall
be posted by it immediately upon receipt thereof and be
maintained by it • for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
za In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in bargain-
ing with us
To act together for your common interest or
protection
And to refuse to participate in any or all of the
foregoing activities.
WE WILL NOT coercively interrogate or threaten you
because of your union membership, sympathies, or
activities, or give you the impression that we are spying
on those activities.
WE WILL NOT in any like manner interfere with,
restrain, or coerce you in the exercise of your right to
engage in or to refrain from engaging in any or all of the
activities specified in Section 7 of the Act.
D & E TOOL Co.